Babauta v. Superior Ct.

Babauta v. Superior Ct., 4 N.M.I. 309 (1995) Juan B. Babauta and Jose B. Babauta, Petitioners, v. Superior Court of the Northern Mariana Islands, Respondent, Commonwealth of the Northern Mariana Islands, Respondent/Real Party in Interest. Original Action No. 95-002 Order Denying Petition for Writ of Mandamus December 15, 1995 Amended December 18, 1995 Subm itted on Filings Decem ber 4, 1995 Counsel for petitioner: G. Anthony Long & Pam ela Brown, Saipan (Long & Brown). Counsel for respondent/real party in interest: Yvonne O. Lee, Assistant Attorney General, Saipan. BEFORE: TAYLOR, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. PER CURIAM : I The petitioners, Juan B. Babauta and Jose B. Babauta (“petitioners”), apply to this Court for a writ of m andamus directing the Superior Court either to dism iss the charges against them for failure to provide a prelim inary exam ination, or to vacate its order setting the trial date 1 and order the court to hold a preliminary exam ination. Based on the analysis that follows, we deny the petitioners’ request for a writ. II The petitioners contend that they are entitled to prelim inary hearings under the Fourth 2 and Fourteenth 1 This request is now moot because the date set for trial, December 4, 1995, has past. 2 This provision guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. This right “shall not be violated, and no W arrants shall issue, but upon probable cause.” Id. Am endm ents3 to the U.S. Constitution, 6 CM C § 6303, Com . R. Crim. P. 5.1, and the Com m onwealth Constitution. W e will consider these argum ents in turn. A. The Federal Constitution Under the U.S. Constitution, two pretrial determ inations must be made with respect to all crim inal defendants.4 First, the Fourth Am endm ent requires that a probable cause, or Gerstein determ ination, be made by a judicial officer if there will be a significant restraint on the accused’s liberty following arrest.5 A Gerstein hearing is not required, though, if a grand jury indictm ent 6 or a warrant 7 supports the defendant’s arrest. The U.S. Constitution does not require that the suspect 8 or counsel 9 be present when a judicial officer makes the Gerstein determination of probable cause. Here, the petitioners’ arrests were supported by warrants signed by a Superior Court judge. The petitioners challenge neither the validity of the warrants nor the lawfulness of their arrests with respect to the issue of probable cause. Thus, Gerstein has been satisfied. Second, as a m atter of due process under the Fifth and Fourteenth Am endm ents, a suspect must be brought, without unreasonable delay, before a judge for an initial appearance following arrest.10 The purpose of this appearance is to advise the arrestee of the charges against her or him, and of her or his rights. The petitioners made initial appearances in the Superior Court at their bail hearings on the day of their arrests. They m ake no contention, and the record before us does not support an inference, that their due process rights were infringed with respect to their initial appearances. The petitioners assert that they are entitled to an additional hearing in the form of a preliminary exam ination. The purpose of a prelim inary exam ination is to determ ine whether there is probable cause to believe that a crime has been com m itted and that the accused com m itted it.11 3 The petitioners broadly cite the Fourteenth Amendment, but they appear to be referring to the Due Process Clause of section 1 of this Amendment. Specifically, they assert their entitlement “to a preliminary hearing to determine whether probable cause exists to restrict their liberty pending trial.” Petition for Writ at 9. Under the Due Process Clause of the Fourteenth Amendment, no “State [shall] deprive any person of life, liberty or Property, without due Process of law.” U.S. Const. amend. XIV, § 1, cl. 3. 4 See generally Michael J. Coleraine, Preliminary Hearings, Project, Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1993-1994, 83 G EO . L.J. 904-12 (1995). 5 Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 863, 43 L. Ed. 2d 54, 65 (1975). The U.S. Supreme Court specifies that “[w]hatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause . . . and this determination must be made . . . either before or promptly after arrest.” Id., 420 U.S. at 124-25, 95 S. Ct. at 868-69, 43 L. Ed. 2d at 71-72 (footnotes omitted). “The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. . . . The standard is the same as that for arrest.” Id., 420 U.S. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d at 69 (footnote omitted). 6 Id., 420 U.S. at 117 n.19, 95 S. Ct. at 865 n.19, 43 L. Ed. 2d at 67 n. 19. 7 Id., 420 U.S. at 116 n.18, 95 S. Ct. at 864 n. 18, 43 L. Ed. 2d at 67 n.18. 8 Garcia v. City of Chicago, 24 F.3d 966, 969-70 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1313, 131 L. Ed. 2d 194 (1995). 9 Gerstein, 420 U.S. at 122-23, 95 S. Ct. at 867-68, 43 L. Ed. 2d at 70. 10 See Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433, 442 (1979) (dictum). 11 See, e.g., Fed. R. Crim. P. 5.1(a).  Babauta v. Superior Ct., 4 N.M.I. 309 (1995) The right to a preliminary exam ination is extended, by statute and through rules of procedure, to defendants charged with nonpetty offenses in federal court,12 and to defendants in most states.13 However, the Due Process Clause of the Fourteenth Am endm ent does not require that states offer an accused the opportunity for a prelim inary examination where, as here, the government com m ences prosecution through the filing of an information, and arrests the accused under a warrant.14 The petitioners’ claim under the Fourteenth Am endm ent, therefore, is without merit. B. Commonwealth Statutes and Procedural Rules W hile the Com m onwealth Constitution does not expressly guarantee a right to a prelim inary exam ination, the right has been established in this jurisdiction by statute and rules of court. The dispute in the instant case concerns the breadth of the right. Under 6 CM C § 6303, “[i]f the arrested person does not waive preliminary exam ination, the official shall hear the evidence within a reasonable tim e.” 15 Com . R. Crim. P. 5.1 also addresses the subject of preliminary hearings, providing in pertinent part that “[a] defendant is entitled to a preliminary exam ination, unless waived, if he/she is substantially deprived of his/her liberty. . . . If the defendant does not waive the prelim inary exam ination, the judge shall schedule a preliminary examination.” 16 The petitioners and the real party in interest, the Comm onwealth (“Comm onwealth”), agree that incarceration constitutes a substantial deprivation of liberty and, therefore, that defendants who are not released pending trial must be afforded an opportunity for a prelim inary exam ination. Petition for W rit at 12-13; Government’s Response to Petition for W rit, Exhibit 5 at 5. At this point the parties’ viewpoints diverge. On the one hand, the petitioners contend that 6 CM C § 6303 creates a prelim inary examination right that applies to defendants regardless of whether they are incarcerated pending trial. Petition for W rit at 13. On the other hand, the Comm onwealth and the respondent, the Superior Court, maintain that defendants who are released from custody pending trial are not entitled to a prelim inary exam ination. Governm ent’s Response to Petition for W rit, Exhibit 5 at 5; Commonwealth v. Lizama, Crim . No. 94-0102 (N.M .I. Super. Ct. Sept. 6, 1994) (decision and order at 8-9).) 17 W e disagree with the petitioners’ reading of 6 CM C § 6303 and Com. R. Crim. P. 5.1, but we hold that there m ay be instances in which a defendant is “substantially deprived of his/her liberty” even though he or she has been released from custody pending trial. W hile 6 CM C § 6303 and Com . R. Crim . P. 5.1 appear to conflict, a review of the relevant legislative history 18 reveals otherwise. The Trust Territory Code supplied the law governing crim inal procedure 19 in the 12 See, e.g., Fed. R. Crim. P. 5(c), 5.1(a); accord 18 U.S.C. § 3060(a). 13 1 Charles E. Torcia, W H ARTO N ’S C RIM IN AL P ROCEDURE § 140 (13th ed. 1989). 14 Lem Woon v. Oregon, 229 U.S. 586, 589-90, 33 S. Ct. 783, 784, 57 L. Ed. 340 (1913). 15 6 CMC § 6303(a) (emphasis added). 16 Com. R. Crim. P. 5.1 (emphasis added). 17 The respondent Superior Court “has respectfully declined to file an answer in this matter and has referred [the Supreme Court] to its decisions in the . . . Lizama case.” Government’s Response to Petition for W rit at 2. 18 It is appropriate to turn to legislative history for guidance where a statute “may reasonably be read in two ways, or where no single path of meaning clearly appears.” Songao v. Commonwealth, 4 N.M.I. 186, 190 n.18 (1994). 19 See 12 TTC §§ 1-481 (1980 Ed.). Com m onwealth through the early 1980s. Twelve TTC § 202 created a right to a prelim inary exam ination, but only under certain circum stances. 20 Twelve TTC § 204, in turn, established procedures for exercise of the right: “If the arrested person does not waive prelim inary exam ination, the official shall hear the evidence within a reasonable tim e.” 21 In 1983, the Chief Judge of the Comm onwealth Trial Court subm itted proposed rules of crim inal procedure to the Third Com m onwealth Legislature. 22 The proposed rules were m odeled after the Federal Rules of Crim inal Procedure.23 The Chief Judge suggested that the legislature repeal certain provisions of the Trust Territory Code which would otherwise be redundant with the new rules. 24 Twelve TTC § 202 (creating the right to a preliminary exam ination under particular circumstances) was one such provision. 25 Another was 12 TTC § 206,26 which provided that in certain situations, a defendant who was released on bail or personal recognizance could request a prelim inary exam ination. 27 After reviewing the Judge’s proposal, the Third Com m onwealth Legislature’s Senate Com m ittee on Judiciary, Governm ent and Law stated: The proposed rules would replace m any of the outdated [TT] Code provisions relating to crim inal procedure. The Com m ittee, upon recom m endation of the Attorney General, and the Trial Court, elected not to address crim inal procedures in statutory form . The Trial Court was to prepare new com prehensive crim inal procedure Court Rules instead. .... House Bill No. 350 repeals those sections of Title 12 of the Trust Territory Code that are inconsistent with the new Court Rules. 28 In accordance with this scheme, 12 TTC §§ 202 and 206 were repealed 29 and replaced by Com . R. Crim . P. 5 30 and 20 See 12 TTC § 202(3). Under this section, an arrested person had no right to a preliminary examination if he or she was brought before a court competent to try him or her for the charged offense. Borja v. Trust Territory, 6 TTR 584, 586-87 (App. Div. 1974). 21 12 TTC § 204. 22 See Letter from Robert A. Hefner, Chief Judge, Commonwealth Court, to Olympio T. Borja, President of the Senate, and Benigo R. Fitial, Speaker of the House of Representatives, Third NMI Legislature 1 (Oct. 28, 1983). 23 See id. 24 See id . 25 See id. at 2. 26 See id. 27 12 TTC § 206 . 28 Sen. Report No. 265, 3d N.M.I. Legis. at 2 (1983). 29 See PL 3-84, § 1 (enacted December 27, 1983). 30 This rule sets forth the procedures to be followed during an arrested person’s initial appearance.  Babauta v. Superior Ct., 4 N.M.I. 309 (1995) 5.1, respectively, of the new Comm onwealth Rules of Crim inal Procedure.31 Later that year, the Third Com m onwealth Legislature created the Comm onwealth Code, essentially through the wholesale adoption of what remained of the Trust Territory Code. 32 The remainder included 12 TTC § 204 (establishing procedures for exercise of the right to a preliminary examination), which was enacted as 6 CM C § 6303.33 In sum m ary, what were once com plim entary provisions of a single Trust Territory statute (12 TTC §§ 202, 204 and 206) became separated and, through happenstance, resurfaced independently as portions of two rules of crim inal procedure (Com . R. Crim . P. 5 and 5.1), and as a section of the Com m onwealth Code (6 CM C § 6303). The legislative history of 6 CM C § 6303 is devoid of evidence of an intent either to create a statutory right to a prelim inary exam ination, or to codify any procedural rules that might supersede the Com m onwealth Rules of Crim inal Procedure. Rather, it appears that 12 TTC § 204 was inadvertently overlooked when the law governing crim inal procedure was changed from statutory to rule-based form in 1983. The plain language of Com . R. Crim. P. 5.1 m andates that an accused be offered an opportunity for a prelim inary exam ination if he or she is “substantially deprived of his/her liberty.” The rem aining question concerns the definition of “substantially deprived.” W e agree with the parties that incarceration constitutes a substantial deprivation of liberty. The converse, however, is not necessarily true. In other words, the pretrial release of a defendant does not autom atically place him or her beyond the reach of Com . R. Crim. P. 5.1. Certain conditions or com binations of conditions of release may work a substantial deprivation of a defendant’s liberty,34 which would bring the defendant within the purview of Com . R. Crim . P. 5.1 and entitle him or her to a prelim inary examination. W e will not speculate as to what release conditions might create a “substantial deprivation.” This determ ination will be left instead to the sound discretion of the trial judge in each case. Following careful review of the release conditions set for the petitioners in the instant case, we are not persuaded that the trial court erred in finding that there has been no substantial deprivation of liberty within the m eaning of Com . R. Crim . P. 5.1. The trial court thus did not abuse its discretion in denying the petitioners’ requests for prelim inary examinations under the rule. C. The Commonwealth Constitution W e cannot determ ine precisely which provision of the Com m onwealth Constitution the petitioners allege the Superior Court has violated. They argue that N.M .I. Const. art. I, § 3 “prohibits the CNM I from depriving a person of liberty without due process.” Petition for W rit at 15. In fact, N.M .I. Const. art. I, § 3, which corresponds to the Fourth Am endm ent to the U.S. Constitution, protects individuals from illegal searches and seizures. It may be N.M .I. Const. art. I, § 5, that the petitioners intend to cite, as this section provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” 35 31 See Letter from Robert A. Hefner, Chief Judge, Commonwealth Court, to Olympio T. Borja, President of the Senate, and Benigo R. Fitial, Speaker of the House of Representatives, Third NMI Legislature 2 & appendix (Oct. 28, 1983); Sen. Report No. 265, 3d N.M.I. Legis. (1983) (discussing House Bill 350, which provided for the repeal of particular provisions of the Trust Territory Code relating to criminal procedure). 32 See Commonwealth Code, PL 3-90 (Dec. 23, 1983). 33 See id. § 2(c). 34 Cf. Gerstein, 420 U.S. at 114, 95 S. Ct. at 863, 43 L. Ed. 2d at 65 (discussing rule that a Gerstein determination is necessary where pretrial deprivation of liberty is “significant,” and observing that “[e]ven pretrial release may be accompanied by burdensome conditions that effect a significant restraint on liberty”). 35 N.M.I. Const. art. I, § 5.  The petitioners provide the Court with no other citations to clarify their position. Consequently, the Court hesitates to consider their argum ent. 36 However, the petition at least narrows the allegedly violated constitutional rights down to two. The allegations, furtherm ore, im plicate the petitioners’ substantial rights. Therefore, in the interest of justice, we will consider the questions of whether the petitioners’ rights have been violated under either N.M .I. Const. art. I, §§ 3 or 5.37 The fram ers of the Com m onwealth Constitution fram ed N.M .I. Const. art. I, § 5 sim ilar to the Due Process of Clause of the Fourteenth Am endm ent. For purposes of the preliminary exam ination issue now before us, we find no evidence that the framers intended to confer a broader right than that guaranteed by the U.S. Constitution. 38 W e, therefore, will not infer such a right. The fram ers similarly made N.M .I. Const. art. I, § 3 sim ilar to a provision of the U.S. Constitution; specifically, the Fourth Am endm ent.39 Unlike N.M .I. Const. art. I, § 5, section 3 expands upon rights guaranteed under the U.S. Constitution. 40 However, the expansion does not reach so far as to guarantee, expressly or im pliedly, a right to a prelim inary exam ination to all accused persons in the Com m onwealth. CONCLUSION For the reasons set forth above, the petitioners’ petition for a wit of mandam us is hereby DENIED. 36 Cf. Roberto v. De Leon Guerrero, 4 N.M.I. 295, 297-98 (1995) (holding that Court will not address arguments that are not supported by cited authority). 37 Counsel for the petitioners should consider themselves warned that the Court is unlikely to be so indulgent in the future. 38 Northern Marianas Constitutional Convention, Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands 20 (Feb. 15, 1975). 39 Id. at 6-7. 40 Id.