1. CRIMINAL PROCEDURE — Preliminary Hearing — Rules. The preliminary hearing in Colorado under Crim. P. 7(h) is not a mini-trial, but rather is limited to the purpose of determining whether there is probable cause to believe that a crime was committed and that the defendant committed it.
MR. JUSTICE KELLEY delivered the opinion of the Court.
Petitioner, the District Attorney for the County of Boulder, instituted this original proceeding pursuant to C.A.R. 21. We issued a rule to show cause why the criminal information, which was issued at the instance of the petitioner and dismissed by the respondent at a preliminary hearing, should not be reinstated. We now make the rule absolute.
On July 28, 1975, the respondent district judge conducted a preliminary hearing in the criminal case of People v. Jesus Romero, pursuant to Crim. P. 7(h). The defendant had been charged with two counts of rape, section 18-3-401, C.R.S. 1973, and one count of second-degree kidnapping. Section 18-3-302, C.R.S. 1973.
Now amended by H.B. 1042, 1975 Sess. Law, p. 27.
At the hearing, the testimony of the complaining witness, Louise Gonzales, was contradicted in several respects by the testimony of Eddie Quitana, a witness for the defense. Most of the discrepancies concerned the sequence of events occurring on the evening in question up to the time of the alleged kidnapping and rape. Mrs. Gonzales testified that she had never had sexual intercourse with the defendant prior to the alleged rape; that she attended a party on the evening in question escorted by the defendant; that the defendant verbally and physically abused her at the party; that Eddie Quintana, a friend, had given her a ride home after the party; that she did not realize that the defendant was following them; that when she left Quintana's car, the defendant abducted her against her will; that he took her in his van to an open field where twice he had non-consensual sexual intercourse with her after physically abusing her; and that she escaped to call the police.
Quintana, who works at the same plant with the defendant and Mrs. Gonzales, was called as a defense witness. He testified that the defendant and Mrs. Gonzales arrived at the party together; that the defendant had stated publicly at the party that they were out in the country together and that he had "balled" her; that Mrs. Gonzales became upset and said, "You fucker, that was just between us"; that the defendant then attempted to restrain Mrs. Gonzales on the floor, at which time she threatened to call the police; that Mrs. Gonzales sought a ride home with Quintana to which he agreed; that on the way home she noted that the defendant was following them; and that Quintana dropped her off at her home, telling her to get inside quickly in order to avoid trouble with the defendant.
The judge found that the testimony of the complaining witness had been contradicted in "several material respects." Therefore, the judge chose to disregard the testimony of Mrs. Gonzales "in its entirety," because he could not distinguish between fact and fiction in her testimony. He therefore dismissed the information. The district attorney seeks a writ from this court directing the judge to reinstate the information.
There are two issues presented by this proceeding: (1) does a district court judge conducting a preliminary hearing have jurisdiction to consider the credibility of the witnesses in determining the existence or absence of probable cause; and (2) assuming such jurisdiction to exist, did the respondent judge abuse his discretion in this case?
[1-3] The preliminary hearing in Colorado under Crim. P. 7(h) is not a mini-trial, but rather is limited to the purpose of determining whether there is probable cause to believe that a crime was committed and that the defendant committed it. Maestas v. District Court, 189 Colo. 443, 541 P.2d 889; People v. District Court 184 Colo. 406, 521 P.2d 778 (1974); People v. Guinn 183 Colo. 245, 516 P.2d 420 (1973). It focuses upon a probable cause determination, rather than a consideration of the probability of conviction at the ensuing trial. See Note, "The Function of the Preliminary Hearing in Federal Pre-trial Procedure," 83 Yale L.J. 771 (1974). As a screening device, the preliminary hearing insures that the prosecution can at least sustain the burden of proving probable cause. It protects the accused by avoiding an embarrassing, costly and unnecessary trial and it benefits the interests of judicial economy and efficiency. People v. District Court, 185 Colo. 118, 522 P.2d 589 (1974).
[4-7] In light of its limited purpose, evidentiary and procedural rules in the preliminary hearing in Colorado are relaxed. Crim. P. 7(h)(3). While the bulk of testimony at a preliminary hearing may be hearsay, People v. Quinn, supra, the prosecution may not totally rely on hearsay to establish probable cause where competent evidence is readily available. People v. Maestas, supra. The prosecution need not produce all of its evidence against the defendant at the preliminary hearing, but only that quantum necessary to establish probable cause. People v. Quinn, supra. Under our Rule 7(h)(3), the burden of proof is on the prosecution, and the defendant need not testify, while he has the right to cross-examine the witnesses called by the People. See Kuypers v. District Court, 188 Colo. 332, 534 P.2d 1204 (1975).
The issue of whether a judge in a preliminary hearing may consider the credibility of witnesses in determining probable cause is one of first impression in Colorado. Other jurisdictions which have considered the matter have generally held that the credibility of witnesses at a preliminary hearing is a proper consideration for the judge in determining probable cause. Wilson v. State, 59 Wis.2d 269, 208 N.W.2d 134 (1973); Jones v. Superior Court, 4 Cal.3d 660, 94 Cal. Rptr. 289, 483 P.2d 1241 (1971); Wrenn v. Sheriff, 87 Nev. 85, 482 P.2d 289 (1971); People v. Paille #2, 383 Mich. 621, 178 N.W.2d 465 (1970); People v. Bieber, 100 N.Y.S.2d 821 (Mag. Ct. 1950). But the facts and the narrow basis of decision relied upon in these cases indicate that the general rule is limited.
While we mentioned the issue in passing in Biddle v. District Court, 183 Colo. 281, 516 P.2d 645 (1973), we did not consider the issue on its merits.
In Wilson, supra, the Wisconsin Supreme Court held that a magistrate must assess the credibility of witnesses in preliminary hearings in order to determine if there is credible evidence to establish probable cause. However, the court restricted the inquiry of credibility to the "plausibility of the story and not general trustworthiness." As the preliminary hearing in Wisconsin is primarily for the purpose of determining probable cause of the arrest, and not for discovery, all that the prosecution needed to establish was a plausible, believable account of the crime committed by the defendant.
In Wrenn v. Sheriff, supra, the Supreme Court of Nevada stated that when there is conflicting evidence at the preliminary hearing, the magistrate must determine the weight to be accorded the testimony of the witnesses. But the court qualified its holding:
". . .[I]f an inference of criminal agency can be drawn from the evidence it is proper for the magistrate to draw it, thereby leaving to the jury at the trial the ultimate determination of which of the witnesses are more credible.
. . . .
"The accused's explanation for the homicide, being in the nature of a defense [no specific intent to kill], whether true or false, reasonable or unreasonable, is for the trier of fact to consider at trial; and neither the preliminary examination nor the hearing upon petition for habeas corpus is designed as a substitute for that function."
In People v. Paille #2, supra, the Supreme Court of Michigan upheld the trial court's dismissal of an arrest warrant at the preliminary hearing, because the judge found that the testimony of the witnesses for the People was "incredible" and perjurious. Therefore, the judge had a "duty to pass judgment, not only on the weight and competency of the evidence, but also the credibility of the witnesses."
In People v. Bieber, supra, a judge of the City Magistrate Court, held that at a preliminary hearing, the judge can resolve conflicts in testimony, but only "where the evidence is overwhelming."
Only in the Jones case does a state court hold that a judge in a preliminary hearing is always at liberty "to weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses." That California Supreme Court decision indicates the fundamental difference between the function of a preliminary hearing in California and in the other above-cited jurisdictions, including Colorado.
[8] The preliminary hearing in California is a "mini-trial," emphasizing the probability of conviction at trial on admissible evidence. In such a situation, the Jones decision properly allows the judge to act as a trier of fact. In Colorado, however, the preliminary hearing is not a "mini-trial," and the judge in such a role is not a trier of fact. Rather, his function is solely to determine the existence or absence of probable cause.
[9] We hold that a judge in a preliminary hearing has jurisdiction to consider the credibility of witnesses only when, as a matter of law, the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury, and the judge must draw the inference favorable to the prosecution.
[10] The conflicts in testimony in this case are not sufficient to support a finding by the judge that Mrs. Gonzales' testimony was implausible or incredible as a matter of law. We are not unmindful of the deference normally shown to findings of a judge who has the benefit of assessing the demeanor of the witness in person rather than on the basis of a cold record. Nevertheless, we believe that in this case the trial judge abused his discretion in disregarding the testimony of Mrs. Gonzales.
We order the information reinstated by the district judge.
The rule is made absolute.
MR. JUSTICE DAY, MR. JUSTICE GROVES, and MR. JUSTICE ERICKSON dissent.
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