No. 13683 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA ex rel. 

DALE BRACKMAN , 

Relator, 

THE DISTRICT COURT OF THE FIRST 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, IN AND FOR THE COUNTY OF 

LEWIS AND CLARK, and the HON. GORDON R. BENNETT, 

Presiding Judge, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator: 

Leaphart Law Firm, Helena, Montana 

W. William Leaphart argued, Helena, Montana 

Submitted: January 26, 1977 

Decided:fEB 2 4 jjni 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

Relator seeks a writ of supervisory control upon the 

following facts: 

On December 30, 1976, a criminal complaint was filed in 

the Justice of Peace court for Lewis and Clark County, charging 

relator with intimidation, a felony. A warrant for the arrest 

of relator was issued, relator was arrested the same day and 

released on his own recognizance. Relator appeared with counsel 

at an initial appearance before the justice of peace on January 

3, 1977, and requested a preliminary examination which was 

scheduled for January 6, 1977. 

The county attorney was not present at this initial appearance and on January 5, 1977, filed a motion for leave to file the 

information directly with the district court. The county attorney 

presented witnesses in support of this motion and did not rely 

upon an affidavit. This procedure of presenting testimony in 

support of a motion for leave to file is the common practice of 

the Lewis and Clark county attorney's office. 

Counsel for relator appeared at this proceeding and moved 

the district court for permission to cross-examine the State's 

witnesses. This motion was denied and the State's motion for leave 

to file was granted. 

The preliminary examination in justice of peace court was 

vacated and the complaint subsequently dismissed. 

Initial appearance in district court was scheduled for 

January 10, 1977, arraignment was held on January 17, 1977, and 

trial was scheduled for January 31, 1977. 

We assume jurisdiction of this application pursuant to 

Rule 17, M.R.App.Civ.P., however we perceive no need for an adversary hearing upon the matter. An adversary hearing will add 
nothing further to the factual situation surrounding the single 

issue raised before this Court. The relief prayed for by 

relator is denied for the following reasons. 

The determinative issue presented is whether the motion 

for leave to file an information is a "critical stage" which 

entitled relator to the right to effective assistance of counsel. 

Relator relies upon Coleman v. Alabama, 399 U.S. 1, 90 

S.Ct. 1999, 26 L ed 2d 387, 397, (1970) and Kirby v. Illinois, 

406 U.S. 682, 92 S.Ct. 1877, 32 L ed 2d 411 (1971). Both of 

these cases hold that a defendant is entitled to assistance of 

counsel at a preliminary hearing. 

Justice Brennan announced the judgment of the Court in 

Coleman, and stated on p. 397: 

"Plainly the guiding hand of counsel at the 

preliminary hearing is essential to protect the 

indigent accused against an erroneous or improper 

prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that 

may lead the magistrate to refuse to bind the 

accused over. Second, in any event, the skilled 

interrogation of witnesses by an experienced 

lawyer can fashion a vital impeachment tool for 

use in cross-examination of the State's witnesses 

at the trial, or preserve testimony favorable 

to the accused of a witness who does not appear 

at the trial. Third, trained counsel can more 

effectively discover the case the State has 

against his client and make possible the preparation of a proper defense to meet that case at 

the trial. Fourth, counsel can also be influential 

at the preliminary hearing in making effective 

arguments for the accused on such matters as the 

necessity for an early psychiatric examination or 

bail. " 

The judgment in Coleman was rendered by a majority of 

the court, the majority failed to agree on the reasons for the 

opinion. 

Alabama had at least two means of initiating a prosecution: 

(1) a grand jury indictment without a preliminary hearing, or 

(2) a preliminary hearing before a magistrate to determine whether 

an offense was committed and whether probable cause existed to 
warrant presenting the case to the grand jury. Montana provides 

three means: (1) a grand jury indictment; (2) a preliminary 

examination; or (3) leave to file the information directly in 

district court. 

The grand jury procedure is not designed to be an adversary judicial determination of probable cause. Sections 95- 

1401 et seq., R.C.M. 1947. Furthermore, as Chief Justice Burger 

notes in his dissent to Coleman, there is no constitutional right 

to counsel at grand jury proceedings. 

The second procedure, preliminary examination, is designed 

to be an adversary judicial determination of probable cause, where 

both the prosecution and the defense present witnesses and are 

entitled to cross-examination. Section 95-1202(a), R.C.M. 1947. 

Of course, Coleman dictates that an accused be afforded counsel 

if this procedure is followed. 

The third procedure, leave to file information in district 

court, is stated in section 95-1301, R.C.M. 1947: 

"(a) The county attorney may apply directly to 

the district court for permission to file an 

information against a named defendant. The 

application must be by affidavit supported by 

such evidence as the judge may require. If it 

appears that there is probable cause to believe 

that an offense has been committed by the defendant the judge shall grant leave to file the 

information, otherwise the application shall 

be denied." 

This procedure is constitutionally acceptable as a means of 

initiating a prosecution in light of the United States Supreme 

Court decisions in Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 

783, 57 L.Ed 1340 (1913); Beck v. Washington, 369 U.S. 541, 

82 S.Ct. 955, 8 L ed 2d 98 (1962); Gerstein v. Pugh, 420 U.S. 

103, 95 S.Ct. 854, 43 L ed 2d 54 (1975). Gerstein, at p. 68, 

citing Lem Woon and Beck, states: 

"In holding that the prosecutor's assessment of 

probable cause is not sufficient alone to justify 

restraint of liberty pending trial, we do not 

imply that the accused is entitled to judicial 

oversight or review of the decision to prosecute. 

Instead, we adhere to the Court's prior holding 

that a judicial hearing is not prerequisite to 

prosecution by information. (Citations omitted.)" 

Furthermore, we have held that a defendant does not have 
a vested right to a preliminary examination; and the State may 

proceed by filing an information directly in the district court 

before a scheduled preliminary examination is held. State v. 

Dunn, 155 Mont. 319, 472 P.2d 288 (1970). 

Relator raises the issue whether an accused is guaranteed 

the right to counsel when the State chooses to bypass a scheduled 

preliminary examination, and presents witness testimony at the 

proceeding on its motion for leave to file. 

As relator contends, it is true that both the preliminary 

examination and the motion for leave to file are concerned with 

determining the existence of probable cause that a crime was 

committed by defendant. However, the answer to the issue presented 

must be found, not merely by comparing the similarity of the determination to be made at each proceeding, but comparing how that 

determination is made. 

United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 

L ed 2d 619, 628, 631, (1973), a case decided after Coleman, states: 

" * * * that the test utilized by the Court has 

called for examination of the event in order to 

determine whether the accused required aid in coping 

with legal problems or assistance in meeting his 

adversary. * * *" 

Ash - citing Coleman as well as other decisions, traces 

the history of establishing the right to counsel at different 

stages of a criminal proceeding. The court then distinguishes 

these cases from the issue presented in Ash - stating: 

"A substantial departure from the historical test 

would be necessary if the Sixth Amendment were 

interpreted to give Ash a right to counsel at the 

photographic identification in this case. Since 

the accused himself is not present at the time of 

the photographic display, and asserts no right to 

be present * * * no possibility 

arises that the accused might be misled by his lack 

of familiarity with the law or overpowered by his 

professional adversary. Similarly, the counsel 

guarantee would not be used to produce equality in 

a trial-like adversary confrontation. Rather, the 

guarantee was used by the Court of Appeals to produce 

confrontation at an event that previously was not 
analogous to an adversary trial." (Emphasis supplied.) 

This holding in - Ash is applicable to the situation at 

hand. At a preliminary examination a defendant is entitled 

to be present and is granted the right to cross-examine witnesses, and to present witnesses of his own. On the other hand, 

the proceeding on a motion for leave to file does not contemplate 

such an adversary judicial determination of probable cause. The 

relator was not present, nor was he entitled to be present at 

the proceeding on the motion for leave to file, As in - Ash, there 

was no possibility that relator might be misled by his lack of 

familiarity with the law or overpowered by his professional 

adversary. Therefore, the proceeding upon a motion for leave to 

file is not a "critical stage" and relator is not entitled to 

the assistance of counsel. 

Mr. Justice White expressed apprehension in concurring 

with the holding in Coleman at p. 401, stating: 

"I agree with Mr. Justice Harlan that recent 

cases furnish ample ground for holding the preliminary hearing a critical event in the progress 

of a criminal case. I therefore join the prevailing opinion, but with some hesitation since requiring the appointment of counsel may result in fewer 

preliminary hearings in jurisdictions where the 

prosecutor is free to avoid them by taking a case 

directly to a grand jury. Our ruling may also 

invite eliminating the preliminary hearing system 

entirely." 

We foreseea similar problem. The county attorney was not obligated to present witness testimony at this proceeding since he 

could have relied upon affidavits. Section 95-1301, R.C.M. 1947. 

To hold that relator was entitled to assistance of counsel at 

this proceeding and to cross-examine the State's witnesses would 

tend to discourage the practice of presenting witness testimomy 

at such a proceeding, whereas the policy should be to encourage it. 

This decision is not intended to bar a pretrial motion 

under section 95-1702, R.C.M. 1947, attacking the existence of 

probable cause once the information is filed, and seeking a hearing 
upon the same. 

Chief Justice f ,* 

Justices fl