                                    No.    13683

          I N THE SUPREME COURT OF THE STATE O F MONTANA

                                           1977



STATE OF MONTANA ex r e l .
DALE BRACKMAN ,

                                    Relator,



THE D I S T R I C T COURT O F THE F I R S T
J U D I C I A L D I S T R I C T O F THE STATE
OF MONTANA, I N AND FOR THE COUNTY O F
LEWIS AND CLARK, and t h e HON. GORDON R.                            BENNETT,
P r e s i d i n g Judge,

                                  Respondent.



O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

        For R e l a t o r :

               L e a p h a r t Law F i r m , H e l e n a , Montana
               W. W i l l i a m L e a p h a r t a r g u e d , H e l e n a ,   Montana




                                                   Submitted:           January 2 6 , 1 9 7 7

                                                      Decided:fEB             24   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 appear-
ance 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 ad-

versary 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 examin-
           ation and cross-examination of witnesses may ex-
           pose 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 prepara-
           tion 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 adver-
sary 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 de-
        fendant 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 deter-

mination 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 - is applicable to the situation at
                         Ash
hand.   At a preliminary examination a defendant is entitled
to be present and is granted the right to cross-examine wit-
nesses, 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 - there
                                                      Ash,
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 pre-
        liminary hearing a critical event in the progress
        of a criminal case. I therefore join the prevail-
        ing opinion, but with some hesitation since requir-
        ing 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 obli-
gated 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
