State of Utah v. Daniel Bagley Rogers

2006 UT 85
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20051024
Plaintiff and Petitioner,
v.
F I L E D
Daniel Bagley Rogers,
Defendant and Respondent. December 19, 2006
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Third District, West Valley
The Honorable Pat B. Brian
The Honorable Stephen L. Roth
No. 021101432
Attorneys: Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Cara M. Tangaro, Asst. Att’ys Gen., Salt Lake City,
for plaintiff
Shannon N. Romero, Debra Meek Nelson, Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
INTRODUCTION
¶1 Defendant Rogers appealed his conviction of theft by
receiving stolen property. The court of appeals reversed in a
2-1 decision, concluding that the magistrate improperly continued
the preliminary hearing in violation of State v. Brickey, which
bars the refiling of charges dismissed at a preliminary hearing
for insufficient evidence absent the State’s showing of “new or
previously unavailable evidence” or other good cause. 714 P.2d
644, 647-48 (Utah 1986). Brickey has previously been applied
only to cases of dismissal. We granted certiorari to review the
decision of the court of appeals extending the rule in Brickey to
continuances sought by the prosecution in a preliminary hearing.
We conclude that Brickey does not apply. The decision of whether
to grant a continuance is left to the sound discretion of the
magistrate. We accordingly reverse.

1 Rogers was also charged with theft by deception, but that
charge was dismissed by the magistrate and does not relate to
this appeal.
No. 20051024 2
BACKGROUND
¶2 Baseball memorabilia with an estimated value of well
over $5,000 was stolen from a home. Additionally, a DVD player,
camera, stereo, pearl earrings, and Olympic pins were stolen.
The victim notified the police and local card shops of the theft.
When one of the card shop owners was approached by two men
offering to sell cards that matched the description of those
stolen, he called the victim, who in turn called the police. The
police officers located the defendant, Rogers, attempting to cash
a check from the card shop.
¶3 After waiving his rights, Rogers told the police that
he found the baseball memorabilia near a dumpster while cleaning
out a storage unit. Nevertheless, Rogers was arrested, and in a
search incident to that arrest, the police officers recovered
much of the stolen property. Rogers was charged with second
degree felony theft by receiving stolen property under Utah Code
sections 76-6-408 and 76-6-412.1
¶4 At the pretrial hearing, the State called three
witnesses--the victim, the arresting officer, and the card shop
owner--to testify. Because Rogers was charged with second degree
felony theft by receiving stolen property, in order for the
magistrate to bind him over on the charge, the State was required
to present evidence that he possessed over $5,000 worth of stolen
property at the time of his arrest. Although the victim
testified that the value of the goods stolen was over $9,000, the
State presented insufficient evidence of the value of goods
actually possessed, or “received,” by Rogers.
¶5 The magistrate continued the preliminary hearing in
order to permit the State to prepare and present additional
evidence. At the resumed hearing, the State presented evidence,
including photographs of the recovered items and itemized lists
of the missing goods, sufficient to show that Rogers did in fact
possess over $5,000 in stolen goods at the time of his arrest.
Rogers was then bound over for trial. Rogers filed a motion to
quash the bindover, which was denied. He then pled guilty to
theft by receiving stolen property, amended to a third degree
felony and reserved his right to appeal the trial court’s denial
of his motion to quash.

3 No. 20051024
¶6 The court of appeals reversed, holding for the first
time that State v. Brickey, 714 P.2d 644 (Utah 1986), applies not
only to outright dismissals followed by refiling, but also to a
magistrate’s decision to continue a preliminary hearing. The
State now seeks review of that decision.
ANALYSIS
¶7 The interpretation of case law presents a question of
law, reviewed for correctness. State v. Morgan, 2001 UT 87, ¶ 1,
34 P.3d 767. We have jurisdiction pursuant to Utah Code section
78-2-2(5).
¶8 The purpose of the preliminary hearing is “to determine
whether there is sufficient cause to believe a crime has been
committed to warrant further proceedings.” State v. Brickey, 714
P.2d 644, 646 (Utah 1986). If the State introduces sufficient
evidence establishing “probable cause to believe that the crime
charged has been committed and that the defendant has committed
it,” the defendant is bound over for trial. Id. However, if the
State fails to meet this burden, the “magistrate must dismiss
[the] information and discharge [the] defendant.” Morgan, 2001
UT 87, ¶ 10. Essentially, the preliminary hearing screens out
meritless claims, thus conserving judicial resources and
protecting the accused from the degradation and expense of a
wrongful trial.
¶9 In Brickey, we determined that due process limits a
prosecutor’s ability to refile a previously dismissed charge.
714 P.2d at 647. At that time, we reviewed the various
approaches other states had taken in dealing with post-dismissal
refiling, and we “[found] merit in the approach taken by the
Oklahoma courts.” Id. Applying the reasoning relied upon by the
Oklahoma court in Jones v. State, 481 P.2d 169, 171 (Okla. Crim.
App. 1971), we held that “due process considerations prohibit a
prosecutor from refiling criminal charges earlier dismissed for
insufficient evidence unless the prosecutor can show that new or
previously unavailable evidence has surfaced or that other good
cause justifies refiling.” Brickey, 714 P.2d at 647.
¶10 We revisited and refined the Brickey rule in State v.
Morgan, 2001 UT 87. In Morgan, we said that “when potential
abusive practices are involved, the presumption is that due
process will bar refiling.” Id. ¶ 16. However, “[w]hen
potential abusive practices are not involved, . . . there is no
presumptive bar to refiling.” Id. This is because “Brickey does
not . . . preclude refiling where a defendant’s due process
rights are not implicated.” Id. ¶ 15.

No. 20051024 4
¶11 In State v. Redd, we provided a working list of
potentially abusive practices that bar refiling under the Brickey
rule, including “forum shopping, repeated filings of groundless
and improvident charges for the purpose to harass, . . .
withholding evidence, . . . [and] refil[ing] a charge after
providing no evidence of an essential and clear element of a
crime.” Redd, 2001 UT 113, ¶ 20, 37 P.3d 1160.
¶12 Continuances present none of the potentially abusive
practices Brickey and its progeny sought to prevent. A
defendant’s due process rights are rarely implicated when a
continuance is allowed.
¶13 Unlike with dismissals, forum shopping is not a concern
with continuances. In Brickey, the prosecutor openly admitted
that he was forum shopping when he stated, “My theory of the
prosecution is I disagreed with the [first judge], to be honest
with you . . . . I have a chance to come back here every time
and represent evidence until I get it bound over . . . .” 714
P.2d at 646 (alterations in original). The Brickey decision was
intended to limit the discretion of prosecutors to magistrate
shop for a favorable outcome. See id. at 647. However, unlike
post-dismissal refilings, continued cases remain with the same
magistrate.
¶14 Further, unlike the decision to refile after dismissal,
the granting of a continuance is not at the discretion of the
prosecutor but rather is left to the sound discretion of a
neutral and detached magistrate. Abusive refiling of “groundless
and improvident charges” is not an available option.
¶15 Also, continuances do not pose the risk, as argued by
Rogers, that prosecutors will intentionally withhold crucial
evidence in order to save surprise evidence for trial. By doing
so, a prosecutor risks a dismissal and bar to refiling.
Moreover, under the discovery and disclosure requirements
applicable to the State in criminal prosecutions, an attempt to
hide evidence of consequence is destined to fail.
¶16 The final potentially abusive practice that, when
present, causes Brickey to govern occurs when a prosecutor
refiles charges after presenting no evidence of a necessary
element of the crime at the first preliminary hearing. The court
of appeals majority expressed its concern that continuances at
the preliminary hearing stage might result in “coddling a lack of
preparation by giving the prosecution multiple opportunities to
prove it has a case.” State v. Rogers, 2005 UT App 379, ¶ 13,
122 P.3d 661. While we may share that anti-coddling sentiment,
we believe that the reasonable exercise of discretion by the

2 The court of appeals majority correctly acknowledged that
“[t]he validity of the dissent’s second point, concerning the
discretionary nature of continuances, rises and falls with who is
right about the application of Brickey. If [Brickey does not
apply], then it is difficult to say the decision to grant a
continuance in this case was an abuse of discretion.” Rogers,
2005 UT App 379, ¶ 32.
5 No. 20051024
magistrate in granting, or not granting, continuances
sufficiently protects against such an abuse.
¶17 The potential abuses Brickey protects against are not
present in the grant or denial of a continuance to the
prosecution by the magistrate. Consequently, Brickey does not
apply here.2
¶18 The decision whether or not to grant a continuance is
properly left to the discretion of the magistrate. We have held
that “[i]t is well-established that the granting of a continuance
is discretionary with the trial judge,” and that “[a]bsent a
clear abuse of that discretion, the decision will not be reversed
by this Court.” State v. Williams, 712 P.2d 220, 222 (Utah
1985). We see no reason to depart from the general rule when
considering the limited role of the magistrate in a preliminary
hearing.
¶19 Of course, a magistrate’s discretion to grant
continuances is not limitless. We have held that “when a [party]
moves for a continuance in order to procure the testimony of an
absent witness, . . . he must show that the testimony is material
and admissible, that the witness could actually be procured
within a reasonable time, and that due diligence had been
exercised before making the request.” Id.
¶20 Insightfully, the Oklahoma courts, whose reasoning we
followed in Brickey, made a similar determination regarding a
magistrate’s discretion to grant continuances in Harper v.
District Court, 484 P.2d 891 (Okla. Crim. App. 1971). In Harper,
the court said that
in the event the prosecutor miscalculates and
fails to present sufficient evidence to show
probable cause to bind over the accused, but
possesses other witnesses whose testimony
would strengthen his showing, it is clearly
within the discretion of the examining
magistrate to grant the state a continuance
for that purpose. However, it is presumed

No. 20051024 6
that the additional witness, or other
evidence, are reasonably available; and that
a continuance will not be sought in order to
conduct further investigation seeking that
evidence, in a dilatory manner.
Id. at 897.
¶21 We rely upon magistrates to exercise reasonable
judgment and discretion to determine when a continuance is
appropriate. We are comfortable with magistrates properly
filling this role. Such determinations are the meat and potatoes
of a magistrate’s daily fare. The decision to grant or deny a
continuance will only be reversed if the magistrate exceeds the
permitted range of discretion. For example, it would be
unreasonable to grant a continuance to afford the prosecution
more time to investigate or develop new evidence. However, it
would be reasonable to grant a continuance when the prosecution,
in good faith, fails to present sufficient evidence but the
necessary evidence is reasonably available. Long or unspecified
continuances would rarely be proper, and brief ones, where the
magistrate is convinced that due process for the accused is
protected and justice is otherwise served, would rarely be
improper.
CONCLUSION
¶22 The rationales for the rule in Brickey, namely, the
prevention of forum shopping, prosecutorial harassment, and the
withholding of evidence, do not apply to continuances in a
preliminary hearing. Instead, the decision to grant a
continuance is left to the sound and reasonable discretion of the
examining magistrate. Accordingly, we reverse the decision of
the court of appeals.
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¶23 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.