State v. Garrido, 2013 UT App 245

Garrido was convicted of assault, multiple domestic violence counts in the presence of a child, aggravated burglary, aggravated kidnapping, aggravated assault, and a protective-order violation.
The offenses occurred during a period when Victim was pregnant with Garrido’s child; he attacked her at her home and later returned with a knife, threatening to kill her and injuring her.
Victim’s preliminary hearing testimony was admitted at trial after she became unavailable, and a stand-in read the prior testimony when Victim briefly appeared and fled.
A protective order existed against Garrido, yet he contacted Victim and attempted to influence testimony; concerns about Victim’s cooperation and availability persisted.
The court remanded for supplementation of the record to reflect Victim’s gallery declarations and the events surrounding her absence; after supplementation, the court affirmed the convictions.
Garrido challenged remand, Sixth Amendment confrontation rights, hearsay evidence by a paralegal, the trial court’s inquiry into new counsel, and merger of offenses.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was remand for record supplementation proper?	Garrido opposed supplementation; State contends remand proper.	Remand was unnecessary or improper.	Remand was proper.
Was Victim’s preliminary hearing testimony properly admitted after unavailability and did it violate confrontation rights?	Unavailability supported admission; Crawford principles satisfied.	Unavailability not sufficiently established; Sixth Amendment violated.	Admission proper; no Sixth Amendment violation.
Were Victim’s non-testimonial out-of-court statements admitted properly and did counsel err in not requesting a limiting instruction?	Statements explained Victim’s later behavior; not testimonial; no limit needed.	Limiting instruction required to mitigate prejudice.	Admissible; no error in not instructing; no ineffective assistance.
Was the trial court's inquiry into Garrido’s request for new counsel adequate?	Inquiry was thorough and appropriate; no good cause shown for new counsel.	Court failed to adequately probe dissatisfaction with counsel.	No abuse of discretion; inquiry sufficient.
Did aggravated assault merge with aggravated burglary and aggravated kidnapping or require separate instructions?	Multiple acts justify separate convictions; no mandatory merger.	Merger required; errors in jury instructions.	No mandatory merger; convictions upheld; proper instructions not required to merge.

State v. Pursifell, 746 P.2d 270 (Utah Ct. App. 1987) (necessity of non-suggestive inquiry when defendant asserts counsel issues)
Stonehocker v. Stonehocker, 176 P.3d 476 (Utah Ct. App. 2008) (clear/uncontroverted facts support unavailability findings)
State v. Nelson, 725 P.2d 1353 (Utah 1986) (opportunity for cross-examination satisfies confrontation rights when witness unavailable)
State v. Strickland, 466 U.S. 668 (Supreme Court 1984) (ineffective assistance standard: deficient performance and prejudice)
State v. King, 248 P.3d 989 (Utah Ct. App. 2010) (counsel strategy may justify not cross-examining favorable witnesses)