State v. Goins, 2017 UT 61

Background

In July 2012 DeSean Goins confronted Gabriel Estrada and later had an altercation with Jacob Omar in which Omar lost an earlobe and was later stabbed; Goins was charged with mayhem and two counts of aggravated assault.
Estrada and Omar testified at a preliminary hearing; defense counsel cross‑examined Estrada without objection. Estrada failed to appear at trial and the prosecutor moved to admit his preliminary hearing testimony under Utah R. Evid. 804 as Estrada was declared unavailable.
The district court admitted Estrada’s preliminary hearing testimony; the jury convicted Goins of aggravated assault (felony) for the Omar stabbing and a class A misdemeanor for threatening Estrada.
On appeal the court of appeals affirmed, relying on State v. Brooks to hold preliminary hearing cross‑examination motive is the same as at trial and finding the State had made reasonable efforts to secure Estrada’s attendance.
The Utah Supreme Court granted certiorari, assumed without deciding that Estrada was unavailable, and reviewed whether (under Utah R. Evid. 804(b)(1)) defense counsel had an opportunity and similar motive to develop Estrada’s testimony at the preliminary hearing.
The Supreme Court disavowed Brooks’ per se rule in light of a 1994 Utah constitutional amendment limiting preliminary hearings to a probable‑cause determination, held Goins’s counsel did not have a similar motive to develop testimony at the preliminary hearing, found admission of the testimony erroneous, but ruled the error harmless as to the felony conviction and prejudicial as to the misdemeanor conviction.

Issues

Issue	Goins' Argument	State's Argument	Held
Whether Estrada was "unavailable" under Utah R. Evid. 804(a)(5)	State failed to make sufficient, reasonable efforts to procure Estrada for trial	State made reasonable, good‑faith efforts to locate and serve Estrada	Court assumed without deciding Estrada was unavailable (resolution unnecessary to outcome)
Whether preliminary hearing testimony is admissible under Utah R. Evid. 804(b)(1) when witness is unavailable	Preliminary hearings are limited to probable‑cause; defense counsel lacked similar motive to develop testimony there as at trial	Brooks controls: counsel’s motive is the same at preliminary hearing and trial; opportunity suffices	Brooks overruled; court applies case‑by‑case test and held counsel did not have a similar motive here; admission was erroneous
Whether admission of the erroneous testimony was harmless	Admission likely affected the misdemeanor against Estrada; prejudicial	Testimony did not materially affect the felony against Omar	Error was harmless as to the felony conviction but prejudicial as to the misdemeanor; felony affirmed, misdemeanor reversed and remanded
Whether the court of appeals erred by refusing to consider new ineffective‑assistance claims raised in a Rule 35 rehearing petition	Appellate counsel’s omission means court overlooked ineffective‑assistance claims	Rule 35 does not permit introducing new claims on rehearing; such claims must be raised earlier or in postconviction proceedings	Court did not err in refusing to address new claims introduced for the first time on rehearing

Key Cases Cited

State v. Brooks, 638 P.2d 537 (Utah 1981) (held preliminary hearing cross‑examination motive equals trial motive; court disavows this rule)
California v. Green, 399 U.S. 149 (U.S. 1970) (preliminary hearing testimony admissible under Confrontation Clause when circumstances closely approximate trial)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Sixth Amendment requires unavailability and prior opportunity for cross‑examination for testimonial hearsay)
Hardy v. Cross, 565 U.S. 65 (U.S. 2011) (a witness is unavailable for Confrontation Clause purposes only after good‑faith prosecutorial efforts to obtain presence)
United States v. Owens, 484 U.S. 554 (U.S. 1988) (Confrontation Clause guarantees opportunity for effective cross‑examination, not necessarily cross‑examination that actually succeeds)
State v. Mackin, 387 P.3d 986 (Utah 2016) (discussed admission of prior testimony; did not address Brooks in light of constitutional amendment)
State v. Menzies, 889 P.2d 393 (Utah 1994) (discusses standards for witness unavailability)
State v. Montoya, 84 P.3d 1183 (Utah 2004) (describes need to use reasonable means to secure witness attendance)