Salt Lake City v. Williams
128 P.3d 47
Utah Ct. App.
2005
Check Treatment

*1 2005UT 493 CITY, LAKE

SALT Plaintiff Appellee,

Rocky WILLIAMS, Chad Defendant Appellant.

No. 20040942-CA.

Court of of Utah.

Nov. 2005. *2 Anderson, Schatz, & Salt

Jason Schatz City, Appellant. Lake for Fisher, A. M. Robison and Seott Jeanne Office, City Attorney Salt Lake Sale Lake City, Appellee. for GREENWOOD, MeHUGH, Judges Before and THORNE.

OPINION McHUGH,Judge: ¶1 Rocky appeals his con Chad Williams making against life or victions for threats order, protective violation property and §§ Ann. 76-5-107 to -108 see Utah Code grounds on the the trial court improperly violation of Williams's Sixth Amendment right is an to confrontation. This issue impression for this court under the first Supreme recent deci United States Court's Washington, sion in For 158 L.Ed.2d herein, set forth we affirm. the reasons

BACKGROUND 17, 2008, July Dycie Allred and Eric On Sugar in the Sanders attended a movie City. coin- House area of Salt Lake Williams cidentally the same attendance previously pro- Allred had obtained a movie. prohibiting tective order having any her. him from contact with exiting Allred and 3 When Sanders movie, parking lot after exclaimed, passed in front of them. Allred God, "Oh, my Upon there's see- [Williams]." Williams, upset enough ing Allred became pull over so that Sanders convinced her they could switch drivers. While the stopped and before Sanders vehicle driver, replace could Allred as angle of theirs at an sup his car in front pulled examination. Williams filed motions press statements of Allred both bumper. front Allred be- from the two feet conduct and be- upset Supreme further after the came before and United States shaking. used his erying and Sanders gan issued its decision dial 911. Washington, 541 U.S. telephone cellular *3 (2004), which held that testimo L.Ed.2d vehicle, pointed at his € 4 Williams exited admissible nial out-of-court statements are Allred, something at Allred with and shouted only and there if the witness was unavailable Allred exclaimed rage of on his face. a look opportunity for prior was a cross-examina just threatened to her. that Williams tion. proceeded and put car in reverse Alired her Allred's vehi- Williams followed westbound. The trial court denied the motion to cle, Allred traveling When also westbound. a suppress, and the matter was tried before proceeded her vehicle around turned 9, July portion jury on 2004. A of the 911 eastbound, did the same and contin- recording tape on which Allred could be by Allred. to follow the vehicle driven ued stating heard that Williams had threatened get past Allred's car several tried to played jury. to kill her was for the Counsel gesturing stop. force her to He was times to object of for the defense did not to admission During pursuit, this yelling at Allred. tape. The trial court also admitted Offi- operator spoke dispatch with the Sanders report cer of his interview with Ouimette's occurring and regarding the events that were concern- Allred and from Sanders relayed to him Alired. The information ing Allred's statements while the events "tailgating" continued with Williams chase unfolding. report ad- Officer Ouimette's again following her when she Alired and mitted counsel for Williams. Eventually, changed direction. - jury guilty a verdict of on 9 The returned pursuing Allred's vehicle. stopped remaining appeals his both counts. Williams dispatch oper- 1 5 At the instruction grounds on the that the trial court conviction ator, parking Allred waited in a lot for allowing statements of erred twenty thirty arrive. After officers to through Allred into evidence Sanders and minutes, proceeded to Allred and Sanders Quimette. Officer again sister and con- the home of Sanders's time, police. gave At Allred a tacted the AND REVIEW ISSUE STANDARD OF Quimette Don telephonic statement to Officer City Department. Lake Police of the Salt 110 The issue before this court is Quimette prepared a written Officer properly whether the trial court of that statement. despite the fact that she statements of Allred charged making with 16 Williams was subjected prior eross-exami- had not been B property, life or a class threats for correctness the dis nation. We review misdemeanor, see in violation of Utah Code legal conclusion that the chal trict court's order, 76-5-107; violating protective a tion lenged were admissible under the misdemeanor, class A violation Utah impres present utterance and sense excited 76-5-108; interfering with section Code hearsay rule. exceptions sion See misdemeanor, arrest, legal a class B (Utah 1994). Pena, 932, State v. 869 P.2d violation of Utah Code section however, admissibility recognize, We - 76-5-107, -5-108, §§ Ann. See Utah Code hearsay exceptions re evidence under the (2003). 8-3051 legal quires application of facts to the requirements of the rule and that the trial trial, away passed due to 17 Before Allred death, making this court has some discretion her Allred a heart condition. Prior to A.B., N.D. v. 2003 UT July determination. See had not testified about the events 215,¶ 971. The district subjected to cross- 73 P.3d and had not been Williams, charges. charge Upon of inter- other motion of fering legal arrest was severed from the with 56, 66, 65 L.Ed.2d 597 subsidiary factual determinations are U.S. court's Washing for clear error. See Cal Wads reviewed overruled Crawford George, ton, 541 P.2d City St. 158 L.Ed.2d worth Constr. v. (Utah 1995). standard, 1372,1378 trial Under hearsay testimony if it could allow the

court exceptions recognized one of the fell within ANALYSIS rule and the witness Decision I. The Crawford, unavailable. Crawford 124 S.Ct. 1354. presents this court's first T11 This case {14 decision in re The recent opportunity apply the United States Su test, jected holding instead that "[where v. Wash preme Court's decision issue, ... testimonial evidence is at the Sixth ington, 541 U.S. *4 law Amendment demands what the common (2004).2 replaced That L.Ed.2d 177 decision unavailability prior opportu required: and a existing for admission of hear standard 68, 124 nity for cross-examination." Id. at say against a criminal defendant statements fact that the falls S.Ct. 1354. The evidence state requirement with a objection firmly hearsay rooted within a only if the declarant ments could be admitted reliability longer on inherent is no based prior and if there had been was unavailable satisfy right enough to the defendant's opportunity for cross-examination. See id. at hearsay if the statement is tes confrontation Court, 68, 124 The S.Ct. 1354. Crawford 68-69, 124 timonial. See id. at S.Ct. 1354. however, day any effort to left "for another The Court stated that the Sixth Crawford comprehensive spell out a definition of "testi "commands, not that evidence Amendment monial.'" Id. reliable, reliability in be be assessed but Although did not Court Crawford particular by testing manner: in the eruci- "testimonial," provide a it did definition Id. at ble of eross-examination." analysis. give guidance to that The some contrast, In hear S.Ct. 1354. nontestimonial charged defendant in with as Crawford say generally accept can be admitted under attempted at sault and murder. See id. hearsay exceptions ed rule without a re 124 S.Ct. 1354. The State introduced running afoul of the Amendment. Sixth See made the defendant's corded statement Thus, 68, 124 id. at S.Ct. 1354. before this (Wife) during police investigation. wife test, apply appropriate court can we must testify See id. Wife was unavailable to at proffered hear first determine Washington marital trial because of State's say statements are testimonial or nontesti- privilege. argued id. The defendant See monial. that the admission of the statements T 15 The focus of the Confrontation Clause privi of Wife violated his Sixth Amendment testimony against is on who witnesses bear " lege to with the witnesses be 'confronted " turn, 'Testimony,' typi in accused. (quoting against him'" Id. U.S. Const. 'a) cally solemn declaration or affirmation VI). amend. establishing purpose prov made for the Crawford, 4 13 Prior to state ing some fact'" Id. at (alteration Webster, original) (quoting 1 N. ments of an unavailable witness could be against a criminal if the defendant Dictionary English An American (1828)). unavailable and if the statements witness was Language The "adequate reliability." Id. bore indicia possible identified three tests for what state omitted). (quotations Reliability and citation ments should be considered testimonial. See first, in a suggested by could "be inferred without more case id. The the Crawford defendant, parte in-court would include "ex firmly where the evidence falls within a root Roberts, hearsay exception." testimony equivalent-that ed Ohio v. or its functional (Utah 2005), Although Washing issues based on this court held that the defendant ton, argument by failing any 541 U.S. 124 S.Ct. 158 L.Ed.2d waived that to make Duanyai, attempt were raised in State v. cross-examine the minor witness. id. (mem.), denied, UT cert. 109 P.3d 804 affidavits, right of a defen is, custodial ex for the Sixth Amendment material such against him. dant to confront the witnesses aminations, the defen prior 50-51, cross-examine, at 1354. Because the or similar See id. was unable dant would that declarants pretrial statements questioning police interroga of Wife was tion, proposed defini prosecutorial it fell within reasonably expect to be used omitted). require fur tions of testimonial and did not (quotations and citation ly." Id. ther refinement of that See id. at standard. from a possible definition was The second 68-69, Supreme 124S.Ct. 1354. decision of the prior plurality Court, in concluded that "testimonial" which Crawford, a num 1 17 the decision Since " 'extrajudicial ... con cluded of courts have to define "testi ber attempted materials, in formalized testimonial tained Summers, In monial. United States v. " affidavits, prior depositions, testimo such as (10th Cir.2005), Tenth F.3d 1287 Circuit ny, or confessions" Id. Appeals concluded that statements Court of (alteration original) (quoting White by a codefendant after he had been Illinois, 346,365, 112 S.Ct. custody physical into but before he had taken (1992) (Thomas, J., joined by L.Ed.2d 848 rights of his Mirunda been informed Scalia, J., concurring concurring part reaching at 1802-08. In testimonial. See id. definition considered judgment)). The last conclusion, the Tenth Cireuit held that majority suggested by the Crawford "a is testimonial if a reasonable *5 of Defense the National Association Criminal person position in the of the declarant would Lawyers "statements that as amicus curiae: objectively might that his statement foresee which would were made under cireumstances investigation prosecution in or of be used objective reasonably to be witness lead 1302; at a crime." Id. see United States that the statement would be available lieve (3d Cir.2005) Hendricks, 395 F.3d 181 Id. at for use at a later trial." S.Ct. (holding de- statements nontestimonial where omitted). (quotations and citation not make them in belief that clarants did trial); they might be used at later United {16 Supreme Court held The Cromer, (6th 662, 675 States v. 389 F.3d statement of Wife fell within even recorded Cir.2004) (adopting of testimonial definition the most narrow definition of testimonial person in based on "whether a reasonable made it suggested because she statements anticipate position the declarant's would his custody, potential police in herself while in being used the accused Indeed, had suspect in the case. she been crime"); investigating prosecuting and released told that whether she would be (2d Saget, F.3d United States "depend[ed] investigation on con- how Cir.2004) suggests (holding that Crawford response leading In to often tinue[d]." expecta that "the declarant's awareness detectives, questions police impli- she from may or her later be tion that his statements stabbing and at [the] cated her husband in factor in used at a trial" is a determinative arguably least undermined his self-defense is testimoni assessing whether the statement claim. denied, al), 1079, 125 cert. S.Ct. (first 65, 124 alteration in Id. at S.Ct. 1354 (2005); 160 L.Ed.2d 821 see also Hammon (citation omitted). original) The Crawford (Ind.2005) ("[A] State, 444, 456 829 N.E.2d qualify held that some statements as Court given one or taken 'testimonial' statement any under definition. See id. at preserving significant part purposes of in for types Among those of legal proceed potential future use in for pre at a parte statements are "ex - -, ings."), granted, cert. liminary taken hearing" and "[s}tatements 552,2005WL 1914510 interroga police in the course of officers "[plo- tions." Id. The Court concluded Challenged by II. Statements striking interrogations lice bear a resem case, objects to the justices In this blance to examinations testimony from Sanders England." of admission of certain peace in Id. The abuse those Quimette. was, report of Officer Sand large part, impetus and to the examinations "Ob, repeated to the exclaimed, my her statements would be that Allred ers testified God, [Williams]," dispatcher. no when she first there's the movie3 He also testified ticed him after $21 situation, the Ilinois In a similar that, progress confrontation was while the evaluated such statements telephone with the and he was on directly they if had to the 911 been dispatcher, Allred stated that Williams West, App.3d In 355 Ill. operator. State v. just explain kill her. As we threatened to IIl.Dec. 823 N.E.2d 82 a cab below, greater under definition detail raped multiple driver was and beaten these suggested taxi. id. at assailants who had hired her See by Allred not testimonial when made were escaped from the 823 N.E.2d 82. She they if fall within and can be admitted sought at perpetrators and assistance Although firmly hearsay objection4 rooted Dorothy Jackson. See id. at residence raises police report of Officer Ouimette placed a call to the 823 N.E.2d 82. Jackson questions concerning its testimonial closer dispatcher proceeded to ask the nature, complain cannot now er dispatcher questions posed by the victim by entering the into ror he invited relay the answers. id. As then to herein, For the reasons set forth evidence. case, the victim could be heard on the of the trial court is affirmed. the decision tape recording of the 911 call. See id. The victim was murdered before trial and the Allred made the state When tape was admitted into evidence over Sanders, through ments objection. appeal, defendant's See id. On custody, police not in was not re she was operator that the 911 the defendant claimed inquiry, was not sponding to a through interrogating the vietim Jackson prose providing for use in a the information purpose obtaining information to for the statement, "Oh, investigation. cution or Her legal proceedings. in future See id. be used [Williams]," God, simply my there's 823 N.E.2d 82. The Ilinois Court *6 surprise factual statement made in when she Appeals adopted case-specific test for of Furthermore, it was first noticed Williams. evaluating tape recordings made to of calls agent police prose or not made to an of the (1) dispatchers, with a focus on whether 911 and therefore "bears little resem- cution to the dis the statement was volunteered blancee to the civil-law abuses the Confronta purpose initiating police patcher for the of targeted." Crawford, 541 at tion Clause U.S. (2) prosecution; criminal or action or Hammon, 51, 1354; 829 124 S.Ct. see also provided response to an statement was ("A spontaneous at N.E.2d 454 exclamation interrogation purpose gathering for the of friend, member, family a victim to a or prosecution. in a criminal evidence for use likely regarded as coworker is not to be 91, at 823 N.E.2d 82. The court then See id. testimonial."). the statements to the dis

concluded attack, relating patcher 120 The to nature needs, age, the victim's medical the victim's threatened to her was made Allred reporting the incident to and the victim's location were nontestimonial. when Sanders was contrast, In information related to a dispatcher. the 911 Allred can be heard on See id. vehicle, played description of her stolen the direction tape of the 911 call that was to the fled, of jury.5 Although made to the assailants had and the items this statement was Sanders, during personal property the 911 call stolen were held to be was made reasonably prior expected Allred have testimonial and inadmissible without when could definition, Although challenged admissibility the statements at issue are not "testi- 3. appeal, this statement in his brief on he con- monial." argument ceded at that it was not testimoni- oral al. argues, however, that Allred's state- that he had threatened to kill her was ment requires 4. We do not hold that Crawford to inaudible and that even Sanders was unable narrowly possible. "testimonial" be defined as understand it. that, we hold even under the broadest Rather,

53 equivalent govern tional to a See id. opportunity for cross-examination. - -, agent."), granted, 823 N.E.2d 82. ment cert. U.S. 547(2005). Davis, Washing In 126 S.Ct. other Crawford, a number of 122 Since Supreme explained that most "[in ton circum considered the courts have also cases, help emergency one who calls 911 for to a made stances under which statements witness, 'bearing is not whereas calls made Some courts dispatcher 911 are testimonial. police simply may a crime during made calls to hold that all statements conceivably be considered testimonial." emergency dispatcher are not testimo a 911 Davis, 850; 111 P.3d at see also United "ery help" they are akin to a for nial because (8th Brun, 703, v. Cir. States F.3d investigate or attempt rather than 2005) (holding that statements of adolescent a crime the defendant. prosecute boy operator witnessing to 911 while alterca Corella, See, Cal.App .4th e.g., People v. nontestimonial); Arave, tion Leavitt (2004)(conclud 770, 461, Cal.Rptr.3d (9th Cir.2004)(deter n. 22 383 F.3d call testimonial because ing that 911 not mining that of murder victim to statements knowingly given response statements not operator responding and to officersmade questioning); People v. to structured during immediately attempted after an Moscat, 739, 777 3 Misc.3d N.Y.2.2d testimonial), break-in at her home were not Crim.Ct.2004) (concluding that 911 (N.Y.City - denied, -, cert. gene it "has its call not testimonial because (2005); State, 162 L.Ed.2d 277 Pitts urgent of a citizen to be sis in the desire (2005) Ga.App. (holding 612 S.E.2d contrast, peril"). In rescued from immediate that 911 call made while the incident is actu held that the Sixth Cireuit Court ally progress purpose stopping for the during a call to a 911 all statements nontestimonial), preventing the crime dispatcher are testimonial because the dis S05G1156, granted, cert. No. LEX Ga. government the de- patcher is a official and (Ga. 19, 2005); Sept. People IS at *1 reasonably expect the state clarant should Marino, 21 A.D.3d 800 N.Y.S.2d used in a future trial. ments be (N.Y.App.Div.2005) (concluding 440-41 Arnold, 903- States v. F.3d United hysterical tape of 911 call and (6th Cir.2005). nontestimonial). responding officers court, courts, have 1 23 Other like West T24 conclude that whether We state inquiry into whether concluded that dispatcher made to a 911 are testimo ments during call are testi statements made a 911 nial or must be determined on nontestimonial *7 case-by-case on a basis. monial must be made Here, case-by-case support facts a basis. the See, Hinton, e.g., v. 423 F.3d United States trial that Alired's the court's conclusion (2005) (noting that 911 calls are made for 355 just had threatened statement that Williams reasons, preserving such as health several kill This is true to her is not testimonial. safety providing po information to and and whether the statement is treated as a remark lice; case, in instant call was nontestimonial If dispatcher. made to or to the 911 Sanders assistance); sought Mar caller because Sanders, made to it was not made to Md.App. quardt Maryland, v. 164 agent government of the of the and has none (2005) (declining A.2d 900 to decide the indicia of a testimonial statement. Like recordings all 911 are whether God, [Williams]," statement, "Oh, my it's nontestimonial, pri holding that when but immediately upon was made to a friend the mary obtaining help, is statement is concern no reason happening of the and with event nontestimonial); Wright, State v. 701 N.W.2d in a expectation that it would be used able (Minn.2005) (declining adopt legal proceeding. later during 911 rule that all statements made Davis, testimonial); if it that Allred v. 125 Even is assumed calls are State ("It (2005) is Wash.2d P.3d made to intended the statement be qualify as operator, it does not testimoni necessary to look at the cireumstances that had al. Allred's Wiliams 911 call each case to determine to kill her was made while knowingly provided the func threatened the declarant B4 by monial, properly admitted and were during a call occurring and was

incident ' seeking purpose of trial court. to 911 for the placed danger. At the from immediate protection made, the statement was time Testimony III. Officer Don Ouimette's his own and vehicle with Allred's blocked challenges Officer also in a Allred and Sanders approaching

was OQuimette's it con testimony, arguing that testimony that All- undisputed is rage. The hearsay state inadmissible Williams's The call was upset frightened. red was tained trial, threatening to kill Allred. At ment Allred, not initiated Sanders report counsel offered defense Furthermore, the information con police. into evidence. Officer about the incident the na veyed designed to communicate from the entire Ouimette then read problem. There ture and seriousness stand, following description including the All- nothing suggest in the record is eventually the statement states objectively "[Allred] foresaw of events: red got might prosecute got pinned Williams. Under in and out be used her [Williams] facts, if the going hold that even state began yelling, quote, these we 'I'm his car and directly made to the 911 ment had been you'...." to ...

operator, it is nontestimonial. appeal, party cannot 128 "[O]n Therefore, Alired's advantage committed at trial take error through properly be admitted Sanders could trial court into com party when that led the long-standing they if were reliable under a Dunn, v. 850 P.2d mitting the error." State hearsay rule. exception to the See Crawford 1993). (Utah The "invited error" 36, 61, 124 Washington, first, purposes: it allows doctrine serves two 808(2) Rule L.Ed.2d 177 opportunity to ad the trial court the first forth the Rules of sets the Utah Evidence second, error, "it dis the claimed dress exception to the utterance" "excited intentionally mislead courages parties from rule: preserve a hidden ing trial court so as to by the following are not excluded The Id.; appeal." ground for reversal on see also rule, though the declarant even 158,¶¶ Dominguez, 2003 UT 32- State aas available witness: (holding challenged testi 72 P.3d 127 mony counsel's elicited defense cross- (2) A statement relat- Excited Utterance. invited); examination, any error was State so startling ing to a event or condition (Utah Hall, Ct.App.1997) P.2d under the stress of while the declarant was com (concluding that defendant could not by the event or the excitement caused he led plain of admitted because ' condition. error); Perdue, into State v. the trial court 808(2). appears It thatAll- R. Evid. Utah (Utah Ct.App.1991) 813 P.2d through introduced Sanders red's comments precluded party (holding error that invited long-recognized ex squarely within this fall jury appealing a instruction that from *8 hearsay was star to the rule.6 She ception party requested). recognition by initial both the tled {29 Here, it was who offered the by his threat to her. Williams and also Furthermore, police report into evidence. still made the statements she was When she objection no when Officer Williams offered by caused under the stress of the excitement from the read the statement Ouimette and, fact, with the encounter the event may complain of report. not now ongoing at that time. Allred's error, error, he assuming there was led under the excited utterance fall committing. rule, court into hearsay are not testi the trial exception to the 803(1). "present Evid. the See Uiah R. also fall within 6. The statements * exception impression" the rule. sense allowed, remand, permit CONCLUSION we should when the trial court to first address the issue. See was correct the The trial court T30 ¶¶ 6-11, Singleton, App 331 at UT into evidence Alired entered statements of (vacating remanding a P.3d 1124 defen nontestimonial through Sanders were guilty plea because "the trial court dant's exceptions to the long-recognized within findings of fact or conclusions failed make testimony of Oui- hearsay rule. The Officer regarding probable of law whether there Williams, and he cannot was offered mette defendant); cause to arrest" the see also 5 on its admission. For now claim error based (1998) ("[The § Appeal and Error C.J.8. reasons, of the trial court the decision these spe reviewing court is confined to the facts is affirmed. may cially by the trial court.... [It] found I T. findings against ap 31 CONCUR: PAMELA of fact for or not make GREENWOOD, Judge. pellant, evidence to find and cannot consider upon sup or facts or make a decision them THORNE, (dissenting): Judge plement the facts found the trial court [ analysis v. majority's 32 The Crawford facts([.]" (footnotes any with additional omit Washington, 541 124 S.Ct. ted)). (2004) and, insightful is both L.Ed.2d 177 I Here, undisputed that the trial T34 it is believe, majority cor largely correct.1 The address, substantive court failed to rectly that whether an out-of-court concludes way, question whether the out-of-court depends on communication is "testimonial" communication was testimonial in nature. surrounding the communi the cireumstances Instead, join presented Up point, to that I with the when with Williams's cation. However, part ways majority challenge, I with trial an court opinion. Crawford only when, statements were ad acknowledging that majority after nounced nature, question is factual it decides hearsay exceptions under missible as Rules of Evidence. See Utah R. Evid. the communication this case Utah whether remanding ques testimonial instead of 808(1)-(2) (defining present impres sense trial court for a factual determina tion to the exceptions and excited utterance sion tion. rule). result, we have no find As ings concerning surround the circumstances appellate It is a cornerstoneof our trial court ing the communication. Absent findings. process that we do not make factual appropriate, findings, position we are no 58,¶ 19, 52 Bailey Bayles, 2002 UT ly determine the outcome of this issue. See are limited to the record P.3d 1158. We ¶¶ 6-11, 57 Singleton, App 331 at UT findings present us and the factual before Instead, 1124. we should remand P.3d Fork the trial court. See American ed 331,¶6, City Singleton, for consideration of UT case to the trial court communi the cireumstances .of the findings, In the absence of such P.3d Instead, it under cation render ought we not substitute our own. Crawford. result, un properly a criminal defendant. As a majority cence of 1. The concludes Crawford, many out-of-court communications Washington, der implicated unless the L.Ed.2d 177 is not permitted under the rules of evi that have been surrounding totality an out- of the circumstances present sense im dence as excited utterances renders it "testimonial." of-court communication However, may R. pressions be inadmissible. See Utah now majority part ways I with the when 803(1)-(2). Consequently, I believe a Craw Evid. suggests should be read in the that Crawford analysis not turn on whether should ford contrast, By possible I read narrowest terms. the heat of the communication was made in suggest very interpretation broad ' a reasonable moment, but on whether person the term "testimonial." See id. at *9 con the communication would conclude ("[TJhere [hear is scant evidence that S.Ct. 1354 wrongdoing, of a defendant's tained evidence say] exceptions were invoked to admit festimont speaker coupled knew with a conclusion that a criminal al statements the accused in that the communication or should have known case[.]"). was written to I believe that Crawford likely evidence to be utilized as substantive severely limit the admission of out-of-court guilt. directly guilt or inno bears on the agree I Accordingly, although with 1 35 totality of the cir-

majority's view that to determine must be examined

cumstances out-of-court communication

testimonial, I dissent from its decision in the ab- those cireumstances here

examine result, findings. I trial court As

sence of from the result reached

also must dissent remand the majority, would instead trial court.

question UT GENERAL, INC., a Utah

corporation, Plaintiff

Appellant, Jenson,

Kenneth JENSON and Julie Appellees.

Defendants

No. 20040321-CA.

Court of of Utah.

Nov.