STATE OF UTAH, Respondent, υ. DESEAN MICHAEL GOINS, Petitioner.
No. 20160485
SUPREME COURT OF THE STATE OF UTAH
September 6, 2017
2017 UT 61
This opinion is subject to revision before final publication in the Pacific Reporter
Third District, Salt Lake
The Honorable Ann Boyden
No. 131906358
Attorneys:
Sean D. Reyes, Att‘y Gen., Kris C. Leonard, Asst. Solic. Gen., Salt Lake City, for respondent
Herschel Bullen, Salt Lake City, for petitioner
JUSTICE PEARCE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Petitioner DeSean Goins challenges the court of appeals’ decision upholding the district court‘s admission at trial of the preliminary hearing testimony of an unavailable witness. Specifically, Goins argues that the court of appeals erroneously concluded the unavailable witness‘s testimony was properly admitted under rule 804 of the Utah Rules of Evidence. Goins contends that because article I, section 12 of the Utah Constitution limits preliminary hearings to establishing probable cause, his counsel did not have a similаr motive to develop testimony at the preliminary hearing that she would have had at trial. We agree with Goins and hold that the court of appeals erred when it affirmed the admission of the witness‘s preliminary hearing testimony. To reach that conclusion, we disavow our holding in State v. Brooks that counsel always has the same motive to develop testimony at a preliminary hearing that she will have at trial.
¶2 Admission of preliminary hearing testimony constituted error with respect to Goins‘s misdemeanor conviction. But its admission was harmless as to Goins‘s felony conviction. We therefore affirm his felony conviction, reverse his misdemeanor conviction, and remand.
BACKGROUND1
¶3 In July 2012, Goins was a man on a mission: to find Gabriel Estrada and recover the cell phone Goins believed Estrada had stolen frоm him. Goins found Estrada outside a Salt Lake City homeless shelter. Goins brandished a knife and confronted Estrada. Estrada denied that he had taken Goins‘s phone and fled.
¶5 During this conversation, Goins began waving the knife at Omar and telling Omar that he “better tell the truth because [Goins] knows that it was [Estrada] that took the phone from [Goins‘s] apartment.” At some point, Goins stepped onto Omar‘s blanket. Omar testified, “I don‘t allow anybody to step onto my blanket. So I got up and I pushed him off my blankets.”
¶6 Goins “came back at” Omar, and the two men “started punching each other.” Omar pinned Goins to the ground. Goins latched onto Omar‘s earlobe with his teeth, yanked his head back, bit off Omar‘s earlobe, and spat it on the ground. Both men got up and Omar began chasing Goins around his blanket. At some point, Goins picked up his knife, and when Omar and Goins were on opposite sides of the blanket, Goins lunged and stabbed Omar under his left arm. Police officers soon arrived and arrested Goins. Goins was eventually charged with one count of mayhem, a second-degree felony in violation of
¶7 Both Estrada and Omar testified at a preliminary hearing. Goins‘s counsel cross-examined Estrada without objection by the State or apparent restriction by the judge.
¶8 Two months after the preliminary hearing, the parties appeared for the first day of trial only to discover that they had no jury pool and could not proceed that day. The parties and the trial court agreed to continue the trial to the following day. The prosecutor then reported that Estrada had not appeared for trial and moved that he be declared unavailable and that his preliminary hearing testimony be admitted and read to the jury.
¶9 The prosecutor explained that he had difficulty locating both Estrada and Omar and that the prosecution “ha[d] gone to some lengths to try to procure [Estrada‘s] attendance” at trial. The prosecution found Omar and Estrada for the pretrial hearing through the Salt Lake City Bike Police, who “were able to find them mostly based on Jacob Omar‘s ... missing earlobe.” Estrada and Omar had brought their pastor, Russ,3 to the preliminary hearing. At the hearing, Estrada and Omar agreed to allow the prosecutor to “go through Russ to contact them” with details regarding the trial.
¶10 In anticipation of trial, the prosecutor emailed Russ a subpoena for Estrada and Omar, which detailed the trial date and called for their presence at trial. Russ confirmed that he gave a copy of the subpoena to both Estrada and Omar. Sometime before trial, Russ left his position for a new job, and Jason4 became the new community pastor.
¶11 Both Russ and Jason informed the prosecutor that “Estrada ha[d] come into some trouble” and “was in jail at one point.” The prosecutor told the district court that he had checked the jail about a week before the October 23, 2013 trial. However, Estrada had been released almost a month prior, on September 24.
¶12 Jason lost touch with Estrada before trial. Although the prosecutor asked Jason to watch for Estrada, Jason did not see him in the days leading up to trial.
¶13 Goins accepted the prosecutor‘s proffer of his efforts to serve Estrada and procure his appearance at trial. Goins argued that the prosecutor‘s efforts to serve Estrada were insufficient under
¶14 The district court found that Estrada was unavailable under
¶15 Estrada failed to appear again at trial the next day. Goins unsuccessfully renewed his objection to admission of Estrada‘s preliminary hearing testimony, and the jury heard an audio tape of Estrada‘s preliminary hearing testimony relating Goins‘s encounter with Estrada.
¶16 The prosecution presented separate evidence relating to Goins‘s altercation with Omar. The jury heard from three witnesses: Omar, an eyewitness, and a responding police officer. The prosecution also presented photos depicting Goins‘s and Omar‘s injuries.
¶17 The jury acquitted Goins of the mayhem charge. It returned a guilty verdict for the count of fеlony aggravated assault for the stabbing of Omar. The jury convicted Goins of the lesser offense of threatening with or using a dangerous weapon, a class A misdemeanor, in the fight with Estrada.
¶18 Goins appealed to the court of appeals on two grounds. First, Goins argued that Estrada was not “unavailable” because the State made no good-faith effort to locate him and properly serve him with a subpoena. Second, Goins asserted that he did not have the requisite opportunity or similar motive to fully cross-examine Estrada at the preliminary hearing.
¶19 The court of appeals held that the State made the necessary reasonable efforts to locate Estrada and affirmed the finding of unavailability.5 State v. Goins, 2016 UT App 57, ¶ 15, 370 P.3d 942. The court also held that the circumstances of a preliminary hearing “closely approximat[e] those” of a typical trial. Id. ¶ 16 (alteration in original) (citation omitted). The court of appeals held that the rule required the opportunity for cross-examination, not the exercise of that opportunity, and that a preliminary hearing provides “an effective opportunity for confrontation.” Id. ¶¶ 16-17 (citation omitted). The court of appeals accordingly held that Goins enjoyed an adequate opportunity for cross-examination at the preliminary hearing. Id. ¶ 18.
¶20 The court of appeals sympathized with Goins‘s claim that the limited purpose of the preliminary hearing—determination of probable cause—meant that trial counsel had a different motive in conducting crоss-examination at a preliminary hearing than she would have at trial. Id. ¶ 19. However, the court found the argument foreclosed by our decision in State v. Brooks, 638 P.2d 537 (Utah 1981). Goins, 2016 UT App 57, ¶ 19. The court of appeals ultimately affirmed the district court‘s admission of Estrada‘s preliminary hearing testimony. Id. ¶ 20.
¶21 Goins filed a petition for rehearing under
ISSUES AND STANDARD OF REVIEW
¶22 On certiorari, Goins argues that the court of appeals erred when it affirmed the admission at trial of Estrada‘s preliminary hearing testimony. This court reviews the court of appeals’ decision on certiorari for correctness. State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.
¶23 Next, Goins argues that the court of appeals erred when it failed to address his ineffective assistance of counsel claims raised for the first time in his rule 35 petition for rehearing. We review the court of appeals’ decision not to address a question raised for the first time in a petition for rehearing for correctness. See Arbogast Family Tr. v. River Crossings, LLC, 2010 UT 40, ¶ 10, 238 P.3d 1035 (“The interpretation of a rule of procedure is a question of law that we review for correctness.” (citation omitted)).
ANALYSIS
I. Goins‘s Counsel Did Not Have a Similar Motive to Develop Estrada‘s Testimony at the Preliminary Hearing That She Would Have Had at Trial
¶24 Goins argues that the court of appeals erred when it affirmed that Estrada‘s preliminary hearing testimony could be admitted at trial. He asserts that the introduction of preliminary hеaring testimony violates both the Confrontation Clause of the United States Constitution and
¶25 Hearsay is inadmissible at trial unless it falls within an exception.6
¶26 Goins challenges the court of appeals’ holdings that (1) Estrada qualified as an unavailable witness and (2) Goins had an opportunity and similar motive to develop the testimony at the pretrial hearing under
A. We Assume Without Deciding That Estrada Was Unavailable to Testify at Trial
¶27 The
¶28 The court of appeals reasoned that “[b]ecause the prosecution made reаsonable efforts to locate [Estrada], though perhaps not all efforts ‘humanly possible,’ ... the prosecution acted in good faith, and ... the trial court did not abuse its discretion in finding [Estrada] to be unavailable for purposes of rule 804.” State v. Goins, 2016 UT App 57, ¶ 15, 370 P.3d 942. We assume without deciding that Estrada was unavailable to testify at trial because we decide this case on other grounds.7
¶29 Prior testimony of an unavailable witness may be admitted only if it meets
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had ... an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
¶30 Goins argues that the limited nature of preliminary hearings results in a more limited opportunity for cross-examination than would take place at trial and that therefore the motive to cross-examine at a preliminary hearing differs from that at trial. The State counters that Goins‘s argument was raised and rejected in State v. Brooks, 638 P.2d 537 (Utah 1981). The State has a point. The Brooks court rejected a defendant‘s assertions that a preliminary hearing is “by its very nature ... different in motive and interest than a trial.” Id. at 541. Instead, it held that “cross-examination takes plаce at preliminary hearing and at trial under the same motive and interest.” Id. To reach that conclusion, the Brooks court opined that “[d]efense counsel‘s motive and interest are the same in either setting; he acts in both situations in the interest of and motivated by establishing the innocence of his client.” Id. We concluded that the rules of evidence do “not preclude, as a matter of law, testimony given in a preliminary hearing from being admitted at trial.”8 Id. The State correctly asserts that Brooks announced a per se rule under which preliminary hearing testimony is admissible so long as the requirements of unavailability and an opportunity to cross-examine are satisfied.
¶31 However, subsequent changes to
the motive in developing testimony is different at a preliminary hearing than it is at trial. We frequently ask questions during preliminary hearings that we would not ask at trial because evidence admissible at a preliminary hearing [is not necessarily] admissible in a trial. The rules of evidence are different and ... we don‘t ask question[s] that we might ask at a trial because credibility determinations are not being made [at] a preliminary hearing. The court making the probable cause determination is not assessing the credibility of a witness, thеrefore we do not ask questions to get that information out.
¶33 This statement perhaps slightly exaggerates the differences—magistrates can, in some limited ways, assess credibility at a preliminary hearing. See, e.g., State v. Virgin, 2006 UT 29, ¶ 25, 137 P.3d 787. And there may be certain circumstances where the nature of a witness and her testimony is such that defense counsel will ask all the questions at a preliminary hearing that she would ask at trial. But by and large,
¶34 A defense attorney who assumes that the magistrate will conduct a preliminary hearing that comports with
¶35 Goins asks us to not only disavow our holding in Brooks, but to replace it with another blanket rule—one that provides that counsel never has the same motive to develop testimony at a preliminary hearing аs at trial. The Colorado Supreme Court adopted this approach in People v. Fry, 92 P.3d 970 (Colo. 2004).10
Fry reasoned that preliminary hearings’ limited purpose curtailed the rights of a defendant “to cross-examine witnesses and to introduce evidence.” Id. at 977. The Fry court opined that a defendant‘s confrontation rights are limited at a preliminary hearing because judges are prohibited from engaging in credibility determinations in most preliminary hearings and, as a practical matter, defense counsel may decline to cross-examine witnesses at a preliminary hearing. Id. “Because credibility is not at issue and probable cause is a low standard, once a prima facie case for probable cause is established, there is little defense counsel can do to show that probable cause does not exist.” Id. When even the most searching cross-examination will likely still result in a probable cause finding, “defense counsel may decline to cross-examine witnesses at the preliminary hearing, understanding that the cross-examination would have no bearing on the issue of probable cause and that the
¶36 Fry‘s bright-line rule has some appeal. Clear rules provide better guidance. But they provide guidance at the cost of flexibility. That lack of flexibility could foreclose the potential for preliminary hearing testimony to be used in those circumstances where the nature of the case, or the testimony of the unavailable witness, is such that defense counsel really did possess the same motive and was permitted a full oрportunity for cross-examination at the preliminary hearing. Although such cases might prove rare, we can envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial. In such a case, the policy behind a bright-line rule should bend to permit the admission of the preliminary hearing testimony that would violate neither the rules of evidence nor the defendant‘s constitutional rights.
¶37 Many courts have reached the same conclusion and eschewed a blanket rule in favor of a case-by-case examination. For example, the Supreme Court of Wyoming reasoned that “[t]here will undoubtedly be cases in which preliminary heаring testimony should not be admitted at trial because the defense attorney did not have a similar motive to cross-examine the witness at the preliminary hearing but has a compelling motive to undertake that cross-examination at trial.” Rodriguez v. State, 711 P.2d 410, 414 (Wyo. 1985). But Rodriguez recognized that “[t]here will also be cases, ... in which the defense attorney has a motive at the preliminary hearing to cross-examine the witness which is similar to his motive to cross-examine at trial.” Id. Other courts have similarly adopted a case-by-case approach. See, e.g., State v. Ricks, 840 P.2d 400, 406–07 (Idaho Ct. App. 1992) (adopting a case-by-case rule).
¶38 The State points out that both the United States Supreme Court and this court have repeatedly held that preliminary hearing testimony of an unavailable witness may be admissible at trial. The State discusses California v. Green, in which the United States Supreme Court uphеld the admission of preliminary hearing testimony under the Confrontation Clause. 399 U.S. 149, 165 (1970). In Green, officers arrested a minor named Porter for selling marijuana to an undercover officer. Id. at 151. Porter identified Green as his supplier. Id. Porter testified for the State at Green‘s preliminary hearing and his “story at the preliminary hearing was subjected to extensive cross-examination by [defense] counsel.” Id. Porter testified again at trial but became “markedly evasive and uncooperative,” claiming that he was uncertain how he obtained the marijuana. Id. at 151–52 (citation omitted). The California Supreme Court held that admitting Porter‘s preliminary hearing testimony violated Green‘s confrontation rights. Id. at 153.
¶39 The United States Supreme Court reversed. The Court reasoned that “Porter‘s preliminary hearing testimony was admissible” under the Confrontation Clause, even if Porter had not testified at trial, because his preliminary hearing statement was “given under circumstances closely approximating those that surround the typical trial.” Id. at 165. The State highlights that the Court found circumstances at the preliminary hearing “closely approximat[ed]” those at trial because “Porter was under oath; [Green] was represented by counsel...; [Green] had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.” Id. Under these circumstances, the hearing did not “significantly differ[] from an actual trial” for confrontation purposes, and the preliminary hearing testimony would have been admissiblе even if Porter had been unavailable to testify at trial. Id.
¶40 The State argues that the United States Supreme Court‘s subsequent holdings continue to support the decision in Green to admit preliminary hearing testimony. The Court held again in Ohio v. Roberts that the preliminary hearing afforded an “adequate opportunity to cross-examine.” 448 U.S. 56, 73 (1980) (citation omitted), abrogated by Crawford v. Washington, 541 U.S. 36 (2004). The Court adopted a test under which hearsay statements of an unavailable declarant were admissible under the Confrontation Clause so long as they bore an “adequate ‘indicia of reliability.‘” Id. at 66 (citation omitted). The Court in Crawford v. Washington abandoned the Roberts test and determined that “preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine.” 541 U.S. at 57. The State also cites United States v. Owens to assert that the “adequate opportunity to cross-examine” guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective.” 484 U.S. 554, 557, 559 (1988) (citation omitted).
¶41 And we agree with the State‘s reading of those cases. Those cases, however, fail to completely reach the questions presented here for two reasons. First, those cases examined admissibility under the Confrontation Clause, not
¶42 And those limitations diminish the utility of the cases the State relies upon. For example, the Court in Green admitted preliminary hearing testimony because the witness gave that testimony “under circumstances closely approximating those that surround the typical trial.” Green, 399 U.S. at 165.
¶43 The State turns our attention to other states that “have similarly held preliminary hearing testimony of an unavailable witness admissible under the confrontation clause.” See Simmons v. State, 234 S.W.3d 321, 326 (Ark. Ct. App. 2006);11 People v. Williams, 181 P.3d 1035, 1061 (Cal. 2008); State v. Vinhaca, No. 28571, 2009 WL 1144934, at *2 (Haw. Ct. App. May 22, 2009); State v. Young, 87 P.3d 308, 316–17 (Kan. 2004); People v. Yost, 749 N.W.2d 753, 774–75 (Mich. Ct. App. 2008); State v. Aaron, 218 S.W.3d 501, 517 (Mo. Ct. App. 2007);12 Chavez v. State, 213 P.3d 476, 482-84 (Nev. 2009); State v. Henderson, 136 P.3d 1005, 1010–11 (N.M. Ct. App. 2006); Primeaux v. State, 88 P.3d 893, 905–06 (Okla. Crim. App. 2004). As the State acknowledges, each of these cases determined the admissibility оf preliminary hearing testimony under the Confrontation Clause, not under evidentiary rules.
¶44 The State also presents examples where this court affirmed the admission of preliminary hearing testimony at trial where a witness was unavailable. See Mackin v. State, 2016 UT 47, ¶¶ 38–42, 387 P.3d 986; State v. Menzies, 889 P.2d 393, 402–03 (Utah 1994); State v. Lovell, 758 P.2d 909, 913–14 (Utah 1988); Brooks, 638 P.2d 537 (Utah 1981). We decided Menzies, Lovell, and Brooks before
¶45 Finally, the State contends that Goins offers no compelling reason to depart from our precedent. The State correctly argues that “we do not overrule our precedents ‘lightly.‘” Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). However, this case does not present the situаtion we confronted in Eldridge—that is, a party asking us to depart from stare decisis principles because it believes our precedent should be revisited. Rather, Goins asks us to recognize that a change in law has undercut the value of our precedent. In such a case, we are not being asked to weigh the benefits of adherence to stare decisis against the proposed reconsideration of our precedent. “We have long recognized the axiom ‘that our precedent must yield when it conflicts with a validly enacted statute.‘” In re Estate of Hannifin, 2013 UT 46, ¶ 10, 311 P.3d 1016 (citation omitted). Here, Brooks was not abrogated by statute but by a constitutional amendment supported by 69 percent of Utah voters. State of Utah General Election 1994, ELECTIONS.UTAH.GOV 10 (Nov. 29, 1994), https://elections.utah.gov/Media/Default/Documents/Election_Rеsults/General/1994Gen.pdf. Brooks‘s statement that the same motive exists to develop testimony at a preliminary hearing and at trial is simply not correct in light of the constitutional amendment.
¶46 And it is apparent on the record before us that Goins‘s counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial. Estrada‘s testimony referenced concerns with Goins and a prior incident between Goins and Estrada. Goins‘s trial counsel had a motive to develop this testimony
¶47 The court of appeals erred when it affirmed the admissibility of Estrada‘s preliminary hearing testimony.
II. Admission of Estrada‘s Preliminary Hearing Testimony Constituted Harmless Error as to Goins‘s Felony Conviction
¶48 An “error warrants reversal only if .... a reasonable likelihood exists that absent the error, the result would have been more favorable to the defendant.” State v. Dibello, 780 P.2d 1221, 1230 (Utah 1989).
¶49 The jury convicted Goins on two counts: a class A misdemeanor for threatening Estrada with a knife and aggravated assault, a third-degree felony, for his encounter with Omar. The State contends that any error would be prejudicial only as to Goins‘s class A misdemeanor against Estrada. However, the State argues, Estrada‘s testimony “had little, if any, impact on the conviction for assaulting Omar.” We agree.
¶50 The admission of Estradа‘s preliminary hearing testimony was prejudicial only as to Goins‘s misdemeanor conviction. Estrada‘s testimony was the primary evidence admitted in support of Goins‘s misdemeanor charge. Because of that, we can readily conclude that “a reasonable likelihood exists that absent the error,” Goins would have received a more favorable outcome. Id.
¶51 Admission of Estrada‘s testimony constituted harmless error concerning Goins‘s felony conviction for three reasons. First, Estrada did not witness Goins‘s confrontation with Omar, nor did he testify regarding Omar‘s assault. Second, an eyewitness, who watched almost the entirety of the altercation, independently corroborated Omar‘s testimony. And finally, the prosecution presented corroborating photogrаphs depicting Omar‘s and Goins‘s injuries.
¶52 Given that Estrada‘s improperly admitted preliminary hearing testimony had little, if anything, to do with Goins‘s assault on Omar, the admission of that testimony did not impact the felony aggravated assault conviction.
III. The Court of Appeals Did Not Err When It Refused to Address Goins‘s Petition for Rehearing
¶53 Goins argues that the court of appeals erred when it denied his petition for rehearing.
¶54 Appellate courts should not consider claims that are presented for the first time in petitions for rehearing. The plain language of the rule provides only for presentation of “points of law or fact” the court may have overlooked when it considered the issues before it.
¶55 Goins argues that judicial economy would have been better served if the court of appeals addressed his ineffective assistance claim rather than “requir[ing] him to raise it
¶56 The court of appeals did not err when it refused to address a new claim raised for the first time in a rehearing petition.
CONCLUSION
¶57 Contrary to what we said in State v. Brooks, not every cross-examination at a preliminary hearing will be conducted with a similar motive as if the cross-examination occurred at trial. We disavow the holding in Brooks in light of subsequent changes to the Utah Constitution and clarify that a district court should examine the preliminary hearing testimony to ensure that the defendant possessed a similar motive before admitting the testimony under
¶58 We affirm Goins‘s third-degree aggravated assault conviction, reverse his misdemeanor conviction, and remand for further proceedings consistent with this opinion.