STATE OF UTAH and L.L., Appellants, v. IVAN MICHAEL LOPEZ, Appellee. STATE OF UTAH, Appellee, v. DARIN CHASE NIELSEN, Appellant.
Nos. 20180940, 20180945, 20180952, and 20190272
Supreme Court of the State of Utah
August 18, 2020
2020 UT 61
Heard April 8, 2020. On Consolidated Appeal of Interlocutory Orders. Third District, Salt Lake, The Honorable James T. Blanch, No. 181907088. Fourth District, Provo, The Honorable Robert C. Lunnen, No. 181100038.
This opinion is subject to revision before final publication in the Pacific Reporter
2020 UT 61
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH and L.L., Appellants, v. IVAN MICHAEL LOPEZ, Appellee.
STATE OF UTAH, Appellee, v. DARIN CHASE NIELSEN, Appellant.
Nos. 20180940, 20180945, 20180952, and 20190272
Heard April 8, 2020
Filed August 18, 2020
On Consolidated Appeal of Interlocutory Orders
Third District, Salt Lake
The Honorable James T. Blanch
No. 181907088
Fourth District, Provo
The Honorable Robert C. Lunnen
No. 181100038
STATE v. LOPEZ
Opinion of the Court
Attorneys:
Sean D. Reyes, Att‘y Gen., Tera J. Peterson, Asst. Sol. Gen., Clint T. Heiner, Donna Kelly, Lance E. Bastian, Salt Lake City, for the State of Utah
Paul Cassell, Heidi Nestel, C. Bethany Warr, Salt Lake City, for appellant L.L.
Alexandra S. McCallum, Salt Lake City, for appellee Ivan Michael Lopez
Dallas Young, Douglas J. Thompson, Provo, for appellant Darin Chase Nielsen
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, AND JUSTICE PETERSEN joined.
¶1 Ivan Michael Lopez and Darin Chase Nielsen each stand accused of engaging in illicit activities with children. Lopez is charged with furnishing alcohol to, raping, and otherwise sexually abusing a twelve-year-old girl (L.L.) in the back of his truck. Nielsen is charged with sexually abusing his five-year-old daughter (A.N.) while alone with her in a bedroom.
¶2 L.L. and A.N. each participated in interviews about their alleged abuse at the Children‘s Justice Center (CJC). These interviews were later introduced (along with other evidence) as “reliable hearsay” at Lopez‘s and Nielsen‘s preliminary hearings in accordance with
¶3 In the Lopez case, the State and L.L. moved to quash the subpoena, but the magistrate denied the motions, opting instead to modify the manner in which L.L. would be required to testify. In the Nielsen case, the magistrate granted the State‘s motion to quash the subpoena. We agreed to hear the cases on interlocutory appeal, in recognition of the need for guidance from this court on the clash between the rights of defendants and victims in a preliminary hearing. We resolve both cases in this consolidated opinion.
¶4 We hold that any power a defendant has to subpoena witnesses at a preliminary hearing—whether under the rules of criminal procedure or the constitution—must be understood in light of the prerogative of the court to “quash or modify [a] subpoena if compliance would be unreasonable.”
¶5 Part I lays out the facts and procedural background of the Lopez and Nielsen cases. Part II answers a threshold question raised in the Lopez case—whether an alleged victim has a right to seek an interlocutory appeal or lodge a direct appeal from a magistrate‘s denial of a motion to quash her subpoena. Part III sets forth the standard that governs such motions, as informed by the probable cause standard and the law protecting the rights of crime victims. Part IV then applies this standard to the facts of the Lopez and Nielsen cases. Part V concludes.
STATE v. LOPEZ
Opinion of the Court
I. BACKGROUND2
A. Lopez
¶6 Lopez began communicating via phone call and text message with L.L. and her friend, C.D., by posing as a fifteen-year-old boy named “Giovanni.” One night, L.L. told Lopez that she wanted to visit C.D., who was undergoing surgery at the hospital the next morning. Lopez told L.L. that he had a car and offered to drive her to C.D.‘s house. L.L. accepted the offer and met Lopez for the first time in person at a local gas station. Instead of taking L.L. to C.D.‘s house, however, Lopez drove to a residential neighborhood in Kearns, parked on a corner, and locked the doors. L.L. moved to the backseat to get away from him, but Lopez followed. He then offered L.L. marijuana and beer, which she later testified that she refused. Lopez drank a beer himself and threw the can out the window. He then undressed L.L., undressed himself, and got on top of her, vaginally penetrating her with his penis and placing his mouth on her breasts.3
¶7 A homeowner called the police after noticing two people sitting in the back of a parked truck and seeing something thrown from the vehicle. When the responding officer arrived, she found a beer can near the truck, the windows steamed up, and Lopez (then twenty-seven years old) and L.L. (then twelve years old) in the backseat. Both were shuffling their clothing, and Lopez had his underwear around one of his ankles under his pants.4 The officer testified that both occupants had their shirts inside out and smelled of beer. L.L. told the officer that they had been drinking.
¶8 After talking with the officer, L.L. received a sexual assault exam, in which she related some of the details of this encounter to a nurse. The nurse took photographs of red marks she noticed on L.L.‘s breasts. Later, an investigating detective interviewed L.L. at the CJC, where L.L. gave the full story. The investigating detective also interviewed C.D., who said that L.L. had told her that she (L.L.) and Lopez had had sex.
¶9 The State charged Lopez with (1) rape of a child,5 (2) aggravated sexual abuse of a child,6 and (3) furnishing alcohol to a minor.7 Before his preliminary hearing, Lopez served L.L. with a subpoena compelling her to testify. L.L. moved to quash the subpoena on the ground that forcing her to testify at the
¶10 In the State‘s case-in-chief, both the responding officer and investigating detective testified. Lopez cross-examined both. The State then played a video recording of L.L.‘s CJC interview and introduced the results of L.L.‘s sexual assault exam.
¶11 Once the State rested, the court heard arguments on L.L.‘s motion to quash. Lopez argued that he was not required to explain what he expected L.L.‘s live testimony to provide because he was “entitled” to “find out some more of the details” even if L.L.‘s testimony ultimately supported rather than undermined probable cause.
¶12 The court agreed with Lopez and denied the motion to quash, holding that the subpoena was “not unreasonable under the facts and circumstances of this case.” In particular, it noted L.L.‘s “mature demeanor” and the fact that the courtroom would be relatively empty. The court admitted that it did not “see a likely basis that questioning the child victim in this case would defeat probable cause ... where the State has met its burden for bindover during its prima facie case,” but held that the defendant “need not show a particular likelihood that calling the child victim will defeat probable cause prior to exercising his right to call the child victim.” The court justified its decision by reasoning that, under the low probable cause standard, “if defendants were required to make such a showing prior to subpoenaing and questioning witnesses, the Court would be required to quash defense witnesses’ subpoenas in every case and defendants’ right to call witnesses under rule 7B ... would be illusory.”8 Still, the court modified the subpoena so that Lopez would remain in the holding cell while L.L. testified, and it indicated that it might make further accommodations later on.
¶13 The parties agreed to continue the proceedings and both L.L. and the State petitioned for interlocutory review of the denial of the motion to quash. L.L. also filed a timely notice of direct appeal. We provisionally granted L.L.‘s interlocutory appeal, granted the State‘s, and consolidated them with L.L.‘s direct appeal (deferring a determination on our jurisdiction over the direct appeal).
B. Nielsen
¶14 The State‘s probable cause statement alleges that Nielsen “engaged in sex acts with his daughter, A.N.” Specifically, the State claims that in a forensic interview at the CJC, A.N. described a “naughty game” that she and Nielsen would play on a bed. In this game, Nielsen would allegedly touch A.N.‘s “bottom” with a “part” that was “round,” the “color of skin,” and close to his belly button, as well as touch A.N. between her legs with his hands. The State is charging Nielsen with two counts of aggravated sexual abuse of a child with a prior grievous sex offense.9
¶15 Prior to the preliminary hearing, Nielsen moved to subpoena various witnesses (including A.N.), while the State moved to admit A.N.‘s CJC interview and quash her subpoena. In opposing the latter motion, Nielsen argued that while he had an express right to call witnesses under
¶16 The court began the preliminary hearing by granting the State‘s motion to quash the A.N. subpoena. In so doing, the court cited Utah‘s policy of allowing reliable hearsay in preliminary hearings as laid out in
¶17 The State then called the forensic interviewer, A.N.‘s mother, and the investigating detective to testify. The interviewer explained how he had avoided asking leading questions or suggesting A.N.‘s answers. A.N.‘s mother testified that Nielsen was alone with A.N. sometimes. The investigating detective testified that A.N.‘s step-grandmother had first reported the abuse to the police. Nielsen cross-examined all these witnesses, but never about the content of A.N.‘s CJC interview or the manner in which it was conducted.10 Finally, the State introduced Nielsen‘s 2005 conviction for aggravated sexual abuse of a child.
¶18 At the close of the preliminary hearing, Nielsen offered no evidence. Instead, he asked that the magistrate hear argument on the “strengths and weaknesses” of the CJC video once he (Nielsen) had seen the video and conferred with counsel “as to the presence or lack of presence of probable cause.” The State and the court agreed. But before the next scheduled hearing could occur, Nielsen obtained new counsel, who asked the court to clarify its ruling on the motion to quash so that Nielsen could have a clean record on which to seek interlocutory appeal of the decision pre-bindover. In a telephone conference, defense counsel admitted that “one of the difficult issues” in the case was that they did not know “precisely what [A.N.] would say.”
¶19 The magistrate then issued a written ruling reaffirming the original decision, holding that “[d]efendant‘s assertion that he has an unrestrained right to call A.N. as a witness at his preliminary hearing is entirely inconsistent with the overall intent expressed in the rules and statutes governing preliminary hearings,” and that the purpose of the Victims’ Rights Amendment was to “excuse victims from having to appear at the preliminary examination.” In particular, the court noted victims’ constitutional rights to “be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.”
¶20 Nielsen petitioned for interlocutory review of the order, which we granted. As the parties had agreed, the magistrate stayed the proceedings and delayed any decision on bindover.
II. L.L.‘S RIGHT TO APPEAL
¶21 A threshold question in the Lopez case concerns the proper avenue for challenging a decision on a motion to quash a defendant‘s preliminary-hearing subpoena. Lopez‘s alleged victim, L.L., filed a direct appeal of right, apparently on the theory that the decision in the Lopez case was effectively “final” under our law. As an apparent backup, L.L. also petitioned for interlocutory appeal—a petition which we “provisionally” granted,
¶22 We undoubtedly have jurisdiction to hear the case, having granted the State‘s petition for interlocutory appeal. See
decide whether she also has a right to file a direct appeal, emphasizing the upsides of our providing clarity on the matter.
¶23 We agree with the need to address this issue but disagree with the notion that L.L. has a right to a direct appeal. Clarity in our articulation of the law of appellate jurisdiction is important. See Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass‘n, 2012 UT 86, ¶ 16, 293 P.3d 241 (explaining that “certainty is critical” and “bright-line rules” are helpful on matters of appellate jurisdiction). And for that reason we exercise our discretion to resolve the question presented despite the fact that our decision is not required.
¶24 We conclude, however, that the proper mechanism for appeal in this circumstance is a petition for interlocutory appeal. Our rules, as interpreted in our case law, provide only for a discretionary petition for interlocutory appeal, not a direct appeal of right.
¶25 Federal case law endorses the notion of a “collateral order” doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). This doctrine treats as final (and appealable) a ruling that is otherwise interlocutory but conclusively determines a “claim[] of right” that is “separable from” and “collateral to” the underlying action, and that would be “effectively” unreviewable on appeal from a final judgment. Id. at 546. The terms and conditions of this doctrine could potentially be established here, where the refusal to quash a subpoena compelling victim testimony is conclusive and separate from the criminal charges against the accused and could be deemed “effectively” unreviewable on appeal from a final judgment. But we have thus far declined to adopt the collateral order doctrine as a matter of Utah law. See Mecham v. Frazier, 2008 UT 60, ¶ 12, 193 P.3d 630 (“[I]n Utah, there is no collateral order doctrine.“); Tyler v. Dep‘t of Human Servs., 874 P.2d 119 (Utah 1994) (per curiam) (declining to adopt the federal collateral order doctrine on the ground that Utah law provides sufficient avenues for obtaining review of nonfinal orders). And we have identified three specific avenues for appeal from a nonfinal judgment in our courts: petition for interlocutory appeal under appellate rule 5, certification under civil rule 54(b), and petition for extraordinary relief under civil rule 65B(e). Tyler, 874 P.2d at 120. We have determined that these avenues provide Utah courts
victim may qualify as a limited-purpose party—with standing to assert a claim“); State v. Casey, 2002 UT 29, ¶ 22, 44 P.3d 756 (recognizing that “crime victims possess the right to appeal rulings on motions related to their rights as a victim“).
with “ample power” to consider granting “immediate review” where “appropriate.” Id. (“Our rules allowing discretionary review provide parties an opportunity to convince an appellate court that the issue raised is so important that review prior to full adjudication of the case is justified or that the order will escape review altogether if an appeal is not allowed.“).
¶26 These principles control our decision here. There is no final judgment in the case before us on review—indeed, the case is at a very preliminary stage. For that reason, the
III. THE STANDARD FOR JUDGING THE QUESTIONS PRESENTED ON APPEAL
¶27 We turn next to the standard for judging a motion to quash a subpoena directed to an alleged victim in a preliminary hearing. This is a complex question of first impression that requires us to balance defendants’ rights under our rules and constitution against victims’ rights under the same—in particular, the Victims’ Rights Amendment adopted in 1995.
¶28 In asserting a right to subpoena their alleged victims to testify at their preliminary hearings, the defendants rely first on
¶29 The magistrate in the Lopez case endorsed the defendants’ general view. In denying the motion to quash, the magistrate noted that Lopez had an “explicit right to call witnesses” under
¶30 The court in the Nielsen case granted the motion to quash. In so doing, the magistrate concluded that Nielsen‘s “assertion that he has an unrestrained right to call” an alleged victim “as a witness at his preliminary hearing is entirely inconsistent with the overall intent expressed in the rules and statutes governing preliminary hearings.” The court also cited
¶31 We appreciate and commend the work of the magistrates for their careful attention to the difficult questions presented in the two cases before us in this consolidated opinion. Their reasoned analysis has helped to sharpen the questions presented for our review—questions that require a careful balance of seemingly competing provisions of law and that have never before been considered by this court.
¶32 We conclude that the key to balancing these various provisions is the insight that any general ability a defendant may have to compel his alleged victim to testify in a preliminary hearing must be understood in light of the court‘s authority to “quash or modify [a] subpoena if compliance would be unreasonable.”
¶33 We develop the basis for our holdings in the paragraphs below. We first discuss a defendant‘s ability to call witnesses at a preliminary hearing and identify an important limitation—the power of a court to quash a subpoena where “compliance would be unreasonable.” We then consider a series of provisions in our law that inform the inquiry into the reasonableness of a subpoena compelling an alleged victim at a preliminary hearing. And we conclude by articulating the governing standard in greater detail.
¶34 The threshold question concerns the existence of an alleged “right” to subpoena a witness to testify at a preliminary hearing. Defendants’ first-cited basis for the existence of such a “right” is
¶35 Defendants also invoke the Compulsory Process Clause of
¶36 The State and Lopez‘s alleged victim (L.L.) challenge this latter proposition. They contend that the constitutional compulsory process right applies with limited force, if at all, in a preliminary hearing—especially after the adoption of the Victims’ Rights Amendment. They likewise challenge the breadth of any rule-based right to “call witnesses” at a preliminary hearing, asserting that
¶37 The State and L.L. cite our decision in State v. Timmerman, 2009 UT 58, 218 P.3d 590, in support of their position. They note that in that case we held that the 1995 Victims’ Rights Amendment “clearly removed confrontation rights from the preliminary hearing stage” of a criminal case and overruled our prior decision in State v. Anderson, 612 P.2d 778, 784-85 (Utah 1980), on this point. Timmerman, 2009 UT 58, ¶ 15 (emphasis added). And the State asks us to hold that the cited legal grounds for the purported right to compel an alleged victim to testify at a preliminary hearing are nothing more than an attempted end run around Timmerman.
¶38 The governing provision of the Victims’ Rights Amendment expressly states that “[n]othing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary examination to determine probable cause ... if appropriate discovery is allowed as defined by statute or rule.”
¶39 We think both sides overplay their hand to some degree. The cited provision of the Victims’ Rights Amendment, for one thing, is not dispositive. It says only that “[n]othing in this constitution shall preclude the use of reliable hearsay” in the determination of “probable cause.”
¶40 Yet the governing rules and statutes cannot be read to enshrine an unfettered “right” to subpoena victim witnesses to testify at a preliminary hearing.
¶41 We elaborate on the governing limits informing the “unreasonableness” inquiry in Part III(B). Here, we conclude only that (a) neither Timmerman nor the constitutional proviso that “[n]othing in this constitution shall preclude the use of reliable hearsay,”
¶42 These holdings preserve a meaningful, non-illusory role for a defendant‘s ability to “call witnesses” at a preliminary hearing under
B. Legal Principles Informing the Inquiry into “Unreasonableness”
¶43 The inquiry into the unreasonableness of a subpoena directed at an alleged victim in a preliminary hearing is informed by a series of important tenets of Utah law.
1. The Purpose of the Preliminary Hearing
¶44 The first relevant principle is found in limitations on the purpose of the
2. Hearsay Evidence in the Preliminary Hearing
¶45 The 1995 amendment also established that the Utah Constitution would not stand as a bar to “the use of reliable hearsay evidence as defined by statute or rule ... at any preliminary examination to determine probable cause.”
3. The Burden of Proof at the Preliminary Hearing
¶46 The State bears the burden of establishing the basis for binding a defendant over for trial. State v. Jones, 2016 UT 4, ¶ 11, 365 P.3d 1212. But the burden is “light.” Id. ¶ 12. The only “question at the preliminary hearing is whether the prosecution has presented evidence sufficient to sustain ‘probable cause.‘” Id. To make this showing, the prosecution need not produce evidence sufficient to “support[] a finding of guilt at trial” or even to “eliminate alternative inferences that could be drawn from the evidence in favor of the defense.” Id. ¶ 13 (citations and internal quotation marks omitted). All that is necessary is a presentation of “evidence sufficient to support a reasonable belief that an offense has been committed and that the defendant committed it.” State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204 (citation and internal quotation marks omitted).
¶47 Accordingly, it is generally “inappropriate for a magistrate to weigh credible but conflicting evidence at a preliminary hearing ....” State v. Virgin, 2006 UT 29, ¶ 24, 137 P.3d 787. This hearing “is not a trial on the merits” but “a gateway to the finder of fact.” Id. (citation and internal quotation marks omitted). With this in mind, the magistrate may “disregard or discredit” evidence only if it is “wholly lacking and incapable of creating a reasonable inference regarding a portion of the prosecution‘s claim.” Id. (citation and internal quotation marks omitted).
¶48 Under this low bar, it may be difficult for the defense to overcome a prima facie showing of probable cause. Even an alleged victim‘s recantation may sometimes be insufficient, given that the magistrate “must view all evidence in the light most favorable to the prosecution and draw all
4. The Rights of Victims at the Preliminary Hearing
¶49 Finally, crime victims have extensive rights in criminal justice proceedings in Utah. The 1995 amendment to the Utah Constitution established a right of crime victims “[t]o be treated with fairness, respect, and dignity,” and a right to “be free from harassment and abuse throughout the criminal justice process.”
C. The Standard for Determining Whether a Subpoena of a Victim Witness at a Preliminary Hearing is “Unreasonable”
¶50 The above sets the stage for our articulation of the standard for judging whether a subpoena directed to an alleged victim at a preliminary hearing is unreasonable. Four principles inform our statement of the standard: (1) the sole purpose of the preliminary hearing is the determination of probable cause; (2) reliable hearsay evidence—including statements made by a child victim of abuse under the terms of
¶51 These legal principles foreclose the defendants’ assertion of a “right” to compel a victim to testify at a preliminary hearing without showing how such testimony could affect the prosecution‘s prima facie showing of probable cause. A subpoena in service of such a right would be unreasonable in light of the principles set forth above. It would exceed the bounds of the constitutional purpose of the preliminary hearing, effectively override the law endorsing the sufficiency of hearsay evidence in establishing probable cause, supersede the governing standard for establishing probable cause, and ultimately intrude on the constitutional and statutory rights of victims.
¶52 The last point is sustained by extensive social science material put forward in the briefing submitted by L.L. That material identifies some patterns that typically appear in the interactions between a perpetrator and victim of child sex abuse: a perpetrator who “desensitize[s]” a child victim after “befriend[ing]” her by increasing levels of abuse from minimal acts to more “invasive” ones; a child who becomes so emotionally traumatized that she finds it difficult to resist or disclose the abuse; and a period of delay in reporting that may cause the child to feel somehow responsible for the abuse or believe that it has become consensual. See Thomas D. Lyon & Julia A. Dente, Child Witnesses and the Confrontation Clause, 102 J. CRIM. L. & CRIMINOLOGY 1181, 1203-12 (2012). The social science literature also establishes that the experience of testifying about past abuse may cause substantial emotional trauma for victims of child sex abuse. See Jim Henry,
¶53 The above points are controlling. A defendant has the general authority to “call witnesses” at a preliminary hearing, but a subpoena compelling alleged victims to testify is per se “unreasonable” when it seeks testimony that is immaterial to the probable-cause determination, would obviate the legal sufficiency of hearsay evidence, and would unnecessarily intrude on the rights of victims.
¶54 With this in mind, we conclude that the starting point for assessing the reasonableness of a subpoena aimed at compelling an alleged victim of sex abuse to testify at a preliminary hearing is a prima facie determination of probable cause. See
¶55 The above sequencing of this inquiry will best balance the competing interests and rights of both the defendant and the alleged victim. On one hand, it will preserve the defendant‘s opportunity to “call witnesses” under
¶56 Our standard speaks to the grounds on which a subpoena should be quashed as a matter of law—where a prima facie showing of probable cause has been established through a victim‘s reliable hearsay, and where the defendant is unable to identify a need to present additional, live testimony from the victim on a specific point that is material to the probable-cause determination and reasonably likely to defeat the State‘s prima facie showing. But this standard is not exhaustive. It should not be read to exclude other means and measures that a court might undertake under
IV. DISPOSITION
¶57 We now have only to dispose of the cases at issue. Applying the above standard, we reverse the Lopez court and affirm the Nielsen court.
¶59 We affirm the Nielsen court on similar grounds. Admittedly, the Nielsen court granted the State‘s motion to quash A.N.‘s subpoena at the start of the preliminary hearing, before the State had even presented its evidence. But when Nielsen objected, he did not name anything specific that he hoped A.N.‘s testimony would provide. He just baldly asserted that he was entitled to “test the State‘s evidence.” This point was further reinforced in a telephone conference in which Nielsen‘s counsel openly acknowledged that “one of the difficult issues” in the case was that they did not know “precisely what [A.N.] would say.”
¶60 Nielsen‘s all-or-nothing position—that he had “an unrestrained right” to call the alleged victim “as a witness at his preliminary hearing” - was wrong. And the magistrate was accordingly correct to grant the motion to quash under these circumstances. We affirm the decision in the Nielsen case on that limited basis, without any intent to influence any future bindover decision under the probable cause standard.
V. CONCLUSION
¶61 These cases arise at the difficult intersection between the rights of defendants and the rights of alleged victims in preliminary hearings. We hold that any power a defendant has to compel a victim witness to testify at a preliminary hearing is limited by the court‘s authority to quash unreasonable subpoenas. And we conclude that that reasonableness inquiry must be informed by the standards that govern preliminary hearings and the rights that our law guarantees for crime victims.