{1 Defendant Tamara Rhinehart was con-viected after a jury trial of burglary, a second
BACKGROUND 2
12 Sometime after June 5, 2008, Defendant and her boyfriend, Craig Nicholls, stole a safe belonging to Defendant's aunt, Sue Davis. Davis kept the safe, which contained approximately $6500, in her apartment. To accomplish the theft, Defendant lured Davis out of her home while Nicholls stole the safe. During roughly the same time period, Defendant told her hair dresser, Marne Christian-son, that she and Nicholls stole a safe containing $5000, that Nicholls stole it from someone's house after Defendant had lured the owner out of the home, and that they dumped the safe in a parking lot after cracking it open. Defendant also told Jessica Goalen, a nanny who she employed, that she and Nicholls stole a safe containing a large sum of money, that the theft was "just like [the film] The Italian Job" in that it was "really slick ... [in and out," and that Defendant and Nicholls cracked the safe open and then left it in a field.
13 The facts surrounding the theft and burglary came to light while Defendant and Nicholls were being investigated for a related charge of murder. Nicholls pleaded guilty to the murder in exchange for a sentence of life without parole. The State agreed to drop any remaining charges against Nicholls, and he agreed to "fully cooperate with the State in their prosecution of [his] co-defendant, Tamara Rhinehart ... by truthfully disclosing all aspects of [their] planning and carrying out" the murder. During a subsequent police interview that was primarily focused on the murder charge, Nicholls briefly discussed his and Defendant's participation in the burglary and theft. Nicholls told police that he and Defendant devised a plan whereby Defendant would take Davis out to eat, and while they were gone, Nicholls would steal Davis's safe.
T4 The police charged Defendant with burglary, theft, and murder. At Defendant's preliminary hearing on all of the charges, Nicholls invoked his Fifth Amendment right against self-incrimination and was therefore unavailable to testify. The State then presented into evidence the transcript of Nic-holls's police interview as evidence of Defendant's role in the crimes charged. The State also introduced a sworn statement from Davis and a transcript of a telephone interview with Christianson. There was no other evidence introduced at the preliminary hearing to implicate Defendant in the burglary and theft charges.
T5 Defendant was bound over on all charges and subsequently requested severance of the charges for trial. Defendant also moved to quash the bindover on grounds that hearsay was wrongly admitted at the preliminary hearing. The trial court agreed to sever the burglary and theft charges from the murder charge, but denied Defendant's motion to quash. Defendant also moved to have the burglary and theft trial held after the murder trial. However, that motion was denied.
T6 During the burglary and theft trial, defense counsel asked the investigating officer, Detective Bennett, on cross-examination whether he spoke to anyone about the exis
Q. Did you talk to Craig Nicholls about a safe?
A. Yes, I did.
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Q. Did he tell you anything that would lead you to believe whether or not Sue Davis had a safe?
Yes. |
And what was that? ©
Well, at the time he described the area that he had gone to to retrieve the safe. >
Q. And what did he describe?
A. He described coming into the valley.... He described the Sear's store which is located down by Macey's at the south end of Logan.... He de-seribed that he was to go into a home because there was an aunt of Tam[alra Rhinehart who possessed a safe with some money in that safe. That he would go into that home to take that safe out while Tam{[alra Rhinehart took the family members to lunch or dinner.
T7 Defense counsel objected to Detective Bennett's response on grounds that it contained hearsay, but the trial court overruled the objection, accepting the State's argument that defense counsel had opened the door to the testimony. At the conclusion of the trial, the jury convicted Defendant on both counts. Defendant subsequently moved for a new trial. That motion was denied. Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
T8 Defendant claims that the trial court should have granted her motion to quash the bindover because hearsay evidence was improperly permitted at the preliminary hearing. The determination of whether to bind a defendant over for trial generally involves a mixed question of law and fact, which requires this court to afford some deference to the trial court. See State v. Virgin,
T9 Defendant also argues that the trial court erred in refusing to hold the murder trial before the burglary and theft trial. We review a claim regarding the administration of a trial court's docket for abuse of discretion. See Walker Drug Co. v. LaSal Oil Co.,
110 Finally, Defendant argues that hearsay evidence should not have been allowed at trial because it was prejudicial and the trial court incorrectly ruled that the "door had been opened." "Our standard of review on the admissibility of hearsay evidence is complex, since the determination of admissibility 'often contains a number of rulings, each of which may require a different standard of review'" State v. Workman,
ANALYSIS
I. Whether the Trial Court Erred‘ in Denying Defendant's Motion to Quash Bindover
T11 Defendant argues that the trial court should have granted her motion to quash the
A. Whether Crawford Applies at Preliminary Hearings
112 The Sixth Amendment to the Constitution states, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. This provision, also known as the "Confrontation Clause," was recently the focus of the United States Supreme Court decision, Crawford v. Washington,
13 Moreover, the Supreme Court has previously explained that the Confrontation Clause provides a trial right, not a pre-trial right. For example, in Pennsylvania v. Ritchie,
T14 Although Utah has not specifically addressed whether hearsay is admissible at preliminary hearings post-Crawford, other jurisdictions have, and they have reached the same conclusion that we do today. See, eg., People v. Felder,
B. Whether State law Provides the Right to Confrontation at Preliminary Hearings
¶ 15 Defendant relies on State v. Anderson,
C. Whether the Testimony Introduced at the Preliminary Hearing was Unreliable
116 Defendant further argues that Nicholls's testimony at the preliminary hearing, introduced via the transcript of his plea interview, was unreliable because even though it met the requirements of rule 1102(b)(8), it was offered by a coconspirator. In Lilly v. Virginia,
T17 Like Crawford, Lilly was concerned solely with the right to confrontation at trial; it did not address the admissibility of hearsay at the preliminary hearing stage. See id. at 122-36,
{18 Furthermore, the trial court determined that the hearsay testimony admitted at the pretrial hearing met the reliability criteria of rule 1102. See Utah R. Evid. 1102(b)(8). We agree with that ruling because the statements were each "written, recorded or transcribed verbatim." Id.
II. Whether the Trial Court Erred in Refusing to Reverse the Order of Trials
119 Defendant asserts that the trial court erred by proceeding with the burglary and theft trial before the murder trial, arguing that she was unfairly prejudiced. We disagree. Utah Code section 77-8a-1(4)(a) provides,
If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.
Utah Code Ann. § 77-8a-1(4)(a) (2003). In the event that a severance is granted, the statute does not address the order of trials. To the contrary, our supreme court has noted that a trial court has " 'considerable discretion' to administer the business of its docket and determine how a trial should be conducted.'" Walker Drug Co. v. La Sal Oil Co.,
1 20 However, the question of whether the trial court abused its discretion in scheduling trials in a particular order after severance is an issue of first impression for our courts. The few jurisdictions analyzing the same question have used a balancing test to assess the competing interests of the State and the criminal defendant. See, eg., State v. Wal-land,
T21 In this instance, although the trial court did not explicitly engage in a balancing test, both parties fully briefed their respective interests and the court clearly considered those arguments. Therefore, we can legitimately assume that the trial court engaged in a process of balancing the parties' interests. Moreover, we conclude that, after
122 First, Defendant argued that if the burglary and theft case were tried first, her right to confront and cross-examine the witnesses against her would be limited because she would be unable to expose the fact that the State's witness, Nicholls, had received immunity in exchange for his testimony. The State, however, responded that Nicholls was given immunity solely for his cooperation in the murder case, not with regard to the burglary and theft case.
Second, Defendant argued that she would be prejudiced by the order of trials because the jurors in the burglary and theft case could potentially learn of and be prejudiced by their knowledge of the pending murder charge. However, Defendant filed a motion in limine to suppress all statements related to the murder charge, and although it is unclear from the record whether the court granted that motion, the murder charge was never mentioned during the burglary and theft trial. Moreover, as the State points out, Defendant's position was inconsistent. On one hand, she wanted to refer to the murder charge in an effort to impeach the State's witnesses, and on the other hand, she wanted to shield the jury from learning of the murder charge so as not to inflame prejudice.
T 24 Defendant next argued that if conviet-ed of the burglary and theft charges, the State could use Defendant's convictions as aggravating cireumstances in her murder trial. Although this argument may have validity, it does not hinder Defendant's right to a fair trial in the burglary and theft case. See Walland,
125 After examining the arguments presented to and considered by the trial court, we conclude that it was within the trial court's discretion to proceed with the burglary and theft case prior to the murder case. Our conclusion is further bolstered by the fact that the trial court was in the best position to assess the strength of the parties' arguments. See Morton v. Continental Baking Co.,
III. Whether the Trial Court Erred by Allowing Hearsay Statements at Trial
126 Defendant argues that the trial court erred when it allowed Detective Bennett to present hearsay testimony at trial based on its conclusion that Defendant had opened the door to the testimony.
7
Although "'it is proper to allow ... any testimony which would tend to dispute, explain or minimize the effect of evidence that has been given by one's opponent,'" State v. Harper,
127 On cross-examination, defense counsel asked Detective Bennett if he had spoken to anyone about the existence of the safe, to which he responded in the negative. On re-direct, the State asked Detective Bennett whether he had spoken to Nicholls about the safe. Upon answering affirmatively, the State asked Detective Bennett what Nicholls had said. At this point, the State's questioning went beyond the seope of cross-examination, and Detective Bennett's remaining testimony constituted inadmissible hearsay. However, we determine that the admission of Detective Bennett's testimony resulted in harmless error.
128 "Notwithstanding error by the trial court, we will not reverse a convietion if we find that the error was harmless." State v. Calliham,
129 First, Davis testified about the existence of the safe and its disappearance. Second, Christianson testified that Defendant told her she had stolen a safe, that it contained approximately $5000, and that Defendant had lured the safe owner out of the house so Nicholls could steal the safe. Third, Goalen testified that Defendant told her that she had come into some money in the same manner the actors did in the film The Italian Job. Goalen further testified that The Italian Job, which Defendant and Goal-en had seen together, was about a group of thieves that stole a safe. Finally, Goalen testified that Defendant said she had received some money from Nicholls, and that she had to drive by and pick up Nicholls after he stole a safe. Because this testimony, standing alone, was sufficient to establish the existence of the stolen safe, the admission of Detective Bennett's testimony was harmless error.
CONCLUSION
T30 We address three rulings challenged by Defendant on appeal: denial of her motion to quash bindover, overruling of her objection to the order of trials, and overruling of her objection to the use of hearsay evidence at trial.
181 First, regarding the bindover order, because Crawford v. Washington,
1 32 WE CONCUR: JUDITH M. BILLINGS and CAROLYN B. MeHUGH, Judges.
Notes
. Defendant also raises claims regarding a motion for new trial based on newly discovered evidence. We do not address Defendant's claim that her motion for new trial should have been granted because it was inadequately briefed. See Valcarce v. Fitzgerald,
. "When reviewing a challenge to a criminal conviction, 'we recite the facts from the record . in the light most favorable to the jury's verdict.'" State v. Lee,
. Our conclusion is strengthened by the fact that the Federal Rules of Evidence, which are constrained by the limits of the Constitution, see Fed.R.Evid. 802, expressly allow for the introduction of hearsay at preliminary hearings. See id. 1101(d) ('The rules [of evidence] do not apply [at] Preliminary Examinations in Criminal Cases.").
.. The 1994 amendment to Article I, Section 12, effective July 1, 1995, added the following language:
Nothing 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 at any pretrial proceeding with respect to release of the defendant if appropriate discovery is allowed as defined by statute or rule.
Utah Const. art. I, § 12.
. Rule 1102 provides that hearsay evidence is admissible at the preliminary hearing as long as that evidence is reliable. See Utah R. Evid. 1102(a). The rule further explains that hearsay is reliable if it is "a statement of a declarant that is written, recorded, or transcribed verbatim ... under oath or affirmation; or ... pursuant to a notification to the declarant that a false statement made therein is punishable." Id. at 1102(b)(8). -
. The Supreme Court of Utah is constitutionally empowered to "adopt rules of procedure and evidence." Utah Const. art. I, § 4; see also Utah Code Ann. § 78-24-4(1) (2002).
. Defendant further argues that Detective Bennett's testimony about statements made by Nic-holls was inadmissible in violation of Crawford v. Washington,