Gutierrez v. Medley

• Citation: 972 P.2d 913
• Decision Date: 29 December 1998
• Docket Number: 970473 and 970476,Nos. 970472,s. 970472
• Parties: 359 Utah Adv. Rep. 46 Cindy GUTIERREZ, Petitioner, v. The Honorable Tyrone E. MEDLEY, Respondent. Melissa Gutierrez, Petitioner, v. The Honorable Tyrone E. Medley, Respondent. State of Utah, Plaintiff and Appellee, v. Johnny Augusti Gutierrez, et al., Defendants and Appellant.
• Court: Utah Supreme Court

Page 913

972 P.2d 913

359 Utah Adv. Rep. 46

Cindy GUTIERREZ, Petitioner, v. The Honorable Tyrone E. MEDLEY, Respondent.

Melissa Gutierrez, Petitioner, v. The Honorable Tyrone E. Medley, Respondent.

State of Utah, Plaintiff and Appellee, v. Johnny Augusti Gutierrez, et al., Defendants and Appellant.

Nos. 970472, 970473 and 970476.

Supreme Court of Utah.

Dec. 29, 1998.

John D. O'Connell, Jr., Salt Lake City, for Cindy Gutierrez.

Rebecca C. Hyde, Salt Lake City, for Melissa Gutierrez.

Brent M. Johnson, Salt Lake City, for Judge Medley.

Jan Graham, Att'y Gen., Christine Soltis, Asst. Att'y Gen., E. Neal Gunnarson, Barbara J. Byrne, Bel-Ami De Montreux, Salt Lake City, for the State.

James C. Bradshaw, Salt Lake City, for Johnny Gutierrez.

RUSSON, Justice:

Johnny Gutierrez, his wife Cindy Gutierrez, and his daughter Melissa Gutierrez challenge the Third District Court's order denying a motion to quash subpoenas issued to Cindy and Melissa Gutierrez pursuant to Utah Code Ann. § 77-22-2. We reverse and remand.

FACTS

On or about August 5, 1996, Roberto Huerta was shot and killed during a gun battle at the home of defendant Johnny Gutierrez. Both Cindy and Melissa Gutierrez were at the home at the time of the shooting. Both were interviewed briefly at the scene and were told that a homicide detective would contact them later to obtain a statement concerning their observations. When a detective later contacted them, Cindy and Melissa refused to cooperate.

On August 7, 1996, a criminal information was filed against Johnny Gutierrez and several others, ¹ charging them with murder.

Following a preliminary hearing, defendants were bound over to stand trial.

On August 15, 1997, one year after charges had been brought and one week before the scheduled trial, the district court issued an order, pursuant to Utah Code Ann. §§ 77-22-1 to -5 (the "Subpoena Powers Act"), permitting the State to subpoena Cindy and Melissa Gutierrez to provide sworn statements "to aid the State in its pre-trial investigation of the killing of Roberto Huerta." Johnny Gutierrez moved to quash the subpoenas on the ground that the Subpoena Powers Act did not permit such subpoenas after the filing of formal criminal charges. Cindy and Melissa Gutierrez also opposed the subpoenas. On September 18, 1997, the court denied the motion to quash, ruling that the Subpoena Powers Act was not limited to the period of investigation preceding the filing of criminal charges but could be utilized during any period of the State's pretrial investigation of a criminal case. In support of its ruling, the court stated that the language of the Subpoena Powers Act did not specifically limit its use to only the period of investigation preceding the filing of charges. The court further supported its decision by citing to Utah Code Ann. § 77-22b-1, entitled "Immunity granted to witness." That section states in part:

A witness who refuses, or is likely to refuse, on the basis of his privilege against self-incrimination to testify or provide evidence or information in a criminal investigation, including a grand jury investigation or prosecution of a criminal case, ... may be compelled to testify or provide evidence or information by any of the following, after being granted use immunity....

Utah Code Ann. § 77-22b-1(1)(a) (Supp.1998) (emphasis added). The district court reasoned that because section 77-22b-1 describes a criminal investigation to include a criminal prosecution, it followed that a criminal investigation under the Subpoena Powers Act included that period of investigation during prosecution, and thus the subpoena power could be used after the filing of criminal charges.

Johnny Gutierrez appeals the denial of his motion to quash the subpoenas, and Cindy and Melissa Gutierrez petition for extraordinary relief against the Honorable Tyrone E. Medley, also challenging the denial of the motion. The Gutierrezes argue that the language of the Subpoena Powers Act, its legislative history, and important policy considerations all compel the conclusion that the Act cannot be used after criminal charges have been filed. The Gutierrezes also argue that the subpoenas should be quashed because the State did not request or obtain authorization from the district court to conduct a Subpoena Powers Act investigation, as is required. See Utah Code Ann. § 77-22-2(1) (1995).

The State responds that the Subpoena Powers Act is not limited to the time prior to the filing of charges, but can be used during any period of the State's pretrial investigation. The State also argues that the procedures of the Act were complied with because the district court found that there was good cause for the investigation.

Thus, the principal issue before us is whether the Subpoena Powers Act can be used to subpoena witnesses after formal criminal charges have been filed. Because we hold that the Subpoena Powers Act cannot be used after charges have been filed and we reverse the district court on that ground, we need not consider whether the State complied with the procedures of the Act in this case. ²

STANDARD OF REVIEW

The proper interpretation and application of a statute is a question of law which

we review for correctness, affording no deference to the district court's legal conclusion. See Salt Lake Therapy Clinic v. Frederick, 890 P.2d 1017, 1019 (Utah 1995).

ANALYSIS

Upon a showing of good cause and the approval of the district court, the Subpoena Powers Act permits the attorney general, the county attorney, or the district attorney (the "state's attorneys") to conduct a criminal investigation. Utah Code Ann. § 77-22-2(1)(a). Once such an investigation is approved by the court, the state's attorneys may subpoena witnesses and compel their testimony and the production of physical evidence. Id. § 77-22-2(2)(a). The state's attorneys are required to disclose, among other things, that the subpoena is issued in aid of a criminal investigation, the general subject matter of the investigation, that the witness has the privilege to refuse to answer any question that may result in self-incrimination, and that the witness has the right to have counsel present during interrogation. Id. § 77-22-2(3) & (4). If the witness is suspected of committing the crime that is under investigation, the state's attorneys must inform the witness of that status, as well as the nature of the charges under consideration against him. Id. § 77-22-2(5). Furthermore, upon showing a reasonable likelihood that the public release of the identity of the witness or the substance of the evidence obtained would threaten harm to a person or impede the investigation, the court may order the identity of the witness and the evidence obtained to be kept secret. The court may also order the witness, under appropriate circumstances, not to disclose the substance of his or her testimony to others. Id. § 77-22-2(7).

While the Gutierrezes and the State do not dispute that the state's attorneys can conduct an investigation under the Act in which they have the power to subpoena witnesses and compel their testimony, they do dispute when that power may be exercised. The Gutierrezes claim that the subpoena power can be used only prior to the filing of criminal charges. Thus, according to the Gutierrezes, an investigation under the Act is limited to the preindictment investigation. The State, however, draws no distinction between an investigation prior to the filing of charges and an investigation after the filing of charges. Thus, the State claims that when it is authorized to conduct a "criminal investigation" under the Act it may use the subpoena power any time during its pretrial investigation.

Therefore, we need to determine when the subpoena power can be used. In other words, we need to decide when a criminal investigation, for purposes of the Subpoena Powers Act, begins and ends. In interpreting a statutory act, we seek to give effect to the intent of the legislature in light of the purpose the act was meant to achieve. See Mariemont v. White City Water Improvement Dist., 958 P.2d 222, 224 (Utah 1998). In doing so, we look to the plain language of the act and consider the act in its entirety, " 'harmoniz[ing] its provisions in accordance with the legislative intent and purpose.' " Id. at 225 (citations omitted). If there is ambiguity in the act's plain language, "we then seek guidance from the legislative history and relevant policy considerations." Id. at 224-25 (citations omitted).

We conclude that the Subpoena Powers Act is ambiguous as to when the subpoena power may be used. On the one hand, the legislature sought to "grant subpoena powers in aid of criminal investigations." Utah Code Ann. § 77-22-1. As the State points out, this phrase is not specifically limited to the investigation prior to the filing of charges, and it is axiomatic that the State investigates criminal cases both before and after charges have been filed. On the other hand, the Act when read as a whole seems to suggest that a criminal investigation, for purposes of the Act, ends with the filing of criminal charges. For example, the Act states in part that (1) it is necessary "to provide a method of keeping information gained from investigations secret both to protect the innocent and to prevent criminal suspects from having access to information prior to prosecution," id. § 77-22-1 (emphasis added); (2) if the state's attorneys have evidence that the particular witness "has committed a crime that is under investigation The use of language such as "prior to prosecution," "target status," "charges under consideration," and "possible defendants," implies that the Act is to be used prior to formal charges. In our prior cases, we have taken this view, although we have never directly ruled on the issue. See Parsons v. Barnes, 871 P.2d 516, 519 n. 3 (Utah 1994) (emphasizing that "[a] county prosecutor proceeds under section 77-22-2 prior to commencing ...