State Of Utah v. Poole

• Decision Date: 30 April 2010
• Docket Number: No. 20070696.,20070696.
• Citation: 232 P.3d 519,2010 UT 25
• Parties: STATE of Utah, Plaintiff and Appellee,v.Christian E. POOLE, Defendant and Appellant.
• Court: Utah Supreme Court

232 P.3d 519

2010 UT 25

STATE of Utah, Plaintiff and Appellee,v.Christian E. POOLE, Defendant and Appellant.

No. 20070696.

Supreme Court of Utah.

April 30, 2010.

Mark L. Shurtleff, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., for plaintiff.

David M. Perry, Logan, for defendant.

DURHAM, Chief Justice:

¶ 1 Christian Poole entered conditional guilty pleas to three counts of rape of a child and is currently serving a six-year-to-life prison sentence. Because his pleas were conditional, Mr. Poole was permitted to appeal the district court's finding that he forfeited the right to confront the victim of his sexual assault through wrongdoing. The legal proposition of forfeiture by wrongdoing-that is, a defendant's wrongful acts may cause the defendant to forfeit the constitutional right to confrontation-is an issue of first impression for this court. We expressly acknowledge the doctrine's existence under the Utah Constitution and provide guidance for its application in criminal trials.

¶ 2 While we recognize the doctrine of forfeiture by wrongdoing, the procedural posture of Mr. Poole's criminal prosecution prevents us from determining whether he has forfeited his right to confrontation at this time. The district court's decision on this issue was premature; neither this court nor the district court is yet in a position to know whether the victim of Mr. Poole's alleged criminal acts will be unavailable at trial until the time of that trial. Given this holding, Mr. Poole should be allowed to withdraw his guilty plea under Rule 11(j) of the Utah Rules of Criminal Procedure and proceed to trial if he so wishes, but with the risk that the witness will be unavailable and the district court will have to decide the forfeiture question.

BACKGROUND

¶ 3 We provide an abbreviated recitation of the facts because we have declined to address the full merits of Mr. Poole's forfeiture appeal. That is not to say that the allegations against Mr. Poole are trivial. Indeed, prosecutors alleged that Mr. Poole began sexually abusing his daughter, C.P., when the girl was five or six years old. The sexual abuse continued throughout C.P.'s childhood and did not surface until she was 16 years old. An anonymous tip led the state's Division of Child and Family Services to launch an investigation into the abuse in late 2005. During a recorded interview in February 2006, C.P. confirmed and provided details of the sexual abuse to a DCFS social worker and a Cache County Sheriff's detective.

¶ 4 This interview formed the basis for the decision to arrest Mr. Poole and charge him with nine counts of rape of a child, seven counts of rape, and two counts of forcible sodomy. Moreover, C.P.'s statements in this interview are at the heart of this appeal. The state has assumed that C.P. would be unavailable at Mr. Poole's criminal trial and has attempted to have the statement C.P. made to investigators admitted against Mr. Poole in lieu of her live testimony. The basis for this assumption began earlier in the prosecution. Within days of Mr. Poole's arrest, Mrs. Poole moved the family to Idaho and sought independent legal representation for C.P. Mrs. Poole's actions caused the prosecutors to fear that C.P. would not appear at Mr. Poole's trial. As a result, the district court allowed prosecutors to depose C.P. in order to preserve testimony from a potentially unavailable witness. C.P. appeared at the deposition but refused to answer the prosecution's questions. Indeed, C.P.'s only response to the state's questioning was to nod in affirmance that she was unwilling to testify. Mr. Poole's defense attorney declined to ask C.P. any questions on the basis that the state had failed to elicit any testimony from C.P. on direct examination.

¶ 5 Approximately two months later, prosecutors again attempted to take C.P.'s testimony. At a pretrial motion hearing on the subject of whether Mr. Poole forfeited his right to confront C.P. through his wrongful conduct that rendered her unavailable at trial, C.P. was again called as a witness and placed under oath. C.P. stated her name and address and then refused to answer any other questions posed by the prosecution. Once again, Mr. Poole's defense attorney declined to question C.P.

¶ 6 The state then asked the district court to find Mr. Poole had forfeited his right to confront C.P. through wrongful acts, thereby allowing the admission of C.P.'s out-of-court statements at trial. In its order, the district court recognized the doctrine of forfeiture by wrongdoing. With no Utah precedent on the topic, the district court was also required to set the scope of its forfeiture analysis. Ultimately, the district court determined that the state has the burden of proving forfeiture by wrongdoing by a preponderance of the evidence, and with the exception of privileges, the Utah Rules of Evidence do not apply to the decision on forfeiture by wrongdoing because the district court's decision is a preliminary issue of fact. Applying these standards to the allegations of wrongdoing by Mr. Poole, the district court found Mr. Poole had forfeited his right to confront C.P. through wrongful conduct. Specifically, the district court found Mr. Poole “worked in conjunction with his wife” to “pressure,” “manipulate[ ],” and “threaten [ ]” C.P. into refusing to testify. “All of this can be laid at the defendant's feet. He caused the result that C.P. is now refusing to testify, and he should not benefit from this manipulation of a witness.”

¶ 7 On the basis that C.P.'s out-of-court statements were admissible at his trial, Mr. Poole entered into a plea agreement with the state. In exchange for Mr. Poole's guilty plea to three counts of rape of a child, the state agreed to dismiss the other fifteen felony charges. Prosecutors also agreed that they would recommend Mr. Poole serve a six-year-to-life sentence as opposed to the maximum of 15-years-to-life available under the charges. Mr. Poole's pleas were conditioned on the right to appeal the district court's decision on forfeiture by wrongdoing that authorized the state to present C.P.'s out-of-court statements at trial. Mr. Poole has properly appealed that decision. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(i) (2008).

STANDARD OF REVIEW

¶ 8 Matters of constitutional interpretation are questions of law that we review for correctness, and we provide no deference to the district court's legal conclusions. Ford v. State, 2008 UT 66, ¶ 6, 199 P.3d 892; Grand County v. Emery County, 2002 UT 57, ¶ 6, 52 P.3d 1148. The district court's decision to admit testimony that may implicate the confrontation clause is also a question of law reviewed for correctness. State v. Calliham, 2002 UT 87, ¶ 31, 57 P.3d 220.

ANALYSIS

I. FORFEITURE BY WRONGDOING IS RECOGNIZED UNDER THE UTAH CONSTITUTION

¶ 9 The issue of whether Utah law recognizes the doctrine of forfeiture by wrongdoing has never been squarely addressed by this court, but the district court embraced it; we agree with the district court's reasoning.¹ Utah law recognizes that a defendant may forgo the right to confrontation through conduct designed to make a witness unavailable at trial so long as the state can prove the defendant acted with the intent to accomplish that end.

¶ 10 Before turning to the scope of the forfeiture-by-wrongdoing doctrine under state law, it is important to properly frame the question presented here. The constitutions of both the United States and Utah guarantee criminal defendants the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also Utah Const. art. I, § 12 (using the word “by” instead of “with”). Forfeiture by wrongdoing acts to eliminate these constitutionally guaranteed protections because of the defendant's affirmative acts. See Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“[T]he rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds.”). Forfeiture by wrongdoing can be viewed as a limitation on the protection guaranteed by the constitution because the right to confront one's accuser no longer applies when the defendant has acted to cause a witness to be unavailable. The Supreme Court has unambiguously recognized the doctrine under the Sixth Amendment. See Giles v. California, --- U.S. ----, 128 S.Ct. 2678, 2682-83, 171 L.Ed.2d 488 (2008). Under the federal constitution, the protections of the confrontation clause cease to apply to a defendant who “(1) causes a potential witness's unavailability (2) by a wrongful act (3) undertaken with the intention of preventing the potential witness from testifying.” United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir.1996); see also Doan v. Carter, 548 F.3d 449, 458 (6th Cir.2008).

¶ 11 Mr. Poole's challenge to the district court's decision in this case, however, is based on both the U.S. and Utah Constitutions. Mr. Poole has asked us to determine if article I, section 12 of the Utah Constitution provides greater protections to criminal defendants than its federal counterpart. The Utah Constitution could provide more protection to criminal defendants by limiting the influence the forfeiture-by-wrongdoing doctrine has on the confrontation clause. See State v. DeBooy, 2000 UT 32, ¶ 12, 996 P.2d 546. Moreover, an analysis under the state constitution is in order given this court's endorsement of the primacy model. See State v. Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106 (explaining and endorsing the primacy model, which dictates “that state laws be interpreted independently and prior to consideration of federal questions”).

¶ 12 In evaluating the Utah Constitution, we have rejected a presumption that “federal construction of similar language is correct.” Id. ¶ 37.

In theory, a claimant could rely on nothing more than plain language to make an argument for a construction of a Utah provision that would be different from the interpretation the

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