State v. Anderson
| Decision Date | 29 May 1980 |
| Docket Number | No. 16372,16372 |
| Citation | 612 P.2d 778 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Roger ANDERSON and Thomas E. Brackenbury, Defendants and Appellants. |
| Court | Utah Supreme Court |
S. Rex Lewis of Howard, Lewis & Peterson, Provo, for defendants and appellants.
Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
The defendants, Roger Anderson and Thomas Brackenbury, bring this appeal from their conviction for tampering with a witness in violation of 76-8-508. We uphold the conviction of Roger Anderson, hereinafter "Anderson," but set aside the conviction of Thomas Brackenbury, hereinafter "Brackenbury." All statutory references are to Utah Code Annotated 1953, as amended.
The factual basis of the jury conviction is relatively simple. The defendants, Anderson and Brackenbury, entered the J & M Saloon, located in Soldiers Summit, Utah, to investigate suspected illegal sale of alcohol. At the time of the incident in question, Anderson was the Chief of Police of Soldiers Summit and Brackenbury was the Justice of the Peace. In the saloon a confrontation ensued between Anderson and the manager of the saloon, James Garner, hereinafter "Garner." During the confrontation a patron of the saloon, Ray Applegate, hereinafter "Applegate," came to the aid of Garner, who referred to him as his bouncer. However, Applegate testified at trial that upon being informed Anderson was the Chief of Police he returned to his original place at the other end of the bar.
The escalating confrontation ended when Garner struck Anderson in the face. Anderson announced that Garner was under arrest and, although emotionally distraught, left the saloon to enjoin the aid of the police officer then on duty before taking Garner into custody. Once out of the saloon Brackenbury left Anderson and returned to his trailer. Upon enlisting the aid of Officer Butch Curtis, hereinafter "Curtis," Anderson, who was still quite excited from the earlier controversy, reentered the saloon and forcibly detained Garner. In the ensuing scuffle Garner was thrown to the floor, handcuffed and removed from the saloon.
Curtis assumed custody of Garner and proceeded to the Utah County Jail to incarcerate him, 1 while Anderson returned to the saloon in search of the "bouncer" Applegate. After finding Applegate there, Anderson escorted him across the highway to Brackenbury's trailer, which was also used as the Justice Court of Soldiers Summit.
Once inside the trailer, Anderson declared Applegate was under arrest for interfering with an officer in the course of his duty, 2 and Brackenbury proclaimed the Justice Court to be in session. According to the testimony of Applegate, Anderson then proceeded to physically intimidate him into signing false statements 3 concerning the prior activities in the bar. The first two statements concerned Garner striking Anderson and Applegate's purchase from Garner of liquor, "over the bar," in the J & M Saloon. The third statement recounted the details of the earlier incident in the bar and the arrest of Garner. Applegate testified he signed the false statements because he was scared of possible further violence. 4
Applegate's account of the incident in the trailer was corroborated by the testimony of Curtis. Curtis testified that upon returning to Soldiers Summit, after delivering Garner, he initiated a conversation with Anderson in which the former explained how he had procured a sworn statement from Applegate concerning the sale of liquor "over the bar" by Garner. When Curtis asked Anderson if the statement was made voluntarily Anderson replied, "Well, I had to rough him (Applegate) up a little bit, but I got the statement." 5
Subsequently, the defendants were arrested for the crime of tampering with a witness in violation of 76-8-508. 6 The defendants appeared at their arraignment and requested a preliminary hearing. This request was granted and Anderson and Brackenbury were released on their own recognizance.
At the preliminary hearing Garner and Curtis were presented as witnesses for the prosecution. However, instead of presenting Applegate at the preliminary examination, the prosecution moved to introduce Applegate's sworn affidavit relating the essence of his testimony. The prosecution explained Applegate would be present at the trial to testify, but they reasoned the inconvenience of bringing him from his home in Muskogee, Oklahoma, to Utah rendered his absence at the preliminary examination permissible and the admission of his sworn affidavit justified under 77-15-19. 7 The judge agreed with the prosecution's contentions and allowed, over the objection of the defendant, the introduction of the affidavit into evidence. The judge found the evidence presented at the preliminary examination sufficient to bind the matter over to the District Court for trial. At the subsequent trial, the defendants were convicted by a jury of the crime as charged.
The defendants' principal issue on appeal concerns the constitutionality of the procedure employed at the preliminary hearing. Interpreting the recently enacted amendment to 77-15-19 which allows the use of hearsay evidence at the preliminary hearing, the examining judge allowed the prosecution to introduce the sworn affidavit of its principal witness Applegate. The defendants contend the use of this affidavit, in lieu of the personal appearance of Applegate at the examination, abridged their constitutional right to be confronted by the witnesses against them in a criminal prosecution. 8 This issue, presents important questions of first impression to this Court concerning the application of the procedural safeguards embodied in Article I, Section 12, of the Utah Constitution to the preliminary examination.
Article I, Section 12, outlines the protections guaranteed an individual in the course of a criminal prosecution. It provides:
The preliminary examination of a person accused of a crime in Utah is part of the criminal prosecution. 9 Therefore, a strict reading of the language of Section 12 would provide the accused the entire panoply of guaranteed rights at the preliminary examination. However, the allocation of the various protections afforded by Section 12 is not dependent solely upon a strict interpretation of that section.
Rather, the application of the various protections embodied in Section 12 to the several stages of a criminal prosecution is defined by the relationship between the specific proceedings and the protection offered by the procedural safeguard. Only when the specific safeguard is necessary to effectuate the protection of a substantive right held by the accused will its application to the specific criminal proceeding be mandated.
Therefore, before we will grant the accused a constitutional right of confrontation at the preliminary examination, we must examine the nature and purpose of that proceeding and determine if confrontation is necessary to insure the protection of any substantive rights of the accused.
Preliminary examinations in Utah are adversarial proceedings in which the prosecution must present evidence sufficient to establish; (a) that a public offense has been committed, and (b) sufficient cause to believe the defendant guilty thereof. 10
The probable cause showing necessary in the preliminary examination differs from that required for an arrest warrant. In the latter, the facts presented must be sufficient to establish that an offense has been committed and a reasonable belief the defendant committed it. The facts presented, however, do not have to establish a prima facie case against the defendant. 11
Conversely the probable cause showing at the preliminary examination must establish a prima facie case against the defendant from which the trier of fact could conclude the defendant was guilty of the offense as charged. 12
The prosecution is not required to introduce enough evidence to establish the defendant's guilt beyond a reasonable doubt, but must present a quantum of evidence sufficient to warrant submission of the case to the trier of fact. 13 Also, the determination of sufficient cause 14 to bind the accused over for trial must be based on facts which are proved at the examination and may not depend on the information, complaint or depositions taken before the issuance of the arrest warrant. 15
While the burden falls upon the prosecution to establish sufficient cause to believe the accused guilty of the crime charged, the adversarial qualities of the examination allow the defendant an opportunity to attack the prosecution's evidence and to present any affirmative defenses. Although the hearing is not a trial per se, it is not an ex parte proceeding nor one-sided determination of probable cause, 16 and the accused is granted a statutory right to cross-examine the witnesses against him, 17 and the right to subpoena and present witnesses in his defense. 18 Thus, the preliminary examination is an adversarial proceeding in which certain procedural safeguards are...
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...face to face, but also that the jury can see and hear the witnesses in person to assess their credibility. This Court, in State v. Anderson, 612 P.2d 778 (Utah 1980), articulated the scope of the right in the following Classically, the primary object of the constitutional right of confronta......
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...minority position that the use of hearsay at such hearings violates the defendant's confrontation rights. (See, e.g., State v. Anderson (Utah 1980) 612 P.2d 778, 784-786 [relying on confrontation clause of Utah As Justice Puglia explained in his concurring opinion in Herbert v. Superior Cou......
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