State v. Archibeque, 20210008

CourtSupreme Court of Utah
Writing for the CourtChief Justice Durrant, opinion of the Court
Citation509 P.3d 768
Parties STATE of Utah, Appellant, v. Isidor Pacomio ARCHIBEQUE, Appellee.
Docket Number20210008
Decision Date28 April 2022

509 P.3d 768

STATE of Utah, Appellant,
Isidor Pacomio ARCHIBEQUE, Appellee.

No. 20210008

Supreme Court of Utah.

Heard March 14, 2022
Filed April 28, 2022

Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Colleen K. Magee, Salt Lake City, for appellant

Ann M. Taliaferro, Jeremy Delicino, Cara M. Tangaro, Salt Lake City, for appellee

Chief Justice Durrant authored the opinion of the Court, in which Justice Pearce, Justice Petersen, Judge Hagen, and Judge Mortensen joined.

Having recused himself, Associate Chief Justice Lee does not participate herein; Court of Appeals Judge Diana Hagen sat.

Due to his retirement, Justice Himonas did not participate herein; Court of Appeals Judge David N. Mortensen sat.

On Appeal of Interlocutory Order

Chief Justice Durrant, opinion of the Court:


¶1 Isidor Pacomio Archibeque faces seven felony charges for an alleged pattern of sexual abuse that occurred between 2014 and 2017. He denies the charges and served his alleged victim, A.W., with a subpoena to appear and testify at his preliminary hearing in the district court. A.W. filed a motion to quash the subpoena.

509 P.3d 771

¶2 To defeat an alleged victim's motion to quash at the preliminary hearing stage, our caselaw requires that a defendant demonstrate to the magistrate that the testimony is necessary to present specific evidence that is reasonably likely to defeat the State's showing of probable cause. The question this interlocutory appeal presents is whether the district court may judge the sufficiency of the defendant's showing based solely on an in camera proffer, without first affording the State an opportunity to respond. We hold that the court may not do so.


¶3 Mr. Archibeque is charged with two counts each of rape, forcible sodomy, and forcible sexual abuse, and one count of object rape, in connection with a series of alleged acts directed at A.W. over the course of several years. A.W. was a minor throughout the duration of the alleged abuse, and Mr. Archibeque was her pastor.

¶4 Mr. Archibeque denies the charges against him and requested a preliminary hearing at the district court. He informed the court that he would seek A.W.’s live testimony in addition to her written statement and then served her with a subpoena to appear and testify at the hearing. A.W. moved to quash the subpoena, arguing that requiring compliance would be unreasonable and that forcing her to testify would violate her constitutional rights.

¶5 While A.W.’s motion to quash was pending, we issued State v. Lopez , which clarified the respective rights of defendants and alleged victims at preliminary hearings.1 We held that, in light of the "circumscribed function of the preliminary hearing," "a subpoena compelling the [alleged] victim to give additional, live testimony will survive a motion to quash only if the defendant demonstrates that the subpoena is necessary to present specific evidence that is reasonably likely to defeat the [State's] showing of probable cause."2

¶6 After Lopez was issued, Mr. Archibeque asked to make the showing necessary to overcome A.W.’s motion to quash in camera and only to the district court. Both the State and A.W. filed memoranda in opposition to Mr. Archibeque's request. The State argued that by viewing the evidence in camera, the district court judge would violate the Code of Judicial Conduct's prohibition on ex parte communications.3 And A.W. argued that Mr. Archibeque's constitutional rights as a criminal defendant did not entitle him to an in camera proceeding.

¶7 The district court granted Mr. Archibeque's motion in part, attempting to reach a compromise that would respect the rights of all involved. The court found that requiring Mr. Archibeque "to expose his theory of the case" and "to reveal evidence concerning impeachment of the alleged victim" during the preliminary hearing would be prejudicial and violate his constitutional rights. It therefore determined that Mr. Archibeque would be allowed "to make an in camera proffer as to what evidence is anticipated to be gleaned from the cross-examination" of A.W. Then, if the court were to determine that the proffered evidence "could obviate probable cause," it would turn that evidence over to the State to give it "notice as to how the defense intends to approach [A.W.] at the preliminary hearing." But if the court were to determine that the proffered information would not obviate probable cause, then that information would "remain sealed and [would] not be disclosed to the State."

¶8 The parties view the practical effect of the district court's order differently. The State is concerned that under the terms of the order, it will not "have the opportunity to correct and contextualize" Mr. Archibeque's representations or to show that "the ground[ ] to be covered by the live witness could just as effectively be presented by other means."4 But Mr. Archibeque does not read the order as limiting the State's "opportunity to address [his] in camera representations" (if the court finds they obviate probable

509 P.3d 772

cause) or "to show that live testimony is unnecessary."

¶9 Our reading of the district court's order comports with the State's, and we review it accordingly. Under the order, if the court determines that Mr. Archibeque's proffer "could obviate probable cause," it will turn the information over to the State "so they will have notice as to how the defense intends to approach [the] witness at the preliminary hearing." This language suggests that by the time the State receives the information, the court will have already decided that A.W. will have to testify. Giving the State "notice" of how Mr. Archibeque "intends to approach [the] witness" merely provides the State the opportunity to prepare for the testimony, not to refute the proffer or argue that the ground to be covered could be presented without the testimony.5 Given our reading of the order, we offer no opinion on whether a district court could properly allow for an in camera Lopez proffer so long as the State and alleged victim were given an opportunity to challenge the proffer before the court required the alleged victim to testify.

¶10 After the district court issued its order, the case proceeded to the preliminary hearing. There, to show probable cause existed to justify the charges against Mr. Archibeque, the State submitted a statement from A.W. under rule 1102 of the Utah Rules of Evidence.6 Based on this statement, the court made a "preliminary determination" that the State had established a prima facie case for probable cause as to each of the charges. But it stayed the anticipated in camera review of Mr. Archibeque's Lopez proffer pending our resolution of this interlocutory appeal. We have jurisdiction under Utah Code section 78A-3-102(3)(h).

Standard of Review

¶11 In cases where in camera review is typical, such as when a claim of privilege is asserted in response to a discovery request, "the determination of whether in camera review is necessary lies in the sound discretion of the district court."7 But this is not a case where a party seeks discovery of purportedly privileged information. Here, the district court partially granted Mr. Archibeque's motion for in camera review to protect his constitutional rights as a criminal defendant. And because constitutional issues are questions of law, we review the district court's order for correctness.8


¶12 The State raises two primary arguments on appeal. First, it argues that allowing Mr. Archibeque to proceed with his Lopez proffer in camera would violate the Code of Judicial Conduct's prohibition of ex parte communications.9 Second, it argues that the district court's order violates A.W.’s constitutional rights, as a crime victim, to "be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout

509 P.3d 773

the criminal justice process."10

¶13 With respect to the State's first argument, we note the parties’ differing interpretations of the procedure set forth in the district court's order. The State calls it an "ex parte proceeding," while Mr. Archibeque calls it an "in camera review." The procedure may be "ex parte" in the sense that the Lopez proffer would be "made at the instance and for the benefit of one party only,"11 but we need not decide whether it is the sort of "ex parte communication" contemplated by the Code of Judicial Conduct. So to avoid confusion, and because the district court's order is itself styled as granting in part a "motion for in camera review," that is how we refer to the procedure throughout this opinion—even though we disagree, for reasons we explain, with Mr. Archibeque's view that there is no "principled distinction" between the sort of in camera review courts routinely employ and the one at issue here.

¶14 Although we decline to consider whether the district court's order violates the Code of Judicial Conduct, we agree with the State that "a defendant cannot seek to force his [alleged] victim to testify at his...

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