State v. Barela, 880547-CA
| Decision Date | 07 September 1989 |
| Docket Number | No. 880547-CA,880547-CA |
| Citation | 779 P.2d 1140 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Eddie Walter BARELA, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Quinn D. Hunsaker (argued), Brigham City, for defendant and appellant.
R. Paul Van Dam, State Atty. Gen., Dan R. Larsen (argued), Asst. Atty. Gen., for plaintiff and respondent.
Before BILLINGS, GARFF and GREENWOOD, JJ.
Defendant Eddie Walter Barela appeals from his conviction of incest, a third degree felony, in violation of Utah Code Ann. § 76-7-102 (1989). Defendant contends the trial court violated his constitutional right of confrontation by admitting the victim's preliminary hearing testimony at trial, even though the victim was physically present. We reverse and remand for further proceedings consistent with this opinion.
Defendant was charged with incest for engaging in sexual intercourse with his twenty-one-year-old sister who suffered from severe cerebral palsy.
On January 3, 1986, a preliminary hearing was held. Both the victim and the victim's mother testified at the hearing concerning the events leading up to defendant's arrest for incest. Defendant was present at the preliminary hearing, and represented by counsel who cross-examined the State's witnesses. Based on the evidence presented at the preliminary hearing, defendant was bound over for trial.
Trial was originally set for June 6, 1987. On that date, both the defendant and his counsel failed to appear. During the next year, three bench warrants were issued for defendant for his failure to appear in court and keep in contact with his attorney. Ultimately, a new trial date was set for June 1, 1988. Defendant and his counsel appeared but the victim and her mother, although subpoenaed, failed to appear. The trial court issued a bench warrant for their arrest on charges of contempt, and directed law enforcement officers to locate both witnesses and bring them before the court.
The prosecution then requested the court to admit into evidence the preliminary hearing testimony of the victim and her mother. In response, defendant moved to strike certain objectionable statements from the transcript. The trial judge admitted the testimony after striking the portions objected to by defense counsel.
Prior to the conclusion of the State's case, the victim and her mother were located and brought into court. As a result, defense counsel moved to strike their preliminary hearing testimony from the record. The court took the motion under advisement stating, "[t]he fact that they're present doesn't necessarily mean they're available under the rule."
Both witnesses were instructed that they were under arrest for contempt of court until they testified. Nonetheless, the victim's mother refused to testify against her son, and claimed she could not remember the facts of the case due to an intervening illness. Defense counsel then withdrew his motion to strike the mother's preliminary hearing testimony.
The victim took the stand, and testified in a confused manner about her previous testimony and the alleged incest. Upon further questioning by the prosecutor, the victim became emotionally agitated. The court took a brief recess after which the court found that because of the victim's emotional and physical condition, the court would not require her to testify. The prosecution rested its case. Defendant renewed his motion to strike the victim's preliminary hearing testimony.
Subsequently, the court ruled that the victim's preliminary hearing testimony was admissible pursuant to Utah R.Evid. 803(24) and 804. Based almost exclusively on the victim's preliminary hearing testimony, the court found defendant guilty of incest.
On appeal, defendant claims the trial court violated his right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution, and article I, section 12 of the Utah Constitution when the court admitted the victim's preliminary hearing testimony at trial. 1
A trial court's evidentiary rulings will not be disturbed on appeal absent a showing that the court abused its discretion. See, e.g., State v. Lovell, 758 P.2d 909, 912 (Utah 1988); State v. Brooks, 638 P.2d 537, 539 (Utah 1981); State v. Casias, 772 P.2d 975, 977 (Utah Ct.App.1989).
The Sixth Amendment to the United States Constitution provides "[i]n all criminal prosecutions, the accused shall enjoy the right.... to be confronted with the witnesses against him...." Courts do not construe the Sixth Amendment literally. That is because Burns v. Clusen, 599 F.Supp. 1438, 1441 (D.Wis.1984), aff'd, 798 F.2d 931 (7th Cir.1986).
Rather, in considering the relationship between the confrontation clause and the hearsay rule, our supreme court has adopted a two-prong test enunciated by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The admission of prior testimony does not violate a defendant's right of confrontation if two requirements are met. "The first requirement is that the witness must be unavailable; the second requirement is that the testimony must bear sufficient indicia of reliability to permit its introduction at trial." State v. Brooks, 638 P.2d at 537, 539 (Utah 1981). 2 Accord State v. Chapman, 655 P.2d 1119, 1121 (Utah 1982). Moreover, since it is the State that seeks to admit the preliminary hearing testimony on the basis of unavailability, the State bears the burden of establishing unavailability by competent evidence. See, e.g., People v. Williams, 93 Cal.App.3d 40, 155 Cal.Rptr. 414, 419 (1979); People v. District Court of Colorado, 667 P.2d 1384, 1390 (Colo.1983). State v. Webb, 779 P.2d 1108, ---- (Utah 1989).
Whether a witness is "unavailable," is controlled by Utah R.Evid. 804(a) which provides:
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of his statement; or
(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
In determining unavailability, the focus is not on the unavailability of the witness per se, but on the unavailability of his or her testimony. See, e.g., Thomas v. Cardwell, 626 F.2d 1375, 1385 (9th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981); State v. Thomas, 110 Ariz. 120, 515 P.2d 865, 871 (1973).
For ease of discussion, we set forth the victim's limited trial testimony, which provides in relevant part:
Q. Are you related to the defendant here, Eddie Walter Barela?
A. Yes.
Q. Is he your brother?
A. Yes.
Q. Do you remember testifying at a preliminary hearing in the circuit court on the same matter?
A. What's that?
Q. Do you remember testifying once before about this case over in the circuit court?
A. I don't know.
Q. Okay. You can just say yes or no. Do you remember that or not?
A. Did I come to court--
Q. Yes.
A. --Before?
Q. Do you remember coming to court and testifying in this same matter?
A. Yeah.
Q. Do you?
A. I think so.
Q. Do you understand why we're here today and the charge against your brother?
A. I don't know. I--I don't know.
Q. Let me ask you some of the same questions you were asked before at that other hearing. First, let me ask you, did you have a pregnancy terminated recently by an abortion?
A. I went to the hospital once, but they didn't tell me what for.
Q. Did you have an abortion?
A. My mother just said I had to go get a little operation.
Q. Okay. Your mother told you you had to get a little operation?
A. Uh-huh.
Q. Okay. Who got you pregnant?
A. Do I have to answer these stupid--
The trial court then took a brief recess. Following the recess, the court stated:
[The victim] has taken the stand, has testified, that she is suffering from a substantial debilitating condition resulting from, by the doctor's testimony, of cerebral palsy. Because of the circumstances surrounding that and her emotion at this time, I'm not going to require her to testify further. I'm going to excuse both her and [her mother].
Based on the foregoing, the trial court found the victim unavailable under Rule 804(a)(2), (3), and (4). We address each separately.
Rule 804(a)(2) provides that a witness is unavailable when he or she refuses to testify despite an order from the court directing the witness to do so. We are unable to find relevant Utah authority interpreting subsection 804(a)(2). However, it is clear that a witness who "though present--refused to testify is just as surely 'unavailable' as the witness who stepped across a state line to avoid service of a subpoena." Johnson v. People, 152 Colo. 586, 384 P.2d 454, 457 (1963), cert. denied, 376 U.S. 922, 84 S.Ct. 682, 11 L.Ed.2d 617 (1964). The State argues that the victim's reluctant responses to several questions at trial can be equated with a refusal to testify.
We believe the operative term in Rule 804(a)(2) is "persists,...
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