State v. Goins
| Decision Date | 24 March 2016 |
| Docket Number | No. 20140009–CA.,20140009–CA. |
| Citation | 370 P.3d 942 |
| Parties | STATE of Utah, Appellee, v. Desean Michael GOINS, Appellant. |
| Court | Utah Court of Appeals |
Richard G. Uday, Salt Lake City, for Appellant.
Sean D. Reyes and Kris C. Leonard, Salt Lake City, for Appellee.
Opinion
ORME
, Judge:
¶ 1 Desean Michael Goins (Defendant) was convicted of aggravated assault, a third degree felony, see Utah Code Ann. § 76–5–103
(LexisNexis Supp. 2015), and threatening with or using a dangerous weapon in a fight, a class A misdemeanor, see id. § 76–10–506.2 Defendant now appeals both convictions, arguing that the trial court erroneously found that a witness was unavailable and allowed the witness's prior testimony to be used against Defendant on that basis. Because there was no error in the trial court's determination of unavailability, and because Defendant had the opportunity to cross-examine the witness when he gave his prior testimony, we affirm.
¶ 2 One morning in July 2013, Defendant and his girlfriend set off on a search in downtown Salt Lake City with a very specific goal: to find a homeless man (Witness) whom Defendant believed had stolen his cell phone. They found Witness outside a homeless shelter for men. With knife in hand, Defendant confronted Witness, who denied taking the phone and hurried away.
¶ 3 The couple then made their way to Pioneer Park, a traditional haunt of Salt Lake's homeless denizens, where one of Witness's friends (Victim), also a homeless man, was sleeping on his blanket. Defendant's girlfriend woke Victim and asked if he had seen Witness. Defendant, waving the knife he still carried, complained that Witness had stolen his phone. When Defendant encroached on Victim's personal space, Victim pushed Defendant off the blanket. An altercation ensued, during which Defendant bit off Victim's earlobe. Both men stood up and squared off once again, and Defendant then retrieved his knife, which he had dropped during the scuffle, and stabbed Victim under the left arm. Soon thereafter, police arrived and arrested Defendant. Defendant was later charged in connection with the assault of Victim and the brandishing of the knife against Witness.3
¶ 4 Prior to the preliminary hearing, the prosecution asked Salt Lake City police bike patrols to locate Victim and Witness. The officers were able to locate both men, who spent much of their time together, "based primarily on a description of [Victim's] missing earlobe," even though they did not have a description of Witness. Victim and Witness arrived together at the preliminary hearing with a pastor from a church both men regularly visited. The prosecution seized the opportunity to keep more regular contact with both men through the pastor,4 a man who had the trust of both Witness and Victim.
¶ 5 The prosecution regularly followed up with the pastor and emailed him the trial information for him to pass along to Witness and Victim. The pastor verified that the two men received the notification. A few weeks before trial, the pastor informed the prosecution that Witness had gotten into some trouble, been jailed, and fallen out with Victim. After receiving this information, the prosecutor contacted the jail, but Witness had already been released. From that time forth, neither Victim nor the pastor, both of whom knew Witness well and could recognize him by sight, saw or heard from Witness, and no one saw Witness with his former friends or in his former hang-outs. On the eve of trial, the prosecution contacted the jail to see if Witness was incarcerated again, but he was not.
¶ 6 Trial was scheduled to begin on October 23, 2013, but was continued one day because no jury had been called for that date. At that time, the prosecution asked the trial court to declare Witness unavailable because Witness did not appear for trial and the prosecution was unable to locate him. The prosecution also asked the trial court to admit Witness's preliminary hearing testimony during the trial. Over an objection raised by Defendant's counsel that Witness "was not ‘unavailable,’ " the trial court granted the motion and indicated that it would allow the preliminary hearing testimony at the rescheduled trial. At trial, which began the following day, the jury convicted Defendant of aggravated assault, for the attack on Victim, and of threatening with a dangerous weapon during a fight, for his confrontation of Witness. Defendant appeals, and we affirm.5
¶ 7 Defendant argues that the trial court erred in finding Witness to be unavailable under rule 804 of the Utah Rules of Evidence
and in permitting Witness's preliminary hearing testimony to be admitted under that rule as prior testimony. Anderson v. Larry H. Miller Commc'ns Corp., 2015 UT App 134, ¶ 17, 351 P.3d 832 (citations and internal quotation marks omitted). "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. Poole, 2010 UT 25, ¶ 8, 232 P.3d 519.
¶ 8 We note, preliminarily, that a statement is hearsay if (1) the witness made the statement outside of the current trial or hearing and (2) a party offers the statement "to prove the truth of the matter asserted in the statement." Utah R. Evid. 801(c)(1)–(2)
. Hearsay is inadmissible, unless an exception applies. See id. R. 802. It is the interpretation and application of one such exception—the admission of prior testimony by an unavailable potential witness—that we address in this opinion. See id. R. 804(b)(1).
¶ 9 Utah law requires that the party offering evidence in the form of witness testimony make reasonable efforts to procure the witness's testimony at trial. Id. R. 804(a)(5)
. ... State v. Menzies, 889 P.2d 393, 402 (Utah 1994) (citations omitted).
¶ 10 But "[a] good faith search does not mean that every lead, no matter how nebulous, must be tracked to the ends of the earth." Poe v. Turner, 490 F.2d 329, 331 (10th Cir.1974)
(). In essence, although a party must make every reasonable effort to procure the in-court testimony of the witnesses that the party wishes to use, the party is not, as the State puts it, required to do "everything humanly possible" to do so. Thus, "Rule 804(a)(5) does not require a patently futile attempt to serve a subpoena on a potential witness ... whose physical location and address are completely unknown." Brown v. Harry Heathman, Inc., 744 P.2d 1016, 1018 (Utah Ct.App.1987). See also State v. Carter, 888 P.2d 629, 645–46 (Utah 1995) (), abrogated by statute on other grounds as recognized by Archuleta v. Galetka, 2011 UT 73, ¶ 70, 267 P.3d 232.
¶ 11 In State v. Drawn, 791 P.2d 890 (Utah Ct.App.1990)
, we concluded that the prosecutor's efforts to obtain two witnesses' testimony were reasonable. In that case, the prosecution subpoenaed the witnesses three times before trial; spoke with and was assured of the presence of one witness at trial by that witness's mother; visited the last known address of the other witness, but discovered that the witness had moved without leaving a forwarding address; questioned police informants; and searched police files for evidence of the whereabouts of the missing witness. Id. at 893
. Under such circumstances, we held that the prosecution's "efforts compl[ied] with the hearsay exception unavailability requirements." Id. On the other hand, in State v. Chapman, 655 P.2d 1119 (Utah 1982), the Utah Supreme Court concluded that the prosecutor's efforts to locate a witness were unreasonable and the witness was not unavailable "where efforts to secure the witness's attendance [were] cursory, where the party had clear indications that the witness would not attend or where the party had obvious means of obtaining those indications but neglected to do so." Id. at 1122. See also id. at 1124–25 ().
¶ 12 The instant case is much more like the events in Drawn than those discussed in Chapman. As in Drawn, but unlike in Chapman, the prosecution in this case went to considerable effort to obtain Witness's testimony at trial. Prior to the preliminary hearing, the prosecution sent out police bike patrols to locate Victim and Witness, and the officers located both men, even though they were part of Salt Lake City's large homeless population, based mostly on Victim's unfortunate lack of one earlobe. There was nothing as distinctive in Witness's appearance, but luckily for the prosecution, Witness was often in the company of Victim. The two were homeless, presenting obvious challenges to staying in touch, but when Victim and Witness arrived together at the preliminary hearing with the pastor, whom both men trusted, the...
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