State v. Leech

• Decision Date: 13 August 2020
• Docket Number: No. 20160995-CA,20160995-CA
• Citation: 473 P.3d 218
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Appellee, v. Christopher Kim LEECH, Appellant.

473 P.3d 218

STATE of Utah, Appellee,

v. Christopher Kim LEECH, Appellant.

No. 20160995-CA

Court of Appeals of Utah.

Filed August 13, 2020

Debra M. Nelson, Wojciech S. Nitecki, Lacey C. Singleton, and Melissa G. Stirba, Attorneys for Appellant

Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

HAGEN, Judge:

¶1 As payback for a drug deal gone wrong, Christopher Kim Leech allegedly robbed and kidnapped two men, forced one to shoot the other, and then directed his cohorts to cover up the crimes. Leech was ultimately convicted on two counts of aggravated kidnapping, two counts of aggravated robbery, one count of aggravated murder, and one count of obstruction of justice. Leech appeals his convictions, arguing that the district court erroneously admitted the preliminary hearing testimony of a witness who refused to testify at trial. We agree with Leech that the preliminary hearing testimony was not admissible under rule 804(b)(1) of the Utah Rules of Evidence because the defense did not have a similar motive and opportunity to develop the witness's testimony at the preliminary hearing as it would have had if the witness had testified at trial. We further conclude that the admission of this testimony prejudiced his defense with respect to his conviction for obstruction of justice, but not his remaining convictions. Accordingly, we affirm his convictions for aggravated kidnapping, aggravated robbery, and aggravated murder, but reverse and remand for a new trial on the obstruction of justice count.

BACKGROUND

The Crimes¹

¶2 In late November 2013, a drug middleman (the middleman) was contacted by an old friend from high school (the dealer) who requested "a quarter pound" of methamphetamine because the middleman could "get it cheaper" than she could. The dealer gave the middleman $2,200 and a rental car to pick up the methamphetamine. The middleman's source for methamphetamine had only two of the four ounces that the dealer needed, but the source promised the middleman he would deliver the other two ounces the following day. But when the next day came, the middleman could not get ahold of his source. Meanwhile, the dealer was growing increasingly impatient. She told the middleman that her customers were waiting and that "[he] needed to hurry up."

¶3 The middleman contacted his best friend (the victim) who "said that he could get ... [t]he other two ounces" but that "it was going to be a little bit more expensive." The middleman gave the remaining cash and the rental car to the victim so that the victim could obtain the additional two ounces. The two ounces of methamphetamine that the middleman had already acquired were still hidden in the trunk of the rental car.

¶4 For the next few hours, the middleman "dodged" the dealer's phone calls and waited for the victim to come back with the drugs. Eventually, after hearing nothing from the victim, the middleman called the dealer and told her that she needed to pick him up.

¶5 After picking up the middleman, the dealer drove him to her mother's house (the house), where they waited until her boyfriend, known as T.J., arrived. T.J., the dealer, and the middleman then drove around surrounding neighborhoods looking for the victim. The dealer "was a little stressed out" and told the middleman that she "was just tired of people ripping her off." They could not find the victim, so they returned to the house and smoked methamphetamine in the garage.

¶6 After a while, the dealer "heard a truck pull up" and told the middleman, "[W]e need to figure this out because [Leech is] here and he [is] going to freak out."² Sure enough, Leech went into the garage, "pulled out a gun," and asked the middleman "what was going on" and "what the problem was." The middleman said that he "was taking care of it," but Leech, gun still in hand, told the middleman that "it didn't seem like [he] was taking care of shit and that if [he] didn't get it taken care of it was [his] ass."

¶7 Leech kept the middleman in the garage while the dealer continued to look for the victim. There were other people in the house during this time. One of the witnesses testified that when the middleman tried to come inside the house to use the restroom, Leech and T.J. put "guns in [his] face" and "shov[ed] him back into the garage." According to the witness, Leech said he "[could]n't wait until he f[ound]" the victim because "he was going to make [the middleman and the victim] pay for what they did. That he was going to shoot [them] ... [b]ecause they took from [the dealer]." The witness testified that all the men present agreed and there "was a lot of adrenaline going."

¶8 Eventually, the dealer left the house with Leech, T.J., and the middleman and went to her uncle's apartment (the apartment). At some point, one of the dealer's sisters and her husband, known as Juice, joined them.³ While at the apartment, a cell phone rang with an incoming call from the victim. Leech handed the cell phone to Juice and had him tell the victim that "if he brought the car [back] right now, ... he gave his word nothing would happen to him." Juice told the victim to meet them at the apartment and gave him the address. As they waited for the victim to arrive, Leech "looked mad" and the middleman was "really quiet ... and he looked scared."

¶9 When the victim arrived at the apartment, Leech pointed his gun at the middleman and the victim and ordered them to lie on the floor. Juice pulled out a gun, too. At Leech's direction, T.J. retrieved some speaker wire from his truck and tied the middleman's and the victim's hands behind their backs while Leech took all their belongings from their pockets. Leech and T.J. then blindfolded the two men by making a hole in the hood of each man's sweatshirt and tying it to the zipper with speaker wire. They also removed the two men's shoes.

¶10 At Leech's direction, the middleman and the victim were led out of the apartment and forced into a truck. As they were leaving, Juice's wife asked what was going to happen to them. Leech told her, "[D]on't worry, nothing's going to happen to them. I'm going to have them ... walk down the mountain with their bare feet." Juice's wife told Leech that her husband was not going with him, but Leech responded by "pointing the gun towards [her,] and Juice automatically went out the door with Leech." She testified that "[w]hen they all left, [she] didn't think any of them," except Leech, "were coming back."

¶11 What happened next is based solely on the middleman's testimony. According to the middleman, T.J. drove him, the victim, Juice, and Leech up a canyon. On the way, the victim pleaded with Leech that "he didn't have to do this, just to let [them] go and [they] wouldn't say anything." But Leech told him to "[s]hut the fuck up, it's too late."

¶12 Once they reached their destination, Leech said he would take the victim and told Juice to take the middleman. They led the blindfolded men out of the truck and down a hill covered in dirt and ice. At the bottom of the hill, the middleman and the victim were forced to kneel at the top of an embankment. Someone released their blindfolds, and the victim turned to the middleman and said, "Sorry, bro, I guess this is it." Leech then shot the victim in the back. The middleman saw the victim roll down the embankment and heard him say, "I'm dead."

¶13 The middleman "tensed up and stared off ahead," just "waiting to get shot." Then someone cut his hands loose. Leech grabbed the middleman, pulled him to his feet, and said, "There is your homeboy .... Finish [him] or you're next." Leech held one gun to the back of the middleman's head and handed him a second gun with a single bullet in the chamber. The middleman pointed the gun at the victim and pulled the trigger, but the gun jammed. When he turned to hand the gun back to Leech, he saw Juice and T.J. standing behind him. Leech took the gun, reloaded it, and handed it back to the middleman. With Leech's gun still trained on him, the middleman shot the victim in the head and handed the gun back to Leech.

¶14 Just then, Leech saw headlights coming down the road at the top of the hill and told everyone to stop. Once the car passed, Leech said, "Let's go." T.J. led the way back up the hill with Juice, the middleman, and Leech following behind. At that point, the middleman saw that the other two men were armed with guns as well.

¶15 According to the middleman, Leech then orchestrated a plan to dispose of the evidence. Leech said that he would "take care of the guns" and told T.J. to detail clean his truck. Leech told the middleman that he should continue to look for the victim as if "nothing happened." When they got back to the house, Leech instructed the middleman to take a shower, leave his clothes outside the bathroom door, and change into fresh clothes that the dealer provided. When the middleman got out of the shower, his clothes were gone. A few days later, the dealer returned the middleman's cell phone to him, but "the call log and the text messages were deleted." The dealer told the middleman that she had asked Leech not to hurt him and was glad he was okay.

¶16 The middleman was arrested shortly thereafter on an unrelated weapons charge. After his girlfriend bailed him out of jail, he told her what had happened with the victim. The middleman's girlfriend called the FBI.

¶17 The middleman was already acquainted with the FBI because he had been working as a cooperator, providing information on the drug cartel that supplied him with methamphetamine. But when he was interviewed about the victim's murder, the middleman lied to the FBI about "everything" that had happened that day before the men left for the canyon. The middleman was interviewed by the FBI "three or four" times, during which he "changed [his] story a few times." At trial, the middleman claimed that he had lied in an attempt to "protect" the...