State v. Lopez, 081820 UTSC, 20180940

Docket Nº20180940, 20180945, 20180952, 20190272
Opinion JudgeLEE, ASSOCIATE CHIEF JUSTICE
Party NameState of Utah and L.L., Appellants, v. Ivan Michael Lopez, Appellee. State of Utah, Appellee, v. Darin Chase Nielsen, Appellant.
AttorneySean D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Sol. Gen., Clint T. Heiner, Donna Kelly, Lance E. Bastian, Salt Lake City, for the State of Utah Paul Cassell, Heidi Nestel, C. Bethany Warr, Salt Lake City, for appellant L.L. Alexandra S. McCallum, Salt Lake City, for appellee Ivan Michael Lope...
Judge PanelASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, AND JUSTICE PETERSEN joined.
Case DateAugust 18, 2020
CourtSupreme Court of Utah

2020 UT 61

State of Utah and L.L., Appellants,

v.

Ivan Michael Lopez, Appellee.

State of Utah, Appellee,

v.

Darin Chase Nielsen, Appellant.

Nos. 20180940, 20180945, 20180952, 20190272

Supreme Court of Utah

August 18, 2020

Heard April 8, 2020

On Consolidated Appeal of Interlocutory Orders Third District, Salt Lake The Honorable James T. Blanch No. 181907088 Fourth District, Provo The Honorable Robert C. Lunnen No. 181100038

Sean D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Sol. Gen., Clint T. Heiner, Donna Kelly, Lance E. Bastian, Salt Lake City, for the State of Utah

Paul Cassell, Heidi Nestel, C. Bethany Warr, Salt Lake City, for appellant L.L.

Alexandra S. McCallum, Salt Lake City, for appellee Ivan Michael Lopez

Dallas Young, Douglas J. Thompson, Provo, for appellant Darin Chase Nielsen

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, AND JUSTICE PETERSEN joined.

OPINION

LEE, ASSOCIATE CHIEF JUSTICE

¶1 Ivan Michael Lopez and Darin Chase Nielsen each stand accused of engaging in illicit activities with children. Lopez is charged with furnishing alcohol to, raping, and otherwise sexually abusing a twelve-year-old girl (L.L.) in the back of his truck. Nielsen is charged with sexually abusing his five-year-old daughter (A.N.) while alone with her in a bedroom.

¶2 L.L. and A.N. each participated in interviews about their alleged abuse at the Children's Justice Center (CJC). These interviews were later introduced (along with other evidence) as "reliable hearsay" at Lopez's and Nielsen's preliminary hearings in accordance with rule 1102 of the Utah Rules of Evidence and rule 15.5 of the Utah Rules of Criminal Procedure. Both Lopez and Nielsen sought to compel their alleged victims to testify by way of subpoena, each asserting a right to do so under rule 7B of the Utah Rules of Criminal Procedure and the Compulsory Process Clause of article I, section 12 of the Utah Constitution.

¶3 In the Lopez case, the State and L.L. moved to quash the subpoena, but the magistrate denied the motions, opting instead to modify the manner in which L.L. would be required to testify. In the Nielsen case, the magistrate granted the State's motion to quash the subpoena. We agreed to hear the cases on interlocutory appeal, in recognition of the need for guidance from this court on the clash between the rights of defendants and victims in a preliminary hearing. We resolve both cases in this consolidated opinion.

¶4 We hold that any power a defendant has to subpoena witnesses at a preliminary hearing-whether under the rules of criminal procedure or the constitution-must be understood in light of the prerogative of the court to "quash or modify [a] subpoena if compliance would be unreasonable." Utah R. Crim. P. 14(a)(2). And we conclude that the unreasonableness inquiry must account for the circumscribed function of the preliminary hearing (to determine whether there is probable cause to justify bindover) as well as the limited burden of proof on the State and the established rights of victims at such a hearing. Thus, we hold that once the State has used a victim's reliable hearsay to make a prima facie showing of probable cause, a subpoena compelling the victim1 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 showing of probable cause. Since neither Lopez nor Nielsen attempted to explain how his alleged victim's additional, live testimony would inform the probable cause determination, we reverse the Lopez court's refusal to quash L.L.'s subpoena and affirm the Nielsen court's decision to quash A.N.'s subpoena.

¶5 Part I lays out the facts and procedural background of the Lopez and Nielsen cases. Part II answers a threshold question raised in the Lopez case-whether an alleged victim has a right to seek an interlocutory appeal or lodge a direct appeal from a magistrate's denial of a motion to quash her subpoena. Part III sets forth the standard that governs such motions, as informed by the probable cause standard and the law protecting the rights of crime victims. Part IV then applies this standard to the facts of the Lopez and Nielsen cases. Part V concludes.

I. BACKGROUND2

A. Lopez

¶6 Lopez began communicating via phone call and text message with L.L. and her friend, C.D., by posing as a fifteen-year-old boy named "Giovanni." One night, L.L. told Lopez that she wanted to visit C.D., who was undergoing surgery at the hospital the next morning. Lopez told L.L. that he had a car and offered to drive her to C.D.'s house. L.L. accepted the offer and met Lopez for the first time in person at a local gas station. Instead of taking L.L. to C.D.'s house, however, Lopez drove to a residential neighborhood in Kearns, parked on a corner, and locked the doors. L.L. moved to the backseat to get away from him, but Lopez followed. He then offered L.L. marijuana and beer, which she later testified that she refused. Lopez drank a beer himself and threw the can out the window. He then undressed L.L., undressed himself, and got on top of her, vaginally penetrating her with his penis and placing his mouth on her breasts.3

¶7 A homeowner called the police after noticing two people sitting in the back of a parked truck and seeing something thrown from the vehicle. When the responding officer arrived, she found a beer can near the truck, the windows steamed up, and Lopez (then twenty-seven years old) and L.L. (then twelve years old) in the backseat. Both were shuffling their clothing, and Lopez had his underwear around one of his ankles under his pants.4 The officer testified that both occupants had their shirts inside out and smelled of beer. L.L. told the officer that they had been drinking.

¶8 After talking with the officer, L.L. received a sexual assault exam, in which she related some of the details of this encounter to a nurse. The nurse took photographs of red marks she noticed on L.L.'s breasts. Later, an investigating detective interviewed L.L. at the CJC, where L.L. gave the full story. The investigating detective also interviewed C.D., who said that L.L. had told her that she (L.L.) and Lopez had had sex.

¶9 The State charged Lopez with (1) rape of a child, 5(2) aggravated sexual abuse of a child, 6 and (3) furnishing alcohol to a minor.7 Before his preliminary hearing, Lopez served L.L. with a subpoena compelling her to testify. L.L. moved to quash the subpoena on the ground that forcing her to testify at the preliminary hearing would be "unreasonable" in light of her statutory and constitutional rights as a victim. Lopez responded that "[c]rime victims do not have a right under Utah law to refuse to testify at court hearings when they have been lawfully served with a subpoena." The court took L.L.'s motion under advisement and proceeded with the preliminary hearing.

¶10 In the State's case-in-chief, both the responding officer and investigating detective testified. Lopez cross-examined both. The State then played a video recording of L.L.'s CJC interview and introduced the results of L.L.'s sexual assault exam.

¶11 Once the State rested, the court heard arguments on L.L.'s motion to quash. Lopez argued that he was not required to explain what he expected L.L.'s live testimony to provide because he was "entitled" to "find out some more of the details" even if L.L.'s testimony ultimately supported rather than undermined probable cause.

¶12 The court agreed with Lopez and denied the motion to quash, holding that the subpoena was "not unreasonable under the facts and circumstances of this case." In particular, it noted L.L.'s "mature demeanor" and the fact that the courtroom would be relatively empty. The court admitted that it did not "see a likely basis that questioning the child victim in this case would defeat probable cause . . . where the State has met its burden for bindover during its prima facie case," but held that the defendant "need not show a particular likelihood that calling the child victim will defeat probable cause prior to exercising his right to call the child victim." The court justified its decision by reasoning that, under the low probable cause standard, "if defendants were required to make such a showing prior to subpoenaing and questioning witnesses, the Court would be required to quash defense witnesses' subpoenas in every case and defendants' right to call witnesses under rule 7B . . . would be illusory."8 Still, the court modified the subpoena so that Lopez would remain in the holding cell while L.L. testified, and it indicated that it might make further accommodations later on.

¶13 The parties agreed to continue the proceedings and both L.L. and the State petitioned for interlocutory review of the denial of the motion to quash. L.L. also filed a timely notice of direct appeal. We provisionally granted L.L.'s interlocutory appeal, granted the State's, and consolidated them with L.L.'s direct appeal (deferring a determination on our jurisdiction over the direct appeal).

B. Nielsen

¶14 The State's probable cause statement alleges that Nielsen "engaged in sex acts with his daughter, A.N." Specifically, the State claims that in a forensic interview at the CJC, A.N. described a "naughty game" that she and Nielsen would play on a bed. In this game, Nielsen would allegedly touch A.N.'s "bottom" with a "part" that was "round," the "color of skin," and close to his belly button, as well as touch A.N. between her legs with his hands. The State is charging Nielsen with two counts of aggravated sexual abuse of a child with a prior grievous sex...

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