State v. Rhinehart, 20050553-CA.

• Decision Date: 29 December 2006
• Docket Number: No. 20050553-CA.,20050553-CA.
• Citation: 2006 UT App 517,153 P.3d 830
• Parties: STATE of Utah, Plaintiff and Appellee, v. Tamara RHINEHART, Defendant and Appellant.
• Court: Utah Court of Appeals

153 P.3d 830

2006 UT App 517

STATE of Utah, Plaintiff and Appellee, v. Tamara RHINEHART, Defendant and Appellant.

No. 20050553-CA.

Court of Appeals of Utah.

December 29, 2006.

David M. Perry, Perry Malmberg & Perry, Logan, for Appellant.

Mark L. Shurtleff, Attorney General, and Erin Riley, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges GREENWOOD, BILLINGS, and McHUGH.

GREENWOOD, Associate Presiding Judge:

¶ 1 Defendant Tamara Rhinehart was convicted after a jury trial of burglary, a second degree felony, in violation of Utah Code section 76-6-202, see Utah Code Ann. § 76-6-202 (2003), and theft, a second degree felony, in violation of Utah Code section 76-6-404. See id. § 76-6-202 (2003). She appeals from the (1) denial of her motion to quash bind-over, (2) overruling of her objection to the order of trials, and (3) overruling of her objection to the use of hearsay evidence at trial. We affirm.¹

BACKGROUND²

¶ 2 Sometime after June 5, 2003, Defendant and her boyfriend, Craig Nicholls, stole a safe belonging to Defendant's aunt, Sue Davis. Davis kept the safe, which contained approximately $6500, in her apartment. To accomplish the theft, Defendant lured Davis out of her home while Nicholls stole the safe. During roughly the same time period, Defendant told her hair dresser, Marne Christianson, that she and Nicholls stole a safe containing $5000, that Nicholls stole it from someone's house after Defendant had lured the owner out of the home, and that they dumped the safe in a parking lot after cracking it open. Defendant also told Jessica Goalen, a nanny who she employed, that she and Nicholls stole a safe containing a large sum of money, that the theft was "just like [the film] The Italian Job" in that it was "really slick . . . [i]n and out," and that Defendant and Nicholls cracked the safe open and then left it in a field.

¶ 3 The facts surrounding the theft and burglary came to light while Defendant and Nicholls were being investigated for a related charge of murder. Nicholls pleaded guilty to the murder in exchange for a sentence of life without parole. The State agreed to drop any remaining charges against Nicholls, and he agreed to "fully cooperate with the State in their prosecution of [his] co-defendant, Tamara Rhinehart . . . by truthfully disclosing all aspects of [their] planning and carrying out" the murder. During a subsequent police interview that was primarily focused on the murder charge, Nicholls briefly discussed his and Defendant's participation in the burglary and theft. Nicholls told police that he and Defendant devised a plan whereby Defendant would take Davis out to eat, and while they were gone, Nicholls would steal Davis's safe.

¶ 4 The police charged Defendant with burglary, theft, and murder. At Defendant's preliminary hearing on all of the charges, Nicholls invoked his Fifth Amendment right against self-incrimination and was therefore unavailable to testify. The State then presented into evidence the transcript of Nicholls's police interview as evidence of Defendant's role in the crimes charged. The State also introduced a sworn statement from Davis and a transcript of a telephone interview with Christianson. There was no other evidence introduced at the preliminary hearing to implicate Defendant in the burglary and theft charges.

¶ 5 Defendant was bound over on all charges and subsequently requested severance of the charges for trial. Defendant also moved to quash the bindover on grounds that hearsay was wrongly admitted at the preliminary hearing. The trial court agreed to sever the burglary and theft charges from the murder charge, but denied Defendant's motion to quash. Defendant also moved to have the burglary and theft trial held after the murder trial. However, that motion was denied.

¶ 6 During the burglary and theft trial, defense counsel asked the investigating officer, Detective Bennett, on cross-examination whether he spoke to anyone about the existence of the missing safe: "You never determined that there is another person on this planet that ever saw a safe in the possession of Sue Davis, correct?" Detective Bennett responded, "Correct." On re-direct examination, the prosecutor asked several follow up questions:

Q. Did you talk to Craig Nicholls about a safe?

A. Yes, I did.

. . . .

Q. Did he tell you anything that would lead you to believe whether or not Sue Davis had a safe?

A. Yes.

Q. And what was that?

A. Well, at the time he described the area that he had gone to to retrieve the safe.

Q. And what did he describe?

A. He described coming into the valley. . . . He described the Sear's store which is located down by Macey's at the south end of Logan. . . . He described that he was to go into a home because there was an aunt of Tam[a]ra Rhinehart who possessed a safe with some money in that safe. That he would go into that home to take that safe out while Tam[a]ra Rhinehart took the family members to lunch or dinner.

¶ 7 Defense counsel objected to Detective Bennett's response on grounds that it contained hearsay, but the trial court overruled the objection, accepting the State's argument that defense counsel had opened the door to the testimony. At the conclusion of the trial, the jury convicted Defendant on both counts. Defendant subsequently moved for a new trial. That motion was denied. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Defendant claims that the trial court should have granted her motion to quash the bindover because hearsay evidence was improperly permitted at the preliminary hearing. The determination of whether to bind a defendant over for trial generally involves a mixed question of law and fact, which requires this court to afford some deference to the trial court. See State v. Virgin, 2006 UT 29, ¶ 26, 137 P.3d 787. However, when a case presents only a question of law, namely whether hearsay used at the preliminary hearing was admissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), or reliable under rule 1102 of the Utah Rules of Evidence, this court will review the bindover determination for correctness giving no deference to the trial court. See State v. Graham, 2006 UT 43, ¶ 16 n. 7, 143 P.3d 268.

¶ 9 Defendant also argues that the trial court erred in refusing to hold the murder trial before the burglary and theft trial. We review a claim regarding the administration of a trial court's docket for abuse of discretion. See Walker Drug Co. v. LaSal Oil Co., 972 P.2d 1238, 1244 (Utah 1998) ("Rule 42(b) of the Utah Rules of Civil Procedure gives the trial court `considerable discretion' to administer the business of its docket and determine how a trial should be conducted."); Morton v. Continental Baking Co., 938 P.2d 271, 275 (Utah 1997) ("A trial judge is given a great deal of latitude in determining the most fair and efficient manner to conduct court business.").

¶ 10 Finally, Defendant argues that hearsay evidence should not have been allowed at trial because it was prejudicial and the trial court incorrectly ruled that the "door had been opened." "Our standard of review on the admissibility of hearsay evidence is complex, since the determination of admissibility `often contains a number of rulings, each of which may require a different standard of review.'" State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639 (quoting Norman H. Jackson, Utah Standards of Appellate Review, 12 Utah Bar J. 8, 38 (1999)). Legal questions regarding admissibility are reviewed for correctness, and questions of fact are reviewed for clear error. See id. And, "[f]inally, we review the district court's ruling on admissibility for abuse of discretion." Id.

ANALYSIS

I. Whether the Trial Court Erred in Denying Defendant's Motion to Quash Bindover

¶ 11 Defendant argues that the trial court should have granted her motion to quash the bindover because the State presented inadmissible hearsay at the preliminary hearing, and without the hearsay, there would have been no evidence to support a finding of probable cause. See State v. Virgin, 2006 UT 29, ¶ 17, 137 P.3d 787 (holding that at a preliminary hearing, the State must establish probable cause with "evidence sufficient to support a reasonable belief that the defendant committed the charged crime"). Specifically, Defendant claims that hearsay should not have been allowed at her preliminary hearing because Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); the Sixth and Fourteenth Amendments to the United States Constitution, see U.S. Const. amend. VI, XIV; Article I Sections 12 and 13 of the Utah Constitution, see Utah Const. art. I, §§ 12-13; and "due process rights both federal and state in origin" provide criminal defendants with the right to confront and cross-examine the witnesses against them at preliminary hearings. In the alternative, Defendant argues that hearsay should not have been admitted at her preliminary hearing because it was unreliable and, therefore, inadmissible under Article I Section 12 of the state constitution or rule 1102 of the Utah Rules of Evidence. See Utah Const. art. I, § 12; Utah R. Evid. 1102.

A. Whether Crawford Applies at Preliminary Hearings

¶ 12 The Sixth Amendment to the Constitution states, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. This provision, also known as the "Confrontation Clause," was recently the focus of the United States Supreme Court decision, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). There, the Court held that testimonial statements by witnesses absent at trial may only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. See id. at 59, 68, 124 S.Ct. 1354. Although the Supreme Court in Crawford provided an exhaustive discussion of the...