State v. Timmerman, 20080206.

• Citation: 218 P.3d 590,2009 UT 58
• Decision Date: 04 September 2009
• Docket Number: No. 20080206.,20080206.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Travis Dee TIMMERMAN, Defendant and Appellant.
• Court: Supreme Court of Utah

218 P.3d 590

2009 UT 58

STATE of Utah, Plaintiff and Appellee, v. Travis Dee TIMMERMAN, Defendant and Appellant.

No. 20080206.

Supreme Court of Utah.

September 4, 2009.

[218 P.3d 592]

Mark L. Shurtleff, Att'y Gen., J. Frederic Voros, Jr., Laura B. Dupaix, Asst. Att'ys Gen., for plaintiff.

Richard G. Uday, Jason A. Schatz, Salt Lake City, for defendant.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Travis Timmerman was charged with attempted rape, forcible sexual abuse, and assault. At the preliminary hearing, the victim, Mrs. Timmerman, invoked her spousal privilege not to testify against her husband. The State then introduced into evidence Mrs. Timmerman's previous statements to the police and to a sexual assault nurse. With those statements, the magistrate bound Mr. Timmerman over for trial. Mr. Timmerman subsequently filed a motion to quash the bindover. The district court denied the motion and held that the admission of Mrs. Timmerman's statements did not violate Mr. Timmerman's constitutional rights or Mrs. Timmerman's spousal testimonial privilege. Mr. Timmerman now appeals the district court's denial of his motion. We are asked to consider whether the Confrontation Clauses of the United States Constitution and Utah Constitution apply to preliminary hearings and whether the spousal testimonial privilege embodied in the Utah Constitution applies to a spouse's voluntary, out-of-court statements. We affirm the trial court.

BACKGROUND

¶ 2 During the early morning hours of June 30, 2007, the Timmermans' neighbor heard a woman screaming "Stop it!" and "Help me!" The neighbor thought the screams came from the Timmermans' house. Around 7:00 a.m., the neighbor notified the police. Officer McLelland responded and spoke with Mrs. Timmerman. During their conversation, Officer McLelland observed bruises on her arms and face. He asked Mrs. Timmerman to fill out a witness statement. In her three-page statement, Mrs. Timmerman wrote that Mr. Timmerman repeatedly hit her and tried to force her to have anal and vaginal intercourse.

¶ 3 Another police officer, Detective Harding, interviewed Mrs. Timmerman and asked her to submit to a sexual assault examination at the hospital. When Mrs. Timmerman arrived at the hospital, a sexual assault nurse examined her and filled out a Sexual Assault Nurse Examination (SANE) report. In the report, the nurse cataloged Mrs. Timmerman's bruises and her statements that Mr. Timmerman hit her and tried to have forced sex with her.

¶ 4 Mr. Timmerman was charged with attempted rape, a first-degree felony; forcible sexual abuse, a second-degree felony; and assault, a class B misdemeanor.¹ At the preliminary hearing, the State called Mrs. Timmerman as a witness, but she invoked her spousal privilege not to testify against her husband. Instead, Officer McLelland and Detective Harding testified for the State, and the State introduced Mrs. Timmerman's witness statement and SANE report. Mr. Timmerman objected to the admission of the statement and the report on the grounds that they violated Mrs. Timmerman's spousal privilege and Mr. Timmerman's confrontation rights under the federal and state constitutions. The magistrate admitted both documents and bound Mr. Timmerman over for trial.

¶ 5 In his motion to quash the bindover before the district court, Mr. Timmerman argued that his confrontation rights under the federal and state constitutions were violated because he could not cross-examine Mrs. Timmerman at the preliminary hearing regarding her out-of-court statements. He also argued that the magistrate had ignored Mrs. Timmerman's spousal privilege when he admitted her out-of-court statements into evidence. Without Mrs. Timmerman's statements, there was insufficient evidence to bind Mr. Timmerman over for trial on the attempted rape charge. The district court held that confrontation rights under the federal and state constitutions do not apply to preliminary hearings and that out-of-court statements made by spouses to third parties are not excluded under the spousal testimonial privilege.

¶ 6 Mr. Timmerman subsequently filed this interlocutory appeal. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(h) (2008).

STANDARD OF REVIEW

¶ 7 Interpretations of federal and state constitutions are questions of law. Grand County v. Emery County, 2002 UT 57, ¶ 6, 52 P.3d 1148. When the review of a district court's denial of a motion to quash a bindover implicates questions of law, we review for correctness, giving no deference to the district court's legal conclusions. See State v. Rhinehart, 2006 UT App 517, ¶ 8, 153 P.3d 830.

ANALYSIS

¶ 8 Mr. Timmerman argues that the right to confrontation in preliminary hearings is guaranteed by the Sixth Amendment of the United States Constitution and by article 1, section 12 of the Utah Constitution. He also argues that the spousal testimonial privilege found in the Utah Constitution prevents the use of out-of-court, voluntary statements.

I. THE CONFRONTATION CLAUSES OF THE UNITED STATES CONSTITUTION AND THE UTAH CONSTITUTION DO NOT APPLY TO PRELIMINARY HEARINGS

A. The Sixth Amendment Does Not Require Confrontation at State Preliminary Hearings

¶ 9 The Sixth Amendment of the United States Constitution, which applies to both federal and state criminal prosecutions, grants the accused "the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. See Crawford v. Washington, 541 U.S. 36, 40, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Recently, the Supreme Court held in Crawford that the Sixth Amendment right to confrontation applies to out-of-court testimony admitted into evidence at trial. 541 U.S. at 67, 124 S.Ct. 1354. A party can only introduce a witness's testimonial statements into evidence if the witness is unavailable to testify at trial and the opposing party had a prior opportunity to cross-examine. Id. at 68, 124 S.Ct. 1354. To reach this holding, the Court traced the historical development of confrontation rights. The Court referenced confrontation rights in pretrial proceedings in its comprehensive historical analysis, but the narrow issue before the Court was whether the accused's confrontation rights were violated at trial. Id. at 38, 124 S.Ct. 1354. The Court resolved the issue by defining the scope of confrontation rights at trial. Id. at 67-68, 124 S.Ct. 1354. Mr. Timmerman now argues that Crawford extends to preliminary hearings. We disagree.

¶ 10 Crawford's holding does not extend to preliminary hearings in state proceedings. In State v. Rhinehart, the court of appeals held that Sixth Amendment confrontation rights apply only to trials and not to Utah's preliminary hearings. 2006 UT App 517, ¶ 14, 153 P.3d 830. It reasoned that Crawford's "exhaustive discussion of the Confrontation Clause ... never indicated that [the clause] applies at preliminary hearings." Id. ¶ 12. Also, the court of appeals emphasized that the discussion in Crawford never expressly stated that the Supreme Court overruled its precedent limiting Sixth Amendment confrontation rights to trial. Id. ¶ 13; see also Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality opinion) ("The opinions of this Court show that the right to confrontation is a trial right. ..."); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ("[I]t is this literal right to `confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause."); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) ("The right to confrontation is basically a trial right."). Additionally, the court of appeals relied on the Supreme Court's decision in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), to reason that allowing confrontation rights at preliminary hearings would not significantly increase the reliability of the probable cause determination. Rhinehart, 2006 UT App 517, ¶ 13, 153 P.3d 830.

¶ 11 Mr. Timmerman argues that the decision in Rhinehart was incorrect and should be reversed. He faults the court of appeals for its reliance on two Supreme Court cases: Pennsylvania v. Ritchie, and Gerstein v. Pugh. Specifically, Mr. Timmerman argues that the court of appeals improperly relied on Ritchie because it was a plurality opinion. However, in citing to Ritchie, the court of appeals also cited to two majority opinions, Barber v. Page and California v. Green, that explicitly limited confrontation rights to trial. We agree with the court of appeals that Barber, Green, and Ritchie establish Supreme Court precedent confining the Sixth Amendment Confrontation Clause to trial.

¶ 12 Mr. Timmerman also asserts that the court of appeals improperly relied on Gerstein. He argues first that the case is not on point, but that if it is on point, language therein supports full rights of confrontation at preliminary hearings because the opinion contemplates a difference between the nature of a probable cause determination at an arraignment as opposed to a preliminary hearing. See 420 U.S. at 119-20, 95 S.Ct. 854. We disagree with Mr. Timmerman's interpretation of Gerstein for three reasons. First, Gerstein failed to clarify the relevant differences between an arraignment and a preliminary hearing. Importantly, the Court did not discuss whether the difference requires an accused to have confrontation rights at a preliminary hearing. At most, the Court observed only that "adversary procedures are customarily employed" in preliminary hearings; it did not go any further to require that such procedures be used. Id. at 120, 95 S.Ct. 854. Second, our recent case law establishes that there is no difference between the probable cause determinations in arraignments and in preliminary hearings. See, e.g., State v. Virgin, 2006 UT 29, ¶ 18, 137 P.3d 787 ("[T]he probable cause that the...