Certiorari to the Utah Court of Appeals
District, Salt Lake The Honorable Ann Boyden No. 131906358
D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Solic. Gen.,
Salt Lake City, for respondent
Herschel Bullen, Salt Lake City, for petitioner
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham and Justice Himonas joined.
Petitioner DeSean Goins challenges the court of appeals'
decision upholding the district court's admission at
trial of the preliminary hearing testimony of an unavailable
witness. Specifically, Goins argues that the court of appeals
erroneously concluded the unavailable witness's testimony
was properly admitted under rule 804 of the Utah Rules of
Evidence. Goins contends that because article I, section 12
of the Utah Constitution limits preliminary hearings to
establishing probable cause, his counsel did not have a
similar motive to develop testimony at the preliminary
hearing that she would have had at trial. We agree with Goins
and hold that the court of appeals erred when it affirmed the
admission of the witness's preliminary hearing testimony.
To reach that conclusion, we disavow our holding in State
v. Brooks that counsel always has the same motive to
develop testimony at a preliminary hearing that she will have
Admission of preliminary hearing testimony constituted error
with respect to Goins's misdemeanor conviction. But its
admission was harmless as to Goins's felony conviction.
We therefore affirm his felony conviction, reverse his
misdemeanor conviction, and remand.
In July 2012, Goins was a man on a mission: to find Gabriel
Estrada and recover the cell phone Goins believed Estrada had
stolen from him. Goins found Estrada outside a Salt Lake City
homeless shelter. Goins brandished a knife and confronted
Estrada. Estrada denied that he had taken Goins's phone
Goins resumed his search for his phone in Pioneer Park. He
found Jacob Omar, an Estrada associate, asleep on a blanket.
Goins and his girlfriend, Star, awakened Omar. Star asked
Omar if he had seen Estrada and, more specifically, if Omar
had seen Estrada with a phone. Both Star and Goins began
accusing Estrada of stealing Goins's cell phone.
During this conversation, Goins began waving the knife at
Omar and telling Omar that he "better tell the truth
because [Goins] knows that it was [Estrada] that took the
phone from [Goins's] apartment." At some point,
Goins stepped onto Omar's blanket. Omar testified,
"I don't allow anybody to step onto my blanket. So I
got up and I pushed him off my blankets."
Goins "came back at" Omar, and the two men
"started punching each other." Omar pinned Goins to
the ground. Goins latched onto Omar's earlobe with his
teeth, yanked his head back, bit off Omar's earlobe, and
spat it on the ground. Both men got up and Omar began chasing
Goins around his blanket. At some point, Goins picked up his
knife, and when Omar and Goins were on opposite sides of the
blanket, Goins lunged and stabbed Omar under his left arm.
Police officers soon arrived and arrested Goins. Goins was
eventually charged with one count of mayhem, a second-degree
felony in violation of Utah Code section 76-5-105, and two
counts of aggravated assault, both third-degree felonies in
violation of Utah Code section 76-5-103.
Both Estrada and Omar testified at a preliminary hearing.
Goins's counsel cross-examined Estrada without objection
by the State or apparent restriction by the judge.
Two months after the preliminary hearing, the parties
appeared for the first day of trial only to discover that
they had no jury pool and could not proceed that day. The
parties and the trial court agreed to continue the trial to
the following day. The prosecutor then reported that Estrada
had not appeared for trial and moved that he be declared
unavailable and that his preliminary hearing testimony be
admitted and read to the jury.
The prosecutor explained that he had difficulty locating both
Estrada and Omar and that the prosecution "ha[d] gone to
some lengths to try to procure [Estrada's]
attendance" at trial. The prosecution found Omar and
Estrada for the pretrial hearing through the Salt Lake City
Bike Police, who "were able to find them mostly based on
Jacob Omar's . . . missing earlobe." Estrada and
Omar had brought their pastor, Russ,  to the preliminary hearing.
At the hearing, Estrada and Omar agreed to allow the
prosecutor to "go through Russ to contact them"
with details regarding the trial.
In anticipation of trial, the prosecutor emailed Russ a
subpoena for Estrada and Omar, which detailed the trial date
and called for their presence at trial. Russ confirmed that
he gave a copy of the subpoena to both Estrada and Omar.
Sometime before trial, Russ left his position for a new job,
and Jason became the new community pastor.
Both Russ and Jason informed the prosecutor that
"Estrada ha[d] come into some trouble" and
"was in jail at one point." The prosecutor told the
district court that he had checked the jail about a week
before the October 23, 2013 trial. However, Estrada had been
released almost a month prior, on September 24.
Jason lost touch with Estrada before trial. Although the
prosecutor asked Jason to watch for Estrada, Jason did not
see him in the days leading up to trial.
Goins accepted the prosecutor's proffer of his efforts to
serve Estrada and procure his appearance at trial. Goins
argued that the prosecutor's efforts to serve Estrada
were insufficient under rule 804 of the Utah Rules of
Evidence, which allows for the admission of former testimony
when a witness is unavailable. Goins also argued that
permitting use of Estrada's preliminary hearing testimony
would violate Goins's constitutional right to
confrontation because the motive for cross-examination at the
preliminary hearing differed from the motivation to
cross-examine at trial.
The district court found that Estrada was unavailable under
rule 804. Specifically, the court found that the State
utilized a "reasonable means of process" as its
efforts succeeded in actually informing Estrada of the trial
dates. Estrada appeared at the preliminary hearing and knew
that the proceedings were moving forward. Next, the court
found that Goins enjoyed a meaningful opportunity for
cross-examination at the preliminary hearing where his
counsel actively examined Estrada without objection or
restriction and asked about the "exact incidents"
that were at issue at trial. The district court concluded
that Estrada's preliminary hearing testimony could be
used at trial without violating Goins's Confrontation
Estrada failed to appear again at trial the next day. Goins
unsuccessfully renewed his objection to admission of
Estrada's preliminary hearing testimony, and the jury
heard an audio tape of Estrada's preliminary hearing
testimony relating Goins's encounter with Estrada.
The prosecution presented separate evidence relating to
Goins's altercation with Omar. The jury heard from three
witnesses: Omar, an eyewitness, and a responding police
officer. The prosecution also presented photos depicting
Goins's and Omar's injuries.
The jury acquitted Goins of the mayhem charge. It returned a
guilty verdict for the count of felony aggravated assault for
the stabbing of Omar. The jury convicted Goins of the lesser
offense of threatening with or using a dangerous weapon, a
class A misdemeanor, in the fight with Estrada.
Goins appealed to the court of appeals on two grounds. First,
Goins argued that Estrada was not "unavailable"
because the State made no good-faith effort to locate him and
properly serve him with a subpoena. Second, Goins asserted
that he did not have the requisite opportunity or similar
motive to fully cross-examine Estrada at the preliminary
The court of appeals held that the State made the necessary
reasonable efforts to locate Estrada and affirmed the finding
of unavailability. State v. Goins, 2016 UT App 57,
¶ 15, 370 P.3d 942. The court also held that the
circumstances of a preliminary hearing "closely
approximat[e] those" of a typical trial. Id.
¶ 16 (alteration in original) (citation omitted). The
court of appeals held that the rule required the opportunity
for cross-examination, not the exercise of that opportunity,
and that a preliminary hearing provides "an effective
opportunity for confrontation." Id.
¶¶ 16-17 (citation omitted). The court of appeals
accordingly held that Goins enjoyed an adequate opportunity
for cross-examination at the preliminary hearing.
Id. ¶ 18.
The court of appeals sympathized with Goins's claim that
the limited purpose of the preliminary hearing-determination
of probable cause-meant that trial counsel had a different
motive in conducting cross-examination at a preliminary
hearing than she would have at trial. Id. ¶ 19.
However, the court found the argument foreclosed by our
decision in State v. Brooks, 638 P.2d 537 (Utah
1981). Goins, 2016 UT App 57, ¶ 19. The court