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State v. Goins

Supreme Court of Utah

September 6, 2017

State of Utah, Respondent,
DeSean Michael Goins, Petitioner.

         On Certiorari to the Utah Court of Appeals

         Third District, Salt Lake The Honorable Ann Boyden No. 131906358

          Sean 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.




         ¶1 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 at trial.

         ¶2 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.


         ¶3 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 and fled.

         ¶4 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.

         ¶5 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."

         ¶6 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.[2]

         ¶7 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.

         ¶8 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.

         ¶9 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, [3] 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.

         ¶10 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[4] became the new community pastor.

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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 Clause rights.

         ¶15 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.

         ¶16 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.

         ¶17 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.

         ¶18 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 hearing.

         ¶19 The court of appeals held that the State made the necessary reasonable efforts to locate Estrada and affirmed the finding of unavailability.[5] 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.

         ¶20 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, ΒΆ 19. The court of ...

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