District, Salt Lake The Honorable Katie Bernards-Goodman No.
A. Klucznik, Asst. Solic. Gen., Salt Lake City, for appellee.
Alexandra S. McCallum, John K. West, Salt Lake City, for
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas,
Justice Pearce, and Judge Brown joined.
Justice Himonas filed a concurring opinion, in which Chief
Justice Durrant and Judge Brown joined.
recused herself, Justice Durham did not participate herein;
District Court Judge Jennifer Brown sat.
Associate Chief Justice.
1 Christopher Ellis was found guilty of aggravated robbery
and possession of a firearm by a restricted person. We
reverse the aggravated robbery conviction but affirm the
2 We reverse the aggravated robbery conviction because we
find prejudicial error in the admission of preliminary
hearing testimony under rule 804 of the Utah Rules of
Evidence. First, we find that the district court erred in its
determination that the witness in question was unavailable
for trial. We hold that unavailability may not be established
merely on the basis of an illness on the particular day a
trial is scheduled by the court; there must be a showing that
the illness is of such an extended duration that a reasonable
continuance would not allow the witness to testify. And we
find that the witness in question here was not unavailable
under the standard that we clarify herein. Second, as in
State v. Goins, 2017 UT 61, ___ P.3d ___, we find
that the preliminary hearing testimony at issue here was
inadmissible because the defendant's motive to
cross-examine witnesses at the preliminary hearing was not
similar to the one he would have at trial. And we reverse the
aggravated robbery conviction because we conclude that the
preliminary hearing testimony in this case was central to the
prosecution's case on this charge.
3 We affirm the conviction on the possession charge despite
the fact that the State has not sought to defend the
admissibility of the evidence challenged by Ellis on
appeal-field test results, offered to confirm that a
substance found on Ellis was marijuana. We affirm this
conviction on the basis of our determination that any error
in admitting this evidence was harmless.
4 Shortly before closing time on February 14, 2013, a man
walked into Mini's Cupcakes in Salt Lake City, pointed a
handgun at the store clerk, and demanded the contents of the
cash register. The store clerk, Dylan Weight, promptly
complied, giving the man nearly four hundred dollars,
including a one-hundred dollar bill, and the store's
receipts. The robber ordered Weight to get on his belly, and
the man rushed out the door.
5 Weight got to his feet and ran outside to see where the
robber was headed. He saw the man cross 1100 East but lost
sight of him as the man turned right on the next intersecting
street. Weight also dialed 911 on his cell phone.
6 Weight described the robber to the 911 operator as a
Mexican or Native American man in his mid-40s. He recounted
that the man wore a gray or green hoody and black pants and
had "dark, possibly longer hair." Weight also
described the handgun as "like a Ruger" because of
its shape and longer barrel, though he acknowledged his lack
of gun expertise.
7 As Weight called 911, Brandy Thomas was driving on 1100
East and noticed a man dart across the street in heavy
traffic. Her mother and two younger brothers were also in the
car. Thomas noticed the store clerk on the side of the road
talking on his phone and looking "really scared."
She thought the incident significant enough to turn left and
follow the man she had seen crossing traffic. She then saw
him get into a four-door sedan that she believed was a gray
or gold Nissan. She drove by the car slowly, and someone in
her car wrote down the license plate number.
8 After she picked up her boyfriend, Thomas returned to
Mini's Cupcakes and told Weight what she had seen. The
store clerk relayed the license plate number to the 911
operator. The police received the license plate number and
found that it corresponded to a gray Chevy Malibu registered
to Christopher Ellis. The police in the area set out to find
the car. Soon after the search began, an officer stopped at
Ellis's house, but Ellis was not there and police could
not locate the car.
9 Police later spotted the Malibu turning into a residential
alleyway. The officer followed the car but lost sight of it
after the driver shut off the lights and exited via another
egress. Soon thereafter an officer discovered the Malibu
pulling into a 7-Eleven convenience store and stopped the
vehicle. Police found Ellis, who is African-American, wearing
a black leather jacket, a red shirt, blue jeans, and a straw
fedora. He also had short hair.
10 Ellis consented to a search, and police found $359.50 in
his front pocket, including a one-hundred dollar bill. Ellis
insisted that he received the cash from working temporary
jobs and that he did not use a bank. After the vehicle was
seized and pursuant to a warrant, officers also discovered
two handguns inside the car's trunk. Police never
recovered a hoody or any Mini's Cupcakes receipts.
11 The police also found a "clear baggy that contained a
plant-like substance" in Ellis's pocket. Officer
Wright later identified the substance as marijuana from its
look, smell, and texture. He recognized it as marijuana based
on nearly forty years of police experience. Officer Wright
also placed a leaf in a field test kit, and the sample tested
positive for marijuana.
12 The day following the robbery, police showed Weight and
Thomas an array of six black and white photographs, one of
which featured Ellis. Weight felt uncomfortable using black
and white pictures to identify the robber, so he did not
choose a photograph. Thomas selected someone other than
13 Months later, police called Weight, Thomas, and
Thomas's mother in for a live lineup. Ellis was the only
person who appeared in both the photograph array and the live
lineup. Additionally, although Weight described the robber as
having longer hair and no noticeable accent, four of the men
in the eight-person lineup were bald and some spoke with
accents. Upon hearing each man state "Get your belly on
the ground, " Weight "one hundred percent
confirmed" that Ellis was the robber. Thomas again
selected someone other than Ellis.
14 The State charged Ellis with one count of aggravated
robbery, a first degree felony, in violation of Utah Code
section 76-6-302. And because police found marijuana and
handguns in Ellis's car, the State added one count of
purchase, transfer, possession, or use of a firearm by a