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State v. Ellis

Supreme Court of Utah

January 23, 2018

State of Utah, Appellee,
v.
Christopher John Ellis, Appellant.

         On Direct Appeal

         Third District, Salt Lake The Honorable Katie Bernards-Goodman No. 131902294

          Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for appellee.

          Alexandra S. McCallum, John K. West, Salt Lake City, for appellant.

          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.

          Having recused herself, Justice Durham did not participate herein; District Court Judge Jennifer Brown sat.

          OPINION

          Lee, 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 possession conviction.

         ¶ 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.

         I

         ¶ 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 Ellis.

         ¶ 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 ...


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