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State v. Hernandez

Supreme Court of Utah

August 14, 2018

State of Utah, Appellee,
v.
Miguel Hernandez, Appellant.

          Fourth District, Utah County The Honorable Judge Claudia Laycock No. 161400040

         On Appeal of Interlocutory Order

          Sean D. Reyes, Att'y Gen., Tera J. Peterson, Asst. Solic. Gen., Salt Lake City, Christine Scott, Provo, for appellee

          Joshua S. Baron, Salt Lake City, for appellant

          Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

          PEARCE JUSTICE.

         INTRODUCTION

         ¶ 1 The State has charged Miguel Hernandez with aggravated sexual abuse of a minor. Hernandez subpoenaed his alleged victim to testify at his preliminary hearing. The district court quashed the subpoena and bound Hernandez over for trial. Hernandez appeals the decision to quash the subpoena, but not the district court's determination that probable cause existed for him to face trial. Hernandez's gambit creates a procedural quandary. The decision Hernandez appeals has been mooted by the subsequent bindover. And we lack jurisdiction to consider the decision Hernandez has not appealed. For these reasons, we must dismiss this appeal and await another opportunity to answer the question we granted interlocutory review to address.

         BACKGROUND

         ¶ 2 The facts necessary to understand our disposition of this matter are simple and few. The State charged Hernandez with ten counts of aggravated sexual abuse of a minor. Hernandez sought to subpoena the alleged victim (Victim) to testify at the preliminary hearing.[1] The State moved to quash that subpoena, arguing that calling the witness would violate her constitutional rights, and would "eviscerate" Utah Rule of Evidence 1102 and Utah Rule of Criminal Procedure 15.5. The court quashed the subpoena. Hernandez requested a stay so he could appeal that decision. The district court denied the stay. The court held the preliminary hearing that day and bound Hernandez over for trial.

         ¶ 3 Hernandez sought interlocutory appeal of the order quashing the subpoena, but not the bindover. He "petition[ed] this [c]ourt for permission to appeal from an order entered . . . granting the State's Motion to Quash the Subpoena served by the Defendant on the alleged child victim." Hernandez attached only the order quashing the subpoena, and asked "this Court [to] order the trial court to enforce his subpoena of the alleged victim and to reopen the preliminary hearing to permit [Hernandez] to call [Victim] as a witness."

         ¶ 4 In its briefing opposing interlocutory review, the State argued that the district court's decision to bind Hernandez over for trial had mooted its prior decision to quash the subpoena. We granted the petition for interlocutory appeal, but asked the parties to address the State's concerns. We instructed:

Recently, this Court granted the petition for interlocutory appeal in this case. In its response, the State asserted the petition is moot because Petitioner was bound over and did not file a motion to quash. In their briefing on the merits the parties are requested to address that contention and the Petitioner's assertion that a district court may reopen a preliminary hearing after a defendant has been bound over.

         ¶ 5 Hernandez asserted that the case was not moot because if the court reopened the preliminary hearing, the "requested relief will affect the defendant's rights." The State reworked Hernandez's argument for him, arguing that although "not expressly cast in these terms, [Hernandez] essentially asserts that he had a right to discover the child victim's testimony by forcing her to testify at the preliminary hearing . ...


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