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State v. Gilliard

Court of Appeals of Utah

January 3, 2020

State of Utah, Appellee,
v.
James Edward Gilliard, Appellant.

          Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 171910231

          Wendy Brown and Lacey C. Singleton, Attorneys for Appellant

          Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

          MORTENSEN, JUDGE.

         ¶1 A seemingly routine traffic stop quickly turned into a high-speed chase, culminating in a crashed car, the discovery of two backpacks full of drugs and drug paraphernalia, and the conviction of James Edward Gilliard for a handful of crimes. Despite eyewitness testimony from two officers that Gilliard was the driver, and despite his picture and information appearing in a law enforcement database that was accessed during the traffic stop, Gilliard presents an ageless argument: It wasn't me. In particular, Gilliard contends that there was insufficient evidence of his identity as the perpetrator and of a connection between him and the drug-filled backpacks. He also contends that the district court abused its discretion in postponing an evidentiary ruling. We affirm Gilliard's convictions.

         BACKGROUND[1]

         The Traffic Stop and High-Speed Chase

         ¶2 While monitoring traffic, a police officer (Officer One) saw a man and passenger drive by without their seatbelts on. As Officer One began to follow them in his patrol car, the car sped up to twenty miles per hour above the speed limit. This prompted Officer One to initiate a traffic stop, and the car pulled over into a gas station parking lot. After approaching the car, Officer One asked the driver-who was later identified as Gilliard-for his license and noticed that he and his passenger were "skittish" and "nervous." As Officer One talked with Gilliard, he observed Gilliard's general physical appearance and noticed his facial tattoos. After Gilliard handed Officer One his identification card, Officer One returned to his patrol car and ran the information on his computer. This search pulled up a skeleton record, [2] which displayed Gilliard's picture, physical description, and a notation that Gilliard's driver license had been "denied." Officer One also ran the car's license plate and discovered that it was a rental car. Based on the circumstances of the stop, Officer One called for backup.

         ¶3 By the time a second officer (Officer Two) arrived, Officer One had returned to the stopped car. Officer One smelled marijuana and asked whether there was any in the car. Gilliard responded that there was. Meanwhile, Officer Two approached the car and observed Gilliard and his passenger. Officer One then ordered Gilliard to turn off the car and to step out. But Gilliard only turned off the car; he left the key in the ignition and refused to step out. Officer One again ordered Gilliard out of the car. Instead, Gilliard fired up the car and sped off. Officer One rushed back to his patrol car, described the rental car via radio, and followed another officer (Officer Three), who was directly behind Gilliard.

         ¶4 A high-speed chase ensued. During the chase, and after hearing a communication over the radio from Officer Three, Officer Two stopped and retrieved a black backpack from the middle of the road. The black backpack contained a scale, 2.3 grams of individually packaged heroin, and 7.5 grams of methamphetamine. As Officer Two stopped to collect the backpack, Officer One and Officer Three continued to pursue Gilliard. However, they eventually stopped because the "speeds were just too high for that area" and "presented too much of a danger to the public."

         ¶5 Shortly thereafter, the officers found the rental car abandoned a few blocks away, with a smashed front windshield. It appeared that the rental car had collided with a train-crossing arm. In the trunk, officers found a green backpack containing 13.6 grams of marijuana, 1.4 grams of heroin, and 25.4 grams of methamphetamine. The officers noted that the drugs in both backpacks were packaged in the same manner-inserted in the toe of some socks with the socks rolled up.

         The Trial

         ¶6 The State charged Gilliard with two counts of possession of a controlled substance with the intent to distribute, one count of failure to respond to an officer's signal to stop, one count of possession of a controlled substance, one count of possession of drug paraphernalia, one count of reckless driving, and one count of failure to wear a seatbelt. The case proceeded to trial.

         ¶7 After jury selection and immediately before opening statements, defense counsel raised an objection to some potential testimony. Counsel specifically made an oral motion in limine to exclude testimony which certain officers were prepared to give: that Officer Three radioed to the other officers that he saw the black backpack being thrown out of the driver's side of the rental car. Counsel argued that this would be inadmissible hearsay and violate Gilliard's right to confront the witness against him because Officer Three was unavailable to testify.

         ¶8 The State argued that the statements were admissible. Specifically, the State asserted that the statements were not hearsay because they were not offered to prove the truth of the matter asserted; rather, their purpose was to explain why Officer Two stopped to collect the black backpack. Alternatively, the State argued that even if the statements were hearsay, they were admissible under the present-sense-impression and excited-utterance exceptions of rule 803 of the Utah Rules of Evidence. Finally, the State argued that Officer Three's statements were not testimonial and would not violate Gilliard's confrontation right.

         ¶9 The district court agreed with the State that the statements would fall under the present-sense-impression exception of rule 803, but because the issue had not been briefed and the court was not certain of the law, it deferred ruling on the confrontation issue so it could research the issue further. Defense counsel requested that the ruling be made prior to opening statements. But the case had been scheduled for a single day, and to keep the trial on schedule, the court denied defense counsel's request. The court then told the attorneys that their opening statements should be based on "evidence that you have a good faith belief will come in during trial." The court also instructed the jury, "What the lawyers say is not evidence. For example, their opening statements and closing arguments are not evidence."

         ¶10 During its opening statement, the State told the jury, among other things, that it would hear that "Officer [Three] radioed that a bag had just been thrown from the car" and Officer One then directed Officer Two to retrieve the bag, which Officer Two did. After opening statements, the district court asked defense counsel if the confrontation issue should still be addressed before the witnesses testified, and defense counsel indicated that it should be. So, the court directed the attorneys to research the issue over the lunch hour, prepare their arguments, and present them after lunch. After hearing the arguments, the court ruled that Officer Three's statements were testimonial and that they were inadmissible, unless he became available to testify. Nevertheless, the court ruled that the State could have Officer Two offer a more limited explanation of why he went to the bag, such as a statement that "based on the information [Officer Two] received from Officer [Three], [he] stopped at the side of the road at this spot and picked up the bag."

         ¶11 The State then presented its case-in-chief. It put on evidence of the traffic stop, subsequent chase, drugs, drug paraphernalia, and the rental car to support the charges. In particular, Officer One testified that Gilliard was the driver of the rental car. He also explained that Gilliard's overall physical appearance and facial tattoos made him certain that Gilliard was the driver. Officer Two also testified that Gilliard was the driver of the rental car. He further testified that based on a communication that he heard over the radio, he stopped and found the black backpack in the middle of the road where Gilliard had just driven. The officers also testified about finding the green backpack and its contents in the trunk of the crashed rental car shortly after the chase ended. Officer One additionally testified that drug dealers commonly use rental cars because "they're hard to track."

         ¶12 Gilliard's primary defense was that he was not the driver of the rental car. Gilliard also cross-examined the officers on their identifications and whether they saw the black backpack during the initial stop. He also pointed out that Officer One had testified at a preliminary hearing that Gilliard gave him a driver license, but Gilliard had never been issued one. In support of this, Gilliard called a records manager from the Utah Department of Public Safety, who testified that no Utah driver license had been issued to him. On cross-examination, however, the records manager explained that "when somebody doesn't have a driver[] license, and [is] pulled over for a driving citation, something called a skeleton record is created" in the database, and such a record would show up in a law enforcement search. The records manager confirmed that Gilliard had a skeleton record, and it included a notation that Gilliard's license had been denied. In response, Officer One clarified that the identification Gilliard gave him could have been a Utah identification card, rather than a driver license, because it would look ...


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