Utah Law Developments
| Jurisdiction | Utah,United States |
| Citation | Vol. 32 No. 2 Pg. 32 |
| Pages | 32 |
| Publication year | 2019 |
March, 2019
Vanishing Testimony and Disappearing Justice: Preliminary Hearings After State v. Goins
Matthew J. Hansen and Blake R. Hills
INTRODUCTION
Some have compared losing one’s mobile phone to experiencing the five stages of grief, also known as the Kübler-Ross model. See Dean Burnett, Losing Your Smartphone: The Five Stages of Grief, the Guardian (Dec. 22, 2014) available at https://www.theguardian.com/science/brain-flapping/2014/ dec/22/phone-smartphone-loss-damage-grief. In July 2012, DeSean Goins, apparently fluctuating between the anger and bargaining phases of the model, believed Gabriel Estrada had stolen his cell phone. Goins found Estrada and confronted him while holding a knife. Estrada denied such a charge and fled.
Goins kept up the search and located Jacob Omar, an associate of Estrada. Goins threatened Omar with a knife and demanded he disclose the location of Estrada. Goins and Omar came to blows. Omar had difficulty hearing Goins because during the fight Goins grabbed onto Omar’s earlobe with his teeth and bit it off. Goins also stabbed Omar under his left arm. Eventually, Police arrived and arrested Goins. He was charged with one count of mayhem and two counts of aggravated assault.
At the preliminary hearing, Estrada and Omar testified and were cross-examined by defense counsel without objection by the state or any apparent restriction by the judge. State v. Goins, 2017 UT 61, ¶ 7, 423 P.3d 1236. Estrada did not appear for trial and the state moved the court to declare Estrada unavailable and requested to have his preliminary hearing testimony read into the record pursuant to Rule 804(b)(1) of the Utah Rules of Evidence. As part of its argument, the state regaled the court with how it had utilized police bike patrols, checked jail rosters, and asked a local pastor to try and locate Estrada.
Goins argued that allowing the state to use Estrada’s preliminary hearing testimony would violate his constitutional right to confrontation because his motive for cross-examination at the preliminary hearing differed from his motivation to cross-examine at trial. The trial court found Estrada unavailable and allowed the preliminary hearing testimony at trial. Goins was found guilty on the aggravated assault charge and threatening with or using a dangerous weapon. The Utah Court of Appeals held that the state made reasonable efforts to find Estrada and affirmed the finding of unavailability. Id. ¶ 15. In addition, the court stated that circumstances in a preliminary hearing closely approximate those in a typical trial and the Defendant was provided an effective opportunity for confrontation. Id. ¶¶ 16–17.
The Utah Supreme Court reasoned that changes to the Utah Constitution undermined its previous ruling in State v. Brooks, 638 P.2d 537 (Utah 1981), that defense counsel’s motive and interest are the same in preliminary hearings and trial. The Utah Constitution had been amended in article I, section 12 to specify that preliminary hearings were limited to determining probable cause. The Utah Supreme Court stated:
A defense attorney who assumes that the magistrate will conduct a preliminary hearing that comports with article I, section 12 does not have an incentive t o prepare to thoroughly cross-examine on credibility. An attorney who believes that the magistrate will not permit questioning that goes beyond that necessary to establish probable cause has no guarantee that she can present or develop positive information concerning her client at the preliminary hearing. Nor does counsel have a motive to develop affirmative defenses at a preliminary hearing. In many, if not most, instances, Brooks’s conclusion either no longer aligns with the reality of practice, or places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations that Brooks presuppos...
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