State v. Goins

2016 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DESEAN MICHAEL GOINS,
Appellant.

Opinion
No. 20140009-CA
Filed March 24, 2016

Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 131906358

Richard G. Uday, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
JAMES Z. DAVIS 1 and KATE A. TOOMEY concurred.

ORME, Judge:

1. Judge James Z. Davis began his work on this case as a member
of the Utah Court of Appeals. He retired from the court, but
thereafter became a Senior Judge. He completed his work on this
case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6). Judge Davis, a member
of this court from 1993 until late in 2015 when he became a
senior judge, passed away on February 27, 2016. Judge Davis
was twice our presiding judge and three times our
representative on the Judicial Council. More importantly, he was
an esteemed colleague and good friend. His wit, wisdom, and
dedication will be sorely missed.
 State v. Goins

¶1 Desean Michael Goins (Defendant) was convicted of
aggravated assault, a third degree felony, see Utah Code Ann.
§ 76-5-103 (LexisNexis Supp. 2015), and threatening with or
using a dangerous weapon in a fight, a class A misdemeanor, see
id. § 76-10-506. 2 Defendant now appeals both convictions,
arguing that the trial court erroneously found that a witness was
unavailable and allowed the witness’s prior testimony to be used
against Defendant on that basis. Because there was no error in
the trial court’s determination of unavailability, and because
Defendant had the opportunity to cross-examine the witness
when he gave his prior testimony, we affirm.

BACKGROUND

¶2 One morning in July 2013, Defendant and his girlfriend
set off on a search in downtown Salt Lake City with a very
specific goal: to find a homeless man (Witness) whom Defendant
believed had stolen his cell phone. They found Witness outside a
homeless shelter for men. With knife in hand, Defendant
confronted Witness, who denied taking the phone and hurried
away.

¶3 The couple then made their way to Pioneer Park, a
traditional haunt of Salt Lake’s homeless denizens, where one of
Witness’s friends (Victim), also a homeless man, was sleeping on
his blanket. Defendant’s girlfriend woke Victim and asked if he
had seen Witness. Defendant, waving the knife he still carried,
complained that Witness had stolen his phone. When Defendant

2. Although some of the statutes cited in this opinion have been
amended since July 2013, when the incident giving rise to the
charges against Defendant occurred, the amendments do not
affect our analysis. Accordingly, for ease of reference we cite the
most recent codification of the statutes.

20140009-CA 2 2016 UT App 57
 State v. Goins

encroached on Victim’s personal space, Victim pushed
Defendant off the blanket. An altercation ensued, during which
Defendant bit off Victim’s earlobe. Both men stood up and
squared off once again, and Defendant then retrieved his knife,
which he had dropped during the scuffle, and stabbed Victim
under the left arm. Soon thereafter, police arrived and arrested
Defendant. Defendant was later charged in connection with the
assault of Victim and the brandishing of the knife against
Witness. 3

¶4 Prior to the preliminary hearing, the prosecution asked
Salt Lake City police bike patrols to locate Victim and Witness.
The officers were able to locate both men, who spent much of
their time together, “based primarily on a description of
[Victim’s] missing earlobe,” even though they did not have a
description of Witness. Victim and Witness arrived together at
the preliminary hearing with a pastor from a church both men
regularly visited. The prosecution seized the opportunity to keep
more regular contact with both men through the pastor, 4 a man
who had the trust of both Witness and Victim.

3. Defendant was also charged with—and acquitted of—the
felony of mayhem, nearly forgotten outside the confines of first-
year Criminal Law in law school. See Utah Code Ann. § 76-5-105
(LexisNexis 2012) (“Every person who unlawfully and
intentionally deprives a human being of a member of his body,
or disables or renders it useless, or who cuts out or disables the
tongue, puts out an eye, or slits the nose, ear, or lip, is guilty of
mayhem.”). Despite the rarity of mayhem convictions in modern
times, they are not unheard of. See, e.g., State v. Fairclough, 44
P.2d 692, 692–93 (Utah 1935) (affirming conviction for mayhem).

4. By the time of the trial, the pastor had left the state for a new
position. Because both the pastor and his successor affirmed that
service was made on both Witness and Victim, and because the
(continued…)

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 State v. Goins

¶5 The prosecution regularly followed up with the pastor
and emailed him the trial information for him to pass along to
Witness and Victim. The pastor verified that the two men
received the notification. A few weeks before trial, the pastor
informed the prosecution that Witness had gotten into some
trouble, been jailed, and fallen out with Victim. After receiving
this information, the prosecutor contacted the jail, but Witness
had already been released. From that time forth, neither Victim
nor the pastor, both of whom knew Witness well and could
recognize him by sight, saw or heard from Witness, and no one
saw Witness with his former friends or in his former hang-outs.
On the eve of trial, the prosecution contacted the jail to see if
Witness was incarcerated again, but he was not.

¶6 Trial was scheduled to begin on October 23, 2013, but was
continued one day because no jury had been called for that date.
At that time, the prosecution asked the trial court to declare
Witness unavailable because Witness did not appear for trial and
the prosecution was unable to locate him. The prosecution also
asked the trial court to admit Witness’s preliminary hearing
testimony during the trial. Over an objection raised by
Defendant’s counsel that Witness “was not ‘unavailable,’” the
trial court granted the motion and indicated that it would allow
the preliminary hearing testimony at the rescheduled trial. At
trial, which began the following day, the jury convicted
Defendant of aggravated assault, for the attack on Victim, and of
threatening with a dangerous weapon during a fight, for his
confrontation of Witness. Defendant appeals, and we affirm. 5

(…continued)
prosecution utilized the second pastor in the same manner as the
first, we use “the pastor” when referring to either of the two
pastors.

5. Although Defendant apparently appeals both the conviction
related to the assault of Victim and the one for brandishing the
(continued…)

20140009-CA 4 2016 UT App 57
 State v. Goins

ISSUES AND STANDARDS OF REVIEW

¶7 Defendant argues that the trial court erred in finding
Witness to be unavailable under rule 804 of the Utah Rules of
Evidence and in permitting Witness’s preliminary hearing
testimony to be admitted under that rule as prior testimony.
“We review the district court’s evidentiary rulings under an
abuse of discretion standard. However, error in the district
court’s evidentiary rulings will result in reversal only if the error
is harmful.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT
App 134, ¶ 17, 351 P.3d 832 (citations and internal quotation
marks omitted). “The district court's decision to admit testimony
that may implicate the confrontation clause is also a question of
law reviewed for correctness.” State v. Poole, 2010 UT 25, ¶ 8, 232
P.3d 519.

ANALYSIS

¶8 We note, preliminarily, that a statement is hearsay if
(1) the witness made the statement outside of the current trial or
hearing and (2) a party offers the statement “to prove the truth
of the matter asserted in the statement.” Utah R. Evid. 801(c)(1)–
(2). Hearsay is inadmissible, unless an exception applies. See id.
R. 802. It is the interpretation and application of one such

(…continued)
knife against Witness, we agree with the State that Witness’s
testimony was relevant only to the charge relating to Witness.
Witness was not a witness to the assault of Victim and offered no
testimony on that point at the preliminary hearing; therefore,
even were we to discern an error in the presentation of Witness’s
preliminary hearing testimony to the jury—which we do not, see
infra ¶¶ 12–15, 18–20—we would still affirm Defendant’s assault
conviction because the alleged error would be harmless as to
that charge.

20140009-CA 5 2016 UT App 57
 State v. Goins

exception—the admission of prior testimony by an unavailable
potential witness—that we address in this opinion. See id. R.
804(b)(1).

I. The Trial Court Did Not Abuse Its Discretion in Finding That
Witness Was Unavailable.

¶9 Utah law requires that the party offering evidence in the
form of witness testimony make reasonable efforts to procure the
witness’s testimony at trial. Id. R. 804(a)(5). “[C]onstitutional
unavailability is found only when it is ‘practically impossible to
produce the witness in court.’ . . . [E]very reasonable effort must
be made to produce the witness.” State v. Menzies, 889 P.2d 393,
402 (Utah 1994) (citations omitted).

¶10 But “[a] good faith search does not mean that every lead,
no matter how nebulous, must be tracked to the ends of the
earth.” Poe v. Turner, 490 F.2d 329, 331 (10th Cir. 1974)
(determining that the prosecution was under no obligation to
investigate vague claims that one prosecution witness had
“moved to somewhere in the state of New York” and that
another “was said to have applied for employment with the
Santa Fe Railway in the ‘midwest’”). In essence, although a party
must make every reasonable effort to procure the in-court
testimony of the witnesses that the party wishes to use, the party
is not, as the State puts it, required to do “everything humanly
possible” to do so. Thus, “Rule 804(a)(5) does not require a
patently futile attempt to serve a subpoena on a potential
witness . . . whose physical location and address are completely
unknown.” Brown v. Harry Heathman, Inc., 744 P.2d 1016, 1018
(Utah Ct. App. 1987). See also State v. Carter, 888 P.2d 629, 645–46
(Utah 1995) (holding that State’s efforts to locate witness were
reasonable where it contacted United States Marshal’s Office,
which had an outstanding warrant for arrest of witness, and
where federal officials “could not provide any concrete
information as to his present location, other than that he might

20140009-CA 6 2016 UT App 57
 State v. Goins

be found in Mexico or southern California”), abrogated by statute
on other grounds as recognized by Archuleta v. Galetka, 2011 UT 73,
¶ 70, 267 P.3d 232.

¶11 In State v. Drawn, 791 P.2d 890 (Utah Ct. App. 1990), we
concluded that the prosecutor’s efforts to obtain two witnesses’
testimony were reasonable. In that case, the prosecution
subpoenaed the witnesses three times before trial; spoke with
and was assured of the presence of one witness at trial by that
witness’s mother; visited the last known address of the other
witness, but discovered that the witness had moved without
leaving a forwarding address; questioned police informants; and
searched police files for evidence of the whereabouts of the
missing witness. Id. at 893. Under such circumstances, we held
that the prosecution’s “efforts compl[ied] with the hearsay
exception unavailability requirements.” Id. On the other hand, in
State v. Chapman, 655 P.2d 1119 (Utah 1982), the Utah Supreme
Court concluded that the prosecutor’s efforts to locate a witness
were unreasonable and the witness was not unavailable “where
efforts to secure the witness’s attendance [were] cursory, where
the party had clear indications that the witness would not attend
or where the party had obvious means of obtaining those
indications but neglected to do so.” Id. at 1122. See also id. at
1124–25 (affirming the district court, nonetheless, because the
district court’s improper admission of the testimony was
harmless error).

¶12 The instant case is much more like the events in Drawn
than those discussed in Chapman. As in Drawn, but unlike in
Chapman, the prosecution in this case went to considerable effort
to obtain Witness’s testimony at trial. Prior to the preliminary
hearing, the prosecution sent out police bike patrols to locate
Victim and Witness, and the officers located both men, even
though they were part of Salt Lake City’s large homeless
population, based mostly on Victim’s unfortunate lack of one
earlobe. There was nothing as distinctive in Witness’s
appearance, but luckily for the prosecution, Witness was often in

20140009-CA 7 2016 UT App 57
 State v. Goins

the company of Victim. The two were homeless, presenting
obvious challenges to staying in touch, but when Victim and
Witness arrived together at the preliminary hearing with the
pastor, whom both men trusted, the prosecution seized upon the
opportunity to use the pastor as a vehicle for staying in more
regular contact with both men. The prosecution followed up
regularly with the pastor and emailed him Defendant’s trial
information. And the pastor verified that the two men
personally received this notification.

¶13 A few weeks before trial, however, the pastor informed
the prosecution that Witness had gotten in some trouble, been
jailed, and fallen out with Victim. After receiving this
information, the prosecutor contacted the jail, but Witness had
already been released. From that time forward, neither Victim
nor the pastor saw or heard from Witness, and Witness was no
longer found with his former friends or in his former haunts. It is
far from clear that he even remained in Utah. 6 Thus, although
the prosecution did not re-enlist the police bike patrols to locate
Witness, it did not need to. It had no idea where to send the

6. Research shows that not only are homeless people
more mobile than the population at large but that a
significant percentage of homeless individuals engage in
interstate migration, Peter H. Rossi, Down and Out in
America: The Origins of Homelessness 126 (The University of
Chicago Press 1989). See also Jennifer Amanda Jones,
Problems Migrate: Lessons from San Francisco’s Homeless Population
Survey, Nonprofit Quarterly (June 26, 2013), available at
http://nonprofitquarterly.org/2013/06/26/problems-migrate-
lessons-from-san-francisco-s-homeless-population-survey/
[https://perma.cc/JHE8-7QS2] (“Almost 40% of San Francisco’s
homeless population became homeless in a city other than San
Francisco. Most (24%) hail from California, but many (15%) from
around the United States.”).

20140009-CA 8 2016 UT App 57
 State v. Goins

patrols, and the police would have been unlikely to recognize
Witness when not in the presence of Victim. Realistically, the
pastor and Victim were more likely to spot Witness than were
randomly dispatched bike patrols. Additionally, on the eve of
trial, the prosecution also contacted the jail to see if Witness
might once again be incarcerated. They learned he was not.

¶14 Whether the prosecution “could have done more to
ensure . . . [Witness] showed up for the trial” is not the issue;
instead, we consider whether the prosecution’s efforts were
reasonable. As the State noted, “[a] good faith search does not
mean that every lead, no matter how nebulous, must be tracked
to the ends of the earth,” Poe v. Turner, 490 F.2d 329, 331 (10th
Cir. 1974), and we conclude that the State acted reasonably even
though “[Witness] could [neither] be located nor produced in
court,” Drawn, 791 P.2d at 894.

¶15 Indeed, the instant case is, in our estimation, an even
stronger case for affirmance than Drawn because here Defendant
acquiesced in both the method of keeping tabs on Witness and in
the means of serving him notice of the trial. First, the prosecution
told the magistrate at the preliminary hearing that the pastor
was the best way to stay in contact with Witness. If Defendant
had an objection to this method of communication as a substitute
for more formal service, unusual though it may have been, the
time to contest it was not at trial but at the preliminary hearing
when it was first proposed. Where “there is ‘apparent[] if not
complete acquiescence [in] what the court did as a matter of
procedure,’ ‘[n]either party is in a position to complain as to
[that] procedure’ on appeal.” Brown v. Babbitt, 2015 UT App 291,
¶ 14 n.9, 364 P.3d 60 (alterations in original) (quoting Hodges v.
Smoot, 125 P.2d 419, 421 (Utah 1942)). Second, Defendant
explicitly accepted the prosecution’s proffer of its efforts to get
Witness to appear. For example, although Defendant faults the
trial court for “not even attempt[ing] to get testimony from the
pastor regarding the service to [Witness],” in doing so he ignores
the fact that the trial court offered him the opportunity to get

20140009-CA 9 2016 UT App 57
 State v. Goins

such testimony from the pastor—an opportunity that he
declined. Because the prosecution made reasonable efforts to
locate Witness, though perhaps not all efforts “humanly
possible,” we agree with the trial court that the prosecution
acted in good faith, and we conclude that the trial court did not
abuse its discretion in finding Witness to be unavailable for
purposes of rule 804.

II. Witness’s Testimony Was Properly Admitted Under Rule 804.

¶16 If the potential witness is unavailable, prior testimony
may be admitted if the witness gave the testimony “as a witness
at a . . . hearing,” Utah R. Evid. 804(b)(1)(A), and the testimony is
“offered against a party who had . . . an opportunity and similar
motive to develop it by direct, cross-, or redirect examination,”
id. R. 804(b)(1)(B). Because a preliminary hearing is a “hearing”
under rule 804(b)(1)(A), the introduction of preliminary hearing
testimony may be allowed in lieu of the in-court testimony of the
witness if the court finds the potential witness to be unavailable.
State v. Brooks, 638 P.2d 537, 541 (Utah 1981). Rule 804(b)(1)(B)
essentially incorporates the requirements of the Confrontation
Clause of the United States Constitution. See Crawford v.
Washington, 541 U.S. 36, 53–54 (2004) (holding that the
Confrontation Clause does not “allow[] admission of testimonial
statements of a witness who [does] not appear at trial unless he
[is] unavailable to testify, and the defendant ha[s] had a prior
opportunity for cross-examination”). It is instructive that in
California v. Green, 399 U.S. 149 (1970), the United States Supreme
Court concluded that if a witness is unavailable, preliminary
hearing testimony is admissible under the Confrontation Clause
because the circumstances of a preliminary hearing

closely approximat[e] those that surround the
typical trial. [The witness is put] under oath;
respondent [i]s represented by counsel . . . ;
respondent ha[s] every opportunity to cross-
examine [the witness] as to his statement; and the

20140009-CA 10 2016 UT App 57
 State v. Goins

proceedings [a]re conducted before a judicial
tribunal, equipped to provide a judicial record of
the hearings.

Id. at 165. The Court determined that, under such circumstances,
a party opposing introduction of preliminary hearing testimony
“had an effective opportunity for confrontation.” Id.

¶17 Regarding the requirement that a party be given “an
opportunity” to develop the testimony of the witness, Utah R.
Evid. 804(b)(1)(B), the rule refers to the opportunity to examine
the witness, not to whether the defendant actually availed
himself of that opportunity, State v. Garrido, 2013 UT App 245,
¶ 18, 314 P.3d 1014. The opportunity for cross-examination
“satisfie[s] the requirements of [the Constitution and the Rules of
Evidence].” Id. ¶ 20. This principle is well-established in Utah
law, predating even the codification of the Rules of Evidence.
See, e.g., State v. King, 68 P. 418, 419 (Utah 1902) (“By taking the
testimony of the witness . . . in the presence of the accused upon
the examination at a time when he had the privilege of cross-
examination, this constitutional privilege is satisfied, provided
the witness cannot, with due diligence, be found . . . . The
constitutional requirement of confrontation is not violated by
dispensing with the actual presence of the witness at the trial,
after he has already been subjected to cross-examination by the
accused[.]”).

¶18 During the preliminary hearing, Defendant had the
opportunity to cross-examine Witness; indeed, he admits as
much in his appellate brief. It is therefore irrelevant whether trial
counsel voluntarily elected to forgo some aspect of cross-
examination due to counsel’s strategy.7 Garrido, 2013 UT App

7. Defendant makes much of the fact that the prosecution knew
procuring Witness’s testimony at trial would be more difficult
than in the typical case because Witness was a homeless person.
(continued…)

20140009-CA 11 2016 UT App 57
 State v. Goins

245, ¶ 18. Indeed, forgoing or minimizing cross-examination at a
preliminary hearing is a common practice among the defense
bar. 8 But Defendant was not denied the opportunity to cross-
examine Witness.

(…continued)
True enough. But like the prosecution, defense counsel knew
that Witness was homeless. Defense counsel was likewise aware
that the prosecution might have difficulty in securing the
testimony of Witness and Victim at trial. In such a context,
defense counsel could have anticipated that Witness and/or
Victim might not be physically present at trial and that, if
deemed unavailable, their testimony would be read for the jury.
In the case of homelessness and similar circumstances—such as
where a potential witness is terminally ill, seriously mentally ill,
suicidal, a known drug addict, or an active-duty soldier who
may be called up for combat deployment —there is a distinct
possibility that the witness may vanish or otherwise become
unavailable before trial. It may behoove defense counsel in such
cases to take full advantage of any opportunity to cross-examine
such witnesses. Then, if the testimony is read at trial, counsel’s
cross-examination is part of what will be read, and the jury will
have a less one-sided version of the witness’s testimony.

8. Justice Brennan, writing in dissent in California v. Green, 399
U.S. 149 (1970), the case in which the United States Supreme
Court recognized that preliminary hearing testimony may be
admissible under the prior testimony hearsay exception, id. at
165, articulated several reasons for this common practice, id. at
197 (Brennan, J., dissenting). He noted,
First . . . the objective of [a preliminary] hearing is
to establish the presence or absence of probable
cause, not guilt or innocence proved beyond a
reasonable doubt; thus, if evidence suffices to
establish probable cause, defense counsel has little
reason at the preliminary hearing to show that it
(continued…)

20140009-CA 12 2016 UT App 57
 State v. Goins

¶19 As noted previously, however, hearsay testimony is
admissible under the prior testimony exception if, and only if,
the party offering the evidence can show that the party opposing
the introduction of the evidence had both “opportunity and
similar motive to develop it.” Utah R. Evid. 804(b)(1)(B)
(emphasis added). To this end, Defendant, relying upon
persuasive authority only, attempts to convince this court that

(…continued)
does not conclusively establish guilt . . . . Second,
neither defense nor prosecution is eager before trial
to disclose its case by extensive examination at the
preliminary hearing; thorough questioning of a
prosecution witness by defense counsel may easily
amount to a grant of gratis discovery to the State.
Third, the schedules of neither court nor counsel
can easily accommodate lengthy preliminary
hearings. Fourth, even were the judge and lawyers
not concerned that the proceedings be brief, the
defense and prosecution have generally had
inadequate time before the hearing to prepare for
extensive examination. Finally, though counsel
were to engage in extensive questioning, a part of
its force would never reach the trial factfinder, who
would know the examination only second hand.
Id. See also Right of Confrontation: Substantive Use at Trial of Prior
Statements, 84 Harv. L. Rev. 108, 114 (1970) (characterizing as
“troubling” “the [Supreme] Court’s use of . . . preliminary
hearing testimony” at trial, on the ground that “it had been
subject to cross-examination,” because “[g]enerally, there is little
motivation for comprehensive cross-examination at a
preliminary hearing”). Whatever the truth of these sentiments,
they are not reflected in Utah law, see supra ¶ 18; therefore,
members of the defense bar might do well to heed our
suggestions in appropriate cases, see supra ¶ 18 note 7.

20140009-CA 13 2016 UT App 57
 State v. Goins

when “[t]rial counsel . . . initially questioned [Witness], at the
preliminary hearing, . . . she did not have [the] same motive as
she would have had at trial.” Defendant further states that “[t]he
purpose of a preliminary hearing is to determine probable cause,
not [to] prov[e] the cause beyond a reasonable doubt. Thus, the
cross-examination may not have been as thorough because they
are only focusing on the basis for the arrest.” We are not
unsympathetic to this argument, but the Utah Supreme Court
expressly foreclosed it in State v. Brooks, 638 P.2d 537 (Utah 1981),
which is overlooked in Defendant’s briefs on appeal.

¶20 Dismissing as meritless arguments identical to those raised
by Defendant in this case, our Supreme Court concluded in
Brooks that “counsel’s motive and interest are the same in either
[the trial or preliminary hearing] setting; he acts in both
situations in the interest of and motivated by establishing the
innocence of his client. Therefore, cross-examination takes place
at preliminary hearing and at trial under the same motive and
interest.” Id. at 541. Thus, adhering to the rationale of Brooks, we
determine that Defendant’s challenge is unavailing, and we
affirm the decision of the trial court to admit Witness’s
preliminary hearing testimony.

CONCLUSION

¶21 The trial court did not abuse its discretion by admitting
Witness’s preliminary hearing testimony when it found that
Witness was unavailable to testify because, under the
circumstances, the State made reasonable efforts to procure the
testimony of Witness at trial. Because Defendant had an
appropriate opportunity to cross-examine Witness, Witness’s
testimony from that hearing was admissible under rule 804.

¶22 Affirmed.

20140009-CA 14 2016 UT App 57