State v. Ellis

Summary

The Utah Supreme Court held that preliminary-hearing testimony was improperly admitted under Utah Rule of Evidence 804 because the witness was not shown to be unavailable and the defendant lacked a similar motive to cross-examine her at the preliminary hearing. The court found the error prejudicial and reversed the aggravated robbery conviction, remanding for a new trial. It affirmed the firearm-possession conviction because any error in admitting field-test results identifying marijuana was harmless.

Holdings

1. A witness is not unavailable merely because an illness or related caregiving obligation prevents attendance on the particular date set for trial. The proponent must show a substantial barrier of sufficient severity and duration that the witness cannot testify within a period in which the trial reasonably could be held; a reasonable continuance that would permit the witness to testify defeats unavailability.
2. Preliminary-hearing testimony is admissible as former testimony only upon a showing that defense counsel actually had a similar motive and a full opportunity to cross-examine the witness as counsel would have had at trial. Ellis's counsel did not have a similar motive at the preliminary hearing, so Thomas's testimony was inadmissible.
3. The erroneous admission of Thomas's preliminary-hearing testimony was prejudicial because there was a reasonable likelihood that the jury would have reached a different verdict without it.
4. Any error in admitting testimony about the marijuana field-test results was harmless because Officer Wright's trained and experienced visual, tactile, and olfactory identification independently supported the identification of the substance as marijuana.

Questions Presented

1. Whether Brandy Thomas was unavailable under Utah Rule of Evidence 804(a)(4) when she could not attend trial on the scheduled date because she was caring for her seriously ill newborn.
2. Whether Ellis had an opportunity and similar motive to cross-examine Thomas at the preliminary hearing under Utah Rule of Evidence 804(b)(1).
3. Whether admission of Thomas's preliminary-hearing testimony was prejudicial and required reversal of the aggravated robbery conviction.
4. Whether any error in admitting testimony about field-test results for the substance identified as marijuana was harmless as to the firearm-possession conviction.

Disposition

reversed_and_remanded