State v. Rodriguez-Lopi , 338 Utah Adv. Rep. 19 ( 1998 )

DAVIS, Presiding Judge,

concurring:

I concur with the result reached by the majority but write separately to express my view that we should reach the issue of whether the toxicology report was inadmissible hearsay in the context of the preliminary examination. As a result of our decisions and those of the supreme court limiting the gatekeeping function of a committing magistrate,¹ this issue is likely to recur yet evade review.² Thus, we should address this issue in order to assist magistrates in discharging their duties during preliminary examinations and to help guide trial courts in their review of such proceedings, recognizing that further elaboration may be necessary as specific situations are presented for our review. See, e.g., In re Worthen, 926 P.2d 853, 867 (Utah 1996).

Rule 7(h)(2) of the Utah Rules of Criminal Procedure provides that in the preliminary examination, “[t]he findings of probable cause may be based on hearsay in whole or in part.” However, as clarified in the 1994 amendment to article I, section 12 of the Utah Constitution, such hearsay evidence must be reliable. See Utah Const, art. I, § 12 (emphasis added) (“Nothing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary examination_”). Thereafter, the Utah Rules of Evidence were amended to provide, “In a preliminary examination, nothing in these rules shall be construed to prevent the admission of reliable hearsay evidence.” Utah R. Evid. 1101(b)(5). “Hearsay is reliable, and hence admissible, when it falls under one of the exceptions to the hearsay rules.” State ex rel. W.S., 939 P.2d 196, 200 (Utah Ct.App.1997); see also State v. Lovell, 758 P.2d 909, 913-14 (Utah 1988) (stating “testimony of an unavailable witness is presumed to be rehable when it clearly falls within an exception to the hearsay rule”). Rule 7(h)(1) of the Utah Rules of Criminal Procedure provides, “A preliminary examination shah be held under the rules and laws applicable to criminal cases tried before a court.” (Emphasis added.) Thus, although hearsay is admissible in the preliminary examination to establish probable cause, it must be reliable. Accordingly, reliability may be established if the hearsay falls within an exception to the hearsay rule or upon a “showing of particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

In this case, the State laid virtually no foundation for the admissibility of the toxicology report, nor did it show the applicability of an exception to the hearsay rule or any more general guarantee of trustworthiness. For example, the State failed to provide a chain of custody, what procedures were used in testing the substance, who tested the substance, testimony regarding the reliability of the scientific test result, who generated the report, testimony of the custodian of the report, any of the foundational requirements of the business records exception of Rule 803(6) of the Utah Rules of Evidence, or any other bases for admission or indicia of reliability. Foundational requirements, whether necessarily related to hearsay exceptions or not, almost invariably go to reliability and the ability of the opponent to test reliability. The ability to use reliable hearsay at the preliminary examination does not eliminate the requirement of a proper foundation for the admission of any evidence. Thus, I would hold that because the State failed to lay a proper foundation, the magistrate erred in admitting the toxicology report at the preliminary hearing. Cf. State v. Anderson, 612 P.2d 778, 783-84 (Utah 1980) (“The fundamental purpose served by the preliminary examination is the ferreting out of groundless and improvident prosecutions.”)

Nonetheless, given the light burden currently placed upon the State in preliminary examinations, the majority opinion correctly determined that the State adduced sufficient evidence at the preliminary hearing to bind defendant over, even if the toxicology report is not considered.

1 . Cf. State v. Hutchings, 950 P.2d 425, 434 (Utah Ct.App.1997) (" ‘In making a determination as to probable cause, the magistrate should view the evidence in a light most favorable to the prosecution and resolve all inferences in favor of the prosecution.’ "(quoting State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995))); State v. Jaeger, 896 P.2d 42, 45 (Utah Ct.App.1995) (stating that "the magistrate ... erred ... by deciding questions arising from credible, but conflicting evidence— questions that must be left to the fact-finder at trial”).

2 . The situation is somewhat analogous to a determination of whether to reach a moot issue. See Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989); Wickham v. Fisher, 629 P.2d 896, 899 (Utah 1981).