State v. Garner ( 2016 )

2016 UT App 186THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GARY RAY GARNER,
Appellant.
Memorandum Decision
No. 20150228-CA
Filed September 1, 2016
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 131501306
Gary W. Pendleton, Attorney for Appellant
Sean D. Reyes, Ryan D. Tenney, and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE STEPHEN L. ROTH concurred. JUDGE MICHELE M.
CHRISTIANSEN concurred in the result.
ORME, Judge:
¶1 Gary Ray Garner conditionally pled no-contest to three
counts of trafficking methamphetamine, all second degree
felonies. See Utah Code Ann. § 58-37-8(1)(a)(ii), (b)(i) (LexisNexis
Supp. 2016). On appeal, he argues that the State should have
given him the names of two confidential informants who
provided written statements at his preliminary hearing—
statements implicating Garner as having sold each of the
informants methamphetamine. We affirm.
¶2 The facts of this case are relatively straightforward. On
three separate occasions between late 2012 and early 2013, two
confidential informants working with local police allegedly
State v. Garner
purchased methamphetamine from Garner. On each occasion,
the informants and their cars were searched before they met
with Garner, and they turned over to police a quantity of
methamphetamine after each interaction with him. Each
informant also completed, in an officer’s presence, a hand-
written statement describing the particular drug transaction. The
officer then signed the statement.
¶3 Garner was later charged with three counts of distributing
methamphetamine. During a preliminary hearing, a police
officer testified to having witnessed both informants prepare
their written statements. The State then offered the anonymous
statements as evidence in support of binding Garner over for
trial. Garner objected in each instance, arguing that he had a
right to know the names of the informants. The magistrate
overruled the objections. Garner later filed a motion to the same
effect, which motion was denied on the basis of the “government
informer” privilege. After the motion was denied, Garner
entered a conditional plea of no-contest to each of the charges,
“reserving the right to appeal the court’s ruling on the informer
identification issue.” Garner now appeals.
¶4 Under the Utah Constitution, there is no absolute right to
discovery at the preliminary hearing stage. Utah Const. art. I,
§ 12. Instead, the right of “discovery is allowed as defined by
statute or rule.” Id. Rule 505 of the Utah Rules of Evidence
regulates the government informer privilege, which privilege the
State asserted in response to Garner’s objections to the
nondisclosure of the informants’ names. The government
informer privilege allows the State “to refuse to disclose the
identity of an informer,” Utah R. Evid. 505(b), unless “the
informer appears as a witness for the government,” id. R. 505(d)(2)
(emphasis added). Garner insists that this exception was
triggered when the State submitted the informants’ statements
during the preliminary hearing.
20150228-CA 2 2016 UT App 186State v. Garner
¶5 But the phrase “appears as a witness” is a much more
precise concept than Garner envisions. It clearly connotes an
informant being physically present in court to testify as a
witness. Although there is little decisional guidance on what
constitutes an “appear*ance+ as a witness,” see Utah R. Evid.
505(d)(2), what case law there is supports this definition,
seeming to take for granted that, as a matter of plain meaning, it
is the physical, in-court appearance of a person that is
determinative, see Commonwealth v. Chermansky, 552 A.2d 1128,
1129 (Pa. Super. Ct. 1989) (describing an instance where the
Commonwealth’s witnesses failed to appear at a preliminary
hearing and the case was dismissed on that basis). Accord Sheriff
of Clark County v. Terpstra, 899 P.2d 548, 549 (Nev. 1995) (per
curiam). The “appearance” in court of a person’s written
statement is simply not the same thing as the actual appearance
of that person in court to “testify*+ at the current trial or
hearing.” Utah R. Evid. 801(c)(1). Of course, if Garner had
proceeded to trial instead of pleading no-contest once he was
bound over, he would have had the opportunity to learn the
informants’ identities before they testified against him. Thus,
“the issue is one of timing, not disclosure.” United States v.
Tarango, 760 F. Supp. 2d 1163, 1168 (D.N.M. 2009). Accord Banks
v. Dretke, 540 U.S. 668, 698 (2004); Roviaro v. United States, 353
U.S. 53, 63–64 (1957). But see McCray v. Illinois, 386 U.S. 300, 312
(1967) (noting that “the Court in the exercise of its power to
formulate evidentiary rules for federal criminal cases has
consistently declined to hold that an informer’s identity need
always be disclosed in a federal criminal trial, let alone in a
preliminary hearing”).
¶6 According to the Utah Supreme Court, “The right to be
confronted with the witnesses against [the defendant] does not
automatically give a defendant the right to have disclosed to him
by the prosecution the identity of a confidential informer.” State
v. Collier, 736 P.2d 231, 234 (Utah 1987) (per curiam). This is
especially true following the amendment of Article I, section 12
20150228-CA 3 2016 UT App 186State v. Garner
of the Utah Constitution, which narrowed the scope and
tightened the focus of preliminary hearings. As Garner
acknowledges, “At one point in time, the constitutional right to a
preliminary hearing included the right to a hearing” in which
the constitutional right of confrontation applied. See State v.
Anderson, 612 P.2d 778, 785–86 (Utah 1980). But as Garner further
notes, the Utah Constitution has since been amended to
“dispense*+ with the right of confrontation at the preliminary
hearing stage.” See State v. Timmerman, 2009 UT 58, ¶ 14, 218 P.3d
590. This was not the nuanced shift that Garner goes on to
suggest. In Timmerman, under the section heading “The Right to
Confront Witnesses at a Preliminary Hearing No Longer Exists
Because of the Amendment to Article 1, Section 12 of the Utah
Constitution,” our Supreme Court explained that “the plain
language of the 1995 amendment to article I, section 12 of the
Utah Constitution removed the constraints of Utah’s
Confrontation Clause from preliminary hearings.” Id. ¶¶ 14–16.
Thus, our state’s constitution does not provide a right to learn
the informants’ identities that is more expansive than rule 505
establishes. It follows that Garner’s appeal is unavailing and that
his no-contest pleas stand.1
1. We have no occasion to consider Garner’s challenge to the
admissibility of the informants’ statements under rule 1102 of
the Utah Rules of Evidence because Garner does not challenge
the reliability of those statements. Rather, while citing rule 1102,
he postulates that a duty to disclose the identity of an informant
must exist when a hearsay statement is admitted during a
preliminary hearing as the lack of such knowledge deprives the
defendant of “the context afforded by the disclosure of *the
statement’s+ source.” Garner’s argument shoots far wide of the
actual provisions of rule 1102, see generally Utah R. Evid. 1102
(permitting hearsay at preliminary hearings if reliability criteria
are satisfied), and thus we do not consider the reliability of the
informants’ written statements under rule 1102.
20150228-CA 4 2016 UT App 186State v. Garner
¶7 Garner had no automatic right to disclosure of the names
of the State’s confidential informants at his preliminary hearing.
Because the informants did not appear at the preliminary
hearing, the exception to confidentiality provided by rule 505
does not apply.
¶8 Affirmed.
20150228-CA 5 2016 UT App 186