State v. Biel

2021 UT 8IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
KOAK PAL BIEL
Respondent.
No. 20191055
Heard November 9, 2020
Filed April 1, 2021
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable James T. Blanch
No. 181908113
Attorneys:
Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Solic. Gen.,
Salt Lake City, for petitioner
Sarah J. Carlquist, Salt Lake City, for respondent
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 One night while watching television in her home, Jawnie Wey
was struck and killed by a bullet meant for her nephew. A gunman
sitting in a Mercedes outside of her home fired the fatal shot. Four
people were in the Mercedes that night. When questioned, two of
them identified Koak Biel as the gunman. Both witnesses later
recanted. The State wanted to call the two recanting witnesses to
testify. If they stuck with the revised versions of their accounts, the
State planned to impeach them with the first version of their story:
Biel pulled the trigger.
STATE v. BIEL
Opinion of the Court
¶2 Biel objected. He argued that the Utah Rules of Evidence do
not permit the State to call a witness for the purpose of eliciting
testimony harmful to the State’s case with the hope of then
impeaching that witness with inconsistent, unsworn statements. The
district court agreed with Biel and entered an order preventing the
State from calling the witnesses. The State seeks interlocutory review
of that order. We reverse the district court.
BACKGROUND
¶3 The night she was killed, Jawnie Wey was watching television
in her Taylorsville home, her back to a bay window.1 Wey’s thirteen-
year-old daughter was seated next to her. Seven shots were fired at
her home. One shot struck Wey in the back of her head. Wey’s
daughter held a towel to her mother’s head to stop the bleeding, but
Wey died a few days later. The bullet that took Wey’s life was
intended for her nephew, Luis Cruz.
¶4 The police soon arrived on the scene. Witnesses reported that
a Mercedes had circled the neighborhood, stopped, and that shots
had been fired from the car. The police eventually identified the car’s
four occupants: Euziel De La Torre, Giek Kuajian,2 Simon Mina,3 and
Koak Biel. Officers interviewed each of them.
¶5 When questioned, De La Torre admitted he drove to the
house with the others. He said Kuajian was in the front passenger
seat. Mina sat behind Kuajian in the passenger-side rear seat. And
Biel was in the driver-side rear seat behind De La Torre. De La Torre
said that the shots fired at the house came from behind him. When
the police spoke with Kuajian and Mina, they corroborated De La
Torre’s story.
1 We recite these facts to explain the district court’s ruling. But we
emphasize that no trial has occurred, and these allegations remain
allegations.
2 This last name is spelled differently in different parts of the
record. Biel spelled it “Kuajeian” during a police interview, and one
of the prosecutors once spelled it “Kuajiane.” We use the spelling
that is most common in the record and the one the parties used in
their briefs.
3 Mina is sometimes spelled “Mena” in the record. We use
“Mina” because that is the spelling used on the witness statement
signed by Simon Mina. This is also the spelling the parties use in the
briefing.
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¶6 The police then questioned Biel. Biel confirmed that he had
been sitting behind the driver. But Biel denied firing the shots. Biel
claimed that De La Torre stopped the car and shot the gun himself.
At the end of the interview, the officers took Biel into custody.
¶7 Several months later, the police asked Mina to sign a witness
statement. Mina demurred. He was willing to confirm that he was
with De La Torre, Kuajian, and Biel. He was also willing to confirm
that they were in a black Mercedes. But he refused to initial two lines
of the pre-prepared statement: the lines that said Biel fired the shots
that killed Wey. He wrote on the back of the form, “[Biel] had
nothing to do with it,” and initialed that instead.
¶8 Kuajian signed a witness statement implicating Biel as the
gunman. But Kuajian later recanted. In a conversation with defense
counsel, Kuajian said De La Torre was the shooter. He said that he
initially implicated Biel under the duress of De La Torre’s threats.
¶9 At a pretrial hearing, the State conceded it could not proceed
against Biel unless it could admit Kuajian’s and Mina’s initial
statements. The State lodged a motion in limine to admit the unsworn
statements Kuajian and Mina made to officers shortly after the
shooting in which they identified Biel as the person who fired the
shots.
¶10 The district court ruled from the bench. In the course of
denying the motion in limine, the district court described the inquiry:
The question now is, given, sort of, what we know
about what the witnesses are now saying, whether or
not the State can call the witnesses, even though there
is reason to believe that they will get on the stand and
offer testimony that is harmful to the State’s case
against Mr. Biel in order to question them with the
statements that they previously made to the police,
these prior inconsistent statements.
And the district court identified two rules of evidence that it
believed answered that question: rule 607 and rule 801(d)(1)(A).
¶11 Utah Rule of Evidence 607 states: “Any party, including the
party that called the witness, may attack the witness’s credibility.”4
4 Rule 607, which is identical to its federal counterpart, repealed
the common-law voucher rule. R. COLLIN MANGRUM & DEE BENSON,
MANGRUM & BENSON ON UTAH EVIDENCE, 1 UTAH PRAC. Rule 607,
Westlaw (updated Nov. 2020). Under the voucher rule, a party could
(continued . . .)
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STATE v. BIEL
Opinion of the Court
UTAH R. EVID. 607. Applying the rule, the State argued that Kuajian
and Mina “have changed their story.” Therefore, the State argued,
“[i]t is unknown what [Kuajian and Mina] will say when they take
the witness stand and swear to tell the truth,” but “[i]f they take the
stand and testify contrary to their original statements, the plain
language of rule 607 allows the State to impeach them with their
prior inconsistent statements.”
¶12 The State also argued that “the plain language of rule
801(d)(1)(A) allows [Kuajian’s and Mina’s] prior inconsistent
statements to come in, not only as impeachment evidence, but also as
substantive evidence as well.” Rule 801 defines and regulates
hearsay.5 The rule provides that a witness’s prior inconsistent
statement does not constitute hearsay when the witness “testifies
and is subject to cross-examination about [that] prior statement.”
UTAH R. EVID. 801(d)(1)(A).6 Our caselaw and the plain text of rule
801(d)(1)(A) confirm that prior inconsistent statements are not
hearsay but rather are admissible as substantive evidence. See State v.
Stricklan, 2020 UT 65, ¶ 69 n.10, 477 P.3d 1251; see also State v. Ramsey,
782 P.2d 480, 484 (Utah 1989) (“Utah Rule of Evidence 801(d)(1)(A)
acts more broadly to admit out-of-court statements or substantive
evidence than its federal counterpart because the Utah rule does not
require the out-of-court statement to be under oath.”).
not impeach its own witness except under special circumstances,
such as when a witness “unexpectedly and without explanation
contradicts his or her prior testimony.” Id. Rule 607 eliminates this
“obligation to explain surprise or establish the hostility of a witness
prior to impeaching that witness.” Id.5 Hearsay is a statement that its “declarant does not make while
testifying at the current trial or hearing” and that “a party offers in
evidence to prove the truth of the matter asserted in the statement.”
UTAH R. EVID. 801(c). Rule 802 prohibits the admission of hearsay in
court “except as provided by law or by these rules.” Id. 802.
6 Unlike rule 607, rule 801(d)(1) is not a verbatim copy of the
corresponding Federal Rule. As the Original Advisory Committee
Note explains, “[Utah rule 801(d)(1)] deviates from the federal rule
in that [the Utah rule] allows use of prior statements as substantive
evidence if (1) inconsistent or (2) the witness has forgotten, and does
not require the prior statement to have been given under oath or
subject to perjury.” UTAH R. EVID. 801(d)(1) original advisory
committee’s note.
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¶13 The district court drew heavily on federal law to give
meaning to the Utah rules. In particular, the district court relied on
the Fifth Circuit’s reasoning in United States v. Hogan, 763 F.2d 697(5th Cir. 1985), withdrawn in part, 771 F.2d 82 (5th Cir. 1985). The
district court found that Hogan stands for the proposition that “you
cannot call a witness that you know is going to be unhelpful to you
and then get in prior hearsay, inadmissible evidence, for the purpose
of impeaching the witness.” Based in part on Hogan, the district court
concluded that Kuajian’s and Mina’s prior inconsistent statements
were inadmissible under rule 607 and rule 801(d)(1)(A).
¶14 With regard to rule 607, the district court concluded that the
State has “as much reason to believe” that Kuajian and Mina were
likely to offer harmful testimony as the prosecutor in Hogan.
Therefore, if the State called Kuajian and Mina to impeach them
under rule 607, the State would violate Hogan’s rule against calling
witnesses it “knows to be hostile for the primary purpose of eliciting
otherwise inadmissible impeachment testimony.” Hogan, 763 F.2d
at 702. For this reason, the district court found that Hogan would not
permit the State to call Kuajian and Mina to impeach them using rule
607. The district court said simply, “Rule 607 doesn’t work.”
¶15 With regard to rule 801, the district court acknowledged that
there is a “significant difference between Utah Rule of Evidence
801(d)(1)(A) and Federal Rule of Evidence 801(d)(1)(A).” Under the
Utah Rules of Evidence, a witness’s prior inconsistent statements are
not considered hearsay if the witness “testifies and is subject to
cross-examination.” UTAH R. EVID. 801(d)(1)(A). By contrast, under
the Federal Rules of Evidence, a witness’s prior inconsistent
statements are admissible only if they were given “under penalty of
perjury.” FED. R. EVID. 801(d)(1)(A). As a consequence, the district
court found that Kuajian’s and Mina’s prior statements “don’t meet
the criteria for being non hearsay under the Federal Rule of
Evidence, but they do meet the criteria for being non hearsay under
the state Rule of Evidence.”
¶16 However, the district court found this to be a distinction
without difference. The court stated “arguably that same justification
for not allowing a subterfuge to get around the [Federal] Rules of
Evidence would apply to substantive evidence under [Utah] Rule
801(d)(1)(A).” The district court further reasoned, “even a
substantive prior inconsistent statement[][,] absent getting the
defendants on the stand and having them say something that is just
unquestionably harmful to the State, . . . is inadmissible.”
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STATE v. BIEL
Opinion of the Court
¶17 The district court located further support in R. COLLIN
MANGRUM & DEE BENSON, MANGRUM & BENSON ON UTAH EVIDENCE,
1 UTAH PRAC., Westlaw (updated Nov. 2020) (MANGRUM & BENSON).
The district court cited MANGRUM & BENSON for the proposition that,
under Utah law, “a party cannot call a witness simply for the
purpose of impeaching him with otherwise inadmissible evidence.”
The district court also took inspiration from the treatise’s prediction
that “this principle should also prohibit counsel from calling a
witness who will testify . . . contrary to the proponent[’]s theory of
the case simply to get before the jury an inconsistent statement under
Utah’s broadly worded non-hearsay category under Rule
801(d)(1)(A).”
¶18 The district court also relied on Ramsey, 782 P.2d 480. In
Ramsey, this court held that “a conviction that is based entirely on a
single, uncorroborated hearsay out-of-court statement that is denied
by the declarant in court under oath cannot stand.” Id. at 484.
Applying Ramsey, the district court reasoned that, if Kuajian and
Mina were allowed to testify and their prior inconsistent statements
were then introduced
the only substantive evidence that would exist based
on the State’s representations to the Court would be
these prior inconsistent statements that were made to
the police officers and under State v. Ramsey that would
not be enough to sustain a conviction, a directed
verdict would be required under those circumstances.
Thus, the district court concluded it would be improper to allow
Kuajian’s and Mina’s prior inconsistent statements to come before
the jury, even though Utah’s rule 801(d)(1)(A) is more expansive
than its federal analogue.
¶19 For these reasons, the district court denied the State’s
motion in limine. The State petitioned this court for permission to
appeal the district court’s interlocutory order.
STANDARD OF REVIEW
¶20 “The standard of review when considering the admissibility
of out-of-court statements under the Utah Rules of Evidence
depends on ‘whether the trial court’s analysis involves a factual or
legal determination or some combination thereof.’” State v. Parker,
2000 UT 51, ¶ 13, 4 P.3d 778 (citation omitted). When the trial court’s
analysis is factual, this court applies “a clearly erroneous standard of
review to those findings.” Id. But “[w]e review the district court’s
legal conclusions for correctness” and afford “no deference to the
district [court’s] legal determinations.” State v. Lusk, 2001 UT 102,
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¶ 10, 37 P.3d 1103 (second alteration in original) (quoting
Meadowbrook, LLC v. Flower, 959 P.2d 115, 116 (Utah 1998)) (internal
quotation marks omitted).
¶21 We are asked to review the district court’s interpretation of
the Utah Rules of Evidence. This presents a question of law that we
review for correctness. Id. We are also asked to determine if the State
invited the district court’s error. This is a legal question that we
review for correctness. Id.ANALYSIS
¶22 This appeal presents two issues. First, we must examine
whether the district court erred in its interpretation of the Utah Rules
of Evidence. Second, if the district court did err, we must determine
if the State invited that error.
I. THE DISTRICT COURT MISINTERPRETED
THE RULES OF EVIDENCE
¶23 The State argues that the district court’s holding is contrary
to the text of the Utah Rules of Evidence and unsupported by
caselaw.
¶24 The State knows its audience and starts by playing the hits.:
It argues that the district court strayed from the rules’ text to reach
its decision. Referencing Utah Rule of Evidence 801(d)(1)(A), the
State posits:
Nothing in the rule prevents a party from calling an
adverse witness then presenting the jury with their
prior inconsistent statements should their testimony
contradict their prior statements. And the rule’s plain
language allows the jury to consider the prior
statement for the truth of the matter asserted in that
statement.
Thus, the State contends the district court’s interpretation is extra-
textual. Indeed, the State argues that not only is the district court’s
decision not based in the rule’s language, but it is also contra-textual,
in that it would forbid evidence the plain language of 801(d)(1)(A)
permits.
¶25 The State observes that this court has repeatedly eschewed
extra-textual or contra-textual judicial glosses on the Utah Rules of
Evidence. See State v. Lowther, 2017 UT 34, ¶ 30 n.40, 398 P.3d 1032(repudiating our prior characterization of rule 404(b) as an
“inclusionary” rule and instead looking “to the plain language of
rule 404(b) for the standard for the admissibility of evidence”); see
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STATE v. BIEL
Opinion of the Court
also Met v. State, 2016 UT 51, ¶ 90, 388 P.3d 447 (abandoning factors
we previously created for rule 403 in favor of “the ultimate rule 403
test—whether the probative value of a photograph is substantially
outweighed by a danger of unfair prejudice or . . . other
considerations”— i.e., the rule’s plain text).
¶26 We agree. “[W]e interpret a court rule in accordance with its
plain meaning . . . .” State v. Rothlisberger, 2006 UT 49, ¶ 15, 147 P.3d
1176. In keeping with this principle, we start with the plain meaning
of rule 607 and rule 801(d)(1)(A).
¶27 The plain language of rule 607 and rule 801 of the Utah
Rules of Evidence does not support the district court’s interpretation.
Rule 607 states: “Any party, including the party that called the
witness, may attack the witness’s credibility.” UTAH R. EVID. 607.
Rule 801(d)(1)(A) states: “A statement that meets the following
conditions is not hearsay: . . . [if] [t]he declarant testifies and is
subject to cross-examination about a prior statement, and the [prior]
statement . . . is inconsistent with the declarant’s testimony or the
declarant denies having made the statement or has forgotten.” UTAH
R. EVID. 801(d)(1)(A).
¶28 No party contends that Mina and Kuajian are witnesses
without relevant testimony. Rule 607 permits the State to call Mina
and Kuajian and to attack their credibility if need be. And rule
801(d)(1)(A) allows the State to cross-examine them with their prior
inconsistent statements.
¶29 Acting contrary to the text of rule 607 and rule 801(d)(1)(A),
the district court excluded evidence that ought to have been
admissible. Thus, a plain meaning analysis supports reversing the
district court. That is, the rules permit the State to do what it moved
in limine to do, and the district court erred when it denied that
motion.
¶30 Biel defends the district court’s ruling with two arguments.
First and foremost, Biel emphasizes the primary case that the district
court relied on to reach its decision, United States v. Hogan, 763 F.2d
697 (5th Cir. 1985), withdrawn in part, 771 F.2d 82 (5th Cir. 1985).
Hogan stands for the proposition that the “prosecution . . . may not
call a witness it knows to be hostile for the primary purpose of
eliciting otherwise inadmissible impeachment testimony, for such a
scheme merely serves as a subterfuge to avoid the hearsay rule.” Id.
at 702. Biel argues that “Hogan is essentially on all fours with the case
at bar—rule 607 is identical under both the state and federal rules,
and the argument the government asserted before the Fifth Circuit is
basically identical to the argument the State asserted below here.”
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(citation omitted). Biel posits that “Hogan’s logic applies with equal
force here, regardless of the difference between the narrow federal
hearsay rule and Utah’s broadly-worded non-hearsay rule” in
801(d)(1)(A).
¶31 As Biel further explains, Kuajian’s and Mina’s “out-of-court
statements constitute inadmissible hearsay . . . unless and until they
testify contrary to their prior out-of-court statements.” (citation
omitted). According to Biel, “the statements could only come in if the
State impeached [Kuajian] and [Mina] with them under rule 607.”
Biel also approvingly cites the district court’s observation that, by
calling Kuajian and Mina, “there’s every reason to believe these
witnesses are going to take the stand and offer harmful evidence.”
(internal quotation marks omitted). Therefore, “the State is relying
on rule 607 to ‘avoid the hearsay rule[,]’ which would otherwise
exclude the witnesses’ out-of-court statements.” (alteration in
original) (citation omitted). In Biel’s telling, this is an “end-run”
around the rules of evidence that Hogan called out and forbad.
¶32 In other words, Biel, echoing the district court, argues that
the State wants to introduce out-of-court statements that are not
admissible as prior inconsistent statements until they are
inconsistent with testimony offered at trial. And Biel uses Hogan to
argue that the State should not be allowed to create the inconsistency
that permits the statements to be introduced.
¶33 The State downplays Hogan’s persuasive value arguing that,
“in Utah, the federal rule 607 end-run rationale does not apply
because there is no end to run around: Unsworn prior inconsistent
statements are admissible under rule 801(d)(1)(A) for the truth of the
matter asserted.” We agree with the State that the “end run” the
Hogan court identified does not exist in the Utah Rules of Evidence.
¶34 Unlike Federal Rule of Evidence 801(d)(1)(A), Utah’s rule
801(d)(1)(A) applies to the prior inconsistent statements a testifying
witness makes, regardless of whether those prior statements were
made under penalty of perjury. Compare UTAH R. EVID. 801(d)(1)(A),
with FED. R. EVID. 801(d)(1)(A). Because of this, under the federal
regime, unsworn prior inconsistent statements can be admissible for
impeachment but not as substantive evidence. But in Utah, there is
no danger of impeachment evidence being mistaken for substantive
evidence or of hearsay being mistaken for non-hearsay. Simply put,
Hogan’s rationale does not apply to the Utah Rules of Evidence.
¶35 We acknowledge Biel’s argument that the State’s motion in
limine has the feel of an “end-run” because the State cannot
introduce Kuajian’s and Mina’s statements until they are
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STATE v. BIEL
Opinion of the Court
inconsistent. And there does seem to be something not quite cricket
about permitting a party to create the inconsistency that opens the
door to the prior statements. But on balance, any concerns about that
dynamic are outweighed by the trial’s truth-seeking function.
¶36 No party argues that Kuajian and Mina are unlikely to
possess relevant information about the case. When the State calls
them, Kuajian and Mina will either: (1) stick with their original story
(and no one would say that the State could not call them for that
purpose); (2) testify consistent with their revised story (and then the
State could properly introduce their prior inconsistent statements);
or (3) say something completely different (and then the State could
introduce the prior statements all the same). All of these outcomes
are permissible under the Utah Rules of Evidence. All of these
outcomes could provide valuable information to the jury.
¶37 We also acknowledge the policy arguments against
permitting the jury to hear the witnesses’ prior versions of the
events. These primarily involve concerns that the jury might be
confused by the earlier statements and that unsworn out-of-court
statements are not sufficiently reliable to be introduced as
substantive evidence. But these are policy arguments we implicitly
rejected when we amended rule 801 to permit their admission of
unsworn out-of-court statements for their truth.7
¶38 Biel also argues that State v. Ramsey, 782 P.2d 480 (Utah
1989), supports the district court’s ruling. In Ramsey, this court found
that a prior inconsistent statement was substantive evidence but “at
best highly unreliable” and therefore insufficient to sustain a
conviction. Ramsey, 782 P.2d at 483. Biel uses Ramsey’s holding to
argue that, “just because non-hearsay constitutes substantive
evidence under Utah’s rules, [this] does not mean the policy against
using rule 607 as a subterfuge to avoid the rule against hearsay loses
its logical force.”
¶39 As Biel explains,
[E]ven though [Kuajian’s] and [Mina’s] prior out-of-
court statements, if appropriately admitted under rule
7 Other guardrails exist that can constrain the use of prior
inconsistent statements. For example, under Utah Rule of Evidence
403, a “court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” UTAH
R. EVID. 403. A district court may apply this calculus to any piece of
admissible evidence that comes before it.
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801(d)(1)(A), constitute substantive evidence, that does
not negate that the statements remain unreliable nor
does it negate the risk that the jury could convict Biel
solely on the basis of unreliable evidence in potential
violation of his due process rights.
Therefore, Biel argues that the district court was right to hold that
the prior inconsistent statements are inadmissible.
¶40 The State notes that “Ramsey was about the sufficiency, not
the admissibility, of evidence. Ramsey did not say that the prior
inconsistent statement [it considered] was inadmissible, only that it
was insufficient on its own to support conviction there.” We agree.
Ramsey might have some role to play if Biel is convicted and wants to
challenge the sufficiency of the evidence introduced to establish his
guilt. But the fact that we have commented upon a conviction that
rested solely on an unsworn and unsubstantiated out-of-court
statement does not mean that we will, in the context of a pending
case, rewrite the Rules of Evidence to prevent the admission of such
a statement.
¶41 Finally, Biel notes that MANGRUM & BENSON supports the
district court’s position. Biel quotes MANGRUM & BENSON for the
proposition that the Utah Rules “should . . . prohibit counsel from
calling a witness who will testify to facts contrary to the proponent’s
theory of the case, simply to get before the jury an inconsistent
statement under Utah’s broadly worded nonhearsay category under
rule 801(d)(1)(A).” See MANGRUM & BENSON, Rule 607. MANGRUM
& BENSON is one of the preeminent treatises on Utah law and a
valuable source of legal analysis. But, notably, MANGRUM & BENSON
cites no Utah caselaw in support of its assertion. MANGRUM
& BENSON merely predicted what Utah law would be. And it
predicted incorrectly.
¶42 Biel also advances policy arguments in support of the
district court’s ruling. He primarily argues that the interpretation
Hogan gave to the federal rules is fairer than the interpretation we
give to the Utah rules. Biel contends,
The federal interpretation of rule 607 promotes fairness
because it allows the government to impeach its own
witness so long as the government called the witness
on the good faith belief that the witness’s testimony
would support the government’s theory of the case. It
promotes fairness because if the government calls a
witness with the intent of sneaking in otherwise
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Opinion of the Court
inadmissible hearsay evidence, it does not allow the
government to impeach the witness.8
Biel then analogizes the federal approach to rule 607 to our approach
to rule 404(b), the rule restricting the use of character evidence. See
UTAH R. EVID. 404(b). Rule 404(b) requires courts to assess a party’s
purpose in offering a particular piece of evidence: The rule permits
some uses of character evidence but not others. Id. This is similar to
the federal approach to rule 607, where the court must determine if
the prosecution is sincerely attempting to offer a witness’s testimony
or merely engaging in “subterfuge to avoid the hearsay rule.” Hogan,
763 F.2d at 702.
¶43 The fault with Biel’s argument lies in his interpretation of
the text. Biel’s argument neglects that Utah Rule of Evidence 404(b)
requires an inquiry into the purpose for which the evidence is being
offered. The rule states, “Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the character.”
UTAH R. EVID. 404(b)(1) (emphasis added). As a result, the rule
demands that the court examine the purpose for which the evidence
is offered. Neither rule 607 nor 801(d)(1)(A) contains a similar
requirement.9 See UTAH R. EVID. 607; see also id. 801(d)(1)(A).
¶44 Kuajian’s and Mina’s prior inconsistent statements are
admissible. The State can seek to call these witnesses, even if they are
likely to testify contrary to the State’s theory of the case. The district
court erred when it denied the motion in limine.
8 We note that while Biel argues in terms of what the State wants
to do in this case, this is not an interpretation of the rules that always
favors the State and disfavors a defendant. There will undoubtedly
be instances where a defendant will want to put a witness on the
stand for reasons similar to those that motivate the State here.
9 The arguments Biel advances may be more properly directed to
the Supreme Court Advisory Committee on the Rules of Evidence.
That is the committee that recommended we depart from the federal
rule, and the committee can recommend additional changes if
warranted.
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II. THE STATE DID NOT INVITE
THE DISTRICT COURT’S ERROR
¶45 Biel offers another reason why we should let the district
court’s order stand. Biel contends the State invited the district court
to commit the error of which it now complains.
¶46 Our doctrine of invited error is intended to prevent “parties
from intentionally misleading the trial court so as to preserve a
hidden ground for reversal on appeal.” State v. McNeil, 2016 UT 3,
¶ 17, 365 P.3d 699 (citation omitted) (internal quotation marks
omitted). An “error is invited when counsel encourages the trial
court to make an erroneous ruling.” Id. We usually find invited error
“when the context reveals that counsel independently made a clear
affirmative representation of the erroneous principle.” Id. ¶ 18
(citations omitted). We also understand, however, the ebb and flow
of courtroom argument, and we have acknowledged that, at times,
an attorney winds up following a court’s lead. We have held that
where “the trial court—not counsel—is responsible for leading a
courtroom discussion into error, any resulting error is not invited.”
Id. ¶ 19.
¶47 Biel argues that the State invited error when it admitted “it
would be improper for the State to put a witness on the stand with
the intent of impeaching them with their prior inconsistent
statements.” This statement, on its face, goes to the heart of the
contested issue. It appears to invite the district court to err, on the
same grounds that the State challenges on interlocutory appeal. That
is, the State conceded that it could not do what it now asks us to
allow it to do—to put a witness on the stand in hopes of impeaching
the witness with his prior inconsistent statements.
¶48 Biel has a point. Viewed in insolation, the State’s concession
that it would be improper to call a witness knowing they would give
unhelpful testimony resembles a statement in which “counsel
independently made a clear affirmative representation of the
erroneous principle.” Id. ¶ 18.
¶49 But when we look at the context in which the State made
this disputed statement, Biel’s argument becomes less compelling.
Immediately before the State’s concession, the district court pressed
the State on its motive for wanting to call Kuajian and Mina. The
district court said:
You would not call them but for the fact that you were
going to try to put into evidence this evidence that is
otherwise inadmissible. And so you put them on the
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STATE v. BIEL
Opinion of the Court
stand anticipating the negative information will come
in, and then you use that as a basis to introduce
evidence you otherwise wouldn’t be able to introduce.
The State pushed back by arguing that it was not, in fact, expecting
Kuajian and Mina to testify contrary to their prior statements. The
State conceded that the kind of impeachment envisioned by the
district court—“put[ting] on a witness with the intent of impeaching
them with their prior inconsistent statements”—would be improper.
Viewed in this context, this is not the type of “independent[]”
statement of “the erroneous principle” that causes us concern. Id.
Instead, this was a trial attorney reading the room and trying to get
half a loaf before the court took all the bread.
¶50 In that circumstance, the “trial court—not counsel—is
responsible for leading a courtroom discussion into error.” Id. ¶ 19.
The district court here intimated that the State’s plan to call Kuajian
and Mina was a kind of subterfuge: an attempt to “use that as a basis
to introduce evidence you otherwise wouldn’t be able to introduce.”
The State, apparently sensing the district court’s resistance to this
approach, attempted to reassure the district court. The State
acquiesced that it would be improper to call Kuajian and Mina with
“the intent of impeaching them with their prior inconsistent
statements,” but only because the district court suggested that was
what the State was trying to do. The State therefore did not
“independently” invite error. Id. ¶ 18. Thus, there is no bar to our
reaching the argument.
CONCLUSION
¶51 The district court misinterpreted the Utah Rules of
Evidence. Nothing in the rules prohibits the State from calling a
witness the State knows or suspects will give unhelpful testimony if
the State plans to impeach the witness with the witness’s helpful
prior inconsistent statements. As such, we reverse the district court’s
ruling on the State’s motion in limine and remand.
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