State v. Sanchez

2016 UT App 189THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAMES RAPHAEL SANCHEZ,
Appellant.
Opinion
No. 20140749-CA
Filed September 1, 2016
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 111903659
John B. Plimpton, Ralph W. Dellapiana, and Teresa
L. Welch, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN concurred. SENIOR JUDGE
RUSSELL W. BENCH concurred except as to Part I, in which he
concurred in the result, with opinion.1
VOROS, Judge:
¶1 James Raphael Sanchez appeals his convictions for
murder, a first degree felony, and obstruction of justice, a second
degree felony. Sanchez beat his girlfriend (Victim) for hours
before strangling her. He then attempted to clean the apartment
before asking a friend to pick him up. His principal claim on
appeal is that the court incorrectly excluded out-of-court
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Sanchez
statements that supported his mitigation theory of extreme
emotional distress. He also claims that the evidence was
insufficient to support his conviction for obstruction of justice.
We affirm.
BACKGROUND
¶2 On the morning of May 5, 2011, Sanchez called 911. He
refused to identify himself, but told dispatch ‚there’s a woman
here, not breathing‛ at Victim’s apartment. When the
paramedics arrived at the apartment, they found Victim ‚badly
beaten, [not] breathing, and [with] obvious signs of rigor
mortis.‛ Diffuse ‚deep red, purple‛ bruising and swelling
covered Victim’s face. Her nose was fractured. ‚There was blood
in the whites of both of her eyes.‛ The ‚inner surfaces of her
lips‛ were torn, ‚as if the lip had been pulled away from the
gum.‛ Her neck was bruised, consistent with strangulation.
Victim’s torso, abdomen, legs, arms, hands, and buttocks also
displayed ‚extensive‛ bruises ‚too numerous to count.‛ Eight of
her ribs were fractured. Possible bite marks were found on
Victim’s back and buttocks. Police also found blood throughout
the apartment. Some of the blood looked diluted or as if
someone had tried to wipe it away.
¶3 Victim’s neighbor had been kept awake by ‚muffled
yelling, some grunting, and then some running around here and
there, and then . . . a lot of crying, . . . like despair.‛ The sounds
continued for at least five hours, but when the neighbor left for
work at 8:15 a.m. ‚it was dead silent.‛ Sanchez told police that
he ‚got into a fight with‛ Victim that lasted all night. He said
‚that he slapped her, thumped her, and then he called the cops.‛
When asked to elaborate, he described punching, slapping,
kicking, stomping, grabbing, and finally strangling Victim.
Sanchez ‚said that she lost consciousness and that he attempted
to revive her on a couple of occasions by breathing for her.‛ He
also put Victim’s head under running water in an attempt to
20140749-CA 2 2016 UT App 189State v. Sanchez
revive her. When she lost consciousness for the last time, he lay
down next to her and took a nap. When Sanchez woke up and
Victim did not, he called a friend, then called 911. He left the
apartment, leaving the door open for paramedics and police. His
friend drove Sanchez to a convenience store, where Sanchez
again called 911. They then went to the friend’s house, where
Sanchez took off his bloody pants and socks and took a nap.
¶4 At trial, the State introduced an interview between
Sanchez and a police detective through the detective’s testimony.
The interview was audio-recorded and transcribed. In the
interview, Sanchez admitted to assaulting Victim. On cross-
examination of the detective, Sanchez attempted to elicit
testimony that would explain the reason for the assault—that
‚he started fighting with *Victim+ because he thought she was
cheating on him with his brother,‛ that ‚she admitted it and she
kept saying it,‛ that ‚she wouldn’t tell [him] that‛ she would
stop the affair, and that Victim’s statement ‚hurt *his+ feelings.‛
The trial court excluded the testimony, stating, ‚If you’re seeking
to introduce . . . hearsay, unless you can give me an exception,
it’s not coming in.‛ Sanchez argued, among other things, that the
court was required to admit the testimony under rule 106 of the
Utah Rules of Evidence. The court determined that rule 106 did
not require the court to admit the testimony. Sanchez did not
testify at trial.
¶5 Sanchez also moved for a directed verdict on the
obstruction-of-justice charge, arguing that the evidence failed to
show that he acted with the requisite intent. The trial court
denied the motion.
¶6 The jury convicted Sanchez of murder, a first degree
felony, and obstruction of justice, a second degree felony.
Sanchez appeals.
20140749-CA 3 2016 UT App 189State v. Sanchez
ISSUES ON APPEAL
¶7 Sanchez contends that under rule 106 of the Utah Rules of
Evidence, the trial court was required to admit the part of his
police interview in which he explained why he assaulted Victim,
because it was necessary to qualify, explain, or place into context
the part of the statement in which he confessed to the assault.
¶8 Sanchez also contends that the evidence was insufficient
to support his conviction for obstructing justice.
ANALYSIS
I. Utah Rule of Evidence 106
¶9 Sanchez contends that under rule 106 of the Utah Rules of
Evidence, the trial court was required to admit the part of his
police interview in which he explained why he assaulted Victim,
because it was necessary to qualify, explain, or place into context
the part of the statement in which he confessed to the assault.
Sanchez attempted to introduce the part of his statement in
which he told police that ‚he started fighting with [Victim]
because he thought she was cheating on him with . . . his
brother.‛ He said ‚this enraged him,‛ that Victim ‚admitted it
and she kept saying it,‛ and that it ‚hurt *his+ feelings.‛
¶10 Rule 106 of the Utah Rules of Evidence ‚permits
introduction of an otherwise inadmissible statement if the
opposing party introduces a portion of the statement.‛ State v.
Jones, 2015 UT 19, ¶ 40, 345 P.3d 1195.
If a party introduces all or part of a writing or
recorded statement, an adverse party may require
the introduction, at that time, of any other part—or
any other writing or recorded statement—that in
fairness ought to be considered at the same time.
20140749-CA 4 2016 UT App 189State v. Sanchez
Utah R. Evid. 106. The rule ‚serves a protective function to
prevent a misleading impression created by taking matters out
of context.‛ Jones, 2015 UT 19, ¶ 40 (citation and internal
quotation marks omitted).
¶11 We ‚review a trial court’s decision to admit or exclude
specific evidence for an abuse of discretion.‛ Id. ¶ 12 (citation
and internal quotation marks omitted). ‚In circumstances where
evidence should have been admitted, it is reviewed for harmless
error.‛ State v. Colwell, 2000 UT 8, ¶ 26, 994 P.2d 177. ‚If it is
reasonably likely a different outcome would result with the
introduction of the evidence and confidence in the verdict is
undermined, then exclusion is harmful.‛ Id.¶12 We first consider whether the trial court erred when it
excluded Sanchez’s statement under the fairness standard of rule
106. Because we conclude that the court exceeded its discretion
when it excluded the statement under the fairness standard, we
then consider whether Sanchez’s statement was hearsay and, if
so, whether rule 106 creates a hearsay exception. And because
we conclude that rule 106 does create a hearsay exception, we
then consider whether the erroneous exclusion of the statement
was harmless.
A. The Fairness Standard
¶13 Rule 106 allows a party to admit the balance of a written
or recorded statement ‚that in fairness ought to be considered at
the same time‛ as the rest of the statement. Utah R. Evid. 106.
The rule ‚establishes a fairness standard that requires admission
of those things that are relevant and necessary to qualify,
explain, or place into context the portion already introduced.‛
Jones, 2015 UT 19, ¶ 40 (citation and internal quotation marks
omitted). ‚It thus serves a protective function to prevent a
misleading impression created by taking matters out of context.‛
Id. (citation and internal quotation marks omitted). ‚The trial
court has considerable discretion in determining issues of
20140749-CA 5 2016 UT App 189State v. Sanchez
fairness . . . .‛ State v. Leleae, 1999 UT App 368, ¶ 45, 993 P.2d 232.
‚In determining whether a disputed portion of a statement must
be admitted [under the federal version of rule 106], the trial
court should consider whether (1) it explains the admitted
evidence, (2) places the admitted evidence in context, (3) avoids
misleading the jury, and (4) insures fair and impartial
understanding of the evidence.‛ United States v. Lopez-Medina,
596 F.3d 716, 735 (10th Cir. 2010) (citation and internal quotation
marks omitted).2
¶14 The trial court here ruled that ‚the fairness analysis does
not require the admission of *Sanchez’s+ statements offered to
explain the reasons for his brutal assault on the victim,‛ because
the explanation was ‚a self-serving, after-the-fact explanation.‛
The court also ruled that the fairness standard did not require
the admission of Sanchez’s explanation, because it was
‚temporally removed‛—separated by sixteen pages in the
transcript—from the confession introduced by the prosecution.
Sanchez argues that ‚neither of these reasons is valid for
excluding evidence offered under rule 106.‛
¶15 In ruling that the fairness standard did not require the
admission of a self-serving explanation, the trial court relied on
this court’s opinion in Leleae, 1999 UT App 368. In Leleae, the trial
court ruled that fairness did not require admission of a statement
where ‚the statement was merely self-serving.‛ Id. ¶ 45. We
2. Utah appellate courts have had little occasion to consider rule
106. See State v. Jones, 2015 UT 19, ¶¶ 40–42, 345 P.3d 1195; State
v. Leleae, 1999 UT App 368, ¶¶ 42–46, 993 P.2d 232; see also State
v. Cruz-Meza, 2003 UT 32, ¶¶ 9–14, 76 P.3d 1165 (comparing rule
106 to ‚the doctrine of oral completeness‛ under rule 611).
However, Utah Rule of Evidence 106 ‚is the federal rule,
verbatim,‛ Utah R. Evid. 106 advisory committee note, so ‚we
look to federal cases interpreting Rule 106 as persuasive but not
necessarily binding authority,‛ Leleae, 1999 UT App 368, ¶ 43 n.5.
20140749-CA 6 2016 UT App 189State v. Sanchez
concluded that the trial court had not abused its discretion, but
we did so noting that although the statement had been excluded,
‚the jury heard testimony that supported defendant’s version of
the incident and put the admitted portion of defendant’s
statement in context.‛ Id. The statement that the defendant
sought to admit under rule 106 was therefore not ‚necessary to
qualify, explain, or place into context the portion already
introduced,‛ Jones, 2015 UT 19, ¶ 40 (citation and internal
quotation marks omitted), because other admitted testimony
served to place the testimony into context. Leleae, 1999 UT App
368, ¶ 45.
¶16 That is not the case here. Because Sanchez did not testify,
no other testimony presented his explanation that ‚he started
fighting with [Victim] because he thought she was cheating on
him with . . . his brother.‛ Moreover, ‚*t+here is no legal
principle which excludes statements or conduct of a party solely
on the ground they are self-serving. If otherwise admissible, a
party has as much right to his own evidence as to the evidence of
any other witness.‛ State v. Johnson, 671 P.2d 215, 216 (Utah 1983)
(per curiam).3 But cf. Glauser Storage, LLC v. Smedley, 2001 UT
App 141, ¶ 24, 27 P.3d 565 (‚Even where testimony is
uncontroverted, a trial court is free to disregard such testimony
if it finds the evidence self-serving and not credible.‛ (citation
and internal quotation marks omitted)). Although the statement
was self-serving, fairness required that Sanchez be allowed ‚to
qualify, explain, or place into context‛ the portion of his
confession introduced by the detective’s testimony. See Jones,
2015 UT 19, ¶ 40 (citation and internal quotation marks omitted).
3. The trial court ruled that Victim’s statement was inadmissible
hearsay. But as we discuss below, see infra ¶ 21, Victim’s
statement was not offered for the truth of the matter asserted
and was therefore not hearsay.
20140749-CA 7 2016 UT App 189State v. Sanchez
¶17 The trial court also ruled that Sanchez’s statement ‚was
temporally removed from the inculpatory statements that had
been received without objection.‛ The court explained that it
believed rule 106 and the rule of completeness were implicated
‚when there is a fragment of a sentence, or a fragment of a
paragraph, that is being introduced, but in fairness, to get a full
context of that—of the import of that limited statement, the
whole statement should be read, then that’s when the Rule of
Completeness applies.‛ The court concluded with, ‚I do not
believe that it’s implicated when we are addressing parts of an
interview that are, as was represented to me, twenty or more
pages apart . . . .‛ Sanchez argues that ‚the touchstone of rule
106 is fairness without regard to the temporal proximity of the
pertinent parts of the statement.‛
¶18 We agree with Sanchez. Rule 106 allows a party to
introduce ‚any other part‛ of a recorded statement that qualifies,
explains, or places into context a statement introduced by the
opposing party. See Utah R. Evid. 106. The rule does not limit the
adverse party to ‚a fragment of a sentence‛ or ‚a fragment of a
paragraph.‛ ‚Underlying Rule 106 [of the Federal Rules of
Evidence] . . . is a principle of fairness requiring the introduction
of an entire or related document if necessary for the fair and
impartial understanding of the admitted portion or document.‛
Phoenix Assocs. III v. Stone, 60 F.3d 95, 102 (2d Cir. 1995) (citation
and internal quotation marks omitted). Determining what must
be admitted in fairness under rule 106 ‚becomes a line-drawing
exercise, to be conducted case by case.‛ United States v. Boylan,
898 F.2d 230, 256 (1st Cir. 1990) (applying the federal analogue of
our rule 106). We conclude that in this case, the trial court drew
that line unreasonably close to the portion of the record already
admitted. Sanchez’s explanation for the assault was part of the
same interview with the same detective and, even if it had been
given at a later point, qualified his confession.
¶19 Having concluded that the trial court exceeded its
discretion by not admitting Sanchez’s statement under rule 106’s
20140749-CA 8 2016 UT App 189State v. Sanchez
fairness standard, we now turn to the question of whether that
same standard allows the admission of otherwise inadmissible
hearsay.
B. Hearsay Exception
¶20 Sanchez contends that the trial court erred when it
excluded his statement as ‚double hearsay,‛ or hearsay within
hearsay. Sanchez sought to admit his statement to police about
what Victim had said to him—that Victim ‚admitted‛ she was
cheating on him with his brother and that ‚she kept saying it.‛
He argues that his statement did not constitute double hearsay
because Victim’s statement is not hearsay. Victim’s statement is
not hearsay, he reasons, ‚because it was not offered for the truth
of the matter asserted in it.‛ ‚Whether a statement is offered for
the truth of the matter asserted is a question of law, which we
review under a correction of error standard.‛ State v. Haltom,
2005 UT App 348, ¶ 8, 121 P.3d 42 (citation and internal
quotation marks omitted). He further argues that his statement
was admissible hearsay under rule 106 of the Utah Rules of
Evidence. We ‚review a trial court’s decision to admit or exclude
specific evidence for an abuse of discretion.‛ State v. Jones, 2015
UT 19, ¶ 12, 345 P.3d 1195 (citation and internal quotation marks
omitted).
¶21 Hearsay, as defined by the Utah Rules of Evidence, is ‚a
statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement.‛ Utah
R. Evid. 801(c). ‚However, if an out-of-court statement is offered
simply to prove that it was made, without regard to whether it is
true, such testimony is not proscribed by the hearsay rule.‛ State
v. Olsen, 860 P.2d 332, 335 (Utah 1993) (citation and internal
quotation marks omitted). ‚Often statements of this type merely
reveal people’s motives for later actions.‛ State v. McNeil, 2013
UT App 134, ¶ 48, 302 P.3d 844, aff’d, 2016 UT 3, ¶ 46, 365 P.3d
699. Sanchez argues, and we agree, that he attempted to offer
20140749-CA 9 2016 UT App 189State v. Sanchez
Victim’s statement ‚simply to prove that it was made,‛ see Olsen,
860 P.2d at 335 (citations and internal quotation marks omitted),
and not to prove that Victim was in fact cheating on Sanchez
with his brother. Accordingly, the trial court erred when it ruled
that Victim’s statement to Sanchez—the statement within
Sanchez’s own hearsay statement—was hearsay.
¶22 Sanchez concedes that his statement to police was
hearsay, but argues that it was ‚admissible hearsay under Rule
106.‛ In other words, Sanchez contends that a portion of a
recorded statement that ‚in fairness ought to be considered‛
under rule 106 need not also satisfy the hearsay rule. See Utah R.
Evid. 106. Although this is not the first time the question has
been presented to a Utah appellate court, no Utah court has
decided it. See Jones, 2015 UT 19, ¶ 41. We now conclude that rule
106 allows the admission of otherwise inadmissible hearsay if
under the fairness standard the evidence should be considered.
¶23 The state and federal rule 106 is at minimum a rule of
timing. See Fed. R. Evid. 106 advisory committee note (‚The rule
is based on two considerations . . . . The second is the inadequacy
of repair work when delayed to a point later in the trial.‛). See,
e.g., United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013);
United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986); Sipary
v. State, 91 P.3d 296, 300 (Alaska Ct. App. 2004). ‚Because
admitting the curative evidence later in the trial may not be
adequate to remedy the effect of the misleading impression, Rule
106 authorizes a party to interrupt the proceedings to have the
curative evidence introduced immediately.‛ United States v.
Holden, 557 F.3d 698, 705 (6th Cir. 2009). Courts that read rule
106 solely as a rule of timing focus on the final provision of the
rule that allows the adverse party to complete a statement or
place a statement into context ‚at the same time‛ as the original
evidence. See, e.g., United States v. Costner, 684 F.2d 370, 373 (6th
Cir. 1982) (‚Rule 106 is intended to eliminate the misleading
impression created by taking a statement out of context. The rule
20140749-CA 10 2016 UT App 189State v. Sanchez
covers an order of proof problem; it is not designed to make
something admissible that should be excluded.‛).
¶24 We now consider whether Utah’s version of rule 106 is
also a rule of admissibility; that is, whether it can ‚overcome rule
802’s prohibition against hearsay.‛ Jones, 2015 UT 19, ¶ 41.
Courts are about equally divided on whether rule 106 operates
to admit otherwise inadmissible hearsay. See id. ¶ 41 n.56.4
4. By our count, four federal circuit courts of appeals read rule
106 to admit otherwise inadmissible hearsay. See, e.g., United
States v. Harry, 816 F.3d 1268, 1279–80 (10th Cir. 2016); United
States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008); United States v.
Johnson, 507 F.3d 793, 796 (2d Cir. 2007); United States v. Sutton,
801 F.2d 1346, 1368 (D.C. Cir. 1986). Five circuits do not read rule
106 to admit otherwise inadmissible hearsay. See, e.g., United
States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014); United States v.
Vargas, 689 F.3d 867, 876 (7th Cir. 2012); United States v. Ramos-
Caraballo, 375 F.3d 797, 803 (8th Cir. 2004); United States v.
Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Costner,
684 F.2d 370, 373 (6th Cir. 1982). Of the five circuits that have
appeared to hold that the rule of completeness does not trump
other restrictions on the admissibility of evidence, at least four
have done so only in dicta. Michael A. Hardin, This Space
Intentionally Left Blank: What To Do When Hearsay and Rule 106
Completeness Collide, 82 Fordham L. Rev. 1283, 1312 (2013) (‚A
particular pattern emerges in these cases. Courts of this view
often state that Rule 106 cannot render inadmissible remainders
admissible, but then go on to find other reasons not to admit the
remainder*.+‛). ‚The Supreme Court *has+ ducked this issue by
holding that whether or not it was usable under Rule 106 [of the
Federal Rules of Evidence], a party could introduce the
remainder of a truncated letter as part of his own case under the
common law completeness doctrine.‛ Charles Alan Wright and
Kenneth W. Graham, Jr., 21A Federal Practice and Procedure
(continued<)
20140749-CA 11 2016 UT App 189State v. Sanchez
¶25 We begin with the language of the rule. See State v. Vessey,
957 P.2d 1239, 1240 (Utah Ct. App. 1998) (per curiam) (‚When
the language of a rule or statute is unambiguous, Utah courts
have consistently held the rule’s plain language must be
followed.‛).The rule states that ‚*i+f a party introduces all or part
of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be
considered at the same time.‛ Utah R. Evid. 106. The key term is
introduction. Does the adverse party’s right to require the
introduction of the omitted evidence mean that the adverse party
has a right to insist that it merely be offered into evidence, or
that it also be admitted into evidence? In context, we read the
term introduce as synonymous with admit. Black’s Law
Dictionary defines ‚introduce into evidence‛ as ‚*t+o have (a fact
(488
U.S. 153, 170–73 (1988)).
The states are similarly divided. Compare Liftee v. Boyer,
117 P.3d 821, 833 (Haw. Ct. App. 2004) (stating that rule 106
allows for the admission of otherwise inadmissible evidence);
Nickell v. Russell, 614 N.W.2d 349, 355 (Neb. 2000) (same); Walters
v. State, 247 S.W.3d 204, 217–18 (Tex. Crim. App. 2007) (same);
State v. Gray, 511 S.E.2d 873, 876–77 (W. Va. 1998) (same); State v.
Eugenio, 579 N.W.2d 642, 651–52 (Wis. 1998) (same); Hayes v.
State, 935 P.2d 700, 706 (Wyo. 1997) (same), with Stoneking v.
State, 800 P.2d 949, 951–52 (Alaska Ct. App. 1990) (stating that
rule 106 does not make admissible an otherwise inadmissible
statement); Banther v. State, 823 A.2d 467, 487 (Del. 2003) (same);
McAtee v. Commonwealth, 413 S.W.3d 608, 630 (Ky. 2013) (same);
Simmons Oil Corp. v. Wells Fargo Bank, N.A., 1998 MT 129, ¶ 30,
960 P.2d 291 (same); State v. Holmes, 602 N.E.2d 1197, 1199 (Ohio
Ct. App. 1991) (same); State v. Tooley, 333 P.3d 348, 357–58 (Or.
Ct. App. 2014) (same).
20140749-CA 12 2016 UT App 189State v. Sanchez
or object) admitted into the trial record, allowing it to be
considered by the jury or the court in reaching a decision.‛
Introduce Into Evidence, Black’s Law Dictionary (10th ed. 2014).
Other rules of admissibility similarly use introduce
synonymously with admit. See, e.g., Utah R. Evid. 410; id. R. 602;
id. R. 612. Also, judicial opinions typically use the phrase
introduce into evidence to mean introduce and have admitted into
evidence. See, e.g., State v. Mahi, 2005 UT App 494, ¶ 17, 125 P.3d
103 (stating that a litigant ‚cannot introduce potentially
inflammatory evidence and then later complain when the
opposing party attempts to rebut it‛ (emphasis added)).
Furthermore, a contrary reading of the word introduce would
allow the adverse party to require merely that the additional
portion of the statement be offered, but would not require the
court to admit it, rendering the right granted by the rule all but
illusory.
¶26 When considering the relation of the analogous federal
rule 106’s relation to inadmissible hearsay, the United States
Court of Appeals for the District of Columbia Circuit observed
that the rule ‚is found not in Rule 611, which governs the ‘Mode
and Order of Interrogation and Presentation,’ but in Article I,
which contains rules that generally restrict the manner of
applying the exclusionary rules.‛ Sutton, 801 F.2d at 1368(citation omitted). The court also noted that ‚every major rule of
exclusion . . . contains the proviso, ‘except as otherwise provided
by these rules,’ which indicates ‘that the draftsmen knew of the
need to provide for relationships between rules and were
familiar with a technique for doing this.’‛ Id. (citation omitted).
But ‚*t+here is no such proviso in Rule 106, which indicates that
Rule 106 should not be so restrictively construed.‛ Id.¶27 This reasoning applies equally to Utah’s version of rule
106, and we find it persuasive. Utah Rule of Evidence 106
appears in Article I, titled ‚General Provisions,‛ and not rule
611, which governs ‚mode and order of examining witnesses
and presenting evidence.‛ The drafters of the Utah Rules of
20140749-CA 13 2016 UT App 189State v. Sanchez
Evidence also established relationships between the rules
through the use of phrases such as ‚if the statement is otherwise
admissible under the law‛ and ‚if the evidence is otherwise
admissible under these rules.‛ See, e.g., Utah R. Evid. 412(b); id.R. 616. But Utah rule 106 lacks such a proviso.
¶28 Rule 807 of the Utah Rules of Evidence also supports our
conclusion that rule 106 operates to create a hearsay exception.
Rule 807 provides that ‚a hearsay statement is not excluded by
the rule against hearsay even if the statement is not specifically
covered by a hearsay exception‛ so long as it falls into certain
broad categories, such as if ‚admitting it will best serve the
purposes of these rules and the interests of justice.‛ Utah R.
Evid. 807(a). Sanchez does not rely on rule 807’s residual hearsay
exception or claim that he satisfied the notice requirements of
rule 807(b). But it is difficult to see how a statement that in
fairness ought to be considered would not serve the interests of
justice, or why a proponent of one portion of a recorded
statement would need notice of another portion of the same
statement.
¶29 Finally, treatises on the Utah Rules of Evidence advise
that ‚*i+f a party offers a portion of prior testimony, then the
opposing party should be entitled to offer any additional portion
of the testimony that would qualify or explain the admitted
portion, even if the omitted portion would otherwise be
inadmissible as hearsay or an improper opinion.‛ R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 67
(2015); Edward Kimball & Ronald Boyce, Utah Evidence Law 1-36,
1-37 (2d ed. 2004) (‚The rule is sometimes said not to allow
admission of otherwise inadmissible evidence, but if the
objectionable evidence (for example, hearsay) is needed to
provide context and understanding, fairness seems to require its
admission.‛). See also McCormick on Evidence § 56 (7th ed. 2016)
(footnotes omitted) (‚At least when the other passage of the
writing or statement is so closely connected to the part the
proponent contemplates introducing that it furnishes essential
20140749-CA 14 2016 UT App 189State v. Sanchez
context for that part, the passage becomes admissible on a
nonhearsay theory.‛); Faust F. Rossi, Evidence: 1999–2000 Survey
of New York Law, 51 Syracuse L. Rev. 489, 498–99 (2001)
(explaining that although a number of states hold that the
explanatory portion of a statement may be admitted under the
rule of completeness only if it is otherwise admissible, that
‚approach makes little sense. If the explanation required to
prevent distortion must be admissible independent of its
corrective function, then the purpose of the rule of completeness
is defeated.‛).
¶30 In sum, we believe the purpose and scope of rule 106
extend beyond timing and order of proof. A rule that focuses on
fairness ‚can adequately fulfill its function only by permitting
the admission of some otherwise inadmissible evidence when
the court finds in fairness that the proffered evidence should be
considered contemporaneously.‛ Sutton, 801 F.2d at 1368. We
therefore conclude that the ‚fairness principle can override the
rule excluding hearsay.‛ United States v. Harry, 816 F.3d 1268,
1279–80 (10th Cir. 2016).5 ‚Even if the *statement+ would be
5. The concurrence cites the reasoning of circuit courts that have
held that if rule 106 is a rule of admissibility, a criminal
defendant ‚would be ‘able to place his exculpatory statements
before the jury without subjecting [himself] to cross-
examination, precisely what the hearsay rule forbids.’‛ Infra ¶ 54
(alteration in original) (quoting United States v. Ortega, 203 F.3d
675, 682 (9th Cir. 2000). But rule 106 is not a backdoor to admit
any exculpatory statement by a defendant; rather, rule 106
admits only those portions of written or recorded statements
that in fairness ought to be admitted. ‚The contours of the
fairness standard are rather vague and courts have enormous
discretion in applying the rule.‛ United States v. Harry, 816 F.3d
1268, 1280 (10th Cir. 2016) (citations and internal quotation
marks omitted). ‚The rule does not . . . require the admission of
(continued<)
20140749-CA 15 2016 UT App 189State v. Sanchez
subject to a hearsay objection, that does not block its use when it
is needed to provide context for a statement already admitted.‛
United States v. Lopez-Medina, 596 F.3d 716, 735 (10th Cir. 2010).6
¶31 Because we have concluded that, in fairness, Sanchez’s
statement should have been admitted by the trial court, and
further that the hearsay rule does not prohibit its admission, we
now determine whether the exclusion of the statement was, as
the State additionally contends, harmless error. See State v.
Colwell, 2000 UT 8, ¶ 26, 994 P.2d 177.
(562
F.3d 141, 144 (2d Cir. 2009) (citation and internal quotation
marks omitted). See, e.g., United States v. Gramajo, 565 F. App’x
723, 728 (10th Cir. 2014) (holding the district court properly
excluded defendant’s statement that did not ‚explain or clarify‛
the admitted statements); United States v. Gonzalez, 399 F. App’x
641, 645 (2d Cir. 2010) (holding that ‚the rule of completeness is
not a mechanism to bypass hearsay rules for any self-serving
testimony‛ and that ‚*i+t was within the district court’s
discretion to conclude that the admitted portion of *defendant’s+
statements did not distort the meaning of the full statement or
exclude information that was substantially exculpatory‛); United
States v. Johnson, 507 F.3d 793, 797 (2d Cir. 2007) (concluding that
‚the redacted statements were neither explanatory of nor
relevant to the admitted passages . . . and the District Court
therefore did not err in refusing to admit them‛ (citation and
internal quotation marks omitted)).
6. We do not address any potential interplay between rule 106
and the Confrontation Clause, as this case does not present that
issue.
20140749-CA 16 2016 UT App 189State v. Sanchez
C. Harmless Error
¶32 ‚In circumstances where evidence should have been
admitted, it is reviewed for harmless error.‛ Id. ‚Based upon the
concept that the trial court is best situated to determine what, if
any, impact an alleged error will have on the proceedings, . . . we
will reverse only where an error is so prejudicial and so
substantial that, absent the error, it is reasonably probable that
the result would have been more favorable for the defendant.‛
State v. Thomas, 1999 UT 2, ¶ 26, 974 P.2d 269 (citations omitted).
‚In other words, the ‘mere possibility’ of a different outcome
occurring without the evidence is not enough; instead, ‘the
likelihood of a different outcome must be sufficiently high to
undermine confidence in the verdict.’‛ Id. (emphasis in original)
(quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).
¶33 A different standard of harm applies to federal
constitutional error. If a defendant preserves a claim of federal
constitutional error at trial and establishes a constitutional
violation on appeal, the burden shifts to the State to demonstrate
that the error was harmless beyond a reasonable doubt. State v.
Clark, 2016 UT App 120, ¶ 8, __ P.3d __ (citing State v. McCallie,
2016 UT App 4, ¶ 12, 369 P.3d 103 (citing Brecht v. Abrahamson,
507 U.S. 619, 630 (1993); Chapman v. California, 386 U.S. 18, 24
(1967); and State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573)). This
is known as the Chapman standard, after the United States
Supreme Court case that announced it. Sanchez contends that
the rule 106 error at issue here was harmful under either the
Chapman standard applicable to federal constitutional error or
the ordinary standard applicable to non-constitutional error.7
7. Utah courts have not determined whether the harmless-
beyond-a-reasonable-doubt standard applies to violations of the
Utah Constitution. See State v. Bell, 770 P.2d 100, 106 n.12 (Utah
1988) (noting that ‚this Court has never squarely decided
(continued<)
20140749-CA 17 2016 UT App 189State v. Sanchez
¶34 First, Sanchez claims the benefit of the Chapman standard.
He argues that the trial court’s exclusion of his rule 106
statement ‚was prejudicial because it precluded *him] from
presenting his theory of the case,‛ which was that ‚he was
entitled to special mitigation because he killed [Victim] under
the influence of extreme emotional distress for which there was a
reasonable explanation or excuse.‛ He further argues, citing
Holmes v. South Carolina, 547 U.S. 319, 324 (2006), and State v.
McCullar, 2014 UT App 215, ¶¶ 53–59, 335 P.3d 900, that the
error rose to constitutional proportion because it ‚deprived
*him+ of his due process right to present a complete defense.‛
Consequently, he reasons, the error requires reversal unless this
court concludes that it was harmless beyond a reasonable doubt.
See Chapman, 386 U.S. at 24; Calliham, 2002 UT 86, ¶ 45. In effect,
Sanchez attempts to elevate a single rule 106 violation, which
affected the application of the special mitigation statute, to
federal constitutional status.
¶35 We reject this contention for two independent reasons.
First, any claim of federal constitutional error is unpreserved. To
preserve an issue for appeal, ‚the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.‛ 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted).
Sanchez does not claim to have alerted the trial court that
denying his rule 106 motion would deprive him of his ‚due
process right to present a complete defense.‛ On the contrary, he
told the court, ‚I don’t think that without that evidence, the
defense has a basis to argue special mitigation . . . I do have an
alternative defense.‛ Just as an objection based on the federal
(2016 UT App 189State v. Sanchez
constitution does not preserve a claim of state constitutional
error, see State v. Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397, an
objection based on state law does not preserve a claim of federal
constitutional error. Preservation requires an appellant to
‚present the legal basis for her claim to the trial court, not merely
the underlying facts or a tangentially related claim.‛ State v.
Kennedy, 2015 UT App 152, ¶ 20, 354 P.3d 775. ‚*I+n general,
appellate courts will not consider an issue, including
constitutional arguments, raised for the first time on appeal
unless the trial court committed plain error or the case involves
exceptional circumstances.‛ State v. Dean, 2004 UT 63, ¶ 13, 95
P.3d 276. Sanchez claims neither exception to the preservation
rule here.
¶36 Second, Sanchez has not demonstrated that the denial of
the benefit of special mitigation constitutes a denial of his federal
due process right to present a complete defense.8 As relevant
here, ‚*s+pecial mitigation exists when the actor causes the death
of another . . . under the influence of extreme emotional distress
for which there is a reasonable explanation or excuse.‛ Utah
Code Ann. § 76-5-205.5(1) (LexisNexis 2012). ‚The
reasonableness of an explanation or excuse . . . shall be
determined from the viewpoint of a reasonable person under the
then existing circumstances.‛ Id. § 76-5-205.5(4). ‚If a jury is the
trier of fact, a unanimous vote of the jury is required to establish
the existence of special mitigation.‛ Id. § 76-5-205.5(6)(a).
¶37 In State v. Drej, our supreme court rejected a due process
challenge to the special mitigation statute. See 2010 UT 35, ¶ 21
233 P.3d 476. In Drej, the defendant argued that the special
mitigation statute was unconstitutional ‚because it places the
8. In fact, he has cited no case from any jurisdiction supporting
his claim that Holmes error requires application of the Chapman
standard. Neither the United States Supreme Court in Holmes
nor this court in McCullar recited the Chapman standard.
20140749-CA 19 2016 UT App 189State v. Sanchez
burden of proving special mitigation on the defendant, in
violation of the due process clauses of the state and federal
constitutions.‛ Id. ¶ 1. Our supreme court held that ‚the
legislature elected to require the defendant to prove special
mitigation by a preponderance of the evidence.‛ Id. ¶ 21; see
Utah Code Ann. § 76-5-205.5(5)(a), (b)(iii). ‚As special mitigation
is not a defense to the underlying primary charge of murder, it
cannot run afoul of the federal constitution or state law.‛ Drej,
2010 UT 35, ¶ 21.
¶38 Sanchez has not explained, nor is it obvious, why
depriving a defendant of the benefit of a statute that is not a
defense to the underlying primary charge of murder deprives
him of his federal due process right to present a complete
defense. Nor has he explained how depriving him of the benefit
of special mitigation could violate federal due process when, in
rejecting a due process challenge, our supreme court held that
special mitigation ‚cannot run afoul of the federal constitution.‛
Id.¶39 In sum, Sanchez has not shown that federal due process
requires application of the Chapman standard here. We thus
proceed under the usual standard for assessing harm as set forth
above.
¶40 Under the special mitigation statute, ‚the fact finder must
determine whether (1) subjectively, the defendant committed the
killing while under the influence of extreme emotional distress,
and (2) objectively, a reasonable person would have experienced
an extreme emotional reaction and loss of control under the
circumstances.‛ Ross v. State, 2012 UT 93, ¶ 28, 293 P.3d 345. A
person acts under the influence of extreme emotional distress
‚when he is exposed to extremely unusual and overwhelming
stress that would cause the average reasonable person under the
same circumstances to experience a loss of self-control, and be
overborne by intense feelings, such as passion, anger, distress,
grief, excessive agitation, or other similar emotions.‛ State v.
20140749-CA 20 2016 UT App 189State v. Sanchez
White, 2011 UT 21, ¶ 26, 251 P.3d 820 (citation and internal
quotation marks omitted).9
¶41 ‚This standard requires a trier of fact to put herself in the
shoes of a reasonable person in the defendant’s situation to
determine whether the defendant’s reaction to a series of events
was reasonable.‛ Id. ¶ 37. ‚The standard is not whether the
defendant thought her reaction was reasonable, but whether a
9. What is generally known as the provocation defense has for
two decades been criticized as mitigating violence committed by
men against women in intimate relationships. It now ‚is one of
the most controversial doctrines in the criminal law because of
its perceived gender bias; yet most American scholars and
lawmakers have not recommended that it be abolished.‛
Carolyn B. Ramsey, Provoking Change: Comparative Insights on
Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33,
33 (2010). See also Emily L. Miller, (Wo)manslaughter: Voluntary
Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665,
667 (2001) (‚Voluntary manslaughter has never been a female-
friendly doctrine.‛); Victoria Nourse, Passion’s Progress: Modern
Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1322
(1997) (‚Our most modern and enlightened legal ideal of
‘passion’ reflects, and thus perpetuates, ideas about men,
women, and their relationships that society long ago
abandoned.‛); Laurie J. Taylor, Provoked Reason in Men and
Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33
UCLA L. Rev. 1679, 1679 (1986) (‚*T+he legal standards that
define adequate provocation and passionate ‘human’
weaknesses reflect a male view of understandable homicidal
violence.‛). We note that Utah Code section 76-5-205.5 is cast in
gender-neutral terms and has been so applied by our courts. See,
e.g., State v. White, 2011 UT 21, ¶ 1, 251 P.3d 820.
20140749-CA 21 2016 UT App 189State v. Sanchez
reasonable person facing the same situation would have reacted
in a similar way.‛ Id.10
¶42 Sanchez argues that ‚he was entitled to special mitigation
because he assaulted [Victim] under extreme emotional distress
caused by her repeatedly telling him that she was cheating on
him with his brother.‛ To establish the requisite extreme
emotional distress, Sanchez sought to admit his statement to
police that ‚he started fighting with *Victim+ because he thought
she was cheating on him with . . . his brother.‛ He said ‚this
enraged him,‛ that Victim ‚admitted it and she kept saying it,‛
and ‚that hurt *his+ feelings.‛
¶43 We are not persuaded that Sanchez has shown a
reasonable probability that, with this evidence, he could have
met his burden of proving the requisite extreme emotional
distress under the White standard. Even though he was
‚enraged‛ and his feelings were hurt, the special mitigation
standard, as explained, ‚requires a trier of fact to put herself in
the shoes of a reasonable person in the defendant’s situation to
determine whether the defendant’s reaction to a series of events
was reasonable.‛ Id. ‚The standard is not whether the defendant
thought her reaction was reasonable, but whether a reasonable
10. The ‚similar way‛ standard hews a middle course between
competing approaches to what is generally known as the
provocation defense. Under the more prosecution-friendly view,
adequate provocation exists only if ‚a reasonable person would
have killed under the same circumstances (sometimes called ‘act
reasonableness’).‛ Aya Gruber, A Provocative Defense, 103 Cal. L.
Rev. 273, 275 (2015). Under the more defense-friendly view,
adequate provocation exists if ‚a reasonable person would have
been provoked to act rashly (sometimes called ‘emotion
reasonableness’).‛ Id. We understand the ‚similar way‛ standard
to require more than ‚emotion reasonableness‛ yet less than ‚act
reasonableness.‛
20140749-CA 22 2016 UT App 189State v. Sanchez
person facing the same situation would have reacted in a similar
way.‛ Id.¶44 We do not agree with Sanchez that a reasonable person,
hearing that his or her romantic partner was cheating with his or
her sibling, would have reacted ‚in a similar way.‛ Sanchez beat
Victim for at least five, and probably over nine, hours. He
described punching, slapping, kicking, stomping, grabbing, and
ultimately strangling Victim. As a result, Victim was ‚badly
beaten.‛ Her face was bruised and swollen. Her nose was
fractured. There was blood in the whites of both of her eyes. Her
lips were torn, ‚as if the lip had been pulled away from the
gum.‛ The bruises on her body were ‚too numerous to count‛
and the bruises on her neck were consistent with strangulation.
During the course of the extended attack Victim lost
consciousness more than once and, according to Sanchez, he
tried to revive her by ‚breathing for her‛ and putting her head
under running water. Although the attack began the night
before, Victim lost consciousness for the last time when he
strangled her around 8 or 9 o’clock in the morning. He tried a
headlock, but in his words, that ‚wasn’t having much effect.‛ He
then tried placing his elbow in her throat, again without success.
Finally he used his forearm across the front of her neck and
leaned into her. Although she ‚was just screaming,‛ this method
finally succeeded. She blacked out and never regained
consciousness.
¶45 Two factors distinguish this murder: the extended period
of torture leading up to the final suffocating blow and the
calculation with which Sanchez admits he administered that
blow. As stated above, the jury should have heard that Sanchez
told police that Victim hurt his feelings and enraged him when
she would not stop saying that she was cheating on him with his
brother. But we see no reasonable probability that, had the jury
heard that Sanchez had told this to police, the jury would have
found by a preponderance of the evidence that a reasonable
person facing the same situation would have reacted similarly.
20140749-CA 23 2016 UT App 189State v. Sanchez
¶46 We conclude that although the excluded portion of
Sanchez’s hearsay statement should have been admitted under
rule 106, the exclusion was harmless. We therefore affirm
Sanchez’s conviction for murder.11
II. Obstruction of Justice
¶47 Sanchez contends that ‚the evidence was insufficient to
support [his] conviction for obstructing justice because no
reasonable jury could have found beyond a reasonable doubt
that [he] concealed, removed, or destroyed evidence specifically
intending to hinder the investigation of *Victim’s+ murder.‛
‚When a jury verdict is challenged on the ground that the
evidence is insufficient, . . . we review the evidence and all
inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.‛ State v. Hamilton, 827
P.2d 232, 236 (Utah 1992) (brackets, citation, and internal
quotation marks omitted). ‚We reverse a jury conviction for
insufficient evidence only when the evidence, so viewed, is
sufficiently inconclusive or inherently improbable that
11. The State also argues that Sanchez suffered no harm here
because, although the trial court excluded his recorded police
statement, he could nevertheless have testified to the facts that
he claims sparked his extreme emotional distress. In support of
its argument, the State cites State v. Cruz-Meza, 2003 UT 32,
¶¶ 16–17, 76 P.3d 1165. In the related context of the oral
completeness rule, our supreme court held that exclusion of the
defendant’s hearsay statements did not deprive the defendant of
his right to present special mitigation where he ‚was entirely
free to choose‛ to testify himself. Id. ¶ 17. Sanchez responds that
testifying would have done him no good here, because the trial
court had already ruled that Victim’s statement that she had
cheated on him with his brother was inadmissible double
hearsay. Because we resolve the question of harm on other
grounds, we need not address this issue further.
20140749-CA 24 2016 UT App 189State v. Sanchez
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he was convicted.‛
Id. (citation and internal quotation marks omitted).
¶48 ‚An actor commits obstruction of justice if the actor, with
intent to hinder, delay, or prevent the investigation,
apprehension, prosecution, conviction, or punishment of any
person regarding conduct that constitutes a criminal
offense . . . alters, destroys, conceals, or removes any item or
other thing.‛ Utah Code Ann. § 76-8-306(1)(c) (LexisNexis 2012).
¶49 Sanchez advances a subtle, time-based theory for why the
evidence does not support his conviction for obstruction of
justice. Sanchez argues that he ‚could be convicted of
obstructing justice only if he concealed, removed, or destroyed
evidence specifically intending to hinder the investigation of
*Victim’s+ murder.‛ He acknowledges evidence of his having
cleaned up the crime scene—for example, that he wiped the
walls with water and chemicals and washed blood down the
drain. But he stresses that the prosecution produced ‚no
evidence of when‛ he did these acts—specifically, evidence that
he did them ‚after she died.‛ And if she was still alive when he
concealed the evidence of his criminal conduct, he reasons, he
did not commit the crime of obstruction of justice: ‚Even if one
could reasonably infer that [Sanchez] at some point planned to
ultimately kill *Victim+,‛ he maintains, ‚the evidence purporting
to show that [Sanchez] cleaned [Victim] and the apartment before
she died is insufficient to show that he concealed evidence
specifically intending to hinder the investigation of her murder.‛
(Emphasis added.)
¶50 Sanchez reads the statute too narrowly. He committed the
crime of obstruction of justice if, with intent to hinder the
investigation of himself regarding conduct that constitutes ‚a
criminal offense,‛ he concealed or removed anything. See Utah
Code Ann. § 76-8-306(1)(c). The statute requires only that he
intended to hinder investigation of a crime; nothing in the
20140749-CA 25 2016 UT App 189State v. Sanchez
statute requires an exact identity between the crime he sought to
conceal and the crime for which he was eventually convicted.
¶51 We therefore conclude that there was sufficient evidence
to convict Sanchez of obstructing justice.
CONCLUSION
¶52 For the foregoing reasons, the judgment of the trial court
is affirmed.
BENCH, Senior Judge (concurring in part and concurring in the
result in part):
¶53 I concur in the majority opinion except as to Part I, in
which I concur only in the result. In my view, the trial court did
not exceed its discretion when it excluded Sanchez’s statement.
The main opinion acknowledges that, nationally, courts are
equally divided on whether rule 106 operates to require the
admission of otherwise inadmissible hearsay. See supra ¶ 24
& note 4. I would hold that the trial court properly exercised its
discretion in excluding Sanchez’s statement, and thus I would
avoid a discussion of harmless error in this case.
¶54 When a party offers his own out-of-court declaration for
its truth, that declaration must satisfy the hearsay rule. Several
courts have held that the federal equivalent of rule 106 does not
alter that requirement. See, e.g., United States v. Hassan, 742 F.3d
104, 134 (4th Cir. 2014) (stating that federal rule 106 ‚does not
render admissible . . . evidence which is otherwise inadmissible
under the hearsay rules‛ (omission in original) (citation and
internal quotation marks omitted)); United States v. Collicott, 92
F.3d 973, 983 (9th Cir. 1996) (noting that federal rule 106 ‚does
not compel admission of otherwise inadmissible hearsay
20140749-CA 26 2016 UT App 189State v. Sanchez
evidence‛ (citation and internal quotation marks
omitted)). Otherwise, as these courts have explained, a criminal
defendant would be ‚able to place his exculpatory statements
before the jury without subjecting [himself] to cross-
examination, precisely what the hearsay rule forbids.‛ United
States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (alteration in
original) (citation and internal quotation marks omitted).
¶55 I would follow the lead of these courts and hold that
before hearsay is admissible under rule 106, its proponent must
show that it fits within an exception to the hearsay rule. Because
Sanchez concedes that his statement was hearsay and has not
shown that it fits within an exception, I would affirm the trial
court’s ruling.
20140749-CA 27 2016 UT App 189