Petition for Writ of Certiorari — Rhinehart v. Utah

_ ) Supreme Court, U.S.

! FILED

04 648 Nov 9 2004

Docket Number OFRICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

TAMARA RHINEHART,

Petitioner,

e

VS.

STATE OF UTAH,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UTAH STATE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Mary C. Corporon #734

Counsel for Petitioner

Corporon & Williams

Attorney for Petitioner

808 East South Temple

Salt Lake City, UT 84102

(801) 328-1162

Docket Number

SUPREME COURT OF THE UNITED STATES

TAMARA RHINEHART,

Petitioner,

VS.

STATE OF UTAH,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UTAH STATE SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Mary C. Corporon #734

Counsel for Petitioner

Corporon & Williams

Attorney for Petitioner

808 East South Temple

Salt Lake City, UT 84102

(801) 328-1162

QUESTIONS PRESENTED FOR REVIEW

:, Whether the Utah Supreme Court’s decision to deny

Petitioner's Peden for Interlocutory Appeal is in conflict with the

United States Constitution.

A Whether the Utah Supreme Court’s decision in

denying Petitioner’s Petition for Interlocutory Appeal is in conflict

with this Court’s decision and has so far departed from this Court’s

holding in Crawford v. Washington, 124 S. Ct. 1354 (March 8,

2004), as to call for an exercise of this Court’s supervisory power.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...............

CITATIONS OF OPINIONS BELOW ....................

STATEMENT OF JURISDICTION ...........200eee0ee0%

CONSTITUTIONAL PROVISIONS, TREATISES,

STATUTES, ORDINANCES, AND REGULATIONS

ED gin incedccccncsecenaccevesoes

I UGE cccncccscescccceceaseeses

ay donacgkdnebvastapeeaees®

POINTI. STANDARD OF REVIEW ..........--

POINT Il. FACTS OF THE CASE ..............

POINT Ill. RELEVANT PROCEDURAL HISTORY

AND FACTS ....cccccccccccccccccces

POINTIV. THE HEARSAY EVIDENCE WAS

ADMITTED AT PRELIMINARY

HEARING IN VIOLATION OF

RHINEHART’S CONSTITUTIONAL

RRIGGHETS ccccccccccccccccccccccccces

POINT V. REASONS FOR GRANTING

CERTIORARI .........cccccccecees

APPENDIX

A.

App Page

Article I, Section 12 of the Utah Constitution,

Se ie OE eT ieee ads be eansetawiee 20

Rule 1102 of the Utah Rules of Evidence ..... 21-22

Utah Supreme Court Notice of Decision dated August

+ eerie rr rere TS 23

Utah Supreme Court Order dated August 11,

ee rrr My rrr or ray Trey 24

State Ruling on Motions dated July 14,2004 .. 25-31

Order Denying Defendant’s Motion to Quash

Bindover dated June 3, 2004 ............... 32-38

ill

TABLE OF AUTHORITIES

CASES

Crawford v. Washington, 124 S. Ct. 1354 (March 8, 2004) i, 8,9, 10

‘4 d6 tO ek Rae ae ee ee eee 12, 15, 16, 17

State of Utah v. Rhinehart, Docket No. 20040635-SC ........... l

State of Utah v. Rhinehart, Case No. 031100633 ............... l

State v. Anderson, 612 P.2d 778 (Utah 1980) ........ 11,12, 13, 14

Coleman v. Alabama, 399 U.S. 1 (1969) ..................... 12

United States v. Wade, 388 U.S. 218 (1967) ................. 12

State v. Pledger, 896 P.2d 1226, 1228 (1995) ................. 13

State v. Talbot, 972 P.2d 435, 438 (1999) ..........0......... 14

Gerstein v. Pugh, 420 U.S. 103, 120-122 (1975) ............... 14

Bruton v. United States, 391 U.S. 123 (1960) ................. 15

Cruz v. New York, 481 U.S. 186 (1987) ..................... 15

CONSTITUTIONAL PROVISIONS

Amendment VI, United States Constitution .............. 2s 3, 41

Article I, Section 12, Utah Constitution.................. 13, 16

Article 3, United States Constitution .....................000 3

STATUTES and RULES

Se Nia, DEE 6560585605000 eee 2

(FAL @ PPR a ek eae eee eee 1]

Rule 1102, Utah Rules of Evidence .........-......... 13, 14, 20

iV

CITATIONS OF OPINIONS BELOW

The Order and Judgment of the Utah Supreme Court below

was not published. [t was entered on August 13, 2004, under State of

Utah v. Rhinehart, docket #20040635-SC. A copy of this decision is

attached in the appendix hereto.

The Order Denying Defendant's Motion to Quash Bindover of

the First Judicial District Court for the State of Utah, is unreported. It

was entered on June 3, 2004 and clarified on July 14, 2004, under

State of Utah v. Rhinehart, Case #031 100633 and Case #031 101017.

A copy of this decision is attached in the appendix hereto, in the

transcript of the oral ruling.

STATEMENT OF JURISDICT ION

The jurisdiction of the United States Supreme Court is defined

in Article III of the Constitution of the United States. The Utah

Supreme Court entered its Order and Judgment denying Petitioner's

Petition for Interlocutory Appeal on August 13, 2004. No petition for

a rehearing was made. The United States Supreme Court has

jurisdiction to review this order and judgment of the Utah Supreme

’

Court pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL PROVISIONS, TREATISES, STATUTES,

ORDINANCES, AND REGULATIONS INVOLVED IN THE

CASE

The United States Constitution, Amendment VI, provides:

“In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.”

STATEMENT OF THE CASE

The matter was briefed by the parties in the Utah Supreme

Court and that court entered its Opinion on August 13, 2004, denying

the Petition for Interlocutory Appeal. (Appendix p. 22).

ARGUMENT

POINT I: STANDARD OF REVIEW

Petitioner’s entire appeal is based upon an analysis of her

rights under the United States Constitution. For this reason, she is

entitled to de novo consideration of all issues raised in this appeal.

POINT Ii: FACTS OF THE CASE

Re

This is a capital murder proceeding. The case is prosecuted

in the First Judicial District Court in Cache County, State of

Utah. No trial has occurred. The case was heard in a

preliminary hearing in the trial court over multiple days in

February, 2004. The trial court bound the matter over for

trial. Defendant moved the trial court to quash the bindover

from the preliminary hearing.

The trial court denied Defendant’s motion to quash the |

bindover at a hearing held May 10, 2004.

Petitioner petitioned the Utah Supreme Court to accept the

case on interlocutory appeal to challenge the bindover.

This petition was denied.

Defendant seeks review of the Utah Supreme Court’s

refusal to review bindover from the preliminary hearing.

Defendant ultimately seeks review of the trial court’s

determination to allow hearsay statements to be introduced

against Defendant at preliminary hearing, as the totality of

the State’s substantive case at preliminary hearing.

POINT III: RELEVANT PROCEDURAL HISTORY AND

FACTS

This capital murder case came on for preliminary hearing

before the trial court on February 5, 6 and 11, 2004. At the

conclusion of the hearing on February 11, the State presented an

Amended Information, charging five counts in addition to the lone

aggravated (capital) murder charge brought in the original charging

document. The trial Court ordered the defendant bound over for trial

on the aggravated murder charge.

At the preliminary hearing of the capital murder charge, the

State relied primarily on written hearsay statements from two

sources: Jessica Goalen and Craig Nicholls. Both individuals are

alleged to be accomplices to the capital murder. Both individuals

were subpoenaed by the defendant to be questioned at the

preliminary hearing. The lower court found both individuals to be

legally unavailable to testify based upon their assertions of the

|

constitutional right to remain silent, as each had been advised to do

by counsel.

Craig Nicholls is a co-defendant of Ms. Rhinehart. He was

the principle actor and actual assassin in the murder. He entered a

guilty plea pursuant to a negotiated settlement which spared him the

death penalty. A notice of plea bargain Rule 11 waiver/statement of

facts was offered as State’s Exhibit 23, and accepted at preliminary

hearing over defendant’s objection. The plea statement was created

by prosecutors for the State and ostensibly signed by Mr. Nicholls on

November 10, 2003.

On November 12, 2003 Mr. Nicholls participated in an

interview with police about the murder he had committed. This

police statement was recorded by a professional court reporter,

though no attorney was present and no opportunity for cross

examination was provided to Petitioner here. The interview

transcript was offered as State’s Exhibit 26 at the preliminary

hearing, and was admitted over defendant’s numerous objections.

The Nicholls Interview is 87 pages long. In the Interview, Mr.

5

Nicholls refers to statements in his Plea Statement as not accurate,

and comments that he doesn’t know who wrote them. Additionally,

Mr. Nicholls later filed a motion with the trial court to withdraw his

\

guilty plea, citing confusion and coercion in the plea process. The

documents associated with Mr. Nicholls’ motion to withdraw his

plea were received into evidence as a defense exhibit at the

preliminary hearing.

Jessica Goalen is an alleged co-accomplice in the murder.

Ms. Goalen was questioned by police, and according to the testimony

and interpretation of officers, initially lied. (It is critical to note that

those “lies” were exculpatory to Defendant here.) She was

questioned a second time, and after being threatened by police with

prosecution, and then allegedly gave different information which

inculpated herself a$ well as Mr. Nicholls and Ms. Rhinehart. On a

third occasion, Ms. Goalen was questioned at the police department.

The interview was conducted by police officers and recorded by a

certified reporter in the style of a deposition, though no attorney was

present and there was no opportunity provided Petitioner for cross

6

examination. A transcript of the interview was offered into evidence

as State’s Exhibit 24 and admitted at the preliminary hearing over

numerous objections by the defendant. The interview is 135 pages

long, and ends with Ms. Goalen asking if she is going to need an

attorney, and the police then immediately suggesting that they “go

off the record” to discuss such concerns. Early in the interview,

police inform Ms. Goalen that the approach they are taking is the

best specifically because it will save her from having to testify at the

Defendant’s preliminary hearing. Law enforcement and the

prosecution thus proactively attempted to thwart confrontation and

cross-examination of testimonial evidence by Rhinehart at her capital

murder preliminary hearing.

Other hearsay was also offered into evidence and admitted

over the objections of the defendant. Such evidence includes a

partial transcript of a telephone interview of one Marnie Christianson

by police admitted as State’s Exhibit 29. Also admitted at “welidtihe

hearsay” were a statement of Shawn Iverson (State’s Exhibit 1), and

a statement of Sue Davis (State’s Exhibit 26).

7

Most of the hearsay statements themselves include further

tiers of hearsay, as well as otherwise inadmissible content resulting

from leading questioning and conclusory statements lacking in

ibitiaiae The State relied utterly on testimonial hearsay, and

principally the interviews of Goalen and Nicholls, to support the

murder charge against Rhinehart.

POINT IV: THE HEARSAY EVIDENCE WAS ADMITTED

AT PRELIMINARY HEARING IN VIOLATION

OF RHINEHART’S CONSTITUTIONAL

RIGHTS

A. Confrontation

Rhinehart was denied her constitutional right to confront and

cross examine the hearsay declarants at preliminary hearing pursuant

to the Sixth Amendment to the United States Constitution. On

March 8, 2004 the United States Supreme Court, in Crawford v.

Washington, 124 S. Ct. 1354 (March 8, 2004), reaffirmed that the

right of confrontation is plenary and allows for no exceptions where

testimonial hearsay is implicated.

In Crawford, this Court held unequivocally that:

Where testimonial evidence is at issue . . . the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.

* * *

Where testimonial statements are at issue, the only indicium

of-reliability sufficient to satisfy constitutional demands is the

one the Constitution actually prescribes: confrontation.

\

Id. at paragraph 19. In reaching the Crawford holding, the Court

reviewed the full history of the confrontation right, determining that

its significance cannot be understated. The Court reiterated that the

particular value inherent in confrontation lies within its unique power

to test the credibility and reliability of testimony. Thus, rules of

evidence or other legislative or judicially-created doctrines

developed to assess “reliability” and which may allow for the

admission of testimonial hearsay, are superceded by the United

States Constitution and are a nullity where testimonial hearsay is

sought to be introduced against a criminal defendant:

Where testimonial statements are involved, we do not think

the Framers meant to leave the Sixth Amendment’s

protection to the vagaries of the rules of evidence, much less

to amorphous notions of “reliability.” . . . Admitting

9

statements deemed reliable by a judge is fundamentally at

odds with the right of confrontation. To be sure, the Clause’s

ultimate goal is to ensure reliability of evidence, but it is a

procedural rather than a substantive guarantee. It commands,

not that evidence be reliable, but that reliability be assessed in

a particular manner: by testing in the crucible of cross-

examination.

Id at paragraph 14. In fact, the Court held that, where a court finds

reliability based upon factors such as the fact that a statement is

made to police against penal interest, or that it was given under oath,

insult is added to injury, since “the single safeguard missing is the

one the Confrontation Clause demands.” Id. at paragraph 16. ‘

The absolute right to confront and cross examine witnesses at

a preliminary examination’ has long been recognized in Utah. The

most exhaustive examination of the right is found in State v.

Anderson, 612 P.2d 778 (Utah 1980). There, the State sought to

proceed at a preliminary examination partly by way of an affidavit

containing testimonial hearsay, citing to then-existing U.C.A. § 77-

'The phrases “preliminary hearing” and “preliminary

examination” are used interchangeably in the statutes, rules

and case law, and will be so used herein.

10

15-19. The Utah Supreme Court held a preliminary hearing is a

critical stage in the criminal process, and requires the application of

substantive and procedural constitutional rights, including especially

the rights afforded under the Confrontation Clause.

ee ee lel

Our review of the nature and purpose of the preliminary

examination illustrates the critical character of the proceeding

in relation to various substantive rights of the defendant

which are subject to infringement by the exclusion of certain

procedural safeguards at this step in the criminal prosecution.

Recognizing the “critical” character of this proceeding the

Supreme Court has extended the right of counsel (as

embodied in the Sixth Amendment of the Federal

Constitution) to [the preliminary hearing]. . . . The

protections afforded by the right of confrontation at the

preliminary examination are equally important and so inter-

related to the right of effective counsel and the presentation

of a defense that they must be guaranteed the accused at the

preliminary hearing.

Id at 784-85, citing Coleman v. Alabama, 399 U.S. 1 (1969), United

States v. Wade, 388 U.S. 218 (1967), and other federal cases which

have been omitted.

In so ruling, the Utah Court in Anderson relied on historical

and procedural considerations mirroring those expressed in

Crawford. The holding in Anderson is founded on both State and

11

Federal Constitutional principles. The fundamental importance of

the right of confrontation was tied inherently to others inimitable

rights such as the right to counsel, the right to discovery, and

ultimately the right to due process and a fair trial.

If the preliminary hearing is to retain any meaningful

significance in the criminal prosecution and provide an

effective means of weeding out improvident prosecutions, the

protections attendant the defendant’s right to present an

affirmative defense cannot be circumvented by allowing the

prosecution to base its showing of probable cause on hearsay

evidence. . . .The recognition of the right of confrontation at

the preliminary examination merely demands the

prosecution’s use of hearsay evidence at the hearing may not

circumvent the defendant’s substantive rights to a fair hearing

and a fair trial, by denying the defendant an opportunity to

cross-examine the witnesses who offer testimony at the

hearing.

Id. at 786, (citations omitted.)

In 1995 Article 1, Section 12 of the Utah Constitution was

amended, adding language about the use of so-called “reliable

hearsay” at preliminary examinations. Concurrently, Rule 1102 was

added to the Utah Rules of Evidence, purporting to allow “reliable

hearsay” at the preliminary examination, and providing specific

examples of what such hearsay might include. According to the

12

Advisory Committee Note to Rule 1102, there was an intent in its

passage of abrogating Anderson only to the extent that its holding

was inconsistent with the new Rule. However, since Anderson ts

based upon federal constitutional principles, which principles have

primacy — any state rule to be to the contrary, Anderson remains

the law. To the extent that anything in the 1995 amendment to

Article 1, Section 12 of the Utah Constitution or Rule 1102 is

inconsistent with Crawford, it is unconstitutional under the federal

constitution.

The federal constitutional underpinnings of Anderson are

likely responsible for the fact that the Utah Supreme Court has

maintained fidelity to the holding therein. The Utah Supreme Court

declined the invitation of various amicus parties in State v. Pledger,

896 P.2d 1226, 1228 (1995) to overrule Anderson.’ And

? ironically, in so doing, the Court misstated the

“federal rule” in footnote 4, stating that the protections

afforded criminal defendants by the Confrontation Clause do

not extend to preliminary hearings, citing to Gerstein v. Pugh,

420 U.S. 103, 120-122 (1975). Gerstein in fact specifically

reaffirms the application of the Clause to preliminary

13

notwithstanding the amendment to Article 1, Section 12 and the

creation of Rule 1102, the Utah Supreme Court has continued to

reference the critical nature of the preliminary examination, the

various collateral purposes therefor, and the attachment thereto of the

defendant’s right of confrontation. See, e.g., State v. Talbot, 972

P.2d 435, 438 (1999).

Based upon the foregoing, and especially the recent holding

in Crawford, none of the testimonial hearsay offered by the State at

the preliminary hearing in these matters should have been admitted.

Doing so violated Rhinehart’s federal constitutional rights in a

critical stage of a capital murder prosecution. Absent the

unconfronted hearsay, the evidence was insufficient to support a

hearings of the sort at issue here, citing to the same United

States Supreme Court precedent upon which Anderson is

based. Gerstein simply distinguished those “preliminary

hearings” the sole purpose of which is to determine whether a

defendant can be detained, and holds that the Clause does not

apply to simple detention hearings, even though there is a

requirement that a magistrate make a probable cause finding.

The confusion results in the loose use of the phrase

“preliminary hearing.”

14

bindover. The trial court erred in failing to quash the bindover. The

Utah Supreme Court erred in failing to grant review.

B. The Hearsay In Issue is Inherently Unreliable

Crawford is an indictment of the very concept of judicially

determined “reliability”. The concerns there expressed have

significant relevance to the particular sort of hearsay admitted in the

present case. For instance, Goalen and Nicholls are alleged

accomplices in a capital murder. Nicholls was charged and became

an informant witness in exchange for his very life, perhaps the

greatest incentive an informant can have to lie in favor of the

prosecution. Goalen is someone the State identifies as an

accomplice. Thus, she also faced the risk of capital murder charges,

though she was never charged. The statements of such persons have

long been considered to be inherently unreliable as a matter of law.

See, e.g., Bruton v. United States, 391 U.S. 123 (1968); Cruz v. New

York, 481 U.S. 186 (1987). (Bruton is cited with approval in

Crawford at paragraph 12). The Court in Crawford specifically

stated that state courts seemed to admit such testimony despite the

15

fact that the Confrontation Clause “plainly meant to exclude” it. Id.

at paragraph 15, citing many state court decisions. The Court

commented that, {t]o add insult to injury, some of the courts that

\

admit untested testimonial statements find reliability in the very

factors that make the statements testimonial, . . .” such as statements

made under oath. Id. at paragraph 16.

The very same factors were relied upon at the preliminary

hearing below to admit the testimonial hearsay complained of.

Crawford makes clear that, even if a reliability review were

allowable, which it is not, the statements involved here are

quintessentially unreliable. Admitting them into evidence violated

defendant’s federal due process rights, in addition to the

infringement on her federal Sixth Amendment rights.

The hearsay admitted at the preliminary hearing was admitted

due to constitutional error. Because the bindover decision was

entirely based thereon, this Court should grant defendant’s petition

for review, as the Utah Supreme Court has failed to do so. -

POINT V. REASONS FOR GRANTING CERTIORARI

Petitioner raised all these issues to the Utah Supreme Court,

which summarily considered the matter and summarily declined to

vrant review under an interlocutory appeal. For the State’s highest

court to sive such short shrift to these weighty constitutional issues

of first impression was improper.

Moreover, the Utah Supreme Court may have been swayed

by arguments in opposition to the Petition for Interlocutory Appeal,

to the effect that the trial court had ruled it would have found

probable cause to bindover Petitioner for trial, irrespective of the

unconstitutional hearsay evidence admitted. This was an absolute

misrepresentation by the prosecuting authority to the Utah Supreme

Court. The trial court had previously ruled orally exactly to the

contrary—that the trial court actually relied upon the unconfronted

hearsay to bindover Petitioner from the preliminary hearing. The

trial court has subsequently clarified this position in writing, but the

Supreme Court in Utah was never made aware of this

misrepresentation by the state.

17

In addition, this interlocutory course of review is the only

possible avenue for Petitioner to have her concerns addressed on

these weighty issues. if she is tried in the capital murder case, and

convicted, the use of unconstitutional evidence to bind her over will

likely be deemed to have merged with the conviction, and she will be

denied a further consideration of this issue in any venue. ;

Because this case involves an issue of gross misinterpretation

of the Sixth Amendment, and because the opinion of the lower state

court grossly misinterprets this Court’s holding in Crawford, supra,

this is an issue critical to determine the federal constitutional rights

of citizens, and this court is a death penalty case where Defendant is

entitled to “super due process,” this Court should grant certiorari.

RESPECTFULLY SUBMITTED this . day of November,

2004.

CORPORON & WILLIAMS, P.C.

al

MA ORON

Atrney for Petitioner

APPENDIX

19

Article I, Section 12 of the Utah Constitution, 1995 as amended.

... Where the defendant is otherwise entitled to a

preliminary examination, the function of that examination is limited

to determining whether probable cause exists unless otherwise

provided by statute. Nothing in this constitution shall preclude the

use of reliable hearsay evidence as defined by statute or rule in

whole or in part at any preliminary examination to determine

probable cause or at any pretrial proceeding with respect to release

of the defendant if appropriate discovery is allowed as defined by

statute or rule.

BG ew

RULE 1102. Reliable hearsay in criminal preliminary

examinations.

(a) Statement of the rule. Reliable hearsay is admissible at

criminal preliminary examinations.

(b) Definition of reliable hearsay. For purposes of criminal

preliminary examinations only, reliable hearsay includes:

(b)(1) hearsay evidence admissible at trial under the Utah

Rules of Evidence;

(b)(2) hearsay evidence admissible at trial under Rule 804 of

the Utah Rules of Evidence, regardless of the availability of the

declarant at the preliminary examination;

(b)(3) evidence establishing the foundation for or the

authenticity of any exhibit;

(b)(4) scientific, laboratory, or forensic reports and records;

(b)(S) medical and autopsy reports and records;

(b)(6) a statement of a non-testifying peace officer to a

testifying peace officer;

(b)(7) a statement made by a child victim of physical abuse

or a sexual offense which is promptly reported by the child victim

and recorded in accordance with Rule 15.5 of the Utah Rules of

Criminal Procedure.

(b)(8) a statement of a declarant that is written, recorded, or

transcribed verbatim which is:

(b)(8)(A) under oath or affirmation; or-

(b)(8)(B) pursuant to a notification to the declarant that a

false statement made therein is punishable;

(b)(9) other hearsay evidence with similar indicia of

reliability, regardless of admissibility at trial under Rules 803 and

804 of the Utah Rules of Evidence.

(c) Continuance for production of additional evidence. If

hearsay evidence is proffered or admitted in the preliminary

examination, a continuance of the hearing may be granted for the

purpose of furnishing additional evidence if:

(c)(1) The magistrate finds that the hearsay evidence

21

proffered or admitted is not sufficient and additional evidence is

necessary for a bindover; or

(c)(2) The defense establishes that it would be so

substantially and unfairly disadvantaged by the use of the hearsay

evidence as to outweigh the interests of the declarant and the

efficient administration of justice.

(Added effective April 1, 1999).

22

IN THE SUPREME COURT OF UTAH

State of Utah,

Plaintiff and Respondent,

VS. CASE NO. 20040511-SC

Tamara Rhinehart,

Defendant and Petitioner.

NOTICE OF DECISION

The above-entitled case was submitted to the court for

decision and the attached order has been issued.

Order Issued: August 11, 2004

Notice of Decision Issued: August 13, 2004

Record: NONE

FIRST DISTRICT, LOGAN DEPT. #031101017

DATED August 13, 2004.

“‘s/ Pat H. Bartholomew”

Clerk of Court

as.

ee ere

IN THE SUPREME COURT OF UTAH

State of Utah,

Plaintiff and Respondent,

vs. CASE NO. 20040511-SC

031101017

Tamara Rhinehart,

Defendant and Petitioner.

ORDER

This matter is before the court upon a petition for permission

‘o appeal from an interlocutory order, filed on June 17, 2004.

IT IS HEREBY ORDERED pursvat to Rule 5(e) of the

Utah Rules of Appellate Procedure the petition is denied.

DATED August 11, 2004.

For the Court:

“s/ Christine M. Durham”

Chief Justice

24

IN THE FIRST JUDICIAL DISTRICT COURT,

IN AND FOR THE COUNTY OF CACHE, STATE OF UTAH.

STATE OF UTAH,

Plaintiff

VS. Case nos. 031100633

| 031101017

TAMARA RHINEHART,

Defendant.

RULING ON MOTIONS

THE ABOVE MATTER came before the court on June 26,

2004, for oral argument on the State’s Motion to Join Case No.

031100633 and Case No. 031101017: Defendant’s Motion in

Limine to Exclude Photographs of the Deceased; and Defendant’s

Objection to Bindover Order and Order Denying Defendant’s

Motion to Quash Bindover. The State was represented by George

Daines and James Swink. Defendant was present and represented

by her appointed attorneys Mary Corporon and Scott Williams. The

court has considered the arguments provided by counsel and

thoroughly reviewed the parties’ memoranda, the relevant case law,

and all applicable statutory provisions. Now being fully advised,

the court makes the following ruling on the motions presented.

Motion to Join Cases

In its motion dated February 24, 2004, the State requested

the court to join two cases pending against Defendant pursuant to

section 77-8a-1 and State v. Mead, 2001 UT 58,27 P.3d 1115. °

According to the State, joinder is appropriate for reasons of

economy and the practicalities of judicial administration and

because (1) the conduct involved in both cases is connected, (2)

both cases form a part of a common scheme or plan, and (3)

evidence from both cases would be admissible in either case if the

cases were tried separately. During oral argument, however, the

25

State ameliorated its request by stating that it would agree not to

join the two cases so long as the case involving the burglary charges

(case no. 017) could be tried before the case involving the

aggravated murder charges (case no. 633).

Defendant responded by arguing that joinder of the two

cases is inappropriate not only because the facts involved are neither

part of a single criminal episode nor indicative of a common scheme

or plan, but also because joinder of the cases would permit the jury

to hear evidence of the burglary while Defendant is being tried for

aggravated murder.’ This would be arguably prejudicial because

hearing evidence of another crime while being tried for aggravated

murder could lead the jury to convict Defendant of aggravated

murder based upon a belief that she is a bad person for having

committed a burglary. Moreover, joinder would also be unfair to

Defendant because, if the two cases were tried separately, Rule 403

and Rule 404(b) of the Utah Rules of Evidence would preclude the

State from introducing evidence of the burglary during the

aggravated murder trial.

With respect to the order of the trials, Defendant argued that

the aggravated murder charge should be severed from all other

alleged offenses and tried first, as this is proper from the point of

view of judicia! economy because if Defendant is convicted, it is

highly unlikely that the State would then expend additional

resources pursuing the other less serious, charges. In addition,

according to Defendant, the only reason the State wants to try case

no. 017 first is to use the conviction in that case to bolster its

penalty phase case during the aggravated murder trial. Additionally,

trying case no. 017 first would inevitably taint the jury pool for case

no. 633, requiring a change of venue to Box Elder County. This

'Defendant also argued that given the heightened

reliability considerations required in death penalty cases, the

aggravated murder charge should be severed from all of the other

charges in both cases.

26

SS

would be unfair, Defendant argues, because a jury selected from

Box Elder County would be more likely to impose a harsher

sentence upon Defendant than a jury in Cache County.

The Utah Code of Criminal Procedure gives the trial court

judge discretion to “order two or more . . . informations . . . to be

tried together if the offenses . . . could have been joined in a single .

. . information.” Utah Code Ann. § 77-8a-1(3)(a). Offenses may be

joined in a single information “if each offense is a separate count

and if the offenses charged are: (a) based on the same conduct or are

otherwise connected together in their commission; or (b) alleged to

have been part of a common scheme or plan.” Utah Code Ann. §

77-8a-1(1). However, even if the trial court determines that the

offenses charged in two separate informations may be tried jointly,

“[i]f the court finds a Defendant or the prosecution is prejudiced by

a joinder of offenses . . the court shall order an election of separate

trials of separate counts . . . or provide other relief as justice

requires.” Utah Code Ann. § 77-8a-1(4)(a). -

Applying the statutory criteria to this case, based upon th

evidence presented at the preliminary hearing, the court finds that

the offenses charged in case no. 017 and case no. 633 could kave

been joined in a single information. Although the offenses charged

in these two informations occurred roughly one months apart, there

is support for Plaintiff's argument that there is evidence

demonstrating that the crimes were part of a common scheme or

plan. See Utah Code Ann. § 77-8a-1(1)(b). Each of the alleged

offenses involved the same actors—Defendant and Craig

Nicholls—cooperating extensively with one another to allegedly

concoct a plan for the single purpose of getting money or items of

value from Defendant’s former husband as well as her aunt. It is

alleged that Defendant gathered information and selected a relative

in Cache Valley as the victim, she informed Mr. Nicholls of her

aunt and the valuables her aunt possessed in a safe in her home, she

also informed Mr. Nicholls of her former husband and the

fraudulent insurance policies she obtained, and both Defendant and

Mr. Nicholls desired to divide the fruits of their crimes with each

27

other.

As noted above, Defendant argues that she will be

prejudiced by a joinder of offenses in a single trial because, if the

jury hears evidence of other alleged crimes while being tried for

aggravated murder and the jurors conclude that she in fact

committed these other crimes, then even if the jurors could not

conclude beyond a reasonable doubt that she committed aggravated

murder, they would likely still convict her of aggravated murder

based upon the inevitable perception that she is a bad person for

having committed the other crimes or have engaged in improper

conduct. This argument is unpersuasive, particularly in view of the

fact that it relies upon a less-then-fair assessment of jurors’ abilities

to perform their duty to make faire and impartial judgments based

upon the evidence presented at trial and the court’s instructions

concerning the applicable law. Joinder of offenses in this case is

permissible based upon the State’s argument that the offenses are

“alleged to have been part of a common scheme or plan,” Utah

Code Ann. § 77-8a-1(1), and the court’s conclusion that Defendant

will not be unfairly prejudiced by having the offenses charged in the

two informations tried jointly.

For the foregoing reasons, the States Motion to Join Case

No. 031100633 and Case No. 031101017 is granted. In light of this

ruling, Defendant’s request to bifurcate the two cases is necessarily

denied, as is her request to have the aggravated murder count

severed from the other charged offenses.’

Motion to Exclude Photographs

On May 6, 2004, Defendant filed a motion in limine

requesting the trial court to exclude photographs of the deceased.

*This ruling also renders moot the arguments raised

concerning issues of change of venue. Moreover, it avoids the

appearance of the court inappropriately manipulating the case in

order to solve evidentiary issues related to either phase of the

capital trial.

28

Defendant arguers that the photographs the State seeks to admit do

not demonstrate who shot the decedent, but relate solely to

uncontested facts, for example, that the deceased was shot and what

his body position was at the crime scene. Because these facts are

uncontested, the photographs are irrelevant because they do not tend

to make more or less probable a fact of consequence in the case.

She further argues that even if the photographs are relevant, they

should be excluded under Rule 403 of the Utah Rules of Evidence.

Given the gruesome nature of the photographs, their probative value

is, according to Defendant, substantially outweighed by the danger

of unfair prejudice. Moreover, admission of the photographs would

amount to nothing more than the unnecessary presentation of

cumulative evidence since the same uncontested facts can easily be

set before the jury by means of verbal testimony.

The State responded by arguing that the photographs are

relevant for purposes of corroborating the testimony of Craig

Nicholls. In addition, the State contends that the photographs are not

gruesome in nature and do not amount to the presentation of

needlessly cumulative evidence. Although information about the

death of the decedent may be expressed through verbal testimony,

the State also maintains that the photographs provide a degree of

understanding that oral testimony does not. Nevertheless, during

oral argument, the State conceded that if Mr. Nicholls testified,

many of the photographs wiil not have to be admitted. On the other

hand, because Defendant will not conceded or stipulate that Mr.

Nicholls was the shooter, if Mr. Nicholls refuses to testify, then the

photographs will be essential to substantiating the prior statements

made by Mr. Nicholls to State investigators indicating that he was

the one who shot the decedent. Whether Mr. Nicholls testifies,

however, and exactly what the content of his testimony will be if he

does testify will only be known at the time of trial.

Based upon the representations made by both parties during

oral argument, the issues raised in Defendant’s motion will only

become ripe after it is known whether Mr. Nicholls testifies and, if

so, what the content of his testimony will be.

29

Objection to Bindover Order

On June 9, 2004, Defendant filed a motion objecting to the

second paragraph of the Bindover Order and paragraph 18 of the

Order Denying Defendant’s Motion to Quash Bindover, both of

which were filed by the State on June 3, 2004. According to

Defendant, these two paragraphs make the erroneous finding that

even if the Nicholls and Goalen hearsay statements’ were segregated

from the other evidence presented at the preliminary hearing and not

considered as part of the bindover determination, there would still

be sufficient evidence to establish probable cause to believe that the

charged crimes were in fact committed and that Defendant

committed them. Defendant argues that although the so-called

“segregation” issue was raised by the State at the hearing convened

on May 10, 2004, the court specifically declined to rule on the issue

and invited the State, if it so desired, to treat the issue further by

way of memorandum. Since the court did not rule on the

segregation issue, Defendants requests that the two paragraphs

purporting to make a finding with respect to the segregation issue by

stricken. .

During oral argument on June 22, 2004, the State asserted

that it has always argued that there is sufficient evidence to bind

Defendant over on the charged offenses even without the Nicholls

_ and Goalen hearsay statements and that the paragraphs objected to

simply reflect that position. The prosecutor further asserted that he

did not recall the court requesting him to submit a memorandum on

the segregation issue. Rather, it was his understanding that the

court would review the evidence in light of the segregation issue

and then decide whether to sign the orders with the segregation

findings included.

At the May 10" hearing, in ruling on Defendant’s motion to

*These statements include: (1) State’s Exhibit No.

25-Nicholls Interview; State’s Exhibit No. 25—Goalen Interview;

and State’s Exhibit No. 23—Nicholls Rule 11 Waiver/Statement.

30

quash the bindover order, the court specifically stated that Crawford

v. Washington, U.S. 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004) had

no application to preliminary examinations and could not, therefore,

be grounds for excluding consideration of the Nicholls and Goalen

hearsay statements. In addition, the court also stated that the

Nicholls and Goalen hearsay statements fully satisfied the

requirements of Rule 1102 of the Utah Rules of Evidence and,

therefore, were properly admitted during the preliminary

examination and properly considered by the court in making the

probable cause determination. With respect to the segregation issue

raised by the State, although the court indicated that there was

substantial evidence outside the hearsay statements in support of a

finding of probable cause, the court also stated that its probable

cause determination was based upon a consideration of all of the

evidence and not in light of the segregation issue. The court

suggested to both the prosecutor and Defendant that they could

submit a memorandum on the issue and allow the court to make a

ruling at a later date. Although since the May 10" hearing the Court

has analyzed the evidence in view of the segregation issue, the court

did not receive any memoranda from the parties addressing the

segregation issue and has had no opportunity to make a ruling.

In light of the foregoing circumstances, the court grants

Defendant’s request to strike paragraph two of the Bindover Order

and paragraph 18 of the Order Denying Defendant’s Motion to

Quash Bindover.

DATED July 14, 2004.

BY THE COURT

“s/ Gordon J. Low”

First Judicial District Court Judge

31

IN THE FIRST JUDICIAL DISTRICT COURT,

IN AND FOR THE COUNTY OF CACHE, STATE OF UTAH.

STATE OF UTAH,

Plaintiff

VS. Case nos. 031100633

031101017

TAMARA RHINEHART,

Defendant. -

ORDER DENYING DEFENDANT'S

MOTION TO QUASH BINDOVER

The Court, after review and consideration of the Defendant’s

Motion to Quash, the State’s Response to the Defendant’s Motion to

Quash, and the oral argument presented to ihe Court on May 10,

2004, now makes the following findings of fact, conclusions of law

and order:

FINDINGS OF FACT:

i. On February 5, 6, 11, and 27, 2004, a preliminary hearing

was conducted in the above entitled matter.

2. On February 6, 2004, the State concluded its presentation

of evidence. At the request of the defense so they would have

additional time to present additional witnesses, the Court continued

the hearing to February 11, 2004.

3. On February 11", prior to the conclusion of the

preliminary hearing, the State filed a Second Amended Information

charging the defendant with one court of aggravated murder, one

court of forgery, and four counts of communications fraud. The

State requested the Court to bind the defendant over for trial on all

six counts contained in the Second Amendment Information in case

32

#03 1100633 (North Logan homicide) and on all three counts in the

Information in case #031101017 (the Providence burglary).

4. On February 112, 2004, the defendant presented her case,

and at the conclusion of the hearing, the Court bound the defendant

over on the crime of criminal homicide, aggravated murder, a

capital offense, finding that the crime was committed and that the

defendant committed it. See Preliminary Hearing Transcript, vol.

3, p. 61. The Court withheld ruling on the bind over of the

remaining counts and requested the State prepare a memorandum

detailing what evidence had been presented during the preliminary

hearing that supported the remaining charges contained in the

Amended Information filed in case #031 100633 and the Information

filed in case #031101017. The Court provided time for the

defendant to respond to the State’s memorandum and set a hearing

for February 27, 2004, where the defendant could present any

additional evidence or information to the Court.

5. On February 13, 2004, the State filed its Post Preliminary

Hearing Memorandum detailing the evidence presented by the State

that supported each of the remaining counts which had not been

bound over for trial. The defendant did not file a response to the

State’s memorandum nor did the defendant call any further

witnesses at the hearing held on February 27, 2004.

6. On February 27, 2004, the Court found that probable

cause was established and existed for each of the crimes charged in

the remaining counts in both cases and that they were committed by

the defendant. The Court bound over the defendant on the charges

in both cases and required her to appear to answer to those charges

before the district court. See Preliminary Hearing Transcript for

Feb. 27, p. 46.

7. On March 4, 2004, the defendant filed its Motion to

Quash Bindover. On March 24, 2004, the defendant filed its

supporting memorandum. On April 7, 2004, the State submitted its

response to the defendant’s Motion to Quash Bindover.

8. During the preliminary hearing, the State presented

testimony from Chief Kim Hawkes, Detective Shawn Bennett, and

33

Detective Jim Williamson. Through these witnesses, the State

provided direct testimony of the investigation of the death of

Michael Brodrero. The evidence received and considered by the

Court included: (1) Several pictures of the murder scene; (2) The

Medical Examiner’s report of examination of Michael Brodrero

stating that he died of gunshot wounds inflicted by another

individual; (3) Applications for life insurance policies, made by the

defendant via the internet, taken out in the name of the victim and

listing the defendant as a beneficiary; (4) An application for life

insurance on the victim submitted by the defendant to Shawn

Iverson; (5) Voluntary statement of Shawn Iverson indicating that

the defendant submitted an application for life insurance on the

victim; (6) Direct testimony that the signature on the application

submitted by the defendant to Shawn Iverson was a forgery and

there being a high probability that the signature was forged by the

defendant; (7) Statement of Marnie Christianson, the defendant’s

hair dresser, made to the North Park Police Department, wherein

Ms. Christianson gave an account of the admissions made by the

defendant to her of the defendant’s plans to kill Michael Boudrero

and of her commission of a burglary of a safe containing money and

jewelry; (8) Sworn witness statement of Sue Davis detailing that a

safe was taken from her home in Providence, Utah, that contained

$6,500 in cash and miscellaneous jewelry items; (9) Business

records of Globe indicating communications from the defendant,

wherein she requested actions with respect to life insurance policies

on Michael Boudrero, including a time where, with the assistance of

the defendant, Mr. Nicholls posed as Michael Boudrero and

attempted to reinstate a policy that Mr. Boudrero had previously

cancelled; and (10) Nicholls’ Rule 11 Statement, Nicholls’

Interview, and Goalen Interview which each describe in similar and

extensive details the defendant’s participation in acquiring

insurance policies on Michael Boudrero, of planning a ruse to lure

Mr. Boudrero out to a job site in North Logan where he would be

killed by Nicholls, and of disposing of the evidence after the murder

was completed.

34

9. During the course of the Preliminary H earing, the State

offered and the Court received thirty-three exhibits. The defendant

only objected to the admission of six of these exhibits including:

State 's Exhibit #25 (Nicholls Interview); State's Exhibit #24

(Goalen Interview); State 's Exhibit #23 (Nicholls Rule 11

Waiver/Statement); State 's Exhibit 29 (Transcript of Marnie

Christensen); State ‘s Exhibit 31 (Globe Message Display) and

State 's Exhibit #33 (Globe Life Letter and Message Display). The

rest of the remaining twenty-seven State’s exhibits were offered and

received by the Court without objection from the defendant.

10. On August 14, 2003, Ms. Goalen was interviewed and

admonished by Detective Jacobson to tell the truth and she was

further placed under oath by Kelly L. Wilburn, a Registered

Professional Reporter and the interview was transcribed verbatim.

11. On November 10, 2003, Craig Nicholls pieaded guilty

to Aggravated Murder, a capital felony and signed a document

entitled “Notice of Plea Bargain Rule 11 Waiver/Statement of

Facts.” With the assistance of Mr. Nicholls, this document was

prepared by Mr. Nicholls’ attorneys and the State. During the

change of plea hearing, Mr. Nicholls was placed under oath and was

read the document and confirmed each statement of fact contained

in the document as being true and accurate. The Court accepted Mr.

Nicholls’ plea finding that it was freely, knowingly and voluntarily

made.

12. On November 12, 2003, Craig Nicholls met with

Detectives Bennett and Jacobson at the Logan City Police

Department for an interview. Before the interview began, Detective

Jacobson admonished Mr. Nicholls that he needed to be truthful and

that if he wasn’t, additional charges could be brought against him.

Prior to the interview, Rodney M. Felshaw, a Registered

Professional report, swore in Mr. Nicholls.

13. The Court received State 's Exhibits #23, 24, and 25

finding they were reliable and admissible pursuant to Rule 1102

(b)(8)(a) and (b)(9) of the Utah Rules of Evidence. This Court finds

that Nicholls’ Rule 11 Statement was detailed, clear, under oath, and

35

in exchange for a lesser penalty. Nicholls’ Interview corroborates

Nicholls’ Rule 11 Statement on most points, but in more detail, and

is likewise under oath. This interview, which gives some additional

detail to Nicholls’ Rule 11 Statement, was also given after the

sentencing and not before, so there was no consideration relative to

whether or not it was in expectation of a lesser penalty. The detail

found in Nicholls’ Statement and Nicholls’ Interview is remarkably

consistent with the other evidence presented at the Preliminary

Hearing and enhances its reliability.

14. The Goalen Statement was received and corroborated

with minute details which would only be known by someone with a

relationship, which raises its reliability. It was likewise under oath

and not in exchange for any immunity. It was corroborated by the

Nicholls’ Interview and Nicholls’ Rule 11 Statement. It had internal

and external corroboration, as well as the interview suggested by

Detective Jacobson. State’s Exhibit #1, Shaun Iverson’s Statement

likewise has internal and external corroboration, as does the State's

Exhibit #26, Sue Davis’ Statement. The reliability of both of those

have been established consistent with Rule 1102 and independent of

that and also with respect to the testimony of Detective Bennett and

Williamson. All of the testimony from the witnesses demonstrated

a reliability and corroboration of the other hearsay statements

received consistent with Rule 1102.

16. On July 16, 2003, Marnie Christianson called the North

Park Police Department and talked with Officer John Italasano.

During this conversation she disclosed information regarding the

defendant’s involvement in the murder of Michael Boudrero. This

tape recorded conversation was copied and forwarded to the defense

on August 28, 2003. On February 5, 2004, Ms. Christianson signed

an affidavit and affirmed that the contents of the transcript were an

accurate account of the conversation she had with Officer Italasano.

During the preliminary hearing, a partial transcript of this call was

offered and received by the Court into evidence. Ms. Christianson

had been subpoenaed to the preliminary hearing by the defendant

and available to be cross examined on her statement during the

36

proceedings. The defendant objected to the admission of the

transcript, but never called Ms. Christianson to testify at the

preliminary hearing.

17. The defendant’s objection to State 's Exhibits #31 and

#33 was based upon the theory that they would not be able to cross

examine the caller that identified himself in the business record as

Michael Boudrero. The defendant’s objection was denied and the

exhibits were admitted as business records.

18. In addition to its prior determination of probable cause

in both case #031100633 and Case #031 101017 finding that the

crimes as charged were committed and that the defendant

committed them, the Court additionally finds that the evidence,

were it segregated to exclude the following contested evidence:

Nicholls Interview, State’s Exhibit #25; Goalen Interview, State's

Exhibit #25; and Nicholls Rule 11 Waiver/Statement, State's Exhibit

#23, the evidence is still sufficient to establish probable cause that

the crimes were committed in both case #031100633 and case

#031101017 as charged and that the defendant committed them.

CONCLUSIONS OF LAW:

The Court hereby makes the following conclusions of law:

1. The hearsay evidence, presented during the preliminary

hearing held in the above entitled matter, was properly admitted

pursuant to Article I section 12 of the Utah Constitution and Rule

1102 of the Utah Rule of Evidence.

2. The hearsay evidence submitted by the State in each

instance qualified under Rule 1102(b)(8), (9) of the Utah Rules of

Evidence as it was either a written, recorded, or transcribed

statement, given under oath or affirmation; or was given pursuant to

a notification to the declarant that a false statement made therein is

punishable; or the statement had other indica of reliability.

3. The same right to confront and cross examine a witness

that is provided for in a criminal trial does not exist in a preliminary

hearing. The case of Crawford v. Washington, 2004 WL 413301

applies to trial proceedings and does extend the same rights of

37

confrontation and cross examination to a preliminary hearing.

4. The doctrine of merger is inapplicable to both case

#031100633 and case #031101017. Merger does not eliminate

either of the aggravating factors found in Section 76-5-202 (f) & (g)

of the Utah Code, nor does it eliminate any of the charges in either

case, as the statutory elements of any given charge is different than

the elements required to prove any of the remaining charges.

5. The defendant has failed to support with any law its

argument that Section 76-5-202(f) of the Utah Code is

unconstitutional. This Court finds Section 76-5-202(f) to be

constitutional as it gives adequate notice to enable ordinary people

to understand what conduct is prohibited. This Court further

concludes that Section 76-5-202(f), (g) does not encourage arbitrary

and discriminatory enforcement.

Accordingly, it is ORDERED, that the Defendant’s Motion

to Quash Bindover is denied in whole.

DATED June 3, 2004.

“s/ Gordon J. Low”

District Court Judge

38