State v. Reyos, 2017 UT App 132 (July 28, 2017)

An acquaintance of the defendant told police that the defendant admitted to killing the victim, but at trial the acquaintance testified that he had no recollection of making this statement.  The trial court admitted a recording of the acquaintance’s statement into evidence, and the jury ultimately convicted the defendant of aggravated murder.  The defendant argued on appeal that the admission of the recorded statement violated his Sixth Amendment right of confrontation because the acquaintance was unavailable for examination due to his amnesia. The court rejected this argument, concluding that unavailability under the confrontation clause is narrow and literal.  A witness is unavailable if he does not testify but is available if he does.  The court also rejected the defendant’s constitutional challenges to Utah’s aggravated murder sentencing scheme, and accordingly affirmed his conviction.