State v. Fullerton , 428 P.3d 1052 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 49IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
GREGORY TODD FULLERTON,
Appellant.
No. 20170113
Filed September 11, 2018
Fifth District, Washington County
The Honorable Pamela G. Heffernan
No. 081501299
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic.
Gen., Salt Lake City, Ryan J. Shaum, St. George,
for appellee
Gary W. Pendleton, St. George, for appellant
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Gregory Fullerton was convicted of child abuse homicide
after his girlfriend’s son suffered fatal brain hemorrhages while in
his care. Attempting to exclude the interview he had given to the
police, Mr. Fullerton filed a motion to suppress on the grounds
that the interview violated his Miranda rights and that the
confession he gave was not voluntary. The district court denied
Mr. Fullerton’s motion, and he challenges that ruling on appeal.
Additionally, Mr. Fullerton raises four challenges to expert
testimony provided in his case and alleges that the prosecutor
violated his due process rights during closing arguments.
STATE v. FULLERTON
Opinion of the Court
¶2 We decline to consider Mr. Fullerton’s challenges to the
expert testimony because three of them were unpreserved, and he
received the only remedy he requested from the trial court on the
fourth. We likewise determine that his due process challenge is
unpreserved and do not reach that issue. Conversely, we do
consider Mr. Fullerton’s appeal of the denial of his motion to
suppress. We conclude that his confession was voluntary and that
he was not in custody for purposes of Miranda and therefore
affirm the district court on these issues.
¶3 However, we take this opportunity to clarify that because
Miranda is a matter of federal jurisprudence, our courts must be in
lockstep with the United States Supreme Court on whether an
individual is in custody for purposes of Miranda. We therefore
rebuke sole reliance on the factors we set forth in Salt Lake City v.
Carner, 664 P.2d 1168 (Utah 1983), for this determination and
clarify the role these factors play going forward.
BACKGROUND
¶4 In the early evening of July 23, 2008, Mr. Fullerton was
entrusted with the care of N.L., his girlfriend’s three-month-old
son. 1 A short time later, Mr. Fullerton entered the bedroom where
N.L.’s step-grandfather was watching television and announced
that something was wrong with N.L.—the baby was limp and
struggling to breathe.
¶5 Mr. Fullerton called 911 and attempted to resuscitate N.L.
The responding officer performed CPR on N.L. until paramedics
arrived and transported him to Dixie Regional Medical Center.
There, Dr. Adrianne Walker discovered that N.L. had suffered a
subdural hematoma, brain swelling, and likely retinal
hemorrhaging. Dr. Walker informed Detective Adam Olmstead of
__________________________________________________________
1 “In reviewing the trial court’s ruling [on a motion to suppress],
we recite the facts in the light most favorable to the trial court’s
findings.” State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996); see
also State v. Brandley, 972 P.2d 78, 79 (Utah Ct. App. 1998)
(“[W]hen reviewing the denial of a motion to suppress, we recite
the facts in a light most favorable to the trial court’s findings.”
(citation omitted) (internal quotation marks omitted)). “On appeal
from a jury verdict, we recite the facts in the light most favorable
to that verdict.” State v. Diaz, 859 P.2d 19, 20 (Utah 1993).
2
Cite as: 2018 UT 49Opinion of the Court
the St. George City Police Department that she suspected N.L. had
been violently shaken, but further medical investigation was
needed.
¶6 After speaking with Dr. Walker, Detective Olmstead had
another officer call Mr. Fullerton and ask him to come to the
police station for questioning. Mr. Fullerton’s father drove him to
the police station and waited in the parking lot. Officer Joe
Watson told Mr. Fullerton that he was not under arrest and
directed him to an interview room. Captain Barry Golding arrived
and closed, but did not lock, the door of the interview room. After
a short introduction, the following exchange occurred:
Q. I need to make sure you understand a couple of
things, okay? One, you’re not under arrest.
A. I know that.
Q. You know that?
A. Yes.
Q. Okay. . . . but we need to figure out what
happened, okay? What I want to clarify with you is
that you understand your father is out back. You
come in here voluntarily. We want to talk to you.
You’re free to leave at any time. Do you understand
that?
A. Yeah. I do.
Q. So if you tell me you want to walk, that’s okay.
We’ll deal with that.
A. Okay.
Captain Golding then told Mr. Fullerton that he wanted “to talk
and talk and talk until we figure this thing out, okay?”
¶7 Detective Olmstead arrived, and for the following ninety
minutes either he or Captain Golding questioned Mr. Fullerton.
The officers were never in the interrogation room at the same
time. They were dressed in plain clothes and came and went from
the interview room several times. As far as Mr. Fullerton knew,
3
STATE v. FULLERTON
Opinion of the Court
the door remained unlocked at all times. 2 At no point did the
officers physically restrain Mr. Fullerton or raise their voices. Nor
did they recite to Mr. Fullerton the Miranda warnings.
¶8 The officers initially couched their questioning in
friendly, non-accusatory terms such as “something happened in
there where the baby went unresponsive. And that’s . . . the time
frame . . . we need to kind of lock down, okay?” However,
Mr. Fullerton offered an evolving version of events: he simply
rolled the baby over and the baby stopped breathing; perhaps a
stranger entered the room while he was in the bathroom; he had
dropped the baby; he had a “freeze” related to his Parkinson’s
Disease and “fumbled” the baby. As the inconsistencies in his
story became apparent, the officers took on a more accusatory
tone. Mr. Fullerton then stated that he had “pushed on [N.L.’s]
back” and “something cracked.” He said, “But now I’ll probably
go to jail and everything else.” Detective Olmstead neither
confirmed nor refuted this statement. Detective Olmstead left and
Captain Golding entered the room and said that Mr. Fullerton’s
story still could not account for N.L.’s injuries. He eventually told
Mr. Fullerton, “We know that you’re accountable; we know that
you’re responsible.”
¶9 Mr. Fullerton repeatedly denied “shaking” N.L. but
eventually confessed that he had “tossed him around” and
repeatedly “flip-flopped him over” with enough force that the
baby was lifted off the bed and landed on his head. He said that
N.L. then rolled over, closed his eyes, and became unresponsive.
Shortly after this admission, Captain Golding said, “But you
remember when I told you about—that you weren’t in custody?
That your father brought you in? We need—we need to decide
what to do at this point, okay?”3 Mr. Fullerton was then officially
arrested and charged with child abuse.
__________________________________________________________
2 The door became locked at some point near the end of the
interview, but this fact was unknown to both Mr. Fullerton and
Captain Golding.
3 The district court found Mr. Fullerton to be in custody at this
point and suppressed any further statements made during the
interview.
4
Cite as: 2018 UT 49Opinion of the Court
¶10 Meanwhile, N.L. was flown to Primary Children’s
Medical Center, where he later died. Dr. Karen Hansen, a
pediatrician at Primary Children’s, diagnosed N.L. with subdural
and subarachnoid hemorrhages on both sides of his brain, brain
swelling, retinal hemorrhages, and retinal (macular) folds in both
eyes. After learning of N.L.’s death, the State charged
Mr. Fullerton with child abuse homicide, a first-degree felony.
Before trial, Mr. Fullerton moved to suppress his police interview
on the grounds that officers did not give him the Miranda
warnings and allegedly used impermissible interrogation tactics.
The district court denied the motion. A jury found Mr. Fullerton
guilty and he was sentenced to a term of five years to life in
prison.
¶11 Mr. Fullerton appeals his conviction, claiming that the
district court incorrectly denied his motion to suppress,
improperly allowed certain expert testimony, and that he was
denied due process of law as a result of prosecutorial misconduct.
We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(i).
STANDARD OF REVIEW
¶12 We review a trial court’s determination of custodial
interrogation for Miranda purposes for correctness. State v. Levin,
2006 UT 50, ¶ 46, 144 P.3d 1096.
¶13 “In reviewing a trial court’s determination on the
voluntariness of a confession, we apply a bifurcated standard of
review.” State v. Mabe, 864 P.2d 890, 892 (Utah 1993). Under this
standard, “the ultimate determination of whether a confession is
voluntary is a legal question, and we review the trial court’s
ruling for correctness.” Id. (citing Arizona v. Fulminante, 499 U.S.
279, 287 (1991); State v. Thurman, 846 P.2d 1256, 1270 n.11 (Utah
1993)). We set aside factual findings made by the district court
only if they are clearly erroneous. Id.¶14 “The trial court has wide discretion in determining the
admissibility of expert testimony, and such decisions are
reviewed under an abuse of discretion standard.” State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794 (citation omitted). Therefore, “we
will not reverse [a decision to admit or exclude expert testimony]
unless the decision exceeds the limits of reasonability.” Id.(alteration in original) (citation omitted).
5
STATE v. FULLERTON
Opinion of the Court
ANALYSIS
I. LACK OF MIRANDA WARNINGS
¶15 Because he did not receive the Miranda warnings prior to
making his confession to police, Mr. Fullerton contends that the
district court erroneously denied his motion to suppress the
confession. We begin by discussing the relevant standards for
determining when a Miranda warning is necessary. Then we turn
to whether the district court erred in determining that
Mr. Fullerton was not entitled to Miranda warnings,
consequentially denying his motion to suppress.
A. When Miranda Warnings Are Required
¶16 The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V. In
Malloy v. Hogan, the United States Supreme Court applied this
protection to the states via the Fourteenth Amendment. 378 U.S. 1,
6 (1964).
¶17 Two years later, in the landmark case of Miranda v.
Arizona, the Court established significant procedural safeguards
against self-incrimination for suspects in police custody. 384 U.S.
436 (1966). The Court explained that “the constitutional
foundation underlying the privilege” against self-incrimination is
an “essential mainstay of our adversary system,” and “require[s]
the government ‘to shoulder the entire load’” of producing
evidence against a defendant. Id. at 460 (citation omitted). “[T]o
respect the inviolability of the human personality,” the
government must “produce the evidence . . . by its own
independent labors” and may not extract such evidence from a
person “by the cruel, simple expedient of compelling it from his
own mouth.” Id. (citing Chambers v. Florida, 309 U.S. 227, 235–38
(1940)).
¶18 The Court held “that without proper safeguards the
process of in-custody interrogation of persons suspected or
accused of crime contains inherently compelling pressures which
work to undermine the individual’s will to resist and to compel
him to speak where he would not otherwise do so freely.” Id. at
467. In such an environment, “no statement obtained from the
defendant can truly be the product of his free choice.” Id. at 458.
To counteract these pressures and safeguard a suspect’s
constitutional protection against self-incrimination, he must be
given a Miranda warning prior to any questioning. Id. at 479. That
6
Cite as: 2018 UT 49Opinion of the Court
warning must inform the suspect that “he has the right to remain
silent,” “anything he says can be used against him in a court of
law,” “he has the right to the presence of an attorney,” and “if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.” Id.¶19 These Miranda safeguards apply “when an individual is
taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to
questioning.” Id. at 478. In 1983, we adopted four factors that we
deemed the “most important factors in determining whether an
accused who has not been formally arrested is in custody.” Salt
Lake City v. Carner, 664 P.2d 1168, 1171 (Utah 1983) (emphasis
added). These “Carner factors” include “(1) the site of the
interrogation; (2) whether the investigation focused on the
accused; (3) whether objective indicia of arrest were present; and
(4) the length and form of interrogation.” Id.¶20 The district court relied on the Carner factors when
analyzing Mr. Fullerton’s motion to suppress. And Mr. Fullerton
uses these factors to challenge the district court’s determination
that he was in custody. However, the State contests rigid reliance
on these factors, arguing that they are out of step with the federal
totality of the circumstances standard and urging us to abandon
Carner.
¶21 To a certain extent, we agree with the State. The United
States Supreme Court has recently made the two-step test for the
custody analysis clear. To determine whether a person is in
custody for the purposes of Miranda, “the initial step is to
ascertain whether, in light of the objective circumstances of the
interrogation, a reasonable person [would] have felt he or she was
not at liberty to terminate the interrogation and leave.” Howes v.
Fields, 565 U.S. 499, 509 (2012) (alteration in original) (citations
omitted) (internal quotation marks omitted). If “an individual’s
freedom of movement was curtailed,” the focus turns to “whether
the relevant environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” Id.¶22 The first part of this inquiry—whether a reasonable
person would have felt free to leave—requires “examin[ing] all of
the circumstances surrounding the interrogation” to determine
“how a suspect would have gauge[d] his freedom of movement.”
Id. (second alteration in original) (citations omitted) (internal
7
STATE v. FULLERTON
Opinion of the Court
quotation marks omitted). Declining to “demarcate a limited set of
relevant circumstances,” the United States Supreme Court
requires courts to look at “all of the circumstances surrounding
the interrogation, including any circumstance that would have
affected how a reasonable person in the suspect’s position would
perceive his or her freedom to leave.” J.D.B. v. North Carolina, 564
U.S. 261, 270–71 (2011) (citations omitted) (internal quotation
marks omitted). The Court has also made clear that “the
subjective views harbored by either the interrogating officers or
the person being questioned are irrelevant.” Id. at 271 (citation
omitted) (internal quotation marks omitted); see also Stansbury v.
California, 511 U.S. 318, 323 (1994) (“[T]he initial determination of
custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.”). 4
__________________________________________________________
4 The State mounts a separate challenge to the second Carner
factor, alleging that the factor was completely disavowed by the
United States Supreme Court in Stansbury v. California, 511 U.S.
318 (1994). The State’s argument overstates the holding in
Stansbury. While the Stansbury court did directly consider a
challenge to factors identical to the Carner factors, it only rejected
the second factor to the extent that the factor required looking at
the subjective beliefs of either the individual being interrogated or
the officers. Id. at 326 (“[A]ny inquiry into whether the
interrogating officers have focused their suspicions upon the
individual being questioned (assuming those suspicions remain
undisclosed) is not relevant for the purposes of Miranda.”
(emphasis added)). But it also emphasized that
an officer’s views concerning the nature of an
interrogation, or beliefs concerning the potential
culpability of the individual being questioned, may
be one among many factors that bear upon the
assessment whether that individual was in custody,
but only if the officer’s views or beliefs were
somehow manifested to the individual under
interrogation and would have affected how a
reasonable person in that position would perceive
his or her freedom to leave.
Id. at 325.
8
Cite as: 2018 UT 49Opinion of the Court
¶23 Strict or sole reliance on the Carner factors is inconsistent
with the totality of the circumstances analysis prescribed by
federal law. While these four factors may, at times, be relevant in
a custody analysis, misplaced reliance on these factors can be
highly problematic, especially where such reliance leads to
conflicts with controlling law. 5 Each of the Carner factors should
be considered when relevant, ignored when not, and given
appropriate weight according to the circumstances.
¶24 Proper use of the Carner factors requires considering
them in conjunction with all other relevant circumstances. As our
court of appeals eloquently put it:
We . . . consider the Carner factors, as well as any
additional factors indicated by the Supreme Court,
within the broader contextual picture . . . . And
when, as a background matter, a person is subject to
extensive, state-imposed restrictions on freedom of
movement, the custody analysis should address all
of the features of the interrogation, including the
manner in which the interrogation [was] conducted.
__________________________________________________________
5 A recent series of cases from this court illustrates this same
problem. In State v. Shickles, we demarcated factors that a district
court should consider when determining whether evidence
should be excluded under Utah Rule of Evidence 403. 760 P.2d
291, 295–96 (Utah 1988), abrogated on other grounds by State v.
Doporto, 935 P.2d 484 (Utah 1997). After recognizing that “a
number of courts have relied heavily on this list of factors in
weighing evidence under rule 403,” we abandoned rigid
application of the Shickles factors. State v. Lucero, 2014 UT 15, ¶ 32,
328 P.3d 841, overruled on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. We acknowledged that “while some of [the
Shickles] factors may be helpful in assessing the probative value of
the evidence in one context, they may not be helpful in another.”
Id. Thus, it is “unnecessary for courts to evaluate each and every
factor and balance them together in making their assessment . . .
because courts are bound by the text of rule 403, not the limited
list of considerations outlined in Shickles.” Id.We do the same thing here—we are de-Shickleizing the Miranda
custody analysis. Courts are bound by the totality of the
circumstances test, not the Carner factors.
9
STATE v. FULLERTON
Opinion of the Court
State v. Reigelsperger, 2017 UT App 101, ¶ 47, 400 P.3d 1127(alteration in original) (footnote omitted) (citations omitted)
(internal quotation marks omitted).
¶25 The Supreme Court recently highlighted some potentially
relevant factors to consider, many of which are similar to the
Carner factors: “the location of the questioning, its duration,
statements made during the interview, the presence or absence of
physical restraints during the questioning, and the release of the
interviewee at the end of the questioning.” Howes, 565 U.S. at 509(citations omitted). And other Supreme Court cases have
highlighted additional circumstances that may be relevant. See,
e.g., Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (considering
other factors such as whether the police transported the
interviewee to the station or required him to arrive at a specific
time, whether the police threatened him with arrest, the focus of
the questioning, and whether he wanted breaks).
¶26 Therefore, the proper initial step in determining whether
an individual is entitled to Miranda warnings must start and end
with whether a reasonable person, based on all of the objective
circumstances surrounding the interrogation, would have felt free
to terminate the interview and leave. Because we conclude that
Mr. Fullerton would have felt free to leave, the first step of the
custody analysis has not been met, we do not consider the second
step.
B. Mr. Fullerton was Not in Custody Under Miranda
¶27 Having set out the applicable standard for determining
whether an individual is in custody for the purposes of Miranda,
we turn to the core inquiry here—whether, based on “all of the
circumstances surrounding the interrogation,” “a reasonable
person [in Mr. Fullerton’s position] [would] have felt he or she
was not at liberty to terminate the interrogation and leave.”
Howes, 565 U.S. at 509 (second alteration in original) (citations
omitted) (internal quotation marks omitted).
¶28 Mr. Fullerton does not present a challenge under the
totality of the circumstances. In fact, even though he claims that
the Carner factors are controlling, he only discusses two factors.
Ultimately, Mr. Fullerton points to three facts that he alleges show
that he was in custody and was entitled to receive a Miranda
warning: the officers’ focus on him as a suspect, the accusatory
nature of the questioning, and Captain Golding’s suggestions that
Mr. Fullerton would serve his best interests by cooperating with
10
Cite as: 2018 UT 49Opinion of the Court
the investigation because it would allow the Captain to tell the
prosecutor and the judge that Mr. Fullerton told the truth.6
¶29 The requirement of a Miranda warning is not “imposed
simply because the questioning takes place in the station house, or
because the questioned person is one whom the police suspect.”
Oregon v. Mathiason, 429 U.S. 492, 495 (1977). And while the
Supreme Court has recognized that “when investigatory
questioning shifts to accusatory questioning, the existence of
custody is likely because this often indicates to the defendant that
he or she is not free to leave,” we have said that even this factor
alone is not enough to create custody. State v. Levin, 2006 UT 50,
¶ 36, 144 P.3d 1096; see also Stansbury, 511 U.S. at 325 (“Even a
clear statement from an officer that the person under interrogation
is a prime suspect is not, in itself, dispositive of the custody issue,
for some suspects are free to come and go until the police decide
to make an arrest.”). Additionally, although it may be relevant,
reminding a person being interrogated that a judge or prosecutor
may take his or her truthfulness into consideration does not
automatically equate to a finding of custody by itself. See
Mathiason, 429 U.S. at 493, 495 (finding “no indication that the
questioning took place in a context where respondent’s freedom
to depart was restricted in any way” even though the officer told
the defendant “his truthfulness would possibly be considered by
the district attorney or judge”).
¶30 Simply put, Mr. Fullerton’s factual allegations to show
custody, on their own, stand on very shaky grounds. When these
allegations are considered as part of the totality of the
__________________________________________________________
6 Specifically, Mr. Fullerton points to the following statement by
Captain Golding:
You’ve got one opportunity to help yourself out of
this situation that you’ve gotten yourself into. We
know that you’re accountable; we know that you’re
responsible. We are just trying to figure out the
degree to where you put your hands on that – that
baby and caused the injuries that you caused. We
know you caused the injuries, but we’re still coming
up short on how. Exactly what happened.
Additionally, Mr. Fullerton alludes to other, similar
statements made during the interview.
11
STATE v. FULLERTON
Opinion of the Court
circumstances, it becomes clear that a reasonable person in
Mr. Fullerton’s position would have felt free to terminate the
interview and leave.
¶31 At an officer’s request, Mr. Fullerton voluntarily had his
father drive him to the police station; and his father waited at the
station for him the entire time. Cf. Yarborough, 541 U.S. at 664(noting that certain facts weighed against finding the defendant
was in custody, including that “[t]he police did not transport
[him] to the station or require him to appear at a particular time”
and his “parents remained in the lobby during the interview”);
State v. Fuller, 2014 UT 29, ¶ 45, 332 P.3d 937 (“[T]he fact that the
interrogation took place in a police car is not dispositive of the
custody issue and must be weighed against the defendant’s
voluntary choice to enter the car.”). When Mr. Fullerton arrived at
the station, he was escorted to an interview room where the door
was shut, but, to his knowledge, never locked; he was never
placed in handcuffs and no weapons were ever drawn. Cf. id.,2014 UT 29, ¶ 48 (“No handcuffs were used, no guns were drawn,
the doors to the car were unlocked, and [the defendant]
voluntarily spoke with officers.”).
¶32 Upon his arrival, Mr. Fullerton was assured at least three
times that he was not under arrest and was free to leave—and
each time he acknowledged the assurance and indicated
understanding. 7 Cf. Howes, 565 U.S. at 515 (“[R]espondent was
told at the outset of the interrogation, and was reminded again
thereafter, that he could leave and go back to his cell whenever he
wanted.”); Mathiason, 429 U.S. at 495 (recognizing that the
defendant “was immediately informed that he was not under
arrest” as an “indication that the questioning [did not take] place
in a context where respondent’s freedom to depart was restricted
in any way”); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.
__________________________________________________________
7 To begin the interview, Captain Golding made the following
statements to Mr. Fullerton: “I need to make sure you understand
a few things, okay? One, you’re not under arrest.”; “You came in
here voluntarily. We want to talk to you. You’re free to leave at
any time. Do you understand that?”; “So if you tell me you want
to walk, that’s okay.”; and “[Y]ou understand you’re free—you
know, you’re not in custody, okay?” Mr. Fullerton responded
affirmatively to all these statements.
12
Cite as: 2018 UT 49Opinion of the Court
1990) (“The most obvious and effective means of demonstrating
that a suspect has not been taken into custody . . . is for the police
to inform the suspect that an arrest is not being made and that the
suspect may terminate the interview at will.” (citations omitted)
(internal quotation marks omitted)); Fuller, 2014 UT 29, ¶ 49
(acknowledging the importance of the defendant being “told that
he could leave at any time”). 8
¶33 Over the next ninety minutes, two plain clothes officers
took turns questioning Mr. Fullerton, although they were never
both in the room at the same time. Cf. Berkemer v. McCarty, 468
U.S. 420, 438 (1984) (“The fact that the detained motorist typically
is confronted by only one or at most two policemen further mutes
his sense of vulnerability.”); id. (noting that “the aura of authority
surrounding an armed, uniformed officer . . . exert[s] some
pressure on the detainee to respond to questions”). In fact, they
came in and out freely at least nine times during the interview—
never locking the door behind them. Initially, the questions were
all directed towards Mr. Fullerton helping the officers figure out
what happened. Cf. Yarborough, 541 U.S. at 664 (“Instead of
pressuring [the defendant] with the threat of arrest and
prosecution, [the officer] appealed to his interest in telling the
truth and being helpful to a police officer.”). At the beginning of
the interview, the officers “[thought] the child [was] going to be
ok,” and just “need[ed] to figure out what happened.” According
to the district court, the officers’ investigation was “still in its early
stages” and they “had not yet ruled out any of the other people at
the house as possible suspects.” Cf. Fuller, 2014 UT 29, ¶ 48
(noting that the defendant “was not the initial focus of the
investigation, as officers learned that [the defendant] may have
__________________________________________________________
8 At least one circuit court has suggested that this factor should
be given heightened consideration. In United States v. Czichray, the
Eighth Circuit Court of Appeals reasoned that repeated
assurances of a suspect’s freedom “should not be treated merely
as one equal factor in a multi-factor balancing test.” 378 F.3d 822,
826 (8th Cir. 2004). The court also noted that “no governing
precedent of the Supreme Court . . . holds that a person was in
custody after being clearly advised of his freedom to leave or
terminate questioning.” Id.13
STATE v. FULLERTON
Opinion of the Court
been involved only after he openly admitted to possessing
‘inappropriate’ material”).
¶34 As the interview went on, it became clear to the officers
that Mr. Fullerton was providing them an ever-evolving and
inconsistent story. As the district court here noted, the officers did
not identify Mr. Fullerton “as ‘a likely criminal culprit’ . . . until
[Mr. Fullerton’s] account of the facts became inconsistent.” At that
point, the nature of the questions turned more accusatory. But
even then, the officers never raised their voices. Moreover, as the
district court highlighted, even when the officers suspected that
Mr. Fullerton was lying, “the questioning was predominantly
couched in terms of obtaining a rational explanation for [N.L.’s]
injuries.”
¶35 Although the officers never repeated their reassurances
that Mr. Fullerton was free to leave, cf. Howes, 565 U.S. at 515, the
officers never contradicted these assurances, nor did Mr. Fullerton
make any request to leave or cease the questioning. After
admitting that he had “pushed on [N.L.’s] back” and “something
cracked,” Mr. Fullerton said, “[b]ut now I’ll probably go to jail
and everything else.” Detective Olmstead did not refute this
statement; nor did he confirm it. 9 Mr. Fullerton was not formally
placed under arrest until the conclusion of the interview.
¶36 Against the backdrop of all of the circumstances of the
interview, we conclude that the district court correctly determined
that Mr. Fullerton was not in custody for purposes of Miranda.
Given the totality of the circumstances, a reasonable person would
have felt free to terminate the interview and leave, despite being
the target of the investigation and on the receiving end of
accusatory questions. Therefore, we affirm the district court.
II. VOLUNTARINESS OF THE CONFESSION
¶37 Mr. Fullerton contends that interrogation tactics used by
Captain Golding and Detective Olmstead impermissibly induced
__________________________________________________________
9 Mr. Fullerton’s subjective belief that he was going to jail is of
no relevance to the custody inquiry. See supra ¶ 22 n.4. However,
the objective circumstances surrounding Mr. Fullerton’s statement
and the officer’s reaction may be relevant to how a reasonable
person in Mr. Fullerton’s position would have viewed his
freedom to leave.
14
Cite as: 2018 UT 49Opinion of the Court
his confession. Specifically, Mr. Fullerton points to alleged
misrepresentations made by interrogating officers regarding the
strength of the evidence. While Mr. Fullerton does not cite a
constitutional provision as a basis for his challenge, he cites State
v. Rettenberger, which hinged on Fifth and Fourteenth
Amendment Due Process claims. 1999 UT 80, ¶ 11, 984 P.2d 1009.
¶38 The United States Supreme Court has held that, under
“the Due Process Clause[,] certain interrogation techniques, either
in isolation or as applied to the unique characteristics of a
particular suspect, are so offensive to a civilized system of justice
that they must be condemned.” Colorado v. Connelly, 479 U.S. 157,
163 (1986) (citation omitted) (internal quotation marks omitted).
When assessing the constitutionality of a confession, a court must
examine the “totality of [the] circumstances to determine whether
[the] confession had been made freely, voluntarily and without
compulsion or inducement of any sort.” Withrow v. Williams, 507
U.S. 680, 689 (1993) (citation omitted) (internal quotation marks
omitted). The prosecution bears the burden of “demonstrat[ing]
by a preponderance of the evidence that the statement was made
voluntarily based upon the totality of the circumstances.”
Rettenberger, 1999 UT 80, ¶ 45 (citation omitted).
¶39 “[U]nder the totality of [the] circumstances test, courts
must consider such external factors as the duration of the
interrogation, the persistence of the officers, police trickery,
absence of family and counsel, and threats and promises made to
the defendant by the officers.” Rettenberger, 1999 UT 80, ¶ 14
(citations omitted). Courts must also consider internal factors such
“as the defendant’s mental health, mental deficiency, emotional
instability, education, age, and familiarity with the judicial
system.” Id. ¶ 15 (citations omitted).
¶40 Mr. Fullerton again does not make a totality of the
circumstances argument, but instead relies on alleged
misrepresentations made by Captain Golding and Detective
Olmstead regarding the strength of physical evidence to attack a
single factor. But “[a] defendant’s will is not overborne simply
because he is led to believe that the government’s knowledge of
his guilt is greater than it actually is.” State v. Galli, 967 P.2d 930,
15
STATE v. FULLERTON
Opinion of the Court
936 (Utah 1998) (alteration in original) (citation omitted). 10 Unlike
in Rettenberger, 11 the officers here did not assert “complete
__________________________________________________________
10 This is a reflection of the nature of a totality of the
circumstances analysis. As the court of appeals has decided in
multiple cases since Rettenberger, the mere presence of one or
more of the factors does not automatically equate to a lack of
voluntariness under the totality of the circumstances. See State v.
Leiva-Perez, 2016 UT App 237, ¶¶ 14–30, 391 P.3d 287 (determining
the confession was voluntary under the totality of the
circumstances); State v. Montero, 2008 UT App 285, ¶¶ 12–16, 191
P.3d 828 (same); State v. Werner, 2003 UT App 268, ¶¶ 28–44, 76
P.3d 204, 211 (concluding that the confession was voluntary
despite claims of misrepresentations about strength of evidence,
threats of harsher penalties, and offers of leniency); State v. Diaz,
2002 UT App 288, ¶ 50, 55 P.3d 1131 (rejecting a lack of
voluntariness argument that rested solely on alleged police
misrepresentations).
Rettenberger provides a stark contrast to the circumstances in
this case. Mr. Rettenberger, an 18-year-old with mental
deficiencies, Rettenberger, 1999 UT 80, ¶ 37, was interrogated by
police on two separate occasions, separated by a 24-hour stay in
solitary confinement, id. ¶¶ 2–3. Interrogating officers brushed off
requests to speak to a lawyer, made gross misrepresentations
about evidence, and did not allow the defendant to use the
restroom or speak to his mother. Id. ¶¶ 2, 4, 35. The officers told
him that he faced the death penalty and his options would be
death by lethal injection, firing squad, or hanging. Id. ¶ 30. The
Rettenberger court ultimately found six objective factors that
weighed toward finding a lack of voluntariness: police
misrepresentations, id. ¶¶ 20–23, the use of the false friend
technique, id. ¶¶ 24–28, threats and promises, id. ¶¶ 29–32,
“extended periods of incommunicado interrogation,” id. ¶ 33,
denial of Mr. Rettenberger’s requests to call his mother, id. ¶ 35,
and not allowing Mr. Rettenberger to use the bathroom, despite
his requests, id. Additionally, the court found several subjective
factors that weighed toward a lack of voluntariness that made the
objective factors more severe, including Mr. Rettenberger’s
maturity level, mental deficiencies, and parroted answers. See id.
¶¶ 37–44.
16
Cite as: 2018 UT 49Opinion of the Court
fabrications;” they merely overstated the strength of evidence and
their knowledge of Mr. Fullerton’s guilt.12 Generally, police “half-
truths” regarding the strength of evidence are not sufficient to
overcome a defendant’s free will. Id.¶41 Additionally, this is the sole factor of the totality of the
circumstances test that Mr. Fullerton attacks. Mr. Fullerton never
makes arguments about other objective factors, such as the false
friend technique, threats or promises, or the absence of counsel or
family. Additionally, Mr. Fullerton does not discuss any of the
subjective factors.
¶42 A review of the other factors suggests that the confession
was indeed voluntary. The interrogation was relatively short,
lasting only ninety minutes. Although Captain Golding implied
that Mr. Fullerton may receive better treatment from a judge if he
told the truth, Captain Golding did not overtly threaten
Mr. Fullerton with a harsher sentence or make any promises of
leniency. At no time until the end of the interview did
Mr. Fullerton request to speak with his attorney or family
members. The officers were persistent in challenging
Mr. Fullerton’s evolving account of events, but “we think it
eminently reasonable that police officers challenge criminal
suspects’ questionable explanations in their pursuit of the truth
and their efforts to solve crimes.” State v. Montero, 2008 UT App
285, ¶ 13, 191 P.3d 828. Additionally, there is no evidence that
Mr. Fullerton suffered from any pre-existing mental defects which
would make him more susceptible to suggestive questioning.
11 Although police officers had no actual physical evidence
linking him to the crime, police told or suggested to
Mr. Rettenberger that they had fingerprints, ballistic test results,
blood samples, and more, all of which implicated the defendant.
Rettenberger, 1999 UT 80, ¶ 21. The district court cataloged some
thirty-six false statements made by police and found that the
majority of these were not merely “half-truths” but “complete
fabrications.” Id.12 For example, Detective Olmstead’s statement, “I know that
baby was shaken,” was not a “complete fabrication”—Dr. Walker
had twice told the police that N.L.’s injuries were probably a
result of violent shaking. See supra ¶ 5.
17
STATE v. FULLERTON
Opinion of the Court
¶43 Given the weight of these other factors, we disagree that
any alleged police misrepresentations here were sufficient to
render the confession involuntary. Therefore, we affirm the
district court’s decision to admit Mr. Fullerton’s testimony as
voluntary.
¶44 Mr. Fullerton also asserts that his confession was
unreliable and thus inadmissible as evidence. He cites no
constitutional provision, rule of evidence, or Utah case law to
support this proposition; and it is unclear from his briefing what
he believes provides a basis for this claim. Instead, he relies
exclusively on Aleman v. Village of Hanover Park, 662 F.3d 897 (7th
Cir. 2011). 13 We find the present case readily distinguishable from
Aleman 14 and thus decline to discuss further the issue of reliability.
__________________________________________________________
13 We believe that a close reading of Aleman shows that the
opinion was ultimately relying upon the rules of evidence to keep
the confession out. The Aleman opinion begins by recognizing a
constitutional basis for keeping a confession out when the
confession is “coerced and thus involuntary.” Aleman, 662 F.3d at
906. The opinion goes on to recognize that “[t]he question of
coercion is separate from that of reliability. A coerced confession
is inadmissible . . . even if amply and convincingly corroborated.”
Id. (citations omitted). It then switches gears and states that “a
trick that is as likely to induce a false as a true confession renders
a confession inadmissible because of its unreliability even if its
voluntariness is conceded.” Id. at 907 (citing Johnson v. Trigg, 28
F.3d 639, 641 (7th Cir. 1994)). On this point, Johnson states that
when the circumstances are such that “the resulting confession
will be highly unreliable,” the confession “should, like other
highly unreliable evidence, be excluded from the defendant’s
trial,” under Federal Rule of Evidence 403. 28 F.3d at 641 (citing
FED. R. EVID. 403). The portion of Aleman upon which
Mr. Fullerton relies is the portion discussing the reliability, and
thus the admissibility, of that evidence under the rules of
evidence.
14 In Aleman, an interrogating officer falsely represented that
doctors had concluded that the defendant’s handling of a baby
must have caused its injuries. 662 F.3d at 907. The defendant then
“confessed” that he had injured the child. Id. The court explained
that the defendant found himself in a logic trap that forced him to
18
Cite as: 2018 UT 49Opinion of the Court
III. CHALLENGES TO EXPERT TESTIMONY
¶45 Mr. Fullerton raises four challenges to statements made
by one of the State’s medical experts, Dr. Hansen: (1) he did not
receive notice of Dr. Hansen’s testimony that crying is a common
trigger for inflicted rotational injury; (2) the “common trigger”
testimony does not support a medical diagnosis; (3) Dr. Hansen’s
opinion that Mr. Fullerton’s admitted actions could have caused
N.L.’s injuries violated a pretrial order preventing similar
testimony; and (4) Dr. Hansen improperly suggested that “I don’t
believe that we’ve been told exactly what happened to N.L. yet.”
¶46 This court has consistently held that “a defendant who
fails to preserve an objection at trial will not be able to raise that
objection on appeal unless he is able to demonstrate either plain
error or exceptional circumstances.” State v. Larrabee, 2013 UT 70,
¶ 15, 321 P.3d 1136 (citation omitted); see also State v. King, 2006
UT 3, ¶ 13, 131 P.3d 202. The defense did not object to any portion
of the first three statements—these claims are unpreserved.
Because the defendant has not argued plain error or exceptional
circumstances, we do not consider the first three challenges.
¶47 Defense counsel did object to Dr. Hansen’s fourth
statement, and the trial judge sustained the objection. If
Mr. Fullerton believed that sustaining his objection was an
insufficient remedy, he had a duty to ask the judge to do more.
State v. Hummel, 2017 UT 19, ¶ 120, 393 P.3d 314. “Where the
judge gave him everything he asked for (sustaining his objection),
he is in no position to ask for more on appeal.” Id. Because
Mr. Fullerton did not request any additional relief with his
objection at trial, he is not entitled to any upon appeal.
IV. CHALLENGE TO CLOSING ARGUMENT
¶48 Mr. Fullerton claims that the prosecutor violated his due
process rights by saving his criticism of a witness’s memory for
closing arguments instead of raising them on cross-examination,
confess to shaking the baby. Id. Mr. Fullerton, however, did not
fall into this same logic trap. Mr. Fullerton offered an evolving
account of events with no less than seven different explanations
for N.L.’s injuries. But, Mr. Fullerton never admitted to shaking
the baby. We fail to see how Mr. Fullerton was logically
compelled to confess to shaking the baby when he did not
actually confess to doing so.
19
STATE v. FULLERTON
Opinion of the Court
thereby denying Mr. Fullerton the ability to bring in the witness’s
prior consistent statements under Utah Rule of Evidence
801(d)(1)(B) and fostering a false impression of the evidence.
¶49 Defense counsel did not object to the closing argument at
the time and only raised the objection in a motion for new trial. As
already discussed, an objection not preserved at trial cannot be
raised on appeal unless the proponent can show plain error or
exceptional circumstances. Supra ¶ 46. As State v. Larrabee further
explained, “with respect to appellate review of closing arguments
. . . we will not examine the State’s closing argument if the
defendant failed to timely object to it.” 2013 UT 70, ¶ 15, 321 P.3d
1136 (citation omitted) (internal quotation marks omitted). And an
objection to closing arguments is not timely if it is filed in a post-
trial motion. Id. ¶ 16. 15
__________________________________________________________
15 This court has previously, in rare circumstances, considered
on appeal unpreserved issues raised in a post-trial motion when
the trial court decided the issue on the merits, rather than
rejecting the issue as untimely. See State v. Johnson, 821 P.2d 1150,
1159, 1161 (Utah 1991) (holding that “a jury must be unanimous
on all elements of a criminal charge for the conviction to stand”
and decided before the current Utah Rules of Criminal Procedure
were in effect); State v. Belgard, 830 P.2d 264, 265–66 (Utah 1992)
(holding that “[i]mplicit in granting the post-judgment
evidentiary hearing was the trial court’s finding that there was
cause to grant . . . relief [from waiver of preservation]”).
But in Larabee, we explained that there are two important
policy reasons behind requiring a defendant to timely object at
trial: (1) it “affords the trial court an opportunity to address the
claimed error, and if appropriate, correct it, thereby promoting
judicial economy,” and (2) it “prevents defendants from foregoing
an objection with the strategy of enhancing the defendant’s
chances of acquittal and then, if that strategy fails . . . claiming on
appeal that the [c]ourt should reverse, thereby encouraging
fairness.” 2013 UT 70, ¶ 15 (alterations in original) (citations
omitted) (internal quotation marks omitted). And we concluded
that “allowing defendants to preserve issues like prosecutorial
misconduct through motions to arrest judgment would directly
contradict the[se] purposes of the preservation rule.” Id. ¶ 16. We
reaffirm our holding in Larabee and emphasize that an objection
20
Cite as: 2018 UT 49Opinion of the Court
¶50 Because Mr. Fullerton did not raise his objection to this
issue until his motion for a new trial and does not claim
exceptional circumstances or plain error, we will not consider the
objection here.
CONCLUSION
¶51 We conclude that the district court was correct in denying
Mr. Fullerton’s motion to suppress his interview with police—he
was not in custody and therefore not entitled to a Miranda
warning and the confession he made was voluntary.
¶52 We decline to consider the other challenges Mr. Fullerton
presents on appeal. Four of these issues were unpreserved at the
district court level, and Mr. Fullerton does not argue that an
exception to preservation applies. Mr. Fullerton objected to the
fifth alleged issue, thereby preserving his challenge. However, the
district court sustained his objection and he asked for no
additional remedy at trial. He therefore can ask for no other
remedy on appeal.
¶53 We affirm the district court.
that could have been raised at trial cannot be preserved in a post-
trial motion.
21