State v. Butterfield

Citation2001 UT 59,27 P.3d 1133
Decision Date10 July 2001
Docket NumberNo. 990654.,990654.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Raymond L. BUTTERFIELD, Defendant and Appellant.
CourtSupreme Court of Utah

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., C. Dane Nolan, Susan Hunt, Salt Lake City, for plaintiff.

Stephanie Ames, Salt Lake City, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 Defendant Raymond Butterfield ("Butterfield") appeals from convictions of aggravated burglary, rape of a child, sodomy on a child, and three counts of aggravated sexual abuse of a child, all first degree felonies. See Utah Code Ann. §§ 76-6-203 & 76-5-402.1, -403.1, -404.1 (1999). Butterfield contends that his convictions should be reversed because the trial court (1) improperly allowed the State to admit DNA evidence without laying a proper foundation to show that the scientific principles and techniques underlying the evidence were inherently reliable; (2) abused its discretion in excluding Butterfield's proposed expert testimony on the inherent deficiencies of eyewitness identification; and (3) erroneously failed to declare a mistrial following an improper remark made by a State witness in the presence of the jury. We affirm.

BACKGROUND
I. FACTS

¶ 2 On May 17, 1998, two sisters, V.R. and M.R., and their friend B.M.—all under the age of fourteen—decided to sleep outside in a tent in V.R. and M.R.'s backyard. Sometime between 8:00 and 9:00 p.m., the three girls took some blankets, CDs, and a board game into the tent. A short time later, M.R. left the tent and went inside the house to sleep on the couch. After M.R. left the tent, V.R. and B.M. turned off a light that hung inside the tent and went to sleep.

¶ 3 Later that night, V.R. awoke to the barking of her neighbor's dogs. Almost immediately thereafter, a man ripped a hole in the side of the tent. V.R. and B.M. screamed and hid under the blankets. The man then entered the tent and jumped on top of V.R. stating, "[S]hut up or I'll slice your throat." The man then proceeded to remove V.R.'s clothes and, while doing so, demanded that B.M. remove her clothes as well. When the man had removed V.R.'s sweat pants and underwear, he forced "his finger inside of [her] vagina," "licked" her chest, kissed her "on the mouth," and forced his "tongue in[to] [her] mouth." The man also forced his penis inside V.R.'s "mouth" and "vagina." During the assault, B.M.—lying only inches from V.R.—could hear V.R. pleading and crying, "Please don't, please don't."

¶ 4 After raping and sexually assaulting V.R., the man then proceeded to sexually assault B.M., forcing his finger into her vagina, fondling her chest, and ordering her to take his penis and "move it up and down." The attacker then proceeded to move from one girl to the next with his groping and molestation. Throughout the assault, the man repeatedly ordered the girls to keep quiet or he would "slice [their] throat[s]."

¶ 5 At some point in the ordeal, which lasted nearly an hour and a half, the girls' attacker turned on the light that hung inside the tent and rummaged through the girls' belongings. The light was on for nearly ten minutes. Although the attacker demanded that the girls close their eyes, V.R. peeked from the blankets and could see different portions of the man's face. As he searched through the girls' belongings, the man commented on their CDs, talked to B.M., and remarked how "cute" her braids were.

¶ 6 Thereafter, the man asked V.R. and B.M. to tell him who was inside the house, threatening that if they did not tell him he would "slit [their] throats." Both V.R. and B.M. responded that they "didn't know." The attacker then stated, "I'm going inside right now, and if I catch you guys out of the tent or if somebody is out here with you, I'll kill you and then I'll kill whoever is with you."

¶ 7 After leaving the tent, the attacker broke into the house and proceeded to sexually assault and molest M.R., who was sleeping on a couch in the living room. When M.R. yelled for her father, the man told her that he would "stab [her]" if she was not quiet. The man then lifted her shirt and bra and "licked [her] chest." After warning her not to peek, he lowered her shorts and underwear and forced his "finger in[to her vagina]." The man then threw a pillow over M.R.'s face and left through the back door. M.R. estimated that the sexual assault lasted for nearly ten minutes.

¶ 8 After the attacker left the house, M.R. went downstairs and told her parents what had happened. M.R.'s parents immediately called the police. When the police arrived, they found B.M. screaming and M.R. in shock. B.M. told the police that the attacker was a man who lived in an apartment down the street from V.R. and M.R.'s house, and who had spoken with the girls earlier in the day while they were riding their bikes around their neighborhood. The three girls were then transported to the South Salt Lake Police Department where V.R. and M.R. were interviewed by Detective William Hogan. Consistent with B.M.'s statements at the house, V.R. told Detective Hogan that the attacker was a man who lived near her neighborhood, and who had spoken with the girls earlier in the day. Specifically, V.R. explained that prior to the attack, a man on a bike approached the girls, stated that he was a "cop," and then rode to an apartment down the street from V.R. and M.R.'s house. A short while later, the man returned, again asserting that he was a policeman and that, therefore, they could not call the police on him. V.R. thought this behavior "weird." V.R. told Detective Hogan that the next time she saw the man was in her tent that night. From their various conversations, and after further investigation, Detective Hogan identified the attacker as defendant Raymond Butterfield.

¶ 9 After the interviews at the South Salt Lake Police Department, V.R., M.R., and B.M. were each separately examined and interviewed by a pediatrician at Primary Children's Hospital. The pediatrician found fresh bruises on V.R.'s right breast, abrasions on the inside wall of her vagina, and tears in the hymen, one of which was still bleeding. The doctor concluded that V.R.'s injuries were consistent with her story that she had been raped. The doctor found similar injuries when she examined B.M. and M.R., concluding that their injuries were consistent with their story that the attacker had sexually assaulted and molested them.

¶ 10 The day after the incident, Detective Hogan, accompanied by another police officer, went to Butterfield's apartment. Butterfield answered the door wearing a white undershirt and blue jeans. After identifying himself as a policeman, Detective Hogan asked Butterfield if he would come to the South Salt Lake Police Department for questioning regarding the sexual assault of V.R., M.R., and B.M. Butterfield agreed. Upon their arrival at the police station, Butterfield waived his Miranda rights, and therefore Detective Hogan conducted a formal interview. Butterfield was then transported to the Salt Lake County Jail where his clothes were retained after a policeman noticed blood on his undershirt.

¶ 11 After interviewing Butterfield, Detective Hogan assembled a six-photo array, including a photograph of Butterfield that he obtained from the Salt Lake County Jail. All the photographs were black and white and depicted similarly looking individuals. Detective Hogan then separately presented V.R., M.R., and B.M. with the photo array. V.R. and M.R. each identified Butterfield as the attacker, although B.M. did not.

¶ 12 Meanwhile, DNA analysis was performed on a sample of blood taken from Butterfield's undershirt. The DNA testing was performed by Ms. Pilar Shortsleeve, supervising criminalist of the Utah State Crime Lab's serology DNA division. The sample was compared with DNA testing that was done on a sample of V.R.'s blood. The particular type of DNA testing employed—polymerase chain reaction ("PCR")1 using short tandem repeats ("STR"),2 to wit: "PCR STR" DNA testing—was relatively new. The Utah State Crime Lab concluded that the DNA results of the undershirt sample matched the DNA results of V.R.'s blood. Dr. Lynn Jorde, Chairman of the Department of Human Genetics at the University of Utah School of Medicine, who later examined the results, testified that the probability of a random individual other than V.R. matching the blood on Butterfield's undershirt was 215 billion to 1.

¶ 13 Based upon the eyewitness identifications and the DNA evidence, Butterfield was charged with aggravated burglary, rape of a child, sodomy on a child, and three counts of aggravated sexual abuse of a child, all first degree felonies. After a jury trial, Butterfield was convicted on all counts and sentenced to statutory five-to-life terms for aggravated burglary and aggravated sexual abuse of a child, and fifteen-to-life terms for rape of a child and sodomy on a child—all terms to run consecutively and with a recommendation that no parole be granted.

II. PROCEDURAL HISTORY
A. Evidentiary Hearing

¶ 14 Prior to trial, the State gave notice that it intended to introduce DNA evidence at trial. Butterfield filed a motion in opposition, arguing that under this court's standard for the admission of scientific evidence set forth in State v. Rimmasch, 775 P.2d 388 (Utah 1989), the PCR STR DNA testing employed in this case should not be admitted. Specifically, Butterfield argued that the underlying principles and techniques of PCR STR DNA testing were too new to be considered inherently reliable; that the particular material and instrumentation used to effectuate the test—the Perkin-Elmer automated capillary electrophoresis machine ("ABI CE310") and the Perkin-Elmer Profiler Plus Amplification Kit, which contains the tagged fluorescent primers that are attached to the STRs and identified by the ABI CE310's laser—were also unreliable; and that the State's proposed expert witness, Ms. Pilar Shortsleeve, was not...

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