428 P.3d 1052 (Utah 2018), 20170113, State v. Fullerton

Docket Nº:20170113
Citation:428 P.3d 1052, 2018 UT 49
Opinion Judge:Himonas, Justice.
Party Name:STATE of Utah, Appellee, v. Gregory Todd FULLERTON, Appellant.
Attorney: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
Judge Panel:Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.
Case Date:September 11, 2018
Court:Supreme Court of Utah

Page 1052

428 P.3d 1052 (Utah 2018)

2018 UT 49

STATE of Utah, Appellee,


Gregory Todd FULLERTON, Appellant.

No. 20170113

Supreme Court of Utah

September 11, 2018

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[Copyrighted Material Omitted]

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Fifth District, Washington County, The Honorable Pamela G. Heffernan, No. 081501299

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.


Himonas, Justice.


[¶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.

[¶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.


[¶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

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Walker discovered that N.L. had suffered a subdural hematoma, brain swelling, and likely retinal hemorrhaging. Dr. Walker informed Detective Adam Olmstead of 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, 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.

[¶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

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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).


[¶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, 111 S.Ct. 1246, 113 L.Ed.2d 302 (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).


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