State v. Brown, 960041

• Decision Date: 24 October 1997
• Docket Number: No. 960041,960041
• Citation: 948 P.2d 337
• Parties: 328 Utah Adv. Rep. 14 STATE of Utah, Plaintiff and Appellee, v. Debra BROWN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 337

948 P.2d 337

328 Utah Adv. Rep. 14

STATE of Utah, Plaintiff and Appellee, v. Debra BROWN, Defendant and Appellant.

No. 960041.

Supreme Court of Utah.

Oct. 24, 1997.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

John T. Caine, Ogden, and Shannon R. Demler, Logan, for defendant and appellant.

RUSSON, Justice:

Defendant Debra Brown was convicted by a jury in Cache County of aggravated murder. Brown appeals her conviction, claiming that (1) the trial court incorrectly barred admission of the results of a polygraph examination (2) the trial court's failure to intervene when the prosecutor made certain comments during his closing arguments was plain error; and (3) the evidence was insufficient to support the jury's verdict.

I. BACKGROUND

On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. State v. Johnson, 821 P.2d 1150, 1153 (Utah 1991).

On the morning of November 7, 1993, the Logan City Police Department received a 911 call from defendant stating that she had found her employer dead in his home. Both emergency medical personnel and police officers responded to the call. Upon arrival, the officers found Debra Brown, who was emotionally distraught, on the porch outside the home. Inside, they found the body of Lael Brown, ¹ who had been shot in the head. Mr. Brown was in his bed with a blanket and a sheet pulled up to his shoulder. Initially, police thought the death might have been a suicide; however, when they did not find a gun, they began treating the investigation as a murder.

Debra Brown told police investigators she had worked for Lael Brown in his apartment rental business. She stated that Mr. Brown had been ill and she had delivered a pot of soup to his home on Saturday afternoon, November 6. When she knocked on the door and received no answer, she left the soup on Mr. Brown's porch with a note. She returned Sunday morning to check on Mr. Brown and found the soup still on the porch. Again there was no response to her knocks on the door. At that point, she returned to her truck, retrieved a key to Mr. Brown's home, and let herself into the home, where she discovered his body and then called the police. The pot of soup with the note was still on the porch when police officers arrived.

Investigators determined that there had not been a forced entry into the home nor was the house ransacked. Items of value such as the television and various guns that were in plain view were also still in the home. The only obviously missing item was Mr. Brown's wallet. Police officers questioned Debra Brown several times that day and searched her truck and her purse.

An autopsy revealed that Mr. Brown had been shot three times with a .22 caliber handgun, and tests suggested that the murder weapon may have been a Colt Woodsman. Police learned that Mr. Brown owned a .22 caliber Colt Woodsman handgun that was missing. Neither the Colt Woodsman nor any other murder weapon was ever found.

An analysis of Mr. Brown's home revealed traces of blood around the kitchen sink and a small hand print on the front door. Police never matched the hand print to Debra Brown, and no traces of blood were found on her clothes. No physical evidence linking Debra Brown to the murder was ever discovered.

However, when Mr. Brown's family began working on his estate for probate purposes, they discovered that his October 1993 bank statement and several canceled checks were missing. They also discovered that several checks written in the preceding months were missing. This discovery made the family suspicious because Mr. Brown was known for keeping complete financial records. Upon further investigation, police determined that the missing checks from prior months were payable to Debra Brown. They also learned that several checks written to Debra Brown had cleared the bank during the month of October. When police obtained copies of these checks from the bank, they suspected that several of the checks payable to Debra Brown were forgeries. An expert document examiner evaluated copies of the checks along with other financial records and confirmed the forgeries. Defendant's home was searched, but none of the missing financial records were ever located. When the bank issued the November statement, police found that another forged check payable to Debra Brown had been negotiated on November 2.

On the basis of a neighbor's statement about hearing gunshots, police thought the murder occurred at approximately 7 a.m. on Saturday, November 6, 1993. Defendant could account for her whereabouts for the entire weekend except the hours between 6:40 a.m. and 10 a.m. on Saturday, November 6.

Throughout the investigation, Debra Brown willingly cooperated with investigators. She was interviewed by police officers more than twenty times in the three months following the murder and consistently denied involvement.

Defendant was charged by information with aggravated murder on September 12, 1994. On appeal, she (1) challenges the trial court's ruling barring admission of polygraph results, (2) claims the trial court erred when it failed to address the prosecutor's remarks during closing argument, and (3) challenges the sufficiency of the evidence.

II. POLYGRAPH

During the investigation and prior to being charged, defendant voluntarily consented to a polygraph examination requested by the Logan City Police Department. In the course of this examination, the following colloquy between the examiner and Brown transpired:

Q. Regarding the question about Lael's death, do you intend to tell the truth to each question about that?

A. Yes.

Q. Did you yourself cause Lael's death?

A. No.

Q. Did you conspire with anyone to cause Lael's death?

A. No.

Q. Do you know for sure who caused Lael's death?

A. No.

Before trial, Brown sought a court order allowing testimony about the results of the polygraph. The district court, after hearing the parties' proffers, denied Brown's request and, in fact, granted the State's request barring mention of the polygraph examination at trial. Brown claims that the court erred in refusing to allow testimony about the polygraph examination.

"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. Larsen, 865 P.2d 1355, 1361 (Utah 1993). "[T]he exercise of discretion ... necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if ... no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).

State v. Rimmasch, 775 P.2d 388 (Utah 1989), sets forth a three-part standard for admitting scientific evidence under Utah Rule of Evidence 702. ² Rimmasch first requires a threshold showing of inherent reliability. Id. at 398. A proponent may either show a general acceptance of the principle or technique in the relevant scientific community or proffer a sufficient foundation to demonstrate the inherent reliability of the underlying principles and techniques. Id. at 400. If the proponent can show general acceptance, the court may take judicial notice and admit the evidence subject to the requirements discussed below. Id. However, if the subject is not suitable for judicial notice, the

foundational showing must explore with careful precision such questions as the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those actually gathering the data and analyzing it.... Only with such information can the overall decision on admissibility be made intelligently. In the absence of such a showing by the proponent of the evidence and a determination by the court as to its threshold reliability, the evidence is inadmissible.

Rimmasch, 775 P.2d at 403; see also Phillips v. Jackson, 615 P.2d 1228, 1233-36 (Utah 1980).

If the proponent can satisfy this threshold requirement of inherent reliability, only then need the court consider the remaining two steps. Id. at 398 n. 7. Rimmasch's second requirement is a "determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work." Id.

Finally, if the court is satisfied regarding this second determination, it must balance the probative value of the proffered evidence against the dangers its admittance poses under rule 403 of the Utah Rules of Evidence. Id. at 398 n. 8. Rimmasch also points out that "when the inferences from the scientific evidence sweep broadly or cut deeply into sensitive areas, a stronger showing of probative value should be required. Such a 'sensitive area' is one central to the core of the fact-finding process--whether one witness or another is telling the truth." Id. at 399 n. 8 (citations omitted).

Our past cases make clear that at the present time, the admission of polygraph evidence is not appropriate for judicial notice. ³ See State v. Eldredge, 773 P.2d 29, 37 (Utah 1989) (requiring stipulation for admission of polygraph results). In the absence of a sufficient foundational showing of inherent reliability and satisfaction of the remaining two prongs of Rimmasch, a stipulation between the parties is the only way polygraph evidence may be admitted. Thus, Brown was required to lay the foundation by presenting evidence of inherent reliability. "[T]he burden is on the party proffering the evidence to demonstrate that it has the requisite degree of reliability." Rimmasch, 775 P.2d at 407. Preliminary questions concerning the...