State v. Clopten

• Decision Date: 04 September 2015
• Docket Number: No. 20111020.,20111020.
• Citation: 362 P.3d 1216
• Parties: STATE of Utah, Appellee, v. Deon L. CLOPTEN, Appellant.
• Court: Utah Supreme Court

362 P.3d 1216

STATE of Utah, Appellee,

v.Deon L. CLOPTEN, Appellant.

No. 20111020.

Supreme Court of Utah.

Sept. 4, 2015.

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, for appellee.

Samuel P. Newton, Kalispell, MT, for appellant.

Justice DURHAM authored the opinion of the Court in which Chief Justice DURRANT and Justice PARRISH joined.

Justice LEE filed a concurrence, in which Judge HARRIS joined.

Due to his retirement, Justice NEHRING did not participate herein; District Judge RYAN M. HARRIS sat.

Justice DENO G. HIMONAS became a member of the Court on February 13, 2015, after oral argument in this matter and accordingly, did not participate.

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 Deon Clopten was convicted of murdering Tony Fuailemaa after a concert in Salt Lake City. He now appeals his conviction, alleging five errors in the district court proceedings.

¶ 2 Two of these alleged errors relate to Mr. Clopten's principal theory at trial, namely that the murder was committed by his cousin Freddie White. First, Mr. Clopten asked to call Mr. White as a witness so that he would claim a Fifth Amendment privilege in front of the jury, but the trial court denied this request. Second, Mr. Clopten attempted to introduce testimony that Mr. White told fellow prison inmates that Mr. Clopten was not the murderer, but the trial court excluded this testimony as inadmissible hearsay. Mr. Clopten challenges both of these rulings on appeal.

¶ 3 The remaining three alleged errors relate to the eyewitness testimony that identified Mr. Clopten as Mr. Fuailemaa's killer. As we have recognized in a series of opinions beginning with State v. Long, 721 P.2d 483 (Utah 1986), the use of eyewitness testimony to identify perpetrators of crime presents a difficult constitutional problem. On the one hand, such testimony is often the only evidence available to establish a criminal's identity. On the other hand, as forensic science has demonstrated, eyewitness identifications are frequently wrong but nevertheless powerfully persuasive to juries. Accordingly, such identifications lead with unusual frequency to wrongful convictions—an uncomfortable prospect for a criminal justice system committed to letting ten felons escape before punishing a single innocent. See 4 WILLIAM BLACKSTONE, COMMENTARIES *358. We have now wrestled with this problem for nearly three decades, articulating a number of doctrines intended to reduce the likelihood of wrongful convictions based on unreliable eyewitness identification testimony.

¶ 4 Mr. Clopten argues that the trial court incorrectly applied three of these doctrines. First, he argues that under State v. Ramirez, 817 P.2d 774 (Utah 1991), the trial court should have excluded a number of the prosecution's eyewitnesses as unconstitutionally unreliable. Second, he argues that under State v. Clopten (Clopten I ), 2009 UT 84, 223 P.3d 1103, the trial court should have excluded the testimony of a prosecution expert who disputed the defense's claims about eyewitness unreliability. The prosecution expert's testimony, Mr. Clopten argues, impermissibly contradicts Clopten I's conclusions about forensic science. Third and finally, he argues that the trial court's instructions to the jury regarding eyewitness reliability were constitutionally insufficient under Long, 721 P.2d 483.

¶ 5 For reasons explained below, we reject all five of Mr. Clopten's assertions of error and affirm his conviction.

BACKGROUND

¶ 6 On December 1, 2002, Tony Fuailemaa attended a concert in downtown Salt Lake City with his fiancée, Shannon Pantoja. Also present at the concert were Deon Clopten, his cousin Freddie White, and two of their friends.

¶ 7 Early in the evening, Mr. Fuailemaa pointed Mr. Clopten out to his fiancée, asking her if she knew the guy "in all red, the one all flamed up." When she answered that she did not, Mr. Fuailemaa told her his name, that Mr. Fuailemaa knew him, and that "he had a problem with some of the homeys." An undercover officer testified that he noticed tension between the groups, but no violence immediately ensued.

¶ 8 Both groups left the concert early; Ms. Pantoja testified that she and Mr. Fuailemaa wanted to beat the traffic. Outside the venue, she noticed Mr. Clopten's three friends attempting to hide on the street in front of them, and Mr. Fuailemaa told her that he anticipated a confrontation. Ms. Pantoja suggested that they return to the concert so as to avoid a fight, but Mr. Fuailemaa insisted he would not back down. Ms. Pantoja then noticed Mr. Clopten approaching Mr. Fuailemaa from behind with his arm extended, holding a pistol. He exclaimed "What's up now, homey?" and shot Mr. Fuailemaa in the back of the head.

¶ 9 Four undercover officers at the concert heard the shots and came running. Informed by Ms. Pantoja that the killer was the man "in all red," they chased Mr. Clopten and his friends to their vehicle. Mr. Clopten and his friends drove away at high speed, pursued by police, and threw the murder weapon out the window before they were caught.

¶ 10 It is undisputed that Mr. Fuailemaa's murderer was one of the four men in the vehicle, but proving that it was Mr. Clopten has now taken over a decade. Mr. Clopten was charged in 2003 and tried in 2005, but the court declared a mistrial. He was tried again and convicted in 2006, but we reversed the conviction because Mr. Clopten had not been allowed to present expert testimony about the reliability of eyewitness identifications. Clopten I, 2009 UT 84, ¶ 49, 223 P.3d 1103.

¶ 11 At Mr. Clopten's third trial in 2011, the state presented eyewitnesses who identified him as the shooter. Mr. Clopten primarily attacked the state's case in two ways. First, he sought to exclude the state's evidence and to minimize its effect, calling an expert witness to testify about the unreliability of eyewitness identifications and asking the judge for jury instructions on the same subject. Second, he presented his own evidence that another man in the vehicle—Mr. Clopten's cousin Mr. White—actually committed the murder.

¶ 12 Mr. Clopten's strategy failed. The jury convicted him of murder, and he now challenges his conviction on appeal.

ANALYSIS

I. THE TRIAL COURT CORRECTLY DENIED MR. CLOPTEN'S REQUEST TO CALL A DEFENSE WITNESS FOR THE SOLE PURPOSE OF PLEADING THE FIFTH IN FRONT OF THE JURY

¶ 13 In support of his defense that Mr. White was the true perpetrator of Mr. Fuailemaa's murder, Mr. Clopten proposed to call Mr. White as a witness. But Mr. Clopten stipulated that Mr. White would not give any testimony because he would invoke his Fifth Amendment privilege when called to the stand. Mr. Clopten argued in the trial court that the jury should be allowed to observe Mr. White plead the Fifth on the witness stand, but the trial court denied this request. Mr. Clopten later requested a jury instruction informing the jury that Mr. White had invoked his Fifth Amendment privilege and stating that the jurors were "entitled to give whatever weight you deem appropriate and draw any inference you feel is warranted regarding White's invocation of his Fifth Amendment privilege." The trial court refused this instruction.

¶ 14 On appeal, Mr. Clopten has challenged only the trial court's refusal to require Mr. White to take the witness stand and invoke his Fifth Amendment privilege in the presence of the jury, thus allowing him to argue inferences favorable to the defense from that act. He has not challenged the trial court's refusal to instruct the jury about the inferences jurors could make from Mr. White's out-of-court invocation of the privilege. Thus this case does not reach the question of inferences, but only the question of whether it was proper for the court to preclude an in-court demonstration.

¶ 15 As to the trial court's determination to avoid what would have been purely a theatrical event—putting a witness on the stand merely to refuse to testify—we have no doubt that its decision was well within its power to manage the trial process. See State v. Parsons, 781 P.2d 1275, 1282 (Utah 1989) ("The trial court, with its inherent powers as the authority in charge of the trial, has broad latitude to control and manage the proceedings and preserve the integrity of the trial process.") Therefore, it was proper to exclude the witness.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT EXCLUDED HEARSAY TESTIMONY

A. Statements Against Interest

¶ 16 Next, Mr. Clopten claims that the trial court erred when it excluded the hearsay testimony of two potential witnesses. Both of these proposed witnesses were inmates who spoke with Mr. White while he was in prison. At the time of these conversations, Mr. White feared that Polynesians in the prison system would harm his cousin, Mr. Clopten, because of their belief that Mr. Clopten killed Mr. Fuailemaa. The first prisoner claimed Mr. White told him, "Look, if you can just let your homies know it wasn't [Mr. Clopten], I was there and I can tell you for a fact it wasn't him." When the prisoner asked Mr. White if he killed Mr. Fuailemaa, Mr. White gave the prisoner a "look" and said, "It wasn't [Mr. Clopten]." The second prisoner asked Mr. White if Mr. Clopten shot Mr. Fuailemaa. Mr. White responded negatively. When the prisoner then asked Mr. White if he was the shooter, Mr. White said "I can't talk about that."

¶ 17 Mr. Clopten argued below that these two prisoners should have been allowed to tell the jury about Mr. White's hearsay statements because they were admissible as statements against interest. But the trial court excluded this testimony because it found that Mr. White's alleged statements were not sufficiently contrary to his self-interest to warrant the application of this exception to the hearsay rule. To reverse the trial court on this issue, we must conclude the trial court abused its discretion. See State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639.

¶ 18 Mr. Clopten had to satisfy two requirements in order to...