State v. Fulton, 20191

• Decision Date: 28 May 1987
• Docket Number: No. 20191,20191
• Parties: STATE of Utah, Plaintiff and Respondent, v. David FULTON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1208

742 P.2d 1208

STATE of Utah, Plaintiff and Respondent, v. David FULTON, Defendant and Appellant.

No. 20191.

Supreme Court of Utah.

May 28, 1987.

Rehearing Denied Sept. 28, 1987.

John D. Russell, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant David Wayne Fulton appeals from a jury conviction of sodomy on a child. Utah Code Ann. § 76-5-403.1 (1986). His claims are as follows: (i) his confession was involuntary and should have been suppressed; (ii) the results of a favorable polygraph examination should have been admitted; (iii) because the State did not establish the date of the incident of abuse with specificity, it did not carry its burden of proof with respect to all elements of the offense; (iv) the admission of the child victim's out-of-court statement denied defendant his constitutional right to confrontation; and (v) the minimum mandatory sentencing provisions of Utah's sexual abuse statute violate his constitutional right to be free from cruel and unusual punishment. We affirm.

On September 1, 1983, a caseworker at the State Division of Family Services received an anonymous phone call alleging that Fulton had sexually abused a seven-year-old child. The following day, the caseworker and a Brigham City police officer interviewed the child, who confirmed that Fulton had touched his genitals.

On September 7, 1983, the police officer contacted Fulton by telephone, and Fulton agreed to go to the police station. Upon his arrival, Fulton was read his Miranda rights, stated that he understood them, and signed a form waiving those rights. In an unrecorded conversation that lasted less than one hour, Fulton was informed of the child's statements and, according to the officer's trial testimony, admitted that the allegations were true. Fulton then allowed the officer to record a conversation during which he admitted to having touched the child's genitals several times. The entire interrogation lasted about two hours. Fulton was arrested and charged with three counts of forcible sexual abuse.

The child was also interviewed on September 7, 1983. At that time, he described the molestations in more explicit detail and informed the police officer that Fulton had engaged him in oral sex and had threatened to lock him in a closet if he refused to do as he was told. Fulton was interviewed again the next day at the jail. Again, he waived his Miranda rights and during this interrogation both admitted and denied having engaged in any acts of oral sex with the child. As a result of this interview, Fulton was charged with two additional counts of sodomy on a child.

The trial on this matter was set for July 9, 1984. In January of 1984, Fulton took a polygraph test administered by Dr. David Raskin, an independent expert. The results of the test indicated that Fulton was telling the truth when he denied engaging in any sexual activities with the child. Because the prosecutor refused to stipulate to the admission of these polygraph results, Fulton's counsel moved for their admission on July 3, 1984. The trial court refused to admit the results ¹ on the basis that Fulton had waived his right to introduce the evidence by failing to file the motion five working days before trial as required by Rule 12 of the Utah Rules of Criminal Procedure. Utah Code Ann. § 77-35-12(b)(2) (1982).

At trial, the child, then eight years old, testified to the sexual acts performed by Fulton, but failed to state with any specificity when the acts had occurred. The child's mother testified that beginning in February of 1983, Fulton had often tended the child for her. She also testified that the child had spoken of the incidents as having occurred both "when it was cold, snowy" and when Fulton was a guest for breakfast. She stated, and Fulton confirmed that he had eaten breakfast with the child and his mother in early June of 1983.

Fulton denied all of the allegations of sexual abuse. He claimed that he did not understand that he was waiving his rights at the time of his interrogations and that he was coerced and pressured and finally found it easier to agree with the officer's allegations of sexual abuse rather than resist further. Fulton also introduced testimony by third parties tending to prove that the child had a reputation for lying and that the child's memory of simple events or facts from the past, like the names of his school teachers, was so inadequate as to cast doubt on his memory and truthfulness.

The jury convicted Fulton of one count of sodomy and acquitted him of all other charges. His first claim on appeal is that the trial court erred in admitting his confessions because the State failed to meet its burden of showing that he knowingly and voluntarily waived his federal constitutional rights to remain silent and to counsel. ² He contends that when he was interrogated, both on September 7th, prior to his arrest, and on September 8th, after he had been in jail for approximately twenty hours, the officer asked him the same questions over and over in a harassing fashion and, when he did not agree with the accusations, accused him of lying. All this, he claims, coerced him into admitting that he had sexually abused the child. Fulton also claims that during the interview on the 8th, he did not understand the nature of the charges against him because he was depressed and had been held incommunicado. ³

The right to remain silent and the right to counsel during a custodial interrogation may be waived, but these waivers must be both intentional and made with full knowledge of the consequences, and the defendant is given the benefit of every reasonable presumption against such a waiver. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). In determining the validity of a waiver, a court is to consider all the circumstances surrounding the interrogation, as well as the suspect's ability to clearly understand the import of his actions. See North Carolina v. Butler, 441 U.S. 369, 372-76, 99 S.Ct. 1755, 1756-59, 60 L.Ed.2d 286 (1979).

Having considered the totality of the circumstances, we conclude that Fulton's constitutional rights were not violated; he was fully advised of his Miranda rights and chose to speak freely to the officer. A review of the transcripts of Fulton's conversations with the officer ⁴ leaves one with the firm impression that there is no merit to Fulton's claim that this interrogation coerced him into waiving his rights and confessing. While the officer repeatedly pressed him to confess, there is no evidence that Fulton was abused or threatened at any time. Fulton testified that he considered himself to be of average intelligence and that he understood the subject of the interrogation. His first confession occurred less than an hour after questioning began on the first day. Nor is there any merit to Fulton's claim that his confession on the second day was coerced because he was held incommunicado between the two interrogation sessions. The jail records indicate that he received at least one telephone call after the first session and the resulting arrest. Under these circumstances, we conclude that the trial court properly found Fulton's confessions admissible.

Fulton's second claim on appeal is that he should have been allowed to introduce the favorable polygraph test results despite the prosecutor's refusal to stipulate to their admission. The admissibility of polygraph test results in the absence of the consent of both parties is not a firmly settled question in Utah. In State v. Abel, 600 P.2d 994, 998-99 (Utah 1979), we held that in the absence of a stipulation, it was error to admit polygraph test results, particularly where there was insufficient foundation for assessing the reliability and probative value of a polygraph examination. The Court noted, however, that its decision was not intended to foreclose future reconsideration of the reliability and admissibility of such test results.

While Abel may have left the issue open, the present case is not an appropriate one in which to reconsider the polygraph question. Here, Fulton failed to follow the proper procedures in seeking to have the test results admitted into evidence. Rule 12(b) of the Utah Rules of Criminal Procedure provides:

Any defense, objection or request, including request for rulings on the admissibility of evidence, which is capable of determination without the trial of the general issue may be raised prior to trial by written motion. The following shall be raised at least five days prior to the trial:

....

(2) Motions concerning the admissibility of evidence.

Utah Code Ann. § 77-35-12(b)(2) (1982). The record establishes that Fulton's request for a hearing on the admissibility of the test results was filed on Tuesday, July 3, 1984, only three working days before his trial was scheduled to begin on Monday, July 9, 1984. ⁵ The failure to give timely notice constituted a waiver of Fulton's right to seek admission of the results of the polygraph test. Utah R.Crim.P. 12(d) (codified in Utah Code Ann. § 77-35-12(d) (1982)). The trial court had the discretion to relieve defendant of the failure to satisfy this rule. See id. However, it declined to do so. No reasonable excuse for the late notice appears in the record, nor does Fulton's counsel advance one. The polygraph had been administered six months prior to trial, and its results were known to defendant and his counsel. In the absence of such an excuse, we cannot say that the trial court abused its discretion in not waiving the notice requirements of Rule 12(b)(2). Cf. State v. Ortiz, 712 P.2d 218, 219-20 (Utah 1985) (valid excuse justified noncompliance with notice statute).

Fulton's third claim concerns the allegation in the information that the offense occurred "on or about June 1, 1983." From the arguments and cases in Fulton's...