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State v. Fairbourn

Court of Appeals of Utah

August 24, 2017

State of Utah, Appellee,
Oston Shiloh Fairbourn, Appellant.

         Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 141900233

          Craig L. Pankratz and David M. Corbett, Attorneys for Appellant

          Sean D. Reyes and William M. Hains, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Stephen L. Roth concurred. [1]


          MORTENSEN, Judge.

         ¶1 Defendant Oston Shiloh Fairbourn was shot three times after lunging at Officer with a seven-inch blade. A jury found Defendant guilty of attempted aggravated murder. We now consider whether Defendant's claims of prosecutorial misconduct and evidentiary error warrant reversal of his conviction. We conclude they do not and affirm.


         ¶2 Because Defendant appeals from a jury verdict, "we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues raised on appeal." State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

         ¶3 One winter evening, Defendant started walking across a busy street without first looking either direction. His apparent disregard for his own safety caught the attention of Officer, who was on patrol in the area. Officer pulled into a nearby parking lot to further observe Defendant's behavior. Defendant eventually noticed Officer and came into the lot where the patrol car was parked. He stood at the end of the lot opposite of the car, looking at Officer for about thirty seconds. Defendant then walked away, into the middle of the street, before turning back to Officer. Believing that Defendant was trying to provoke him, Officer called for a single-officer backup, pulled his patrol car into the street to block traffic, and turned on the car's overhead lights.

         ¶4 Officer had stopped about twenty feet away from Defendant when he exited his patrol car. Upon Officer's exit, Defendant pulled out "a big knife" (with a seven-inch blade), which he held at his waist "with his elbow bent as if he were ready to use it." The production of the knife was accompanied by Defendant announcing that Officer was "about to fucking die." In response, Officer called for more backup, drew his firearm, pointed it at Defendant, and repeatedly ordered Defendant to drop the knife. Rather than complying with Officer's orders, Defendant began to move sideways. Officer moved parallel to him, making sure Defendant "could not attack from the side." A bystander observed that Defendant was shifting his weight from one foot to the other, "kind of dancing around."

         ¶5 Defendant turned and started moving quickly away from Officer, and Officer followed. Defendant abruptly stopped and turned to face Officer again, leaving somewhere from five to twenty feet between them. He took a step toward Officer, who told him to stop. Instead, Defendant switched his grip on the knife, raised his arm so the hand holding the knife was near his head, and took another step. Officer again ordered Defendant to stop. Defendant ignored the order, lunging at Officer, and Officer responded by shooting him three times.

         ¶6 Defendant was charged with attempted aggravated murder, and the case went to a jury trial. Several pieces of evidence presented are relevant to this appeal. First, Defendant testified, explaining that on the night of his encounter with Officer, he was heading to a friend's house to retrieve his phone. He had been to the house only twice before and got turned around on his way. He stopped in a parking lot-the lot where Officer was parked-as he deliberated whether to continue trying to find his friend's house or instead make his way to his grandmother's house nearby. Defendant had started into the street when Officer pulled up in his patrol car. He thought about running away, uneasy because he had a knife on him that would be difficult to explain. He also considered discarding the knife but decided against it. Instead, Defendant decided to continue on toward his friend's house. He gave up on that plan when he realized he was still disoriented and turned around to face Officer. Officer ordered Defendant to show him his hands, and Defendant complied, showing Officer that he had the knife. Again being told to show his hands, Defendant raised the knife to his shoulder. According to Defendant, his actions were meant as a show of surrender; he "had no intention of harming anyone that night." The next thing Defendant remembers is waking up in a hospital.

         ¶7 In its brief, the State contends that while Defendant was in the hospital, Detective gave Defendant Miranda warnings and Defendant invoked his right to silence. But he then "continued to talk" while Detective "simply listened-for about seven minutes." The topic of Defendant's monologue was his belief when first arriving at the hospital that "he was dead" and his feeling "that he was in hell." However, after a thorough review of the trial testimony, we found no reference to Detective giving Defendant Miranda warnings or of Defendant invoking his associated rights.

         ¶8 While cross-examining Defendant, the prosecutor asked about this conversation with Detective. He asked, "You didn't say anything to [Detective] about this misunderstanding of you trying to surrender to [Officer] when [Detective] talked to you at the hospital, did you?" Defendant answered that he had not. The prosecutor followed up with, "So today in court talking to this jury here, nine months after this happened is the first time that we're hearing that you were trying to surrender to [Officer], right?" Defendant answered, "Yes. I didn't say anything to [Detective]." The prosecutor then highlighted this exchange during his closing argument:

I want to bring up three important things about the defendant's testimony that I'd like you to consider in light of these elements that you've read about in these instructions. First of all, everything that the defendant told you today, he had the chance to say before. When he was talking to [an officer] at the scene, he had an interview with [Detective] after-

         The prosecutor was interrupted by Defendant's trial attorney objecting that the prosecutor was "shifting the burden of proof." The trial court stated, "I don't think it's burden shifting, " and allowed the closing argument to proceed.

         ¶9 During the cross-examination, the prosecutor further pressed Defendant on his version of events when he asked Defendant to explain the discrepancies between his testimony and the testimony of eyewitnesses:

[Prosecutor]: And you heard these witnesses when they told the jury that they saw you holding something, some of them said a knife but some said holding [your] hand out in front of you as you are facing the officer, right?
[Defendant]: Yes, I heard that.
[Prosecutor]: And did you hear [another eyewitness] when he told the jury that you were holding the knife over your head, lunging and making a motion like that towards the officer?
[Defendant]: Yes, I heard him.
[Prosecutor]: So if you were trying to submit or surrender to the officer and these witnesses are perceiving something else, is it your testimony today that this is just a misunderstanding on their part?
Defendant explained that "everyone has different perspectives or [vantage] points."

         ¶10 Another pertinent exchange took place at trial when the prosecutor elicited testimony concerning Officer's thoughts and emotions during his interaction with Defendant. He asked what was "personally going through [Officer's] mind, " and Officer explained,

Um, lots of things. . . . I think people get into law enforcement for various reasons. For me it would be difficult to hold a desk job because I have a short attention span. And I enjoy serving people.
My thoughts immediately shift towards my family. I've got people that depend on me. You know, you kind of go into a-into a-I don't know, for lack of a better term, a cop mode to where you're professional and you try and be courteous. And all that went out the window. Like it's just pure survival at that point.
I don't think I gave another radio transmission out until the aftermath of what had occurred, but yeah, for me, it's just a matter of making it home at the end of the night at that point.[2]

         ¶11 Finally, Officer presented what Defendant refers to as "expert testimony regarding the Twenty-one Foot Rule-a rule of thumb for officers to use when determining when they are most susceptible to a personal attack." Defendant's trial attorney had objected to this testimony, arguing that Officer's "state of mind is not relevant" and that "the defendant's state of mind is what's relevant." The trial court clarified, "So I just want to make clear, your objection is relevance?" When Defendant's trial counsel answered in the affirmative, the trial court replied, "Okay. For now I'm going to sustain the objection regarding any training that he had. But if the door is opened on cross, you cross on the officer's reaction, then the door is opened." But later, outside the presence of the jury, the trial court explained, "The more I think about it, the more I think I may be in error." After receiving a proffer from Officer as to what he would say about the twenty-one-foot rule, the trial court changed its ruling: "I'm going to allow the testimony as has been articulated."

         ¶12 The jury deliberated for more than nine hours before returning a ...

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