District, Washington County The Honorable Pamela G. Heffernan
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Solic. Gen., Salt Lake City, Ryan J. Shaum, St. George, for
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.
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
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.
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.
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. 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.
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 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
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?
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
A. Yeah. I do.
Q. So if you tell me you want to walk, that's okay.
We'll deal with that.
Golding then told Mr. Fullerton that he wanted "to talk
and talk and talk until we figure this thing out, okay?"
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. At no point did the officers physically
restrain Mr. Fullerton or raise their voices. Nor did they
recite to Mr. Fullerton the Miranda warnings.
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
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?" Mr. Fullerton was then officially
arrested and charged with child abuse.
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 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.
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
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
"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 (1991); State v.
Thurman, 846 P.2d 1256, 1270 n.11 ...