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State v. Folsom

Court of Appeals of Utah

January 25, 2019

State of Utah, Appellee,
Daniel Jay Folsom, Appellant.

          Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 111909566

          David M. Corbett, Attorney for Appellant

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

          POHLMAN, JUDGE

         ¶1 Daniel Jay Folsom appeals his conviction for murder. He contends that the trial court erred in denying him access to the victim's medical records, in making certain evidentiary decisions, and in refusing his request for an instruction on the lesser included offense of negligent homicide. He also raises alternative claims of ineffective assistance of counsel related to the court's evidentiary decisions. We affirm.


         ¶2 Folsom and his girlfriend (Victim) had a rocky eleven-year romantic relationship, during which time Folsom struggled with alcohol abuse. After one of many fights that turned physical, Victim died from injuries inflicted by Folsom. The State charged Folsom with murder. Folsom claimed that he acted in self-defense.

         Folsom's Request for Access to Victim's Medical Records

         ¶3 Before trial, Folsom moved the court to order subpoenas for the production of Victim's psychiatric and mental health records and requested that the court review those documents in camera. In support, Folsom alleged that Victim had been taking various medications to treat her issues with anger and rage, and that the requested records would "further document the existence of [Victim's] violent attacks and bolster the self defense claim with respect to the reasonable belief as to the violent nature of [Victim] and the danger she posed." Although the trial court initially granted Folsom's motion, it later denied the requested relief after one of Victim's representatives objected. The court concluded that Folsom had "not made a sufficient showing . . . that the requested records are reasonably certain to contain exculpatory evidence favorable to his defense," and the court therefore refused to permit "a fishing expedition." The court also refused to allow for an in camera inspection of the records and denied Folsom's requests to reconsider.

         The State's Case-in-Chief

         ¶4 The case proceeded to trial, where Folsom and Victim's next-door neighbor (Neighbor) testified for the State. Neighbor testified that around 11:30 p.m. to 11:45 p.m. on December 15, 2011, he heard a knock on his door. When he opened the door, Neighbor found Victim sitting on his porch dressed only in a jacket and pajama bottoms. Victim said, "I need help," and then said, "Dan." Neighbor asked, "Dan did this?" Victim responded, "Yeah. I need help. . . . He is out of control." Neighbor invited Victim inside his house, and he had to assist her because she was having difficulty standing. Neighbor also noticed that Victim's hair was "wet and matted," and her face was "pink and swollen" and covered in blood. Neighbor perceived that Victim was in "bad shape" and "in obvious pain," as she "wheez[ed] and groan[ed]" while trying to speak. Victim stated, "I don't know if we should call the police." After Neighbor laid Victim down on the couch, Neighbor's wife entered the room. Neighbor's wife testified Victim was "moaning" and in pain, and though Victim "couldn't speak coherently," Victim did say that "he was out of control." Neighbor called 911.

         ¶5 The responding paramedic testified that Victim had "some physical, obvious trauma to her face," including a bloody nose and split lip, and that she complained of pain in her left rib cage. When he asked Victim what happened, she said she had been assaulted with fists for "a long time." While transporting Victim to the hospital, the paramedic became concerned that Victim had a head injury. A few days later, Victim died.

         ¶6 The medical examiner who performed Victim's autopsy testified that he observed "a number of blunt-force injuries" on Victim's body, including her face, scalp, arms, legs, and the backside of her torso.[1] He opined that "[p]retty much all of her injuries appeared recent." Although she had an older bruise on her chest, she had several recent bruises on her back and buttocks. She also had bruises and scrapes on her face, legs, feet, arms, and hands, along with bruises and swelling on the back side of her ear. Victim had two lacerations on the back of her head but had no skull or facial fractures. According to the medical examiner, none of Victim's injuries suggested the use of a weapon or instrument. He was "not aware that anything was wielded against [Victim] or that . . . she ran into anything."

         ¶7 The medical examiner certified Victim's death as "due to blunt injuries of her head." While most of her surface injuries were "in and of themselves nonlethal," the medical examiner opined that "at some point a blow to the head caused [Victim] to start bleeding in her head, and that's what started the cascade of events that ultimately led to her death." He did not know whether a single impact or many ultimately caused Victim's death, but he stated, "Certainly, she has multiple impacts to her head." He posited that Victim's injuries likely occurred while she was moving. As for the two lacerations at the back of her head, the medical examiner testified that those injuries could be explained as resulting from her falling backward into an object. The medical examiner stated that the scrapes on Victim's knees and elbows could have been caused by crawling over bare ground or "from any number of other things."

         ¶8 The medical examiner concluded that Victim's manner of death was homicide. In his autopsy report, he opined that Victim "died as a result of blunt force injuries of the head sustained when she was beaten by an assailant." Based on the nature and "extent of the injuries," the medical examiner testified that "this is not something that [Victim] could have done accidentally."

         ¶9 An officer who was dispatched to respond to Neighbor's 911 call (Officer) testified about his interaction with Folsom that night. After officers knocked on the door to Victim and Folsom's house, Folsom came to the door, "sweating" and with "steam coming off of him." Officer saw cuts on Folsom's forehead and under his eye. Officer observed "multiple spots" of what appeared to be wet blood "all across" the upper chest area of the sweatshirt Folsom was wearing. According to Officer, the amount of blood on the sweatshirt was not consistent with Folsom's own injuries. When Officer asked Folsom about the blood and his injuries, Folsom said that he "had eaten a lot of hamburgers" and that he had gotten sick. Officer also observed that Folsom was intoxicated, had "slurred speech," and had "heavy feet," which caused him to stumble "a little bit."

         ¶10 The State presented evidence that when investigators searched Folsom and Victim's house, they discovered red-brown stains on the walls, the floor, the staircase railing, and other items. Loose hair was found near the stains and around the house, including "a large chunk of hair" on the floor in the master bedroom. The bathroom was "disheveled," with the toilet seat chipped, broken, and appearing to have been forcefully removed. Other items in the house were broken or knocked over, including a vase, perfume bottles, and a hair clip with hair still in it. The State also offered evidence confirming the presence of blood on Folsom's sweatshirt as well as on surfaces in the bathroom and hallway. Further, Victim's DNA profile matched samples taken from Folsom's sweatshirt and various bloodstains in the house.

         ¶11 The State also offered character witnesses. First, the State called Victim's mother (Mother). Without objection from the defense, Mother testified that after Victim visited Folsom around Thanksgiving 2010, Victim had a black eye. When Mother asked Victim what happened, Victim answered, "I made Dan mad." Mother also opined that Victim was not a violent person but that Folsom was.[2]

         ¶12 Second, one of the couple's longtime friends (Sponsor) testified, acknowledging that he had served as Folsom's ostensible sponsor in a group for recovering drug and alcohol addicts. Sponsor described Folsom and Victim's relationship as "[t]umultuous," with some "periods of fighting," but Sponsor never personally witnessed them fight. At times, Sponsor had helped Folsom get and stay sober "for a little while," though Folsom would "go back to drinking," and Folsom and Victim would "start fighting again."

         ¶13 According to Sponsor, he received phone calls on a couple of occasions that prompted him to go to Folsom and Victim's house. One of those times, around 2004, Sponsor tried to help Victim leave and go to a women's shelter after a fight. Victim was "scared," but Sponsor convinced Victim to follow him in her own car to the shelter. Although Victim followed him for a time, she stopped following him and changed course when they came within a few blocks of the shelter.

         ¶14 Sponsor testified that he last saw Victim around September 2011 when he crossed paths with Victim and Folsom in a store parking lot. During this encounter, Sponsor noticed that Victim had a black eye. Over defense counsel's hearsay objection, Sponsor testified that he asked Victim what had happened, and Victim "said she got [the black eye] playing baseball." Sponsor did not believe Victim's explanation.

         Folsom's Testimony

         ¶15 Folsom testified in his defense at trial, offering his recollection of that December night. Folsom testified that when he got home early from work, about 4:30 to 5:00 p.m., Victim was "not saying a whole lot," making Folsom think that she was mad at him. Folsom had several drinks at home before he went over to a friend's (Friend) house for the evening. While there, he had more beer with Friend, and they started doing shots of whiskey until they finished the bottle. Folsom and Friend then visited the liquor store and picked up another bottle of whiskey. After returning to Friend's house, they resumed drinking "shot after shot."

         ¶16 Folsom did not remember returning to his home that night, but he recalled "feeling kind of startled" and "blocking fists." He remembered Victim hitting him in the head, but he did not know if it was with a fist. In response, Folsom "block[ed] shots," "grabb[ed] her and push[ed] her away," with Victim "going this way and going that way." Folsom tried to restrain her by grabbing her by her hands, shoulders, and midsection.

         ¶17 Folsom's next memory is of Victim "jumping on top of [him] and punching [him]" while he was lying on the bed. Folsom tried to "pull her off" and was able to wrestle with her, flipping her over so that he was on top. He did not remember what happened with Victim after that. Folsom testified that he sustained scratches to his face, a bad cut on his nose, and lumps on his forehead that lasted about a week.

         ¶18 Folsom did not remember his interactions with police that night but only recalled seeing emergency personnel in the direction of Neighbor's house and having his blood drawn. He stated that he loved Victim and never thought about causing her significant physical harm.

         ¶19 Folsom also testified generally about his relationship with Victim, stating that "when it was good, it was way good," and "[w]hen [it] was bad, it was way bad." According to Folsom, the couple would have "real bad" arguments "almost like clockwork every two weeks," and Victim would "blow up," "throw things" like pots and pans, "break things," and "slap" him. Folsom stated that from 2001 to 2003, when Victim was "really upset," she would "charge [him] with her fists going" and hit him in the chest, while he would threaten to call 911. From 2004 to 2007, the couple's "blowouts got closer together"; Victim was "full of anger" and "would get out of control," and the police were called several times.

         ¶20 When asked whether he was violent with Victim, Folsom testified about one "altercation" that occurred in 2004, when he tried to leave on his bike and they had "a tug of war" over the bike and a bottle of alcohol, resulting in Victim falling to her knees. From 2006 to 2009, the violence "escalated," especially in 2009 when Victim pulled a knife and shotgun on him-an event that resulted in Folsom obtaining a protective order against Victim until they got back together. And from 2009 through 2011, her violence was even "[w]orse."

         ¶21 Folsom introduced evidence that, over the course of their relationship, the police were called eleven times, with Folsom making nine of those calls. To explain why he made those calls, Folsom stated, "I was afraid of what she might do because she's lied before and it's gotten me in trouble, bad trouble. . . . I'm also afraid of what she might do to me."

         ¶22 On cross-examination, the prosecutor asked Folsom what Victim had lied about to police in relation to the 2004 incident involving the bike. Over defense counsel's objection on hearsay grounds, Folsom said, "[Victim] lied about me choking her and threatening to kill her, she lied about that." The prosecutor also questioned Folsom about an incident on Thanksgiving 2009. Folsom admitted that he was arrested that day after he had been drinking and the police had been called to the couple's house. When asked what lies Victim had told about that incident, ...

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