District Court, Salt Lake Department The Honorable Elizabeth
A. Hruby-Mills No. 111909566
M. Corbett, Attorney for Appellant
D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges David
N. Mortensen and Ryan M. Harris concurred.
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.
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.
Request for Access to Victim's Medical Records
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 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.
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.
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. 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."
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
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."
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
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.
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.
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."
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
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
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
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.
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
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.
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.
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."
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."
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, ...