July 12, 2013, Utah Supreme Court Case Summaries

July 12, 2013

Utah Supreme Court Cases

Brown v. State, 2013 UT 42, Nos. 201110481, 20110141 (July 12, 2013)

ISSUE: Post-Conviction Determination of Factual Innocence; Clear and Convincing Evidence; Admissible Evidence in Factual Innocence Hearings  

Chief Justice Durrant,

In 1995, a jury convicted Debra Brown for the murder of Lael Brown. Fourteen years later, in 2009, Ms. Brown filed a petition for a post-conviction determination of factual innocence pursuant to Utah’s Post-Conviction Remedies Act (PCRA). The post-conviction court granted Ms. Brown’s petition and held an evidentiary hearing. The court interpreted Part 4 of the PCRA to allow its determination of factual innocence to be based on a combination of newly discovered evidence and previously available evidence. It then, based on the evidence Ms. Brown presented at her factual innocence hearing, determined that Ms. Brown established her factual innocence by clear and convincing evidence. It therefore vacated her 1995 murder conviction, and the State appealed.

We affirm the post-conviction court. We hold that a post- conviction determination of factual innocence can be based on both newly discovered evidence and previously available evidence. Further, because the State did not properly challenge the post- conviction court’s factual findings, we affirm the post-conviction court’s ultimate determination that Ms. Brown is factually innocent.

At ¶ 1-2.

Factual Background

At ¶ 3-8.

The Court discusses its findings upon the original appeal of conviction.

At ¶ 9-11.

The Court discusses the post-conviction court proceedings and findings on evidence.

At ¶ 12-28.

The Court discusses the post-conviction courts factual findings supporting its ultimate determination of factual innocence.

At ¶¶ 29-35.

On appeal, the State first argues that the post-conviction court erred in concluding that a determination of factual innocence can be based on a combination of newly discovered evidence and previously available evidence, so long as the newly discovered evidence provides some of the basis for the determination. Next, the State argues that the post-conviction court erred in determining that Ms. Brown established her factual innocence by clear and convincing evidence. Ms. Brown cross-appeals and argues that the post- conviction court erred in granting summary judgment on her claims under Part 1 of the PCRA. She also argues that, even if her claims under Part 1 of the PCRA are time-barred, the statute of limitations in the PCRA is unconstitutional.

At ¶ 38.

We affirm the post-conviction court. We first interpret Part 4 of the PCRA and hold that a post-conviction determination of factual innocence can be based on both newly discovered evidence and previously available evidence. Next, because the State did not properly challenge the post-conviction court’s factual findings, we affirm  the  post-conviction  court’s  ultimate  determination  that Ms. Brown is factually innocent.  We  therefore do not reach Ms. Brown’s cross-appeal.

At ¶ 39.

I. THE PLAIN LANGUAGE OF THE PCRA ALLOWS A DETERMINATION OF FACTUAL INNOCENCE TO BE BASED ON BOTH PREVIOUSLY AVAILABLE EVIDENCE AND NEWLY DISCOVERED EVIDENCE

Part 4 of the PCRA21 contemplates a two-stage process for establishing factual innocence. Section 78B-9-402 sets forth what a petitioner must do at the first stage to receive an evidentiary hearing on her petition for factual innocence.  If the petitioner meets her threshold burden under section 402, a post-conviction court turns to the second stage of the process, which is outlined in section 78B-9-404. That provision sets forth how the evidentiary hearing is to proceed and gives direction to courts on how to determine factual innocence. The parties’ arguments on appeal center on what role newly discovered evidence must play in this process.

At ¶ 40.

The Court reads the plain language of the statute and concludes that “the plain language of the PCRA allows a court to base it determination of factual innocence on all available evidence—both old and new.”

At ¶¶ 41-52.

Finally, the State contends that “[i]f a factual innocence determination could be based on previously presented evidence, a post-conviction court could improperly substitute its judgment for the jury’s.” As discussed above, however, the State concedes that Mr. Carlsen’s testimony is newly discovered evidence. Thus, we are not faced with the issue of whether a court could base its decision of factual innocence solely on previously available evidence. We recognize only that, under the plain language of the PCRA, previously available evidence can play a significant role in the court’s ultimate decision of factual innocence. Because this plain reading of the statute is in no way unreasonable, our analysis ends. But we are also confident that the high threshold showing of new evidence in section 402, when strictly applied, will ensure that newly discovered evidence plays a role in a court’s determination of factual innocence under section 404.

At ¶ 53.

We therefore hold that, under the plain language of the PCRA, the post-conviction court did not err in concluding that a determination of factual innocence can be based on a combination of newly discovered evidence and previously available evidence.

At ¶ 54.

II. BECAUSE THE STATE FAILED TO PROPERLY CHALLENGE THE POST-CONVICTION COURT’S FACTUAL FINDINGS, WE AFFIRM THE COURT’S DETERMINATION OF FACTUAL INNOCENCE

After the March 7 hearing, the post-conviction court made two critical factual findings in reaching its ultimate determination of factual innocence. First, the court found “by clear and convincing evidence that Lael Brown was alive Saturday afternoon on November 6, 1993.” Second, the court found “by clear and convincing evidence that [Ms. Brown’s] whereabouts from Saturday afternoon on November 6th to the early morning hours of Sunday, November 7th, have been firmly established.” Based on these two findings, the court “determine[d] by clear and convincing evidence that [Ms. Brown] did not engage in the conduct for which she was convicted and is, therefore, factually innocent of the aggravated murder of Lael Brown.”

At ¶ 55.

The State contends that the post-conviction court misapplied the standard for factual innocence. The State argues that “a reasonable juror could hear all of [Ms. Brown’s] evidence, including [Mr.] Hall’s testimony, and still find [Ms. Brown] guilty.” This, the State claims, is because “the post-conviction court’s conclusion . . . is not the only reasonable conclusion to be drawn from the evidence. A juror could reasonably weigh the evidence differently.” Specifically, the State argues that (1) evidence exists that contradicts Hall’s testimony; (2) while Brown’s motive to murder Lael was disputed at trial, she now admits to forging Lael’s checks; and (3) it is possible that Ms. Brown murdered Lael at a time other than Saturday morning. Therefore, the State maintains that Ms. Brown failed to demonstrate by clear and convincing evidence that she did not engage in the conduct for which she was charged.

At ¶ 56.

The State also argues that our deferential clear error standard of review does not apply to the post-conviction court’s ultimate determination of factual innocence. In so arguing, it concedes that it “is not challenging any of the post-conviction court’s factual findings.” The State instead contends that the ultimate determination of factual innocence is a mixed question of fact and law and that, once we apply this standard, the post-conviction court’s determination deserves little, if any, deference.

At ¶ 57.

We conclude that, while the ultimate determination of factual innocence may be a mixed question of fact and law, this point is inconsequential in light of the State’s explicit acknowledgment that the post-conviction court’s factual findings are accurate. Because the State declined to challenge the court’s factual findings as clearly erroneous, we accept the findings as true and therefore must conclude that Ms. Brown has established her factual innocence. We therefore affirm the post-conviction court.

At ¶ 58.

The Court expounds on its reasons for holding the State to its failure to challenge the trial court’s factual findings.

At ¶¶ 59-64.

Given our conclusion relating to the State’s concession, there is no merit to the State’s claim that the post-conviction court misapplied the standard for factual innocence. It is true that the post-conviction court ultimately applied a legal concept. This concept required Ms. Brown to show by clear and convincing evidence that she did not “engage in the conduct for which [she] was convicted.” But it is nevertheless true that the post-conviction court found that Lael must have been murdered at a time when Ms. Brown had an established alibi. Once these facts are accepted, as they must be in light of the State’s concession, they lead inevitably to the conclusion that Ms. Brown did not murder Lael and is factually innocent.

At ¶ 64.

The dissent criticizes our reliance on the State’s concession, however, as overly broad and unfair. It argues that in the context of the overall briefing, the State meant to concede only “pure” facts, not “hybrid” facts—a distinction the dissent admits is invalid. The dissent contends that the two critical findings discussed above regarding the time of Lael’s death and Ms. Brown’s whereabouts were challenged by the State on appeal as “hybrid” facts and thus do not fall within the State’s concession. The dissent would therefore review the post-conviction court’s factual findings under a clear error standard and reverse. While the dissent presents an analysis that is thoughtful and worthy of careful consideration, we respectfully disagree with it for a number of reasons.

At ¶ 65.

The Court explains its reasons for disagreeing with the dissent, and refusing to analyze the factualual findings for clear error.

At ¶¶ 66-68

Although the State has declined to challenge the post- conviction court’s factual findings for clear error, the dissent has done so in an able and vigorous way. While we do not reach this issue given our reliance on the State’s concession, we nevertheless express disagreement with how the dissent has approached its analysis. The dissent proposes that, by “pure” factual findings, the State simply meant findings as to witness credibility at the post- conviction hearings; and that, by “hybrid” findings, the State meant those findings implicating evidence from the first trial. Both Mr. Hall and Ms. Brown testified for the first time at the post-conviction hearings, and the court made specific credibility findings as to each. Thus, these findings would presumably qualify as unchallenged “pure” facts under the dissent’s approach. The dissent seems to disregard, however, the post-conviction court’s credibility findings in its clear error analysis. Instead, the dissent repeatedly dismisses Ms. Brown’s account of her whereabouts as “subjective” and “self-serving” without acknowledging the unchallenged finding that Ms. Brown testified credibly.  So even if we were to accept the dissent’s hypothesis that the State’s concession runs only to so-called “pure” facts, we would still have to address the difficult question of how the post-conviction court’s determination is clearly erroneous when it is conceded to be based on credible evidence.

At ¶ 69.

Regardless of whether Ms. Brown’s alibi is the “weakest [the dissent has] heard of,” the mere fact that an alibi is self serving (they always are) or that it is offered by a boyfriend or a son does not make it somehow inherently incredible as a matter of law. The post-conviction court’s decision in this case was based on a weighing of evidence and is laced with credibility findings. We are not deciding this case in the first instance and should not presume that we are more capable of analyzing credibility. Our role as an appellate court is to assess whether there has been clear error as to the post-conviction court’s factual findings. We have been presented with no such argument and therefore affirm.

At ¶ 70.

Justice Lee, dissenting:

The legal questions in this case seem to me to yield straightforward answers requiring reversal. I see no reasonable way to read the briefing on appeal as the majority does—to suggest that the State waived its entire appeal by a single sentence in its reply brief. And if we consider the legal merits of the case, we must reverse, as the district court clearly erred in finding Debra Brown factually innocent by clear and convincing evidence.

At ¶ 72.

Justice Lee explains.

At ¶¶ 73-129.