Brown v. State

This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 42

IN THE

SUPREME COURT OF THE STATE OF UTAH

DEBRA BROWN,

Appellee and Cross-appellant,

v.

STATE OF UTAH,

Appellant and Cross-appellee.

____________

Nos. 20110481, 20110141

Filed: July 12, 2013

____________

Second District, Ogden Dep’t

The Honorable Michael D. DiReda

No. 100903670

____________

Attorneys:

John E. Swallow, Att’y Gen., Patrick B. Nolan, Scott W. Reed,

Christopher D. Ballard, Asst. Att’ys Gen., Salt Lake City,

for appellant and cross-appellee

Alan L. Sullivan, Christopher Martinez, Elizabeth Fasse,

Christine R. Poleshuk, Salt Lake City, for appellee and

cross-appellant

____________

CHIEF JUSTICE DURRANT authored the opinion of the Court, in

which ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, and

JUSTICE PARRISH joined.

JUSTICE LEE filed a dissenting opinion.

____________

CHIEF JUSTICE DURRANT, opinion of the Court:

INTRODUCTION

¶1 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).1 The post-conviction

1

Ms. Brown also asserted claims for post-conviction relief under

Part 1 of the PCRA. The State moved for summary judgment on

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BROWN v. STATE

Opinion of the Court

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.

¶2 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.

BACKGROUND

¶3 On Sunday, November 7, 1993, Ms. Brown told police that

she discovered her long-time employer Lael Brown (Lael) dead in

his bed.2 Lael had been shot in the head three times. Ms. Brown told

police that Lael had been feeling sick and that she had delivered

soup to him the day before. She claimed that Lael did not answer his

door at the time, so she left the soup on his doorstep. She further

claimed that she discovered the soup was still sitting on Lael’s

doorstep the next day. She stated that when Lael again did not

answer his door, she used a key Lael had given her to let herself into

his house where she discovered his body.

A. The 1995 Trial

¶4 On September 9, 1994, police arrested Ms. Brown and

charged her with Lael’s murder. At Ms. Brown’s 1995 trial, the State

presented a circumstantial case that largely depended on

Ms. Brown’s inability to offer an alibi during the time the State

argued Lael must have been murdered. First, the State presented

evidence showing no signs of forced entry into Lael’s home. The

1

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those claims, and the post-conviction court granted the State’s

motion. Ms. Brown filed a cross-appeal to us challenging the court’s

grant of summary judgment. Because we affirm the post-conviction

court’s determination of Ms. Brown’s factual innocence, we do not

reach Ms. Brown’s cross-appeal.

2

Lael Brown and Debra Brown are not related.

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Opinion of the Court

State claimed Lael always locked his doors and that the front door

locked automatically. Further, the State offered evidence that

Ms. Brown had access to Lael’s house. She had been in his home on

previous occasions to clean and paint and had one of only two

known keys to Lael’s house. The second key belonged to Lael and

was found on his key ring.

¶5 The evidence at trial also showed that Lael was shot with a

.22 caliber handgun. An expert testified that the murder weapon

could have been Lael’s Colt Woodsman, which was missing from

Lael’s home after the murder. Testimony indicated that Lael was

seen alive Friday evening but was not seen following his usual

routine of drinking coffee at Angie’s Restaurant on Saturday

morning. Lael did not answer his phone on Saturday, and no one

saw him working around his house, even though his truck was

parked at home. Lael also did not return Saturday to finish repairs

for a tenant that he had started the evening before.

¶6 The medical examiner, Dr. Grey, testified at trial that, based

solely on the physical evidence, Lael was likely murdered between

9:00 p.m. on Saturday, November 6, and 3:00 a.m. on Sunday,

November 7. Dr. Grey also testified that “association factors,” like

Lael’s regular routine and the time he was last seen alive, could

expand the time-of-death estimate beyond what the physical

evidence suggested. Based on these factors, Dr. Grey agreed that

Lael could have been murdered between Friday evening, when Lael

was last seen alive, and Sunday morning.

¶7 Ms. Brown accounted for her whereabouts during the time

Lael could have been murdered, except for a period between

6:40 a.m. and 10:00 a.m. on Saturday, November 6. At about

6:40 a.m., Ms. Brown left her then-boyfriend’s house after spending

the night. And at around 10:00 a.m., Ms. Brown’s son saw her

making soup. The State put on evidence that Lael’s neighbor,

Paulette Nyman, heard two gunshots on Saturday at about 7:00 a.m.

¶8 Finally, the evidence at trial showed that the only property

missing from Lael’s home after his murder was his wallet, his .22

caliber Colt Woodsman, his October bank statement, and canceled

checks from October and previous months. Copies of the bank

statement and canceled checks later showed that several checks were

made payable to Ms. Brown, but these checks had apparently been

forged.

B. The Appeal

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¶9 A jury convicted Ms. Brown of aggravated murder. In 1996,

she appealed her conviction to us. She challenged, among other

things, the sufficiency of the evidence the jury relied on to convict

her.3 We recognized that there was no direct evidence tying

Ms. Brown to the murder and that the State’s case against her was

entirely circumstantial.4 We noted that a large part of the State’s

circumstantial case was Ms. Brown’s inability to offer an alibi during

the time the State argued Lael must have been murdered.5 But we

also recognized that a jury can base its verdict on sufficient

circumstantial evidence.6 Specifically, we concluded that the jury,

based on the evidence available, could have drawn the following

reasonable inferences: First, because there were no signs of forced

entry, the jury could have inferred that Lael’s murderer likely gained

access to his house by key and shot Lael while he was asleep in bed.7

Second, because the medical examiner testified to a time of death

between 9:00 p.m. on Friday and 3:00 a.m. on Sunday and a neighbor

testified to hearing gunshots at 7:00 a.m. on Saturday, the jury could

have inferred that Lael was murdered at 7:00 a.m. on Saturday.8

¶10 Third, because Lael’s gun, which was the same caliber as the

murder weapon, was missing, the jury could have inferred that the

murderer used Lael’s gun to shoot Lael.9 Fourth, because Ms. Brown

had been in Lael’s home to clean, the jury could have inferred that

she knew where Lael kept his gun and financial papers.10 Fifth,

because the only things missing from Lael’s house were his wallet,

gun, and October bank statement, the murderer likely had a

personal interest in that property and, due to her forgeries, the jury

3

State v. Brown (Brown I), 948 P.2d 337, 340 (Utah 1997).

4

Id. at 344.

5

See id. at 339–40 (noting that “[o]n the basis of a neighbor’s

statement about hearing gunshots, police thought the murder

occurred at approximately 7:00 a.m. on Saturday, November 6, 1993.

[Ms. Brown] could account for her whereabouts for the entire

weekend except the hours between 6:40 a.m. and 10 a.m. on

Saturday, November 6”).

6

Id. at 344.

7

Id. at 345.

8

Id. at 345–46.

9

Id. at 346.

10

Id.

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could have inferred that Ms. Brown had such an interest.11 Sixth,

Ms. Brown gave inconsistent statements concerning her reason for

leaving soup on Lael’s doorstep, and the jury could have wondered

why, given that she had a key, she did not put the soup inside.12

¶11 Seventh, the defense could not account for Ms. Brown’s

whereabouts around 7:00 a.m. when gunshots were heard, but the

defense could account for her whereabouts prior to 6:40 a.m. and

after 10:00 a.m. on Saturday.13 Finally, because the murderer likely

entered by key, and only Lael and Ms. Brown were known to have

keys to Lael’s house, the jury could have inferred that Ms. Brown

was the murderer.14 Based on these reasonable inferences, we

determined that the evidence was sufficient to support Ms. Brown’s

conviction for Lael’s murder.15

C. Post-Conviction Proceedings

¶12 In 2002, the Rocky Mountain Innocence Center (RMIC)

began investigating Ms. Brown’s conviction. In 2009, based on new

evidence that the RMIC believed challenged the State’s

circumstantial case, Ms. Brown petitioned the post-conviction court

for relief. She filed a petition for post-conviction relief under Part 1

of the PCRA and a petition for post-conviction determination of

factual innocence under Part 4 of the PCRA.

¶13 In her petition under Part 1 of the PCRA, Ms. Brown made

five claims for relief.16 The State moved for summary judgment on

each of those claims, arguing that summary judgment was proper

because Part 1 of the PCRA either foreclosed her requested relief or

11

Id.

12

Id.

13

Id.

14

Id.

15

Id.

16

First, she claimed that newly discovered evidence establishes

her factual innocence. Second, she claimed that newly discovered

evidence establishes that no reasonable juror could have found her

guilty of Lael’s murder. Third, she claimed her conviction violated

due process due to an inadequate police investigation. Fourth, she

claimed her conviction violated due process because police withheld

exculpatory evidence. Finally, she claimed her trial and appellate

counsel provided ineffective assistance.

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her claims were untimely under Part 1’s statute of limitations.

Ms. Brown disputed that her claims were time-barred and argued

alternatively that the PCRA’s statute of limitations is

unconstitutional because it does not have an “interests of justice”

exception. The post-conviction court ultimately granted the State’s

motion for summary judgment and found the PCRA’s statute of

limitations to be constitutional.

¶14 Next, in response to Ms. Brown’s petition for a post-

conviction determination of factual innocence under Part 4 of the

PCRA, the State filed a motion to dismiss on May 11, 2009. The post-

conviction court denied the State’s motion, however, because it

found that “a bona fide issue does exist as to whether [Ms. Brown]

is factually innocent.” After discovery, the post-conviction court held

an evidentiary hearing on January 18–24, 2011.

¶15 At the January 18–24 hearing, Ms. Brown presented evidence

that she characterized as newly discovered. First, she presented

evidence “challenging the State’s theory that she was the only

person who had a motive to kill Lael.” This evidence showed that

Lael did not discover Ms. Brown’s forgeries before his murder. It

also showed that bank statements from months other than October

were missing from Lael’s home. Further, the evidence showed that

Lael’s former tenant, Bobbie Sheen, was angry that Lael had evicted

him.

¶16 Second, Ms. Brown presented evidence “challenging the

State’s theory that she was the only person who had access to Lael’s

home.” This evidence showed that people other than Ms. Brown had

a key to Lael’s house. It also showed that Lael’s house was not as

secure as previously represented—“the front and back doors to

Lael’s house were not secure,” and “the bathroom window could be

opened.”

¶17 Third, Ms. Brown presented evidence that Bobbie Sheen

“was the likely perpetrator of the homicide and, therefore, that the

State’s theory that she was the only possible person who could have

committed the murder was erroneous.” This evidence showed that

police “failed to investigate Sheen even though the police knew he

was a possible suspect.” It also showed that Sheen may have been in

possession of cash and a gun similar to the murder weapon after

Lael’s death. Further, Ms. Brown presented evidence “that police

failed to collect or analyze important evidence at the crime scene.”

¶18 Finally, Ms. Brown presented evidence challenging the

State’s theory that Lael’s murder occurred at 7:00 a.m. on Saturday,

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November 6. Paulette Nyman, Lael’s neighbor, testified at trial that

she heard gunshots Saturday morning. But at the January 18–24

hearing, she testified “that she was not sure when she heard

gunshots but that it was on the same day there was police activity at

Lael’s house, which would have been on Sunday, November 7th.”

¶19 The post-conviction court concluded that the evidence

Ms. Brown presented in the January 18–24 hearing did not establish

factual innocence. The court stated that, while her new evidence

“raises doubts about the State’s circumstantial case against her,” it

does “not establish that she did not engage in the conduct for which

she was convicted.” The court noted that “at best this evidence raises

doubts about the State’s theory, but it does not affirmatively

establish . . . that [Ms. Brown] was not the one who entered Lael’s

home on the morning of November 6th or that she did not, in fact,

cause Lael’s death.”

¶20 On January 26, 2011, the post-conviction court held a

conference call with the parties and indicated a willingness to reopen

Ms. Brown’s factual innocence case. The court expressed a concern

with two pieces of evidence that suggested Lael had been seen alive

later in the day on Saturday, November 6. After subsequent

investigation by the parties, the court scheduled a second

evidentiary hearing for March 7, 2011.

¶21 Three witnesses testified at the March 7 hearing. First, Lael’s

friend, Mr. Delwin Hall, testified that he saw Lael at Angie’s

Restaurant just before Mr. Hall went to work at 2:30 p.m. on

Saturday, November 6. Mr. Hall testified that he saw Lael

conversing with an unknown man at the counter by the cash

register. Mr. Hall stated that he saw Lael’s face. Mr. Hall did not

want to interrupt so he sat at the other end of the counter without

talking to Lael. Mr. Hall also testified that he saw Lael and the other

man leave Angie’s. Finally, Mr. Hall testified that he gave a

statement to a detective at the time of the murder. The detective’s

case information sheet recorded Mr. Hall’s statement as follows:

Del is a friend/coffee drinking buddy of Lael’s from

Angie’s. Dell related that he saw Lael Friday night at

Angies and also Saturday, 11-6-93 at approx. 1430

hours in Angies. Dell is sure of the time, because he

was stopping in Angie’s before going to work at

albertson at 1500 hours.

¶22 Second, another friend of Lael’s, Mr. Terry Carlsen, testified

that he saw Lael with his son Mike at Angie’s on Saturday,

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November 6 between 7:15 p.m. and 7:45 p.m. Mr. Carlsen saw Lael

and Mike enter the restaurant and sit at the end of the counter.

Mr. Carlsen was sure about the time because the next day a friend

came to inform him that Lael had been murdered. At that time,

Mr. Carlsen remembered thinking that he had just seen Lael the

night before. Mr. Carlsen also admitted, however, that Ms. Brown is

a friend of his and that he has had some contact with her since her

conviction.

¶23 Third, Lael’s son Mike testified for the State. He testified that

he saw Lael for the last time on November 1 and that he was not

with Lael on Saturday, November 6. The State also offered evidence

from police case information sheets “of interviews with waitresses

from Angie’s Restaurant, all of whom stated that they either did not

think Lael was at Angie’s on Saturday or that they did not remember

or did not recall seeing Lael at Angie’s on Saturday.”17

¶24 After hearing the evidence at the March 7 hearing, the post-

conviction court first determined that, under Part 4 of the PCRA, it

could base a determination of factual innocence “either upon newly

discovered material evidence alone or a combination of

evidence—as long as the newly discovered material evidence

provides at least part of that basis.” The court then reviewed

Mr. Carlsen’s testimony and found that it qualified as newly

discovered evidence because at the time of trial Ms. Brown and her

counsel were unaware of his testimony. The court also found that

Mr. Carlsen’s testimony was likely accurate. He was good friends

with Lael and would not have mistaken Lael for someone else. Also,

Mr. Carlsen likely would not have mistaken the day he saw Lael at

Angie’s given that a friend informed him of Lael’s death the very

next day. Finally, Mr. Carlsen’s testimony was consistent with Dr.

Grey’s time of death estimate at trial, which, based on the physical

evidence at the time of the autopsy, strongly suggested a time of

death beginning at 9:00 p.m. Saturday night until 3:00 a.m. on

Sunday.

¶25 The court also found that, although Lael’s son Mike testified

that he was not with his father at Angie’s on Saturday evening and

that the last time he saw his father was on Monday, November 1,

there were discrepancies in Mike’s testimony. He had testified

previously that he may have seen his father as late as Thursday and

also admitted that he could have had problems with his memory at

17

The waitresses did not testify at the March 7 hearing.

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the time due to alcohol abuse. Thus, the court did not find reason in

Mike’s testimony to doubt the accuracy of Mr. Carlsen’s testimony.

The court also found that the waitresses’ statements from the case

information sheets were not necessarily inconsistent with

Mr. Carlsen’s testimony. One waitress thought she may have seen

Lael on Saturday evening, although she was unsure, and the other

waitress stated only that she did not see Lael—she did not state

definitively that he was not there.

¶26 The court’s central concern with Mr. Carlsen’s testimony,

however, was his credibility. He had previously been convicted of

tampering with a witness, and his friendship with Ms. Brown may

have provided a motive for him to lie. The court also questioned

why it took Mr. Carlsen so long to come forward. The court

ultimately concluded that Mr. Carlsen’s testimony was “not

sufficiently credible to independently establish by clear and

convincing evidence that Lael was alive at a time when the State

argued he must have been dead.”

¶27 Next, the court reviewed Mr. Hall’s testimony. It found that

his testimony did not qualify as newly discovered evidence because

Mr. Hall’s name was on a defense witness list at the time of trial. The

court recognized, though, that Mr. Hall did not testify at trial and

had never testified at any proceeding before the March 7 hearing.

The court also found that it was “highly likely” that Mr. Hall

testified accurately. And the fact that Mr. Hall gave his statement to

a detective on November 10, just days after Mr. Hall claimed to have

seen Lael, suggested that Mr. Hall did not mistake the day on which

he saw Lael at Angie’s. Further, the court found that the waitresses’

statements in the case information sheets were not inconsistent with

Mr. Hall’s testimony. Some of the waitresses were not working at the

time Mr. Hall claimed to have seen Lael at Angie’s. The other

waitresses did not definitively state that Lael was not at Angie’s

Saturday afternoon.

¶28 The court found that Dr. Grey’s time of death estimate

bolstered Mr. Hall’s testimony. Dr. Grey testified at trial, and again

at the January 18–24 hearing, that based on the physical evidence,

Lael died at approximately 9:00 p.m. on Saturday evening. The court

also concluded that there was no evidence suggesting Mr. Hall was

not a credible witness. The only inconsistency in Mr. Hall’s

testimony was that he originally told the detective that he saw Lael

at 2:30 p.m. on Saturday, November 6. But at the March 7 hearing,

he testified it would have been closer to 1:00 p.m. The court

determined, however, that, given the passage of time, this was not

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a material inconsistency. The court therefore concluded that Mr. Hall

“testified truthfully about what he saw.”

D. The Post-Conviction Court’s Determination of Factual Innocence

¶29 Based on the above evidence and findings, the post-

conviction court made two additional findings. First, the court found

“by clear and convincing evidence that Lael Brown was alive

Saturday afternoon on November 6, 1993.” In making this finding,

the court relied principally on Mr. Hall’s testimony that he saw Lael

at Angie’s Saturday afternoon. But in keeping with the court’s

determination that newly discovered evidence must provide some

basis for its determination of factual innocence, it concluded that

Mr. Carlsen’s testimony provided “some evidence in support of a

finding that Lael was alive Saturday afternoon.”

¶30 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.” In making this finding, the court

made three points. First, “no evidence has ever been presented even

suggesting that it was [Ms. Brown] who committed the homicide

during [a time period other than Saturday morning].” Second, “one

of the specific facts set forth by the Utah Supreme Court in its

decision on [Ms. Brown’s] direct appeal was that she ‘could account

for her whereabouts for the entire weekend except the hours between

6:40 a.m. and 10:00 a.m. on Saturday, November 6.’”

¶31 Finally, the court undertook an “independent assessment of

the record” to determine that Ms. Brown’s “whereabouts [were]

accounted for from 10:00 a.m. Saturday afternoon until Sunday

morning at 3:00 a.m.” According to the court’s account, Ms. Brown’s

son saw his mother when he awoke around 10:00 a.m. At around

10:20 a.m., Ms. Brown’s then-boyfriend, Brent Skabelund, came to

take Ms. Brown to her son’s basketball game. They left for the game

at around 10:45 a.m. At about 12:15 p.m., Mr. Skabelund and

Ms. Brown left the game and stopped for lunch at a local drive-in.

¶32 The court further found that Mr. Skabelund then took

Ms. Brown home where she took a nap until about 2:00 p.m. For the

next hour or so, Ms. Brown delivered soup to Lael’s house, possibly

delivered soup to her daughter, and went shopping. She then called

Mr. Skabelund at about 4:00 p.m. He again picked her up at about

4:30 p.m., and the two of them went grocery shopping. They

returned to Ms. Brown’s home at about 5:40 p.m., put away the

groceries, and had pizza for dinner.

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¶33 Finally, the court found that Ms. Brown and Mr. Skabelund

remained together at Ms. Brown’s house until about 6:45 p.m., when

they left to watch movies at Mr. Skabelund’s residence. Ms. Brown

fell asleep while watching a movie at about 8:30 p.m. and slept until

about midnight. After she awoke, Ms. Brown drove home where she

saw her son playing video games. Ms. Brown then went to bed, and

her son indicated that she did not leave the house again that night.

¶34 The court based the above assessment of the evidence in part

on Ms. Brown’s testimony. The court noted that “the manner in

which [she] testified and her demeanor on the witness stand did not

suggest that she was lying or simply providing self-serving

responses.” The court thus found that Ms. Brown “testified

truthfully at the evidentiary hearing.” The court further noted that

while Ms. Brown “may have been alone during a portion of the

afternoon on Saturday, no evidence has ever been presented

establishing that Lael was killed during [this] time period.” Finally,

the court recognized that, “despite having denied for years that she

stole money from Lael, she candidly admitted that she had . . .

forged checks belonging to Lael as the State alleged at trial.”

¶35 Based on its findings (1) that Lael was alive on Saturday

afternoon, November 6 and (2) that Ms. Brown established her

whereabouts for the remaining time during which the murder must

have occurred, the post-conviction court determined by clear and

convincing evidence that Ms. Brown was factually innocent. The

court then vacated Ms. Brown’s conviction for aggravated murder.

The State appealed the post-conviction court’s order to us. We have

jurisdiction pursuant to section 78A-3-102(3)(I) of the Utah Code.

STANDARD OF REVIEW

¶36 The post-conviction court interpreted Part 4 of the PCRA to

allow it to base its determination of factual innocence on a

combination of newly discovered evidence and previously available

evidence. “We review a district court’s interpretation of a statute for

correctness.”18

¶37 The post-conviction court also concluded that Ms. Brown

established her factual innocence by clear and convincing evidence.

In making this determination, the post-conviction court made factual

findings. “Because a trial court is in a better position to judg[e]

credibility and resolv[e] evidentiary conflicts, an appellate court

18

H.U.F. v. W.P.W., 2009 UT 10, ¶ 19, 203 P.3d 943.

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reviews the trial court’s findings of fact for clear error.”19 We will set

aside a district court’s factual finding as clearly erroneous only if it

is “against the clear weight of the evidence, or if [we] otherwise

reach[] a definite and firm conviction that a mistake has been

made.”20

ANALYSIS

¶38 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.

¶39 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.

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

¶40 Part 4 of the PCRA21 contemplates a two-stage process for

19

State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096 (alterations in

original) (internal quotation marks omitted).

20

State v. Walker, 743 P.2d 191, 193 (Utah 1987).

21

Ms. Brown filed her petition for factual innocence in 2009, but

the parties and the post-conviction court have all relied on the 2010

version of the PCRA up to this point in the proceedings. The 2010

amendments did not materially alter the language at issue in this

(continued...)

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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.22 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.23 The parties’ arguments on appeal center on what role

newly discovered evidence must play in this process.

¶41 In its Memorandum Decision, the post-conviction court

recognized that the plain language of section 404 does not require a

finding of factual innocence to be based on newly discovered

evidence. The court determined, however, that given the emphasis

on newly discovered evidence at the pleading stage of a factual

innocence claim under section 402, “[i]t would be peculiar if a

similar evidentiary basis did not apply during the hearing stage.” It

thus concluded that “it may base its determination of factual

innocence either upon newly discovered evidence alone or a

combination of evidence—as long as the newly discovered material

evidence provides at least part of that basis.”

¶42 The State maintains that the post-conviction court erred

when it determined that newly discovered evidence need only

provide a part of the basis for a determination of factual innocence.

The State argues that, “[w]hen properly read, the PCRA’s factual

innocence part requires that newly discovered evidence establish

21

(...continued)

case. So to maintain consistency, we also rely on the 2010 version

unless otherwise noted.

22

See UTAH CODE § 78B-9-402 (stating that “[a] person . . . may

petition the district court . . . for a hearing to establish that the person

is factually innocent” and setting forth the threshold requirements).

We stress that the sufficiency of Ms. Brown’s petition is not at issue

on this appeal. We consider section 402 only to place section 404 in

proper context. But given that Ms. Brown did not include the

evidence provided by Mr. Carlsen and Mr. Hall in her petition for

factual innocence, there is a question whether her petition should

have been granted in this case. As the post-conviction court noted,

however, the State never challenged whether Ms. Brown’s eviden-

tiary hearing should go forward.

23

See generally id. § 78B-9-404.

13

BROWN v. STATE

Opinion of the Court

factual innocence, not merely play some part in the determination.”

The State thus contends that the newly discovered evidence must be

“the pivotal transformative evidence” in the court’s factual

innocence determination.

¶43 As an initial matter, the State does not dispute that

Mr. Carlsen’s testimony is “newly discovered evidence,” as that

term is defined in the PCRA.24 Due to issues of credibility, however,

the court determined that Mr. Carlsen’s testimony was entitled only

“to some weight” and that his testimony did not “independently

establish by clear and convincing evidence that Lael was alive at a

time when the State argued he must have been dead.” The court

found, however, that Mr. Carlsen’s testimony, as newly discovered

evidence, “constitutes some evidence in support” of its factual

innocence finding. The issue for us, therefore, is to determine

whether newly discovered evidence must be the “pivotal” or

“transformative” evidence in support of factual innocence or

whether it need only provide some basis for the court’s ultimate

decision.

¶44 This issue presents a question of statutory interpretation.

“Our primary objective in interpreting a statute is to give effect to

the intent of the legislature.”25 In so doing, “we look first to its plain

language and presume that the legislature used each word advisedly

and read each term according to its ordinary and accepted

meaning.”26 Although “statutory text may not be plain when read in

isolation, [it] may become so in light of its linguistic, structural, and

24

See id. § 78B-9-401.5(3) (“‘Newly discovered material evidence’

means evidence that was not available to the petitioner at trial or

during the resolution on the merits by the trial court of any motion

to withdraw a guilty plea or motion for new trial and which is

relevant to the determination of the issue of factual innocence . . . .”).

Ms. Brown disputes the post-conviction court’s determination that

Mr. Hall’s testimony is not newly discovered evidence. Because the

State agrees, however, that Mr. Carlsen’s testimony is newly

discovered, and because we affirm the post-conviction court’s

conclusion that a determination of factual innocence can be based on

a combination of old and new evidence, we do not reach this

argument.

25

State v. J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 13, 280 P.3d 410.

26

Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 (internal

quotation marks omitted).

14

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Opinion of the Court

statutory context.”27 Thus, “our interpretation of a statute requires

that each part or section be construed in connection with every other

part or section so as to produce a harmonious whole.”28 Finally, “[i]f

the language of the statute yields a plain meaning that does not lead

to an absurd result, the analysis ends.”29

¶45 We conclude 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. Beginning with stage one, section 402,

entitled “Petition for determination of factual innocence—Sufficient

allegations—Notification of victim,” sets forth threshold

requirements a petitioner must meet to receive an evidentiary

hearing.30 Section 402 states that “[t]he petition shall contain an

assertion of factual innocence under oath by the petitioner, and shall

aver, with supporting affidavits or other credible documents, that . . .

newly discovered material evidence exists that, if credible,

establishes that the petitioner is factually innocent.”31

¶46 Section 402 directs the court to view the petitioner’s

averment of newly discovered evidence “with all the other evidence”

to determine whether the petitioner has met the threshold

requirements for a hearing.32 Based on the plain language of section

402, it is clear that, in order to be entitled to an evidentiary hearing,

a petitioner must allege that newly discovered evidence exists that

establishes factual innocence. And the court, in order to grant the

petition for an evidentiary hearing, must determine that the newly

discovered evidence, when viewed with all the other evidence,

demonstrates factual innocence. Accordingly, section 402 requires a

27

Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465

(internal quotation marks omitted).

28

Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147 (internal

quotation marks omitted).

29

Carranza v. United States, 2011 UT 80, ¶ 8, 267 P.3d 912.

30

See UTAH CODE § 78B-9-402(1) (“A person . . . may petition the

district court . . . for a hearing to establish that the person is factually

innocent . . . .”).

31

Id. § 78B-9-402(2)(a). The newly discovered material evidence

must also “establish[] innocence” and be more than “impeachment

evidence” or “cumulative of evidence that was known.” Id. § 78B-9-

402(2)(a)(ii)–(iv).

32

Id. § 78B-9-402(2)(a)(v), -402(2)(b) (emphasis added).

15

BROWN v. STATE

Opinion of the Court

threshold showing of newly discovered evidence that a petitioner

must meet in order to receive an evidentiary hearing.

¶47 We note that at the petition stage, the court is in no position

to assess credibility. Section 402 requires the petitioner to assert

factual innocence under oath and to include “supporting affidavits

or other credible documents,” but beyond this requirement, the

petitioner need only allege newly discovered evidence that—“if

credible”—“establishes that the petitioner is factually innocent.”33

Thus, section 402 limits the court to the content of the petition and

requires it to assume the new evidence is credible.

¶48 We also note that, even at the petition stage, the plain

language of section 402 undercuts the State’s argument that newly

discovered evidence must be “the pivotal, transformative evidence”

in the court’s determination of factual innocence. Section 402

explicitly directs the court to view the new evidence “with all the

other evidence.”34 Nowhere does it state that the newly discovered

evidence alone must be determinative. Therefore, even section 402

contemplates that it will require a combination of new and old

evidence to establish factual innocence.

¶49 Once a petitioner makes the threshold showing of newly

discovered evidence and the court grants the petition for an

evidentiary hearing, the petitioner moves to the second stage of the

process, which is set forth in section 78B-9-404. Section 404 is entitled

“Hearing upon petition—Procedures—Court determination of

factual innocence.” It places the burden on the petitioner to

“establish the petitioner’s factual innocence by clear and convincing

evidence.”35 In determining whether the petitioner has met the

burden of establishing factual innocence, “the court shall consider, in

addition to the evidence presented at the hearing under this part, the

record of the original criminal case and at any postconviction

proceedings in the case.”36

¶50 Section 404 clearly contemplates that the court will consider

the full universe of evidence available in the case. It even provides

that “[t]he court may consider: (a) evidence that was suppressed or

33

Id. § 78B-9-402(2)(a)(i).

34

Id. § 78B-9-402(2)(a)(v).

35

Id. § 78B-9-404(1)(b).

36

Id. § 78B-9-404(3) (emphasis added).

16

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Opinion of the Court

would be suppressed at a criminal trial; and (b) hearsay evidence.”37

Importantly, Section 404 never uses the phrase “newly discovered

evidence.” Nor does it provide any direction on how much weight

to place on any one type of evidence. Again, no where does it state

that newly discovered evidence alone must be determinative.

Instead, the plain language of section 404 provides only one clear

directive: a court shall base its determination of factual innocence on

a consideration of “all the evidence”—old and new.38

¶51 The State argues, however, that section 404 merely

establishes what evidence is admissible at the factual innocence

hearing. It does not, the State contends, override the requirement in

section 402 that newly discovered evidence must establish factual

innocence. But section 404’s plain language indicates that the

legislature intended the section to provide direction to courts on

how to determine a claim of factual innocence, not just to set forth

what evidence is admissible. For example, it is only by looking to

section 404 that we discover the evidentiary standard and a party’s

burden for establishing a claim of factual innocence.39 Moreover, the

title of section 404 is “Court determination of factual innocence.”40

Therefore, section 404 governs a court’s ultimate determination of

factual innocence, not section 402.

¶52 Common sense supports our conclusions that section 404

controls a court’s ultimate determination of factual innocence and

that a court may base its determination on all the available evidence.

Indeed, it would be strange to direct a court to consider “all the

evidence” but then limit its decision to only the pivotal new

evidence, especially without giving the court any guidance on how

to determine whether a given piece of evidence is, in fact, pivotal.

There is no reason to direct a court to “consider” evidence if that

evidence cannot play a significant role in the court’s ultimate

37

Id. § 78B-9-404(2).

38

Id. § 78B-9-404(4).

39

See id. § 78B-9-404(1)(b), (4) (providing that “[t]he burden is

upon the petitioner to establish the petitioner’s factual innocence”

and directing the court to determine factual innocence by “clear and

convincing evidence”).

40

Id. § 78B-9-404.

17

BROWN v. STATE

Opinion of the Court

decision.41 Furthermore, it is not workable to require courts to

identify particular evidence as pivotal. A court could be faced with

two pieces of evidence: one developed at the original trial and a

second at the factual innocence hearing. Either one alone could be

meaningless, but both taken together could be significant. We

therefore decline the State’s invitation to require courts to base their

decisions exclusively on newly discovered pivotal or transformative

evidence.

¶53 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.42

But we are also confident that the high threshold showing of new

evidence in section 402, when strictly applied,43 will ensure that

newly discovered evidence plays a role in a court’s determination of

factual innocence under section 404.

¶54 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.

II. BECAUSE THE STATE FAILED TO PROPERLY CHALLENGE

THE POST-CONVICTION COURT’S FACTUAL FINDINGS,

WE AFFIRM THE COURT’S DETERMINATION OF

FACTUAL INNOCENCE

¶55 After the March 7 hearing, the post-conviction court made

two critical factual findings in reaching its ultimate determination of

41

See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 279 (1988)

(defining “consider” as “to think about carefully,” especially “with

regard to taking some action”).

42

Carranza, 2011 UT 80, ¶ 8; LPI Servs. v. McGee, 2009 UT 41, ¶ 11,

215 P.3d 135.

43

See supra ¶ 40 n.22.

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Opinion of the Court

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.”

¶56 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.

¶57 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.

¶58 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.

¶59 We have stated that “[s]tandards of review should allocate

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BROWN v. STATE

Opinion of the Court

discretion between the trial and appellate courts in a way that takes

account of the relative capabilities of each level of the court

system.”44 “[A]n appellate court reviews a trial court’s conclusions

of law for correctness because a single trial judge is in an inferior

position to determine what the legal content of [a legal concept]

should be.”45 Conversely, “[b]ecause a trial court is in a better

position to judg[e] credibility and resolv[e] evidentiary conflicts, an

appellate court reviews the trial court’s findings of fact for clear

error.”46

¶60 In this case, the post-conviction court made two findings that

were purely factual: (1) Lael was alive Saturday afternoon on

November 6, and (2) Ms. Brown firmly established her whereabouts

between Saturday afternoon and the remaining time the murder

could have occurred.47 Furthermore, the court reached these findings

only after judging credibility and resolving evidentiary conflicts. For

example, the court weighed Mr. Carlsen’s credibility, found that

Mr. Hall testified truthfully, and specifically considered “the manner

in which [Ms. Brown] testified and her demeanor on the witness

stand.” The court also discounted the testimony of Lael’s son, Mike,

due to admitted memory problems and placed less weight on

hearsay evidence offered by the State. And the court considered and

discounted the State’s evidence suggesting a time of death earlier

than 9:00 p.m. on Saturday, November 6. Because the court’s

findings are purely factual and based on credibility judgments and

resolutions of evidentiary conflicts, we apply the deferential clear

error standard on appeal.

¶61 Yet the State declines to undertake a clear error analysis on

this appeal “because [it] is not challenging any of the post-conviction

court’s factual findings.” [State’s Reply Brief, 16 (emphasis added).]

Thus, the State has explicitly acknowledged that it does not

44

State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (internal quotation

marks omitted).

45

Id. ¶ 20 (second alteration in original) (internal quotation marks

omitted).

46

Id. (second and third alterations in original) (internal quotation

marks omitted).

47

See State v. Pena, 869 P.2d 932, 935 (Utah 1994) (“Factual

questions are generally regarded as entailing the empirical, such as

things, events, actions, or conditions happening, existing, or taking

place, as well as the subjective, such as state of mind.”).

20

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Opinion of the Court

challenge any of the post-conviction court’s factual findings. Chief

among these are that (1) Lael was alive as of Saturday afternoon; and

(2) Ms. Brown firmly established her whereabouts during the period

in which Mr. Brown must have been murdered. While the State

admits these two central facts, it nevertheless argues that the

application of these facts to the legal standard for establishing

factual innocence constitutes a mixed question of fact and law.

¶62 Given this concession, the State’s position on this issue is

confusing. On the one hand, the State clearly concedes the post-

conviction court’s factual findings that Lael was alive Saturday

afternoon and that Ms. Brown firmly established her whereabouts

for the remaining time period during which the murder could have

occurred. But on the other hand, the State attacks the underlying

evidence on which the court relied in making these factual findings

by exhaustively listing other credible evidence that would allow a

juror to still find Ms. Brown guilty.48

¶63 In offering these two inconsistent positions, the State

appears to mistake findings of fact with evidence. We readily recognize

48

For example, the State points out that (1) “[n]one of the

waitresses who worked at Angie’s on that Saturday recalled seeing

Lael that day”; (2) “[t]he man that [Mr.] Hall allegedly saw with Lael

has never come forward to confirm that he was with Lael on that

Saturday afternoon”; (3) “Lael did not answer numerous phone calls

from his granddaughter and ex-wife on Saturday, even though his

ex-wife routinely called on Saturday mornings”; (4) “Lael’s truck

was in his driveway from at least 10:00 a.m. to 4:30 p.m”; (5) “Lael’s

neighbor . . . was outside during that time and never saw Lael come

or go or follow his usual practice of puttering around his yard”;

(6) “Lael never returned on Saturday to complete the plumbing

repairs, despite his promise to do so”; (7) Lael never picked up

Ms. Brown’s soup, so he would have had to step over it twice on his

way to and from Angie’s Restaurant if Mr. Hall’s testimony was

accurate; (8) it is still undisputed that Ms. Brown had access to Lael’s

house; (9) Ms. Brown now admits to forging Lael’s checks;

(10) Ms. Brown’s son’s testimony at trial that he saw Lael write a

check to his mother is now false; (11) there is evidence that Lael

discovered Ms. Brown’s forgeries before his death; (12) the missing

bank records from Lael’s house still implicate only Ms. Brown; and

(13) Ms. Brown still could have committed the murder later in the

day on Saturday, November 6. [State’s Brief, 48-54.]

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BROWN v. STATE

Opinion of the Court

the existence of evidence in this case that calls into question the post-

conviction court’s factual findings. And we agree with the State that

the court’s ultimate decision of factual innocence “is not the only

reasonable conclusion to be drawn from the evidence.” [State’s Brief,

49.] But in light of the State’s concession that the court’s factual

findings are accurate, the mere existence of contradictory, underlying

evidence is of no consequence. It is precisely because the court had to

judge credibility and resolve conflicting evidence that we now grant

deference to its factual findings. In our court system, district courts

are better positioned to make these findings.49 We therefore decline,

as an appellate court, to scrutinize the post-conviction court’s factual

findings where the State has explicitly acknowledged their accuracy.

¶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.”50 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.

¶65 The dissent criticizes our reliance on the State’s concession,

however, as overly broad and unfair.51 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.52 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

49

Levin, 2006 UT 50, ¶ 20.

50

UTAH CODE § 78B-9-401.5(2)(a) (defining factual innocence); see

also Greener v. Greener, 212 P.2d 194, 204 (Utah 1949) (stating that

clear and convincing evidence “carries with it, not only the power to

persuade the mind as to the probable truth or correctness of the fact

it purports to prove, but has the element of clinching such truth or

correctness”).

51

Infra ¶¶ 77–78.

52

Infra ¶¶ 94–95, 99.

22

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Opinion of the Court

not fall within the State’s concession.53 The dissent would therefore

review the post-conviction court’s factual findings under a clear

error standard and reverse.54 While the dissent presents an analysis

that is thoughtful and worthy of careful consideration, we

respectfully disagree with it for a number of reasons.

¶66 First, the way in which the State has briefed its case is wholly

consistent with its explicit concession that it is not challenging the

post-conviction court’s factual findings. It makes no attempt to meet

its burden on appeal to demonstrate that the factual

findings—whether “pure” or “hybrid”—are clearly erroneous.55 The

State instead openly insists that a clear error analysis is unnecessary,

which can only be true, of course, if the facts are not at issue.

Moreover, the State does not even purport to marshal the evidence.56

It merely, though exhaustively, lists the evidence it claims

contradicts the evidence relied on by the post-conviction court in

making its finding of factual innocence.57 But it makes no effort to

assume the role of devil’s advocate and marshal the evidence in

support of the court’s factual findings,58 which, again, is consistent

with its assertion that it is not challenging the court’s factual

findings.

¶67 This is not a case where a party is simply unaware of its

53

Infra ¶ 95.

54

Infra ¶ 119.

55

See In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989) (discuss-

ing a party’s burden when challenging a factual finding).

56

We stress that we do not “fault the State for a failure to mar-

shal” the evidence. Infra ¶ 101. We merely note that its failure to do

so is consistent with its position that it is not challenging the post-

conviction court’s factual findings on appeal.

57

Supra ¶ 62 & n.49.

58

See United Park City Mines Co. v. Stichting Mayflower Mountain

Fonds, 2006 UT 35, ¶ 26, 140 P.3d 1200. The dissent recommends that

we “abandon this principle” of requiring parties to assume the role

of devil’s advocate when marshaling the evidence. Infra ¶ 106. But

regardless of any merit that argument may have going forward, for

purposes of this case, our marshaling standard unquestionably

governs any challenge by the State of factual findings on appeal, and

the State is, of course, well aware of that requirement. [State’s Reply

Brief, 14.]

23

BROWN v. STATE

Opinion of the Court

burden on appeal. Indeed, the State repeatedly cites the correct

standard, including the duty to marshal the evidence, to us in its

briefing. [State’s Brief, 2; State’s Reply Brief, 13–14.] Whether or not

the State’s failure to argue clear error was grounded on a distinction

between “hybrid” and “pure” facts, it remains the case that the State,

based on its concession, failed to carry its burden on appeal.59 Thus,

we conclude that the overall context of the State’s briefing supports

59

See In re Estate of Bartell, 776 P.2d at 886 (stating that the court

must “rely heavily on the presumption of correctness that attends

[factual] findings” when a party fails to carry its burden to demon-

strate clear error). The dissent acknowledges that the State has failed

to present a clear error analysis. See infra ¶ 111 (“The State should . . .

have framed [its] argument in terms of the applicable standard of

appellate review. It should have asserted that there was ‘clear error’

in not concluding that Ms. Brown had failed to remove all ‘serious

or substantial doubt’ as to her factual innocence.”). It nevertheless

deems this a “rhetorical deficiency” and concludes that the State

“effectively challenges” the post-conviction court’s factual findings

“on that basis.” Infra ¶¶ 100, 108. The dissent thus characterizes the

State’s approach in a way the State itself has expressly rejected.

The State’s claim that the clear error standard does not apply on

appeal was in direct response to Ms. Brown’s application of the clear

error standard in her brief. [See Brown’s Brief, 42; State’s Reply Brief,

15.] Ms. Brown analyzed each of the post-conviction court’s factual

findings, including the two key findings regarding Lael’s time of

death and Ms. Brown’s whereabouts, using a clear error analysis.

[Brown’s Brief, 42–48.] In so doing, Ms. Brown explicitly pointed out

that the State had employed the wrong standard of review—a

“reasonable juror” standard—for challenging factual findings in its

opening brief. [Brown’s Brief, 47.] One would expect, therefore, that

if the State is indeed challenging the facts, as the dissent maintains

it is, it would have disputed Ms. Brown’s contention that it applied

the wrong standard of review. But instead, the State concedes in its

reply brief that it is not challenging the facts. [State’s Reply Brief, 16]

Thus, in attempting to excuse the State’s “rhetorical deficiency,” the

dissent ignores the explanation the State itself gives for its approach:

it means only to argue that the court erred in its application of the

factual innocence standard, even accepting the court’s factual

findings. [State’s Brief, 47–49]; see also Supra ¶ 56.

24

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Opinion of the Court

our decision in this case.60

60

We therefore disagree with the dissent that we are misconstru-

ing a “single”sentence in the State’s overall briefing. See infra ¶¶ 72,

79. As the dissent recognizes, the concession appears in a section of

the State’s reply brief in which it contests Ms. Brown’s application of

the clear error standard of review. Infra ¶ 89. The full paragraph in

which the State conceded the post-conviction court’s factual findings

reads as follows:

Applicable standard of review. [Ms. Brown] first

argues that the applicable standard of review is clear

error. But that standard applies only when a court

reviews purely factual questions. The clear error

standard does not apply in this case, because the State

is not challenging any of the post-conviction court’s

factual findings. Rather, the State challenges only the

court’s legal conclusions based on its factual findings.

[State’s Reply Brief, 15–16.] It is difficult to see how the State could

have stated more clearly that it is not challenging the underlying

factual findings in this case. And, as discussed above, the State

briefed its argument consistent with this concession by not engaging

in a clear error analysis.

We also disagree that the State’s arguments in its reply brief or

elsewhere diminish or clarify the scope of its concession. Infra

¶¶ 91–92. We openly recognize that the State presents us with

evidence that contradicts the post-conviction court’s factual findings.

See supra ¶¶ 62–63 & n.49. But we believe the dissent misapprehends

the State’s apparent tactic in doing so. The State is not—as it

concedes—seeking to overturn the court’s factual findings under a

clear error analysis. It instead attempts to show that, in light of the

contradictory evidence, the court erred in concluding that the factual

innocence standard had been met, even accepting the unchallenged

factual findings. [State’s Brief, 47–49.] This is because, according to

the State, “a reasonable juror” could disagree with the court, [State’s

Brief, 48], or the court’s decision “is not the only reasonable conclu-

sion” given the evidence, [State’s Brief, 49].

The “confusion” we expressed on this point earlier in this opinion,

supra ¶ 62, does not relate to the scope of the State’s concession, as

the dissent seems to suggest, see infra ¶ 88. Rather, we were simply

expressing confusion as to why the State would undertake such a

strategy. See supra ¶¶ 63–64. At this juncture in the process, it is not

(continued...)

25

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Opinion of the Court

¶68 Second, we disagree with the dissent’s construction of the

State’s concession as running only to so-called “pure”facts.61 Any

confusion as to the scope of the concession was cleared up by the

State itself when it stated, immediately after its concession, that it

“challenges only the court’s legal conclusions based on its factual

findings.” [State’s Reply Brief, 16 (emphasis added).] This statement

clearly concedes all factual findings, whether “pure” or “hybrid,” by

placing only the post-conviction court’s “legal conclusions” at issue

on appeal. Surely the State did not mistakenly assume the court’s

key factual findings as to the time of Lael’s death and Ms. Brown’s

whereabouts to be legal conclusions.62

¶69 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.63 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.64 Both

Mr. Hall and Ms. Brown testified for the first time at the post-

(...continued)

our role to determine what a reasonable juror would conclude as to

the facts or whether there are other reasonable factual conclusions

in light of the evidence. Our role is limited: we decide only whether

the court committed clear error in making the factual findings that

it made. Levin, 2006 UT 50, ¶ 20; see also Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 580–81 (1985).

61

Infra ¶ 98.

62

But see infra ¶ 90 (arguing that “[i]n context, it is impossible to

read [the State’s concession] fairly to encompass the ‘key’ determina-

tions of the timing of Mr. Brown’s death and the whereabouts of Ms.

Brown”).

63

Infra ¶ 119–28. But see In re Estate of Bartell, 776 P.2d at 886

(recognizing that “the burden of overturning factual findings is a

heavy one, reflective of the fact that we do not sit to retry cases

submitted on disputed facts” (emphasis added)).

64

Infra ¶¶ 89–90.

26

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Opinion of the Court

conviction hearings,65 and the court made specific credibility

findings as to each.66 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.67 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.68

65

Supra ¶¶ 21, 34.

66

Supra ¶¶ 27, 34.

67

Infra ¶¶ 126, 127. We do not mean to suggest that the court’s

credibility findings could not be found to be clearly erroneous if

properly challenged. But the State, as the dissent recognizes,

concedes their accuracy. Their accuracy is therefore not at issue in

this case.

68

See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 72–73, 99 P.3d

801 (stating that district court’s factual finding was not clearly

erroneous, even in light of “plausible evidence” to the contrary,

where it was based on credible evidence); see also Anderson, 470 U.S.

at 575 (noting that factual findings “based on determinations

regarding the credibility of witnesses” are afforded “even greater

deference . . . for only the trial judge can be aware of the variations

in demeanor and tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said”).

The dissent also argues that the post-conviction court clearly

erred, even accepting its credibility findings, because Ms. Brown’s

“account of her whereabouts . . . does not at all rule herself out as

Lael Brown’s murderer.” Infra ¶ 115. This is because “even according

to Ms. Brown’s own evidence, she was at the scene of the crime at a

time when the murder may have been committed.” Infra ¶ 114.

Even were we to reach this issue, which we do not, we think there

is a serious question as to whether the court clearly erred in this

regard. The evidence is not at all clear that Ms. Brown’s account of

her whereabouts placed her at the scene of the crime at a time the

(continued...)

27

BROWN v. STATE

Opinion of the Court

(...continued)

murder was committed. She certainly does admit, however, to

taking soup to Lael’s house on Saturday, November 6. According to

the court’s account of the record, she delivered the soup sometime

between 2:00 p.m. and 3:00 p.m. Mr. Hall originally stated that he

saw Lael alive at 2:30 p.m. but then testified at the factual innocence

hearing that it was closer to 1:00 p.m. Thus, depending on how we

view the evidence, there is at least a very narrow window, 2:30 p.m.

to 3:00 p.m., and at most an hour window, 2:00 p.m. to 3:00 p.m.,

during which Ms. Brown placed herself at Lael’s house at a time

when Lael might possibly have been there. We therefore agree with

the dissent that there is potentially some room to doubt the court’s

finding that Ms. Brown firmly established her whereabouts, even

accepting the court’s credibility findings.

But the clear and convincing evidence standard, by its very

nature, tolerates some doubt. We have stated that “a burden of proof

is an expression of society’s tolerance for error in a particular realm

of the law.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 21, 270

P.3d 430. Clear and convincing evidence is an “intermediate

standard of proof” that “implies something more than the usual

requirement of a preponderance . . . of the evidence; and something

less than proof beyond a reasonable doubt.” Id. ¶¶ 21, 24 (internal

quotation marks omitted). We have characterized this standard as

requiring the “existence of facts that make a conclusion very highly

probable.” Id. ¶ 24 (internal quotation marks omitted).

Under this standard, and given the unchallenged credibility

findings, it is not a foregone conclusion that the court clearly erred

in determining that Ms. Brown established her whereabouts. The

State has never presented any evidence that the murder occurred

during the relevant hour of 2:00 p.m. to 3:00 p.m. Further, the court

specifically recognized that Ms. Brown “may have been alone during

a portion of the afternoon on Saturday” but discounted this fact

because “evidence was presented suggesting that Lael was not killed

during this time frame.” Specifically, Lael’s neighbor, Kimberly

Standridge, testified at trial that she did not hear any gunshots

Saturday afternoon and that, if there were any, she would have

heard them because she was working in her yard during the relevant

time. The court also relied on Dr. Grey’s time of death estimate

based on the physical evidence, which “strongly suggest[ed] that

Lael was likely killed around 9:00 p.m.,” not Saturday afternoon. In

(continued...)

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JUSTICE LEE, dissenting

¶70 Regardless of whether Ms. Brown’s alibi is the “weakest [the

dissent has] heard of,”69 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.70 We are

not deciding this case in the first instance and should not presume

that we are more capable of analyzing credibility.71 Our role as an

appellate court is to assess whether there has been clear error as to

the post-conviction court’s factual findings.72 We have been

presented with no such argument and therefore affirm.

CONCLUSION

¶71 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. Also,

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.

____________

JUSTICE LEE, dissenting:

¶72 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

(...continued)

our view, given this contrary evidence, the question is still open as

to whether the court clearly erred in discounting the doubt identified

by the dissent.

69

Infra ¶ 75.

70

Supra ¶ 60.

71

See, e.g., Anderson, 470 U.S. at 574 (“The trial judge’s major role

is the determination of fact, and with experience in fulfilling that role

comes expertise.”).

72

Levin, 2006 UT 50, ¶ 20; see also Anderson, 470 U.S. at 580–81

(recognizing the limited role of appellate courts when reviewing

factual findings under a clear error standard).

29

BROWN v. STATE

JUSTICE LEE, dissenting

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.

¶73 I can appreciate a sense of concern for the plight of

Ms. Brown. She served seventeen years for a murder that she may

not have committed. She has since been released from prison for

almost two years on a district judge’s determination that she was

factually innocent. And her case on appeal presents the gut-

wrenching question whether to uphold her release or reinstate a

conviction that could result in her return to prison.

¶74 I acknowledge some degree of doubt as to Debra Brown’s

guilt, and some hesitation regarding the prudence of a decision that

could result in her return to prison. But the law yields no relevance

to my human sympathy for Ms. Brown or my personal doubts about

her guilt, much less for any free-ranging evaluation on my part of

the prudence of her incarceration status.73 We are tasked under the

73

It bears emphasizing that the decision before us is not whether

to return Ms. Brown to prison; it is only whether to reverse a decision

vacating her conviction. And upon such reversal, another body of

government would still retain the discretionary authority to override

any effect of reinstating Ms. Brown’s conviction—to pardon

Ms. Brown or commute her sentence to time served. Under our law,

the Board of Pardons would retain that discretion. See UTAH CODE

§ 77-27-5(1)(a) (“The Board of Pardons and Parole shall determine by

majority decision when and under what conditions, subject to this

chapter and other laws of the state, persons committed to serve

sentences in . . . all felony cases except treason or impeachment . . .

may be released upon parole, pardoned, ordered to pay restitution,

or have their fines, forfeitures, or restitution remitted, or their

sentences commuted or terminated.”).

If the court were to follow the law as I see it and reinstate

Ms. Brown’s conviction, there is no guarantee she would be returned

to prison. It is also possible that she would be pardoned or that her

sentence would be commuted. Whatever the likelihood of that

eventuality, we must not confuse our authority with that of the Board

of Pardons. That entity is charged by law to consider “when and

under what conditions” individuals convicted of felonies “may be

released upon parole, pardoned . . . or [have] their sentences

(continued...)

30

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JUSTICE LEE, dissenting

law to consider a much narrower question—whether the district

court erred in finding her “factually innocent” under the governing

statute. And that question, for me, has a straightforward answer.

¶75 I find clear error in the district court’s determination that Ms.

Brown established her factual innocence by “clear and convincing”

proof of an alibi. As far as alibis go, this is the weakest I have heard

of. Ms. Brown’s whereabouts are established only by her own self-

interested testimony and by that of her son and boyfriend. And even

accepting Ms. Brown’s evidence and disregarding the State’s

contrary proof, Ms. Brown has not established an alibi in the sense

of an indication that she could not have been at the scene of the

crime at the time it was committed; quite the contrary, Ms. Brown’s

own evidence places her at the scene of the crime (Lael Brown’s house)

at the time she claims it was committed (Saturday afternoon). This is the

opposite of an alibi. Ms. Brown did not establish her innocence

based on the fact that she was “in a location other than the scene of

the crime at the relevant time,” BLACK’S LAW DICTIONARY 84 (9th ed.

2009) (defining “alibi”); she demonstrated the opposite—that she

was present at the scene of the crime at the time of the murder.

¶76 Granted, Ms. Brown denied that she committed the murder

and insisted that she was visiting Mr. Brown to deliver him chicken

soup. But that is not an alibi; nor is it the kind of demonstration

(much less a “clear and convincing” one) required by statute—that

Ms. Brown “did not engage in the conduct” for which she was

convicted. Instead of an alibi, Ms. Brown’s case was an attempt at a

do-over on the trial in which she was convicted. That is not the basis

for a factual innocence determination under our law. We cannot

affirm that decision without distorting the law of factual innocence.

¶77 The majority seems to acknowledge as much in

“recogniz[ing] the existence of evidence . . . that calls into question

the post-conviction court’s factual findings,” supra ¶ 63, and in

resolving the case instead on the basis of a supposed concession in

the State’s brief. I dissent on that point too. I see no reasonable way

to read the State’s briefs to concede away the whole case through an

isolated statement in its reply brief. In context, the State’s indication

that it was not challenging post-conviction court’s “factual” findings

is a narrow concession. If we read that concession fairly in context,

it would not encompass the two critical determinations identified by

(...continued)

commuted or terminated,” id.; this court must simply follow the law.

31

BROWN v. STATE

JUSTICE LEE, dissenting

the court—that (a) Lael Brown was alive Saturday afternoon on

November 6, 1993, and (b) Ms. Brown’s whereabouts from Saturday

afternoon on November 6 to the early morning hours of Sunday,

November 7 were firmly established. In fact, the State contested both

points at length throughout its briefs, and clarified at oral argument

that it was not conceding them (a point acknowledged even by

counsel for Ms. Brown). In any event, at a minimum it is clear that

the State at least challenged the probity of Ms. Brown’s alibi (even

assuming a concession as to her whereabouts and the time of Lael

Brown’s death).

¶78 A fair reading of the briefing thus seems to me to keep the

key issues properly in play, and accordingly to require us to address

the merits of the case. I would reach the merits, and I would reverse.

I

¶79 Unlike the majority, I do not read the State’s demurrer of any

challenge to the “post-conviction court’s factual findings” as an

effective waiver of its entire case. First, it seems to me that the

referenced “factual findings” do not encompass the questions of

whether Lael Brown was alive on Saturday afternoon or whether

Debra Brown established her whereabouts through Sunday

morning. Rather, in light of the context of the overall briefing in this

case, of the paragraph in which the concession appears in the reply

brief, and of the parties’ statements at oral argument, it strikes me as

clear that the State was not conceding these determinations (which

the State consistently, if a bit oddly, referred to as “hybrid” findings

and not “pure factual” findings)—and indeed was contesting them

hotly. Thus, in this context, I would read the State’s briefing as

conceding only what it denominated “pure” findings of fact—those

not implicating any reweighing of evidence presented at the original

trial.

¶80 Second, even assuming acceptance of the time of Lael

Brown’s death and of Debra Brown’s accounts of her own

whereabouts, there is no doubt that the State has not conceded the

key question in the case on the merits—which is whether Ms. Brown

carried her burden of proving her factual innocence by clear and

convincing evidence. At a bare minimum, the State has clearly

challenged the viability of Ms. Brown’s alibi. Thus, even accepting

that Mr. Brown was alive on Saturday afternoon and that Ms. Brown

accounted for her whereabouts until Sunday morning, the State has

contended that Ms. Brown still has no clear and convincing

alibi—because, after all, she placed herself at the scene of the crime

32

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JUSTICE LEE, dissenting

at a time when the murder may have happened.

A

¶81 Any suggestion that the State was not contesting the timing

of Lael Brown’s death or Debra Brown’s account of her whereabouts

is impossible to square with the overall substance of the State’s

briefing, with the specific context of the State’s concession in its

reply brief, and with both parties’ statements at oral argument on

appeal. The contrary grounds articulated by the majority, moreover,

are unpersuasive.

1

¶82 The State’s challenges to the determination that Lael Brown

was alive on Saturday afternoon were extensive. In its opening brief,

the State argued that even though Hall’s testimony indicated he had

seen Lael Brown alive on Saturday afternoon, there was substantial

evidence to the contrary, such that a “juror could reasonably

conclude that Hall was mistaken about seeing Lael Brown on that

afternoon of Saturday, 6 November 1993.” [State’s Brief, 48–49.]

¶83 The State enumerated extensive grounds supporting this

conclusion. Those grounds included the following: (1) “[n]one of the

waitresses who worked at Angie’s on that Saturday recalled seeing

Lael that day” even though “Lael was not just a regular customer”

and “visited Angie’s like clockwork”; (2) “Lael did not answer

numerous phone calls from his granddaughter and Clara on

Saturday, even though Clara routinely called on Saturday

mornings”; (3) “Lael’s truck was in his driveway from at least 10

a.m. to 4:30 p.m.”; (4) “Lael never returned on Saturday to complete

the plumbing repairs [he had started the night before], despite his

promise to do so”; (5) “[t]he man that Hall allegedly saw with Lael

has never come forward to confirm that he was with Lael on that

Saturday afternoon”; (6) “Lael’s neighbor . . . was outside during

that time and never saw Lael come or go or follow his usual practice

of puttering around his yard”; and (7) “Lael never picked up the

soup that [Ms. Brown] said she left on his porch around 2 p.m.” even

though he would have had to “step over the soup at least

once—when returning from Angie’s.”[State’s Brief, 48–49; see also

30–31, 35–36.] The State’s brief noted that the “post-conviction court

dismissed the above evidence in a footnote by positing that ‘other

plausible explanations, including that Lael was simply not feeling

well, could also easily account for these facts,’” but explained that

such a “theory . . . does not explain why he nevertheless felt well

enough to go to Angie’s in the earlier afternoon.” Thus, the State

33

BROWN v. STATE

JUSTICE LEE, dissenting

argued, even if the “post-conviction court’s conclusion [was] a

reasonable [one], it [was] not the only reasonable conclusion to be

drawn from the evidence.” [State’s Brief, 49.]

¶84 The State’s challenges to Ms. Brown’s whereabouts were also

extensive. In several places in its opening brief, the State identified

numerous grounds challenging Ms. Brown’s evidence, [State’s Brief,

30–31, 35–36, 53–54] such as its argument that “two independent

witnesses contradicted [Ms. Brown’s] account that she was at her

son’s basketball game from 10:45 a.m. to 12:15 p.m.” [State’s Brief,

53.] The State’s opening brief summarized: “The evidence thus still

supports a reasonable conclusion that [Ms. Brown] had the

opportunity to murder Lael, notwithstanding [Delwin] Hall’s . . .

testimony.” [State’s Brief, 52–54.]

¶85 Elsewhere, the State notes that even if Hall’s testimony is

accepted at face value, “it still does not demonstrate [Ms. Brown’s]

factual innocence” because “[g]iven the substantial evidence that

incriminated [her] a reasonable juror could still find that she

murdered Lael sometime after Hall allegedly saw him.” [State’s

Brief, 52.] Thus, the State explained, “[a] reasonable juror could . . .

disagree with the post-conviction court’s conclusion ‘that [Ms.

Brown’s] whereabouts from Saturday afternoon on November 6th

to the early morning hours of Sunday, November 7th have been

firmly established.’” [State’s Brief, 52–54.]

¶86 In light of the foregoing, the State went on to summarize

additional evidence that might cause a juror to doubt the post-

conviction court’s conclusion. The State noted, for example, that it

was Ms. Brown’s boyfriend and son who “corroborated parts of

[her] account of her whereabouts,” and that because both had close

relationships to Ms. Brown “both had a motive to lie for her.”

[State’s Brief, 53.] Moreover, the State indicated that it is significant

that “Buttars [Ms. Brown’s son]—who perjured himself at

trial—provided the only corroboration of her claim that she arrived

home shortly after midnight on Sunday morning,” [State’s Reply

Brief, 1], because “[a]ccording to the medical examiner, [Ms. Brown]

could have killed Lael anytime before 3 a.m. Sunday morning,” such

that “even if she did not murder Lael early Saturday morning, a

reasonable juror could still find that she murdered him late Saturday

night or early Sunday morning.” [State’s Brief, 52–54.]

¶87 The above leaves no question that the State was

challenging—and not conceding—the two “critical” factual

determinations identified by the court, supra ¶ 55, and of course the

34

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JUSTICE LEE, dissenting

ultimate determination of Ms. Brown’s factual innocence. Yet

instead of crediting the substance of the State’s arguments, the

majority deems them waived by a single sentence in the State’s reply

brief—the one indicating that the State was not challenging the

district court’s “factual” determinations. The court’s inference is

more than a stretch. In the face of extensive factual arguments in the

State’s briefing, we should be loath to conclude that the State

abandoned the essence of its case in one sentence of its reply brief.

2

¶88 The majority acknowledges an “inconsisten[cy]” between

the State’s “concession” that it contests no factual issues and its

arguments “attack[ing] the underlying evidence on which the court

relied in making these factual findings.” Supra ¶¶ 62–63. Any

apparent inconsistency, however, disappears upon consideration of

the broader context of the briefing on appeal. That context reveals

that the State was not at all conceding the “key” determinations

discussed by the majority (which the State denominated as “hybrid”

determinations), but was instead just waiving any objection to the

district court’s evaluation of issues such as witness credibility

(which the State referred to as “pure” factual findings).

¶89 The concession in question appears in a section of the reply

brief in which the State is addressing the applicable standard of

review. In acknowledging that “clear error” is the standard that

applies to factual determinations, the State sought to distinguish

“pure” and “hybrid” questions of fact, insisting that the “clear error”

standard “applies only when a court reviews purely factual

questions.” [State’s Reply Brief, 15–16 (emphasis added).] Because

the State’s briefing does not challenge any factual findings

denominated by the State as “pure” (such as credibility of witnesses

at the factual innocence hearing), it was thus able to insist that the

clear error standard was inapplicable. And that was the precise

context of the concession given such a broad reading by the

majority. In the sentence immediately following the distinction

between “pure” and “hybrid” questions of fact, the State indicates

that “[t]he clear error standard does not apply in this case because the

State is not challenging any of the post-conviction court’s factual

findings.” [State’s Reply Brief, 16.]

¶90 In context, it is impossible to read this sentence fairly to

encompass the “key” determinations of the timing of Mr. Brown’s

death and the whereabouts of Ms. Brown. The distinction that

preceded it had just clarified that the State’s case on appeal was all

35

BROWN v. STATE

JUSTICE LEE, dissenting

about so-called “hybrid” questions (those implicating reweighing of

evidence presented at the initial trial, such as the timing of

Mr. Brown’s death and the whereabouts of Ms. Brown) and not at all

about “pure” questions (those not implicating reweighing of

evidence presented at trial).

¶91 The headings and content of the reply brief confirm this

reading. While the concession appears in a section captioned

“Applicable standard of review,” [State’s Reply Brief, 15–18], the

brief includes a separate section challenging the “key”

determinations supposedly conceded by the State in a section

captioned “Evidence at the reopened hearing.” [State’s Reply Brief,

18–22.] And the content of this subsection makes clear that the

State’s earlier “concession” does not cover these two determinations.

¶92 In discussing the conclusion that Lael was alive on Saturday

afternoon, the State’s reply brief notes that the “post-conviction

court’s determination” on that score “hinged entirely on Del Hall’s

testimony,” while asserting that “Hall’s testimony did not clearly

and convincingly establish [Ms. Brown’s] factual innocence, because

substantial evidence, detailed in the State’s Opening Brief,

contradicted Hall’s assertion that he saw Lael at Angie’s on Saturday

afternoon,” such that ”a reasonable juror could have easily found

that Hall was mistaken about seeing Lael at Angie’s.” [State’s Reply

Brief, 19.] Similarly, in addressing the argument that Ms. Brown’s

whereabouts had been adequately established, the State notes that

“the only evidence of her whereabouts came from herself, her

boyfriend—Brent Skabelund, and her son—Ryan Buttars. Both

Skabelund and Buttars had a motive to lie for [her]. Indeed Buttars

perjured himself for [Ms. Brown] by falsely testifying at trial that he

saw Lael write a $1000 check to [her] that [she] now admits she

forged.” [State’s Reply Brief, 20.]

¶93 Thus, the context of the “concession” forecloses the broad

reading that the majority gives it. The State was not at all rescinding

the essence of its case; it was simply positing a difference between

the issues it was pressing (“hybrid”) and those it was not (“pure”

questions of fact).

3

¶94 Any doubt on this score was completely resolved at oral

argument in this court. There, in response to the court’s questions

about the scope of the State’s concession, counsel explained that the

State meant only to waive any challenge to the district court’s

“pure” factual determinations—which it viewed as encompassing

36

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JUSTICE LEE, dissenting

only those determinations made by the trial court based solely on

evidence it heard directly. Oral Argument, September 4, 2012, at

5:46–6:44, 13:28–13:51. As the State explained, such findings would

include a determination that a particular witness (e.g., Del Hall) was

credible. Oral Argument, September 4, 2012 at 7:59–8:17.

¶95 The State proceeded to clarify that it was, of course,

challenging “hybrid” factual determinations, which in its view

depended on re-weighing of evidence presented in the prior trial.

Oral Argument, September 4, 2012, at 6:20–6:42, 6:57–7:06;

14:25–14:30, 15:49–16:15. In this case, hybrid findings were expressly

explained to include the district court’s determinations that (1) Lael

Brown was alive Saturday afternoon and (2) Ms. Brown had firmly

established her whereabouts for all periods during which the

murder might have occurred. Oral Argument, September 4, 2012, at

5:46–6:42, 7:31–7:58, 13:28–13:52, 14:25–14:33.

¶96 Upon direct questioning, the State’s counsel emphasized that

the State was challenging these findings. When asked whether the

State was “challenging those [two] subsidiary determinations by the

district court,” counsel replied that “[w]e are saying they are

incorrect and are not pure factual findings.” Oral Argument,

September 4, 2012 at 7:07–7:40; see also id. at 13:28–13:51 (reaffirming

that the State was challenging these findings).

¶97 Counsel for Ms. Brown indicated the same understanding.

When asked specifically whether the State was conceding the

“determination with respect to whether Lael Brown was alive

during the afternoon,” Ms. Brown’s counsel candidly indicated that

“they are not conceding that point at all. I think they are challenging

that factual determination by the district court.” Oral Argument,

September 4, 2012, at 21:56–23:10. Similarly, when asked whether he

believed the State had conceded the determination that Ms. Brown

had adequately accounted for her whereabouts, her counsel said

“they don’t concede that.” Oral Argument, September 4, 2012, at

21:56–23:10.

¶98 Thus, the context of the State’s briefing made its reply brief

concession clear to both sides. Everyone understood that in context,

the State intended only to waive objection to what it characterized

as “pure” findings of fact. Everyone understood that the matters

argued at length in the State’s brief—regarding the timing of

Mr. Brown’s death and the whereabouts of Ms. Brown up until

then—were matters pressed on appeal to this court.

37

BROWN v. STATE

JUSTICE LEE, dissenting

¶99 This holds regardless of the viability of the State’s distinction

between “hybrid” and “pure” factual findings. I agree with the

majority’s rejection of that distinction. Empirical questions are

questions of fact, see Manzanares v. Byington (In re Adoption of Baby

B.), 2012 UT 35, ¶ 40, __ P.3d __, and all such questions are subject

to review for clear error. I see no room in our law, in other words,

for any distinction between “hybrid” and “pure” questions of fact.74

But the question before us is not whether to accept the State’s

proposed distinction. It is how to construe the concession in its reply

brief—the sentence indicating that it was not “challenging any of the

post-conviction court’s factual findings.” And in light of the State’s

proposed distinction—as set forth in the briefs, and as understood

by both sides at oral argument—there is no question as to what the

State meant when it waived any challenge to the lower court’s

findings of fact. It used that term in a narrow, limited sense—a sense

that avoids the “inconsistency” acknowledged by the court and that

avoids the puzzling inference of an intent by the State to stipulate

away the entirety of its case on appeal.

4

¶100 Notwithstanding the above, the majority still deems the

State to have forfeited any effective challenge to the district court’s

factual innocence determination. It roots that conclusion in part in

“the way in which the State has briefed its case” on

appeal—specifically, in its purported failure to “marshal the

evidence” supporting the district court’s findings and in not

74

That is not to say that the distinction is without logical

foundation. One of the rationales for granting deference to factual

determinations—that the court has a “comparative advantage in its

firsthand access to factual evidence,” see Manzanares v. Byington (In

re Adoption of Baby B.), 2012 UT 35, ¶ 40, __ P.3d__ —is not implicated

in a case where the court is making its findings, in part, based on a

cold record from a prior proceeding. Oral Argument, September 4,

2012, at 15:49–16:15. But in my view the State’s proposed distinction

still fails under our relevant case law, which suggests an additional

rationale for reviewing factual determinations deferentially—that

“there is no particular benefit in establishing settled appellate

precedent” on case-specific factual questions. See In re Adoption of

Baby B., 2012 UT 35, ¶ 40. This second rationale is equally applicable

to both “pure” and “hybrid” factual determinations, and thus

forecloses the State’s proposed distinction.

38

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JUSTICE LEE, dissenting

pressing its challenge to the district court’s decision in terms of a

“clear error analysis.” Supra ¶ 66. I read the State’s briefing

differently. I think the State has effectively marshaled the contrary

evidence in the record. And although the State has not employed the

terminology of “clear error,” it seems to me that the substance of its

argument effectively challenges the district court’s decision on that

basis. In any event, in my view any rhetorical deficiency in the

briefing is understandable and ought to be overlooked in light of the

complex, first-impression nature of the issues presented for our

review.

(a)

¶101 We should not fault the State for a failure to marshal

because Ms. Brown never asked us to do so, and the State

accordingly has had no opportunity to explain itself. Absent such

explanation, we are in no position to assess the degree to which the

State has carried any burden to marshal. Indeed, a sua sponte

marshaling dismissal would turn the rationale for the marshaling

rule on its head, as an independent assessment of a party’s

compliance with the rule would require exactly what the rule is

designed to prevent—an investment of the court’s time in digging

through the record. See Chen v. Stewart, 2004 UT 82, ¶ 79, 100 P.3d

1177 (citing judicial economy considerations in support of the

marshaling rule).

¶102 Having done just that, I would conclude that the State’s

briefs are sufficient. They appear to me to effectively comply with

our marshaling rule by presenting substantial discussion and

meaningful analysis of the evidence supporting each of the findings

at issue on appeal.

(I)

¶103 In disputing that Lael was alive on Saturday afternoon, see

supra ¶¶ 82–83, the State’s opening brief extensively discusses the

evidence supporting the trial court’s determination that he was. This

includes discussion and explanation of the following evidence:

(1) the “medical examiner testified that the physical findings ‘were

most consistent or most typical of a time of death around 9 p.m. on

Saturday” and that “Lael likely died around 9:15 p.m. on Saturday,

6 November 1993, and no later than 3 a.m. on Sunday, 7 November”;

[State’s Brief, 20.] (2) Standridge, Lael Brown’s neighbor, was

painting outside her home “between 10 a.m. and 4:30 p.m. that

Saturday” and “did not hear any gunshots” even though she “could

hear Lael’s phone ringing”; [State’s Brief, 7.] (3) another neighbor,

39

BROWN v. STATE

JUSTICE LEE, dissenting

Paulette Nyman, now believed “she heard the shots on the same day

that she saw police activity at Lael’s home, which would have been

Sunday”; [State’s Brief, 21.] (4) the police had received tips from two

people—Delwin Hall and an unnamed secretary at Cache Valley

insurance—who said they saw Lael on Saturday afternoon, and the

police may have disregarded these tips; [State’s Brief, 19, 25.] (5) an

officer had testified at the evidentiary hearing that he “vaguely

recalled one of Lael’s neighbors telling him that she heard shots on

Saturday night”; [State’s Brief, 21.] (6) “[a] few days after the

murder, Hall told police . . . he had seen Lael having coffee at

Angie’s on Saturday” and gave a written statement to a police officer

stating that he was a “friend/coffee drinking buddy of Lael’s” and

that he saw Lael “Saturday, 11-6-93 at approx. 1430 hours in

Angie[‘]s,” a time he was “sure of . . . because he was stopping at

Angie’s before going to work at Albertsons at 1500 hours”; [State’s

Brief, 25–27.] (7) Ms. Brown’s counsel “called Delwin Hall to testify

about his tip to police” at the PCRA hearing and he continued to

maintain—at the PCRA hearing—that “at the time [he] was quite

sure that it was on a Saturday that [he] saw him”;75 [State’s Brief,

25–27.] (8) Delwin Hall did not know and had never spoken to Ms.

75

The State notes that “[t]he court’s ruling hinged on Hall’s

testimony” and that “the significance of the evidence provided by

Hall cannot be overstated” because it provided “direct evidence that

Lael was alive Saturday afternoon” in contrast to the “circumstantial

evidence at trial that Lael was killed Saturday morning.”[State’s Brief,

30.] The State also asserts:

The court found that Hall was credible and “not

mistaken when he stated that he saw Lael at Angie’s

Restaurant during the early afternoon hours on

Saturday, November 6th.” The court noted that Hall

gave his statement to Detective Ridler less than four

days after Hall saw Lael at Angie’s and “there were no

intervening weekends to cause confusion.” The court

also found it significant that Hall told Detective Ridler

he saw Lael on “Friday night as well as Saturday

afternoon.” The court noted that Hall had “a high

degree of certainty” about his testimony and no

evidence suggested that Hall was easily confused

about dates or had short-term memory problems.

[State’s Brief, 30.]

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JUSTICE LEE, dissenting

Brown; [State’s Brief, 25–27.] (9) Terry Carlsen, who knew Lael and

said he was Lael’s “good friend[]” testified he was “certain” “that on

Saturday he saw Lael and Mike Brown [Lael’s son] at Angie’s

around 7:15 p.m.,” where they stayed for a “half hour and left

around 7:45 p.m.” and that “Carlsen said he learned of Lael’s death

on Sunday and was surprised to think that he had just seen Lael the

night before”; [State’s Brief, 27.] (10) even though Mike Brown,

Lael’s son, testified he was not with his father at any time on

Saturday, “he had memory problems during 1993-1994 from

alcoholism”; [State’s Brief, 27–28.] (11) one waitress, Holly Crockett,

who had worked from 3 to 11 p.m. on Saturday, November 6

testified that “she thought she saw Lael on Saturday night”; (12)

none of the statements given by Angie’s waitresses—indicating that

they had not seen Lael on Saturday—were inconsistent with Hall’s

testimony; [State’s Brief, 31–32.] and (13) Lael Brown may have not

been feeling well on Saturday, leading him to “not have kept his

morning coffee ritual, answered his ex-wife’s and granddaughter’s

telephone calls, worked in his yard, driven his truck, kept his

promised appointment to complete the plumbing repairs, or picked

up [Ms. Brown’s] soup from the porch.” [State’s Brief, 32.]

(ii)

¶104 Similarly, in arguing that Ms. Brown could not adequately

account for her whereabouts during all times when the murder

might have occurred, supra ¶¶ 84–86, the State presented substantial

discussion and explanation of evidence that supported the trial

court’s determination that she could. This included the following

evidence: (1) Ms. Brown had explained her whereabouts for all time

periods during which the murder might have occurred;76 [State’s

76

Moreover, the State’s brief actually provides [Ms. Brown’s]

account of her whereabouts during all relevant times. This

substantial discussion notes:

At the evidentiary hearing, [Ms. Brown] testified that on

Saturday morning, she left Skabelund’s home around 6

or 7 a.m., went home, bathed, and then went to the store

to buy ingredients to make soup for Lael and her

daughter, who was also sick. She testified that her son

Ryan Buttars saw her sometime that morning. Ryan

testified at trial that he could not remember when he

awoke Saturday morning, but ‘it was kind of late’ and

(continued...)

41

BROWN v. STATE

JUSTICE LEE, dissenting

Brief, 21–23.] (2) Standridge, Lael’s neighbor, was painting outside

her home “between 10 a.m. and 4:30 p.m. that Saturday” but never

heard any gunshots, even though she heard Lael’s phone ringing

several times during that period; [State’s Brief, 7.] (3) Paulette

(...continued)

his mother was there when he awoke. Consistent with

the trial evidence, [Ms. Brown] said that Clara Brown

called her around 9:55 a.m. on Saturday morning after

she could not reach Lael by phone. They talked for about

twenty-seven minutes. Clara asked [Ms. Brown] to check

on Lael and call her back if he was sick. Skabelund

arrived at [Ms. Brown’s] home while she was talking to

Clara. [Ms. Brown] testified that she and Skabelund left

around 10:40 or 10:45 a.m. to attend her son’s basketball

game. [She] and Skabelund testified that they stayed for

the whole game. [She] did not say when the game

ended, but Skabelund testified at trial that they left the

game at 12:15 p.m. . . . [Ms. Brown] said that after the

game, she and Skabelund had lunch at a drive-in and

Skabelund took her home where she slept for a while.

She said she delivered the soup to Lael, and possibly her

daughter, between 2 and 3 p.m. [Ms. Brown] claimed

that although Lael’s truck was there, he did not answer

when she knocked. [She] said she wrote Lael a note

which she left with the soup on his porch. She said she

did not use her key to take the soup in because she

thought that Lael might be sleeping. She also said she

wanted to avoid talking with Lael because he could talk

for a long time. She did not check on Lael, even though

she had told Clara that she would. Rather, [Ms. Brown]

returned home. Around 4:30 p.m., [Ms. Brown] and

Skabelund went grocery shopping, then had dinner at

[Ms. Brown’s], and later watched a movie at

Skabelund’s. [Ms. Brown] testified that she left

Skabelund around 10 or 11 p.m. and went back to her

house where she slept. She believed that her sons were

still awake when she arrived home. At trial, Skabelund

testified that [Ms. Brown] left his home around midnight

Saturday night. Her son Ryan testified at trial that she

returned home ‘after midnight’ on Sunday, November

7.

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JUSTICE LEE, dissenting

Nyman, another neighbor, who had originally told police that she

heard shots on Saturday, said she may have actually heard the shots

on Sunday morning; [State’s Brief, 5.] (4) Ms. Brown had taken and

passed a polygraph in which she was asked whether she had killed

Lael; [State’s Brief, 20.] (5) Ms. Brown “presented police tip sheets in

which people near Lael’s home reported hearing gunshots at times

other than around 7 a.m. on Saturday, November 6th”; [State’s Brief,

21.] (6) in a direct appeal from her conviction, this court stated that

Ms. Brown “could account for her whereabouts for the entire

weekend except for early Saturday morning; [State’s Brief, 32–33.]

(7) the trial court believed that “no evidence was presented to

suggest that [Ms. Brown’s] account of [her] whereabouts [was]

inaccurate” and although she may have been alone at times “no

evidence [was] ever . . . presented establishing that Lael was killed

during the time period she was by herself”; [State’s Brief, 33.] and

(8) Ms. Brown had testified she returned to Lael’s house on Sunday,

found the chicken soup on the porch in the “identical” spot and,

upon discovering that Lael was cold, “ran from the house yelling for

help” before “return[ing] to the house and call[ing] 911.”[State’s

Brief, 9.]

(b)

¶105 The majority’s objection to the above is its conclusion that

it is merely a “list” of “evidence relied on by the post-conviction

court” that does not “assume the role of devil’s advocate.” Supra

¶ 66. Because the latter role is one the court deems essential, it finds

the State’s briefing “consistent” with the inference that it is “not

challenging the court’s factual findings.” Supra ¶ 66.

¶106 Both the premise and the ensuing inference strike me as

problematic. As for the premise (that marshaling requires devil’s

advocacy), I see nothing in our rule that requires a lawyer to

abandon his usual role of zealous advocacy. See UTAH R. PROF’L

CONDUCT 1.3, cmt. [1]. And I confess that I have no idea what the

notion of devil’s advocacy entails in practice. We have sometimes

said that it requires counsel to “temporarily remove [their] own

prejudices and fully embrace the adversary’s position,” Chen, 2004

UT 82, ¶ 78 (internal quotation marks omitted), but I see no way to

apply that standard in a predictable, judicially-manageable way.

Given that it finds no basis in our rule, and in light of the significant

consequences at stake (dismissal without reaching the merits), I

43

BROWN v. STATE

JUSTICE LEE, dissenting

would abandon this principle. It is a trap for the unwary, and a tool

for arbitrary judicial decision making.77

¶107 I would likewise reject the inference the majority draws

from the State’s briefing. Under the circumstances, I see no basis for

treating the State’s failure to play “devil’s advocate” as an indication

of an intent to waive the crux of its case on appeal. Instead, I would

attribute it to the State’s attempt to distinguish “pure” and “hybrid”

facts. Under rule 24(a)(9) of the Utah Rules of Appellate Procedure,

marshaling of “record evidence that supports [a] challenged

finding” is required only where a party is challenging a “fact

finding.”78 And because the State believed that there was a legally-

77

In an appropriate case, we should revisit and clarify our doctrine

of marshaling. Our case law in this field is marked by vagaries and

contradictions. We sometimes treat failures to marshal as decisive of

an appeal, see, e.g., United Park City Mines Co. v. Stichting Mayflower

Mountain Fonds, 2006 UT 35, ¶¶ 38, 41, 140 P.3d 1200, and other times

overlook such failures and proceed to the merits, see, e.g., State v.

Green, 2005 UT 9, ¶¶ 12–13, 108 P.3d 710. Conspicuously missing

from our cases is any principled explanation for this all-important

distinction. Instead of announcing any such basis, we have expressly

declined to impose any limits on our ability to invoke marshaling as

a basis for default on appeal, citing our purportedly limitless

discretion. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ

of Latter-Day Saints, 2007 UT 42, ¶¶ 19–20, 164 P.3d 384 (noting that

parties risk forfeiting their challenges to factual questions when they

fail to marshal but sustaining the court of appeals’ choice to resolve

the case on its merits because “[t]he reviewing court . . . retains

discretion to consider independently the whole record and determine

if the decision below has adequate factual support”).

Under our cases as they now stand, a wary litigant would be left

to discern only one real principle in our marshaling cases: We impose

the sanction of default when we want to and reach the merits when

we don’t. Such unbridled discretion is incompatible with the judicial

function. We cannot be said to be deciding cases under the rule of

law where our gate keeping for appellate decision making is so

haphazardly marked.

78

See , e.g., Gilbert v. Utah Down Syndrome Found., Inc. (In re

Discipline of Gilbert), 2012 UT 81, ¶ 14 n.3, 301 P.3d 979 (“[B]ecause the

Foundation does not challenge any of the district court’s factual

findings, it had no marshaling obligation.”); Rapela v. Green, 2012 UT

57, ¶ 12 n.2, 289 P.3d 428 (explaining that marshaling requirement

(continued...)

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JUSTICE LEE, dissenting

significant distinction between “pure” and “hybrid” factual

determinations, it seems to have read this marshaling requirement

as applying only to “pure” findings of fact made by the judge in the

first instance, not “hybrid” determinations based in part on review

of a cold paper record from a prior case.79 That would explain why

it expressly announced that it was “recit[ing] all the evidence

produced at the factual innocence hearing that both supports and

undercuts [Ms. Brown’s] claims.”80 [State’s Brief, 13 n.7 (emphasis

added).]

(c)

¶108 Nor do I see a basis for any inference to be drawn from the

State’s failure to phrase its challenge to the district court’s findings

in terms of “clear error.” Supra ¶ 67 n.61. The State’s rhetorical tack

followed naturally from the proposed pure/hybrid distinction. It

deemed only the former subject to review for clear error, and thus

framed its challenges to what it viewed as “hybrid” determinations

in other terms. Again, I disagree with this distinction. But the point

is that it explains—and in my view excuses—any rhetorical flaw in

the State’s briefing.81

(...continued)

only applies where “fact[ual] finding[s]” are challenged (internal

quotation marks omitted)).

79

See In re Discipline of Sonnereich, 2004 UT 3, ¶ 45 n.14, 86 P.3d 712

(concluding that failing to marshal was not “dispositive” of an appeal

because “the district court’s bad faith finding was based primarily on

memoranda submitted by the parties”).

80

Moreover, to the extent this statement is an assertion that the

marshaling obligation extended only to evidence adduced at the

PCRA hearing and not the original trial, this belief may also stem in

part from the State’s contention that newly-discovered evidence must

be the pivotal, transformative evidence in demonstrating factual

innocence. After all, this type of evidence would necessarily come to

light at the hearing, not at the prior trial.

81

The majority ignores this distinction in asserting that I have

“characterize[d] the State’s approach in a way the State itself has

expressly rejected.” Supra ¶ 67 n.60. Once this distinction is

understood, it becomes clear that the State’s purported “concession”

in its reply brief does not encompass these findings—and thus that

my position is not in tension with the State’s briefing.

(continued...)

45

BROWN v. STATE

JUSTICE LEE, dissenting

¶109 As the majority indicates, the State’s challenges to the

district court’s findings are sometimes phrased in terms asserting

that the court’s decision was “not the only reasonable conclusion”

that could be drawn from the evidence. Supra ¶ 67 n.61 (internal

quotation marks and emphasis omitted). But I would not read that

formulation as a waiver of a challenge to the district court’s

findings—or even as incompatible with the applicable standard of

review. This is hardly the first time an appellant has filed a brief in

our court exhibiting confusion or even outright error as to the

applicable standard of review. Our typical response is the one we

should invoke here—to articulate the correct standard of review,

and then to proceed to assess the appellant’s position under that

standard.

¶110 In this case, moreover, the State’s confusion is

understandable in light of the inherent tension—and

interplay—between the strict standard of proof applicable at the

district court level (requiring proof of factual innocence by “clear

and convincing evidence”) and the lenient standard of review that

governs on appeal (calling for deference to the district court’s

(...continued)

The majority’s contention that the State was responding to

Ms. Brown’s invocation of the clear error standard—and that she

subsequently applied this standard in analyzing the time of Lael

Brown’s death and Ms. Brown’s whereabouts, supra ¶ 67 n.60—does

not undermine this conclusion. The section of the State’s brief

captioned “Reply to Petitioner’s Point 2,” in which the purported

“concession” appears, makes four, distinct points. The first is that

“clear error is [not] the appropriate standard of review.” [State’s

Reply Brief, 15.] In making this point, the State expressly references

page 42 of Ms. Brown’s brief. This page of the brief, however, never

speaks about Lael’s time of death or Ms. Brown’s whereabouts on the

day of the crime. These issues are discussed later in the brief,

[Brown’s Brief, 43–48.] and, importantly, the State addresses these

portions of Ms. Brown’s brief in three subsequent sections of its reply

brief. [State’s Reply Brief, 18–22.] Thus, the statement in the State’s

brief “that the clear error standard does not apply” was not a “direct

response to Ms. Brown’s application of the clear error standard in her

brief” to the “two key findings regarding Lael’s time of death and

Ms. Brown’s whereabouts.” Supra ¶ 67 n.60. Rather, it was a direct

response to Debra Brown’s choice to invoke this standard at all in the

case.

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JUSTICE LEE, dissenting

determination absent a showing of “clear error”).82 Proof by clear

and convincing evidence is hard to come by. “[F]or a matter to be

clear and convincing to a particular mind it must at least have

reached the point where there remains no serious or substantial doubt

as to the correctness of the conclusion.” Sine v. Harper, 222 P.2d 571,

581–82 (Utah 1950) (emphasis added) (internal quotation marks

omitted). So it is understandable that the State’s briefing would seek

to invoke and apply this high standard of proof—which does

appropriately temper the otherwise high, clear error standard of

review—by repeatedly asserting that the district court’s

determinations were “not the only reasonable conclusion[s]” that

could be drawn from the evidence, supra ¶ 67 n.61 (internal

quotation marks and emphasis omitted).83 And in light of the

interrelationship between the standard of review and burden of

proof, it seems clear to me that these assertions should be viewed as

advancing the State’s argument that there is “serious or substantial

doubt as to the correctness” of the district court’s conclusions, and

thus that reversal is in order in light of Ms. Brown’s failure to carry

82

Other courts have observed this interplay and explained that “in

applying [a] standard of review, we necessarily incorporate an

understanding of the appropriate burden of proof in the district

court.” See Mondaca-Vega v. Holder, 2013 WL 1760795, at *8–11 (9th

Cir. April 25, 2013) (explaining this point in applying a “clear error”

standard of review to a district court’s factual finding where the

burden of proof was by “clear and convincing” evidence and

ultimately concluding that “the district court’s key finding, that

Petitioner is Salvador Mondaca-Vega, is not clearly erroneous under

the ‘clear and convincing’ standard of proof”); Marsellus v. C.I.R., 544

F.2d 883, 885 (5th Cir. 1977) (“The issue of fraud is a factual one.

Thus, we may reverse the Tax Court’s finding of fraud only if we find

that it was ‘clearly erroneous.’ At the same time, we must judge the

Tax Court’s findings in light of the government’s burden of proving

section 6653(a) fraud by ‘clear and convincing’ evidence.” (citations

omitted)); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622, 627 (Tex.

2004) (“As a matter of logic, a finding that must be based on clear and

convincing evidence cannot be viewed on appeal the same as one that

may be sustained on a mere preponderance. . . . In sum, we think that

whenever the standard of proof at trial is elevated, the standard of

appellate review must likewise be elevated.” (internal quotation

marks omitted)).

83

The State made this point repeatedly in the argument section of

its briefing. [State’s Brief, 35–36, 49–50, 52.]

47

BROWN v. STATE

JUSTICE LEE, dissenting

her burden of proving factual innocence by clear and convincing

evidence.84

¶111 The State should also have framed this argument in terms

of the applicable standard of appellate review. It should have

asserted that there was “clear error” in not concluding that

Ms. Brown had failed to remove all “serious or substantial doubt”

as to her factual innocence.85 But the absence of that verbiage seems

quite inconsequential—certainly not enough to justify avoiding the

merits in a case of this consequence, particularly in a case

implicating complex questions of first impression.

(d)

¶112 These matters of first impression are manifold. They

include whether the factual innocence determination must rest

exclusively on entirely new evidence; whether so-called “hybrid”

questions are subject to a less deferential standard of review; and

how the “clear and convincing” standard of proof affects the

appellate standard of review.

¶113 In light of these questions, I would at least acknowledge

room for doubt about the propriety of the methodology of the State’s

case on appeal. And I would give the parties the benefit of any

doubt on the matter—in a manner preserving our ability to reach the

merits. On a first-impression question of this complexity, we should

84

This point is made clear in the State’s “summary of the

argument,” where it explains: “[T]he court erred in concluding that

Petitioner’s evidence at the reopened hearing established her factual

innocence. . . . Substantial evidence contradicted . . . Petitioner’s

account of her whereabouts. Therefore, a reasonable juror hearing all

of the evidence could still find Petitioner guilty. Because Petitioner’s

evidence did not even present a reasonable juror from still finding

her guilty, that evidence necessarily failed to clearly and convincingly

demonstrate Petitioner’s factual innocence.” [State’s Brief, 35–36.]

85

The State did invoke this standard in the “statement of the issues”

section of its brief. There, it asserted that the second issue on appeal

was whether “the post-conviction court erroneously concluded that

Petitioner had demonstrated her factual innocence by clear and

convincing evidence.” The State asserted it had “preserved this

issue . . . by arguing that Petitioner did not meet her burden,” and

explaining that “[a] post-conviction court’s legal conclusions are

reviewed for correctness and its factual findings for clear error.”

[State’s Brief, 2.]

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JUSTICE LEE, dissenting

tread lightly. We should not foreclose a review of the merits on the

basis of our disagreement with the terms or methodology of the

parties’ briefing. I would accordingly conclude that the State

effectively challenged the district court’s determinations regarding

the timing of Lael Brown’s death and regarding Ms. Brown’s

account of her whereabouts.

B

¶114 Even assuming, however, that the State had accepted these

determinations, there is still another sense in which the State’s

position on the merits is properly before us on appeal. At a

minimum, the State has challenged the viability of Ms. Brown’s alibi.

It has done so by noting that even according to Ms. Brown’s own

evidence, she was at the scene of the crime at a time when the

murder may have been committed. In particular, the State argued

that Ms. Brown’s evidence did not “affirmatively show” what her

evidence was required to show—“that she did not kill Lael Brown

at any time”—because her evidence “still support[ed] a reasonable

conclusion that [she] had the opportunity to murder Lael.” [State’s

Brief, 52–53.] And as explained in greater detail in the merits

discussion below, that is enough to preserve the crucial issue before

us on appeal—and, in fact, to require reversal on the merits.

¶115 That conclusion is not at all undermined by the district

court’s “credibility findings.” Supra ¶ 69. The credibility of Debra

Brown’s account of her whereabouts can be accepted without

undermining the State’s case on appeal. Because Ms. Brown placed

herself at the scene of the crime, it matters not that her credibility

“would presumably qualify as [an] unchallenged ‘pure’ fact[].”86

86

It is, however, unclear that the State would agree with this

characterization. In the first place, the State erroneously believed that

it did not need to challenge Debra Brown’s credibility since it believed

Debra Brown’s post-conviction testimony could not be relied upon

in assessing her factual innocence since this testimony was not

“newly discovered evidence because it [was] always available to

[her] at trial.” [State’s Brief, 43.] The State’s briefing led with and

expended significant ink on this newly-discovered evidence point. Its

counsel also expended significant effort pressing the point at oral

argument.

Moreover, the State’s briefing also attacked Debra Brown’s

credibility repeatedly. It argued that “[a] reasonable juror could . . .

disagree with the post-conviction court’s conclusion that Petitioner’s

(continued...)

49

BROWN v. STATE

JUSTICE LEE, dissenting

Supra ¶ 69. Her account of her whereabouts can be accepted as

credible—and perfectly accurate—as its timing does not at all rule

herself out as Lael Brown’s murderer.87

¶116 There is of course one aspect of Debra Brown’s testimony

that must be understood to be in question in order for us to reach the

merits of the case on appeal, and that is her ultimate denial of the

charge of killing Lael Brown. But surely even the majority does not

read the State’s briefs to concede her credibility on that point (since

acceptance of her denial would defeat any basis for an appeal). In

fact, the State’s briefing makes this point directly. Despite

recognizing that Debra Brown “testified that she did not murder

(...continued)

whereabouts from Saturday afternoon on November 6th to the early

morning hours of Sunday November 7th, have been firmly

established” because “the evidence of Petitioner’s whereabouts

depends on her credibility, and a reasonable juror would have good

reason to doubt her credibility where she admitted to having stolen

from Lael and lied about it.” [State’s Brief, 52.] The State also argued

that the district court was incorrect in concluding that “’no evidence

was presented to suggest that [Petitioner’s] account of [her]

whereabouts is inaccurate” because “[t]he evidence at trial . . . did not

merely ‘suggest’ that Petitioner’s account of her whereabouts was

inaccurate; it demonstrated that her account was inaccurate,” such that

“a reasonable juror could still find Petitioner guilty because serious

credibility concerns surround Petitioner’s account of her

whereabouts.” [State’s Brief, 53 (emphasis in original).]

87

This point is underscored by the district court’s initial

determination—after hearing Debra Brown’s testimony—that she

had failed to prove her factual innocence by clear and convincing

evidence. The State’s brief highlighted this point as well: “As

explained, the court relied on the correct legal standard when it

discounted all of Petitioner’s evidence at the four-day evidentiary

hearing. In the court’s view, that evidence did not even meet the

lower ‘no reasonable juror could have convicted’ standard that

Petitioner advocated. Rather, the court concluded that ‘reasonable

jurors still could have differed on what the old and new facts

established and whether the prosecution could have proven its case

beyond a reasonable doubt.’ Because Petitioner’s evidence could not

even satisfy the PCRA’s lesser standard, the court correctly reasoned

that the evidence necessarily could not satisfy the factual innocence

statute’s higher standard.” [State’s Brief, 47.]

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JUSTICE LEE, dissenting

Lael Brown and that she did not know who did,” [State’s Brief, 24.]

the State nonetheless asserts that “[t]he Legislature could not have

intended that a petitioner could establish her factual innocence

merely by testifying that she is innocent.” [State’s Brief, 43.]88 So at

least to that extent, even the majority must understand the State to

be challenging Debra Brown’s credibility. And on that question, we

cannot possibly conclude that she carried her burden of establishing

her factual innocence by clear and convincing evidence.

¶117 In asserting her factual innocence, Ms. Brown has insisted

that although she was at the scene of the crime at a time when the

murder could have been committed, she simply didn’t do it. If that

is clear and convincing proof of factual innocence, our courts will be

inundated with (presumptively meritorious) factual innocence

petitions. So, on the narrow point of “credibility” that is obviously

in question, the district court’s credibility determination should be

reversed as clearly erroneous.89

88

The State’s briefing also argues that “[g]iven the substantial

evidence that incriminated Petitioner, a reasonable juror could still

find that she murdered Lael sometime after Hall [a witness who

claimed he had seen Lael in the early afternoon on Saturday]

allegedly saw him.” [State’s Brief, 52.] Similarly, it explained that

“[s]ubstantial evidence contradicted . . . Petitioner’s accounts of her

whereabouts,” such that “a reasonable juror hearing all of the

evidence could still find Petitioner guilty.” [State’s Brief, 35–36.] And

in discussing Petitioner’s account of her whereabouts—and the alibi

in particular—the State used terms such as “said” and “claimed,”

arguing that “she said she delivered the soup to Lael,” “claimed that

although Lael’s truck was there, he did not answer when she

knocked” and “said she did not use her key to take the soup in

because she thought Lael might be sleeping.” [State’s Brief, 23

(emphasis added).] The State also points out that the trial court

“acknowledged that Petitioner’s evidentiary testimony must be

viewed with some skepticism.” [State’s Brief, 23 (internal quotation

marks omitted).]

89

The majority concedes that “there is potentially some room to

doubt the court’s finding that Ms. Brown firmly established her

whereabouts, even accepting the court’s credibility findings.” Supra

¶ 69 n.69. But it argues that the clear and convincing evidentiary

standard tolerates such doubt. Supra ¶ 69 n.69.

As the majority notes, however, this evidentiary burden requires

(continued...)

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BROWN v. STATE

JUSTICE LEE, dissenting

¶118 I would thus read the State’s briefs to properly preserve an

analysis of the merits of the district court’s factual innocence

determination even assuming acceptance by the State of the district

court’s findings regarding the timing of Lael Brown’s death and

regarding Debra Brown’s accounts of her whereabouts.

(...continued)

evidence that makes a conclusion “very highly probable.” Supra ¶ 69

n.69 (internal quotation marks omitted). And I struggle to see how

Ms. Brown’s evidence does so, as it fails to establish an alibi—the

only reason that her whereabouts are even relevant. She put herself

at the scene of the crime during a time when that crime might have

been committed. And it accordingly does not matter that there is only

a narrow window of time during which she might have committed

the murder, that there is some contrary evidence suggesting that the

murder may have been committed during another time, or that the

State has not proved that the murder occurred while she was there.

Ms. Brown is the one who bore the burden of proof—of

demonstrating her factual innocence by clear and convincing

evidence—at the factual innocence hearing. And because she put

herself at the scene of the crime during a time when the murder

might have been committed, she failed to do so.

Even assuming that the time of death was later in the day, as the

medical examiner testified it might have been, supra ¶ 24 (explaining

that the time of death was likely between 9:00 p.m. and 3:00 a.m.),

Ms. Brown’s “alibi” for portions of this later time period still

amounted to a mere denial of guilt. That, again, is no alibi. And it is

not clear and convincing proof of factual innocence. Ms. Brown

claimed she had fallen asleep at 8:00 or 8:30 p.m. at her boyfriend’s

home, slept until about midnight, and then drove herself home,

where she claimed to have remained for the rest of the night. Thus,

even assuming that Lael Brown was killed in the evening, Ms. Brown

was alone for an appreciable part of the time period during which the

murder might have occurred. And it was her son—who perjured

himself at trial—who provided the only corroboration that she

arrived home shortly after midnight. Thus, the fact that Ms. Brown

placed herself at the scene of the crime during a time when the

murder might have been committed is not the only deficiency in her

alibi. If the doubt afforded under the clear and convincing standard

allows an alibi as weak as Ms. Brown’s to stand as proof of factual

innocence, we have created a very low hurdle indeed.

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JUSTICE LEE, dissenting

II

¶119 We should accordingly reach the merits of the State’s

challenge to the district court’s determination that Ms. Brown met

her burden of proving her factual innocence. I would do so under

the clear error standard of review, and would reverse.

¶120 As the majority notes, the determination of factual

innocence in this case was premised on two subsidiary factual

findings: (1) that “Lael Brown was alive Saturday afternoon,” and

(2) that “[Ms. Brown’s] whereabouts from Saturday afternoon on

November 6th to the early morning hours of Sunday, November 7th,

ha[d] been firmly established.” Supra ¶ 55 (first alteration in

original) (internal quotation marks omitted). And because those

questions are factual ones—given that they “entail[] the empirical,

such as things, events, actions, or conditions happening, existing, or

taking place”—they are reviewed for clear error. See Manzanares v.

Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 40, __ P.3d __

(alteration in original) (internal quotation marks omitted).

¶121 And in my view the State has easily carried its burden on

appeal. I would conclude that the trial court clearly erred in making

at least one, and perhaps both, of the subsidiary factual

determinations on which its finding of factual innocence rested.90

B

¶122 The first of these determinations—that Ms. Brown proved

by clear and convincing evidence that Lael Brown was alive at some

point on Saturday afternoon—is not incontrovertible. Supra

¶¶ 82–83. Despite some doubts, however, I see the propriety of that

finding to be a close issue. The propriety of the second

determination, however, is not such a close call. It is obvious that the

trial court clearly erred by determining that Ms. Brown had—by

clear and convincing evidence—conclusively established an alibi

during the relevant time period (the period during which the

murder could have occurred).

90

Even the majority recognizes that these factual conclusions are

not unassailable. It notes “[w]e readily recognize the existence of

evidence in this case that calls into question the post-conviction

court’s factual findings. And we agree with the State that the court’s

ultimate determination of factual innocence is not the only reasonable

conclusion to be drawn from the evidence.” Supra ¶ 63 (internal

quotation marks omitted).

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BROWN v. STATE

JUSTICE LEE, dissenting

¶123 That relevant time period—according to the trial

court—was “10:00 a.m. on Saturday afternoon until Sunday morning

at 3:00 a.m.” The trial court noted that Ms. Brown had given the

following explanation of her whereabouts during the time:

At approximately 10:00 a.m. on Saturday,

[Ms. Brown’s] son Ryan Buttars saw his mother when

he awoke. Shortly thereafter, at approximately 10:20

a.m., Brent Skabelund, who was [Ms. Brown’s]

boyfriend at the time, arrived at her home to

accompany her to her son’s basketball game at

Skyview High School in Smithfield. They left for the

game at approximately 10:40 or 10:45 a.m. From 11:00

a.m. to 12:15 p.m., [Ms. Brown] and Skabelund

watched the basketball game. Following the game, she

and Skabelund stopped at R&G’s, a local drive-in, for

lunch. After lunch, Skabelund took her to her house

where she took a nap. Between 2:00 and 3:00 p.m.

[she] delivered chicken soup to Lael’s house, possibly

her daughter’s house as well, and then went to a new

store at the Pine Crest shopping area. She then went

back home and called Skabelund around 4:00 p.m. At

4:30 p.m., Skabelund drove to [Ms. Brown’s] home,

and together they went shopping at Macey’s grocery

store. They then went back to [Ms. Brown’s] home to

put away the groceries at approximately 5:40 p.m. and

had pizza for dinner that [her] sons brought home.

Skabelund stayed at [Ms. Brown’s] residence until 6:45

p.m., and then they both drove to Skabelund’s house

to watch movies. They arrived there around 7:00 p.m.

[Ms. Brown] fell asleep at 8:00 or 8:30 p.m. while she

was watching the movie and slept until midnight. At

midnight she awoke and drove herself home. After

arriving home she saw her two sons who were playing

video games. [She] went to bed shortly after midnight

Sunday morning. Buttars indicated that his mother

stayed at home the rest of the night.

¶124 Based on the foregoing chronology, and because in its view

“[n]o evidence was presented to suggest that [this] account of

[Ms. Brown’s] whereabouts [was] inaccurate,” the trial court

ultimately 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, ha[d] been

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JUSTICE LEE, dissenting

firmly established,” such that “she could not have killed Lael during

the” relevant time period “when the murder could have occurred.”

¶125 This is clear error. The consideration of Ms. Brown’s

whereabouts is relevant only as part of her “alibi.” And even

assuming arguendo that Lael Brown was alive for some portion of the

afternoon,91 Ms. Brown still lacks a plausible—let alone a

compelling—alibi.

¶126 An “alibi” is “[a] defense based on the physical

impossibility of a defendant’s guilt” because the “defendant [was]

in a location other than the scene of the crime at the relevant time.”

BLACK’S LAW DICTIONARY 84 (9th ed. 2009). Ms. Brown’s “defense”

comes nowhere close. First, her establishment of her whereabouts in

no way demonstrates “impossibility.” Unlike the classic alibi

involving indisputable, objective evidence of the suspect’s

whereabouts, Ms. Brown’s evidence was subjective and self-

serving.92 The witnesses who vouched for her whereabouts during

critical portions of the day were all close friends or family

91

Review of the trial court’s discussion shows that the only witness

that the trial court found credible (Dale Hall) saw Lael Brown during

the “early afternoon hours on Saturday, November 6th.” At one point

Hall said he saw Lael Brown at 1:00 p.m., and at another point at 2:30

p.m. Even assuming Hall was alive at both of those times, however,

Ms. Brown’s alibi is still unpersuasive. After all, she went to Lael

Brown’s house, by her own admission, between 2:00 and 3:00 (and

was alone until 4:00), and there was no other testimony—including

that by Carlsen, an individual previously “convicted of tampering

with a witness”—that was, by itself, “sufficiently credible to establish

by clear and convincing evidence that Lael was alive” at any time

after 2:30 p.m. In fact, the trial court itself noted its “confidence” in

the truthfulness of Carlsen’s testimony was “low,” such that his

testimony was “not entitled to a significant amount of weight.”

92

I of course agree that alibis are always “self-serving,” supra ¶ 70,

in the sense of advancing the cause of the defense. But they are not

always based on a defendant’s (or her family members’) simple

denial of being present at the scene of the crime. A classic alibi

involves objective evidence—a photograph, a hotel receipt, or the

testimony of an objective third-party. This case involves nothing of

the sort. It involves mere denials by the defendant and by her loved-

ones. And even they—she—placed Ms. Brown at the scene of the

crime at a time when it could have been committed.

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BROWN v. STATE

JUSTICE LEE, dissenting

members—people who had a significant motive to lie for her, supra

¶ 86.93

¶127 More fundamentally, during at least the “chicken soup”

trip, and perhaps during other times, she was completely alone and,

worse, by her own admission, at the scene of the crime. This is no alibi.

It is only a self-serving explanation for why she was at the scene of

the crime (i.e., delivering chicken soup) and thus constitutes no

more than a denial.

¶128 That cannot possibly be enough to rise to the level of clear

and convincing proof of factual innocence under the law. The

district court’s decision must accordingly be reversed; otherwise the

“factual innocence” bar in Utah will be set at an impossibly low

level.

III

¶129 The grounds on which the majority rests its decision were

never asserted by Ms. Brown in her briefs or at oral argument. And

the court’s opinion today is thus handed down without the benefit

of any input from the State through the adversary process. We owe

the parties more in a case of this (or any) magnitude. We should

decide this important case on its merits. And we should reverse

under the law, even if that decision runs counter to the outcome

seemingly dictated by our human compassion for a sympathetic

party like Ms. Brown.

93

One of them, her son, did in fact lie for her, perjuring himself at

her earlier trial. See supra ¶ 62 n.49. And he is the sole witness as to

Ms. Brown’s whereabouts late in the evening on Saturday and early

in the morning on Sunday.

56