Murder conviction nixed

High court » Ruling to allow eyewitness experts' testimony overturns guilty verdict.
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People don't always see what they think they saw, yet Utah trial judges routinely have banned experts from telling juries about the problems with eyewitness identification.

On Friday, the state's Supreme Court changed all that by saying experts in the science of eyewitness identification routinely should be allowed at trial.

Attorney Michael Zimmerman, who won the appeal, called it "a very significant decision ... a sea change for how eyewitness cases will be dealt with in Utah going forward."

Laura Dupaix, chief of the Utah Attorney General's Office criminal appeal division, agreed expert testimony can be important in eyewitness cases, but said the decision to include such experts should be left to the trial judge.

Friday's ruling overturned the murder conviction of Deon Lomax Clopten, 34, for the Dec. 1, 2002, fatal shooting of Tony Fuailemaa, 27, outside Club X-Scape in Salt Lake City.

Clopten maintained a man named Freddie White was responsible for the shooting and hired an expert to testify about the potential problems with eyewitness identification, according to Friday's opinion.

But a judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.

Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."

Noted Zimmerman: "Eyewitness testimony is believable because eyewitnesses believe what they are saying. Most of us believe what we see. But science says we don't remember without bias and don't remember a lot of what we see."

According to Friday's ruling, "Dodd could have testified about research into how eyewitness identification of a stranger is affected by stress, disguises, darkness and length of exposure. He could have quantified the impact of factors such as weapon focus and cross-racial identification.

"Dr. Dodd could also have testified as to the impact that comments made by police officers may have on an eyewitness making an identification. Additionally, he could have discussed a common phenomenon in which witnesses fill gaps in their memory with information obtained later and thus, over time, become more and more certain of identifications that may be inaccurate."

Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony."

Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.

The high court grappled with the eyewitness expert problem in 1986, when it issued a ruling requiring a jury instruction warning of the weaknesses of eyewitness identification. Coincidentally, Zimmerman was a member of the Utah Supreme Court at that time. He said Friday that he and the other justices believed the jury instruction would fix the problem.

But scientific studies, mostly done after 1986, show that reading an instruction to jurors is unlikely to get their attention. Having an expert take the stand and testify, however, "makes it more a focal point of the trial," Zimmerman said.

At Clopten's trial, witnesses testified the murder was the result of a dispute between Clopten and Fuailemaa that began in the Utah State Prison in 1997. Clopten was beating two other inmates when Fuailemaa -- serving time for robbery convictions -- stepped in and knocked Clopten to the floor.

Both men were paroled in 2002, but did not run into each other until they happened to attend a concert at Club X-Scape the night of Dec. 1, 2002.

After an initial confrontation inside the club, Clopten and three other men left.

Outside, Clopten asked his friend, Freddie White, for a gun, declaring he was going to kill Fuailemaa.

Meanwhile, Fuailemaa also left the club with his fiancee, Shannon Pantoja, who testified at trial that she saw Clopten step from the shadows and shoot Fuailemaa in the back of the head. Two other eyewitnesses also said Clopten was the shooter.

Defense attorney Stephen McCaughey countered by calling two of Clopten's sisters and a friend, who testified White had told them he was the killer.

Following the shooting, Clopten, White and two other men fled in a vehicle that was stopped by police after a pursuit that reached speeds of 120 mph.

A bicyclist later spotted two handguns in the gutter along the chase route and called police. Experts determined one of the pistols, a 9mm semiautomatic, was the murder weapon.

Asking for the maximum sentence for Clopten, prosecutor William Kendall said, "He executed Tony ... and bragged about it afterwards, saying he had 'domed' him."

The victim's family called Fuailemaa "a gentle giant who was friends with everyone," and who was planning to marry Pantoja the week he was killed.

Family members publicly thanked witnesses for their willingness to testify against Clopten, who is allegedly a leader of a Salt Lake City area gang.

Dupaix, of the Attorney General's Office, said Friday the eyewitness identification of Clopten was reliable enough that, combined with other evidence in the case, the jury would have convicted even if Dodd had been allowed to testify.