State v. Fairbourn, 405 P.3d 789

Background

Late-night encounter: Officer observed Fairbourn behaving oddly in/near a parking lot; when Officer exited his patrol car Fairbourn produced a seven-inch knife and said the officer was “about to fucking die.”
Confrontation and shooting: Officer ordered Fairbourn to drop the knife; Fairbourn moved, raised the knife, lunged toward Officer, and Officer shot him three times. Four eyewitnesses corroborated a threatening advance; Fairbourn testified he raised the knife to surrender.
Charges and verdict: Fairbourn was tried by jury and convicted of attempted aggravated murder; he appealed raising prosecutorial-misconduct claims and an evidentiary challenge.
Alleged prosecutorial misconduct: (1) questioning Fairbourn about statements (or silence) to a detective at the hospital; (2) asking Fairbourn to explain discrepancies between his testimony and other witnesses’; (3) eliciting testimony about Officer’s thoughts (fear/family concerns).
Evidentiary dispute: Trial court permitted Officer to testify about the “twenty-one-foot rule” (training that within ~21 feet an edged-weapon attack is highly dangerous); defense objected as irrelevant and as improper expert testimony (the latter was not preserved).
Appellate posture: Utah Court of Appeals reviewed preserved objections for abuse of discretion and unpreserved claims for plain error; it affirmed the conviction.

Issues

Issue	State's Argument	Fairbourn's Argument	Held
Whether prosecutor improperly commented on Fairbourn’s post-arrest silence (Doyle issue)	Questions/comments impeached credibility, not a forbidden comment on silence; any comment was permissible impeachment	Prosecutor’s questions and closing argument impermissibly used (or highlighted) Fairbourn’s post-arrest silence	Not reversible error; issue unpreserved in closing and plain-error review fails (invited waiver; not obvious or harmful)
Whether prosecutor improperly asked Fairbourn to comment on discrepancies in witnesses’ accounts	Proper impeachment to highlight and clarify perceived discrepancies between testimonies	Improperly asked Fairbourn to assess veracity of other witnesses	Allowed: Court held such questioning was proper impeachment/clarification and not plain error
Whether eliciting Officer’s internal thoughts (fear, family) improperly appealed to prejudice	Testimony helped explain Officer’s reaction and credibility under stress	Testimony inflamed sympathy and was irrelevant to charged offense	Questioning was improper but harmless; no reversal due to curative instruction presumption and strong evidence of guilt
Whether testimony re: twenty-one-foot rule was inadmissible expert or irrelevant evidence	Testimony was relevant to explain why Officer perceived a threat and to support credibility	Testimony was irrelevant and constituted improper expert testimony	Court upheld admission as relevant to Officer’s credibility; expert objection not preserved, relevance objection overruled

Key Cases Cited

Daniels v. State, 40 P.3d 611 (Utah 2002) (standard for reciting facts in appellate review of jury verdict)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post-Miranda silence may not be used for impeachment)
Bond v. State, 361 P.3d 104 (Utah 2015) (plain-error standard explained)
Hummel v. State, 393 P.3d 314 (Utah 2017) (clarifies plain-error review and role of prosecutor’s misconduct when assessing court error)
Winward v. State, 941 P.2d 627 (Utah Ct. App. 1997) (when defendant testifies his credibility may be impeached like any witness)
Tillman v. State, 750 P.2d 546 (Utah 1987) (improper indirect comments on failure to testify analyzed by whether jury would naturally construe them as such)
Reyes v. State, 861 P.2d 1055 (Utah Ct. App. 1993) (factors for assessing harm from comments on silence)
Maas v. State, 991 P.2d 1108 (Utah Ct. App. 1999) (distinguishing permitted impeachment about statements made from impermissible use of silence)
Dunn v. State, 850 P.2d 1201 (Utah 1993) (plain-error/cumulative-error framework)