Thompson v. State

554 P.3d 988

2024 UT 27

Michael W. THOMPSON, Appellee,

v.STATE of Utah, Appellant.

No. 20220949

Supreme Court of Utah.

Heard March 4, 2024

Filed August 1, 2024

Third District, Salt Lake County, The Honorable Su Chon, No. 170901627

Robert S. Clark, David C. Reymann, Austin J. Riter, Rachel L. Wertheimer, Jensie L. Anderson, Jennifer Springer, Salt Lake City, for appellee

Sean D. Reyes, Att’y Gen., Erin Riley, Asst. Solic. Gen., John J. Nielsen, Special Asst. Solic. Gen., Andrew F. Peterson, Deputy Solic. Gen., Salt Lake City, for appellant

Justice Pohlman authored the opinion of the Court, in which Associate Chief Justice Pearce, Justice Petersen, Justice Hagen, and Judge Hall joined.

Justice Pohlman, opinion of the Court:

INTRODUCTION

¶1 In 2008, a jury convicted Michael W. Thompson of two counts of forcible sodomy. Thompson appealed his conviction, contending his counsel was constitutionally ineffective, and the court of appeals agreed. It reversed Thompson’s conviction and remanded for a new trial. After the State elected not to retry Thompson, the district court dismissed the ease against him with prejudice. Thompson was released after serving several years in prison.

¶2 A few years after his release, Thompson petitioned the court for a factual innocence determination under the factual innocence part of the Post-Conviction Remedies Act (PCRA).¹ He asserted that newly discovered material evidence, when viewed with the trial evidence, proved his innocence. After a hearing, the post-conviction court concluded that Thompson had clearly and convincingly established his factual innocence. The State appeals that determination.

¶3 The State contends that the post-conviction court misinterpreted the factual innocence statute to allow the court to base its innocence determination on more than the newly discovered evidence. The State asserts that the statute requires an innocence determination to be based upon the newly discovered evidence and that the new evidence Thompson introduced, even if credible, did not demonstrate his innocence.

¶4 We agree with the State. Under the plain language of the factual innocence statute, a determination of factual innocence must be based on newly discovered evidence, not evidence that was available at trial. And here, Thompson’s newly discovered evidence does not clearly and convincingly establish his factual innocence. Accordingly, we reverse.

BACKGROUND

¶5 In August 2002, Michael Thompson, a thirty-two-year-old interstate truck driver living in Wisconsin, drove with a friend (Friend) to Utah for work. During this trip, Thompson and Friend spent two nights in Salt Lake City with Thompson’s family. Later, Thompson’s half-sister, A.T., reported to police that Thompson had sexually abused her. The State charged Thompson with two counts of forcible sodomy "[i]n or about August, 2002, in Salt Lake County."

Trial

¶6 At trial, A.T. testified that she was sixteen years old when Thompson and Friend visited her and her mother in Salt Lake City. According to A.T., Thompson and Friend stayed at her mother’s house for two consecutive nights; Thompson slept on the couch, and Friend slept in a spare bedroom. A.T. explained that on the second morning, Thompson came into her bedroom, and they performed oral sex on one another. She said that after Thompson ejaculated, he "wiped it up in a tissue and flushed it down the toilet and went back upstairs." A.T. further explained that she joined Thompson upstairs a few minutes later, and they talked about "what had happened between [them]" but "switched the conversation" to a radio show when they heard someone stirring from a bedroom.

¶7 Although she could not remember the exact date, A.T. testified that the abuse occurred "right at the end of August," around 9:00 or 9:30 in the morning.² She admitted that this testimony was inconsistent with her testimony at the preliminary hearing, where she had estimated that the abuse occurred around 10:00 or 11:00 in the morning. She explained that she "didn’t have a clock" in her room and "wasn’t sure what time it would have been" "because of how high the sun was."

¶8 A.T. also admitted that she had previously reported to the police that "nothing happened" between her and Thompson. She explained that she did not initially disclose the abuse to the police because "[i]t’s hard to pull up and have flashbacks and remember what happened."

¶9 The defense called several witnesses to testify, including Thompson and Friend.

¶10 Thompson denied abusing A.T. He testified that he and Friend did not stay in Salt Lake City for two consecutive days, as A.T. claimed. According to Thompson, he and Friend traveled to Salt Lake City from Wisconsin and arrived in town in the late evening; the following morning, A.T. and Friend woke him up, and Thompson and Friend left in the afternoon to make a delivery in Nevada. Thompson testified that he and Friend returned to Salt Lake City a few days later and spent a second night at Thompson’s stepmother’s house. He testified that he and Friend woke up at 5:00 a.m., "got ready," and "got out of there" because they had to make a "time-sensitive" produce delivery. According to Thompson, they were "rolling" by 5:30 a.m. Thus, Thompson testified that the sexual abuse could not have occurred around 9:00 a.m. on the second morning, as A.T. alleged.

¶11 Thompson introduced trucking logs to corroborate his account. The logs showed that, on August 20, Thompson and Friend drove approximately ten-and-a-half hours from Rapid City, South Dakota, to Salt Lake City and arrived around 9:30 p.m. They showed that Thompson and Friend left Salt Lake City the next day around 2:30 p.m. And they showed that Thompson and Friend returned to Salt Lake City on August 24 and left for Rapid City at 5:30 a.m. on August 25. According to the logs, Thompson and Friend made the trip from Salt Lake City to Rapid City in just under ten hours.

¶12 Thompson testified that he filled out the trucking logs himself and that he had no "independent verification" of their "dates and times." He testified that federal law required him to hold onto the logs for seven years and that he accurately recorded his trips to avoid possible fines. He also admitted that he had access to stacks of blank trucking logs and that he did not produce the logs before trial in response to the State’s pre-trial discovery request.

¶13 Friend’s testimony largely corroborated Thompson’s account of the trip. Like Thompson, Friend testified that they did not spend two consecutive nights in Salt Lake City. He testified that they spent one night in Salt Lake City on the way out West and one night there on the way back to Wisconsin. According to Friend, it was not possible for Thompson to have sexually assaulted A.T. on either morning that they were in town because Friend did not leave Thompson’s side for more than five minutes. Friend testified that he slept on the floor by the couch, less than a foot away from Thompson, and that he woke up before Thompson on both mornings.

¶14 After the defense rested its case, the State called a rebuttal witness, Randy West. A transportation specialist, West relied on a printout from computer software that calculated the average time it would take to drive from Rapid City to Salt Lake City. He reported that the trip would take more than fourteen hours, not ten. West testified that Thompson "cooked the books." Thompson’s counsel did not challenge West’s qualifications or call a rebuttal expert.

¶15 During closing argument, the State acknowledged the "minor inconsistencies" in A.T.’s testimony, but it explained that those inconsistencies "don’t necessarily equate to reasonable doubt. They’re just a mark of human fallibility." The State stressed to the jury that the crimes in question occurred "many years ago" when A.T. was "a lot younger," that it would be "difficult" for anyone to recall the details of events that occurred so many years ago, and that the timing of the sexual abuse "is really not that significant." The State also pointed out that A.T.’s "account of the most significant facts was st[r]ong and believable," and that Thompson had "a lot at stake" and "everything to gain by lying."

¶16 The jury convicted Thompson on both counts of forcible sodomy.

Direct Appeal and 23B Remand

¶17 Thompson appealed his conviction, alleging his counsel was constitutionally inef- fective for, among other things, failing to properly challenge West’s testimony. Invoking rule 23B of the Utah Rules of Appellate Procedure, Thompson moved for a remand to develop the factual record, which the court of appeals granted.³

¶18 At the evidentiary hearing, the defense presented expert testimony from Mark Hornung, the senior vice president of the company that created the software West relied on at trial. Based on Hornung’s testimony, the district court found that, when properly programmed, the software conveyed that Thompson could drive the route from Rapid City to Salt Lake City "in 10 hours" even if he "had to slow down at times while driving."

¶19 Ultimately, the district court found that West "lacked the requisite knowledge, skill, experience, training and education to qualify as an expert for the [computer] program." The court found West "did not generate the printout he used at trial" and "was not physically present when the printout was generated." Additionally, the court found that West used the 1997 version of the computer software, which was less reliable than the 2002 version.

¶20 The court of appeals held that Thompson’s counsel performed deficiently by failing to investigate, challenge, or object to West’s testimony. State v. Thompson, 2014 UT App 14, ¶ 91, 318 P.3d 1221. Based on the cumulative harm of this and other errors, the court of appeals reversed Thompson’s conviction and remanded the case for a new trial. Id. The State elected not to retry Thompson, and the district court dismissed the case with prejudice.

Petition for Factual Innocence

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