## Facts

- Howard F. Fisher believed his wife, Zacoma, had left him because she was having a homosexual affair with Jolene Scott, a prostitute.
- On July 7, 1980, Fisher confronted Scott about Zacoma’s whereabouts. Fisher and Scott then drove around Salt Lake City for seven or eight hours while Scott solicited at truck stops.
- When Scott said she did not know where Zacoma was, Fisher accused her of lying, struck her, and a fight began after Scott made an inflammatory remark about Zacoma’s affections.
- During the fight, Fisher strangled Scott. He later stated he did so “to get her to go unconscious,” felt her neck snap, and claimed he did not intend to kill her.
- The State charged Fisher with second-degree murder and presented three alternative theories: intent to kill, intent to cause serious bodily injury, or conduct showing a depraved indifference to human life.
- In opening statement, the prosecutor told the jury that Edward Houser (an incarcerated acquaintance of Fisher’s) would testify that Fisher had repeatedly threatened to kill Scott and had discussed methods of doing so, including strangulation.
- Houser had testified at the preliminary hearing (though not to all matters described in the opening statement), had been subpoenaed for trial, and was present in court at the time of opening statements.
- After opening statements, Houser refused to testify because of threats from fellow inmates at the Utah State Penitentiary. The State did not present Houser’s anticipated testimony at trial.
- Fisher moved for a mistrial, arguing the prosecutor’s opening statement placed highly damaging assertions before the jury that Fisher could not test through cross-examination. The trial court denied the motion.
- The jury convicted Fisher of second-degree murder, and Fisher appealed.

## Issues

1. Whether Fisher was denied a fair trial requiring reversal when the prosecutor, in opening statement, described anticipated testimony from a witness the State ultimately did not produce because the witness refused to testify.
2. Whether referencing the expected testimony of a witness who did not testify violated Fisher’s right to confrontation.

## Decision

- The Utah Supreme Court affirmed Fisher’s conviction.
- The court applied a two-factor analysis when the State outlines testimony in opening statement but does not produce the witness: (1) whether the prosecutor acted in good faith, and (2) whether the opening statement was likely to be unfairly prejudicial to the defendant.
- The prosecutor acted in good faith because Houser had been subpoenaed, was present at trial, and had previously testified at the preliminary hearing; the later refusal to testify stemmed from inmate threats and was not reasonably predictable at the time of opening.
- Any prejudice from the unfulfilled reference to Houser’s testimony did not warrant a mistrial in light of the full record, including Fisher’s confession and testimony admitting the strangulation and the death.
- The court also relied on the standard jury instruction that opening statements are not evidence as a safeguard against jurors treating the prosecutor’s description as proof.
- No confrontation violation required reversal because Houser’s statements were not admitted as evidence at trial; the prosecutor’s opening statement was argument, not testimonial proof presented to the jury.

## Legal Principles

- When the prosecution outlines expected testimony in opening statement but does not call the witness, reversal depends on (1) the prosecutor’s good faith in making the statement and (2) the likelihood the statement caused unfair prejudice.
- A prosecutor may act in good faith where the witness is subpoenaed, present, and reasonably expected to testify, even if the witness later refuses.
- Opening statements are not evidence; jurors’ instructions to that effect are relevant when assessing whether an unfulfilled opening statement created unfair prejudice.
- The existence and degree of prejudice are evaluated from the entire trial record, including the strength of properly admitted evidence.
- The Confrontation Clause is generally not implicated by an opening statement’s description of anticipated testimony when the described statements are never introduced as evidence.

## Conclusion

The Utah Supreme Court affirmed Fisher’s second-degree murder conviction, holding that the prosecutor’s opening statement about Houser’s expected testimony was made in good faith and, given the jury instructions and the other evidence (including Fisher’s admissions), was not likely to have unfairly prejudiced the jury; because Houser’s statements were never admitted as evidence, the court rejected Fisher’s confrontation-based challenge as well.


State v. Fisher, 680 P.2d 35 (1984)