State Of Utah v. Walker

Decision Date17 June 2010
Docket NumberNo. 20070931-CA.,20070931-CA.
Citation2010 UT App 157,235 P.3d 766
PartiesSTATE of Utah, Plaintiff and Appellee,v.Stephen James WALKER, Defendant and Appellant.
CourtUtah Court of Appeals

Ronald Fujino, Salt Lake City, for Appellant.

Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.

Before Judges McHUGH, THORNE, and ROTH.


McHUGH, Associate Presiding Judge:

¶ 1 Stephen James Walker appeals from his conviction for murder, a first degree felony see Utah Code Ann. § 76-5-203 (Supp.2009).1 Walker argues that his counsel performed ineffectively by failing to introduce an expert witness after discussing Walker's mental illness during opening arguments, by failing to move to suppress Walker's police interview on the grounds that the interrogators did not provide him sufficient warnings ( Miranda warnings) in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and by failing to object to an alleged error in the transcript of that police interview. We affirm.


¶ 2 Walker suffers from post-traumatic stress disorder (PTSD) as a result of his service in Vietnam and was classified by the federal government as completely disabled. Walker and his wife, Cassandra Bryan, were married in 1998, but the relationship was unstable. At one point, the couple divorced, reconciled, and then remarried.

¶ 3 On April 1, 2006, Walker and Cassandra had several contentious telephone conversations, followed by Walker visiting Cassandra while she was working. Witnesses testified that Cassandra was upset by the conversations, removed her wedding ring, threatened to throw the ring away, and stated that she hated [Walker] and ... wanted to divorce him.” Cassandra also expressed concern that Walker had removed funds from their joint bank account.

¶ 4 Cassandra left work around 3:00 p.m. At about 5:30 p.m. a neighbor saw Cassandra “coming quickly out” of her house and Walker “coming after her.” On the way to the car, Cassandra dropped her wallet. When Walker tried to hand it to her, she drove away without it.

¶ 5 Around 7:30 p.m., Walker called his friend, threatened “to shoot himself in the head,” and then hung up. Almost immediately Walker called the friend again, apologized for bothering him, and then hung up abruptly. The friend asked an acquaintance to accompany him to Walker's house to check on the situation. When they arrived, Walker was drunk on the living room floor, and they could see Cassandra lying dead on the kitchen floor in a pool of blood. The friend called the police while his acquaintance attempted to calm Walker.

¶ 6 While waiting for the police, Walker repeatedly stated that he wanted to kill himself. He also said something about Vietnamese children and “why don't they just feed them.” Upon arrival, the police noted that Cassandra was dressed in a heavy coat and had her purse over her shoulder. It was later discovered that the wallet she had dropped earlier was inside the purse. Cassandra had been shot thirteen or fourteen times. Her clothes, nurse's uniform, and toiletries were found in her car.

¶ 7 The police placed Walker under arrest and transported him to the Salt Lake City Police Department, where he was interviewed. Detectives made a video of the interview, creating both a visual and audio record. That video was not offered as evidence at trial. According to a written transcript of the interview,2 before asking any questions, the detectives gave Walker a partial Miranda warning but failed to advise him that anything he said could be used against him.

¶ 8 During the course of the interview, Walker expressed surprise at his wife's death and confusion as to how it had happened:

[Walker]: Cassandra is Bryan[ ] ... Bryan is dead?
[Det. K]: Yes, sir.
[Walker]: Car wreck?
[Det. W]: No, it wasn't a car wreck.
[Walker]: Please.
[Det. W]: Well, she was found shot to death in your home.
[Walker]: What?

After the detectives elicited additional statements about an argument between Cassandra and Walker concerning home remodeling, Walker requested an attorney, and the detectives stopped the interrogation.

¶ 9 The transcript of the interview also reflects the following exchange:

[Det. K]: You were the only one there with her.
[Walker]: I don't want her leaving me.[3]

At trial, the prosecution quoted Walker's statement, as reflected in the transcript, in both the opening and closing arguments. One of the detectives present during the interrogation also testified that Walker made this statement.4

¶ 10 During voir dire of the jury venire, the trial court indicated that the defense may offer mental health as a potential defense. Dr. Vickie Gregory, a neuropsychologist who examined Walker, was prepared to testify that Walker was suffering from PTSD at the time of the shooting. Although defense counsel named Dr. Gregory as a potential witness during voir dire, the defense did not call her to testify and ultimately did not request a mental health jury instruction. Instead, Walker presented three alternative defenses in an attempt to convince the jury that he was guilty of manslaughter rather than murder: voluntary intoxication see Utah Code Ann. § 76-2-306 (2008); extreme emotional distress see id. § 76-5-205.5(1)(b) (Supp.2009); and imperfect self-defense see id. § 76-5-203(4)(a).

¶ 11 After a three-day trial, the jury found Walker guilty of murder, and the trial court sentenced him to an indeterminate term of six years to life in prison.


¶ 12 Walker claims that he received ineffective assistance of counsel because his attorney (1) declined to call an expert witness after promising the jury evidence of mental illness during voir dire and in the opening statement; (2) did not move to suppress Walker's interrogation for lack of sufficient Miranda warnings; and (3) failed to challenge the accuracy of the transcript of the interrogation.

¶ 13 ‘An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law,’ which we review for correctness.” State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806 (quoting State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162). To support an ineffective assistance of counsel claim, a defendant must demonstrate, first, “that counsel's performance was deficient” and, second, “that counsel's deficient performance was prejudicial.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In evaluating counsel's performance, “an ineffective assistance claim succeeds only when no conceivable legitimate tactic or strategy can be surmised from counsel's actions,” State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.App.1993), and [w]here the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively,” Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. To show prejudice, a defendant must establish that “there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

I. Failure to Call Expert Witness

¶ 14 First, Walker contends that he received ineffective assistance because defense counsel did not call Dr. Gregory to testify regarding Walker's PTSD and how it impacted Walker's actions on the night he admits he shot Cassandra.5 [C]ounsel's decision to call or not to call an expert witness is a matter of trial strategy, which will not be questioned and viewed as ineffectiveness unless there is no reasonable basis for that decision.” State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993). Because counsel's decision not to call Dr. Gregory was a reasonable tactical decision, it does not support Walker's ineffective assistance claim.

A. Expert Testimony Was Not Essential to Walker's Defense.

¶ 15 Walker contends that “the series of facts” outlined in defense counsel's opening statement “could not be supported without the testimony of an expert witness.” Walker compares his situation to that of the defendant in State v. Hales, 2007 UT 14, 152 P.3d 321, whose attorney failed to obtain an expert to provide a competing interpretation of the defendant's CT scans see id. ¶ 69. However, in that case, the court held that it was the lack of investigation that rendered counsel's assistance ineffective, not the ultimate strategic decision to provide no expert testimony. See id. ¶ 83. Indeed, the Hales court expressly noted that although the defense's strategic decisions may have proven reasonable once a full investigation was conducted, ‘because the investigation supporting their choice was unreasonable,’ the defendant's attorneys ‘were not in a position to make a reasonable strategic choice.’ Id. (quoting Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). See generally Raley v. Ylst, 470 F.3d 792, 800-01 (9th Cir.2006) (holding that presenting “a mental defect argument to the jury without the support of expert testimony” is permissible where the decision is based on “reasonable investigation and ... a reasonable strategic choice”). Walker makes no argument that defense counsel's ultimate decision not to call Dr. Gregory was made in the absence of a reasonable investigation into Walker's mental capacity. Consequently, Hales is not applicable here.6

¶ 16 Furthermore, we agree with the State that Dr. Gregory's testimony was not critical because the defense was able to address Walker's PTSD by cross-examining the State's lay witnesses. Specifically, defense counsel elicited testimony that Walker was actively involved in a disabled veterans group, suffered from PTSD, was being regularly medicated, was completely disabled as a result of his PTSD, had previously confronted his wife...

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