State v. Hales

Decision Date30 January 2007
Docket NumberNo. 20050131.,20050131.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Warren Clifford HALES, Defendant and Appellant.
CourtUtah Supreme Court

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Janis K. Macanas, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

James C. Bradshaw, Mark R. Moffat, Ann Marie Taliaferro, Salt Lake City, for defendant.

DURRANT, Justice:

INTRODUCTION

¶ 1 In December 1997, Luther Deem ("Luther") died at the age of twelve due to complications from severe brain injuries that he sustained in December 1985 as a five-month-old infant. In February 2000, a little more than two years after Luther's death, the State charged Defendant Warren Hales with murder, alleging that in 1985 Hales shook the then-infant Luther violently, causing his brain injuries. A jury convicted Hales of murder, and the district court denied his subsequent motion for a new trial.

¶ 2 On appeal, Hales asserts two claims that would lead to the vacation of his conviction and nine claims that would lead to a new trial. We address both of the claims that could independently serve as the basis for the vacation of his conviction: (1) that the lengthy delay and the loss and destruction of evidence in this case violated his federal due process rights and (2) that the State presented insufficient evidence that Hales acted with the state of mind necessary to commit murder. We conclude that Hales's federal due process rights were not violated by his delayed prosecution or by the loss of evidence in this case and that the State presented sufficient evidence that Hales acted with the state of mind necessary to commit murder.

¶ 3 As to the nine claims that would result in a new trial, we address only Hales's claim that he received ineffective assistance of counsel because we grant a new trial on that basis. We agree with Hales that his trial attorneys provided ineffective assistance of counsel in failing to retain a qualified expert to examine CT scans of Luther's brain injuries and that this failure was prejudicial. The CT scans of Luther's brain injuries were crucial to the State's case against Hales, and a reasonable investigation of this case would necessarily have included an examination of the CT scans by a qualified expert. Further, because there is a likelihood that Hales's attorneys would have discovered compelling evidence challenging the State's theory regarding the timing of the injuries if they had hired a qualified expert to read the CT scans, their failure to hire such an expert prejudiced Hales. Accordingly, we remand for a new trial.

BACKGROUND

¶ 4 Twelve-year-old Luther Deem died on December 12, 1997, from aspiration pneumonia and infection resulting from brain injuries that he sustained twelve years earlier, in December 1985, when he was a five-month-old infant. Due to those brain injuries, Luther spent nearly all of his life in a persistent vegetative state. Although he was able to go home from the hospital in January 1986 and could breathe without a ventilator, he was blind, he could not walk or talk, and he was fed through a feeding tube for much of the remainder of his life.

¶ 5 On February 29, 2000, two years after Luther's death, the State formally accused Hales of shaking Luther while babysitting him on the night of December 5, 1985, and thereby causing the brain injuries that eventually killed Luther. The State charged Hales with murder, a first degree felony.

I. DECEMBER 1985

¶ 6 Hales met Luther's mother, Michelle Westerman, when Luther was two and one-half months old, and they moved into an apartment together soon after. When Luther was five months old, on the evening of December 5, 1985, Hales returned home from work after Westerman had put Luther to sleep in his crib. Upon Hales's arrival, Westerman asked Hales to go to the grocery store. Instead of going himself, Hales loaned his truck to Westerman and stayed home with Luther. Westerman was gone for approximately 20 to 30 minutes. By the time she returned, Luther had been taken by ambulance to Cottonwood Hospital.

¶ 7 Hales testified that after Westerman left, he lay down on the couch. He then heard Luther make noise in the bedroom, like "he was fussin'." Hales went to Luther's bedroom and tried to give Luther a pacifier, but Luther would not take it. Hales then noticed that Luther was gasping for air and that his eyes had rolled back in his head. Hales picked Luther up and tried to revive him by calling his name, slapping his face, and turning him over and patting him on the back. When nothing seemed to help, Hales put Luther down on the ground and ran to Westerman's brother's nearby apartment to call 9-1-1 and get help. Westerman's brother, Paul Deem, also attempted to revive Luther.

¶ 8 Within five minutes of the 9-1-1 call, the ambulance arrived and took Luther to Cottonwood Hospital. Luther was admitted to Cottonwood Hospital at 7:34 p.m., and a CT scan of his brain was performed between 8:41 p.m. and 8:45 p.m. He was then life-flighted to Primary Children's Hospital ("Primary Children's").

¶ 9 Meanwhile, Hales waited for Westerman to return. He was outside jumping up and down when she pulled up. Before she stopped the truck, he opened the driver's side door and told her to "scoot over." Hales first drove Westerman to Cottonwood Hospital. Then, from there, he drove her to Primary Children's.

¶ 10 Doctors determined that Luther had brain swelling and retinal hemorrhaging and that his injuries were likely nonaccidental and caused by shaken baby syndrome. They noted bruising on Luther's face, but there was no evidence of an impact injury, no neck injury, no injuries to the trunk of his body, and no healed fractures or similar evidence of prior abuse. Additionally, there were no identifiable finger or hand marks on Luther.

¶ 11 Midvale City police officers were alerted that Luther had sustained severe brain injuries likely caused by child abuse, and they began to investigate both Hales and Westerman. According to Westerman's testimony at trial, there was a police officer in the room when the doctor on call, Dr. Allred, first told her that Luther's injuries were caused by child abuse. Westerman reacted by swearing at Dr. Allred, exclaiming that she had never hit her son. Someone said, "Not you, your boyfriend." Westerman then "lost her cool" and either grabbed the police officer's gun and pointed it at. Hales or "just held her fingers [to] him"she could not remember at trial because she said it seemed like a dream. But she admitted telling an investigator from the Attorney General's Office that she had taken the gun. According to Westerman, the officer then threw her up against the wall and nearly handcuffed her for threatening Hales's life, but Dr. Allred intervened. Dr. Allred observed that Westerman's child was injured and that she was "not in her right kind of mind."

¶ 12 During the initial police investigation, Westerman and Hales were read their rights, interviewed, and given polygraphs. Neither Hales nor Westerman was arrested. At that time, Hales appears to have given a version of events similar to what he gave at trial. But on direct examination at trial, he admitted that he had previously described his actions, which actions he demonstrated to the jury, as "slapping" and "shaking" Luther. And on cross-examination, Hales agreed that in an earlier statement he had said that Luther was "squirming" and fussing before he went into Luther's room.

¶ 13 Despite Westerman's initial reaction at the hospital, she subsequently defended Hales. Westerman told the police and hospital social worker Annie Bates that she had never seen Hales harm Luther, that Hales loved Luther like a son and considered himself his father, and that she believed he would not hurt Luther. She told Detective Hodgkinson of the Midvale City Police Department that Hales had said to her on the way to Cottonwood Hospital that he was sorry "but didn't know what to do." She also told Detective Hodgkinson about a fight that she had had with Hales a few days prior, on December 2, 1985, regarding whether she should go out with her friends despite his wanting her to stay home.

¶ 14 Westerman's later testimony at trial diverged from the statements she had made in 1985. Westerman testified that Hales was reluctant to take responsibility for Luther and was inconvenienced by him; that she and Hales had argued on December 2, 1985, because she would not let him and a friend do "acid" in the apartment; and that Hales left the apartment saying, "Michelle, I'm going to hurt you" and stayed out all night. She also testified that while Hales was driving to Cottonwood Hospital, he said "he was sorry he did it" and that, while driving from Cottonwood Hospital to Primary Children's, Hales delayed by stopping four or five times along the way.

¶ 15 At trial, Hales testified that while driving to Cottonwood Hospital he had told Westerman "[t]hat something had happened, something was wrong with [Luther]. And I told her. . . what I'd done and, you know, that I had tried everything I could for him." Hales did not recall stopping on the way to Primary Children's but said that, at the most, he might have stopped for gas. He also denied using acid, having the argument about acid, threatening Westerman, and staying out all night.

II. NEAR-MISS CAR ACCIDENT

¶ 16 During the initial police investigation and at trial, Hales explained that the bruising on Luther's face was from a near-miss car accident that had happened two days earlier, on December 3, 1985, while he was driving Luther to the home of Westerman's sister, Sheryl Merrell. On that day, Westerman started a new job with a new schedule that required Hales to drop her off at work and then to drop Luther off at Merrell's home. According to Hales, while he was driving Luther to Merrell's house after dropping Westerman off at her job, a car pulled out in front of his truck and caused him to slam on his brakes....

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