State v. Walkup

• Decision Date: 01 May 2007
• Docket Number: No. SC 87837.,SC 87837.
• Citation: 220 S.W.3d 748
• Parties: STATE of Missouri, Respondent, v. Justin J. WALKUP, Appellant.
• Court: Missouri Supreme Court

220 S.W.3d 748

STATE of Missouri, Respondent, v. Justin J. WALKUP, Appellant.

No. SC 87837.

Supreme Court of Missouri, En Banc.

May 1, 2007.

Jeannie M. Willibey, Office of Public Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.

MICHAEL A. WOLFF, Chief Justice.

Introduction

Justin J. Walkup was convicted after a jury trial of first degree murder and armed criminal action for stabbing his girlfriend to death. The trial court excluded the defense's attempt to present expert witness testimony that Walkup had mental disorders that would have made it less likely that he would have deliberated before killing his girlfriend. The element of deliberation — defined by statute as "cool reflection for any length of time no matter how brief"¹ — is what distinguishes first and second degree murder.² If the defense had successfully rebutted the element of deliberation, Walkup may have been found guilty of second degree murder rather than first degree murder.

The defense did not attempt to offer the psychologist's expert testimony to exclude responsibility under what is commonly known as a "not guilty by reason of insanity" plea. On appeal the state defends the trial judge's exclusion on the grounds that the defense did not comply with the procedural notice requirements in section 552.030 and this Court's rules as to mental disease or defect excluding responsibility.³

The state also asserts that the defense violated discovery rules and that exclusion of the expert testimony was an appropriate sanction for the violation.

The psychologist's expert testimony was admissible under section 552.015.2(8)⁴ on the issue of whether Walkup had the requisite state of mind — deliberation — which is an element of the offense of first degree murder. This "diminished capacity" evidence is not subject to the same procedural requirements as is evidence of mental disease or defect excluding responsibility. There was no discovery violation.

The exclusion of the testimony was reversible error.

Facts and Procedural History

Summarized and viewed in the light most favorable to the verdict, the state's evidence was that, on the evening of January 21, 2003, Walkup killed his girlfriend, Deborah, by stabbing and strangling her. Walkup then wrecked Deborah's car when he ran off of the highway. Walkup admitted to several persons that he had killed Deborah. Two knives with Deborah's blood on them were found on the property where Walkup wrecked the car. Walkup admitted to police, orally and in writing, that he had killed Deborah.

Witnesses, including the police who interviewed Walkup, described him as very emotional, on an emotional "roller coaster," talking crazy, alternating between calmness and anxiety, and appearing to be drunk.

Walkup did not testify at trial. The defense called Dr. Sisk as its only witness, and the state objected. Defense counsel said that Dr. Sisk would testify that Walkup suffered from mental disorders that could have affected his ability to deliberate before killing Deborah. Defense counsel said: "[w]e are drawing the line that the doctor should not say . . . in any context that Mr. Walkup was in any way incapable of deliberating on this night. He's simply here to talk about Mr. Walkup's history, to talk about his diagnosis[.]" Defense counsel planned to argue that the jury should consider this evidence in determining whether Walkup "acted in a cool frame of mind," which goes to the issue of deliberation.

The state objected that "such evidence is not admissible unless there has been a defense raised under Chapter 552, either excluding responsibility altogether or diminished capacity." Because Walkup had not notified the state of his intent to pursue such a defense as required by the statute, the state argued that the evidence was inadmissible.

After these arguments, the trial court asked the prosecutor when she became aware that Dr. Sisk would testify. The prosecutor said that she was aware that Dr. Sisk had evaluated Walkup but did not receive his report until the week before trial. Defense counsel did not dispute this, but argued that the state had known for "a long time" that Dr. Sisk was evaluating Walkup. The defense some months prior to trial told the prosecution that it planned to call Dr. Sisk. On that basis, the state requested and received permission to have its own expert evaluate Walkup.

At trial, the state's objection to Dr. Sisk's testimony was that the defendant was required to give notice of a diminished capacity defense under chapter 522, not that the evidence was not timely disclosed. The trial court, however, prohibited the testimony based on its determination that exclusion was "fair" because "the State . . . didn't get the report until late."

Defense counsel made an offer of proof by calling Dr. Sisk to testify outside the jury's presence. Dr. Sisk interviewed and tested Walkup, interviewed Walkup's family and ex-wife, and reviewed Walkup's records. Dr. Sisk testified that Walkup had been consistently diagnosed with and treated for bipolar disorder since he was a teenager. Walkup had been hospitalized for problems related to bipolar disorder and had been treated with medication several times. Dr. Sisk concurred in the prior diagnoses and opined that Walkup suffered from "mixed type" bipolar disorder, which is characterized by a combination of the symptoms of bipolar manic and bipolar depressed. Symptoms of bipolar manic include increased energy and excessive involvement in activities such as substance abuse. Symptoms of bipolar depressed include feelings of sadness and worthlessness and suicidal thoughts. People suffering from mixed type bipolar disorder display feelings of irritability with both manic and depressed episodes and react to events with exaggerated emotions. In other words, an event that would make a normal person mildly sad could send a bipolar person into a deep depression, and an event that would cause excitement in a normal person could make a bipolar person very agitated and anxious. Dr. Sisk testified that "those conditions certainly disrupted [Walkup's] past behavior, his decision making, and how he conducted himself."

Dr. Sisk was the only defense witness. Because he was excluded by the trial court, the defense did not present any evidence. The jury deliberated for eight hours and returned a verdict of guilty for first degree murder and armed criminal action.

After opinion in the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

The judgment is reversed and remanded for a new trial.

Was there a discovery violation in this case?

Although the state did not object to the timeliness of disclosures before or during trial, that was the stated basis of the trial court's exclusion. On appeal, the state argues that this exclusion was proper under Rule 25.05(A), which requires the defendant to disclose — upon written request by the state — expert reports, the results of mental examinations, and the names of all witnesses who will be called. The rule also requires that, "[i]f the defendant intends to rely on the defense of mental disease or defect excluding responsibility, disclosure of such intent shall be in the form of a written statement by counsel for the defendant[.]" Rule 25.05(A)(4). This obligation is continuing; if the defendant later receives more information than initially disclosed, he has the duty to disclose this information to the state as well. Rule 25.08.

Four months before trial, the state served a discovery request seeking: (1) any reports of expert witnesses, including the results of any mental examinations; (2) the names of any witnesses the defense intended to call at trial; and (3) whether the defense intended to rely on a defense of mental disease or defect.

The state does not dispute that, after this request, defense counsel made oral communications regarding the anticipated use of Dr. Sisk as an expert witness. The state was aware that Dr. Sisk was examining Walkup because it requested and received permission to conduct its own examination, based on its assertion that the defense was having Walkup evaluated.⁵

The purpose of the criminal discovery rules, including Rule 25.05, is to eliminate surprise by "allow[ing] both sides to know the witnesses and evidence to be introduced at trial." State v. Whitfield, 837 S.W.2d 503, 508 (Mo. banc 1992). That purpose was satisfied here by defense counsel's oral conversations with the state and by its disclosure of Dr. Sisk's report and his endorsement as a witness prior to trial. The defense also met its requirements under the continuing disclosure obligations of Rule 25.08 by providing Dr. Sisk's report to the state in a timely manner after it was received by the defense.

While the timing and method of the defense disclosures are not ideal, it is significant that the state never objected, before or during trial, to the timeliness or method of disclosure. In fact, the prosecutor stated, "[a]s regards the issue of Dr. Sisk's testimony, the state's argument was not and is not that Dr. Sisk's testimony should have been excluded because the state wasn't given proper notice of what he was going to testify to or what his report said."

Admissibility of evidence of mental disease or defect

The state's objection to Dr. Sisk's testimony at trial was that evidence of mental disease or defect is inadmissible unless the defendant has given prior written notice of his intent to rely on a defense involving mental disease or defect. Although the trial court did not rule on this issue, the state argues it in this Court as an alternative basis for affirming the trial court's decision.

Chapter 552 of the Missouri statutes addresses the admissibility of evidence of mental illness in criminal proceedings. Section 552.015.2 authorizes the use of evidence of mental disease or defect in nine circumstances,...