State v. Charles

263 P.3d 469

689 Utah Adv. Rep. 5

2011 UT App 291

STATE of Utah, Plaintiff and Appellee,

v.Billy Justin CHARLES, Defendant and Appellant.

No. 20090845–CA.

Court of Appeals of Utah.

Aug. 25, 2011.

Troy L. Booher and Katherine Carreau, Salt Lake City, for Appellant.Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.Before Judges DAVIS, ORME, and ROTH.

OPINION

ORME, Judge:

¶ 1 Defendant Billy Charles appeals his 2009 conviction of murder, a first-degree felony, see Utah Code Ann. § 76–5–203 (Supp.2010),¹ on the grounds that his constitutional right to due process was violated, his trial counsel was ineffective, and the trial court erred by failing to provide a jury instruction on jailhouse informant testimony. We reverse and remand for a new trial.

BACKGROUND ²

¶ 2 In August 1996, Defendant was living with his girlfriend and their two-year-old son. Several hours after Defendant went to work on August 7, 1996, his sister discovered his girlfriend's body submerged in the bathtub. She could not be revived. The police first believed that she had accidentally drowned, but the medical examiner later ruled the death a homicide.

¶ 3 Eleven years later, in November 2007, the State charged Defendant with murder. In April 2009, a jury convicted Defendant. Defendant moved to arrest judgment, claiming, in part, that the State had misrepresented the nature of its agreement with a jailhouse informant who had testified at trial. After an evidentiary hearing, the trial court denied the motion and subsequently sentenced Defendant to prison for a term of five years to life.

¶ 4 During the eleven years between the murder and the filing of charges, the police undertook various investigatory measures, including: (1) placing a recording device on the victim's grave; (2) sending—in 2002 and 2007—physical evidence acquired in 1997 for DNA testing; (3) interviewing nearby residents about reports of suspicious activity in the area around the time of the victim's death; (4) testing hairs found in the victim's hand (finding that one of them was hers and the other two did not belong to Defendant); (5) investigating an anonymous confession letter received in August 1996; (6) sending, in 2007, clippings from the victim's fingernails for testing; and (7) using various other methods to seek information, such as offering a reward. Defendant suggests, rather persuasively, that the police did not know any more about Defendant's possible culpability in 2007 than they did in 1996.

¶ 5 At trial, Defendant testified that for some time before his girlfriend's death, he had been having mechanical trouble with the gear shift linkage of his 1972 Ford truck. He testified that he could not shift the truck in or out of gear from inside the car when he was parked on a sloping surface, such as his driveway. As a result, he needed someone inside the vehicle to step on the brake while he manually shifted the transmission gears underneath the vehicle from neutral to reverse. After the truck was backed out of the driveway, he would again shift the gears underneath the vehicle from reverse to drive. However, he was able to shift the truck into gear when he was on a flat surface because he could get under the truck without worrying about being run over. He also told the police that when he stopped at his sister's house on the morning of the murder, he was able to shift the truck into gear by himself by using a mason's brush to block the tire.

¶ 6 Because of these mechanical problems, Defendant had been borrowing his sister's car to get to work, but her car was not available on August 7. On August 6, Defendant, his girlfriend, and their son walked to her grandmother's house to ask about borrowing her car the next day. However, the grandmother could not loan Defendant her car.³

¶ 7 On the night of August 6, Defendant had parked in the driveway. He testified that his girlfriend helped him get his truck going the next morning around 6:00 a.m. by braking from inside the truck while he changed gears underneath the vehicle. At the same time, his next-door neighbor was getting ready to take a family trip, and he made several trips between his house and his station wagon to load and install car seats. He recalled that Defendant's truck was running but did not recall seeing anyone by the truck. He also saw the truck roll out of the driveway and drive away, and he noticed that the driver was male. He did not see the victim that morning, but testified that it was “absolutely correct” that the victim could have been out there at some point and he just did not see her because he was inside his house in the course of his coming and going. The next-door neighbor also testified that he had helped Defendant with his truck “once or twice” before the victim's death.

¶ 8 Defendant left for work around 6:00 a.m. on August 7. Around 10:30 a.m., his sister arrived at Defendant's home to pick up the victim for an appointment. The front door was locked, and Defendant's son was alone in the backyard. Defendant's sister entered the home through the back door and discovered the victim submerged in the guestroom bathtub. The water was running and overflowing the tub. Defendant's sister lifted the victim out of the tub and called 911. Police and paramedics arrived but could not revive the victim. The medical examiner subsequently ruled the death a homicide.

¶ 9 Defendant had just started a new job, and officers were unable to locate him to tell him of his girlfriend's death until he arrived home from work and found his family and ten or twelve police officers gathered there. He arrived home on foot around 3:30 in the afternoon and stated that he had run out of gas and a friend had driven him home.⁴ Officers testified that he did not seem to be upset by his girlfriend's death. One officer testified that the first thing he heard Defendant say after learning of his girlfriend's death was, “I need to see if any of my stuff has been stolen.”

¶ 10 Defendant voluntarily spoke to the police that afternoon and the following day. He first told a police officer that his girlfriend was asleep when he left for work. He later stated that his girlfriend had helped him start his truck that morning.

¶ 11 At trial, the State's medical examiner testified that the cause of the victim's death was blunt force trauma and asphyxiation. He opined that the victim had been dead before she was placed in the bathtub and that she died prior to 6:00 a.m., but conceded that she could have died as late as 8:00 a.m. He based his calculation of the time of death on four tests involving body temperature, potassium levels, rigor mortis, and lividity,⁵ respectively, and he testified that all those tests supported his opinion that the victim died before 6:00 a.m. He acknowledged that the temperature of the bath water, which was unknown, would affect his calculations. The medical examiner also testified that the victim would have had “washer woman hands” if she had been in the water prior to 6:00 a.m., and she did not have washer woman hands.

¶ 12 A subsequent girlfriend of Defendant's testified that Defendant believed the victim's death was the result of a robbery gone awry. The girlfriend also testified that one time when she and Defendant were fighting, she called him a murderer and he knocked her down, breaking one of her ribs. He later apologized, telling his girlfriend that he had hurt her “accidentally.” He told her at that time that he had accidentally hurt the victim once when she jumped on his truck and fell off. After his arrest, Defendant told this girlfriend several times that she did not need to talk to the police and alluded to her not being able to see their son if she did talk to the police, implying that Defendant's father would seek custody of their son.

¶ 13 The State's mechanical expert testified that he had tested Defendant's truck in 1996 to see if he could start the truck and make it move forward and backward by himself. His report of that test was lost, so his trial testimony was based on his memory of the tests he performed eleven years earlier. He testified that the gears of Defendant's truck could be shifted from inside the truck or from under the hood without assistance. He acknowledged that he performed these tests on a level surface rather than on a slope such as the slope of Defendant's driveway. The mechanical expert's 1996 affidavit stated that the gears could be shifted from underneath the vehicle or under the hood; however, it does not say that he could shift gears from inside the truck. Although the mechanical expert testified at trial that he was sure that he could shift the gears from inside the truck, he could not remember any other salient details about his investigation of the truck over a decade earlier. Notably, the expert failed to recall that the truck had no steering wheel at the time of his investigation.

¶ 14 The police concluded from their investigation that there was no evidence of a robbery, because a purse, cash, and a Rolex watch had not been taken from the home. The police did find, however, that a safe in which Defendant said he stored drugs and money was open and empty.

¶ 15 Finally, an informant and distant relative of Defendant, who was in jail awaiting sentencing, testified that Defendant had talked to him when they were incarcerated at the same time in 2008 and 2009 while Defendant was awaiting trial. The informant stated that Defendant told him (1) his girlfriend did not have any water in her lungs and “[t]hat's what is going to get me,” (2) “[i]t wasn't supposed to happen like that,” and (3) “[s]he was gone when we put her [in the tub].” To challenge the informant's credibility, Defendant elicited testimony regarding (1) the informant's lengthy criminal history, which included at least seven felonies, several involving deception or dishonesty, and (2) the circumstances surrounding the informant's offer to testify in exchange for help...