State v. Whitchurch

554 P.3d 1166

2024 UT App 108

STATE of Utah, Appellee,

v.Kristy Lee WHITCHURCH, Appellant.

No. 20200938-CA

Court of Appeals of Utah.

Filed August 1, 2024

Eighth District Court, Duchesne Department, The Honorable Samuel P. Chiara, No. 181800358

Emily Adams and Freyja Johnson, Salt Lake City, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, John J. Nielsen, Christopher A. Bates, and Andrew F. Peterson, Salt Lake City, Attorneys for Appellee

Judge John D. Luthy authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

LUTHY, Judge:

¶1 Kristy Lee Whitchurch appeals her convictions for murder, aggravated assault, and aggravated burglary. She argues that she was denied the effective assistance of counsel due to several alleged failings of her trial counsel (Counsel) during the presentation of her case below. After considering each of Counsel’s alleged failings, we are not convinced that any of them amounted to deficient performance resulting in prejudice. We therefore affirm.

BACKGROUND¹

[1] ¶2 On the evening of April 6, 2018, Kristy² and her husband were returning to Roosevelt, Utah, after a day trip to Colorado, making several stops along the way. Later that same evening, various members of Kristy’s family were arrested for violently assaulting Roy and Sandra,³ a couple who had once been friends of Kristy’s brother Thomas and his wife, Samantha. Sandra subsequently died as a result of the injuries she received during the assault.

The Backstory

¶3 According to Samantha, she and Thomas had previously been close with Roy and Sandra, but the two couples eventually "went [their] separate ways." About a year after the couples drifted apart, Thomas and Samantha’s four-year-old son (Son) told Samantha that Roy had sexually abused him and that Sandra had watched. The abuse was not initially reported to police, however, because Son "begged [Samantha] not to" do so. Eventually, after several years, Son "said he was ready to call the cops," and Samantha then reported the abuse to police.

¶4 One evening, "probably … about three weeks" after the report to police and without any arrests having been made, family members were gathered at the home of Kristy’s mother (Mother), discussing the subject of Roy and the alleged abuse. Son was there, sitting on Thomas’s lap, and Thomas asked him, "Do you want Dad to beat him up?" Son answered, "Yeah," and several family members immediately responded by heading out the door, at about 9:00 p.m., to go to Roy and Sandra’s house. Samantha drove her white van, with Thomas in the passenger seat and Stephanie (Thomas and Kristy’s sister) and Byron (Stephanie’s fiancé) in the back.

The Attack

¶5 After the "ten minutes or less" drive to Roy and Sandra’s house, Thomas jumped out of the van and headed for the front door. When he reached the door, "he hit it with both of his fists," shattering the glass, and entered the house, with Samantha and Byron close behind. Roy and Sandra had run out the back door when they realized Kristy’s family was approaching, and Thomas, Samantha, and Byron followed them into the backyard.

¶6 Thomas and Byron attacked Roy, with Thomas "punching him in his sides" and Byron also hitting him, including "with a piece of wood." Samantha chased after Sandra, who exited the backyard through a side gate. Stephanie—who had remained outside and was by now wielding a baseball bat—and Samantha were then able to comer Sandra. Samantha "grabbed [Sandra] by her hair," "dragged her down to the ground," and "started hitting her." Samantha "punched her five or six times" and "kicked her once" in "her shoulder blade area." Stephanie then "brought the bat up over her head and b ought it down and hit [Sandra] in the head with it."

¶7 Kristy’s cousin (Cousin) was also allegedly present for the attack, although he purportedly did not arrive in the same vehicle as the other four. The timing of Cousin’s alleged involvement is not entirely clear, but at some point, he was said to have kicked Sandra "in probably the back of her head" and Roy "in the face." Byron also, at some point, left his attack of Roy and "kicked [Sandra] in the face" as well. Samantha was likewise "going back and forth between" Roy and Sandra and at one point kicked Roy "[i]n his side."

¶8 The attack lasted for less than ten minutes. Then the family members fled the scene, throwing the bloodied bat out of the van window during the return trip to Mother’s house.

¶9 One of Roy and Sandra’s neighbors had heard the commotion and called 911 at 9:23 p.m. While on the phone with 911, the neighbor asked Sandra who had attacked her, and, although it was "very hard to understand her" (likely due to her injuries), Sandra identified the family generally and Thomas and Samantha specifically as her attackers.⁴ Police then arrived and asked Roy who had attacked him and Sandra. He specifically identified Samantha, Thomas, Byron, and Cousin (who was later acquitted), but he also referenced both the family generally and the "sisters" as having been involved.

Samantha’s Disclosure of Kristy’s Involvement in the Attack

¶10 Police arrested Thomas, Samantha, Stephanie, Byron, and Cousin and charged them with attempted aggravated murder, aggravated assault, and aggravated burglary. After Sandra succumbed to her injuries about two weeks after the attack, the charges were amended from attempted aggravated murder to aggravated murder.

¶11 That September, while Samantha was in jail awaiting trial, Son attempted suicide. His suicide attempt "kind of turned everything around for [Samantha]." She began thinking about "the guilt of all this" that Son was experiencing, and she "came to the decision that [she] needed to try to do the right thing" and tell "the truth about what [had] happened" on the night of the attack. So although in previous interviews with police and discussions with her attorneys Samantha had refused to tell "about anything that anyone other than [she] and [Thomas] had done that night," she then became willing to discuss the involvement of other family members. It was at this point that Samantha disclosed to her attorneys and police that Kristy had also participated in the attack.

¶12 Following this disclosure and Samantha’s "willingness to accept responsibility," she entered into a plea agreement with the State wherein she was able to plead guilty to the reduced charge of second-degree manslaughter in exchange for her cooperation as a witness for the State. Also following the disclosure, the State arrested Kristy and charged her with murder, aggravated assault, and aggravated burglary.

¶13 Kristy thereafter filed a Notice of Alibi, explaining that on the evening of the attack, she had been traveling back from Colorado with her husband. She said they left Dinosaur, Colorado, at approximately 7:00 p.m. and that they made several stops along the way, including two stops at rest areas as well as stops in Vernal, Utah, to buy "some pizza to take home" and "dog food for their dogs." After that, she said, they stopped at Mother’s house to drop off the pizza, visited with Mother and Kristy’s bedridden dad, and then went home, arriving there after 10:00 p.m.

The Trial

¶14 At trial, the State’s first witness was Samantha, who testified regarding the attack as set forth above. However, she also included details of Kristy’s involvement that night. Samantha testified that Kristy had also been at Mother’s house before the attack and that she had left with the others when they headed to Roy and Sandra’s house. Samantha said Kristy did not ride in Samantha’s van, and Samantha was not entirely sure how Kristy arrived at Roy and Sandra’s house. But she testified that Kristy owned a newer, small, gray SUV at that time.⁵ In any event, Samantha remembered that Kristy had participated in the attack, using a hammer to hit Sandra "in like her hip area" as well as to hit Roy "in his lower back area."

¶15 As part of its initial examination of Samantha, the State asked her about a letter she had written to a male jail inmate in April or May of 2019 explaining why she was in jail. The State then moved to have the letter admitted as evidence, and Counsel responded that he had no objection and that he was "going to refer to it" during cross-examination.

¶16 During cross-examination, Counsel did ask Samantha about the letter, emphasizing its elements that cast Samantha and the victims of the attack in an unfavorable light—specifically, the letter’s indication that Samantha was carrying on "a romantic type of relationship" with a man in prison even though she was married and the letter’s graphic description of the sexual abuse allegedly perpetrated by Roy against Son while Sandra watched.

¶17 On redirect examination, the State asked Samantha to read the entire letter to the jury, saying, "[I]t’s important that we hear the whole thing, to kind of know the context." Samantha then read the entirety of the four-page letter. The portion of the letter relating the attack states as follows:

So one night (April 6, one year ago tonight) Tommy & I decided we were going to go beat their asses. His sister & bro-in-law rode with us. We chased them through their house, caught up to them outside. Tommy had [Roy] so I went after [Sandra], grabbed her, took her to the ground & punched her 5 or 6 times[,] kicked her once, & that was it. As I turned to go check on Tommy, his sister hit [Sandra] in the head with a baseball bat. His other sister and cousin showed up, his sister had a hammer, and trying to make a long story shorter they both got beat pretty bad.

¶18 Roy was the next to testify. He explained the tension that had existed between him and Kristy’s family in the years prior to the attack due to Son’s abuse allegations. Roy specifically testified about a time when he had encountered Kristy in a store and she had told him, "I ought to shoot you." Roy testified that although he had tried to tell her that the allegations were not true, Kristy...