State of Missouri, Respondent v. Justin J. Walkup, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent v. Justin J. Walkup, Appellant. Case Number: WD63949 Handdown Date: 05/23/2006 Appeal From: Circuit Court of Jackson County, Hon. Vernon E. Scoville Counsel for Appellant: Jeannie M. Willibey Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: On appeal of his jury convictions for first-degree murder and armed criminal action, Justin Walkup contends the trial court prejudicially erred in excluding the testimony of his expert witness as a sanction for an alleged discovery violation. REVERSED AND REMANDED. Division Four holds: The trial court erred in excluding the expert's testimony as a discovery sanction. Walkup complied with Rule 25.05 by providing informal notice of its expert several months before trial. The exclusion prejudiced Walkup because the expert's testimony would have provided evidence relevant to the element of deliberation on the first- degree murder charge. The judgment is reversed and the cause remanded for a new trial. Citation: Opinion Author: Lisa White Hardwick, Judge Opinion Vote: REVERSED AND REMANDED. Smith, C.J. and Ulrich, J., concur. Opinion:

Justin Walkup appeals from his jury convictions for first-degree murder, Section 565.020,(FN1) and armed criminal action, Section 571.015. He contends the trial court erred in excluding the testimony of his expert witness as a sanction for an alleged discovery violation. Finding prejudicial error, we reverse and remand. Factual and Procedural History Viewed in the light most favorable to the verdict, the evidence established that on January 21, 2003, Mr. Walkup and his girlfriend, Debra Lilly, had an argument at her home that escalated into physical violence. Mr. Walkup ultimately strangled, beat, and then stabbed Ms. Lilly multiple times in the chest, causing her death. He fled the home in Ms. Lilly's car, which he ran off the highway and crashed shortly thereafter. Mr. Walkup encountered the police near the crash site a few hours later and confessed to the murder. Mr. Walkup was charged with first-degree murder and armed criminal action. At trial, defense counsel sought to rebut a required element of the first-degree murder charge by presenting evidence that Mr. Walkup did not deliberate before attacking Ms. Lilly. When the sole defense witness, Dr. Gregory Sisk, was called to the stand, the trial judge questioned defense counsel about the nature of the expert witness's intended testimony. Defense counsel explained that Dr. Sisk would testify that Mr. Walkup suffers from three mental disorders that cause him to have heightened emotions. Based on the expert testimony about these disorders, defense counsel intended to argue to the jury that it was unlikely Mr. Walkup had the "cool frame of mind" to deliberate before attacking his victim. Defense counsel further explained to the court: What [Dr. Sisk] is not here to testify about is actually anything about the events of that night in question whatsoever. We 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 ...

Following this explanation, the State objected to Dr. Sisk's testimony on the basis that "such evidence is not admissible unless there has been a defense raised under Chapter 552, either excluding responsibility altogether or diminished capacity." Defense counsel argued that the defendant was not attempting to raise an affirmative defense under Chapter 552, rather the expert testimony was only offered to rebut the State's evidence concerning the defendant's state of mind at the time of the offense. After hearing arguments by both parties, the trial court asked when the prosecutor was made aware that Dr. Sisk would be a defense witness. The prosecutor said the State had received Dr. Sisk's report at "the end of last week."(FN2)

The court thereupon ruled that Dr. Sisk was excluded as a defense witness "out of fairness" because "the State . . . didn't get the report until late." The defense made an offer of proof regarding Dr. Sisk's testimony and requested reconsideration of the court's ruling. The court denied reconsideration. The jury found Mr. Walkup guilty of first-degree murder and armed criminal action. The trial court sentenced him, respectively, to concurrent terms of life imprisonment without the possibility of parole and life imprisonment. Following the denial of his post-trial motions, Mr. Walkup has timely appealed. Point on Appeal Mr. Walkup contends the trial court abused its discretion by excluding the testimony of the only defense witness, Dr. Sisk. He argues the exclusion was erroneous because no discovery rules or statutory requirements were violated by the defendant's production of Dr. Sisk's report a few days before trial. Further, he argues that even if a violation had occurred, the remedy of exclusion was too harsh and fundamentally unfair because Dr. Sisk's testimony was materially relevant to Mr. Walkup's sole defense that he did not deliberate prior to causing the victim's death. A trial court has broad discretion in determining whether to admit or exclude testimony, and its ruling will be reversed only upon a showing of a clear abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). We review the trial court's decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Johnson, 161 S.W.3d 920, 924 (Mo.App. 2005). We first address Mr. Walkup's contention that the trial court's exclusion of Dr. Sisk's testimony was unwarranted because no discovery rules were violated by the disclosure of his expert report a few days before trial. Although the State did not assert a discovery violation at trial, it now argues on appeal that Mr. Walkup failed to comply with discovery requests propounded under Rule 25.05(A).(FN3) This criminal discovery rule requires a defendant, upon written request, to disclose the names of any witnesses and any expert reports that the defense intends to present at trial. Rule 25.05(A). The rule does not specify a time limit for responses and does not require that responses be made in writing. On September 15, 2003, the State served the defendant with a discovery request pursuant to Rule 25.05(A). During the following weeks, defense counsel and the prosecutor had several conversations about the nature of Mr. Walkup's defense strategy. Defense counsel disclosed that he did not intend to pursue an affirmative defense of not guilty by reason of insanity (NGRI) or diminished capacity. Defense counsel nonetheless advised the State that Dr. Sisk had been retained to conduct a mental evaluation of Mr. Walkup, and he urged the State to seek its own mental evaluation of the defendant. Thereafter, in November 2003, the State obtained a court order to conduct the evaluation. Several weeks

later, defense counsel formally responded to the State's discovery request by providing a copy of Dr. Sisk's report during the week before trial and by serving written responses on the day before trial. The State never made any objection, during the trial court proceedings, to the timeliness or form of the defendant's discovery responses. The main purpose of the criminal discovery rules is to "allow both sides to know the witnesses and evidence to be introduced at trial" and to eliminate surprise. State v. Whitfield, 837 S.W.2d 503, 508 (Mo. banc 1992). The defense satisfied the purpose of Rule 25.05 by orally notifying the State, several months prior to trial, that Dr. Sisk was conducting a mental evaluation of Mr. Walkup. Written responses were not mandated by the rule, and the State's discovery request did not specify a response date or the need for a written response. Based on the oral responses received from defense counsel, the State was able to proceed with its own mental evaluation and prepare for any defense based on the mental health of the defendant. The State has never contended that it would have done anything different if a written discovery response or Dr. Sisk's report had been received at an earlier date. In fact, prior to the court's ruling on the defendant's motion for a new trial, the prosecutor candidly admitted: "As 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." Accordingly, the trial court abused its discretion in concluding that a discovery violation had occurred and that Dr. Sisk's testimony must be excluded "out of fairness" to the State. The record does not support such a finding. At trial, the State's objection to Dr. Sisk's testimony was based on the defendant's alleged failure to comply with the notice requirements of Section 552.030. Although the trial court did not rule on this objection, the State contends it provides an alternative basis, on appeal, to affirm the exclusion of Dr. Sisk's testimony. Pursuant to Section 552.030, a defendant must provide pretrial notice of his intent to rely on any defense of mental disease or defect that excludes responsibility for the charged offense. Defenses subject to this requirement include NGRI and diminished capacity, where the mental defect renders the defendant "incapable of knowing and appreciating the nature, quality or wrongfulness" of his conduct. Section 552.030.1. Both of these defenses seek to exclude any responsibility of the defendant for committing the charged offense(s). In this case, Defense counsel made it clear during pretrial proceedings that there was no defense of NGRI or diminished capacity, and that the expert witness would not testify that Mr. Walkup was incapable of committing the charged crimes. Defense counsel did not seek to introduce evidence of Mr. Walkup's mental condition to exclude his responsibility for criminal conduct, but rather to rebut a key element of the State's case. To convict on the charge of first-

degree murder, the State had to prove that Mr. Walkup "knowingly caused the death of [Ms. Lilly] after deliberation upon the matter." Section 565.020.1. Deliberation requires that the defendant committed the murder following a period of "cool reflection upon the matter for any length of time no matter how brief." Tisius v. State, 183 S.W.3d 207, 214 (Mo. banc 2006). Defense counsel offered the testimony of Dr. Sisk to establish that, at the time of the offense, Mr. Walkup was suffering from three mental disorders that caused him to have "exaggerated expression of emotions to relatively minor events" and to be "more easily affected by his feelings that the normal person." Based on this expert testimony, defense counsel intended to argue that Mr. Walkup's highly emotional tendency made it less likely that he would have deliberated before killing Ms. Lilly in the heat of their domestic fight. The expert evidence was relevant to establish the defendant's state of mind at the time of the murder. The record is clear that Mr. Walkup did not assert an affirmative defense of excluded responsibility under Section 552.030. Thus, we reject the State's argument that Dr. Sisk's testimony could have been excluded based on the defendant's failure to comply with the notice requirements of that statute. To the contrary, Dr. Sisk's testimony was actually admissible under Section 552.015.2(8) as evidence of a mental disease or defect that proves the defendant "did not have a state of mind which is an element of the offense." There are no procedural prerequisites for the admission of rebuttal evidence under this statutory provision. Because Mr. Walkup should have been allowed to present his expert's testimony under Section 552.015.2(8), we must now consider whether he was prejudiced by the erroneous exclusion of this evidence. The exclusion of testimony as a sanction is to be tested by whether such trial court action results in "fundamental unfairness" to the defendant. State v. Bashe, 657 S.W.2d 321, 325 (Mo.App. 1983). In criminal cases, the erroneous exclusion of defense evidence creates a presumption of prejudice which "can only be overcome by a showing that such erroneous exclusion was harmless error beyond any reasonable doubt." Id. The burden of showing that the exclusion was harmless beyond any reasonable doubt rests with the State. Id. Such a showing can only be determined by examining the facts and circumstances of the particular case, which include "the nature of the charge, the evidence presented, and the role the excluded evidence would have played in presenting a defense." Id. As noted, Mr. Walkup was charged with first-degree murder. The prosecutor acknowledged at trial that the only issue for the jury to consider was whether Mr. Walkup deliberated prior to committing the crime. Mr. Walkup admitted to murdering Ms. Lilly, but he asserted that he could only be convicted of second-degree murder because he did not deliberate. Dr. Sisk was the sole witness offered in support of the defense. The expert witness would have testified that

the defendant suffered from mental disorders that made him prone to high anxiety and exaggerated emotional responses. Evidence with any tendency to make the existence of deliberation more or less probable is relevant to prove the distinction between first-degree murder and second-degree murder. See State v. Richardson, 838 S.W.2d 122, 124 (Mo.App. 1992). Dr. Sisk's testimony was relevant to Mr. Walkup's defense that his mental condition made it unlikely that he deliberated before killing his girlfriend during an angry encounter at her home. The ultimate question for this court to determine is whether the exclusion of Dr. Sisk's testimony "substantively altered the outcome of the case." State v. Simonton, 49 S.W.3d 766, 783 (Mo.App. 2001). Although defense counsel argued during closing that Mr. Walkup was too emotional during the fight and did not coolly reflect on his actions, there was nothing more than circumstantial evidence to support this claim. If the defense had been allowed to present expert evidence regarding the defendant's mental disorders, the jury would have had medical evidence tending to refute the element of deliberation. See State v. Balderama, 88 P.3d 845, 852-54 (N.M. 2004) (expert's testimony regarding the murder defendant's neurological disorder was relevant to the sole trial issue of deliberation). The absence of such evidence precluded the jury from fully and fairly considering whether Mr. Walkup had the requisite mental state to commit the crime of first-degree murder. The exclusion of Dr. Sisk's testimony was not harmless, as it could have provided a medical basis for the jury to reject the first-degree murder charge and convict Mr. Walkup on the lesser charge of second- degree murder. Conclusion We reverse the convictions because Mr. Walkup was prejudiced by the exclusion of his sole defense witness at trial. The cause is remanded for a new trial.

All concur. Footnotes: FN1.All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise noted. FN2.The prosecutor acknowledged receiving a copy of Dr. Sisk's report on or about Friday, January 9, 2004. The trial began on Tuesday, January 12, and the defense sought to present Dr. Sisk's testimony to the jury on Thursday, January 15. FN3.Unless otherwise indicated, all rule citations are to the Missouri Rules of Criminal Procedure 2003.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.