State v. Hales

2007 UT 14
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20050131
Plaintiff and Appellee,
v.
F I L E D
Warren Clifford Hales,
Defendant and Appellant. January 30, 2007
---
Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 001903783
Attorneys: 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

No. 20050131 2
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

3 No. 20050131
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.”

No. 20050131 4
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

5 No. 20050131
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. Out
of the corner of his eye, he saw Luther, who was strapped into a
baby carrier but not belted into the car, hit the dash and fall
onto a pile of carpenter’s tools on the floor. Hales pulled
over, took the screaming Luther out of his carrier, and tried
unsuccessfully to comfort him. Hales then strapped Luther back
into the carrier and took him to Merrell’s house.
¶17 Merrell testified that when Hales arrived that day,
Luther was crying and had a half-moon-shaped red mark on the side
of his left eye. She picked Luther up, and he clutched her.
When Merrell asked what had happened, Hales told Merrell that
Luther had fallen and hit the dashboard. While Merrell was
caring for Luther over the course of the day, the bruising on
Luther’s face spread over his forehead and face. But Luther
played, ate, and interacted with Merrell.
¶18 The next day, Luther was still bruised and fussy, and
he threw up a couple of times, but he was otherwise “acting
okay.” Two days after the bruising appeared, on the morning of
December 5, Westerman took Luther to his pediatrician, Dr. Frank
Bentley. Dr. Bentley found that Luther had a mild injury to his
head and a fever caused by an ear infection. It was later that
same day that Luther was rushed to the hospital while in Hales’s
care.
¶19 At trial, Westerman countered Hales’s testimony about
the near-miss car accident by testifying that when Hales dropped
her off at work, Luther was strapped into his carrier and his
carrier was strapped into the seatbelt of the car.

No. 20050131 6
III. INVESTIGATION AND PROSECUTION
¶20 At the beginning of January 1986, the Salt Lake County
District Attorney’s Office screened the case and declined to
prosecute Hales on child abuse charges, noting lack of evidence
of intent. A short time later, on January 28, 1986, Midvale City
Police reopened the case to aid in a possible civil suit by
Westerman. They gave Westerman copies of the files that had
previously been prepared. The criminal case was then closed once
more in February 1986. Westerman apparently never went forward
with her civil action.
¶21 On December 3, 1987, the Utah Attorney General filed a
civil lawsuit against Hales, seeking to recover the costs that
the State had incurred for Luther’s care. The State took
depositions of Hales, Westerman, and Dr. Bentley. But this case
also languished, and the docket entries end without explanation
on September 20, 1991.
¶22 The State did nothing further until Luther died on
December 12, 1997. After Luther’s death, the matter was again
referred to the Salt Lake District Attorney’s Office. In January
1998, Jim Cope of the Salt Lake District Attorney’s Office once
again declined to prosecute, noting in the file that “the
evidence considered at the original declination has not improved
with age, and negligent homicide has a statute of only 4 years.”
Cope’s note concluded by saying, “Prosecution of this case would
be requiring a miracle, and I just haven’t performed many
lately.” Sometime around February 2, 1998, the case was then
referred by the Midvale City Police Department to the Attorney
General’s Office, where it sat for two years.
¶23 Finally, on February 29, 2000--about fourteen years
after Luther sustained the brain injuries that left him in a
vegetative state, but only a little more than two years after
Luther’s death--the Utah Attorney General charged Hales with
murder. Hales was arrested in March 2000.
IV. LOSS AND DESTRUCTION OF EVIDENCE
¶24 During the fourteen years between Luther’s initial
injury and the filing of murder charges, some evidence was lost
or destroyed. Retinal scans showing Luther’s retinal
hemorrhaging and audiotapes of the polygraphs administered to
Hales and Westerman were lost; as was the case file of materials
collected by the State for its civil case. Additionally,
sometime prior to Cope’s review of the case in January 1998, the
original criminal investigation file containing the evidence and

1 Although in initially ruling on Hales’s motion to dismiss
based on his due process claims the district court noted only
that the files were destroyed sometime between 1986 and 2001,
Hales’s attorney had stipulated at oral argument on the motion
that the criminal investigation file was destroyed prior to
Cope’s review, which occurred in January 1998.
7 No. 20050131
interviews initially collected by the Midvale City Police
Department was destroyed by that Department.1
¶25 To reconstruct the case against Hales, the State
contacted Westerman–-who in 1986 had received copies of the
documents in Midvale City’s investigative file for purposes of
her civil case--and made copies of the documents that she had
retained. Westerman was also able to provide her deposition from
the civil case. And Detective Hodgkinson (now a Sergeant) still
had audiotapes of his initial interviews of Westerman and Hales.
The State also obtained access to the original CT scans and
medical records, which were still on file with the hospital. The
State added to these materials by interviewing members of
Westerman’s family who had not previously been interviewed (or,
at least, whose interviews were not recorded in the reconstructed
file), including Paul Deem, from whom Hales had sought help on
the night in question.
¶26 Aside from any unknown information that might have been
available in the complete investigative file, it is known that
the audio tapes of the polygraphs administered to both Hales and
Westerman and the retinal scans are still missing. Hales has
also identified possible witnesses who can no longer be found,
including nurses and social workers who were involved in Luther’s
care and interacted with Luther’s family. Hales specifically
points to two witnesses whose absence he claims caused him
prejudice: Annie Bates, a caseworker employed at Primary
Children’s who wrote a report regarding the injuries to Luther
and had talked with Hales and with Luther’s family members; and
Mel Harwood, a Primary Children’s caseworker who, according to
the police reports, contacted police on December 20, 1985, to
report that the hospital had concerns about Westerman and to
request that Westerman take a polygraph. Hales also suggests
that a few other unavailable sources and potential witnesses
might have had information but does not specifically state how
they would have helped him. Finally, Hales challenges the
failure of the Medical Examiner’s Office to perform an autopsy
after Luther’s 1997 death.
¶27 Based on the lengthy delay in prosecution, combined
with the loss, destruction, and erosion of evidence in this case,

No. 20050131 8
Hales filed a pretrial motion to dismiss the action for
violations of his due process rights. On October 28, 2002, the
district court entered a memorandum decision in which it rejected
Hales’s due process arguments because Hales did not prove that
the State delayed for the purpose of gaining a tactical
advantage. The court found that “[t]he record contain[ed] no
evidence to suggest that the government intentionally withheld
its filing of the criminal charge to purposefully gain any
specific tactical advantage over [Hales].” It continued,
Nothing here suggests that the State was
attempting to destroy exonerating evidence or
increase [its] chance to prosecute the
Defendant. In fact, the decision to defer
charging the Defendant until now has left the
State at a distinct tactical disadvantage,
since the State bears the burden of proving
the charge of murder.
V. CT SCANS
¶28 At both the preliminary hearing and at trial, the
State’s case against Hales was based, in large part, on expert
interpretation of the CT scans. The State’s expert, pediatric
neurosurgeon Dr. Marion Walker, testified based on a combination
of the CT scans and the evidence of retinal hemorrhaging that
Luther suffered from shaken baby syndrome. In testimony
interpreting the CT scans, he noted that the injuries depicted
were global rather than localized and thus were not consistent
with an impact to one part of the brain; that the force required
to cause these injuries to a baby’s brain from shaking would be
violent force; and that they would have caused immediate
unconsciousness with no possibility of a “lucid interval.”
¶29 Despite the importance of this evidence to the State’s
case, Hales’s trial attorneys opted not to have an expert look at
the CT scans until the morning of trial, and even then, the
defense expert who looked at the CT scans was found by the
district court to be unqualified to interpret them. Instead,
Hales’s trial attorneys focused on their theory that the
near-miss car accident caused Luther’s injuries. They called a
forensic pathologist, Dr. John Plunkett, who testified that
shaking can cause neck injury, but not brain injury, and
therefore, the most likely cause of the injuries was the impact
from the near-miss car accident that caused the bruising followed
by a lengthy “lucid interval.” A jury convicted Hales of murder,
and he was sentenced to five years to life in prison.

9 No. 20050131
¶30 After Hales’s conviction, he acquired new counsel and
moved for a new trial on multiple grounds. Hales claimed, among
other things, that his trial attorneys rendered ineffective
assistance because they failed to investigate the CT scans.
¶31 In support of his motion, Hales submitted an affidavit
from pediatric neuroradiologist Dr. Patrick D. Barnes in which
Dr. Barnes opined that the initial CT scan taken at Cottonwood
Hospital on December 5, 1985, between 8:41 and 8:45 p.m. shows a
change in cell structure that is “specifically observable in what
is referred to as changes in gray/white differentiation.”
According to Dr. Barnes, “[a]lthough there is some variability,
edema and changes in gray/white differentiation will not appear
in a CT scan until at least 6 to 12 hours after the initiating
insult.” If believed by a jury, this testimony would establish
that the injury to Luther most likely happened prior to the time
he was in Hales’s care on the evening of December 5, 1985.
According to the records, Luther was admitted to Cottonwood
Hospital’s emergency room at 7:34 p.m., and police reports
indicate that the incident occurred at 7:03 p.m. Hales was with
Luther for just 20 to 30 minutes. If the injury occurred six
hours prior to the initial CT scan, it would have occurred around
2:45 p.m, while Hales was at work.
¶32 Dr. Barnes also concluded, contrary to Dr. Walker’s
testimony, that the CT scans of Luther’s brain do not indicate
the cause or violence of the initial injury; that there was
nothing in the scans to indicate how fast the onset of symptoms
occurred; and that there is nothing in the scans inconsistent
with a “lucid interval” after the injury.
¶33 The district court denied Hales’s motion for a new
trial, and Hales appealed both the denial of this motion and his
conviction to this court. He raises eleven issues on appeal:
(1) federal due process; (2) ineffective assistance of counsel;
(3) insufficient evidence; (4) newly discovered evidence;
(5) improper admission of unfounded scientific expert testimony;
(6) improper jury instructions; (7) improper exclusion of a
witness; (8) improper trial court conduct; (9) failure to
sentence to a lesser degree of offense; (10) prosecutorial
misconduct; and (11) cumulative error. We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(i).
STANDARD OF REVIEW
¶34 In this opinion, we address three of the issues
presented by Hales: (1) whether his right to due process was
violated; (2) whether the evidence of his state of mind is
sufficient to support his conviction; and (3) whether he received

2 Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.
3 Id.
4 State v. Hopkins, 782 P.2d 475, 477 (Utah 1989) (quoting
State v. Petree, 659 P.2d 443, 444 (Utah 1983)); accord State v.
Honie, 2002 UT 4, ¶ 44, 57 P.3d 977.
5 Hopkins, 782 P.2d at 477 (quoting Petree, 659 P.2d at
444).
6 Menzies v. Galetka, 2006 UT 81, ¶ 58, _ P.3d _.
7 State v. Brandley, 972 P.2d 78, 81 (Utah Ct. App. 1998)
(internal quotation marks omitted).
No. 20050131 10
ineffective assistance of counsel. Hales initially raised his
due process claim before the district court in a motion to
dismiss. He raised the other two claims in his motion for a new
trial.
¶35 The due process claim presents a mixed question of fact
and law that we review de novo for correctness.2 But “we
incorporate a clearly erroneous standard for the necessary
subsidiary factual determinations.”3
¶36 As for Hales’s claim of insufficient evidence, “‘we
review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict of the
jury.’”4 We will reverse the jury’s conviction only if “‘the
evidence, so viewed, is sufficiently inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime of which
he was convicted.’”5
¶37 Finally, with regard to Hales’s ineffective assistance
of counsel claim, “we review for correctness the trial court’s
application of the law to the facts.”6 Therefore, “when
reviewing the denial of a motion for a new trial based on an
ineffective assistance of counsel claim, we defer to the trial
court’s factual findings unless clearly erroneous, but remain
free to make an independent determination of a trial court’s
conclusions.”7

8 See, e.g., State v. Rynhart, 2005 UT 84, ¶ 12, 125 P.3d
938 (declining to reach a state constitutional claim because it
was not adequately analyzed “as an issue separate and distinct
from its federal counterpart”).
9 U.S. Const. Amend. XIV.
10 See United States v. Lovasco, 431 U.S. 783, 790 (1977)
(citation and internal quotation marks omitted).
11 Dowling v. United States, 493 U.S. 342, 352 (1990).
11 No. 20050131
ANALYSIS
I. HALES’S FEDERAL RIGHT TO DUE PROCESS WAS NOT VIOLATED BY THE
STATE’S DELAY IN FILING CHARGES OR BY THE LOSS AND DESTRUCTION OF
EVIDENCE
¶38 We first address Hales’s argument that the State
violated his right to due process under the United States
Constitution by delaying fourteen years before formally charging
him with a crime, during which time the initial investigative
file was destroyed and evidence that would have been available
when Luther was injured in 1985 was lost. Hales makes his due
process arguments with reference only to the United States
Constitution and cases interpreting federal law; so we interpret
his briefs to waive any due process claims under our state
constitution, and we analyze his claims solely under federal due
process precedents.8 We conclude that Hales has not established
that his prosecution violated his federal due process rights
because the delay between Luther’s death in December 1997 and the
filing of charges in February 2000 was only a little over two
years, the delay or destruction of evidence was not undertaken in
bad faith, and Hales has shown only that the evidence that was
lost or destroyed between 1985 and 2000 was, at most, potentially
exculpatory.
¶39 The Fourteenth Amendment of the United States
Constitution prohibits state governments from “depriv[ing any
person] of life, liberty, or property, without due process of
law.”9 In the context of criminal prosecutions, the United
States Supreme Court has interpreted this to mean that the
government must not offend “those fundamental conceptions of
justice which lie at the base of our civil and political
institutions, and which define the community’s sense of fair play
and decency.”10 But the Court has “defined the category of
infractions that violate ‘fundamental fairness’ very narrowly.”11

12 Id.
13 Arizona v. Youngblood, 488 U.S. 51, 55 (1988).
14 373 U.S. 83 (1963).
15 467 U.S. 479 (1984).
16 See Youngblood, 488 U.S. at 55-56 (citing Trombetta, 467
U.S. at 489); State v. Bakalov, 1999 UT 45, ¶ 49, 979 P.2d 799.
17 488 U.S. 51.
18 Id. at 57; State v. Gulbransen, 2005 UT 7, ¶ 46, 106 P.3d
734.
19 431 U.S. 783 (1977).
20 404 U.S. 307 (1971).
21 Lovasco, 431 U.S. at 788-89; Marion, 404 U.S. at 324;
State v. Bailey, 712 P.2d 281, 283 (Utah 1985).
No. 20050131 12
“[B]eyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”12
¶40 These broad principles have been refined in what the
United States Supreme Court has called “the area of
constitutionally guaranteed access to evidence”13 into at least
three tests that apply to different fact situations in which a
defendant is deprived of evidence that could be helpful to his
defense. They are as follows: (1) the test developed in Brady v.
Maryland14 and California v. Trombetta,15 which applies when the
state fails to disclose material exculpatory evidence or destroys
evidence whose exculpatory value was apparent;16 (2) the test
developed in Arizona v. Youngblood,17 which applies when the
state either destroys or fails to preserve “potentially
exculpatory evidence”;18 and (3) the test developed in United
States v. Lovasco19 and United States v. Marion,20 which applies
where loss of evidence is caused by the state’s delay in filing
formal charges against the defendant--commonly known as
“preindictment delay” or “preaccusation delay.”21
¶41 In his brief, Hales primarily presents his due process
challenge to the delay and consequent destruction and loss of
evidence in his case with reference to the test applicable to
cases involving preaccusation delay. But he also argues that
because the circumstances of this case do not fit neatly within
the preaccusation delay jurisprudence, we should apply the

22 Marion, 404 U.S. at 324.
23 See The View Condo. Owners Ass’n v. MSICO, L.L.C., 2005
UT 91, ¶ 29 n.5, 127 P.3d 697.
24 Marion, 404 U.S. at 320; Bailey, 712 P.2d at 283.
25 Marion, 404 U.S. at 321.
26 Lovasco, 431 U.S at 789.
27 Id. (internal quotation marks omitted).
13 No. 20050131
overarching principle of fundamental fairness and hold that the
State violated his right to due process. We will first address
Hales’s due process claim under the umbrella of preaccusation
delay, and then discuss the merits of his generalized due process
challenge.
A. The State’s Preaccusation Delay Was Constitutional
¶42 Hales initially claims that his right to due process
was violated because the State declined to prosecute him until
fourteen years after Luther was severely injured. We analyze the
State’s preaccusation delay, for its constitutionality under the
Fifth Amendment of the United States Constitution22 as it applies
to the states through the Fourteenth Amendment.23 The Sixth
Amendment right to a speedy trial invoked in “postaccusation
delay” cases does not apply in cases like this where
prosecutorial delay occurs before there is a formal indictment,
information, or arrest.24 Until a formal charge or physical
restraint is imposed on a citizen, “a citizen suffers no
restraints on his liberty and is not the subject of public
accusation,” and thus, “his situation does not compare with that
of a defendant who has been arrested and held to answer.”25
¶43 In the context of oppressive preaccusation delay, the
Due Process Clause “has a limited role to play.”26 “[S]tatutes
of limitations, which provide predictable, legislatively enacted
limits on prosecutorial delay, provide the primary guarantee
against bringing overly stale criminal charges.”27 Preaccusation
delay implicates the United States Constitution only if it
violates due process by offending “those fundamental conceptions
of justice which lie at the base of our civil and political

28 Id.; accord State v. Renzo, 443 P.2d 392, 395 (Utah 1968)
(“Undue delay in bringing one accused of crime before a
magistrate is not, of itself, a denial of due process. It is
only where a preliminary delay in some way deprives an accused of
a fair trial that there can be a denial of due process.”).
29 Lovasco, 431 U.S. at 795; Marion, 404 U.S. at 324.
30 Lovasco, 431 U.S. at 790-96.
31 See id. at 796-97 (leaving to the lower courts the task
of assigning in the first instance constitutional significance to
non-investigative reasons for delay).
32 See, e.g., Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.
1996) (citing cases and concluding, “On the authority of [United
States v. Gouviea, 467 U.S. 180, 192 (1984)], Marion, Lovasco,
and Youngblood, every circuit, other than our own and the Ninth
Circuit, has indeed held that, in order to establish that a
lengthy pre-indictment delay rises to the level of a due process
violation, a defendant must show not only actual substantial
prejudice, but also that the government intentionally delayed the
indictment to gain an unfair tactical advantage or for other bad
faith motives.” (internal quotation marks omitted)).
33 699 P.2d 711 (Utah 1985) (per curiam).
No. 20050131 14
institutions, and which define the community’s sense of fair play
and decency.”28
¶44 In Lovasco and Marion, the United States Supreme Court
indicated that, at minimum, a due process violation would occur
if a prosecutor delayed for the purpose of gaining a tactical
advantage and the delay actually prejudiced the defendant.29 But
the Court held that due process would not be violated where a
prosecutor delays for investigative purposes before bringing
charges.30 Although the United States Supreme Court has not
ruled on whether something less than prosecutorial bad faith
could ever trigger a violation of due process,31 the large
majority of the federal circuits have held that to succeed in a
due process challenge based on preaccusation delay, a defendant
must show both (1) actual prejudice and (2) delay for the purpose
of gaining a tactical advantage or for other bad faith motives.32
¶45 We have addressed preaccusation delay due process
claims under the federal Constitution in three cases since the
United States Supreme Court decided Lovasco: State v. Smith,33

34 712 P.2d 281 (Utah 1985).
35 745 P.2d 447 (Utah 1987).
36 See Smith, 699 P.2d at 713 (citing United States v.
Revada, 574 F.2d 1047 (10th Cir. 1978)); Bailey, 712 P.2d at 283
(same).
37 Revada, 574 F.2d at 1048 (“The rights of a defendant
under the due process clause of the Fifth Amendment are not
violated in the absence of a showing of actual prejudice
resulting from the preindictment delay and that the delay was
purposefully designed to gain tactical advantage or to harass the
defendants.”).
38 Wright, 745 P.2d at 450.
39 See id. (“Defendant has not alleged, and the facts do not
suggest, that the prosecution delayed the filing of charges
against him in order to achieve a tactical advantage.” (emphasis
added)); Bailey, 712 P.2d at 283 (noting that the “two-pronged
test for establishing due process violation requires [a] showing
of actual prejudice and purposeful delay” (citing Revada, 574
F.2d at 1047-48)).
40 See Wright, 745 P.2d at 450 (“We note that in order to
constitute a due process violation, preaccusation delay must
cause ‘actual prejudice to the defendant’s case and result in
tactical advantage for the prosecutor.’” (emphasis added)
(quoting Smith, 699 P.2d at 713)); Smith, 699 P.2d at 713 (“For
preaccusation delay to constitute reversible error, the delay
must cause actual prejudice to the defendant’s case and result in
a tactical advantage for the prosecutor.” (emphasis added)
(citing Revada, 574 F.2d at 1048)).
15 No. 20050131
State v. Bailey,34 and State v. Wright.35 In the first two of
these cases, we cited as authority United States v. Revada36--a
case from the Tenth Circuit Court of Appeals that applied the
above test adopted by the majority of federal circuit courts.37
In the third, we cited as authority our previous two cases.38
However, while our three cases consistently required a showing of
actual prejudice, agreeing with the first prong of the majority
test, our statements in these cases are inconsistent regarding
whether the other prong of the test focuses on the State’s reason
for the delay39 or on the result of the delay.40 We therefore
take the opportunity presented by this case to clarify our intent
to apply the majority test, which considers the reason for the

41 488 U.S. 51, 57-58 (1988).
42 Id. at 58.
43 Id. at 57.
44 Bailey, 712 P.2d at 283.
45 Wright, 745 P.2d at 450 (emphasis added).
46 Id. at 450 (emphasis added); accord Smith, 699 P.2d at
713 (per curiam).
47 574 F.2d 1047, 1048 (10th Cir. 1978).
No. 20050131 16
delay, requiring the defendant to show both (1) actual prejudice
and (2) bad faith.
¶46 We agree with the majority of circuits that delay does
not violate a defendant’s right to due process under the United
States Constitution unless the State delayed in bad faith. We
come to this conclusion in light of the United States Supreme
Court’s emphasis on the constitutional significance of a
prosecutor’s good or bad faith in Arizona v. Youngblood.41 In
Youngblood, the Court held that due process is violated by
destruction of potentially exculpatory evidence only when the
State destroys the evidence in bad faith.42 In support of this
holding, the Youngblood court cited Lovasco and Marion for the
proposition that it had previously “stressed the importance for
constitutional purposes of good or bad faith on the part of the
government when the claim is based on loss of evidence
attributable to the Government.”43
¶47 We therefore reaffirm our prior use of the two-pronged
test adopted by the majority of federal circuit courts in
Bailey44 and the appropriateness of our inquiry in Wright into
whether the “prosecution delayed the filing of charges against
[the defendant] in order to achieve a tactical advantage,”45 and
we disavow the language in Wright and our per curiam decision in
Smith suggesting that the federal due process test looks to
whether preaccusation delay causes actual prejudice and
“result[s] in [a] tactical advantage for the prosecutor.”46
¶48 The result-oriented language that we initially used in
Smith and repeated in Wright is not consistent with United States
v. Revada,47 the decision of the Tenth Circuit that we cited as
authority. Further, it is not consistent with the United States

48 United States v. Lovasco, 431 U.S. 783, 790, 796-97
(1977).
49 Id. at 790 (citing United States v. Marion, 404 U.S. 307,
324-25 (1971)).
50 Id. at 796.
17 No. 20050131
Supreme Court’s focus in Lovasco on the reason for the delay.48
In Lovasco, the United States Supreme Court stated that “proof of
prejudice is generally a necessary but not sufficient element of
a due process claim, and . . . the due process inquiry must
consider the reasons for the delay as well as the prejudice to
the accused.”49 The Court then held that delay for an
investigative purpose will not violate due process.50 This is
true regardless of whether the investigative delay results in a
tactical advantage for the prosecutor.
¶49 As a matter of federal law, we therefore apply the two-
pronged test adopted by the majority of federal circuits, which
requires the defendant to show (1) actual prejudice and (2) delay
for the purpose of gaining a tactical advantage or for another
bad faith motive. We hold that the preaccusation delay in
Hales’s case did not violate Hales’s right to due process under
the United States Constitution because the delay caused no actual
prejudice and the State did not delay in bad faith.
1. The Preaccusation Delay Did Not Cause Actual Prejudice
¶50 Hales argues that he was prejudiced by the fourteen-
year delay between December 1985, when Luther suffered brain
injuries, and February 2000, when Hales was charged with Luther’s
murder. But in so arguing, Hales misses the legal distinction
between the murder charge that the State ultimately brought
against him after Luther died from the brain injuries in 1997 and
the lesser charges that the State could have brought against him
immediately after Luther was injured in 1985. Because the State
could not charge Hales with Luther’s murder until Luther died in
1997, the State actually delayed only two years before filing the
murder charges. To conclude otherwise would be to interfere with
the State’s exercise of its prosecutorial discretion to decide
which charges it would bring against Hales and would encourage
prosecutors to bring lesser charges prematurely where a victim is
likely to die of his or her injuries in order to avoid losing
their ability to prosecute. To prove prejudicial preaccusation
delay, Hales must therefore establish that he suffered prejudice
due to the two-year delay after Luther’s death. Hales cannot do
so.

51 State v. Mouser, 806 P.2d 330, 337-38 (Alaska Ct. App.
1991); see also United States v. Crouch, 84 F.3d 1497, 1515 (5th
Cir. 1996) (“Speculative prejudice does not suffice, and ‘vague
assertions of lost witnesses, faded memories, or misplaced
documents are insufficient.’” (quoting United States v. Beszborn,
21 F.3d 62, 67 (5th Cir. 1994))).
52 See Jones v. Angelone, 94 F.3d 900, 908 (4th Cir. 1996);
see also Crouch, 84 F.3d at 1515 (“A mere loss of potential
witnesses is insufficient absent a showing that their testimony
‘would have actually aided the defense.’” (quoting Beszborn, 21
F.3d at 66)); Mouser, 806 P.2d at 337-38 (“At the very least, the
accused must show that but for the delay, he would have been able
to present favorable evidence.”).
53 Jones, 94 F.3d at 908; see also Crouch, 84 F.3d at 1515
(“[L]oss of witnesses or documents occurring before delay becomes
improper are not considered.”).
54 407 U.S. 514 (1972).
55 See United States v. Marion, 404 U.S. 307, 322-24 (1971);
see also Jones, 94 F.3d at 906-07 (reviewing cases and concluding
(continued...)
No. 20050131 18
¶51 “Mere speculation about the loss of favorable evidence”
is insufficient to support a claim of prejudice.51 If a
defendant claims prejudice because a certain document or a
previously available witness is now missing or unavailable, the
defendant must provide the “expected content” of the document or
the witness’s testimony and indicate how that document or witness
would have aided the defense.52 The defendant must also show
causation by establishing that he could not have obtained the
crucial evidence from another source and that the evidence would
have been available if it were not for the government’s delay in
filing the charges.53 Therefore, we reject Hales’s claim that
actual prejudice was caused by nonspecific negative effects of
delay, including “changing versions of events,” general prejudice
from faded memories, and the “impossibil[ity]” of “assembl[ing]
the missing pieces to a defense that would have been available
two decades ago.”
¶52 Hales’s citations to Sixth Amendment postaccusation
delay cases such as Barker v. Wingo54 are inapposite. The case
law is clear that it is improper to presume prejudice in the
context of Fifth Amendment preaccusation delay claims as we do in
the context of Sixth Amendment postaccusation delay claims.55

55 (...continued)
that the concept of presumed prejudice “has no place” in the
preaccusation delay due process analysis).
56 See Marion, 404 U.S. at 321-23.
19 No. 20050131
Nebulous problems such as “faded memories” are inherent in any
lengthy preaccusation delay, and we presume that they were
considered by the legislature in deciding that there should be no
statute of limitations for murder.56
¶53 Hales also claims, somewhat more concretely, that he
was prejudiced by delay because the delay caused the loss of
retinal scans of Luther’s eyes showing retinal hemorrhaging and
the loss of witnesses who might have cast some suspicion on
Westerman. But Hales has not established that he would likely
obtain favorable evidence from the retinal scans. And with
regard to the witnesses, the most he has established is that one
caseworker employed at Primary Children’s, Mel Harwood, had
sufficient concerns regarding Westerman to call police to ask
that she take a polygraph test, but he does not know on what
information this is based. He cannot tell us if it was based on
a hospital worker’s hunch, on mistrust of the mother, or on some
evidence that would prove to be more substantial and useful at
trial. Similarly, although Hales thinks that social worker Annie
Bates’s testimony would be useful, he provides no indication of
what she would say. Therefore, even if both the retinal scans
and the witnesses disappeared in the two-year period from
December 1997 to February 2000 rather than during the initial
twelve-year period from 1985 to 1997 (which seems unlikely),
Hales has not been able to establish that the disappearance of
that evidence caused prejudice.
¶54 We also reject Hales’s claim that he was prejudiced due
to the destruction and reconstruction of the evidentiary file.
Hales has not shown causation because he has not established that
the file was destroyed during the two-year delay after Luther’s
death rather than during the prior twelve years. In fact, during
the hearing on the motion to quash bindover, where Hales raised
his due process claims, Hales’s attorney told the district court
that the file had been destroyed sometime prior to Cope’s review
of the file in January 1998, which review occurred less than a
month after Luther’s death. Furthermore, Hales is not able to
point to any favorable information known to be missing from the
file. The most Hales can say about the file is that it may have
contained “potentially exculpatory evidence.” A claim that
potentially exculpatory evidence has been destroyed is better

No. 20050131 20
analyzed under the standard provided by Youngblood, as we discuss
further in Part I.B.
¶55 Similarly, we reject Hales’s claim that he was
prejudiced by the State’s failure to conduct an autopsy after
Luther’s death in 1997. Regardless of whether Hales could
satisfactorily explain how the missing evidence would have aided
his defense, Hales cannot allege that the delay in charging Hales
after Luther’s death actually affected the State’s choice not to
conduct an autopsy because the State made that choice shortly
after Luther’s death and before any significant delay occurred.
We therefore conclude that Hales has not proven sufficient facts
to establish that he was prejudiced by the State’s preaccusation
delay.
2. The State Did Not Delay in Bad Faith
¶56 There is likewise no evidence that the State delayed
for the purpose of gaining a tactical advantage or otherwise
delayed in bad faith. In addressing Hales’s motion to dismiss,
the district court found that “[t]he record contain[ed] no
evidence to suggest that the government intentionally withheld
its filing of the criminal charge to purposefully gain any
specific tactical advantage over [Hales],” and that “[n]othing
here suggests that the State was attempting to destroy
exonerating evidence or increase [its] chance to prosecute the
defendant.” In his briefs before us, Hales does not challenge
these findings or otherwise allege that the State acted in bad
faith, but claims only that he was prejudiced. We therefore hold
that Hales has not established that the preaccusation delay in
filing murder charges violated his right to due process under the
United States Constitution. Having rejected his due process
claim based on preaccusation delay, we now address his claim that
the loss and destruction of evidence violate general principles
of fundamental fairness.
B. Hales’s Right to Due Process Has Not Otherwise Been Violated
by Loss or Destruction of Evidence
¶57 Although Hales grounds his due process arguments almost
exclusively on cases involving either preaccusation or
postaccusation delay, Hales’s plea that we consider the broader
due process implications of this case prompts us to briefly
consider the remaining branches of the analysis that we apply in
the area of constitutionally guaranteed access to evidence.
¶58 Even when there is no delay, the State’s loss and
destruction of evidence can violate a defendant’s due process
rights in certain circumstances. The federal due process test

57 California v. Trombetta, 467 U.S. 479, 489 (1984).
58 Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).
59 Id. at 57.
60 Id.; State v. Gulbransen, 2005 UT 7, ¶ 46, 106 P.3d 734.
21 No. 20050131
that applies to the loss or destruction of evidence depends,
however, on whether the defendant can prove that the evidence
destroyed “possess[ed] an exculpatory value that was apparent
before the evidence was destroyed”57 or was only “potentially
exculpatory.”58 At most, the evidence that Hales alleges was
lost or destroyed was “potentially exculpatory” or evidence “of
which no more can be said than that it could have been subjected
to tests, the results of which might have exonerated the
defendant.”59 Therefore, we turn to the federal due process test
from Youngblood, under which a defendant carries the burden of
showing that the State failed to preserve potentially exculpatory
evidence and that it did so in bad faith.60 As we have already
noted, the district court found that the State did not act in bad
faith, and Hales has not challenged this finding. The district
court stated, “Nothing here suggests that the State was
attempting to destroy exonerating evidence or increase [its]
chance to prosecute the defendant.”
¶59 In conclusion, Hales has not presented evidence that
the erosion, loss, and destruction of evidence in this case
violated his due process rights. Therefore, although the State’s
failure to retain evidence in this case was ill-advised, it was
not so egregious as to rise to the level of a due process
violation that would require us to vacate Hales’s conviction. We
therefore turn to Hales’s argument that we should vacate his
conviction for insufficient evidence.
II. THE JURY’S VERDICT WAS SUPPORTED BY SUFFICIENT EVIDENCE
OF DEPRAVED INDIFFERENCE
¶60 Hales next argues that there was not sufficient
evidence that he acted with the state of mind necessary to
convict him of murder and we should therefore vacate his
conviction. We disagree. At trial, the State presented its
murder case against Hales on two alternative theories: (1) that
“intending to cause serious bodily injury to another, [he]
commit[ted] an act clearly dangerous to human life that cause[d]

61 Utah Code Ann. § 76-5-203(2)(b) (Supp. 1985).
62 Id. § 76-5-203(2)(c).
63 State v. Bolsinger, 699 P.2d 1214, 1219 (Utah 1985)
(emphasis added); accord State v. Powell, 872 P.2d 1027, 1030
(Utah 1994).
64 State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346
(citations and internal quotation marks omitted).
No. 20050131 22
the death of another”61 or (2) “acting under circumstances
evidencing a depraved indifference to human life, [he] engage[d]
in conduct which create[d] a grave risk of death to another and
thereby cause[d] the death of another.”62 The State needed to
provide only enough evidence to satisfy either of these tests,
and we review the evidence in the light most favorable to the
jury’s guilty verdict.
¶61 To convict a defendant of depraved indifference murder,
which is not as difficult to prove as intentional murder, a jury
must find that the defendant (1) “engaged in conduct which
created a grave risk of death to another and that conduct
resulted in the death of another--the actus reus”; (2) “knew that
his conduct or the circumstances surrounding his conduct created
a grave risk of death to another--the mens rea”; and (3) “acted
under circumstances evidencing a depraved indifference to human
life . . . --an evaluation of the actus reus.”63
¶62 Viewed in the light most favorable to the jury’s
verdict, Westerman’s testimony that Hales said, “I’m sorry I did
it” while driving her to the hospital supports an inference that
Hales believed that he had harmed Luther, but it is insufficient
to support a reasonable inference that Hales confessed to
inflicting the injuries intentionally or with depraved
indifference. Therefore, all of the evidence relating to Hales’s
mental state is circumstantial. When determining whether a
mental state is sufficiently supported by circumstantial
evidence, we ask “(1) whether the State presented ‘any evidence’
that [the defendant] possessed the requisite intent, and
(2) whether the inferences that can be drawn from that evidence
have a basis in logic and reasonable human experience sufficient
to prove that [the defendant] possessed the requisite intent.”64
¶63 In this case, the evidence regarding the injuries that
Luther suffered constitutes the key circumstantial evidence as to
Hales’s mental state. At trial, Dr. Walker testified that Luther
suffered a massive brain injury caused by shaken baby syndrome

65 756 P.2d 81, 83 (Utah 1988).
66 Id.
23 No. 20050131
and that the injury shown on the CT scans must have been caused
by “violent force.” Further, because Westerman testified that
Luther was fine when she put him to sleep and Dr. Walker
testimony testified that Luther’s brain injuries must have caused
immediate unconsciousness, the jury could have inferred that
Luther was fine until the 20 to 30 minutes that he spent with
Hales on the night of December 5, 1985.
¶64 Combining this evidence, the jury could reasonably
infer, consistent with logic and reasonable human experience,
that Hales injured five-month-old Luther by violently shaking
him, an act that created a grave risk of death to Luther and that
resulted in Luther’s death, that Hales knew his conduct presented
a grave risk of death to Luther, and that the circumstances
evidenced depraved indifference to human life. Regardless of
Hales’s degree of knowledge regarding the scientific theory of
shaken baby syndrome, reasonable human experience indicates that
an adult would know that violently shaking a five-month-old baby
with less-developed neck control presents a grave risk of death
to the baby.
¶65 In State v. DeMille,65 we came to a similar conclusion
in holding that the state of mind necessary for a murder
conviction was satisfied by expert testimony regarding a child’s
injuries in a child abuse case. In that case, the evidence
showed only that a three-year-old child was in the care of the
defendant when she sustained a skull fracture and attendant brain
injury that was caused by a blunt object striking “with a force
equivalent to a fall from a two- or three-story building.”66
Here, as in DeMille, the jury was presented with evidence of
nonaccidental injuries caused by violent force--evidence from
which the jury could have reasonably inferred that the
perpetrator knew that his conduct would create a grave risk of
death and that he acted under circumstances evidencing depraved
indifference to human life.
¶66 Further, in addition to the evidence regarding the
nature of the injuries, Westerman testified to the following at
trial: that Luther was an inconvenience to Hales; that two days
prior to Luther’s injuries, Hales had an argument with Westerman
in which he told Westerman that he would “hurt” her; that Hales
was the only person with Luther and that Luther was securely
belted into Hales’s truck when he sustained the bruising to his
face; and that Hales was tired and did not want to be disturbed

67 466 U.S. 668 (1984).
68 Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970)).
69 Id.
70 State v. Gonzales, 2005 UT 72, ¶ 64, 125 P.3d 878.
No. 20050131 24
when he returned home from work on the night of December 5, 1985.
Finally, Westerman testified at trial that Hales told her while
driving to the hospital that he was “sorry he did it.” This
additional circumstantial evidence bolsters the physical evidence
that Hales acted with knowledge that his conduct presented a
grave risk of death to Luther. Accordingly, we hold that Hales’s
conviction was supported by sufficient evidence, and we turn to
Hales’s claim that he received ineffective assistance of counsel.
III. HALES’S TRIAL ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE THEY FAILED TO RETAIN AN EXPERT TO INTERPRET
CRITICAL CT SCAN EVIDENCE DEPICTING LUTHER’S BRAIN INJURIES
¶67 Hales argues that his trial attorneys failed to
adequately investigate the facts of his case in that they did not
have a qualified expert examine the CT scans depicting Luther’s
brain injuries. He argues that he was prejudiced by this failure
because, as a result, Dr. Walker’s expert testimony that the CT
scans showed an injury caused by violent shaking that would have
caused immediate unconsciousness went unrebutted despite the
availability of other possible interpretations. We agree.
¶68 As explained by the United States Supreme Court in
Strickland v. Washington,67 the right to counsel embodied in the
Sixth Amendment of the United States Constitution is a “‘right to
the effective assistance of counsel.’”68 A defendant is deprived
of this right where his “counsel’s conduct so undermine[s] the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”69
Therefore, a defendant is entitled to a new trial because of
ineffective assistance of counsel if he proves (A) ”that
counsel’s performance was so deficient as to fall below an
objective standard of reasonableness” and (B) “that but for
counsel’s deficient performance there is a reasonable probability
that the outcome of the trial would have been different.”70 In
this case, Hales has placed sufficient facts in the record to
prove both of these prongs.

71 Strickland, 466 U.S. at 688.
72 Taylor v. Warden, 905 P.2d 277, 283 (Utah 1995); accord
Rompilla v. Beard, 545 U.S. 374, 380-81 (2005); Strickland, 466
U.S. at 690-91.
73 Strickland, 466 U.S. at 690-91.
74 Id. at 689.
25 No. 20050131
A. Hales’s Trial Attorneys Failed To Conduct an Adequate
Investigation
¶69 Because the State’s interpretation of the CT scans was
critical to the State’s case against Hales, Hales’s trial
attorneys’ failure to hire a qualified expert to review the CT
scans constituted a failure to conduct an adequate investigation.
In determining whether counsel’s performance was objectively
reasonable in light of all of the circumstances, we look to
“prevailing professional norms.”71 In accordance with these
norms, our cases recognize that counsel has an important duty to
“adequately investigate the underlying facts” of the case72
because investigation sets the foundation for counsel’s strategic
decisions about how to build the best defense. As explained by
the United States Supreme Court in Strickland,
[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary.73
¶70 Accordingly, we review Hales’s trial attorneys’
decision not to investigate the CT scans to determine whether it
constituted a reasonable professional judgment. In doing so, we
attempt to “eliminate the distorting effects of hindsight” by
adopting Hales’s trial attorneys’ perspective at the time of
their decision to limit their investigation.74 And we “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, [Hales]

75 Id.
No. 20050131 26
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”75
¶71 Hales has established in the record that his trial
attorneys did not acquire the CT scans depicting Luther’s brain
injuries until the morning of trial and that they never subjected
the CT scans to review by an expert qualified to interpret them.
The reasons for this decision are not clear. Post-trial, Hales’s
appellate attorneys acquired access to the CT scans and obtained
an expert opinion from a new expert, pediatric neuroradiologist
Dr. Barnes, that contradicts the interpretation given by the
State’s expert, pediatric neurosurgeon Dr. Walker, and which
suggests that Luther’s injuries happened prior to the time when
Hales was babysitting Luther. Accordingly, Hales moved for a new
trial on two alternative grounds, both of which he has also
raised before us: (1) that the State prevented Hales’s trial
attorneys from subjecting the CT scans to pretrial review by a
qualified expert and that the new expert’s testimony thus
provides “new evidence” upon which we should grant a new trial or
(2) that his counsel provided ineffective assistance. Because we
find ineffective assistance of counsel, we do not reach Hales’s
new evidence claim. We note his “new evidence” argument,
however, because some explanation is warranted regarding Hales’s
claim that his trial attorneys were improperly denied pretrial
access to the CT scans by prosecutors.
¶72 Hales has placed facts in the record showing that after
the preliminary hearing, where the State relied heavily on
evidence from the CT scans, one of Hales’s trial attorneys asked
one of the prosecutors for copies of the CT scans. The
prosecutor replied that copies could not be made for review.
Although Hales has argued that because of this he was improperly
denied access to the CT scans, the district court found that “the
decision [by the defense] not to seek review of the scans appears
to be tactical.” “[W]hile Defendant may not have reviewed the
scans, and Plaintiff may have stated that copies of such were not
available, there is no evidence Defendant was denied access to
the original CT scans.”
¶73 Because the district court found that Hales’s trial
attorneys’ decision not to seek review of the CT scans was
tactical and then rejected Hales’s ineffective assistance of
counsel claim without further analysis, it likely concluded that
Hales’s trial attorneys’ tactical decision not to review the
original CT scans fell within the broad range of reasonable
professional assistance. We accept the trial court’s factual

27 No. 20050131
finding that the decision was “tactical,” but we disagree to the
extent that the district court concluded that this tactical
decision was reasonable.
¶74 The State’s presentation of its case at the preliminary
hearing put Hales’s trial attorneys on notice that the State’s
interpretation of the CT scans depicting Luther’s brain injuries
was critical to the State’s case against Hales. Because the
State had no witness to the cause of Luther’s injuries, the
medical evidence in the case, and in particular the CT scans, was
the primary source of information regarding what happened to
Luther. In fact, the State itself stated in its closing argument
that Dr. Walker’s testimony regarding the CT scans was “critical”
to determining what happened to Luther while he was in Hales’s
care on the night of December 5, 1985.
¶75 At the preliminary hearing, Dr. Walker testified to the
following findings: the first CT scan, which was taken on
December 5, 1985, showed initial signs of edema and bleeding over
the surface and between the hemispheres of the brain (or
“subarachnoid hemorrhaging”); the CT scans taken on December 8,
1985, and December 11, 1985, showed “black brain,” evidencing
global injury caused by something like lack of blood flow and
oxygen (or “hypoxia-ischemia”), which injured the brain
throughout; the CT scan from December 8, 1985, showed that the
degree of injury to the front and the back of the brain differed,
indicating that arteries had been occluded by swelling; and
finally, a CT scan taken three years later, on December 13, 1988,
showed a shrunken brain evidencing severe loss of functions.
¶76 Combining these findings and his general observations
about the appearance of the brain in the CT scans, Dr. Walker
made crucial assertions regarding the cause, timing, and violence
of the injury. He testified that the injury he observed from the
CT scans would have rendered Luther immediately unconscious and
that, therefore, there could have been no lucid interval between
the injury and the onset of the severe symptoms. Specifically,
he opined that “the degree of injury we see on these scans tells
us that this child’s brain was severely injured and at the point
of injury this child was unconscious, was deeply brain injured,”
and that the shrunken brain shown in the last CT scan “is simply
a reflection of the amount of injury that occurred on the 5th of
December.” Furthermore, Dr. Walker opined that the global nature
of the brain injury indicated that the injury was not caused by
an impact, and that the force required to cause the injuries to a
baby’s brain shown on the CT scans from shaking would be “violent
force.”

No. 20050131 28
¶77 Based on the CT scans and the other medical evidence
regarding retinal hemorrhaging, Dr. Walker concluded that the
injury to Luther must have been nonaccidental and caused by
shaken baby syndrome. Dr. Walker explained that the
“constellation of injuries” clinically associated with shaken
baby syndrome is indicated by
a brain scan that actually looks quite
similar to what we’ve seen here today. It’s
a dark brain, suggesting that there is early
injury that’s massive and on both sides.
There frequently is evidence of bleeding over
the surface of the brain called subarachnoid
hemorrhage. Oftentimes, there is another
layer of bleeding called subdural hemorrhage.
There is the finding of hemorrhage into the
eyebrows we call retinal hemorrhaging. And
then occasionally we find other evidence of
abuse in these children, they have a higher
incidence of having other forms of abuse.
For example, a skeletal survey might show
evidence of other fractures that are old.
Dr. Walker testified that all of these markers were present
except for the subdural hemorrhaging and evidence of past abuse.
¶78 Despite the centrality of the CT scans of Luther’s
brain to the State’s case, Hales’s trial attorneys did not have a
radiologist or other qualified expert review Luther’s CT scans as
part of their pretrial investigation. Instead, they decided to
rely solely on cross-examination of Dr. Walker and the testimony
of an expert forensic pathologist, Dr. Plunkett, whose primary
theory was that shaking can damage an infant’s neck, but cannot
produce brain injury, and that, therefore, the most reasonable
explanation for the injury was the near-miss car accident
described by Hales that occurred two days before Luther was
hospitalized. Hales’s trial attorneys had apparently hoped that
Dr. Plunkett would be able to testify regarding injuries depicted
in the CT scans, but they waited to show those scans to
Dr. Plunkett until the morning of trial, and they failed to
verify that Dr. Plunkett would be qualified to testify regarding
the CT scans. In fact, the district court prohibited
Dr. Plunkett from offering testimony interpreting the CT scans
because he admitted on voir dire that he did not read CT scans in
his work.
¶79 We are convinced that the testimony at the preliminary
hearing would have indicated to an attorney providing reasonable
professional assistance that the evidence contained in the CT

76 905 P.2d 277 (Utah 1995).
77 Id. at 284.
29 No. 20050131
scans was critical to the case and that Hales would suffer a
significant disadvantage at trial if he were unable to use the CT
scans to illustrate how the injuries would fit into his theory of
the case. Further, because the findings from the CT scans were
crucial to establish the cause, timing, and violence of Luther’s
injuries, we are convinced that an attorney providing reasonable
professional assistance would have sought another opinion from a
qualified expert regarding what could and could not be seen in
the CT scans. This is particularly so where, as here, the
defense’s theory that the injuries were caused by the near-miss
car accident depended upon convincing the jury that the brain
injury shown in the CT scans could have been caused by an impact
injury and would not have caused immediate unconsciousness as
Dr. Walker had testified.
¶80 We have previously held that an attorney may often
provide adequate assistance without hiring an expert to do a
separate examination of the evidence. For instance, in Taylor v.
Warden,76 we found that a reasonable investigation did not
necessarily require the defense to hire an expert to testify
regarding a fingerprint match because the defendant’s counsel
acknowledged the strength of the State’s expert’s testimony that
thirty-two points of positive comparison and matching prints from
adjacent fingers “eliminat[ed] any possibility of a
misidentification.”77 However, this case differs significantly
from Taylor. Here, the defense’s theory required the jury to
disbelieve Dr. Walker’s interpretation of the CT scans, including
the cause, timing, and violence of the injury. Further, although
we have indicated that in many circumstances defense attorneys
may reasonably decide to rebut an expert’s testimony without
hiring a competing expert, the centrality of this medical
evidence to the jury’s determination of Hales’s guilt or
innocence made an expert necessary in this case.
¶81 Nevertheless, the State urges us to conclude that
Hales’s trial attorneys provided adequate assistance because he
had three experienced attorneys from the legal defenders office
who did hire an expert who supported their theory of the case.
The State asserts that once the defense finds one expert to
support their position, it is not necessary to search for
another.
¶82 We note, however, that this is not a case where the
defense already subjected the CT scans to review by one qualified

78 Wiggins v. Smith, 539 U.S. 510, 536 (2003).
No. 20050131 30
expert. Dr. Plunkett was a forensic pathologist who did not
interpret CT scans in his practice, not a radiologist.
Regardless of the strength of the theory supported by
Dr. Plunkett, the existence of that theory cannot excuse the
failure to hire an expert to interpret the CT scans. The defense
prematurely rejected the possibility that the CT scans might
contain evidence that would contradict Dr. Walker’s
interpretation of the scans and cast doubt upon the cause,
timing, or violence of the injury. Moreover, because of the
central role that interpretation of the CT scans played in the
case, it should have been evident to an attorney rendering
reasonable professional assistance that the defense would be
under a distinct disadvantage if it were not allowed to use the
CT scans to support his theory of defense at trial. It is
unlikely that acquisition of another expert opinion would have
harmed the defense’s theory. And the opportunity to acquire
another expert opinion presented a significant opportunity to
discover crucial new information about what happened to Luther.
Accordingly, viewed from the perspective of the pretrial
investigation, the defense’s decision to limit the investigation
this way was not a reasonable professional judgment.
¶83 This is not to say that the defense could not have made
a reasonable professional judgment to rely on Dr. Plunkett and
his theory of the case, but only that the defense could not
reasonably have made this decision without first conducting a
full investigation of the merits of the case. In other words,
Hales’s trial attorneys “were not in a position to make a
reasonable strategic choice” as to whether to rely solely on the
theory posited by Dr. Plunkett “because the investigation
supporting their choice was unreasonable.”78
B. Hales’s Trial Attorneys’ Failure to Investigate the
CT Scans was Prejudicial
¶84 Hales argues that he was prejudiced by his trial
attorneys’ failure to hire a qualified expert to examine the CT
scans for the defense because the initial CT scan taken between
8:41 p.m. and 8:45 p.m. on December 5, 1985, shows changes in
gray/white differentiation that usually do not show up on a scan
until approximately 6 to 12 hours after the injury
occurred--meaning that the scans provide evidence that Luther was
not in Hales’s care when he was injured. Hales supported these
assertions in his motion for a new trial before the district
court with an affidavit from Dr. Barnes, a pediatric
neuroradiologist.

79 The State represented both at oral argument before the
district court on Hales’s motion for a new trial and in its own
rule 23B motion to remand for an evidentiary hearing on a
different ineffective assistance of counsel claim that an
evidentiary hearing upon this specific issue was unnecessary. At
oral argument on Hales’s motion for a new trial, the State
responded to Hales’s arguments that Dr. Barnes’s testimony was
undisputed by stating as follows:
So what we really have here is a doctor who
is giving a different view of evidence. We
have not opposed it at this stage because
this is a motion for a new trial; it is not
the new trial. There would be different
opinions and different evidence if Dr. Barnes
were to testify.
In connection with its rule 23B motion, the State responded as
follows to Hales’s argument that the court should remand for an
evidentiary hearing on additional claims:
The State has no objection to remanding for
[an evidentiary hearing on] other
ineffectiveness claims so long as defendant
shows that a remand is necessary and
warranted under rule 23B. He has not done so
here. Indeed, an evidentiary hearing would
not be warranted on most of his claims
because they are based on legal questions and
accurate record facts. They can thus be
determined without a remand.
In a footnote, the State listed only one exception where remand
would be helpful, and that exception did not include this issue.
31 No. 20050131
¶85 In addressing this issue, we initially note that the
State suggested at oral argument that if we conclude that Hales’s
trial attorneys’ investigation was unreasonable, we should remand
for an evidentiary hearing regarding whether that decision was
prejudicial. Although the State has admitted that Dr. Barnes
would be qualified as an expert, it indicated that because
Dr. Barnes’s testimony has not been “tested,” it would like the
opportunity to challenge Dr. Barnes’s medical opinions with other
medical opinions and texts and thus to establish that his
testimony would likely not affect the outcome of the trial.
Because the record before us is adequate, and because the State
previously has repeatedly represented that an evidentiary hearing
on this specific issue is unnecessary,79 we decline to remand for
an evidentiary hearing.

80 Strickland, 466 U.S. at 695.
81 Id. at 694.
82 Id. at 695-96.
No. 20050131 32
¶86 Under Strickland, even when counsel’s performance is
inadequate, a defendant who has been convicted of a crime is not
entitled to a new trial unless the defendant establishes that
“there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”80
“A reasonable probability is a probability sufficient to
undermine confidence in the [jury verdict].”81 Because “[s]ome
errors will have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary picture,
and some will have had an isolated trivial effect,” in
determining the effect of the error, we “consider the totality of
the evidence before the . . . jury.”82
¶87 In support of his claim of prejudice, Hales points to
the affidavit from pediatric neuroradiologist Dr. Barnes in which
Dr. Barnes concludes that the CT scan of Luther’s brain taken
between 8:41 p.m. and 8:45 p.m. on December 5, 1985, shows a
change in cell structure observable as changes in gray/white
differentiation that takes time to develop. According to
Dr. Barnes, “[a]lthough there is some variability, edema and
changes in gray/white differentiation will not appear in a CT
scan until at least 6 to 12 hours after the initiating insult.”
If believed by a jury, this testimony would establish that the
injury to Luther most likely happened prior to the 20 to 30
minute period on the night of December 5 when he was in Hales’s
care and may have happened while he was in Westerman’s care.
According to the records, Luther was admitted to Cottonwood
Hospital’s emergency room at 7:34 p.m., and police reports
indicate that the incident occurred at 7:03 p.m. Hales was with
Luther for just 20 to 30 minutes. If the injury did indeed occur
six hours prior to Luther’s admission, that would place the
injury sometime around 2:45 p.m.
¶88 Hales argues in his brief that had the defense retained
any qualified radiologist to interpret the CT scans, that expert
would likely have discovered the significance of the changes in
gray/white differentiation in Luther’s original CT scan and would
have interpreted it properly. Dr. Barnes characterizes his
opinions as consistent with the current medical literature. The
State does not contest that an alternative opinion in line with
Dr. Barnes’s interpretation of the CT scans could have been
easily obtained. In fact, the State noted in its argument on a

33 No. 20050131
separate point of appeal that Dr. Barnes’s testimony did not meet
the standard for new evidence because Dr. Barnes was a prominent
physician in his field whom the defense could have discovered
with a “30-second” search on “Google.”
¶89 If introduced at trial, Dr. Barnes’s testimony or
similar testimony from a different expert regarding the
gray/white differentiation and timing of edema would likely alter
the defense’s theory at trial as well as the entire evidentiary
picture presented to the jury. In Hales’s trial, the jury was
presented with no basis in the CT scans for believing that
Luther’s injury happened prior to the time when Hales cared for
him on the night of December 5. In fact, the only witness at
trial who was qualified to explain the injuries in Luther’s CT
scans to the jury and to anchor his opinions regarding the cause
and timing of the injury in the overall picture presented by
those scans was the State’s expert, Dr. Walker. Dr. Walker
testified that the brain injury shown in the CT scans was so
severe that it would have caused immediate unconsciousness. In
closing arguments, the State focused on this testimony, arguing
that because Hales testified that he responded to noises made by
Luther, Luther must have been conscious when Westerman left for
the grocery store. Thus, according to the State, Dr. Walker’s
testimony established that the injury must have occurred while
Luther was in Hales’s care on the night of December 5, 1985, and
was not accidental.
¶90 Instead of directly challenging Dr. Walker’s
conclusions by pointing to evidence contained in the CT scans,
the defense called a forensic pathologist, Dr. Plunkett, to
testify that shaking an infant could not cause brain damage (only
damage to the neck) and that, therefore, the most likely cause of
Luther’s brain injury was the near-miss car accident two days
prior, followed by an unusually lengthy “lucid interval.”
Hales’s trial attorneys also attempted to undermine Dr. Walker’s
conclusions from the CT scans by asking general questions about
CT scan interpretation on cross-examination.
¶91 In comparison, if the defense had presented testimony
from Dr. Barnes or a similar expert regarding the timing of the
gray/white differentiation and developing edema, the jury would
have been presented with a competing interpretation of the CT
scan evidence that would have required it to weigh Dr. Walker’s
interpretation against the interpretation provided by another
qualified expert. This would have undermined the State’s ability
to use the CT scans to conclusively pin responsibility for
Luther’s injuries on Hales. This competing interpretation would
have likely cast doubt on the State’s ability to rule out
theories that the injury may have been accidental or caused

No. 20050131 34
earlier in the day by Westerman. Additionally, it is relevant
that Dr. Barnes’s affidavit further indicates that other crucial
portions of Dr. Walker’s testimony are susceptible to attack by
an expert who is qualified to read the CT scans. For instance,
Dr. Barnes opines that “there is nothing in these scans which
would suggest that the injury was from a shaking as opposed to
[an] impact injury or other possible causes,” including
nonaccidental causes. And he disputes Dr. Walker’s conclusion
that the global nature and degree of the brain injuries shown in
the later CT scan images reflects an injury that would have
caused immediate unconsciousness:
Dr. Walker’s opinions are not in any sense
based upon or supported by the actual CT
scans of Luther Deem. There is nothing in
these scans which indicates what caused the
injury or how fast the onset of symptoms
would occur. There is nothing in these scans
that is inconsistent with a period of
consciousness [lucid interval] after the
injury occurred. There is nothing in regards
to the global nature of the injury which is
indicative of cause or rapidity of the onset
of symptoms. The scan shows the point to
which the injury had progressed--not how it
got there. Beyond that, his conclusions are
unsupported by current medical literature and
study.
Dr. Barnes also asserts that “[g]lobal brain injury is almost
always the product of hypoxia-ischemia” and “does not necessarily
correlate to the severity or violence of the original insult.”
“In fact it may not be the product of traumatic injury.”
¶92 Because the State’s murder case against Hales hinged on
the interpretation of the CT scans to show a nonaccidental injury
caused while Luther was in Hales’s care on the night of December
5, 1985, we think that the jury could have been swayed by a
medical expert able to interpret the CT scans and challenge
Dr. Walker’s critical findings regarding the timing, cause, and
violence of the injuries. Given the centrality of Dr. Walker’s
interpretation of the CT scans, we are convinced that there is a
reasonable probability that, had Hales’s trial attorneys
investigated the CT scans, they could have presented an
alternative interpretation of the CT scans sufficient to raise a
reasonable doubt as to Hales’s guilt. In finding that there was
a “reasonable probability” that, but for the errors, Hales would
not have been convicted, we do not need to find that the jury
would have more likely than not believed another expert’s

83 Id. at 694.
84 Strickland v. Washington, 466 U.S. 668, 686 (1984).
85 Id.
35 No. 20050131
interpretation over Dr. Walker’s. A reasonable probability is a
probability sufficient to undermine our confidence in the
outcome.83 That standard is met on the facts of this case
because Hales’s trial attorneys’ failure to investigate had a
“pervasive effect” on the key evidence at trial.
CONCLUSION
¶93 Hales’s right to due process under the United States
Constitution was not violated by his prosecution after the delay
and loss of evidence in this case. And there was sufficient
evidence from which the jury could reasonably have concluded that
Hales acted with the state of mind necessary to convict him of
murder. Therefore, we decline to vacate his conviction.
Nevertheless, we hold that Hales’s trial attorneys failed to
provide effective assistance of counsel because they did not hire
a qualified expert to give an independent interpretation of the
CT scans of Luther’s brain injuries. Hales’s trial attorneys
thus failed to conduct an adequate investigation regarding the CT
scans that were crucial to the State’s case against Hales. Hales
was prejudiced by this failure because, had his trial attorneys
sought out an expert analysis of the CT scans, there was a
reasonable probability that they would have obtained and the jury
would have credited expert testimony questioning the crucial
evidence regarding the timing, nature, and violence of the
injury. In sum, we hold that Hales’s trial attorneys provided
ineffective assistance, thereby “undermin[ing] the proper
functioning of the adversarial process.”84 Because the trial
“cannot be relied on as having produced a just result,”85 we
remand for a new trial without reaching the remaining claims of
error associated with Hales’s initial trial.
---
¶94 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.