Ross v. State, 20180187

• Decision Date: 15 August 2019
• Docket Number: No. 20180187,20180187
• Citation: 448 P.3d 1203
• Parties: Trovon Donta ROSS, Appellant, v. STATE of Utah, Appellee.
• Court: Utah Supreme Court

448 P.3d 1203

Trovon Donta ROSS, Appellant,

v.STATE of Utah, Appellee.

No. 20180187

Supreme Court of Utah.

Filed August 15, 2019

Troy L. Booher, Dick J. Baldwin, Salt Lake City, for appellant

Sean D. Reyes, Att’y Gen., Andrew F. Peterson, Asst. Solic. Gen., Salt Lake City, for appellee

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

On Direct Appeal

Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 A jury convicted Trovon Donta Ross of aggravated murder and attempted aggravated murder. After a direct appeal, in which his appellate counsel successfully argued for the merger of the murder and attempted murder convictions, Ross filed a pro se petition seeking relief under the Post-Conviction Remedies Act (PCRA). In the petition, he argued that his trial counsel and his appellate counsel were both constitutionally deficient. Ross appealed the district court’s grant of summary judgment. We held that disputed issues of material fact should have precluded summary judgment on Ross’s claim that his appellate counsel was ineffective. We reversed summary judgment and remanded for an evidentiary hearing.

¶2 At that hearing, the district court allowed the parties to introduce extensive evidence about Ross’s trial and appeal in order to evaluate whether either of his attorneys offered ineffective assistance. Ross’s trial counsel testified about his reasoning at the time of trial regarding why he did not raise an extreme emotional distress defense. And the hearing examined appellate counsel’s process and her thinking about the claims she would raise on appeal—including why she did not argue that trial counsel’s failure to seek an extreme emotional distress instruction was ineffective assistance of counsel. The district court also permitted the State to introduce evidence about testimony and documents it was prepared to introduce had Ross’s trial counsel successfully argued that the jury should be instructed on extreme emotional distress.

¶3 The district court ultimately concluded that appellate counsel’s performance was deficient because she had failed to investigate certain arguments while preparing the appeal. But the district court decided that the deficient performance had not prejudiced Ross because his trial counsel had not rendered ineffective assistance. To reach these conclusions, the court relied, in part, on the evidence that the State argued it would have presented at trial had Ross’s counsel requested the extreme emotional distress instruction.

¶4 Ross appeals the post-conviction district court’s conclusion that appellate counsel’s performance did not prejudice him. And he argues that the district court erred when it considered the State’s newly proffered evidence. Ross further asserts that we must also restrain ourselves from considering this evidence as we review whether appellate counsel’s performance prejudiced Ross.

¶5 We conclude that we may consider the evidence entered into the record during the district court proceeding. To ensure that Ross received the counsel the Sixth Amendment guarantees him, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we must determine whether Ross received ineffective assistance and, if so, whether that deficient performance affected the outcome of the proceeding. We see no compelling reason to turn our collective back on evidence properly in the record that will assist us in making that determination. And the district court did not err by reaching that same conclusion. Because the State’s evidence reveals that there was no reasonable probability of a different outcome had Ross’s counsel acted as Ross now wishes he had, we conclude that Ross was not prejudiced by his appellate counsel’s failure to investigate the alleged ineffective assistance of his trial counsel. We affirm.

BACKGROUND

The Murder

¶6 Trovon Donta Ross dated Annie Christensen.

¶7 After her relationship with Ross ended, Christensen met James Thomas May, III. After a few months, they began a committed and exclusive relationship. Soon, Christensen and May regularly spent several nights together each week.

¶8 Early one morning, May and Christensen heard a knock on the door of Christensen’s home. Christensen answered the door. Ross stood outside. May rose from bed, wearing pajama pants and no shirt, and joined Christensen in the hallway as Ross approached them.

¶9 Ross said to May, "So you’re [May], huh?" Ross then turned to Christensen and demanded that she "[t]ell him the last time we had sex." Ross then demanded that Christensen answer other questions. When Christensen refused to comply, Ross pulled out a gun and again demanded answers.

¶10 May testified at trial that "[t]he mood changed a little bit where ... at first ... he was asking questions, and then once he pulled out the gun, the situation become a lot more intense." Christensen pleaded with Ross to leave. Ross then told May, "I can’t let her hurt you like she hurt me."

¶11 With the gun aimed at Christensen, Ross grabbed her and pushed her back into the bedroom. In the bedroom, Ross shot Christensen three times: first in the back of her head and then in her neck and abdomen. The shots killed Christensen.

¶12 As this was happening, May went to the garage and attempted to start his car. As he did, he heard the three shots. May looked up to see Ross standing in the garage’s doorway. May exited the car and began to run down the street. Ross fired his weapon at May—hitting him in the arm and chest. May kept running.

¶13 A neighbor heard the gunshots and saw Ross jump into a van. The neighbor called the police as Ross sped off. Police chased Ross with sirens blaring.

¶14 While Ross drove, he called Christensen’s father and told him, "I just shot and killed your daughter ... and I’m on my way to your home to finish the job." Ross also left a voice message for his boss and again confessed that he had killed Christensen. Ross also threw a gun out his car’s window as he drove.

¶15 The car chase led to a neighborhood cul-de-sac where Ross abandoned his car and attempted to flee on foot. Ross eventually stopped and was arrested.

¶16 Meanwhile, police officers contacted May, who directed them to Christensen’s house. The officers found Christensen’s body face down underneath a blanket in the bedroom.

The Trial

¶17 The State charged Ross with aggravated murder, attempted aggravated murder, and failure to respond to an officer’s signal to stop. The State based the aggravated murder charges on the theory that Ross killed Christensen and attempted to kill May as part of one criminal episode. See UTAH CODE § 76-5-202. The State sought the death penalty.

¶18 Ross did not testify at trial. The district court confirmed that Ross had discussed whether to testify with his trial counsel. Ross affirmed that he did not wish to testify during the guilt phase of the trial.

¶19 Ross’s trial counsel made no opening statement, did not present any witnesses, and only cross-examined five of the prosecution’s nineteen witnesses. At the close of evidence, Ross’s trial counsel moved to dismiss the aggravated murder charge. Ross’s trial counsel argued that the killing of Christensen and the attempted killing of May were "separate criminal episodes" and were "not the type of facts that are covered by [the statutory language of] scheme, course of conduct, a criminal episode." The court denied the motion.

¶20 In his closing argument, Ross’s trial counsel acknowledged that "I don’t believe there is much doubt, in view of the evidence, that Trovon Ross killed Ms. Christensen, and that he attempted to kill Mr. May." Trial counsel focused the rest of his argument on asserting that the homicide and attempted homicide were not committed during or incident to "one act, one scheme, one course of conduct, or one criminal episode in which the homicide was committed." He argued, "There was two acts here, and there was no evidence of any scheme." In his closing, he asked the jury to "return a verdict of murder and attempted murder, and to return a not guilty verdict of aggravated murder."

¶21 After the jury retired to deliberate, Ross’s trial counsel asked to make a record of the trial strategy that he elected and why he had chosen that route. In an in-chambers discussion, Ross’s trial counsel explained that Ross had decided to not accept a plea deal offered prior to trial that would have required the State to recommend a sentence of life without parole. Trial counsel explained that Ross did not want to accept the deal because at that time, he "desired the death penalty." Ross’s trial counsel explained that he had advised Ross that "it was to his benefit to have a trial because ... that would keep his options open."

¶22 Trial counsel continued, "Ross was in agreement with that strategy. I think we followed through with [it]. There was no manslaughter defense raised based on any extreme emotional disturbance because of ... evidentiary problems as are known to Mr. Ross and myself." Ross’s trial counsel explained, "[T]hat’s the reason I’ve done what I’ve done. I think Mr. Ross—he and I have talked about this a lot, on numerous occasions, and I think he agrees with that strategy. So I’d like to put that on the record." The court then confirmed with Ross that this was in fact the strategy that he had agreed upon with his trial counsel. It was.

¶23 The jury returned a guilty verdict on each charge. Ross subsequently agreed to waive his right to a jury for the sentencing phase in exchange for the State’s recommendation of life in prison without parole. The court imposed that sentence and Ross avoided the potential death sentence.

The Direct Appeal ( Ross I )

¶24 Ross appealed and was represented by a different attorney. His appellate counsel argued that his aggravated murder and attempted aggravated murder convictions should merge. In State v. Ross , we agreed and ordered that the two convictions...