State v. Ross, 20041073.

• Citation: 174 P.3d 628,2007 UT 89
• Decision Date: 02 November 2007
• Docket Number: No. 20041073.,20041073.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Trovon Donta ROSS, Defendant and Appellant.
• Court: Supreme Court of Utah

174 P.3d 628

2007 UT 89

STATE of Utah, Plaintiff and Appellee, v. Trovon Donta ROSS, Defendant and Appellant.

No. 20041073.

Supreme Court of Utah.

November 2, 2007.

Mark L. Shurtleff, Att'y Gen., Matthew D. Bates, Asst. Att'y Gen., Salt Lake City, Steven

V. Major, William McGuire, Farmington, for plaintiff.

Elizabeth Hunt, Salt Lake City, for defendant.

NEHRING, Justice:

¶ 1 Early on the morning of June 30, 2003, Trovon Ross arrived at the front door of the home of his ex-girlfriend, Annie Christensen. He carried a loaded gun. Mr. Ross entered the home, and after an exchange of words with his ex-girlfriend and her current boyfriend, James May, Mr. Ross forced Ms. Christensen into a bedroom where he shot her three times, killing her.

¶ 2 Mr. May made an attempt to flee in an automobile parked in the garage. But after being intercepted by Mr. Ross, Mr. May exited the car and took flight on foot. Mr. Ross chased him out of the garage and down the street, firing six shots at him. One shot struck Mr. May, wounding him.

¶ 3 Mr. Ross was apprehended following a chase. He was charged and convicted of aggravated murder and attempted aggravated murder. At Mr. Ross's trial, the sole issue in contention was whether he should be convicted of murder or aggravated murder. Mr. Ross now challenges his conviction on the basis of four claims of error, only the first of which was preserved at the trial court level. First, Mr. Ross alleges he was convicted under an unconstitutional statute — Utah Code section 76-5-202(1)(b) (2003). Second, Mr. Ross contends that his attempted aggravated murder conviction should merge with his aggravated murder conviction. Third, Mr. Ross asserts that the impaneling of an anonymous jury was unfairly prejudicial. And fourth, Mr. Ross believes the State committed prosecutorial misconduct during closing arguments, which affected the outcome of the case, requiring a new trial. We reject Mr. Ross's first, third, and fourth claims; however, the majority finds that the aggravated murder and attempted aggravated murder charges should merge and that the attempted aggravated murder conviction should be vacated.

BACKGROUND

¶ 4 Mr. Ross knocked on Ms. Christensen's door in Clinton, Utah, at approximately 6:10 a.m. on June 30, 2003. Ms. Christensen answered the door and let him in the house. Mr. Ross waited in the front room while Ms. Christensen went to her bedroom and returned with her boyfriend, Mr. May.

¶ 5 Mr. Ross began to interrogate Ms. Christensen about her relationship with Mr. May, asking intimate questions about their sexual activity. When Ms. Christensen did not respond to Mr. Ross's questions, he pulled a gun from his waistline and put the questions to Ms. Christensen again. Ms. Christensen repeatedly asked Mr. Ross to leave, but he would not do so until she answered his questions.

¶ 6 Mr. Ross then asked Mr. May, "Do you have any family here?" Mr. May did not answer, and Mr. Ross responded, "I can't let her hurt you like she hurt me." Mr. Ross then grabbed Ms. Christensen, pointed the gun at her, and pushed her past Mr. May toward the bedroom. Mr. May believed Mr. Ross was going to kill both Ms. Christensen and him and, apparently in an effort to dissuade Mr. Ross from following through with his plan, told Mr. Ross that the Air Force would be looking for him. Unimpressed, Mr. Ross pushed past Mr. May and took Ms. Christensen to the bedroom.

¶ 7 Mr. May fled to the garage and entered his car. Soon thereafter, he heard a gunshot, a pause, then two more gunshots. Mr. May's car was equipped with an ignition interlock device, requiring him to blow into a breathalyzer to demonstrate that he was not intoxicated before his car would start. He blew into the breathalyzer, but because his breathing was "too erratic," the breathalyzer would not permit ignition.

¶ 8 Mr. Ross then appeared in the doorway to the garage. Mr. May threw his keys out of the car, fled the garage, and began to run down the street. Mr. Ross followed, firing six shots. The second shot went through Mr. May's right arm and into his chest, lodging itself under the skin in front of his ribs.

¶ 9 Still able to run despite his wound, Mr. May ran from house to house searching for assistance. He finally managed to stop a car in the street, and the driver called the police. An off-duty officer arrived, and Mr. May told him that Ms. Christensen had been shot and directed the officer to her house.

¶ 10 At least two of Ms. Christensen's neighbors heard the gunfire and saw a white van back quickly out of her driveway, hitting a mailbox before speeding off. The neighbors called 911 and reported the shots and the van's description. Clinton City police arrived at Ms. Christensen's house within minutes of the shooting and found her dead on the floor of her bedroom. An examination of her body revealed three gunshot wounds: one to the back right side of the head, one to the neck, and one to the abdomen.

¶ 11 Meanwhile, at 6:20 that morning, Mr. Ross called Steven Christensen, Ms. Christensen's father. Mr. Ross informed Mr. Christensen that he had just killed his daughter and was "on [his] way to [Mr. Christensen's] home to finish the job."

¶ 12 Several Clearfield City police officers heard the broadcast of the van's description and headed toward the area of the shooting. They passed the van en route, turned around, and activated their lights and sirens, but Mr. Ross would not pull over. The police eventually cornered Mr. Ross in a cul-de-sac of a residential area and, after a brief foot chase, arrested him.

¶ 13 The State charged Mr. Ross with aggravated murder, attempted aggravated murder, and failure to obey an officer's signal to stop. Mr. Ross was tried before a jury in November 2004. At trial, Mr. Ross did not contest his participation in the crimes, but rather limited his efforts to persuading the jury that he was not guilty of aggravated murder. Mr. Ross contended that the killing of Ms. Christensen and the shooting of Mr. May were not "committed incident to one act, scheme, course of conduct, or criminal episode" under Utah Code section 76-5-202(1)(b) and thus did not amount to aggravated murder.

¶ 14 Concerned that the case might "generate substantial public interest and media attention," the trial court impaneled an anonymous jury "to protect the identity and privacy of the jurors[] and to protect jurors, witnesses, and parties from unnecessary commotion, confusion, or influence." The court sought to preserve the jurors' anonymity by assigning each of them a number by which they were identified during the trial. The court informed jurors on more than one occasion — both verbally in the trial court proceedings and on the jury questionnaire that each prospective juror completed — that the use of numbers was to protect their privacy and to encourage jurors' candor during the voir dire process. With one exception, each prospective juror was addressed by both name and number during in-chamber interviews conducted during the course of jury selection. In four different interviews, defense counsel referred to prospective jurors by name, and the State did so three times.

¶ 15 After a three-day trial, the jury convicted Mr. Ross of aggravated murder and all other charges. Mr. Ross waived his right to a jury in the penalty phase, and the State recommended he serve life without parole for the aggravated murder conviction. The court agreed and sentenced him to concurrent prison terms of life without parole, five years to life, and zero to five years.

¶ 16 Mr. Ross appealed.

STANDARD OF REVIEW

¶ 17 Mr. Ross preserved only the first of his four issues raised on appeal. As Mr. Ross's constitutional claim was preserved, we review that issue for correctness. Wood v. Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 7, 67 P.3d 436. "The issue of whether a statute is constitutional is a question of law, which we review for correctness, giving no deference to the trial court." Id. (internal quotation marks and citation omitted). Mr. Ross's other three claims were unpreserved, and we review them for plain error. See State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551; State v. Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186. To prevail under plain error review, a defendant must demonstrate that "`(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.'" State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179 (quoting State v. Hassan, 2004 UT 99, ¶ 10, 108 P.3d 695).

ANALYSIS

¶ 18 With our standard of review in hand, we turn to assessing the merits of Mr. Ross's four issues: (1) whether the subsection of the Utah death penalty statute, under which Mr. Ross stands convicted, is unconstitutionally vague; (2) whether Mr. Ross's aggravated murder conviction and attempted aggravated murder conviction should merge; (3) whether the impaneling of an anonymous jury prejudiced the jury against Mr. Ross; and (4) whether the alleged prosecutorial misconduct requires a new trial.

¶ 19 This opinion contains the majority as to issues (1), (3), and (4) and the dissent as to issue (2). The majority as to issue (2) is contained in the separate opinion of Chief Justice Durham, joined by Justice Durrant and Justice Parrish. The dissenting view in section II of this opinion is that of Justice Wilkins and me.

I. UTAH CODE SECTION 76-5-202(1)(b) IS NOT UNCONSTITUTIONALLY VAGUE

¶ 20 We first address whether Utah Code section 76-5-202(1)(b) is unconstitutionally vague as applied to Mr. Ross. Mr. Ross insists that the vagueness of the aggravated murder statute does not measure up to the guarantees of due process of law and freedom from the imposition of cruel and unusual punishment enshrined in both the United States Constitution and the Utah Constitution. First, we hold that because Mr. Ross was not sentenced to death, he lacks standing to...