State v. Scott

• Decision Date: 24 June 2022
• Docket Number: 20140995-CA
• Citation: 514 P.3d 590
• Parties: STATE of Utah, Appellee, v. Tracy SCOTT, Appellant.
• Court: Utah Court of Appeals

514 P.3d 590

STATE of Utah, Appellee,

v.Tracy SCOTT, Appellant.

No. 20140995-CA

Court of Appeals of Utah.

Filed June 24, 2022

Rehearing Denied August 12, 2022

Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, Tera J. Peterson, and Marian Decker, Salt Lake City, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judge Jill M. Pohlman concurred. Senior Judge Kate Appleby concurred in part and dissented in part, with opinion.¹

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 This case returns to us on remand from the Utah Supreme Court to reconsider Tracy Scott's claims of error after obtaining additional information from the district court. Scott was tried before a jury and convicted of murder. At this stage, we are asked to consider two issues: first, whether a verdict-urging instruction the trial court read to the jury after it indicated it was deadlocked was coercive under the circumstances; and second, whether Scott's trial counsel rendered constitutionally ineffective assistance after the content of an out-of-court statement made by the victim was excluded, and trial counsel failed to make any argument that the statement was being offered for a non-hearsay purpose. We conclude that Scott cannot make his required showing on either issue and affirm his conviction.

BACKGROUND²

¶2 After fighting intensely with each other over the course of several days, Scott shot his wife, Teresa,³ three times while she was lying on their bed. State v. Scott (Scott I), 2017 UT App 74, ¶¶ 7–11, 397 P.3d 837, rev'd , 2020 UT 13, 462 P.3d 350. The couple had been married for nineteen years, and during that time experienced significant conflict. Id. ¶¶ 2–6.

¶3 The State charged Scott with domestic violence murder for killing Teresa. Although Scott admitted that he shot her, he sought a reduction in the charges, arguing that he acted under extreme emotional distress from Teresa's actions in the days before the murder.⁴ See id. ¶ 12. He testified that events preceding the shooting had made him "scared to death" of what Teresa might do to him. Id. ¶ 9. Specifically, Scott asserted that the day before he shot Teresa, he noticed her gun was absent from the gun safe in their bedroom and this discovery frightened him, making him "worried that Teresa was going to use that gun to do some harm to [him]." Id. ¶ 32. He also stated that on the day of the shooting, he noticed Teresa's gun was still missing from the safe. Id. ¶ 10. After that, Scott testified that he left the house and stayed in the garage for some time and, while he was there, Teresa repeatedly leaned her head out the door and stared at him. Id.

¶4 This behavior prompted Scott to "really start[ ] to wig out, just freak out." Id. He resolved at that point that he needed to reenter the house and "confront" the situation, but as soon as he entered the kitchen, the two continued fighting. Id. ¶ 11. Scott eventually "snapped," at which point he went into the bedroom—where Teresa was lying on the bed and pointing her cell phone at him—and took his own gun from the open safe and shot Teresa three times. Id. Scott called 911 and was arrested shortly after authorities arrived. Id.

¶5 During Scott's testimony at trial, he also attempted to explain his fear of Teresa by recounting a threat she allegedly made against him a few days before the shooting—a threat he "thought ... was serious." See id. ¶ 13. As Scott began to elaborate on the threat, the prosecutor objected, asserting that what Teresa said was hearsay,⁵ and therefore could not be admitted into evidence for the jury to consider. Id. The court sustained the objection, stating during a sidebar, "There's no way that you're going to dance around and get [in] a threat without [it] being hearsay." Id. Trial counsel responded simply, "Okay," and moved on without any counterargument. Id. As a consequence, the jury never heard the actual language of the threat, but it was not told to disregard Scott's reference to "the threat" he claimed he had received. See id.

¶6 Following the presentation of evidence, the trial court instructed the jury. One instruction defined extreme emotional distress:

A person acts under the influence of extreme emotional distress when the then-existing circumstances expose him to extremely unusual and overwhelming stress that would cause the average reasonable person under that stress to have an extreme emotional reaction, as a result of which he experienced a loss of self-control and had his reason overborne by intense feelings such as passion, anger, distress, grief, excessive agitation, or other similar emotions.

The court followed this with another instruction, which informed the jury that "[e]motional distress does not include ... distress that is substantially caused by the defendant's own conduct." (Emphasis added.)

¶7 During deliberations, the jury sent the trial court two notes. The first asked, "What is the legal definition of ‘substantially caused?’ " Scott I , 2017 UT App 74, ¶ 15, 397 P.3d 837. The court and counsel for both parties discussed the issue outside of the jury's presence and agreed that "[t]here is no legal definition" for "substantially caused" because "the legislature hasn't defined it." Accordingly, the court did not give the jury a supplemental instruction defining the phrase.

¶8 Without a direct response to its question, the jury continued to deliberate. At some point, it sent a second note stating, "We are at an absolute impasse, 6-2," and elaborating that "[t]wo feel that ‘substantially caused’ needs to be ‘the majority of the time.’ "

¶9 After receiving the second note, the court held another discussion with both counsel. Trial counsel moved for a mistrial, asserting that the jury foreperson's use of the phrase "absolute impasse" meant that the jurors could not "come to an agreement, and that continuing to deliberate [would] make it so that somebody has to give up their honestly held convictions." The prosecutor, on the other hand, proposed crafting an instruction that would define the word "substantial" or, in the alternative, giving the jury an " Allen instruction." See generally Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (generally approving the use of supplemental verdict-urging instructions when a jury is deadlocked); State v. Lactod , 761 P.2d 23, 30–31 (Utah Ct. App. 1988) ("uphold[ing] the non-coercive use of Allen charges" in Utah but recognizing that "there are certain inherently coercive ideas which should not be included in an Allen charge" and adopting a two-part test to determine if such an instruction is impermissibly coercive). The trial court disagreed with trial counsel that there was "anything different between an impasse and an absolute impasse," and interpreted the jury's note as merely conveying that it had "really tried" up to that point, but was having difficulty reaching a verdict. The court also recognized the importance of "look[ing] at [the situation] in context," observing that it was not yet "late at night," which for a weeklong trial meant that the jury had not been deliberating "that long," and also observed that the second note's wording could suggest the jury "might actually be breaking in favor of the defense." Given this context, the court found it was "appropriate to give an Allen charge." The court also made clear that the instruction would ask the jury to continue its deliberations, "specifically asking [jurors] to review all the instructions" already given, while reminding them "not to give up their honest convictions." With those standards in mind, the court opined that its verdict-urging instruction would be "comport[ing] with the case law."

¶10 Less than six hours into deliberations, the trial court read the jury a verdict-urging supplemental instruction:

Members of the jury, I'm going to ask you to continue your deliberations in an effort to agree upon a verdict. I am specifically asking you to review all of the jury instructions I have previously given to you.

This trial represents a significant expenditure of time and effort by you, the court, the parties, and their attorneys. If you should fail to agree upon a verdict, the case is left open and may have to be tried again, and there is no reason to believe that the case can be tried again by either side better or more exhaustively than it has been tried to you.

In order to bring eight minds to a unanimous result jurors should examine with candor the questions submitted to them, with due regard and deference to the opinions of each other. All jurors should consider whether their position is a reasonable one, when it makes no impression on the minds of another equally honest, equally intelligent juror, who has heard the same evidence, with an equal desire to arrive at the truth, under the sanction of the same oath.

Nevertheless, as I previously instructed you, it is your duty as jurors to consult with one another and to deliberate, with a view to reaching an agreement, if you can do so without violence to your individual judgment. You each must decide the case for yourself, but should do so only after a consideration of the case with your fellow jurors. You should not hesitate to change an opinion if convinced that it is erroneous. However, you should not surrender your honest convictions concerning the effect or weight of evidence for the mere purpose of returning a verdict or solely because of the opinion of the other jurors.

¶11 After this instruction, the jury deliberated for approximately two more hours, then returned a verdict finding Scott guilty of murder. Scott was sentenced to a prison term of fifteen years to life.

¶12 Scott appealed, arguing (1) that "the trial court [had] erred by giving a verdict-urging instruction when the jury was at an absolute impasse" and (2) that his trial counsel rendered ineffective assistance in failing to argue that the content of Teresa's threat was...