State v. Scott , 397 P.3d 837 ( 2017 )

2017 UT App 74THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TRACY SCOTT,
Appellant.
Opinion
No. 20140995-CA
Filed May 4, 2017
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 131400842
Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred,
with opinions.
TOOMEY, Judge:
¶1 Tracy Scott was convicted of murdering his wife. He
appeals, contending he received ineffective assistance of counsel
during trial. We agree and reverse and remand for a new trial.
State v. Scott
BACKGROUND
¶2 Tracy Scott and Teresa Scott1 were married for nineteen
years. They had two sons.
¶3 Scott and Teresa’s relationship was both ‚good and bad.‛
Some described it as happy and loving, but it was also
contentious, and they fought often. The fights were ‚explosive‛
and involved taunting, threatening, name calling, profanity, and
sometimes, throwing things at each other. Each of them
frequently threatened divorce, and Scott threatened Teresa’s life
‚multiple times.‛
¶4 The police were called to the couple’s house on a number
of occasions and in 2008 cited Scott for domestic violence. In that
incident, the couple argued, Scott tried to hit Teresa with their
car, then threw a towel over her face and punched her in the
stomach. Teresa filed for a restraining order and they separated,
but she later had the restraining order removed and Scott’s
citation was expunged. The pair reunited.
¶5 Many of the couple’s arguments revolved around
finances. The family incurred debt so Teresa could earn a degree,
but her lack of employment after graduation was a source of
conflict. Teresa criticized Scott for spending money on trips and
firearms instead of paying bills or having their roof repaired.
¶6 Some witnesses testified Scott was the aggressor in the
couple’s fights—that he got more upset and was ‚more
aggressive‛ than Teresa and that he was responsible for
‚[e]ighty percent‛ of the contention. Some testified that Teresa
‚escalate[d]‛ the situation, that she ‚nitpick[ed] and push[ed]‛
1. Because the parties share a last name, we refer to Teresa by her
first name for clarity, with no disrespect intended by the
apparent informality. See Earhart v. Earhart, 2015 UT App 308, ¶ 2
n.1, 365 P.3d 719.
20140995-CA 2 2017 UT App 74State v. Scott
Scott, and kept ‚gnawing [at] him‛ and did ‚not let stuff go.‛
Scott’s coworkers testified that Teresa frequently called his cell
phone while he was at work, and the two would argue over the
phone. If Scott did not answer his phone, Teresa would call the
shop phone or come to his workplace. These calls occurred
several times a week, sometimes two or three times a day, for
four or five years.
¶7 Leading up to the events of this case, Scott and Teresa’s
relationship ‚started to get bad again.‛ Her calls to Scott’s work
became more frequent. Remarks between them ‚got nastier‛ and
‚more hateful,‛ and in the weeks before her death, Scott and
Teresa had ‚constant arguments.‛ Their fighting was ‚[w]orse
than it had ever been.‛
¶8 The day before Teresa’s death, Scott and Teresa began
‚fighting and arguing‛ while Scott was changing the oil in a
family car. The argument got ‚really bad.‛ Scott spilled oil in the
driveway, and they continued to fight about the spill and the
lack of money to replace the oil. Later, Scott saw that Teresa’s
mother had called, and he took the phone into their bedroom to
give it to Teresa. He saw her crouched by the end of the bed, but
did not know what she was doing. As he turned to leave the
room, he saw that the family’s gun safe had been pulled out
from under the dresser where it was usually kept and that it was
open. He also saw that Teresa’s gun was not in the safe.
¶9 Scott testified he was ‚scared to death‛ when he saw the
gun was missing. He was nervous and worried, and he went to
the garage and stayed there until their sons came home. He did
not sleep well that night. The next day Scott ran errands, and
while he was putting new tires on the car, twice purchased the
wrong size because he ‚*wasn’t] thinking straight.‛ Scott did not
want to go home and instead called a coworker to ask if he could
spend the night at the coworker’s house. The coworker
responded that he could meet Scott later that day, and Scott
went home. He did some yard work, but he and Teresa were
fighting the ‚whole time.‛
20140995-CA 3 2017 UT App 74State v. Scott
¶10 Scott went inside the house to use the bathroom. As he
walked into the bedroom, he saw Teresa sitting by the end of the
bed. Although the gun safe had been shut and put away under
the dresser, it was again open and pulled out, and Teresa’s gun
was still missing. Scott immediately left the house without using
the bathroom. He went to the garage, and while he was there, he
saw Teresa several times leaning her head out the door and
staring at him. Scott called his ecclesiastical leader because he
‚didn’t know what to do‛; he testified that he ‚really start[ed] to
wig out, just freak out.‛
¶11 Finally, Scott decided to return to the house and
‚confront‛ the matter. As he walked in, he could hear Teresa
talking on the phone with her mother. While he was in the
kitchen, Teresa yelled at him, and he ‚snapped‛ and ‚*saw+
red.‛ He stormed into the bedroom where he saw her lying on
the bed and pointing her cell phone at him. He looked down at
the safe and saw that her gun was still missing. He reached
down, grabbed the other gun from the safe, and shot Teresa
three times, killing her, then called 911. The police arrived and
arrested Scott.
¶12 At trial, Scott admitted to killing Teresa, but he argued
that he had acted under extreme emotional distress, which
would mitigate the murder charge to manslaughter.
¶13 Scott testified that ‚there was a threat made‛ and when he
saw Teresa’s gun missing from the safe he ‚thought the threat
was serious.‛ Defense counsel asked him to elaborate: ‚When
you say a threat [was] made, are you saying—Who threatened
who?‛ As Scott started to explain the background of the threat,
the prosecutor objected that it was hearsay. The court sustained
the objection and in a sidebar conversation stated, ‚There’s no
way that you’re going to dance around and get [in] a threat
without *it+ being hearsay.‛ Defense counsel said ‚Okay,‛ and
did not offer any counterargument. Counsel continued his
questioning, asking, ‚After you saw the safe open . . . then what
were you thinking?‛ Scott replied, ‚I was thinking that the threat
20140995-CA 4 2017 UT App 74State v. Scott
that I had received the day before . . . [t]hat she was going to—
she was . . . .‛ The court interrupted Scott and called for another
sidebar discussion. The court warned defense counsel to stay
away from that line of questioning, because ‚the only responses
*it was+ getting are clearly hearsay.‛ Counsel agreed and made
no attempt to argue that the statements were not hearsay and
were admissible. Scott did not mention the threat again.2
¶14 At the conclusion of trial, the court instructed the jury on
the elements of murder and the special mitigation of extreme
emotional distress. The instructions stated:
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 instructions also stated that ‚‘*e]motional’ distress does not
include . . . distress that is substantially caused by the
defendant’s own conduct.‛
¶15 The jury deliberated for more than five hours and sent
two notes to the court. One note asked, ‚What is the legal
definition of ‘substantially caused?’‛ The next note informed the
court, ‚We are at an absolute impasse, 6-2,‛ and continued,
‚Two feel that ‘substantially caused’ needs to be ‘the majority of
the time.’‛ Defense counsel moved for a mistrial on the basis that
2. Scott’s testimony did not include the actual words of the
threat. The threat’s content is not included in the record on
appeal, and we do not rely upon it in our analysis.
20140995-CA 5 2017 UT App 74State v. Scott
‚absolute impasse‛ meant that the jury could not ‚continu*e+ to
deliberate without doing violence to their individual judgment.‛
The court denied the motion for a mistrial and instead gave a
supplemental jury instruction, which asked the jury to ‚continue
[its] deliberations in an effort to agree upon a verdict.‛ The
instruction stated, in part,
This trial represents a significant expenditure of
time and effort by you, the court, the parties, and
their attorneys . . . 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. . . . Nevertheless . . . 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.
¶16 After receiving the supplemental instruction, the jury
deliberated for two more hours and found Scott guilty of
murder. Scott was sentenced to prison for fifteen years to life. He
appeals the conviction.
ISSUES AND STANDARD OF REVIEW
¶17 Scott raises two issues on appeal. First he contends the
trial court erred by giving a verdict-urging instruction when the
jury was at an absolute impasse. He also contends his counsel
provided ineffective assistance at trial. Because we conclude
Scott did not receive effective assistance of counsel and reverse
on this basis, we need not address the propriety of the court’s
supplemental instruction.
¶18 When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to
review, and this court must decide whether the defendant was
deprived of effective assistance as a matter of law. Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587. To demonstrate
20140995-CA 6 2017 UT App 74State v. Scott
ineffective assistance of counsel, a defendant must show that his
counsel performed deficiently and that he was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984).
ANALYSIS
I. Deficient Performance
¶19 Scott argues that his counsel’s performance was deficient
because, when the prosecutor objected to testimony regarding a
threat Teresa made to Scott, defense counsel did not attempt to
argue the threat was nonhearsay and thus admissible. Scott
asserts defense counsel had no tactical purpose for failing to
make this argument.
¶20 To show deficient performance under Strickland, Scott
must demonstrate that counsel’s performance ‚fell below an
objective standard of reasonableness.‛ Id. at 688. This standard
asks ‚whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common
custom.‛ Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting
Strickland, 466 U.S. at 690). Scott must also ‚rebut the strong
presumption that ‘under the circumstances, the challenged
action might be considered sound trial strategy.’‛ State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (quoting Strickland, 466
U.S. at 689) (additional internal quotation marks omitted).
¶21 Scott argues on appeal that Teresa’s threat was not
hearsay and was therefore admissible. ‚Hearsay‛ is defined as
an out-of-court statement that ‚a party offers in evidence to
prove the truth of the matter asserted in the statement.‛ Utah R.
Evid. 801(c). Scott argues the threat was not hearsay because it
was not offered to show the truth of the matter asserted—rather,
it was offered to show its impact on Scott. See R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence
779 (2016) (noting that statements may be relevant ‚because of
20140995-CA 7 2017 UT App 74State v. Scott
their effect on the hearer‛ and that such statements have
‚consistently been held to be nonhearsay in a variety of
contexts‛).
¶22 The State conceded on appeal that the threat was not
hearsay, and we agree with both Scott and the State that the
threat was not hearsay. Like questions and commands, threats
are commonly not hearsay, because they do not make assertions
capable of being proved true or false. See United States v. Stratton,
779 F.2d 820, 830 (2d Cir. 1985) (stating that a defendant’s
‚threats are not hearsay because [they were] not offered for their
truth; the threats are verbal acts‛). Here, Scott’s testimony
concerning the threat was not offered to prove the truth of what
Teresa asserted but was offered to show its effect on Scott. Scott’s
defense depended on demonstrating he shot Teresa while under
extreme emotional distress not caused by his own conduct.
Testimony about the threat’s impact would further Scott’s
defense that his distress came from an external source. And as
Scott testified, when he saw that Teresa’s gun was missing from
the safe, he ‚thought the threat was serious.‛ Whether the threat
‚*was+ true is irrelevant, since the crucial factors are that the
statements were made and that they influenced the defendant*’s+
behavior.‛ See State v. Salmon, 612 P.2d 366, 369 (Utah 1980)
(concluding testimony was not hearsay when it was offered,
‚not to prove the truth of what [the informant] said to
defendants, but rather to show that [the informant] had made
statements which induced defendants to commit the offense‛).
¶23 The threat was not inadmissible hearsay, and it follows
that if defense counsel had demonstrated this through proper
argument, the court would have allowed Scott to testify about it.
¶24 Scott next argues that his counsel’s failure to correctly
argue the rules of evidence fell below an objective standard of
reasonableness. We agree.
¶25 In this instance, defense counsel failed to correctly use the
rules of evidence to support Scott’s defense: counsel did not
argue the threat was admissible because it was offered to show
20140995-CA 8 2017 UT App 74State v. Scott
its effect on Scott, rather than to prove the truth of what Teresa
asserted. Counsel’s failure was unreasonable, especially in light
of Scott’s trial strategy, which was to show that his distress
originated outside his own behavior. A serious threat to Scott
from Teresa would have been an important piece of evidence at
trial, and a reasonable attorney would have used the rules of
evidence to explain to the court why the threat was admissible.
Counsel’s lack of argument did not merely ‚deviate*+ from best
practices or most common custom‛—it amounted to deficient
performance. See Harrington v. Richter, 562 U.S. 86, 105 (2011).
¶26 The State argues defense counsel’s performance was not
deficient because ‚counsel had a sound strategic reason not to
seek to admit the specific words of Teresa’s alleged threat.‛
Further, it argues defense counsel did not seek to admit the
specific words of the threat because an ‚imaginary threat‛ could
have had a greater impact on the jury than hearing the actual
words.
¶27 We do not agree that this was a sound strategic reason for
counsel’s actions. While an ‚imaginary threat‛ could have
allowed the jury to conjure something worse than what Scott
would have testified to, the converse is also true. Testimony
about the threat’s actual content could have connected it to
various other aspects of Scott’s testimony, including Teresa’s
threatening behavior in other contexts, and would have
established the foundation for testimony about Scott’s reaction to
seeing the empty gun safe. As it was, Scott did not testify about
it and counsel did not refer to it in closing argument, even
though the underpinning of Scott’s defense was that he acted
under distress not substantially caused by his own conduct.
Under these circumstances, the negative repercussions of
omitting the content of the threat were greater than the possible
benefits; admitting its content would only have strengthened
Scott’s defense. We therefore conclude defense counsel’s actions
could not have been sound trial strategy.
20140995-CA 9 2017 UT App 74State v. Scott
¶28 Because the threat was central to a defense that focused
on trying to show that Scott’s conduct originated from distress
caused by a source other than his own conduct, there was no
strategic reason for counsel not to argue that the threat was
admissible. Scott has therefore met his burden in showing that
his defense counsel’s performance was deficient.
II. Prejudice
¶29 To demonstrate prejudice, Scott must show there is a
‚reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.‛ See Strickland v. Washington, 466 U.S.
668, 694 (1984).
¶30 Scott argues that prejudice is evident because ‚the jurors
expressed their concerns about the very point of law that the
excluded evidence would have had a significant impact on.‛
Because Scott admitted he killed Teresa, the sole issue at trial
was whether the killing was mitigated by extreme emotional
distress. The notes the jury delivered to the court indicate its
deliberations had narrowed in on the definition of ‚substantially
caused.‛ This suggests one or more of the jurors was struggling
with whether Scott had ‚substantially caused‛ the distress he
was experiencing. The second note illuminates how the jury was
split: ‚We are at an absolute impasse, 6-2. Two feel that
‘substantially caused’ needs to be ‘the majority of the time.’‛
Only after a verdict-urging instruction and two more hours of
deliberation did the jury arrive at a guilty verdict.
¶31 Scott argues the jury’s second note demonstrates that two
of the jurors, if not more,3 believed Scott was ‚suffering under
3. The jury stated it was ‚at an absolute impasse, 6-2‛ and that
‚*t+wo feel that ‘substantially caused’ needs to be ‘the majority of
the time.’‛ At a minimum, two jurors apparently believed at that
(continued…)
20140995-CA 10 2017 UT App 74State v. Scott
the influence of extreme emotional distress‛ not substantially
caused by his own conduct. As a result, Scott reasons that if the
jury had been given more specific evidence regarding the threat,
there is a reasonable probability that the result of the trial would
have been different.
¶32 The State argues there is no reasonable likelihood the
outcome of the trial would have been different if the jury had
heard the specific words of Teresa’s threat. The jury heard
testimony from Scott that Teresa threatened him and that he
believed the threat was serious. The jury also heard that after
Scott saw the gun missing, he was ‚scared to death‛ and
‚worried that Teresa was going to use that gun to do some harm
to *him+.‛ Because of this testimony, the State argues that the
‚specific words of [the] threat . . . would have added little, if
anything, to what the jury already heard.‛
¶33 Even though Scott testified that ‚there was a threat made‛
and seeing that Teresa’s gun was missing from the safe made
him think ‚the threat was serious,‛ he was not allowed to offer
any other information regarding the threat, including the
surrounding circumstances, the words used, and the effect it had
on him. After the court warned defense counsel the threat was
hearsay and would not be admitted, counsel did not inquire into
it again and did not argue, or even imply, that the threat played
a role in special mitigation. In contrast, the prosecutor’s closing
argument stated that Teresa ‚was no threat‛ and had not
(…continued)
point that Scott was acting under extreme emotional distress not
substantially caused by his own conduct. It is also possible two
other jurors did not believe Scott qualified for the mitigation
because he had caused his distress ‚the majority of the time.‛
And it is not impossible that six jurors believed Scott qualified
for mitigation, while the other two maintained that Scott did not
qualify because he had caused his distress the majority of the
time.
20140995-CA 11 2017 UT App 74State v. Scott
‚provoke[d] him‛ and asked the jury ‚what reasonable basis
does [Scott] have to make [the] claim that simply the absence of
that gun from the safe creates extreme emotional distress*?+‛ For
these reasons, we are persuaded that testimony of the specific
threat and its effect on Scott would have given the jury more
evidence on the very point that was in dispute.
¶34 In sum, the jury notes demonstrate the jury was at an
impasse over whether Scott had substantially caused the distress
he felt. At least two jurors were so convinced that Scott acted
under extreme emotional distress that the jury described its
position as an ‚absolute impasse.‛ Testimony about the threat
would have directly reinforced the sentiments of these two
jurors. That testimony also might have influenced the jurors who
believed that ‚substantially caused‛ meant ‚the majority of the
time.‛ Consequently, had Scott been allowed to testify about the
threat, there is a reasonable probability the jury would have
continued to be deadlocked, ending the case in a mistrial. This
probability is enough to undermine our confidence in the
outcome of this trial. See Strickland v. Washington, 466 U.S. 668,
694 (1984).
CONCLUSION
¶35 We conclude Scott received ineffective assistance of
counsel and therefore reverse and remand for a new trial.
VOROS, Judge (concurring):
¶36 I concur in the majority opinion as a correct statement and
application of the law. I write separately to express my concern
with the law of extreme emotional distress as it presently exists
in Utah, particularly as applied in the context of intimate
relationships.
20140995-CA 12 2017 UT App 74State v. Scott
¶37 The facts of the present crime must be viewed against the
backdrop of a relationship in which Scott was the usual
aggressor. He would call Teresa names like ‚bitch‛ or ‚just
anything . . . that could hurt her and make her feel like she was a
bad person.‛ In fact, his contact name for her in his cell phone
was ‚Bitch Teresa.‛ Scott threatened ‚multiple times‛ to kill
Teresa, promising that ‚‘one of these days I’m going to kill
you.’‛ In fact, he did try to kill Teresa once, attempting to run
her over with their SUV while their sons were in the back seat.
Teresa jumped out of the way. The boys also saw Scott ‚get
physical‛ with Teresa. One time he threw a towel at Teresa’s face
and ‚started punching her in the gut.‛ Another time he
‚slammed‛ a vacuum into her legs.
¶38 Teresa would also get mad and yell, but she did not get as
angry or aggressive as Scott. The boys never saw her ‚get
physical‛ with him, call him names, or threaten him. She did call
the police a few times. Scott called the police too. During one of
the police visits, Scott asked the responding officer to tell Teresa
to ‚stop touching‛ him. In all, the police came to their home ‚six
to eight times.‛ They arrested Scott on one occasion (he pleaded
guilty to domestic violence assault). Teresa obtained a protective
order, they separated, but they soon got back together. On the
day of the shooting, one of the couple’s sons received a call from
a friend who asked why the police were at his house; the son
called home and nobody answered. He rushed home, worried
that Scott had ‚finally killed her.‛ When the other son heard
there had been a fatal shooting, he worried that his ‚mom was
dead.‛
¶39 And what, according to Scott, ignited his extreme
emotional distress? After a fight, he noticed a handgun missing;
he heard Teresa on the phone with her mother; she yelled
something to him; he stormed into the bedroom and saw her
lying on the bed pointing her cell phone at him. In response, he
grabbed a gun from the gun safe, cocked it, and shot her three
times.
20140995-CA 13 2017 UT App 74State v. Scott
¶40 I do not believe the law should mitigate the culpability of
one who kills under these circumstances. ‚What is generally
known as the provocation defense has for two decades been
criticized as mitigating violence committed by men against
women in intimate relationships.‛ State v. Sanchez, 2016 UT App
189, ¶ 40 n.9, 380 P.3d 375, cert. granted, 390 P.3d 719 (Utah 2017)
and 390 P.3d 727 (Utah 2017). It now ‚is one of the most
controversial doctrines in the criminal law because of its
perceived gender bias; yet most American scholars and
lawmakers have not recommended that it be abolished.‛
Carolyn B. Ramsey, Provoking Change: Comparative Insights on
Feminist Homicide Law Reform, 100 J. Crim. L. & Criminology 33,
33 (2010); see also Emily L. Miller, (Wo)manslaughter: Voluntary
Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665,
667 (2001) (‚Voluntary manslaughter has never been a female-
friendly doctrine.‛); Victoria Nourse, Passion's Progress: Modern
Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1332
(1997) (‚Our most modern and enlightened legal ideal of
‘passion’ reflects, and thus perpetuates, ideas about men,
women, and their relationships that society long ago
abandoned.‛); Laurie J. Taylor, Provoked Reason in Men and
Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33
UCLA L. Rev. 1679, 1679 (1986) (‚*T+he legal standards that
define adequate provocation and passionate ‘human’
weaknesses reflect a male view of understandable homicidal
violence.‛).
¶41 In my judgment, the law should mitigate the culpability
of homicides only where society as a whole can to some degree
share the rage animating the killing:
To maintain its monopoly on violence, the State
must condemn, at least partially, those who take
the law in their own hands. At the same time,
however, some provoked murder cases temper our
feelings of revenge with the recognition of tragedy.
Some defendants who take the law in their own
hands respond with a rage shared by the law. In
20140995-CA 14 2017 UT App 74State v. Scott
such cases, we ‚understand‛ the defendant’s
emotions because these are the very emotions to
which the law itself appeals for the legitimacy of its
own use of violence. At the same time, we continue
to condemn the act because the defendant has
claimed a right to use violence that is not his own.
Nourse, 106 Yale L.J. 1331, 1393. This ‚warranted excuse‛
approach would mitigate the culpability, for example, of a man
who murders his daughter’s rapist, but not one who murders his
departing girlfriend. See id. at 1392.
¶42 But this is not the law in Utah. And here, at least some
members of a properly instructed jury seemed to struggle with
whether, on these facts, Scott was entitled to special mitigation.
In this circumstance, under present law, I cannot say that my
confidence in the verdict is not undermined. But like Judge
Christiansen, I urge our legislature to revise section 76-5-205.5 so
that it can no longer be used to mitigate the final act of abuse
perpetrated by an abusive intimate partner.
CHRISTIANSEN, Judge (concurring):
¶43 I agree with the majority opinion’s conclusion that
defense counsel’s performance at trial was deficient when he
failed to argue that the alleged ‚threat‛ made to Scott by Teresa
was non-hearsay. As explained by the majority, supra ¶ 22,
Teresa’s alleged threat to Scott was not a statement offered for its
truth and thus fell outside of the definition of hearsay. See Utah
R. Evid. 801(c); United States v. Stratton, 779 F.2d 820, 830 (2d Cir.
1985). Competent defense counsel should have known enough to
correctly argue that the rules of evidence would allow the jury to
hear this testimony. And, while I do not believe that hearing the
specifics of the alleged threat would ultimately have made a
difference in the jury’s verdict, I recognize that it is ‚not within
the province of an appellate court to substitute its judgment for
20140995-CA 15 2017 UT App 74State v. Scott
that of a front line fact-finder.‛ In re Z.D., 2006 UT 54, ¶ 24, 147
P.3d 401. Therefore, I agree that remand is warranted.
¶44 However, though I agree with the majority opinion, I
write separately to voice my concern regarding the current
statutory implementation of the extreme emotional distress
(EED) defense. I do not believe the EED defense should have
been available to Scott. After Scott had abused and threatened
her over the course of several years, he shot an unarmed Teresa
three times, including once in the mouth, while she was lying on
their bed with her cell phone in her hand. In my view, this
‚reaction‛ to the marital difficulties combined with an alleged
threat by Teresa does not create a situation in which Scott should
be able to claim he was exposed ‚to extreme emotional distress‛
that would reasonably explain and mitigate his loss of self-
control. Though our courts have employed a generous approach
to the EED defense, see, e.g., State v. White, 2011 UT 21, ¶ 29, 251
P.3d 820, we must still consider the circumstances surrounding a
defendant’s purported EED from the viewpoint of a reasonable
person. ‚Thus, the legal standard is whether the circumstances
were such that the average reasonable person would react by
experiencing a loss of self-control.‛ Id. ¶ 36 (citation and internal
quotation marks omitted).
¶45 I do not agree with Scott’s assertion that a difficult and
contentious marriage, combined with Teresa’s alleged threat,
could have resulted in the type of extremely unusual and
overwhelming stress that would cause ‚the average reasonable
person‛ to experience ‚a loss of self-control.‛ See id. (citation and
internal quotation marks omitted). Allowing the defendant to
claim special mitigation under facts such as these undercuts and
de-legitimizes the proper purpose of the battered-spouse aspect
of the EED defense.
¶46 Indeed, the availability of the EED defense to persons in
Scott’s situation highlights the defense’s problematic history. As
this court has recently stated, and as noted in Judge Voros’s
concurring opinion, ‚What is generally known as the
20140995-CA 16 2017 UT App 74State v. Scott
provocation defense has for two decades been criticized as
mitigating violence committed by men against women in
intimate relationships. It now is one of the most controversial
doctrines in the criminal law because of its perceived gender
bias*.+‛ State v. Sanchez, 2016 UT App 189, ¶ 40 n.9, 380 P.3d 375(citation and internal quotation marks omitted) (collecting
authorities), cert. granted, 390 P.3d 719 (Utah 2017) and 390 P.3d
727 (Utah 2017); see also, e.g., James J. Sing, Culture as Sameness:
Toward a Synthetic View of Provocation and Culture in the Criminal
Law, 108 Yale L.J. 1845, 1865 (1999) (noting that the ‚provocation
doctrine has its historical roots in a value system that embraced
the oppression of women‛). It is true that EED defense
jurisprudence has come a long way since the old common law
provocation/heat of passion defense. See, e.g., State v. Bishop, 753
P.2d 439, 468–70 (Utah 1988) (plurality opinion) (discussing the
evolution of the EED defense in Utah), overruled on other grounds
as recognized by Ross v. State, 2012 UT 93, 293 P.3d 345. But, as
applied here, the EED defense allows an abusive defendant such
as Scott (who had committed domestic violence against Teresa
and who had at one time been the subject of a restraining order)
to claim that the cumulative emotional stress of a difficult
marriage and a single alleged threat mitigated his otherwise
unprovoked murder of his wife. By doing so, the current
statutory implementation of the EED defense gives continued
life to antiquated notions of spousal control and perpetuates a
belief that violence against women and intimate-partner
homicide are acceptable and legitimate. The law should not do
so. I therefore urge our legislature to review Utah Code section
76-5-205.5, and to consider explicit recognition in the statute that
an abusive spouse or partner cannot claim special mitigation
under these types of circumstances.
20140995-CA 17 2017 UT App 74