Gray v. State , 400 P.3d 1081 ( 2017 )

2017 UT App 93THE UTAH COURT OF APPEALS
STEVEN J. GRAY,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20150431-CA
Filed June 8, 2017
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 140400748
Steven J. Gray, Appellant Pro Se
Sean D. Reyes and Erin Riley, Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
VOROS, Judge:
¶1 Steven J. Gray appeals the postconviction court’s order
granting summary judgment in favor of the State on his petition
for relief under the Post-Conviction Remedies Act (PCRA). We
affirm.
BACKGROUND
¶2 After consuming cocaine and alcohol for days, Gray
stabbed his girlfriend 67 times and mutilated her body. He then
moved her body to the bathroom, cleaned and secured the
residence, and fled. He later walked into a police station in
another state and confessed to the crime. Gray described the
crime as a “fatal result[] of his acts of passion.”
Gray v. State
¶3 The State charged Gray with aggravated murder, a capital
felony; object rape, a first degree felony; mayhem, a second
degree felony; obstruction of justice, a second degree felony; and
abuse or desecration of a human body, a third degree felony. The
information advised Gray that the State intended to seek the
death penalty. Gray was assigned a team of four attorneys as his
counsel.
¶4 Gray had a history of drug abuse and reported to his
counsel that he suffered from anxiety, depression, and post-
traumatic stress disorder. His counsel obtained his mental health
records from various correctional and health institutions. They
also retained a mitigation expert, who interviewed Gray’s
friends and family members. This investigation uncovered a
childhood and adolescent history of physical, emotional, and
sexual abuse.
¶5 Pursuant to a plea agreement, the State amended the
information and agreed not to seek the death penalty. The
amended information charged Gray with aggravated murder, a
first degree felony; mayhem, a second degree felony; and abuse
or desecration of a human body, a third degree felony. Gray
pleaded guilty to all three counts. He was sentenced to life in
prison without parole. He did not appeal.
¶6 Gray later filed a petition for postconviction relief,
alleging that his counsel were ineffective for “failing to
investigate [his] extensive history of mental illness as a defense”
and for failing “to tell [him] of possible defenses, such as
temporary mental insanity, extreme emotional distress, etc.”
Gray argued that, but for his counsel’s deficient performance, he
would have proceeded to trial and presented a “viable defense
of insanity and/or extreme emotional distress manslaughter.”
The State moved for summary judgment. The postconviction
court granted the State’s motion.
20150431-CA 2 2017 UT App 93Gray v. State
ISSUE AND STANDARD OF REVIEW
¶7 Gray contends on appeal that the postconviction court
erred in granting the State’s motion for summary judgment and
denying his petition for postconviction relief. We review a
postconviction court’s grant of summary judgment for
correctness. Honie v. State, 2014 UT 19, ¶ 28, 342 P.3d 182. “We
affirm a grant of summary judgment when the record shows that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Ross
v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and internal
quotation marks omitted).
ANALYSIS
¶8 Gray contends that his trial counsel were ineffective in
two ways—first, for not investigating his history of mental
illness, and second, for not informing him of the defenses of
insanity and extreme emotional distress.1 Gray asserts that,
absent his counsel’s ineffectiveness, he would have proceeded to
trial and presented a viable defense to the charge of aggravated
murder.2
1. As explained below, extreme emotional distress is no longer a
defense under Utah law, see infra ¶ 18, although it may function
as a mitigating circumstance, see generally State v. Scott, 2017 UT
App 74.
2. Gray’s appellate briefs also identify multiple issues not raised
or ruled on in the postconviction court. Claims “not raised
before the [postconviction court] may not be raised on appeal.”
Oseguera v. State, 2014 UT 31, ¶ 10, 332 P.3d 963 (citation and
internal quotation marks omitted). “An issue is preserved for
appeal when it has been presented to the district court in such a
(continued…)
20150431-CA 3 2017 UT App 93Gray v. State
¶9 Under the PCRA, “a person who has been convicted and
sentenced for a criminal offense may file an action . . . for post-
conviction relief to vacate or modify the conviction or sentence”
on the ground that “the petitioner had ineffective assistance of
counsel in violation of the United States Constitution.” Utah
Code Ann. § 78B-9-104(1)(d) (LexisNexis 2012). If the State files a
motion for summary judgment, it bears “the initial burden of
showing that it is entitled to judgment and that there is no
genuine issue of material fact that would preclude summary
judgment in its favor.” See Menzies v. State, 2014 UT 40, ¶ 81, 344
P.3d 581 (brackets, citation, and internal quotation marks
omitted). Once the State makes that showing, the burden shifts
to the petitioner to support the claim of ineffective assistance of
counsel. See id. To meet this burden, the petitioner “must set
forth specific facts showing that there is a genuine issue for
trial.” See id. (citation and internal quotation marks omitted).
¶10 To succeed on a claim of ineffective assistance of counsel,
a petitioner must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. To show deficient
performance, the petitioner must demonstrate that counsel’s
performance “fell below an objective standard of
(…continued)
way that the court has an opportunity to rule on it.” Id. (brackets,
citation, and internal quotation marks omitted). In addition,
most of the new issues identified on appeal are asserted in a
single sentence and lack record and legal support as required by
rule 24(a)(9) of the Utah Rules of Appellate Procedure. Because
these issues are neither preserved nor adequately briefed, they
cannot support reversal on appeal. See Oseguera, 2014 UT 31,
¶¶ 10, 16. We thus do not address them. Instead, we address
only Gray’s preserved ineffective assistance of counsel claim.
20150431-CA 4 2017 UT App 93Gray v. State
reasonableness.” Strickland, 466 U.S. at 688. The petitioner must
also “overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Id. at 689 (citation and internal quotation marks omitted).
¶11 To prove prejudice in the guilty plea context, a petitioner
must demonstrate “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694. The petitioner must “convince the court that a decision to
reject the plea bargain would have been rational under the
circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Further, a “defendant’s mere allegation that he would have
insisted on trial but for his trial counsel’s errors, although
necessary, is ultimately insufficient to entitle him to relief.
Rather, we look to the factual circumstances surrounding the
plea to determine whether defendant would have proceeded to
trial.” United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir.
2002) (brackets, citation, and internal quotation marks omitted);
see Hill, 474 U.S. at 59. And where, as here, “the alleged error of
counsel is a failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of the
‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” See
Hill, 474 U.S. at 59.
I. Deficient Performance
¶12 Gray contends that his counsel performed ineffectively by
not investigating his extensive history of mental illness and not
informing him of possible defenses such as extreme emotional
distress and temporary mental insanity. The postconviction
court concluded that “the record establishes that Gray’s counsel
were aware of and did investigate his history of mental illness.”
20150431-CA 5 2017 UT App 93Gray v. State
The court also concluded that Gray “failed to establish that he
could have properly asserted mental illness or insanity as a
defense under the applicable law.”
¶13 Gray has not demonstrated error in the postconviction
court’s ruling. In his opposition to the State’s motion for
summary judgment, Gray admitted that his counsel requested
mental health records from a number of correctional and health
institutions in the state of Washington, where Gray spent a
significant portion of his life. Gray also admitted that his counsel
retained a mitigation expert, who uncovered various details of
Gray’s history of mental illness. Finally, at sentencing, counsel
told the court that Gray had a history of substance abuse and
mental illness. Gray provided no evidence below, and points to
none on appeal, showing that his trial counsel’s investigation
into his mental health history “fell below an objective standard
of reasonableness.” See Strickland, 466 U.S. at 688.
¶14 Nor has Gray established that he could have succeeded
on a defense of insanity or extreme emotional distress under
Utah law. Gray claims that had counsel informed him of these
defenses, he would not have pleaded guilty but would have
proceeded to trial.
¶15 First we address the defense of insanity. Gray was
charged with aggravated murder—intentionally or knowingly
causing the death of another human being incident to an episode
during which he also committed the crime of abuse or
desecration of a dead human body. See Utah Code Ann. § 76-5-
202(1)(e) (LexisNexis Supp. 2016). “It is a defense to a
prosecution under any statute or ordinance that the defendant,
as a result of mental illness, lacked the mental state required as
an element of the offense charged.” Id. § 76-2-305(1)(a). This
defense is narrow; it applies only where the defendant “did not
have the requisite mens rea of the alleged crime.” State v. Herrera,
895 P.2d 359, 362 (Utah 1995). Thus, if an individual kills
20150431-CA 6 2017 UT App 93Gray v. State
someone “thinking that he is merely squeezing a grapefruit, [the
individual] does not have the requisite mens rea for murder”
and qualifies for the insanity defense under the statute. See id.Gray provided no evidence below, and points to none on appeal,
to suggest that when he murdered his girlfriend, he did not
know he was killing a human being or otherwise lacked the
mental state required for the crime of aggravated murder.
¶16 Moreover, a person who asserts a defense of insanity and
is “under the influence of voluntarily consumed, injected, or
ingested alcohol, controlled substances, or volatile substances at
the time of the alleged offense is not excused from criminal
responsibility on the basis of mental illness if the alcohol or
substance caused, triggered, or substantially contributed to the
mental illness.” Utah Code Ann. § 76-2-305(3). Gray admitted to
using an excessive amount of cocaine in the days leading up to
the murder and stated that he was drunk at the time he
committed the crime. Gray’s voluntary intoxication would have
presented an additional hurdle to presenting a successful
insanity defense.
¶17 In sum, Gray has not shown that an insanity defense
“likely would have succeeded at trial.” See Hill v. Lockhart, 474
U.S. 52, 59 (1985).
¶18 Gray next alleges that his counsel performed deficiently
because they failed to inform him of the “defense” of extreme
emotional distress. Extreme emotional distress no longer exists
as an affirmative defense in Utah. See Ross v. State, 2012 UT 93,
¶ 27 n.19, 293 P.3d 345 (“This section of the Utah Code has since
been revised to eliminate the extreme emotional distress
defense.”). Gray could have raised it only as special mitigation in
an effort to reduce a conviction of aggravated murder to murder.
See Utah Code Ann. § 76-5-205.5 (LexisNexis 2012). The special
mitigation statute places on the defendant the burden of proving
20150431-CA 7 2017 UT App 93Gray v. State
special mitigation by a preponderance of the evidence. See id.§ 76-5-205.5(5)(a); State v. Drej, 2010 UT 35, ¶ 17, 233 P.3d 476.
¶19 “Special mitigation exists when the actor causes the death
of another or attempts to cause the death of another . . . under
the influence of extreme emotional distress for which there is a
reasonable explanation or excuse.” Utah Code Ann. § 76-5-
205.5(1)(b). “This standard requires a trier of fact to put herself in
the shoes of a reasonable person in the defendant’s situation to
determine whether the defendant’s reaction to a series of events
was reasonable. The standard is . . . whether a reasonable person
facing the same situation would have reacted in a similar way.”
State v. White, 2011 UT 21, ¶ 37, 251 P.3d 820. However,
“emotional distress does not include . . . distress that is
substantially caused by the defendant’s own conduct.” Utah
Code Ann. § 76-5-205.5(3)(b).
¶20 Special mitigation also exists when the defendant causes
the death of another under circumstances that are not legally
justified, but the actor “acts under a delusion attributable to a
mental illness” and “the defendant’s actions, in light of the
delusion, were reasonable from the objective viewpoint of a
reasonable person.” Id. § 76-5-205.5(1)(a)(i), (iii). However, a
defendant “who was under the influence of voluntarily
consumed, injected, or ingested alcohol, controlled substances,
or volatile substances . . . may not claim mitigation . . . on the
basis of mental illness if the alcohol or substance caused,
triggered, or substantially contributed to the mental illness.”
Id. § 76-5-205.5(2).
¶21 Gray was in no position to take advantage of either
variant of special mitigation. Gray provided no evidence below,
and points to none on appeal, to suggest that he acted under
extreme emotional distress, not substantially caused by his own
conduct, for which there was a reasonable explanation or excuse.
See id. § 76-5-205.5(1)(b), (3)(b). Gray explained that he killed his
20150431-CA 8 2017 UT App 93Gray v. State
girlfriend in a “heat of passion” after seeing her “walking
toward him nude.” Based on his own account, Gray could not at
trial have proven by a preponderance of the evidence that a
reasonable person “facing the same situation would have reacted
in a similar way.” See White, 2011 UT 21, ¶ 37. Nor has Gray
pointed to any evidence to suggest that he acted “under a
delusion attributable to a mental illness” and that his “actions, in
light of the delusion, were reasonable from the objective
viewpoint of a reasonable person.” Utah Code Ann. § 76-5-
205.5(1)(a)(i), (iii). In sum, Gray has not shown that his claim of
special mitigation “likely would have succeeded at trial.” See
Hill, 474 U.S. at 59.
¶22 Accordingly, Gray cannot establish that his trial counsel’s
actions “fell below an objective standard of reasonableness.” See
Strickland v. Washington, 466 U.S. 668, 688 (1984). Nor has he
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” See
id. at 689 (citation and internal quotation marks omitted).
¶23 Furthermore, over all of counsel’s actions hung the
specter of the death penalty. Had Gray gone to trial, given his
voluntary confession and the horrific nature of the crime, he
would likely have been convicted of aggravated murder and
may well have been sentenced to death. He was, figuratively
speaking, “[s]tanding on the gallows with [his] head in a noose.”
Bob Dylan, Things Have Changed (Columbia Records 1999).
Given what Gray describes as his “keen and unrefuted desire to
avoid the death sentence,” counsel’s “strategy designed to avoid
the death penalty” was far from unreasonable, see Honie, 2014
UT 19, ¶ 68. On the contrary, counsel’s “recommendation that
[Gray] plead guilty in order to avoid a possible death sentence
was objectively reasonable,” given the weight of the “strong,
admissible evidence from which the State could prove to a jury
that [Gray] was guilty.” See Rhinehart v. State, 2012 UT App 322,
20150431-CA 9 2017 UT App 93Gray v. State
¶ 8, 290 P.3d 921 (citations and internal quotation marks
omitted).
II. Prejudice
¶24 Gray asserts that, but for his counsel’s deficient
performance, he would have proceeded to trial and presented a
viable defense. The postconviction court concluded that “based
on the undisputed facts and the law Gray cannot establish
prejudice.” We agree.
¶25 Again, Gray must establish “that a decision to reject the
plea bargain would have been rational under the
circumstances,” Padilla v. Kentucky, 559 U.S. 356, 372 (2010), an
inquiry that depends “largely on whether the affirmative
defense likely would have succeeded at trial,” see Hill, 474 U.S. at
59. But Gray cannot show that rolling the dice at trial would
have been a rational decision. The evidence against him was
overwhelming. He confessed to police. The postconviction court
aptly referred to the “truly horrifying and gruesome evidence at
the scene of the crime.” And Gray admitted to drug and alcohol
use immediately preceding the murder. As the postconviction
court explained, the State “had a very strong case and the
likelihood of conviction at trial was very high.”
¶26 With damning evidence against him, no plausible
defenses, and facing a possible death sentence, Gray cannot
demonstrate that “a decision to reject the plea bargain would
have been rational under the circumstances.” See Padilla, 559 U.S.
at 372; see also Rhinehart, 2012 UT App 322, ¶ 9, (concluding that
the defendant’s assertions that she was coerced into pleading
guilty were unavailing because she could not “demonstrate that
going to trial ‘would have been rational under the
circumstances’ considering the weight of the inculpatory
evidence against her” (quoting Padilla, 559 U.S. at 372)).
Accordingly, the postconviction court correctly concluded that,
on this record, Gray could not establish prejudice.
20150431-CA 10 2017 UT App 93Gray v. State
CONCLUSION
¶27 In sum, Gray failed to meet his burden to “set forth
specific facts showing that there is a genuine issue for trial” on
his claim of ineffective assistance of counsel. See Menzies v. State,
2014 UT 40, ¶ 81, 344 P.3d 581 (citation and internal quotation
marks omitted). Gray could not establish that his counsel
rendered deficient performance, nor that any alleged deficient
performance prejudiced him. The postconviction court correctly
concluded that the State was entitled to judgment as a matter of
law on both issues. Because “the record shows that there is no
genuine issue as to any material fact and that the [State] is
entitled to judgment as a matter of law,” we affirm the decision
of the postconviction court. See Ross v. State, 2012 UT 93, ¶ 18,
293 P.3d 345 (citation and internal quotation marks omitted).
20150431-CA 11 2017 UT App 93