District Court, Provo Department The Honorable David N.
Mortensen No. 131400842
Margaret P. Lindsay and Douglas J. Thompson, Attorneys for
D. Reyes and Tera J. Peterson, Attorneys for Appellee
Kate A. Toomey authored this Opinion, in which Judges J.
Frederic Voros Jr. and Michele M. Christiansen concurred,
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
Tracy Scott and Teresa Scott were married for nineteen years.
They had two sons.
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
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
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
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]'' 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.
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.''
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.
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.''
¶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.''
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.
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.
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 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.
At the conclusion of trial, the court instructed the jury on
the elements of murder and the special mitigation of extreme