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State v. Scott

Court of Appeals of Utah

May 4, 2017

State of Utah, Appellee,
Tracy Scott, Appellant.

         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.


         ¶2 Tracy Scott and Teresa Scott[1] 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]'' 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.''

          ¶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 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 ...

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