Direct Appeal, Second District, Farmington The Honorable
Judge David M. Connors No. 080700641
L. Booher, Dick J. Baldwin, Salt Lake City, for appellant
D. Reyes, Att'y Gen., Andrew F. Peterson, Asst. Solic.
Gen., Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
HIMONAS, and JUSTICE PETERSEN joined.
A jury convicted Trovon Donta Ross of aggravated murder and
attempted aggravated murder. After a direct appeal, in which
his appellate counsel successfully argued for the merger of
the murder and attempted murder convictions, Ross filed a pro
se petition seeking relief under the Post-Conviction Remedies
Act (PCRA). In the petition, he argued that his trial counsel
and his appellate counsel were both constitutionally
deficient. Ross appealed the district court's grant of
summary judgment. We held that disputed issues of material
fact should have precluded summary judgment on Ross's
claim that his appellate counsel was ineffective. We reversed
summary judgment and remanded for an evidentiary hearing.
At that hearing, the district court allowed the parties to
introduce extensive evidence about Ross's trial and
appeal in order to evaluate whether either of his attorneys
offered ineffective assistance. Ross's trial counsel
testified about his reasoning at the time of trial regarding
why he did not raise an extreme emotional distress defense.
And the hearing examined appellate counsel's process and
her thinking about the claims she would raise on
appeal-including why she did not argue that trial
counsel's failure to seek an extreme emotional distress
instruction was ineffective assistance of counsel. The
district court also permitted the State to introduce evidence
about testimony and documents it was prepared to introduce
had Ross's trial counsel successfully argued that the
jury should be instructed on extreme emotional distress.
The district court ultimately concluded that appellate
counsel's performance was deficient because she had
failed to investigate certain arguments while preparing the
appeal. But the district court decided that the deficient
performance had not prejudiced Ross because his trial counsel
had not rendered ineffective assistance. To reach these
conclusions, the court relied, in part, on the evidence that
the State argued it would have presented at trial had
Ross's counsel requested the extreme emotional distress
Ross appeals the post-conviction district court's
conclusion that appellate counsel's performance did not
prejudice him. And he argues that the district court erred
when it considered the State's newly proffered evidence.
Ross further asserts that we must also restrain ourselves
from considering this evidence as we review whether appellate
counsel's performance prejudiced Ross.
We conclude that we may consider the evidence entered into
the record during the district court proceeding. To ensure
that Ross received the counsel the Sixth Amendment guarantees
him, Strickland v. Washington, 466 U.S. 668 (1984),
we must determine whether Ross received ineffective
assistance and, if so, whether that deficient performance
affected the outcome of the proceeding. We see no compelling
reason to turn our collective back on evidence properly in
the record that will assist us in making that determination.
And the district court did not err by reaching that same
conclusion. Because the State's evidence reveals that
there was no reasonable probability of a different outcome
had Ross's counsel acted as Ross now wishes he had, we
conclude that Ross was not prejudiced by his appellate
counsel's failure to investigate the alleged ineffective
assistance of his trial counsel. We affirm.
Trovon Donta Ross dated Annie Christensen.
After her relationship with Ross ended, Christensen met James
Thomas May, III. After a few months, they began a committed
and exclusive relationship. Soon, Christensen and May
regularly spent several nights together each week.
Early one morning, May and Christensen heard a knock on the
door of Christensen's home. Christensen answered the
door. Ross stood outside. May rose from bed, wearing pajama
pants and no shirt, and joined Christensen in the hallway as
Ross approached them.
Ross said to May, "So you're [May], huh?" Ross
then turned to Christensen and demanded that she "[t]ell
him the last time we had sex." Ross then demanded that
Christensen answer other questions. When Christensen refused
to comply, Ross pulled out a gun and again demanded answers.
May testified at trial that "[t]he mood changed a little
bit where ... at first ... he was asking questions, and then
once he pulled out the gun, the situation become a lot more
intense." Christensen pleaded with Ross to leave. Ross
then told May, "I can't let her hurt you like she
With the gun aimed at Christensen, Ross grabbed her and
pushed her back into the bedroom. In the bedroom, Ross shot
Christensen three times: first in the back of her head and
then in her neck and abdomen. The shots killed Christensen.
As this was happening, May went to the garage and attempted
to start his car. As he did, he heard the three shots. May
looked up to see Ross standing in the garage's doorway.
May exited the car and began to run down the street. Ross
fired his weapon at May-hitting him in the arm and chest. May
A neighbor heard the gunshots and saw Ross jump into a van.
The neighbor called the police as Ross sped off. Police
chased Ross with sirens blaring.
While Ross drove, he called Christensen's father and told
him, "I just shot and killed your daughter ... and
I'm on my way to your home to finish the job." Ross
also left a voice message for his boss and again confessed
that he had killed Christensen. Ross also threw a gun out his
car's window as he drove.
The car chase led to a neighborhood cul-de-sac where Ross
abandoned his car and attempted to flee on foot. Ross
eventually stopped and was arrested.
Meanwhile, police officers contacted May, who directed them
to Christensen's house. The officers found
Christensen's body face down underneath a blanket in the
The State charged Ross with aggravated murder, attempted
aggravated murder, and failure to respond to an officer's
signal to stop. The State based the aggravated murder charges
on the theory that Ross killed Christensen and attempted to
kill May as part of one criminal episode. See Utah
Code § 76-5-202. The State sought the death penalty.
Ross did not testify at trial. The district court confirmed
that Ross had discussed whether to testify with his trial
counsel. Ross affirmed that he did not wish to testify during
the guilt phase of the trial.
Ross's trial counsel made no opening statement, did not
present any witnesses, and only cross-examined five of the
prosecution's nineteen witnesses. At the close of
evidence, Ross's trial counsel moved to dismiss the
aggravated murder charge. Ross's trial counsel argued
that the killing of Christensen and the attempted killing of
May were "separate criminal episodes" and were
"not the type of facts that are covered by [the
statutory language of] scheme, course of conduct, a criminal
episode." The court denied the motion.
In his closing argument, Ross's trial counsel
acknowledged that "I don't believe there is much
doubt, in view of the evidence, that Trovon Ross killed Ms.
Christensen, and that he attempted to kill Mr. May."
Trial counsel focused the rest of his argument on asserting
that the homicide and attempted homicide were not committed
during or incident to "one act, one scheme, one course
of conduct, or one criminal episode in which the homicide was
committed." He argued, "There was two acts here,
and there was no evidence of any scheme." In his
closing, he asked the jury to "return a verdict of
murder and attempted murder, and to return a not guilty
verdict of aggravated murder."
After the jury retired to deliberate, Ross's trial
counsel asked to make a record of the trial strategy that he
elected and why he had chosen that route. In an in-chambers
discussion, Ross's trial counsel explained that Ross had
decided to not accept a plea deal offered prior to trial that
would have required the State to recommend a sentence of life
without parole. Trial counsel explained that Ross did not
want to accept the deal because at that time, he
"desired the death penalty." Ross's trial
counsel explained that he had advised Ross that "it was
to his benefit to have a trial because ... that would keep
his options open."
Trial counsel continued, "Ross was in agreement with
that strategy. I think we followed through with [it]. There
was no manslaughter defense raised based on any extreme
emotional disturbance because of ... evidentiary problems as
are known to Mr. Ross and myself." Ross's trial
counsel explained, "[T]hat's the reason I've
done what I've done. I think Mr. Ross -he and I have
talked about this a lot, on numerous occasions, and I think
he agrees with that strategy. So I'd like to put that on
the record." The court then confirmed with Ross that
this was in fact the strategy that he had agreed upon with
his trial counsel. It was.
The jury returned a guilty verdict on each charge. Ross
subsequently agreed to waive his right to a jury for the
sentencing phase in exchange for the State's
recommendation of life in prison without parole. The court
imposed that sentence and Ross avoided the potential death
Direct Appeal (Ross I)
Ross appealed and was represented by a different attorney.
His appellate counsel argued that his aggravated murder and
attempted aggravated murder convictions should merge. In
State v. Ross, we agreed and ordered that the two
convictions merge. 2007 UT 89, ¶¶ 66-67, 174 P.3d
628 (Ross I).
Post-Conviction Petition and Appeal (Ross II)
In a pro se PCRA petition, Ross argued that both his trial
counsel and his appellate counsel had been ineffective.
Ross v. State, 2012 UT 93, ¶ 11/ 293 P.3d 345
(Ross II). Ross argued that his trial counsel was
ineffective for failing to raise the extreme emotional
distress defense. He also argued that his appellate counsel
was ineffective for failing to raise an ineffective
assistance of trial counsel claim on direct appeal based on
trial counsel's failure to raise the defense. Ross sought
an evidentiary hearing to examine evidence and witnesses in
support of his claims. Id. ¶ 11.
In his petition, Ross described that he and Christensen were
both dating other individuals while continuing to see each
other.Ross recounted that he believed that he and
Christensen were reconciling. He asserted that he knew
Christensen was dating May but that Christensen had told him
that the relationship was "going nowhere." Ross
also alleged that two nights before the murder, he and
Christensen spent the night together, engaging in sexual
relations and talking.
Ross claims that on the morning of the murder he became
concerned when he missed a call from Christensen and she did
not return his call. He alleges that he went to
Christensen's home to see what had happened and that he
did not go intending to kill Christensen or anyone else. Ross
describes that he "became concerned that his
reconciliation efforts with [Christensen] meant little to
her-or it meant she was in trouble with someone and needed
help." Ross contends that his trial and appellate
counsel were deficient for failing to ask for an extreme
emotional defense instruction, and failing to raise trial
counsel's omission, respectively.
The State moved for summary judgment on Ross's two claims
of ineffective assistance of counsel. The State argued that
Ross's claim of ineffectiveness against trial counsel was
procedurally barred because he could have brought it on
direct appeal. The State maintained that Ross's claim
that appellate counsel was ineffective was not obvious from
the record and would not have likely resulted in reversal on
In particular, the State asserted that "[t]he record
conclusively foreclose[s] [Ross's] claim" that his
appellate counsel was ineffective because of the in-chambers
discussion after the closing arguments. Because Ross's
trial counsel stated that there were "evidentiary
problems" with the extreme emotional distress defense
and Ross confirmed that he agreed with the strategic decision
to not raise the defense, the State contended that the record
reveals that trial counsel acted reasonably in not raising
the defense-and therefore appellate counsel could not have
been ineffective in failing to raise it.
Ross opposed the motion. Ross argued that he "was never
informed he could claim this defense" by trial counsel
and that appellate counsel should have investigated the issue
on her own to see if "any ... mistakes were made,"
especially as he had told her through letters that the reason
why he went to Christensen's home was to check on her.
The post-conviction court granted the State's motion for
summary judgment. And the court ruled that appellate counsel
was not ineffective for failing to raise trial counsel's
ineffectiveness because "the trial record conclusively
demonstrates that the petitioner's trial counsel's
decision not to raise the 'extreme emotional
distress' affirmative defense was not only strategic, but
was specifically agreed to by the petitioner" -
referencing the in-chambers conference. Reasoning that the
claim of ineffective assistance of trial counsel "would
not have been obvious from the trial record at the
petitioner's direct appeal" and that Ross had not
set forth facts that the claim would have resulted in
reversal on appeal if raised, the post-conviction court ruled
that Ross failed to meet his burden of establishing an
ineffective assistance of appellate counsel claim. Thus, the
district court concluded that Ross's claim that his trial
counsel was ineffective was procedurally barred because Ross
could have raised this issue on direct appeal and the failure
to raise the claim was not due to ineffective assistance of
appellate counsel. See Utah Code §
78B-9-106(1)(c), (3)(a) ("A person is not eligible for
relief under this chapter upon any ground that... could have
been but was not raised at trial or on appeal....
Notwithstanding ... a person may be eligible for relief on a
basis that the ground could have been but was not raised at
trial or on appeal, if the failure to raise that ground was
due to ineffective assistance of counsel....").
Ross appealed. On appeal, Ross argued that genuine issues of
material fact existed as to whether his trial counsel was
ineffective for failing to investigate and present the
extreme emotional distress defense, whether it was an
unreasonable trial strategy to omit the defense, and whether
Ross knowingly agreed to forego the defense.In addition, Ross
contended that genuine issues of material fact existed as to
whether his appellate counsel rendered ineffective assistance
by failing to investigate the adequacy of trial counsel's
performance. Because of the genuine issues of material fact,
Ross sought a remand to the post-conviction court for a
In Ross II, we concluded that disputed issues of
material fact should have precluded summary judgment on
Ross's claim that his appellate counsel was ineffective.
2012 UT 93, ¶ 43. We examined the merits of the
ineffective assistance of trial counsel claim to address the
ineffectiveness of appellate counsel claim. Id.
¶ 26. We noted that "[w]hen claiming extreme
emotional distress, a defendant must present only a minimum
threshold of evidence to establish the affirmative
defense." Id. ¶ 29. And we reasoned that
the "trial record suggests that the [extreme emotional
distress] defense likely would have been available to Mr.
Ross" because the trial record showed that Ross and
Christensen had a romantic relationship and that Ross
"became upset after arriving at Ms. Christensen's
home and finding that she had spent the night with Mr.
May." Id. ¶¶ 32-33.
In addition, we reasoned that the evidence that had been
adduced at trial "may have been sufficient to satisfy
the 'relatively low' burden necessary to establish
the affirmative defense." Id. ¶ 33. We
specifically focused on the evidence before the jury that
Ross repeatedly asked Christensen to tell May about
Christensen's sexual relationship with Ross, as well as
the evidence that Ross told May "I can't let her
hurt you like she hurt me." Id. And we noted
that it did not appear that the extreme emotional distress
defense would have conflicted with any of trial counsel's
tactics. Id. ¶ 31.
We disagreed with the post-conviction court that the
in-chambers conference following the trial foreclosed
Ross's argument. Id. ¶¶ 35-42.
The remarks made by trial counsel during the in-chambers
conference are confusing and could call into question whether
counsel had a strategy in declining to raise the extreme
emotional distress defense, what the strategy might have
been, whether Mr. Ross was in agreement with counsel's
decision, and whether counsel's decision was reasonable.
Id. ¶ 36. We were particularly troubled by
evidence that suggested that Ross's trial counsel may
have misunderstood the governing law, in part because he
referred to it as "extreme emotional disturbance"
and because he asserted that "[t]here was no
manslaughter defense." Id.
¶¶ 36-42. And this caused us to question whether
counsel had properly explained the extreme emotional distress
defense to Ross. Id. ¶ 42.
We observed that the "trial record indicates that a
defense based on extreme emotional distress may have been the
most obvious and reasonable strategy to prevent Mr. Ross from
being convicted for aggravated murder and attempted
aggravated murder." Id. ¶ 46. We concluded
that "the record is unclear regarding whether there was
a legitimate reason to forego the defense." Id.
¶ 48. And "the record is unclear regarding whether
counsel elected not to raise the defense because he believed
that foregoing the defense would be advantageous to Mr. Ross
in some way." Id. Accordingly, we could not
"conclude that the record could have conveyed anything
'conclusive' to appellate counsel about trial
counsel's strategy." Id. ¶ 49.
We identified several "red flags in the trial record
that should have sparked some investigation by appellate
counsel." Id. ¶ 51. "[A]ppellate
counsel may have been ineffective for either failing to
investigate them, or, after investigating, failing to bring a
claim of ineffective assistance of trial counsel."
Id. "[I]t is precisely this confusion-on the
disputed, genuine issues of whether an investigation occurred
and on what it might have uncovered - that require[d] [this
court to] remand on the appellate counsel claim."
Id. ¶¶ 51, 62.
Because we could not reach his claims regarding the
ineffectiveness of his trial counsel without deciding that
his appellate counsel was ineffective, we did not reach those
claims. Id. ¶ 52. We instructed that if, on
remand, the district court decided that appellate counsel was
ineffective, then the court should consider whether trial
counsel was ineffective as well. Id. ...