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Ross v. State

Supreme Court of Utah

August 15, 2019

Trovon Donta Ross, Appellant,
v.
State of Utah, Appellee.

          On Direct Appeal, Second District, Farmington The Honorable Judge David M. Connors No. 080700641

          Troy L. Booher, Dick J. Baldwin, Salt Lake City, for appellant

          Sean 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.

          OPINION

          PEARCE JUSTICE.

         INTRODUCTION

         ¶1 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.

         ¶2 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.

         ¶3 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 instruction.

         ¶4 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.

         ¶5 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.

         BACKGROUND

         The Murder

         ¶6 Trovon Donta Ross dated Annie Christensen.

         ¶7 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.

         ¶8 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.

         ¶9 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.

         ¶10 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 hurt me."

         ¶11 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.

         ¶12 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 kept running.

         ¶13 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.

         ¶14 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.

         ¶15 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.

         ¶16 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 bedroom.

         The Trial

         ¶17 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.

         ¶18 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.

         ¶19 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.

         ¶20 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."

         ¶21 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."

         ¶22 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.

         ¶23 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 sentence.

         The Direct Appeal (Ross I)

         ¶24 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).[1]

         The Post-Conviction Petition and Appeal (Ross II)

         ¶25 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.

         ¶26 In his petition, Ross described that he and Christensen were both dating other individuals while continuing to see each other.[2]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.

         ¶27 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.

         ¶28 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 appeal.

         ¶29 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.

         ¶30 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.

         ¶31 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....").

         ¶32 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.[3]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 hearing.

         ¶33 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.

         ¶34 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.

         ¶35 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.

         ¶36 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.

         ¶37 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.

         ¶38 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. ...


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