State v. Scott

2022 UT App 81

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TRACY SCOTT,
Appellant.

Opinion
No. 20140995-CA
Filed June 24, 2022

Fourth District Court, Provo Department
The Honorable David N. Mortensen
The Honorable Christine S. Johnson
No. 131400842

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes, Tera J. Peterson, and Marian Decker,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE JILL M. POHLMAN concurred. SENIOR JUDGE KATE
APPLEBY concurred in part and dissented in part, with opinion. 1

CHRISTIANSEN FORSTER, Judge:

¶1 This case returns to us on remand from the Utah Supreme
Court to reconsider Tracy Scott’s claims of error after obtaining
additional information from the district court. Scott was tried
before a jury and convicted of murder. At this stage, we are asked
to consider two issues: first, whether a verdict-urging instruction
the trial court read to the jury after it indicated it was deadlocked
was coercive under the circumstances; and second, whether

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
 State v. Scott

Scott’s trial counsel rendered constitutionally ineffective
assistance after the content of an out-of-court statement made by
the victim was excluded, and trial counsel failed to make any
argument that the statement was being offered for a non-hearsay
purpose. We conclude that Scott cannot make his required
showing on either issue and affirm his conviction.

BACKGROUND 2

¶2 After fighting intensely with each other over the course of
several days, Scott shot his wife, Teresa, 3 three times while she
was lying on their bed. State v. Scott (Scott I), 2017 UT App 74,
¶¶ 7–11, 397 P.3d 837, rev’d, 2020 UT 13, 462 P.3d 350. The couple
had been married for nineteen years, and during that time
experienced significant conflict. Id. ¶¶ 2–6.

¶3 The State charged Scott with domestic violence murder for
killing Teresa. Although Scott admitted that he shot her, he
sought a reduction in the charges, arguing that he acted under
extreme emotional distress from Teresa’s actions in the days
before the murder. 4 See id. ¶ 12. He testified that events preceding

2. We present a slightly truncated version of the facts leading to
Teresa’s death, instead highlighting the issues presented at this
stage of the case. A more thorough recitation is set forth in our
prior opinion, see State v. Scott (Scott I), 2017 UT App 74, ¶¶ 2–16,
397 P.3d 837, rev’d 2020 UT 13, 462 P.3d 350, as well as in the
supreme court’s opinion, see State v. Scott (Scott II), 2020 UT 13,
¶¶ 5–26, 462 P.3d 350.

3. Because the defendant and victim share a last name, we refer to
Teresa by her first name with no disrespect intended by the
apparent informality.

4. The version of the Utah Code in effect at the time these events
took place allowed a person found guilty of murder to receive a
(continued…)

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the shooting had made him “scared to death” of what Teresa
might do to him. Id. ¶ 9. Specifically, Scott asserted that the day
before he shot Teresa, he noticed her gun was absent from the gun
safe in their bedroom and this discovery frightened him, making
him “worried that Teresa was going to use that gun to do some
harm to [him].” Id. ¶ 32. He also stated that on the day of the
shooting, he noticed Teresa’s gun was still missing from the safe.
Id. ¶ 10. After that, Scott testified that he left the house and stayed
in the garage for some time and, while he was there, Teresa
repeatedly leaned her head out the door and stared at him. Id.

¶4 This behavior prompted Scott to “really start[] to wig out,
just freak out.” Id. He resolved at that point that he needed to
reenter the house and “confront” the situation, but as soon as he
entered the kitchen, the two continued fighting. Id. ¶ 11. Scott
eventually “snapped,” at which point he went into the bedroom—
where Teresa was lying on the bed and pointing her cell phone at
him—and took his own gun from the open safe and shot Teresa
three times. Id. Scott called 911 and was arrested shortly after
authorities arrived. Id.

¶5 During Scott’s testimony at trial, he also attempted to
explain his fear of Teresa by recounting a threat she allegedly
made against him a few days before the shooting—a threat he
“thought . . . was serious.” See id. ¶ 13. As Scott began to elaborate
on the threat, the prosecutor objected, asserting that what Teresa

“[s]pecial mitigation” and “instead be found guilty of
manslaughter” if the trier of fact found “by a preponderance of
the evidence” that the defendant had been “under the influence
of extreme emotional distress for which there is a reasonable
explanation or excuse” when the killing occurred. See Utah Code
Ann. § 76-5-205.5(1)(b), (5) (LexisNexis 2012). But the mitigation
was not available when the defendant’s extreme emotional
distress was “substantially caused by the defendant’s own
conduct.” Id. § 76-5-205.5(3)(b).

20140995-CA 3 2022 UT App 81
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said was hearsay, 5 and therefore could not be admitted into
evidence for the jury to consider. Id. The court sustained the
objection, stating during a sidebar, “There’s no way that you’re
going to dance around and get [in] a threat without [it] being
hearsay.” Id. Trial counsel responded simply, “Okay,” and moved
on without any counterargument. Id. As a consequence, the jury
never heard the actual language of the threat, but it was not told
to disregard Scott’s reference to “the threat” he claimed he had
received. See id.

¶6 Following the presentation of evidence, the trial court
instructed the jury. One instruction defined extreme emotional
distress:

A person acts under the influence of extreme
emotional distress when the then-existing
circumstances expose him to extremely unusual and
overwhelming stress that would cause the average
reasonable person under that stress to have an
extreme emotional reaction, as a result of which he
experienced a loss of self-control and had his reason
overborne by intense feelings such as passion,
anger, distress, grief, excessive agitation, or other
similar emotions.

The court followed this with another instruction, which informed
the jury that “[e]motional distress does not include . . . distress
that is substantially caused by the defendant’s own conduct.”
(Emphasis added.)

5. Hearsay statements are largely excluded from being admitted
into evidence, see Utah R. Evid. 802, and include “oral
assertion[s]” made out-of-court that “a party offers . . . to prove
the truth of the matter asserted in the statement,” id. R. 801(a),
(c)(2).

20140995-CA 4 2022 UT App 81
 State v. Scott

¶7 During deliberations, the jury sent the trial court two notes.
The first asked, “What is the legal definition of ‘substantially
caused?’” Scott I, 2017 UT App 74, ¶ 15. The court and counsel for
both parties discussed the issue outside of the jury’s presence and
agreed that “[t]here is no legal definition” for “substantially
caused” because “the legislature hasn’t defined it.” Accordingly,
the court did not give the jury a supplemental instruction defining
the phrase.

¶8 Without a direct response to its question, the jury
continued to deliberate. At some point, it sent a second note
stating, “We are at an absolute impasse, 6-2,” and elaborating that
“[t]wo feel that ‘substantially caused’ needs to be ‘the majority of
the time.’”

¶9 After receiving the second note, the court held another
discussion with both counsel. Trial counsel moved for a mistrial,
asserting that the jury foreperson’s use of the phrase “absolute
impasse” meant that the jurors could not “come to an agreement,
and that continuing to deliberate [would] make it so that
somebody has to give up their honestly held convictions.” The
prosecutor, on the other hand, proposed crafting an instruction
that would define the word “substantial” or, in the alternative,
giving the jury an “Allen instruction.” See generally Allen v. United
States, 164 U.S. 492 (1896) (generally approving the use of
supplemental verdict-urging instructions when a jury is
deadlocked); State v. Lactod, 761 P.2d 23, 30–31 (Utah Ct. App.
1988) (“uphold[ing] the non-coercive use of Allen charges” in
Utah but recognizing that “there are certain inherently coercive
ideas which should not be included in an Allen charge” and
adopting a two-part test to determine if such an instruction is
impermissibly coercive). The trial court disagreed with trial
counsel that there was “anything different between an impasse
and an absolute impasse,” and interpreted the jury’s note as
merely conveying that it had “really tried” up to that point, but
was having difficulty reaching a verdict. The court also
recognized the importance of “look[ing] at [the situation] in
context,” observing that it was not yet “late at night,” which for a

20140995-CA 5 2022 UT App 81
 State v. Scott

weeklong trial meant that the jury had not been deliberating “that
long,” and also observed that the second note’s wording could
suggest the jury “might actually be breaking in favor of the
defense.” Given this context, the court found it was “appropriate
to give an Allen charge.” The court also made clear that the
instruction would ask the jury to continue its deliberations,
“specifically asking [jurors] to review all the instructions” already
given, while reminding them “not to give up their honest
convictions.” With those standards in mind, the court opined that
its verdict-urging instruction would be “comport[ing] with the
case law.”

¶10 Less than six hours into deliberations, the trial court read
the jury a verdict-urging supplemental instruction:

Members of the jury, I’m going to ask you to
continue your deliberations in an effort to agree
upon a verdict. I am specifically asking you to
review all of the jury instructions I have previously
given to you.

This trial represents a significant expenditure of
time and effort by you, the court, the parties, and
their attorneys. If you should fail to agree upon a
verdict, the case is left open and may have to be tried
again, and there is no reason to believe that the case
can be tried again by either side better or more
exhaustively than it has been tried to you.

In order to bring eight minds to a unanimous
result jurors should examine with candor the
questions submitted to them, with due regard and
deference to the opinions of each other. All jurors
should consider whether their position is a
reasonable one, when it makes no impression on the
minds of another equally honest, equally intelligent
juror, who has heard the same evidence, with an

20140995-CA 6 2022 UT App 81
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equal desire to arrive at the truth, under the sanction
of the same oath.

Nevertheless, as I previously instructed you, it is
your duty as jurors to consult with one another and
to deliberate, with a view to reaching an agreement,
if you can do so without violence to your individual
judgment. You each must decide the case for
yourself, but should do so only after a consideration
of the case with your fellow jurors. You should not
hesitate to change an opinion if convinced that it is
erroneous. However, you should not surrender
your honest convictions concerning the effect or
weight of evidence for the mere purpose of
returning a verdict or solely because of the opinion
of the other jurors.

¶11 After this instruction, the jury deliberated for
approximately two more hours, then returned a verdict finding
Scott guilty of murder. Scott was sentenced to a prison term of
fifteen years to life.

¶12 Scott appealed, arguing (1) that “the trial court [had] erred
by giving a verdict-urging instruction when the jury was at an
absolute impasse” and (2) that his trial counsel rendered
ineffective assistance in failing to argue that the content of
Teresa’s threat was not hearsay and therefore admissible. See Scott
I, 2017 UT App 74, ¶¶ 17, 21. In the first opinion considering his
appeal, this court was persuaded that Scott had successfully
demonstrated ineffective assistance of counsel, see id. ¶¶ 19–35,
and as a consequence, we did not address the propriety of the
verdict-urging instruction, see id. ¶ 17. Accordingly, we reversed
Scott’s conviction and remanded the case to the district court for
a new trial. Id. ¶ 35.

¶13 The State petitioned for a writ of certiorari, which our
supreme court granted. State v. Scott (Scott II), 2020 UT 13, ¶ 26,

20140995-CA 7 2022 UT App 81
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462 P.3d 350. The supreme court determined that this court erred
by concluding Scott had received ineffective assistance of counsel,
holding that “there was insufficient information” for us to make
this determination on deficient performance or prejudice without
knowing the specific “content of the threat.” See id. ¶¶ 41, 46. The
supreme court thus reversed and remanded the matter,
instructing us to proceed with a remand to the district court,
under rule 23B of the Utah Rules of Appellate Procedure, to
determine the content of Teresa’s threat. Id. ¶ 47. The supreme
court also directed us to address Scott’s “remaining claim
regarding the [trial] court’s ‘verdict-urging’ jury instruction.” Id.

¶14 Once remanded to this court, we remanded the case to the
district court for additional findings of fact regarding trial
counsel’s actions and what Scott would have testified to regarding
the specifics of the alleged threat.

¶15 The district court issued several pages of findings on
remand, based on a stipulation by the parties. With regard to
Scott’s trial counsel and the overall defense strategy, the court
found that “[t]he main objective at trial [had been] to show that
[Scott] was under the influence of extreme emotional distress at
the time of the shooting, and that the distress was not
substantially caused by [Scott’s] own conduct.” In pursuit of this
strategy, the district court found that “[t]he defense [had] planned
to show Teresa’s conduct included her escalating the level of their
fighting, a specific threat Teresa made in the days preceding the
shooting, and Teresa’s introduction of a gun into the already tense
situation caused [Scott’s] extreme emotional distress.”

¶16 With respect to Scott’s excluded testimony, the court found
as follows:

If [trial counsel] had responded to the objection that
the evidence was not hearsay because it was not
being offered to prove the truth of the matter
asserted, and [Scott] had been allowed to testify

20140995-CA 8 2022 UT App 81
 State v. Scott

about that argument, [Scott] would have testified to
the following:

a. [A few days] before the shooting Teresa and
[Scott] were arguing. During that argument
[Scott] said to Teresa, “at least I take the kids
and go do stuff. You just lay around and
sleep all day.”

b. Teresa replied that “while you was gone with
the boys I didn’t sleep, I went to the gun
range.” Then she held her fingers formed into
a circle over her chest and said, “I got them
in a group ‘this’ big.”

c. In the context of that argument, [Scott] took
Teresa’s statement to be a threat that she
would or could shoot [him].

¶17 With the additional findings of fact generated by the
district court, we consider anew Scott’s claims on appeal.

ISSUES AND STANDARDS OF REVIEW

¶18 At this stage of the appeal, we are presented with two
issues. First, Scott argues that the verdict-urging instruction was
“coercive under the circumstances” of this case and that the trial
court erred by giving it. “We review for correctness whether the
trial court’s delivery of a [verdict-urging] instruction denied [the
d]efendant a fair trial.” State v. Dalton, 2014 UT App 68, ¶ 25, 331
P.3d 1110.

¶19 Scott also argues that his trial counsel was constitutionally
ineffective in failing to adequately argue against the hearsay
challenge and obtain admission of the content of Teresa’s threat.
“When a claim of ineffective assistance of counsel is raised for the
first time on appeal, there is no lower court ruling to review and

20140995-CA 9 2022 UT App 81
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we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v.
Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (quotation
simplified).

ANALYSIS

I. The Verdict-Urging Jury Instruction

¶20 When a trial court “is informed by a jury that they are
having difficulty in agreeing, it is not error for the court to impress
upon [jurors] the importance of the case, urge them to come to
agreement, and send them back for further deliberation.” State v.
Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988) (quotation simplified).
The United States Supreme Court first authorized the use of such
supplemental verdict-urging instructions with deadlocked juries
in Allen v. United States, 164 U.S. 492 (1896). “[H]ence, such
instructions are often referred to as ‘Allen charges.’” Lactod, 761
P.2d at 29.

¶21 Although “[s]ome jurisdictions have abandoned the Allen
charge,” others have merely “limited it.” Id. Utah falls within the
latter category, as Utah courts have recognized that verdict-
urging charges are “a reasonable and proper exercise of the [trial]
court’s power to guide the jury to a fair and impartial verdict”—
as long as such an instruction does not “coerce the jury into
returning a verdict because [a coercive instruction] amounts to a
denial of a fair and impartial jury trial and is, therefore, a denial
of due process.” See id. at 30–31; see also State v. Bess, 2019 UT 70,
¶ 58, 473 P.3d 157 (“Utah courts have repeatedly upheld the use
of deadlock instructions as a permissible way to guide the jury to
a fair and impartial verdict, so long as the instruction is not
coercive.” (quotation simplified)). This court has developed a
two-part test to determine whether the challenged verdict-urging
instruction “will be deemed coercive,” which requires us to
consider whether “(1) the language of the supplemental charge
can properly be said to be coercive per se, or (2) it is coercive under

20140995-CA 10 2022 UT App 81
 State v. Scott

the specific circumstances of the case.” State v. Ginter, 2013 UT
App 92, ¶ 6, 300 P.3d 1278 (quotation simplified); accord Lactod,
761 P.2d at 31 (“If the terms of the charge are not coercive per se,
then we must consider, under the specific circumstances of the
case, whether the charge was proper after the jury had reported
an inability to reach a verdict.”).

¶22 Scott does not argue that the language of the trial court’s
charge was coercive per se; instead, he focuses on whether it was
coercive under the circumstances. Therefore, we do not address
whether the supplemental instruction was coercive per se and
move straight to analyzing whether the instruction was proper
“under the specific circumstances of the case.” See Lactod, 761 P.2d
at 31. Because Scott has not shown coerciveness under the
circumstances, we cannot say that the verdict-urging instruction
was improper.

¶23 Under Lactod, courts must consider certain factors when
assessing whether an instruction was coercive under the
circumstances, including “any colloquy between the judge and
the jury fore[person], circumstances surrounding the giving of
the instruction, and consideration of the American Bar
Association Standards on Criminal Justice Relating to Trial by
Jury.” Id. (quotation simplified); accord Ginter, 2013 UT App 92,
¶ 6.

¶24 Beginning with “any colloquy” between the trial court and
jury foreperson, there was no conversation, but there were two
jury notes. The first requested a legal definition of “substantially
caused.” The second informed the judge that the jury was “at an
absolute impasse,” and was split “6-2,” with two jurors “feel[ing]
that ‘substantially caused’ needs to be ‘the majority of the time.’”
The court did not provide a definition in response to the first note,
instead allowing the jurors to apply an ordinary meaning to the
phrase. And in response to the second note, the court provided a
supplemental instruction, encouraging the jury to continue
deliberating.

20140995-CA 11 2022 UT App 81
 State v. Scott

¶25 Scott contends that “by not providing any insight into the
definition of ‘substantially caused,’” the trial court’s verdict-
urging instruction communicated to the jury that its disagreement
over the meaning of that phrase “was not legitimate enough to
preclude a verdict.” We disagree. In instructing the jurors “to
consult with one another and to deliberate, with a view to
reaching an agreement,” the court also reminded them to “not
surrender [their] honest convictions . . . for the mere purpose of
returning a verdict.” Thus, the court did not discount the jurors’
disagreement or communicate that it was less important than
reaching a verdict. Further, the jury’s disagreement over the
meaning of the phrase “substantially caused” was a disagreement
that had the potential of being resolved with further deliberation.
Thus, the aspects surrounding the colloquies between the jury and
the trial court here did not signal any sort of coercion.

¶26 Looking next to the “circumstances surrounding the giving
of the instruction” itself, see State v. Lactod, 761 P.2d 23, 31 (Utah
Ct. App. 1988) (quotation simplified), our case law suggests that
the circumstances may demonstrate coercion if (1) the jury is
aware that the court knows that one juror is in the minority and
(2) the verdict-urging instruction singles out that minority juror.
Once the jury is aware that “the trial judge ha[s] been informed
that a single juror [is] not in agreement with the majority,” there
is a risk that “holdout juror[s] might have the mistaken
impression that [they are] being directly and individually
instructed by the trial judge to defer to the conclusions of the
majority.” See Ginter, 2013 UT App 92, ¶¶ 8, 14 (quotation
simplified); see also State v. Harry, 2008 UT App 224, ¶ 31, 189 P.3d
98 (“Where the jury voluntarily informed the judge that they were
split seven to one, the trial court’s instruction that only the
holdout juror reconsider whether the doubt in her mind was
reasonable in light of the fact that so many other similarly
informed and motivated jurors had concluded otherwise was
coercive. . . . [T]he knowledge that one juror stood alone against
the others made [the instruction’s other] statement[s] insufficient
to counterbalance fully the prior statements urging
acquiescence.”). In Harry, for example, the court first addressed

20140995-CA 12 2022 UT App 81
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only the minority, instructing “each dissenting juror” in favor of
acquittal to “reconsider whether any doubt they held was
reasonable.” 2008 UT App 224, ¶ 17 (quotation simplified). And
although the court tried to counterbalance that instruction by
advising the remaining jurors to consider whether to accept
evidence that failed to convince “several of their fellow jurors,” id.
¶ 18 (quotation simplified), the fact that the court knew that “one
juror stood alone against the others” made the instruction unduly
coercive, 6 id. ¶ 31.

¶27 Here, as in Harry and Ginter, the trial court was informed
of how many jurors were in the minority (though not whether the
minority was for conviction or acquittal), and the jury knew that
the court was aware it was split, because the second note stated
the jury was deadlocked “6-2.” But unlike the verdict-urging
instructions in both Harry and Ginter, the verdict-urging
instruction in this case made no distinction between majority and
minority jurors. Instead, the court neutrally instructed “[a]ll
jurors” to “consider whether their position is a reasonable one.” It
also did not suggest that jurors should reconsider their positions
based on the opinions of “a substantial majority,” “a majority or
even a lesser number,” or “several of their fellow jurors.” See
Harry, 2008 UT App 224, ¶¶ 17–18 (quotation simplified); see also
Ginter, 2013 UT App 92, ¶ 11 (urging jurors to consider the
opinions of “a substantial majority,” “a majority or even a lesser
number,” and “your fellow jurors” (quotation simplified)). To the
contrary, the language of the instruction here urged jurors to
reconsider evidence “when it makes no impression on the minds
of another equally honest, equally intelligent juror,” suggesting
that the opinion of any single juror should be considered by all
other jurors. (Emphasis added.) The instruction further informed
all jurors to “decide the case for” themselves after considering
“the case with [their] fellow jurors” and not to “surrender [their]
honest convictions concerning the effect or weight of evidence for
the mere purpose of returning a verdict or solely because of the

6. The instruction in Ginter was nearly identical. See State v. Ginter,
2013 UT App 92, ¶ 11, 300 P.3d 1278.

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 State v. Scott

opinion of the other jurors.” In short, nothing in this instruction
might have given minority jurors “the mistaken impression that
[they were] being directly and individually instructed by the trial
judge to defer to the conclusions of the majority.” See Ginter, 2013
UT App 92, ¶ 8 (quotation simplified). Even though the court in
this case knew there were two holdout jurors, that fact alone does
not suggest coercion where the instruction did not single out
those jurors.

¶28 Another aspect relevant to whether the circumstances
surrounding the instruction were coercive is the duration of time
the jury spends deliberating after the instruction is given. Compare
Lactod, 761 P.2d at 31 (citing the fact that “the jury continued to
deliberate after receiving the instruction for another hour and
fifteen minutes” as one circumstance indicating non-coerciveness
because it “suggest[ed] that minority jurors did not instantly
acquiesce to the majority”), with Harry, 2008 UT App 224, ¶ 33
(“[T]he fact that the jury reached a verdict only twenty-six
minutes after receiving the modified Allen instruction suggests
that the sole dissenting juror was, in fact, coerced and instantly
acquiesced to the majority.” (quotation simplified)), and Ginter,
2013 UT App 92, ¶ 12 (analogizing to Harry and determining that
the instruction and surrounding circumstances created “an
atmosphere of coercion” where, among other similarities to that
case, “the jury returned with a verdict in less than thirty minutes”
after receiving the instruction). Here, the jury continued to
deliberate for just over two hours after it received the verdict-
urging instruction. This period stands in stark contrast to Harry
and Ginter, where those juries deliberated for fewer than thirty
minutes, and even exceeds the time the jury spent deliberating in
Lactod, in which this court concluded that an additional hour and
fifteen minutes of deliberations suggested that there was no
coercion.

¶29 Furthermore, the trial court “did not threaten to or keep the
jury deliberating for an unreasonable length of time.” See Lactod,
761 P.2d at 31. Here, the court gave the instruction at
approximately 6:00 p.m. after the jury had been deliberating for

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five-and-a-half hours. Again, these circumstances are similar to
those in Lactod, in which this court determined that the timing
circumstances were noncoercive when the jury had deliberated
for five hours before receiving the deadlock instruction, then
deliberated for an additional hour and fifteen minutes thereafter.
See id. at 24, 31. Indeed, the trial court here appropriately took
timing concerns into account when discussing with counsel the
propriety of giving an Allen instruction, noting that it was not yet
“late at night,” which for a weeklong trial meant that the jury had
not been deliberating “that long.” We find this reasoning sound
because, in light of the weeklong trial and the seriousness of the
charges, urging continued deliberation after just five hours of
deliberation does not seem unreasonable. As a result, the timing
circumstances surrounding giving the instruction weigh against a
finding of coercion under the second factor.

¶30 The third Lactod factor, whether the instruction falls
“reasonably within the ABA-recommended standards for verdict-
urging instructions,” 761 P.2d at 31, yields a more nuanced result
in this case. The instruction the trial court gave largely mirrors the
content of the ABA standards but differs in one notable respect:
whereas “the ABA instruction makes no mention of the cost or
inconvenience of retrial,” see Harry, 2008 UT App 224, ¶ 34, the
instruction given here emphasized those things. Compare generally
supra ¶ 10, with ABA Standards for Criminal Justice Discovery & Trial
by Jury § 15–5.4 (3d ed. 1996) (hereinafter ABA Standards),
reproduced in Lactod, 761 P.2d at 30 n.3. Specifically, the instruction
informed Scott’s jury that the trial was “a significant expenditure
of time and effort by you, the court, the parties, and their
attorneys,” and advised, “If you should fail to agree upon a
verdict, the case is left open and may have to be tried again, and
there is no reason to believe that the case can be tried again by
either side better or more exhaustively than it has been tried to
you.”

¶31 This court found similar language problematic in Ginter,
where the instruction at issue noted the “expense in time, effort,
money and emotional strain” the case had involved. 2013 UT App

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92, ¶ 12 (quotation simplified). In reaching that conclusion, this
court relied on guidance from Harry, but observed that “the Harry
court [had] recognized that such language was not necessarily
coercive.” See id. (emphasis added). Indeed, based on the structure
and content of this analysis, and where it appears in the overall
opinion in Ginter, it seems that this technical infirmity in the
instruction was inconsequential, rather than the primary factor,
leading to this court’s determination that the charge was coercive
under the circumstances of that case. See id. (“[W]e also consider
this language to contribute to the creation of an atmosphere of
coercion.” (emphasis added)).

¶32 And this reading of Ginter makes sense because other
statements in our case law indicate that a technical divergence
from what the ABA standards recommend is not necessarily
dispositive to the coerciveness analysis. See State v. Lactod, 761
P.2d 23, 31 (Utah Ct. App. 1988) (directing the court to
“consider[]” the standards, and finding an instruction
noncoercive when it was “reasonably within” the standards); see
also Harry, 2008 UT App 224, ¶ 26 (“Based upon the guidance from
our supreme court, prior opinions of this court, and the decisions
upon which that Utah precedent relies, we decline [the] invitation
to limit our trial courts to using only the ABA model.” (quotation
simplified) (emphasis added)). Instead, it is the exact manner and
degree to which the instruction deviates from the ABA standards
that matters. See Ginter, 2013 UT App 92, ¶ 12.

¶33 Crucially, the trial court here did not tell the jury it was
required to reach a decision, nor did it aim the instruction directly
toward the jurors who were in the minority—which are two
characteristics that this court has previously identified as
contributing to coercive circumstances. See Lactod, 761 P.2d at 31
(finding no coercion where “the trial [court] did not tell the jury
that it was required to reach a decision”); Harry, 2008 UT App 224,
¶ 34 (finding the charge coercive when it “was directed only to
the sole dissenting juror,” and contrasting with “[t]he ABA
standard [that] does not single out the minority jurors but instead
sends an even-handed message”); accord Ginter, 2013 UT App 92,

20140995-CA 16 2022 UT App 81
 State v. Scott

¶¶ 9–11. Indeed, the instruction here stated the exact opposite,
telling the jury, “If you should fail to agree upon a verdict, the
case is left open and may have to be tried again,” “All jurors
should consider whether their position is a reasonable one,” and
“[I]t is your duty as jurors to consult with one another and to
deliberate, with a view to reaching an agreement, if you can do so
without violence to your individual judgment.” (Emphasis added.)
This language hews closely to the ABA standards, applying to all
jurors evenly and leaving open the possibility of retrial if they
ultimately could not agree on a verdict. See ABA Standards § 15–
5.4(a)(2), (a)(4), (c). In the end, although the court “did indicate
that [it] and the jury had invested a substantial amount of time in
the case, [the court] was only stating the obvious,” and made sure
to “counterbalance[]” this language with the other, stronger
statements noted above. See Lactod, 761 P.2d at 31. Thus,
reminding the jury of the expended time and effort and the risk of
retrial is not enough on its own to make the instruction coercive
under the third factor.

¶34 After considering the verdict-urging jury instruction
through the lens of each Lactod factor, we conclude that Scott has
not demonstrated coercion based on the circumstances of his case.
Accordingly, the instruction does not provide a basis for us to
reverse his conviction.

II. Ineffective Assistance of Counsel

¶35 Scott next contends that he received ineffective assistance
of counsel when his trial counsel failed to make any argument to
the trial court that the content of Teresa’s threat was not hearsay
because it was being used for a non-hearsay purpose. To prevail
on his ineffective assistance claim, Scott must show both (1) that
his trial counsel’s performance was “deficient” by falling “below
an objective standard of reasonableness” and (2) that this
“deficient performance prejudiced the defense” by giving rise to
“a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). We

20140995-CA 17 2022 UT App 81
 State v. Scott

assess whether Scott received ineffective assistance within this
framework.

¶36 First, to establish deficient performance, Scott “must show
that trial counsel’s ‘representation fell below an objective
standard of reasonableness’ when measured against prevailing
professional norms.” See Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d
182 (quoting Strickland, 466 U.S. at 687–88). He must “overcome
the presumption that . . . the challenged action might be
considered sound trial strategy.” See Strickland, 466 U.S. at 689
(quotation simplified). Here, as this court explained more fully
in our previous opinion—and as all parties agree—Scott’s
testimony regarding the content of Teresa’s threat was not
hearsay because Teresa’s statements were not being offered to
prove the truth of what she asserted, rather they were being
offered to prove the effect the words had on Scott. See Scott I, 2017
UT App 74, ¶¶ 21–23, 397 P.3d 837, rev’d 2020 UT 13, 462 P.3d 350.
And if trial counsel had made an appropriate responsive
argument, Scott would have presumably been allowed to testify
about the specifics of the threat (or at the very least the issue
would have been preserved for a direct challenge of the trial
court’s action). See id. ¶ 23.

¶37 Our review of the record as supplemented by the rule 23B
remand certainly suggests that trial counsel failed to correctly
argue the rules of evidence. The district court explicitly found on
remand that trial counsel had “planned” all along to introduce the
content of Teresa’s threat and that revealing Teresa’s threat to the
jury was central to the defense’s “main objective” of showing that
the threat, along with Teresa’s other conduct, “caused [Scott’s]
extreme emotional distress.” But merely finding error in counsel’s
actions is not dispositive, as “[i]t is not correct to equate counsel’s
submission to an error with deficient performance.” State v. Ray,
2020 UT 12, ¶ 32, 469 P.3d 871. Instead, Scott “must show that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” See
Strickland, 466 U.S. at 687.

20140995-CA 18 2022 UT App 81
 State v. Scott

¶38 Furthermore, and as the State pointed out at oral argument,
strategies adopted by counsel are not static and can change at any
moment during trial. Trial counsel could have read the jury’s
reactions in the moment and determined that Scott’s reference to
“the threat” he had received alone, or the act itself of the
prosecutor objecting, had the intended effect on the minds of the
jury. Either of these determinations (or both) could have served as
“a sound strategic reason for counsel’s actions.” See Scott II, 2020
UT 13, ¶ 35, 462 P.3d 350 (citing Strickland, 466 U.S. at 689). Such
a split-second change of course may seem unexpected based on
the district court’s findings regarding the original defense
strategy, but that does not render it unreasonable. Cf. Ray, 2020
UT 12, ¶ 32 (“We must view a decision to not object in context and
determine whether correcting the error was sufficiently important
under the circumstances that failure to do so was objectively
unreasonable—i.e., a battle that competent counsel would have
fought.” (emphasis added)). And where we can attribute “the
challenged action” to a “sound trial strategy, it follows that
counsel did not perform deficiently.” Scott II, 2020 UT 13, ¶ 35
(quotation simplified).

¶39 Moreover, even if trial counsel did perform deficiently by
failing to make a persuasive responsive argument that Scott’s
recounting of Teresa’s threat was not hearsay, “[a]n error by
counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” Strickland, 466 U.S. at 691. Rather,
Scott must “demonstrate a reasonable probability that the
outcome of his . . . case would have been different absent counsel’s
error.” See Scott II, 2020 UT 13, ¶ 43. Accordingly, we ask whether
there is a reasonable probability that the jury verdict would have
been different had the jury heard the actual words of Teresa’s
threat. Under the version of the Utah Code in effect at the time of
Teresa’s death, 7 a person charged with murder could seek

7. The “extreme emotional distress” special mitigation is still
available, but the relevant section was significantly amended
(continued…)

20140995-CA 19 2022 UT App 81
 State v. Scott

“[s]pecial mitigation” and “instead be found guilty of
manslaughter” if the trier of fact found “by a preponderance of
the evidence” that the defendant, at the time of the killing, had
been “under the influence of extreme emotional distress for which
there is a reasonable explanation or excuse.” See Utah Code Ann.
§ 76-5-205.5(1)(b), (5) (LexisNexis 2012). No mitigation would
have been available if the jury had determined that Scott’s
emotional distress was “substantially caused by [his] own
conduct.” See id. § 76-5-205.5(3)(b).

¶40 Thus, “[i]n this context, evaluating prejudice requires us to
consider whether there was a reasonable probability that at least
one juror[ 8] would have concluded that [Scott] acted under
extreme emotional distress” that was not substantially caused by
his own conduct if the juror had heard the specifics of Teresa’s
threat, rather than just Scott’s statement that she threatened him.
See Ross v. State, 2019 UT 48, ¶ 97, 448 P.3d 1203. To assess the
relative importance of this piece of evidence if it had been before
the jury, we must examine more closely what Scott was required
to show to demonstrate extreme emotional distress.

¶41 Ultimately, “the factfinder must make two findings for the
defense of extreme emotional distress to attach,” determining

since our decision in Scott I. Compare Utah Code Ann. § 76-5-205.5
(LexisNexis 2012), with id. (Supp. 2020).

8. “[A] unanimous vote of the jury” would have been required to
convict Scott of manslaughter under the “special mitigation” of
extreme emotional distress. See Utah Code Ann. § 76-5-205.5(6)(a).
But “[i]f the jury is unable to unanimously agree whether or not
special mitigation has been established, the result is a hung jury.”
Id. § 76-5-205.5(6)(d). So, because the prejudice analysis hinges on
whether there is a “reasonable probability” of a “different” result,
see Strickland v. Washington, 466 U.S. 668, 694 (1984), the
probability of a hung jury is the counterfactual result we consider,
as opposed to whether the entire jury would have agreed on the
existence of extreme emotional distress.

20140995-CA 20 2022 UT App 81
 State v. Scott

“whether: (1) subjectively, the defendant committed the killing
while under the influence of extreme emotional distress, and (2)
objectively, a reasonable person would have experienced an
extreme emotional reaction and loss of self-control under the
circumstances.” Id. ¶ 98 (quotation simplified). The first,
subjective component incorporates four sub-requirements: (1)
exposure to “extremely unusual and overwhelming stress”; (2) an
“extreme emotional reaction” resulting in a “loss of self-control”
and reason being “overborne by intense feelings, such as passion,
anger, distress, grief, excessive agitation, or other similar
emotions”; (3) the emotional distress did not result from “mental
illness,” as that term is defined in Utah Code section 76-2-305; and
(4) the emotional distress was “not substantially caused by [the
defendant’s] own conduct.” State v. Sanchez, 2018 UT 31, ¶ 43, 422
P.3d 866 (quotation simplified). The second, objective component
essentially asks “whether a reasonable person facing the same
situation would have reacted in a similar way.” Id. ¶¶ 44, 46
(quotation simplified).

¶42 On appeal, Scott asserts that the content of Teresa’s
threat—telling Scott that she had been recently practicing her
shooting and indicating she “got them in a group ‘this’ big,” while
making a circle with her fingers over her chest—would have been
“more evidence contributing to Scott’s distress [in] the moments
leading to the shooting,” which “would have only helped” the
jury reach the defense’s desired finding of extreme emotional
distress. Scott also argues that the jury’s view on “[t]he
reasonableness of his emotional distress [would have been]
significantly impacted by gaining access to why he believed
[Teresa] might have that gun and why he believed she posed a
threat to him.” Thus, Scott attempts to tie the significance of the
threat’s content to the first sub-showing required as part of the
subjective element—that is, whether Scott, subjectively, “was
exposed to extremely unusual and overwhelming stress”—as
well as to the objective element—that is “whether a reasonable
person” hearing this from Teresa “would have reacted in a similar
way.” See id. ¶¶ 43–46 (quotation simplified).

20140995-CA 21 2022 UT App 81
 State v. Scott

¶43 Scott further contends that the actual content of the threat
would have been the missing “connection between Scott being
scared to death and that gun missing from the safe.” But although
the content of the threat may have added some detail to the
overall evidentiary picture, we are not convinced it would have
tipped the balance in Scott’s favor.

¶44 In evaluating the effect of the suppression of Scott’s
testimony regarding the details of Teresa’s threat, it is important
to explore the evidence the jury did hear. This was not a situation
in which all evidence of Teresa’s threat was excluded. Rather, the
jury heard Scott testify that after he saw the safe was open and the
gun missing, he recalled “the threat that [he] received the day
before . . . that she was going to . . . .” Scott was cut off before he
described what Teresa said she was going to do, but he testified
that “there was a threat made” and that he “thought the threat
was serious.” And when asked whether, after seeing the gun
missing, he was “worried that Teresa was going to use that gun
to do some harm to [him],” he responded, “Yes,” he was “scared
to death.” Despite hearing this testimony, the jury rejected Scott’s
argument that the threat mitigated his actions.

¶45 The district court found on remand that if the trial court
had not excluded further testimony about the threat, Scott would
have testified that Teresa reported that she was “able to get all the
shots in a pattern ‘that big’,” while holding her hands “over her
heart forming a circle with her fingers.” The court also found that
Scott would have further testified about the statement’s effect on
him: that he understood Teresa’s statement “to be a threat that she
would or could shoot [him].” But we are skeptical that if the jury
had heard the additional testimony, it is reasonably likely it
would have rendered a different verdict.

¶46 The jury heard that Teresa threatened Scott the day before
her gun had been removed from the safe and that Scott thought
the threat was serious, that he was “scared to death,” and that as
a result of the threat, he was worried Teresa would “do some
harm to [him]” when he saw the gun was not in the safe. The

20140995-CA 22 2022 UT App 81
 State v. Scott

actual contents of the threat revealed on rule 23B remand did not
make the threat seem worse than what he had already described;
if anything, it was veiled and less menacing. Scott’s statement at
trial about “the threat that [he] received the day before . . . that she
was going to . . .” made the threat seem more explicit than the
threat he actually received. And although we are not suggesting
that he could not perceive the comment as threatening, it is not
reasonably likely that the jury would have perceived the threat as
more menacing had it known its actual contents. In fact, as our
supreme court postulated in Scott II, “[t]he actual words of a weak
threat could have hurt, rather than helped, Scott’s defense because
the jury could have viewed his reaction as irrational and
disproportionate.” 2020 UT 13, ¶ 45, 462 P.3d 350. It appears that
the supreme court’s supposition has been borne out; after
remand, it is apparent that the threat was comparatively weak to
what the jury likely imagined when Scott described a serious
threat that left him “scared to death.” At the very least, Teresa’s
actual words (and actions) did not appear to be more serious than
what Scott had already described.

¶47 Scott also asserts that the content of Teresa’s threat would
have affected the jury’s consideration of whether he had
“substantially caused” his own emotional distress—the fourth
sub-component of the subjective element. See Sanchez, 2018 UT 31,
¶ 43; Utah Code Ann. § 76-5-205.5(3)(b). This argument is
unavailing for several reasons.

¶48 First, Scott focuses on the “substantially caused” showing
being evidenced by the deadlocked jury, asserting that six jurors
“believed Scott’s emotional distress was substantially caused by
his own conduct,” while the other “two . . . believed Scott’s
emotional distress was not substantially caused by his own
conduct.” But as noted supra ¶ 27, the record was not clear that
this was precisely how the jury split. The trial court even
postulated that the jury “might actually be breaking in favor of
the defense.” Thus, given that the record is inconclusive on the
nature of the “6-2” split, Scott cannot show prejudice by the fact
of the split because his assertion that two jurors were convinced

20140995-CA 23 2022 UT App 81
 State v. Scott

he had not substantially caused his own distress is not established
by the record.

¶49 Second, as with the degree of Scott’s distress and the
reasonableness of his reaction, evidence about the exact nature of
the threat would have done little to dispel any notion the jury may
have had that Scott “substantially caused” his own distress. As
previously noted, the jury heard that Scott received a “serious”
threat that Teresa was “going to do” something to him, which he
claimed made him “scared to death” when he saw the gun
missing from the safe. Scott has not persuaded us that it is
reasonably likely that the jury would have reached a different
conclusion about Scott’s contribution to his own distress had the
jury heard a few more details about Teresa’s statement and
gesture. To the contrary, if the jury credited Scott’s testimony, it
already had the opportunity to factor Teresa’s threat and his
fearfulness into its assessment of whether Scott “substantially
caused” his own distress. And Scott has not explained why it is
reasonably likely that the jury would have viewed the evidence
differently with the additional detail.

¶50 In short, it is not reasonably likely that the addition of the
substantive content of Teresa’s threat would have altered the
jury’s assessment of Scott’s testimony about his own conduct and
his emotional reactions to Teresa’s conduct immediately before he
killed her. Therefore, we cannot conclude that hearing the words
of what was ultimately a veiled threat would have made a
difference to the jury’s analysis of whether Scott had subjectively
caused his own distress. In fact, hearing the threat may have
worsened Scott’s position. Accordingly, because he cannot show
a reasonable likelihood of a different result, Scott’s ineffective
assistance claim fails.

CONCLUSION

¶51 The trial court’s verdict-urging instruction was not
coercive under the circumstances. And because Scott has not

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 State v. Scott

demonstrated that if the jury had heard testimony of the specific
content of Teresa’s threat it is reasonably likely that it would have
reached a different verdict, his ineffective assistance claim fails.
Accordingly, we affirm his conviction.

APPLEBY, Senior Judge (concurring in part and dissenting in
part):

¶52 I concur with the majority opinion concerning the verdict-
urging jury instruction but dissent with respect to whether Scott
received effective assistance of counsel. In my view, he did not. I
conclude that Scott met his burden of persuasion to show both
deficient performance and prejudice, and therefore I would
reverse and remand the case for a new trial.

¶53 Establishing ineffective assistance of counsel requires Scott
to “show (1) that counsel’s performance was deficient and (2) that
the deficient performance prejudiced the defense.” See State v.
Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (quotation simplified); see
also Strickland v. Washington, 466 U.S. 668, 687 (1984). Scott has
made those showings.

¶54 With respect to the first prong of the ineffective assistance
of counsel analysis, our supreme court’s reversal of this court’s
initial decision stated that without knowing “the words and how
they were spoken, nor the context of the threat,” “it is impossible
to conclude that counsel’s inaction was objectively unreasonable.”
State v. Scott (Scott II), 2020 UT 13, ¶ 38, 462 P.3d 350. “If the
specific details of the alleged threat did not add to the evidence
counsel did successfully place before the jury, then counsel may
have reasonably chosen not to argue for the introduction of these
details because he was uncertain how the jury would perceive
them in any event.” Id. ¶ 39. In this case, the context and details of
the words and gesture of the threat would have added
significantly to the evidence before the jury.

20140995-CA 25 2022 UT App 81
 State v. Scott

¶55 As to the second prong of the ineffective assistance of
counsel analysis, the supreme court stated that “whether Scott
was prejudiced also depends on the content of the threat.” Id. ¶ 42.
A defendant must “demonstrate a reasonable probability that the
outcome of his or her case would have been different absent
counsel’s error.” Id. ¶ 43. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. The supreme court continued, “If the
threat were not particularly compelling, it is possible Scott would
have been harmed by its admission. The actual words of a weak
threat could have hurt, rather than helped.” Scott II, 2020 UT 13,
¶ 45. A statement by a person that she had been practicing
shooting, coupled with a demonstration of her capacity for deadly
accuracy, is not a weak threat.

¶56 On remand for findings concerning “the claimed deficient
performance by counsel and the claimed prejudice suffered by
[Scott] as a result,” 9 the district court’s findings were organized as
facts concerning trial counsel and facts concerning Scott. With
respect to trial counsel, the court found that “[t]he main objective
at trial was to show that [Scott] was under the influence of extreme
emotional distress at the time of the shooting, and that the distress
was not substantially caused by [Scott]’s own conduct.” Further,
“[t]he defense planned to show Teresa’s conduct included her
escalating the level of their fighting, a specific threat Teresa made
in the days preceding the shooting, and Teresa’s introduction of a
gun into the already tense situation caused [Scott]’s extreme
emotional distress.” Counsel knew “what [Scott] would say about
Teresa’s statements.”

¶57 As to the specific content of the threat, the district court
found that counsel expected Scott would have testified that
“[d]uring a fight a few days before the shooting, Teresa told

9. The district court docket includes a stipulation asking the court
to forgo an evidentiary hearing, and the parties simultaneously
filed a proposed Order and Findings of Fact Re: 23B Remand,
which the court adopted.

20140995-CA 26 2022 UT App 81
 State v. Scott

[Scott] that . . . she took her gun to the shooting range . . . [and]
was able to get all the shots in a pattern ‘that big’ and she held her
hands over her heart forming a circle with her fingers.” Scott
interpreted this as a threat and “thought she was saying she had
a gun and knew how to use it against him if she needed to.” The
findings regarding Scott were substantially similar, although the
word “chest” was used instead of “heart.”

¶58 The majority opinion expresses skepticism that if the jury
had heard the content of the threat, it was reasonably likely to
have rendered a different verdict. Supra ¶ 45. It notes that Scott
testified that Teresa threatened him, that her gun was not in the
gun safe, and that Scott was worried Teresa would harm him, but
“[t]he actual contents of the threat . . . did not make the threat
seem worse than what he had already described; if anything, it was
veiled and less menacing.” Supra ¶ 46 (emphasis added). And
because Scott testified at trial that Teresa threatened him, this
“made the threat seem more explicit than the threat he actually
received.” Supra ¶ 46. The majority opinion concludes that “it is
not reasonably likely that the jury would have perceived the
threat as more menacing had it known its actual contents.” Supra
¶ 46. It adds, “the threat was comparatively weak to what the jury
likely imagined when Scott described a serious threat that left him
‘scared to death.’ At the very least, Teresa’s actual words (and
actions) did not appear to be more serious than what Scott had
already described.” Supra ¶ 46.

¶59 I disagree. The reasonable inference of Teresa’s verbal
threat, including her description of practicing at the gun range,
coupled with the gesture of placing her circled fingers over her
heart or chest, is that she had been developing firearms
proficiency such that she would and could shoot Scott in a place
on his body that would or could kill him. Indeed, the parties
stipulated—and the district court found on remand—that Scott
thought Teresa would or could shoot him. This would have added
to Scott’s testimony that he was “scared to death.” What Teresa
said and did, including her statement that she had been practicing
shooting and her statement and gesture that she had reached

20140995-CA 27 2022 UT App 81
 State v. Scott

potentially lethal proficiency, combined with her gun’s absence
from the safe, demonstrated that she was preparing to shoot Scott
and that she could hit him in the heart or chest. This is not a weak
threat but, rather, a specific declaration of Teresa’s preparation
and ability to kill Scott.

¶60 The “main objective” of the defense was “to show that
[Scott] was under the influence of extreme emotional distress at
the time of the shooting, and that the distress was not
substantially caused by [Scott]’s own conduct.” As the district
court found pursuant to the rule 23B remand, trial counsel knew
the specific content of the threat and tried to elicit testimony about
it, but it was excluded as hearsay. Accordingly, our supreme
court’s concern that “counsel may have reasonably chosen not to
argue for the introduction of these details because he was
uncertain how the jury would perceive them in any event,” Scott
II, 2020 UT 13, ¶ 39, seems misplaced given what we know of the
complete facts. And yet trial counsel did nothing to assist the
district court to understand that the threat was not hearsay. Id.
¶¶ 17–19. This was deficient performance, and as this court
articulated in Scott I, there was no sound strategic reason for
counsel’s silence, see State v. Scott (Scott I), 2017 UT App 74, ¶ 28,
397 P.3d 837, rev’d, 2020 UT 13, 462 P.3d 350; indeed, the findings
on remand demonstrate that counsel’s intent was to introduce the
evidence, and yet he failed to argue the applicable rules of
evidence to introduce key testimony that would have supported
Scott’s intended defense. Failure to argue that the threat was not
hearsay and therefore admissible fell below the objective standard
of reasonableness. Because of this, I conclude that the first prong
for establishing ineffective assistance of counsel has been
satisfied.

¶61 I also disagree with the majority regarding whether the
absence of the threat’s content prejudiced Scott’s defense. More
specific evidence regarding this particular threat—a threat that
Teresa had been practicing shooting her gun and achieved
sufficient proficiency to kill Scott—made it reasonably probable
that the result of the trial would have been different. As it was,

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 State v. Scott

Scott was unable to offer testimony about Teresa’s words and
gesture, and this had adverse consequences for Scott. Indeed, in
closing argument, the prosecution argued that the gun’s absence
from the safe was not a reasonable basis for Scott’s extreme
emotional distress. Scott needed the additional testimony about
the specifics of the threat to be able to rebut the prosecutor’s
argument. Furthermore, we know from the questions the jury
asked that its initial deadlock was based on this very issue—the
cause of Scott’s emotional distress. If Scott had been allowed to
testify regarding the threat’s content, it is reasonably probable the
jury would have continued to be deadlocked, which would have
meant a mistrial. As this court noted in Scott I, the probability of a
mistrial is sufficient to undermine confidence in the outcome of
this trial. Id. ¶ 34.

¶62 Given that extreme emotional distress was the cornerstone
of Scott’s defense, the threat’s content was essential, and therefore
counsel’s failure to argue that it was not hearsay was deficient
performance and the absence of its content from what was
presented to the jury was prejudicial to the defense. I would hold
that Scott is entitled to a new trial.

20140995-CA 29 2022 UT App 81