                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2020 UT 13


                                   IN THE

       SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Petitioner,
                                      v.
                              TRACY SCOTT,
                               Respondent.

                            No. 20170518
                         Heard April 11, 2018
                         Filed March 9, 2020

           On Certiorari to the Utah Court of Appeals

                     Fourth District, Provo
               The Honorable David N. Mortensen
                        No. 131400842

                                Attorneys: 1
   Sean D. Reyes, Att’y Gen., Tera J. Peterson, Asst. Solic. Gen.,
    Salt Lake City, David S. Sturgill, Lance E. Bastian, Provo,
                          for petitioner
Margaret P. Lindsay, Douglas J. Thompson, Provo, for respondent

  JUSTICE PETERSEN authored the opinion of the Court, in which
      CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
          JUSTICE HIMONAS, and JUSTICE PEARCE joined.


   JUSTICE PETERSEN, opinion of the Court:
    ¶1 Tracy Scott contends that his lawyer provided ineffective
assistance as Scott stood trial for the murder of his wife, Teresa


   1Amicus curiae attorneys are:
  Jennifer Springer, Jensie L. Anderson, Salt Lake City, for Rocky
Mountain Innocence Center.
                          STATE v. SCOTT
                       Opinion of the Court

Scott. Scott admitted at trial that he shot Teresa. 2 But he
maintained that he did so while under extreme emotional distress
caused by her threatening behavior. When Scott tried to testify
about a specific threat he claimed Teresa had made a few days
before the shooting, however, the trial court excluded the
testimony on hearsay grounds.
   ¶2 It is undisputed that the threat was not hearsay and
should have been admitted. Nevertheless, Scott’s trial counsel did
not make this argument, and the jury never heard the content of
the threat. The jury ultimately convicted Scott of murder, and he
appealed.
    ¶3 Scott argued in the court of appeals that his lawyer’s
failure to argue that the threat was not hearsay constituted
ineffective assistance. The court of appeals agreed and reversed
his conviction.
    ¶4 The only issue before us is whether the court of appeals
erred in that determination. Because the court of appeals did not
have before it the content of the threat, we conclude it did err.
Without the content of the threat, there was insufficient
information to conclude that counsel’s course of conduct was
deficient or prejudicial. We reverse and remand.
                         BACKGROUND
    ¶5 The Scotts’ nineteen-year marriage was marred by
arguments and violence. 3 Their two sons saw many fights at home
and considered Scott to be “responsible” for most of them. While
Teresa would get mad and yell, Scott would get “aggressive” and
“physical.” Once, the boys saw Scott throw a towel at Teresa’s
face and start “punching her in the gut.” Another time Scott
“slammed” a vacuum into Teresa’s legs.



   2 Because the defendant and victim share a last name, we refer
to the victim by her first name with no disrespect intended by the
apparent informality.
   3 On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly. State v. Heaps, 2000 UT 5, ¶ 2, 999
P.2d 565. We present conflicting evidence when necessary to
provide a full and fair understanding of the issues on appeal. Id.


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    ¶6 The sons heard Scott threaten to kill Teresa “multiple
times.” He told her that “one of these days I’m going to kill you.”
In fact, on an earlier occasion, Scott had tried to run Teresa over
with their SUV while the boys were in the backseat, but Teresa
was able to jump out of the way.
   ¶7 The boys heard their father tell their mother that “she
was worthless.” And he would “cuss” at her “a lot,” calling her
names like “bitch” or “just anything to put her down, that could
hurt her and make her feel like she was a bad person.” He used
the contact name “Bitch Teresa” for her in his cell phone during
the two weeks leading up to her death.
   ¶8 In 2008, Scott was arrested and pleaded guilty to
domestic violence assault. Afterwards, Teresa obtained a
protective order and they separated temporarily. But they soon
reunited and she helped him get his conviction expunged.
                            The Shooting
    ¶9 Scott testified at trial and gave his version of the events
leading up to the moment he killed his wife. The day before the
shooting, he went into their bedroom and found Teresa crouched
at the end of the bed. As he left the room, he noticed their gun safe
had been pulled from its usual location under a dresser and was
open. He saw one pistol in the safe and noticed that Teresa’s gun
was missing. Scott testified that this made him “scared to death.”
    ¶10 The next day—the day of the shooting—Scott had
difficulty “thinking straight” and struggled to complete simple
tasks. Teresa and Scott were fighting throughout the day. Scott
took a break from working in the garage to use the bathroom. As
he walked through the master bedroom, he saw that the gun safe
was out from under the dresser again, open, with one gun still
missing. Earlier that day, the safe had been in place under the
dresser. Teresa was sitting on the bed with crochet work in her
lap. Scott did an about-face and left the house without using the
bathroom.
   ¶11 Scott “didn’t dare go back in the house” and instead
stayed in the garage. He looked up several times to see Teresa
leaning out the garage door staring at him. This caused Scott to
“wig out.” Agitated and nervous, Scott made several phone calls
before deciding to “go in there and confront th[e situation].”
   ¶12 Scott walked into the kitchen and overheard Teresa on
the phone talking to her mother. He picked up the other headset


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                       Opinion of the Court

and said, “[M]y wife and my mother-in-law are saying bad things
about me.” Then, Teresa “said something” to Scott and he
“snapped” and saw “red.”
    ¶13 Scott charged into the couple’s room and found Teresa
lying on the bed pointing her cell phone at him. Scott glanced at
the gun safe and saw that Teresa’s gun still was not there. But his
gun was. He reached into the safe, grabbed his pistol, and shot her
three times. He then called 911.
   ¶14 The State charged Scott with domestic violence murder.
                             The Trial
   ¶15 At trial, Scott admitted to killing Teresa, but he argued
that he had acted under extreme emotional distress caused by
Teresa’s threatening behavior and the missing gun. If accepted by
the jury, this defense would have reduced the murder charge to
manslaughter.
    ¶16 In his opening statement, defense counsel explained to
the jury that “it’s more serious for somebody to think about, plan
out, coldly and calmly kill somebody. And it is less serious if
somebody does it under what is called extreme emotional
distress.” Counsel told the jury that he would present evidence
that Scott and Teresa fought constantly and their fighting
“escalated” in the weeks before the shooting. Counsel stated that
the day before the shooting, Scott called his mother and said,
“Mom I’m afraid. The gun safe is open and a gun is missing. And
I think Teresa is going to kill me.” Counsel told the jury that when
Scott heard Teresa talking to her mother on the phone the next
day, “hamm[ing] it up” and trying to “twist the screws and
antagonize him,” Scott snapped and shot her.
    ¶17 Scott testified at trial. On direct examination, he
attempted to recount a threat he claimed Teresa had made to him
days before the shooting. Scott’s attorney asked him what he
thought when he saw that Teresa’s pistol was missing from their
gun safe. Scott answered, “I was thinking something that
Wednesday there was a threat made. And so when I came in and
seen that, I thought the threat was serious.” Counsel asked,
“[W]ho threatened who?” and Scott began to explain what the
couple had been fighting about. But the State interrupted Scott’s
answer with a hearsay objection. And the trial court sustained the
objection and called the lawyers up to a sidebar during which he
cautioned defense counsel.


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       THE COURT: Just a minute. There’s no way that
       you’re going to dance around and get [in] a threat
       without [it] being hearsay. The only two people in
       the room is this, so get away from this—
       [THE STATE]: I think it needs to stop right now.
       [DEFENSE COUNSEL]: Okay.
   ¶18 When counsel resumed questioning, he asked Scott,
“After you saw the safe opened, and you went into the garage, . . .
then what were you thinking?” Scott answered, “I was thinking
that the threat that I had received the day before—” at which
point, the State again interrupted with a hearsay objection, which
the court also sustained.
    ¶19 The State requested another sidebar, during which the
court warned Scott’s counsel to stay away from that line of
questioning because “the only responses I’m getting are clearly
hearsay.” Scott’s counsel acquiesced, and Scott did not mention
the threat again. The specific words of the threat were not
introduced at trial and are not part of the record on appeal.
   ¶20 At the end of trial, the court instructed the jury on the
elements of extreme emotional distress as follows:
       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 ha[d] this [sic]
       reason over[borne] by intense feelings such as
       passion, anger, distress, grief, excessive agitation or
       other similar emotions.
The instructions also stated that “‘emotional distress’ does not
include . . . distress that is substantially caused by the defendant’s
own conduct.” (Emphasis added.)
    ¶21 During deliberations, the jury sent two notes to the court
that indicated confusion regarding the meaning of extreme
emotional distress. One note asked, “What is the legal definition
of ‘substantially caused?’” The next note said that the jury was “at
an absolute impasse. 6-2” and that “[t]wo feel that ‘substantially
caused’ needs to be ‘the majority of the time.’”



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                        Opinion of the Court

   ¶22 The court gave the jury a supplemental instruction
encouraging them to keep working toward a resolution, which the
jury reached two hours later. The jury found Scott guilty of
murder, and the court sentenced him to fifteen years to life in
prison.
                             The Appeal
    ¶23 Scott timely appealed. He argued in the court of appeals
that his trial lawyer provided ineffective assistance because he did
not argue that the threat was not hearsay and should be admitted.
See State v. Scott, 2017 UT App 74, ¶¶ 17, 19, 21, 397 P.3d 837. The
State conceded on appeal that the threat was not hearsay, and the
court of appeals agreed. 4 Id. ¶ 22. Scott also argued that the trial
court erred by giving a “verdict-urging” instruction when the jury
was at an impasse. Id. ¶ 17.
    ¶24 Scott attempted to develop the record relevant to his
ineffective assistance claim. He filed with the court of appeals a
motion pursuant to Utah Rule of Appellate Procedure 23B for a
remand to the trial court to develop facts relevant to the claim,
including the content of the threat. However, the court of appeals
rendered its opinion before ruling on the motion, so the record
before it did not include the specifics of the alleged threat.
   ¶25 The court of appeals concluded that Scott’s counsel had
provided ineffective assistance. Id. ¶¶ 1, 35. The court determined
that (1) counsel was deficient when he failed to argue that the
threat was admissible non-hearsay, id. ¶¶ 23–28, and (2) this
deficiency prejudiced the defense, id. ¶ 34. Accordingly, the court
reversed the conviction and remanded for a new trial without
addressing the supplemental jury instruction. See id. ¶¶ 1, 35.
    ¶26 We granted the State’s petition for certiorari. We have
jurisdiction under Utah Code section 78A-3-102(3)(a).
                    STANDARD OF REVIEW
   ¶27 “On certiorari, this court reviews the decision of the
court of appeals for correctness, giving no deference to its


   4 We also agree that the statement at issue, Teresa’s threat, was
not hearsay. Rather than being offered for the truth of the matter
asserted, the defense offered the statement for its effect on Scott as
the listener. See UTAH R. EVID. 801(c); see also State v. Sanchez, 2018
UT 31, ¶ 15 n.3, 422 P.3d 866.


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conclusions of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.
An ineffective assistance of counsel claim presents a question of
law that we review for correctness. See State v. Ring, 2018 UT 19,
¶ 18, 424 P.3d 845.
                            ANALYSIS
    ¶28 The sole issue before us is whether the court of appeals
erred in concluding that Scott’s counsel provided ineffective
assistance when he did not counter the State’s hearsay objection
with argument that the threat was admissible non-hearsay.
Ineffective assistance of counsel claims arise under the Sixth
Amendment to the United States Constitution, and we evaluate
them under the standard articulated by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See
State v. Sessions, 2014 UT 44, ¶ 17, 342 P.3d 738. To prevail on this
claim, Scott must demonstrate that (1) his counsel’s performance
was deficient in that it “fell below an objective standard of
reasonableness” and (2) “the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687–88.
                 I. DEFICIENT PERFORMANCE
    ¶29 The State argues that for Scott to meet his burden of
establishing deficient performance, he must “prove that ‘no
competent attorney’ would have proceeded as his attorney did.”
(Quoting Premo v. Moore, 562 U.S. 115, 124 (2011).) Amicus curiae
argue that in quoting this language, the State is asking us to adopt
a new deficiency standard that “would transform an already
daunting standard to an impossible one.”
    ¶30 In Moore, the Supreme Court stated that whether “no
competent attorney” would have acted as the allegedly deficient
attorney did “is the relevant question under Strickland.” Id. As
demonstrated by the briefing in this case, the precise meaning of
the statement in Moore—including whether it is a synonymous
statement of the Strickland standard or a new, higher hurdle for
defendants to overcome—is an important question.
    ¶31 As discussed above, we are bound by the United States
Supreme Court’s precedent on this issue. Since Moore, the
Supreme Court has not repeated or explained the quoted
language, nor has it suggested that this language changes the
Strickland standard. Accordingly, we accept Moore’s analysis as is
and will not attempt to expound upon it beyond what the
Supreme Court has offered. Based on the Supreme Court’s
precedent to date, we do not understand Moore to change the

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                        Opinion of the Court

deficiency standard announced in Strickland. Accordingly, we
apply Strickland to the facts at hand and ask whether counsel’s
failure to argue that the threat was not hearsay “fell below an
objective standard of reasonableness.” 5 466 U.S. at 688.
    ¶32 The court of appeals concluded that counsel was
deficient because he “failed to correctly use the rules of evidence
to support Scott’s defense.” State v. Scott, 2017 UT App 74, ¶ 25,
397 P.3d 837. It found this failure to be “unreasonable, especially
in light of Scott’s trial strategy, which was to show that his
distress originated outside his own behavior.” Id.
    ¶33 The court of appeals disagreed with the State’s argument
that Scott’s “counsel had a sound strategic reason not to seek to
admit the specific words of Teresa’s alleged threat.” Id. ¶¶ 26–27.
Instead, the court found that “admitting its content would only
have strengthened Scott’s defense.” Id. ¶ 27. The court of appeals
then concluded that Scott had met his burden of showing that his
trial counsel’s performance was deficient. See id. ¶ 28.
    ¶34 The State argues that the court of appeals misapplied
Strickland to the facts at hand. 6 Specifically, the State asserts that
upon concluding there was no sound strategic reason for
counsel’s silence, the court of appeals prematurely ended its
inquiry and did not reach the question of whether trial counsel’s
conduct fell below an objective standard of reasonableness.
   ¶35 The State is correct that the ultimate question is not
whether there was a possible strategic reason for counsel’s
conduct, but instead whether that conduct was objectively
reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 479, 481 (2000).
To be sure, the performance inquiry will often include an analysis

   5 In any event, even assuming the “no competent attorney”
language were an elaboration of the Strickland standard, the
parties have not explained how its application to the facts here
would alter the outcome of our deficiency analysis.
   6 Scott argues that the State’s brief exceeds the bounds of the
issue that we certified. He asserts the State may challenge only the
correctness of the court of appeals’ conclusions, not whether that
court applied the correct legal standard. We disagree. In granting
certiorari to assess the correctness of the court of appeals’
conclusions, we necessarily review whether it applied the correct
standards.


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of whether there could have been a sound strategic reason for
counsel’s actions. See Strickland, 466 U.S. at 689 (“[A] court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” (citation omitted)). But this is because such an
analysis is often helpful in answering the ultimate question of
objective reasonableness. For instance, if the court concludes that
the challenged action “might be considered sound trial strategy,”
id. (citation omitted) (internal quotation marks omitted), it follows
that counsel did not perform deficiently.
    ¶36 However, even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient. See State v. Ray,
2020 UT 12, ¶ 34, --- P.3d ---; see also Bullock v. Carver, 297 F.3d
1036, 1047–51 (10th Cir. 2002). “[A]n attorney’s unawareness of
relevant law at the time he made the challenged decision does not,
in and of itself, render the attorney’s performance constitutionally
deficient.” Bullock, 297 F.3d at 1048. The Sixth Amendment “does
not guarantee an errorless trial, and ‘prevailing professional
norms’ do not require perfection at trial.” Id. (citation omitted). So
even if a court concludes that counsel made an error, the ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.
Strickland, 466 U.S. at 687 (“This [analysis] requires showing that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”); see also Ray, 2020 UT 12, ¶ 32.
    ¶37 Here, as the State points out, the court of appeals did
discuss whether there could have been a tactical reason for
counsel’s silence. See Scott, 2017 UT App 74, ¶¶ 25–28. But this
was in response to the State’s suggestion that there was such a
tactical basis. See id. ¶ 26. The State reasoned that counsel may
have strategically let the objection stand because the jury might
imagine a threat that was worse than the actual words spoken. See
id. The court of appeals understandably addressed this argument.
See id. ¶ 27. And as discussed, this inquiry is often helpful in
determining deficiency. But it does not complete the analysis of
counsel’s performance.
   ¶38 The State argues that without the content of the threat in
the record, there is insufficient information to determine whether

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                       Opinion of the Court

counsel’s failure to argue for its admission was objectively
unreasonable. We agree. Defense counsel did adduce evidence in
support of Scott’s extreme emotional distress defense: that Teresa
had made a threat; that the day before the shooting, Scott noticed
the gun safe was pulled out from its usual location underneath
their dresser and her handgun was missing; that after the safe had
been pushed back under the dresser, he saw on the day of the
shooting that the safe had been pulled out again, it was open, and
Teresa’s gun was still missing; and that Scott was “scared to
death” and feared she might kill him. Scott’s claim is that, in
addition to this evidence, his counsel should have argued to
admit the specific words of the threat. But the record contains no
information about what this evidence would have been—neither
the words and how they were spoken, nor the context of the
threat. Without knowing these specifics, it is impossible to
conclude that counsel’s inaction was objectively unreasonable.
   ¶39 To draw such a conclusion, we would need to know the
specifics of this evidence and consequently how important its
admission was to Scott’s case. 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.
Reasonably effective assistance does not require counsel to correct
every error that might occur during a trial.
    ¶40 But even if counsel mistakenly thought the words of the
threat were inadmissible hearsay, Scott must do more than claim
his lawyer made a mistake. He must show that his counsel “made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed [him] by the Sixth Amendment.” Strickland, 466 U.S. at
687. Here, the crucial question is whether the evidence was
sufficiently necessary or important that counsel’s failure to
properly argue for its admission fell below an objective standard
of reasonableness. This cannot be determined without knowing
the specifics of the threat. 7


   7  Our analysis here should not be interpreted to impact the
settled rule that “[o]nce the court rules definitively on the
record—either before or at trial—a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.”
UTAH R. EVID. 103(b). Here, the district court did rule definitively
                                                              (cont’d)

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    ¶41 Thus, it was error for the court of appeals to conclude
that Scott’s lawyer was deficient without considering the content
of the threat in its analysis. Where the actual threat was not in the
record, there was insufficient information to make this
determination.
                          II. PREJUDICE
   ¶42 The court of appeals also held that Scott was prejudiced
by his counsel’s failure to respond to the State’s objection. But
whether Scott was prejudiced also depends on the content of the
threat.
    ¶43 “An 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 v. Washington, 466 U.S. 668, 691 (1984). The burden is on
the defendant to demonstrate a reasonable probability that the
outcome of his or her case would have been different absent
counsel’s error. See State v. Garcia, 2017 UT 53, ¶¶ 34–38, 424 P.3d
171. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the proceeding.
Strickland, 466 U.S. at 694.
    ¶44 The court of appeals reasoned that had Scott’s counsel
properly introduced the content of the threat, there was a
“reasonable probability the jury would have continued to be
deadlocked, ending the case in a mistrial.” State v. Scott, 2017 UT
App 74, ¶ 34, 397 P.3d 837. The court was persuaded that Scott’s
testimony about the content and circumstances of the threat
would have “given the jury more evidence on the very point that
was in dispute” (whether Scott had “substantially caused” his
own extreme emotional distress). Id. ¶ 33.


that any testimony regarding the alleged threat was hearsay and
would not be admitted. Scott has argued that his trial counsel was
deficient because he did not argue for its admission at any time.
We do not understand Scott to assert that his lawyer should have
argued with the court after it ruled. We understand Scott’s
argument to be that his lawyer failed to make a record that the
threat was not being offered for the truth of the matter asserted
but for its effect on Scott, and it therefore was not hearsay. We do
not intend our analysis to bear in any way upon the meaning or
continued vitality of rule 103(b).


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    ¶45 However, without the content of the threat, the record is
insufficient to conclude that the outcome of the trial would have
been different if it had been admitted. 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’s defense because the jury
could have viewed his reaction as irrational and disproportionate.
Or the specific threat may not have added enough to the overall
evidentiary picture already before the jury to impact the outcome
of the proceedings.
    ¶46 Prejudice cannot be determined here without knowing
the specifics of the threat. And in determining whether Scott has
shown a reasonable probability that admission of the threat
would have changed the jury’s guilty verdict, this piece of
evidence must be considered alongside the “totality of the
evidence” that was already before the jury. See Strickland, 466 U.S.
at 695.
                         CONCLUSION
   ¶47 Without considering the specifics of the threat, it is
impossible to determine whether Scott’s trial counsel was
ineffective under Strickland v. Washington, 466 U.S. 668 (1984).
Accordingly, we reverse and remand for the court of appeals to
proceed in accordance with this opinion, consider Scott’s rule 23B
motion, and address his remaining claim regarding the district
court’s “verdict-urging” jury instruction.




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