Trovon Donta Ross v. State of Utah

2012 UT 93
Filed December 21, 2012

Mr. Ross was convicted of aggravated murder and attempted aggravated murder. His criminal defense trial attorney failed to raise an affirmative defense of extreme emotional distress, which was likely Mr. Ross’s best defense. There was insufficient evidence in the record for the Utah Supreme Court to decide whether Mr. Ross’s criminal defense appellate lawyer was ineffective for failing to raise the issue that his criminal defense trial attorney may have been ineffective for not raising the extreme emotional distress defense. The case was remanded to determine whether there had been an appellate investigation into Mr. Ross’s mental state at the time the crimes were committed.

Mr. Ross was involved in a romantic relationship with Annie Christensen. Early on the morning of June 30, 2003, Mr. Ross went to Ms. Christensen’s home and discovered her there with James May. From the way the two were dressed, it appeared that Mr. May had spent the night with Ms. Christensen. Mr. Ross began questioning Ms. Christensen, asking her to tell Mr. May when she had last had sex with Mr. Ross. When Mr. Christensen would not answer his questions, Mr. Ross pulled a gun from his waistband. When Ms. Christensen still would not answer his questions, Mr. Ross said to Mr. May. “I can’t let her hurt you like she hurt me.” He then pulled Ms. Christensen by her arm into the bedroom where he shot and killed her. Mr. May left the house running. Mr. Ross fired six shots at Mr. May, one of which passed through his arm into his chest. Mr. May was able to flag down a passing motorist who contacted the police. Mr. Ross fled the scene, leading police on a high speed chase. As he drove, Mr. Ross called Ms. Christensen’s father and told him he had just killed his daughter. He also called his boss and left a message saying that he had shot Ms. Christensen and planned to kill himself.

Mr. Ross was tried for aggravated murder and attempted aggravated murder. Mr. Ross did not dispute that he had been involved in the crimes, instead his criminal defense lawyer focused on attempting to persuade the jury that Mr. Ross was not guilty of the aggravated aspect of the charges. During an in-chambers conference with the judge at the close of the trial, Mr. Ross’s criminal defense attorney told the judge, “There was no manslaughter defense raised based on any extreme emotional disturbance because of – because of evidentiary problems as are known to Mr. Ross and myself.” The judge attempted to clarify with Mr. Ross by asking him, “[I]s that, in fact, the conversation and the strategy that you and [your criminal trial lawyer] have decided on in this case?” Mr. Ross replied that it was. Mr. Ross was convicted of aggravated murder and attempted aggravated murder. A new criminal defense attorney represented Mr. Ross on direct appeal. But the post-conviction court held that the record of the in-chambers conference conclusively demonstrated that the criminal trial lawyer’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy. The post-conviction court granted summary judgment on the appeal to the State of Utah.

Mr. Ross later filed a pro se petition for post-conviction relief. In it he claimed that his criminal defense trial attorney had been ineffective for failing to raise a defense of extreme emotional distress and that his criminal defense appellate lawyer had been ineffective for failing to raise an ineffective assistance of trail counsel claim on direct appeal. Mr. Ross argued in his motion that even though he and Ms. Christensen had not been sexually exclusive during most of their two year relationship, he had considered her the love of his life and had believed they would eventually marry. He also argued that a few days before the shooting he and Ms. Christensen had promised each other that from then on they would be in a committed, exclusive relationship. On the morning of the murder Mr. Ross had noticed that he had a missed call from Ms. Christensen and began to panic when she did not answer his attempts to call her back because on two previous occasions Ms. Christensen had called Mr. Ross for help and then didn’t answer when he called back because she had been beaten by an ex -boyfriend. Mr. Ross argued that when he went to her house he was extremely fearful for her safety. The post-conviction court granted the State of Utah summary judgment on these issues and Mr. Ross appealed to the Utah Supreme Court.

Under Utah law, there is no post-conviction relief available for claims that were raised or could have been raised at the criminal trial or on appeal. There is an exception to this rule if the claim was not raised because of ineffective assistance of criminal defense counsel. Therefore, Mr. Ross’s two claims on appeal to the Utah Supreme Court were entirely dependent on each other. The court could not consider whether Mr. Ross’s criminal defense trial lawyer was ineffective unless it first found that his criminal defense appellate attorney was ineffective. The court ruled in Mr. Ross’s favor on this question. The Utah Supreme Court disagreed with the post-conviction court’s conclusion that the record conclusively demonstrated that Mr. Ross’s criminal defense trial attorney’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy.

A successful defense of extreme emotion distress would have reduced Mr. Ross’s charges from aggravated murder to murder and attempted aggravated murder to attempted murder. The defense would have been successful if Mr. Ross’s criminal defense attorney had been able to convince the jury that Mr. Ross had killed Ms. Christensen while under the influence of extreme emotional distress and that a reasonable person would have experienced extreme emotional distress under the same circumstances. The threshold to establish this defense and make it a question for the jury is minimal.

The Utah Supreme Court found that an extreme emotional distress defense did not appear to undermine or conflict with any other strategy used by the criminal defense lawyer in Mr. Ross’s criminal trial, especially since the criminal defense trial attorney did not make an opening argument, did not cross examine most of the State of Utah’s witnesses, did not provide any evidence or witnesses explaining why Mr. Ross acted as he did, and did not request any jury instructions. The Utah Supreme Court also found that the facts in the record may have been sufficient to support Mr. Ross’s claim that he committed the crimes under the influence of extreme rage and jealously, which would satisfy the low evidentiary threshold necessary to establish an extreme emotional distress defense, making it a question for the jury. The court found it unclear from the record whether either of Mr. Ross’s criminal defense attorneys had made any investigation into additional information which would have bolstered this defense.

Additionally, the Utah Supreme Court was confused by the remarks made by the criminal defense trial lawyer during the in-chambers conference. The court found that the remarks might indicate that the criminal defense trial attorney did not understand the relevant law. The criminal defense attorney said that there could be no “manslaughter defense based on any extreme emotional disturbance.” The relevant defense is called extreme emotional distress and not “extreme emotional disturbance.” Further, a successful defense of extreme emotional distress would have reduced the charges from aggravated murder and attempted aggravated murder to murder and attempted murder, not to manslaughter. The evidence may indicate that the criminal defense lawyer was actually referencing a defense that the crimes were committed under “a delusion attributable to a mental illness,” which would have in fact reduced the charges to manslaughter. This is supported by Mr. Ross’s motion, which states that he agreed not to raise a defense of “extreme emotional disturbance” because his criminal defense lawyer had told him that his mental evaluations would not support it.

But failure of his criminal defense trial lawyer to raise what on the surface seems like it may have been Mr. Ross’s best defense does not by itself mean that his criminal defense appellate attorney was ineffective for failing to argue that his criminal defense trial lawyer was ineffective. The Utah Supreme Court remanded the case for resolution of the issue of whether the appellate attorney conducted an investigation into Mr. Ross’s mental state at the time of the crimes and what an investigation might have uncovered. Because they were unable to determine whether Mr. Ross’s criminal defense appellate counsel was infective, the Utah Supreme Court could not hold on whether Mr. Ross’s claim of ineffective assistance of trail counsel was procedurally barred.