State v. Scott, 514 P.3d 590

Tracy Scott shot and killed his wife Teresa; he admitted the shooting but defended on the ground of extreme emotional distress (special mitigation) and argued the distress was not substantially caused by his own conduct.
At trial Scott testified a few days earlier Teresa made a threat; the prosecutor objected as hearsay and defense counsel did not argue the statement was non-hearsay (offered to show its effect on Scott), so the jury never heard the threat’s words.
During deliberations the jury asked for a definition of “substantially caused” and later reported an "absolute impasse, 6-2." The court gave an Allen-style verdict-urging instruction and the jury returned a guilty verdict after about two more hours.
This court initially reversed for ineffective assistance of counsel; the Utah Supreme Court granted certiorari, found the record insufficient because the actual threat content was unknown, and remanded for rule 23B findings about the threat and the verdict-urging instruction.
The district court found the omitted threat would have been Teresa saying she had been to a shooting range, could “get all the shots in a pattern ‘that big’ ” while gesturing over her chest, and Scott believed she could shoot him; on remand this court held the verdict-urging instruction was not coercive and that counsel’s failure to preserve/admit the threat did not create a reasonable probability of a different outcome.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s verdict-urging (Allen) instruction was coercive	Scott: Instruction coerced holdout jurors after a 6-2 impasse and lack of guidance on “substantially caused”	State: Instruction was neutral, followed ABA guidance in substance, did not single out minority, and was not coercive given timing and additional deliberation	Court: Not coercive under circumstances; instruction affirmed
Whether trial counsel was constitutionally ineffective for failing to argue the victim’s out-of-court statement was non-hearsay and thus admissible	Scott: Counsel performed deficiently by not arguing the statement was offered for its effect on him; had jury heard the words, reasonable probability of hung jury or different result	State: Counsel’s inaction could reflect trial strategy and even if error, actual threat content might not help and could harm defendant; no reasonable probability of different result	Court: No ineffective assistance—either defensible strategy or, given the revealed threat content (veiled), no reasonable probability outcome would differ; conviction affirmed

Allen v. United States, 164 U.S. 492 (U.S. 1896) (authorizes supplemental verdict-urging instructions for deadlocked juries)
State v. Lactod, 761 P.2d 23 (Utah Ct. App. 1988) (approves limited use of Allen charges and sets factors for coercion review)
State v. Ginter, 300 P.3d 1278 (Utah Ct. App. 2013) (applies two-part coercion test and warns against singling out minority jurors)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes deficient performance and prejudice standard for ineffective assistance)
State v. Scott (Scott II), 462 P.3d 350 (Utah 2020) (Utah Supreme Court remand directing development of record on threat content and instruction review)
State v. Scott (Scott I), 397 P.3d 837 (Utah Ct. App. 2017) (initial appellate opinion finding ineffective assistance before supreme court reversal)
State v. Bess, 473 P.3d 157 (Utah 2019) (reaffirms that deadlock instructions are permissible if not coercive)
State v. Ray, 469 P.3d 871 (Utah 2020) (reminds courts not to presume deficient performance where counsel’s decisions can be sound strategy)