State v. Lovell ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 25IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
DOUGLAS A. LOVELL,
Appellant.
No. 20150632
Heard February 9, 2024
Filed July 25, 2024
On Direct Appeal
Second District, Weber County
The Honorable Michael D. DiReda
No. 921900407
Attorneys:
Sean D. Reyes, Att’y Gen., Mark C. Field, William M. Hains,
Asst. Solics. Gen., Salt Lake City, for appellee
Colleen K. Coebergh, Salt Lake City, for appellant
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the
Court, in which JUSTICE PETERSEN, JUSTICE HAGEN, JUDGE JOHNSON,
and JUDGE KELLY joined.
Having recused themselves, CHIEF JUSTICE DURRANT and
JUSTICE POHLMAN do not participate herein; DISTRICT COURT
JUDGES CHRISTINE S. JOHNSON and KEITH A. KELLY sat.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Douglas Lovell appeals his 2015 conviction and death
sentence for the murder of Joyce Yost. Lovell first argues that his
STATE v. LOVELL
Opinion of the Court
conviction should be overturned because the district court
improperly admitted testimony he provided in connection with his
now-vacated 1993 guilty plea. Even if we assume that this
testimony should not have been admitted, its admission did not
prejudice Lovell in light of the overwhelming evidence of his guilt.
We affirm Lovell’s conviction.
¶2 Lovell also argues that, even if his conviction is not
overturned, he is entitled to a new sentencing proceeding. He
contends that his counsel was constitutionally deficient in various
ways. We agree that Lovell did not receive the representation the
United States Constitution guarantees him. Lovell’s two attorneys
provided ineffective assistance when they failed to object to, among
other things, testimony regarding Lovell’s excommunication from
the Church of Jesus Christ of Latter-day Saints (the Church). This
prejudiced Lovell’s ability to have a fair sentencing hearing. Lovell
is entitled to a sentencing hearing free from this improper and
prejudicial evidence. We therefore vacate Lovell’s sentence and
remand for further proceedings.
BACKGROUND
¶3 In 1985, Lovell kidnapped Joyce Yost and raped her. See
State v. Lovell (Lovell I), 1999 UT 40, ¶¶ 3–8, 984 P.2d 382. Yost
reported these crimes to the police. Id. Lovell then attempted to hire
two individuals to kill Yost to prevent her from testifying against
him. Id. ¶¶ 4–5. After those attempts failed, Lovell kidnapped Yost
and killed her in a canyon outside of Ogden. Id. ¶¶ 6–7.
¶4 Eight years later, Lovell pled guilty to the aggravated
murder of Yost and was sentenced to death. Id. ¶ 2. After he was
sentenced, Lovell moved to withdraw his guilty plea. State v. Lovell
(Lovell II), 2005 UT 31, ¶¶ 4, 12, 114 P.3d 575. The district court
dismissed the motion to withdraw, concluding that it lacked
jurisdiction to consider the merits of Lovell’s motion. Id. ¶ 12.
Lovell appealed. We reversed the district court’s determination and
remanded for the district court to conduct a hearing on the merits
of Lovell’s motion to dismiss. Id. ¶ 29.
¶5 On remand, Lovell argued that good cause existed to
withdraw his plea “because the trial court failed to strictly comply
with Utah Rule of Criminal Procedure 11(e).” State v. Lovell (Lovell
III), 2011 UT 36, ¶ 3, 262 P.3d 803, abrogated on other grounds by State
v. Guard, 2015 UT 96, ¶¶ 52, 61, 371 P.3d 1. Lovell contended that
the district court erred because it failed to inform him of the rights
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he would be waiving by pleading guilty. Id. Lovell also argued that
the court erred because it did not inform him of his right to appeal
or the time limit to withdraw his plea. Id. Lovell further contended
that the district court “did not properly determine what plea
agreement was reached by . . . Lovell and the State.” Id. The district
court did not permit Lovell to withdraw his plea. Id. ¶ 4. Lovell
appealed again, and we reversed, holding that the district court
failed to comply with rule 11(e). Id. ¶ 80. We concluded that this
failure presented good cause for Lovell to withdraw his plea. Id.
¶6 With his plea withdrawn, Lovell’s case proceeded to trial.
In this trial, Lovell did not plead guilty, but neither did he contest
his guilt, telling the jury during opening statements that he “is in
fact guilty.” As part of the guilt phase of Lovell’s trial, the State
presented the jury with evidence of Lovell’s crimes. The State
introduced surreptitious recordings of Lovell that it obtained while
he was in prison. In those recordings, Lovell admitted that he
murdered Yost.
¶7 Rhonda Buttars, Lovell’s former spouse, testified that
Lovell had told her that Yost had accused him of rape and that he
wanted to kill Yost to prevent her from testifying against him.
Buttars also testified that Lovell attempted to hire two people to
murder Yost before ultimately killing her himself.
¶8 The State introduced Yost’s testimony from the
preliminary hearing on Lovell’s rape charges. Yost testified that
Lovell had raped her twice. The State offered Tom Peters’s
testimony from Lovell’s 1993 sentencing. Peters was one of the men
Lovell had tried to hire to kill Yost. Peters explained that Lovell told
him Yost “was trying to accuse him of raping her . . . and that
something had to be done.”
¶9 The State also introduced transcripts of Lovell’s testimony
following his 1993 guilty plea. During that testimony, Lovell
confessed to kidnapping, sexually assaulting, and murdering Yost
to keep her from testifying against him.
¶10 Lovell did not cross-examine any of the State’s witnesses
at trial, although the transcript of Yost’s prior testimony contained
cross-examination. The jury convicted Lovell of aggravated
murder.
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STATE v. LOVELL
Opinion of the Court
¶11 After establishing Lovell’s guilt, his trial entered the
penalty phase. 1 There, the State presented additional evidence to
support its burden of demonstrating that death was the
appropriate punishment for Lovell’s crimes. 2
¶12 The State first presented victim-impact testimony from
Yost’s son, daughter, and two granddaughters. They testified about
the effect Yost’s murder had on them and their family.
¶13 The State presented testimony from two law enforcement
witnesses who investigated Yost’s death. The State also called Kim
Holden, an adult probation and parole officer. These witnesses
testified about Lovell’s lengthy criminal history and opined that he
was untruthful, manipulative, and self-centered. Holden told the
jury that if Lovell’s sentence held open the possibility of parole, the
parole board would “have the authority to release [him]
immediately.”
¶14 Carl Jacobson—a correctional supervisor at the prison—
testified that, in his opinion, Lovell is manipulative, cold,
calculating, and controlling. Jacobson also opined that Lovell was
an escape risk.
¶15 Lovell then presented his case for mitigation. Lovell’s
theme was that he was a changed person who had shown remorse
and accepted responsibility for his crimes.
¶16 Lovell began his argument by presenting testimony from
three of his former ecclesiastical leaders. Each witness described
Lovell as very remorseful, a model prisoner, a hard worker, and a
__________________________________________________________
1 Pursuant to Utah Code section 76-3-207(1), Lovell’s trial was
split into a guilt phase, where the jury determined whether Lovell
was guilty of the crime, and a penalty phase, where the jury
considered whether the death penalty should be imposed.
2 We note that because Lovell committed the murder before
April 27, 1992, but was sentenced after that date, Utah law allowed
Lovell “to proceed either under the law which was in effect at the
time the offense was committed or under the additional sentencing
option of life in prison without parole.” UTAH CODE § 76-3-207.5(2).
The punishments available to Lovell when he committed his crime
were life in prison with the opportunity of parole or death. See id.
§ 76-3-207.5(1)(b). Lovell elected to proceed under the old law,
removing life without parole as a possible sentence.
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caring individual. They testified that he was continually trying to
improve himself and that he was involved with several charitable
organizations.
¶17 Dr. John Newton was the first to testify. Newton testified
that Lovell had expressed remorse for his crimes “[m]any times”
during their interactions and that he believed Lovell “was very
remorseful.” Newton explained that Lovell had “turned down an
opportunity to have the details of his case aired because he was
concerned that . . . it would affect the victim’s family.” Newton also
testified that based on conversations he had with the officers in the
prison, he “think[s] [Lovell] was regarded as a model prisoner.”
And he testified that Lovell “was involved with two or three
charitable organizations.”
¶18 On direct examination, Lovell did not elicit any testimony
about Newton’s religious affiliation. Indeed, it appears that
Lovell’s counsel assiduously avoided asking Newton any
questions about his role as a Church bishop. 3 Nor did Lovell’s
counsel ask Newton any questions about Lovell’s religious
affiliation or status. The only suggestion that Newton’s interactions
with Lovell involved the Church was Newton’s response when
counsel asked him, “what did your discussions with Mr. Lovell
entail when you met with him?” Newton testified that he talked
__________________________________________________________
3 In the Church, “A bishop is the leader of a local congregation
(known as a ward) with duties similar to those of a pastor, priest or
rabbi.” Bishop, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS
NEWSROOM, https://newsroom.churchofjesuschrist.org/article/
bishop [https://perma.cc/8P7M-9CCQ].
To provide context, we will explain or define terms witnesses
used that refer to Church teachings or practices. To the extent any
of these might be considered adjudicative facts, we can take judicial
notice of them because they are generally known in the jurisdiction
where trial occurred or can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned. See
UTAH R. EVID. 201(b).
5
STATE v. LOVELL
Opinion of the Court
with Lovell about “religion on a fairly basic level” and “things
[Lovell] had read in the Bible and the Book of Mormon.”4
¶19 The State, on the other hand, used cross-examination as an
opportunity to explore both Newton’s and Lovell’s religious
backgrounds. The State established that Newton was a Church
bishop and that the Church has a handbook “that outlines the
policies and procedures” for bishops to follow. The State then
asked Newton whether “the handbook requires the convening of
[a] disciplinary council when evidence suggests that an individual
has committed murder?” 5 Lovell’s counsel objected to this line of
questioning for lack of foundation and was overruled. Newton
then replied that he did not convene a disciplinary council to have
Lovell removed from Church membership.
¶20 The prosecutor asked Newton if Lovell had been
excommunicated from the Church. 6 After confirming that Lovell
__________________________________________________________
4 The Book of Mormon is one of the Church’s books of scripture.
Book of Mormon, ENCYC. BRITANNICA, https://www.britannica.co
m/topic/Book-of-Mormon [https://perma.cc/77B6-K9VP].
5 Church disciplinary councils are held “to consider a member’s
standing in the Church following serious transgression[s].” M.
Russell Ballard, A Chance to Start Over: Church Disciplinary Councils
and the Restoration of Blessings, ENSIGN, Sept. 1990, at 15. According
to the Church, the purpose of a disciplinary council is “to save the
soul of the transgressor, to protect the innocent, and to safeguard
the Church’s purity, integrity, and good name.” Id. A “disciplinary
council ‘must be held in cases of murder, incest, or apostasy.’” State
v. Hood, 2018 UT App 236, ¶ 23, 438 P.3d 54 (quoting id.). These
councils are now referred to as “membership councils” within the
Church, although they have the same function, requirements, and
purpose. See THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,
GENERAL HANDBOOK: SERVING IN THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS 297, 302–04 (2023).
6 In the Church, excommunication refers to the “loss of Church
membership.” Church Discipline, THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS NEWSROOM, (Dec. 10, 2018),
www.mormonnewsroom.org/article/church-discipline
[https://perma.cc/J8XZ-WW84]. Excommunication is “[t]he most
serious sanction [a] disciplinary council may prescribe,” and it is “a
(continued . . .)
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had been excommunicated, the State asked Newton if Lovell had
been readmitted into Church membership. The State also asked
Newton what the process for readmittance after excommunication
entails. By this questioning, the jury heard that “the [F]irst
[P]residency is the body” that determines whether a person is
“remorseful and changed enough” to rejoin the Church. 7
¶21 The State then elicited testimony from Newton that
“repentance” is “the process of changing one’s life,” that it requires
“feeling sorrow or remorse,” and that it is necessary to be
readmitted to Church membership after excommunication.
Following this testimony, the State asked Newton what “kind of
sorrow” was required to show repentance.
¶22 When Newton responded that he was confused by the
State’s question, the State asked Newton if he was familiar with the
phrase “[g]odly sorrow.” 8 Newton said he was familiar with the
__________________________________________________________
course of last resort . . . only taken when less serious disciplinary
measures are insufficient.” Id.7 The First Presidency is comprised of the President of the
Church and two counselors. First Presidency, THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS NEWSROOM,
https://newsroom.churchofjesuschrist.org/topic/first-
presidency?cp=hrv-hr [https://perma.cc/69CP-FZNY]. The First
Presidency holds “the supreme governing power of the Church”
and they “supervise the work of the entire Church in all matters of
policy, organization, and administration.” THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, TEACHINGS OF THE LIVING PROPHETS
STUDENT MANUAL 45 (2016) (quoting Joseph Fielding Smith, The
First Presidency and the Council of the Twelve, 69 THE IMPROVEMENT
ERA 977, 978 (1966)). A basic tenet of Church doctrine instructs that
members of the First Presidency “are the living oracles of God and
the supreme adjudicators . . . of the law of the Church.” Id.8 The Church teaches that “godly sorrow” is a principle of
repentance that “leads to conversion and a change of heart,”
requiring “heartfelt regret and true remorse.” Dieter F. Uchtdorf,
Godly Sorrow, NEW ERA, Sept. 2019, at 32; see also Dieter F. Uchtdorf,
You Can Do It Now!, ENSIGN, Nov. 2013, at 55–56. The term “godly
sorrow” is taken from a New Testament passage: “For godly
sorrow worketh repentance to salvation not to be repented of: but
(continued . . .)
7
STATE v. LOVELL
Opinion of the Court
phrase but could not define it. Newton responded affirmatively
when the State asked if repentance requires “a full and complete
confession.” Newton also confirmed that Lovell had not told him
“all of the facts related to this case.” Lovell’s counsel again objected,
arguing that this question was outside the scope of cross-
examination. The district court again overruled the objection.
¶23 Lovell next called Gary Webster, another Church bishop.
On direct examination, Lovell’s trial counsel asked Webster about
Lovell’s excommunication from the Church. Webster explained
that he had been involved in Lovell’s excommunication, and that
he believed Lovell “understood clearly what [excommunication]
meant and . . . was comfortable with it.” He also testified that he
was not aware if Lovell had ever asked to be readmitted to Church
membership.
¶24 Lovell’s counsel asked Webster, “what was your
impression of [Lovell’s] progress towards remorse and repentance
as it pertains to the process and the church?” Webster testified that
during their discussions, Lovell “was consistent in expressing
remorse . . . . He never made light, never made fun, always was
contrite, was concerned about the crime, the impact . . . and he was
always consistent.”
¶25 On cross-examination, the State elicited testimony from
Webster confirming that he did not represent the Church and that
he believed that “no man knows what’s in another man’s heart.”
¶26 Lovell then called Charles Thompson, a third Church
bishop. Lovell’s trial counsel asked Thompson about Lovell’s
excommunication from the Church. Thompson testified that he
knew that Lovell was excommunicated, and that Lovell never
spoke to him about being readmitted. Thompson also testified that
“[he] see[s] [Lovell] as a model prisoner.” And he testified that
every time he met with Lovell, “[Lovell] has talked about remorse,
particularly for the members of the family.”
¶27 On cross-examination, Thompson testified that his
opinions did not represent the Church and that he “cannot read
what’s in [Lovell’s] mind or heart.”
__________________________________________________________
the sorrow of the world worketh death.” 2 Corinthians 7:10 (King
James).
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¶28 Lovell continued his mitigation case by calling Becky
Douglas, the founder of one of the charities Lovell had donated to
while in prison. Douglas testified that she had corresponded with
Lovell for several years and that she had met with him in person
on one occasion. While recounting that meeting, Douglas said that
she asked Lovell if he had read the New Testament.
¶29 The State objected, arguing that “if she’s going to give an
exposition on the doctrinal basis of the New Testament, I think it’s
inappropriate.” Lovell’s counsel explained that Douglas would not
be discussing religious doctrine. The court overruled the objection
but explained that it didn’t “want to get into her interpretation of
scriptures and other things any more than [it] wanted to get into
the church’s stance on the death penalty.”
¶30 The court added that it “thought there were areas that we
covered with the three ecclesiastical leaders” that were “not
probative at all” and “out of bounds, but no one seemed to feel that
way, so I let it go.”
¶31 Douglas continued her testimony, saying that when she
had met with Lovell “he just felt so, so desponden[t]” and that she
felt “this incredible remorse, this sadness [from Lovell] . . . that
there was so much despair of what he had done.” 9 She shared her
belief that “by going through 30 years of prison” he has become a
gentle, kind, sincere, and thoughtful man. During her testimony,
Douglas explained that in her interactions with Lovell, he
consistently expressed sorrow for Yost and her family. And she
testified that if Lovell were ever released from prison, she
“wouldn’t have any hesitation to invite him into [her] home.” She
continued by saying she has “absolute confidence that the [Lovell]
I know is the real [Lovell] now.”
¶32 On cross-examination, Douglas reaffirmed her belief that
Lovell had changed, saying Lovell “felt like he’d done so much evil,
that he felt like he needed to do as much good as he could possibly
do.”
¶33 Lovell presented other mitigation witnesses, including his
caseworker and an officer at the prison. The officer testified that
Lovell was a good inmate and that he would often resolve disputes
__________________________________________________________
9 The State again objected to this testimony for relevance and
was overruled.
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STATE v. LOVELL
Opinion of the Court
between inmates and even guards. Lovell presented evidence that
in his thirty years of imprisonment, he had only received two write-
ups: one for having an unbuttoned shirt and another for having too
many socks in his cell. And one of these witnesses talked about an
instance where Lovell had helped a guard who had been
accidentally sprayed in the eyes with insecticide. These witnesses
uniformly testified that Lovell was polite, respectful, and took
responsibility for his actions.
¶34 Lovell’s relatives testified that he was kind, humble, and
positive. They also testified that, in their opinion, he would not be
a risk if released and that they would support him if he were
paroled. Lovell also read to the jury letters from seven of his pen-
pals. These letters described Lovell as encouraging, supportive,
understanding, respectful, courteous, and a good friend. They also
talked about how Lovell had a positive outlook on life, he was
constantly trying to improve himself, he had a lot to offer, and that
he would be a beneficial addition to society if he were ever paroled.
¶35 In addition to the witnesses who testified about their
personal relationships with Lovell, two expert witnesses testified
in favor of mitigation. Lovell first elicited testimony from Dr. Mark
Cunningham, a clinical and forensic psychologist, who testified
that Lovell was not as morally culpable as other individuals.
Cunningham described multiple causes of Lovell’s diminished
culpability, explaining that Lovell had a genetic predisposition to
substance abuse and dependence, along with mood disorders and
personality disturbance. Cunningham also explained that Lovell
was exposed to amphetamines while his mother was pregnant.
And he opined that Lovell likely suffered from a learning disability
and neuropsychological deficits from recurrent head injuries.
¶36 Cunningham further testified that Lovell has diminished
culpability because of his traumatic family life. He explained that
Lovell had witnessed parental substance abuse and mental illness,
the chronic absence of his father, and chronic dysfunction between
his parents with “perverse sexuality.” He also explained that Lovell
was subject to the “corruptive influence of his older brothers.”
Cunningham testified that Lovell had inadequate family structure,
supervision, and guidance, along with inadequate community
interventions. Cunningham also detailed the harm Lovell suffered
when his brother died. Cunningham testified that, in his opinion,
there was a very low likelihood that Lovell would be violent in
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prison and that there was also little risk he would be violent if he
were ever paroled.
¶37 Lovell’s second expert was Dr. Vickie Gregory, a
neuropsychologist. Gregory testified that Lovell had sustained
multiple head injuries throughout his life, at ages four, six, eleven,
sixteen, and nineteen. She explained that prior tests had shown that
Lovell suffered from moderate brain damage, which impaired his
memory and executive functioning. Gregory also testified that she
had tested Lovell, and in her opinion, he suffered from mild
neurocognitive deficits due to traumatic brain injury. Gregory
opined that she did not believe Lovell was a psychopath. And she
testified that during her interactions with Lovell, she learned that
he had completed forty-six high school and college-level classes
and that he is involved in three charities.
¶38 Following the presentation of evidence, the jury retired to
determine the appropriate punishment. They returned a verdict of
death.
¶39 Lovell appealed, and we remanded under rule 23B of the
Utah Rules of Appellate Procedure. We directed the district court
to conduct an evidentiary hearing and make findings of fact
concerning the representation Lovell’s trial counsel provided. After
conducting an evidentiary hearing, the district court issued its
findings of fact related to counsel’s performance. We now consider
Lovell’s arguments on appeal with the benefit of the 23B court’s
factual findings.
ISSUES AND STANDARDS OF REVIEW
¶40 Lovell first argues that the district court erred when it
admitted statements in the guilt phase of his trial that Lovell had
made following his guilty plea in his earlier trial. We review a
court’s decision to admit evidence for abuse of discretion. State v.
Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186. But we review “the legal
questions underlying the admissibility of evidence” for correctness.
Id. (cleaned up).
¶41 Lovell next argues that his trial attorneys were
constitutionally ineffective when they failed to adequately object to
improper testimony during the penalty phase. An ineffective
assistance of counsel claim “presents a question of law that we
review for correctness.” State v. Carter, 2023 UT 18, ¶ 25, 535 P.3d
819. When a claim for ineffective assistance of counsel has been
11
STATE v. LOVELL
Opinion of the Court
developed upon rule 23B remand, we defer to the 23B court’s
factual findings, reviewing them for clear error. See State v.
Drommond, 2020 UT 50, ¶ 46, 469 P.3d 1056. 10
ANALYSIS
I. THE ADMISSION OF LOVELL’S PRIOR TESTIMONY IN THE GUILT
PHASE OF HIS TRIAL WAS HARMLESS
¶42 Lovell first contends that his conviction should be
overturned because the district court improperly admitted the
testimony he gave after he was convicted in 1993. Following his
1993 guilty plea, Lovell was called as a witness in the sentencing
phase. Lovell first read the court a letter he wrote to plead for
leniency. Lovell was then questioned under oath by both the State
and his own attorneys.
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10 In our 23B remand order, we directed the district court “to
make all findings of fact necessary to resolve: 1. Whether [trial
counsel] performed deficiently” regarding multiple claims; and
“2. Whether Lovell was prejudiced by [trial counsel’s] deficient
performance, if any.” The district court not only made the factual
findings we requested, but it analyzed legal arguments and entered
conclusions of law.
As much as we appreciate the court’s initiative, we must
emphasize that rule 23B does not contemplate, or indeed permit, a
district court to make legal conclusions based upon the factual
findings it enters. See UTAH R. APP. P. 23B(a), (e). Rule 23B remands
are conducted for the purpose of developing facts related to the
claims of ineffective assistance, and a district court’s role is limited
to making these findings. Id. R. 23B(e). This process permits
appellate counsel, armed with the facts developed on remand, to
craft its appellate arguments to an appellate court.
The district court’s willingness to decide legal issues on rule 23B
remand is perhaps understandable given that on at least one
occasion we stated that we review the 23B court’s factual findings
for clear error and its legal conclusions for correctness. See State v.
Drommond, 2020 UT 50, ¶ 46, 469 P.3d 1056. This is, however, an
incorrect description of the law. If a rule 23B remand hearing
proceeds as the rule contemplates, there should be no legal
conclusions for us to review. As much as we appreciate the district
court’s efforts, we disregard its legal conclusions because they are
outside the scope of both rule 23B and the remand order.
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¶43 During that examination, Lovell admitted to specific facts
of the crime. Lovell testified that he kidnapped and sexually
assaulted Yost and that he later murdered her. He described the
details of the murder, how he hid Yost’s body, and how he later
attempted to locate her body as part of his plea agreement. He also
testified about his attempt to solicit others to murder Yost. Lovell
admitted that he decided to murder Yost himself after these
attempts fell through. And he testified that he murdered Yost to
keep her from testifying that he had raped her.
¶44 In 2011, this court vacated Lovell’s guilty plea and
remanded for a new trial. Lovell III, 2011 UT 36, ¶ 80, 262 P.3d 803.
During his new trial—the trial Lovell asks us to review here—
Lovell’s counsel sought to suppress the admission of the testimony
he provided in the sentencing phase of his previous trial. Lovell
argued that this testimony arose in the context of allocution and
that the admission of allocution testimony would violate his
constitutional rights. 11
¶45 The district court allowed the admission of Lovell’s
testimony, reasoning that it was not allocution because the
statements were made under oath and subject to cross-
examination. 12 The transcripts of Lovell’s testimony were
subsequently used to establish guilt at the trial that is the subject of
this appeal.
¶46 Lovell argues that the district court erred when it
determined that the testimony did not qualify as allocution. He
further contends that because the testimony was obtained in
connection with his vacated guilty plea, its admission violated his
“right to appear and defend in person” under article I, section 12 of
the Utah Constitution.
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11 “Allocution is a defendant’s right to speak on his or her own
behalf after the fact finder determines guilt but before the judge
pronounces sentence.” 24 C.J.S. Criminal Procedure and Rights of the
Accused § 2255 (2024). “It is designed to temper punishment with
mercy in appropriate cases, and to ensure that sentencing reflects
individualized circumstances.” 21 AM. JUR. 2D Criminal Law § 723
(2024).
12 The district court concluded that the letter Lovell read into the
record should be considered allocution and excluded it.
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STATE v. LOVELL
Opinion of the Court
¶47 Lovell points to our decision in State v. Maestas and argues
that we concluded there that the constitutional right to allocution
prevents using allocution statements in a subsequent prosecution.
See 2002 UT 123, ¶¶ 3, 48–49, 140, 63 P.3d 621. 13 Lovell explains that
the testimony contained admissions that “Lovell . . . sexually
assaulted Joyce Yost, conspired to kill her, ultimately killed [her]
and attempted to conceal the crime.” And Lovell appears to argue,
although it is far from clear, that the admission of this testimony
requires reversal of his conviction, reasoning that if “this testimony
were excluded, the jury would have little [sic] of the crime or its
circumstances.” 14
¶48 The State contends that the district court did not err
because Lovell’s sworn statements did not qualify as allocution,
and therefore our holding in Maestas did not prevent using the
statements at Lovell’s trial. Alternatively, the State argues that even
“if the trial court erred, the error was harmless beyond a reasonable
doubt because admission of Lovell’s prior testimony was
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13 The Maestas court considered whether the State could use
inculpatory allocution statements Maestas had made in the
sentencing phase of a prior trial after that trial had been reversed
and was being retried. State v. Maestas, 2002 UT 123, ¶¶ 14, 42, 63
P.3d 621. While a majority of the court recognized a constitutional
right to allocution that “would be meaningless” if allocution
statements could be used in a future prosecution, the court did not
rest its holding on this principle. See id. ¶¶ 48–50, 140–41. The court
instead held that Maestas’s allocution statements were
inadmissible under rule 24(d) of the Utah Rules of Criminal
Procedure, which says, “If a new trial is granted, the party shall be
in the same position as if no trial had been held and the former
verdict shall not be used or mentioned either in evidence or in
argument.” See id. ¶¶ 51, 56 (cleaned up).
14 We note that Lovell does not explicitly argue that this error
would require the reversal of his conviction, and the rest of his
arguments challenge the penalty phase of the trial. Nevertheless,
Lovell concludes his briefing by asserting, “[a]t the very least, the
Court must reverse and remand for a new sentencing phase.”
Because Lovell’s prior testimony was admitted during the guilt
phase, we treat his challenge to its admission as an argument that
the error requires us to overturn his underlying conviction.
14
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cumulative of evidence eleven other witnesses provided.” The
State also argues that it was harmless because the prior testimony
“supported [Lovell’s] trial strategy to concede guilt in order to
convince the jury at the penalty phase that he had taken
responsibility for the crimes he committed.”
¶49 Lovell does not respond to either of the State’s arguments,
nor does he explain how the exclusion of this evidence would have
altered Lovell’s decision to not contest his guilt.
¶50 In part because of the lack of briefing from Lovell on this
topic, we will assume, without deciding, that the district court
erred when it admitted Lovell’s 1993 sentencing testimony. We are
willing to make this assumption because the State has
demonstrated that even if the admission of this evidence violated
Lovell’s constitutional rights, its admission was harmless beyond a
reasonable doubt. 15
¶51 “A constitutional error is harmless when it appears
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Mitchell v. Esparza, 540 U.S. 12,
17–18 (2003) (cleaned up). Here, that means the admission of
Lovell’s 1993 sentencing testimony was harmless if the State shows,
beyond a reasonable doubt, that the jury would have convicted him
even if the challenged evidence had been excluded.
¶52 The State presented overwhelming evidence of Lovell’s
guilt to the jury. The jury heard from William Holthaus, who
investigated the kidnapping and sexual assault of Yost. Holthaus
testified that he interviewed Yost and that she provided a
description that matched Lovell and his vehicle. Holthaus told the
jury that Lovell was ultimately charged with these crimes and
bound over for trial during a preliminary hearing. He also testified
that Lovell had told him “[t]his is not going to trial” and that a
month later, Yost had gone missing.
__________________________________________________________
15 As the State points out, we have not conclusively determined
that violations of the Utah Constitution require the application of
the harmless beyond a reasonable doubt standard used for
violations of the United States Constitution. See State v. Bell, 770
P.2d 100, 106 n.12 (Utah 1988). We will assume, without deciding,
that this is the correct standard to apply because Lovell fails to clear
the hurdle he argues should apply.
15
STATE v. LOVELL
Opinion of the Court
¶53 The jury also heard from Rhonda Buttars, Lovell’s former
spouse, who had spoken with the police in exchange for immunity.
Buttars testified that Lovell had told her that Yost accused him of
rape and that he wanted to kill her because he didn’t want to go
back to prison.
¶54 Buttars also testified that Lovell had contacted a friend,
Billy Jack, offering him several thousand dollars to kill Yost. Buttars
explained that Billy Jack did not follow through with the murder.
She further testified that Lovell then hired Tom Peters to murder
Yost. But Buttars stated that Peters, like Billy Jack, did not do it.16
Buttars testified that, after these attempts to hire someone failed,
Lovell decided to kill Yost himself. Buttars told the jury that she
went with Lovell to surveil Yost’s apartment.
¶55 Buttars testified that Lovell told her, “I’m going to do it
tonight, so drive me over there,” and that she drove Lovell to Yost’s
apartment, dropped him off, and did not hear from him again for
several hours. She explained that when she picked Lovell up, he
told her that it “was pretty easy” to kill Yost. Lovell recounted to
Buttars that he entered Yost’s home through an unlocked window,
and that he drove her up the canyon and strangled her, stomping
on her neck once she fell to the ground. Buttars also testified that
Lovell took Yost’s watch and tried to pawn it.
¶56 The State then called Detective Terry Carpenter. Carpenter
explained that the police fitted Buttars with a hidden recording
device to record her conversations with Lovell while he was in
prison. Portions of these recordings were played for the jury, and
transcripts were admitted into evidence. During these
conversations, Lovell admitted to raping Yost. Lovell also detailed
that he had plotted to, and eventually did, murder Yost. The jury
heard Lovell tell Buttars that he “committed a first-degree felony to
cover another felony. It’s the death penalty. At the very least they’re
__________________________________________________________
16 The State also introduced Tom Peters’s earlier testimony that
Lovell had told him “this lady was trying to accuse him of raping
her and that she was trying to break up his family and that
something had to be done.” Peters also testified that he took this to
mean that Lovell wanted Yost killed, and that Lovell offered him
eight hundred dollars after which Peters said he would take care of
it.
16
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going to give me life without parole if I cooperate with them and
go to them.”
¶57 Considering the totality of the evidence before the jury, the
admission of the challenged testimony did not cause the jury to
convict when it otherwise might have acquitted. Even without
Lovell’s 1993 testimony, the jury heard recorded statements of
Lovell admitting to the crime. Buttars and others testified about
Lovell’s crimes. Lovell did not cross-examine these witnesses. 17 As
such, there is nothing in the record that would allow us to conclude
that the jury would not have credited the truth of their testimony.
On this record, the State has shown that the admission of Lovell’s
prior testimony was harmless beyond a reasonable doubt. We
affirm Lovell’s conviction.
II. LOVELL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING
THE PENALTY PHASE OF HIS TRIAL
¶58 Lovell argues that his death sentence must be overturned,
and that he must be given a new sentencing hearing because his
counsel provided ineffective assistance during the penalty phase of
his trial. While Lovell raises multiple claims of ineffectiveness, we
focus on one—whether trial counsel was ineffective for failing to
adequately object to testimony about Church doctrine and Lovell’s
status within the Church. 18
¶59 Essential to a criminal defendant’s Sixth Amendment
“right to counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 466 U.S. 668, 685–86 (1984) (cleaned up);
see also State v. Gallegos, 2020 UT 19, ¶¶ 33, 35, 463 P.3d 641. To
assess whether a defendant has been denied the representation the
United States Constitution promises, we apply the two-part test
Strickland established. Strickland requires the defendant to show
that (1) “counsel’s performance was deficient” and (2) “the
deficient performance prejudiced the defense.” 466 U.S. at 687.
__________________________________________________________
17 The sole exception was the cross-examination of Yost, which
appeared on the preliminary hearing transcript; however, that
cross-examination was brief, and did not seek to challenge her
credibility.
18 Because we vacate Lovell’s sentence, we do not opine on any
of his other challenges.
17
STATE v. LOVELL
Opinion of the Court
¶60 Under Strickland’s first prong, our inquiry focuses on
“whether counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688. This is “a deliberately stringent standard
that requires us to ‘indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.’” State v. Carter, 2023 UT 18, ¶ 27, 535 P.3d 819 (quoting
Strickland, 466 U.S. at 689). A defendant must overcome this
presumption by “identify[ing] the acts or omissions of counsel that
are alleged not to have been the result of reasonable professional
judgment.” Strickland, 466 U.S. at 690.
¶61 “In short, the question of deficient performance is not
whether some strategy other than the one that counsel employed
looks superior given the actual results of trial. It is whether a
reasonable, competent lawyer could have chosen the strategy that
was employed in the real-time context of trial.” State v. Nelson, 2015
UT 62, ¶ 14, 355 P.3d 1031 (cleaned up). Even if counsel fails to
object to inadmissible testimony, that decision might—under the
circumstances—fall within “the range of legitimate decisions
regarding how best to represent a criminal defendant.” See
Strickland, 466 U.S. at 689; State v. Bermejo, 2020 UT App 142, ¶ 47,
476 P.3d 148.
¶62 Strickland instructs us to look at “all the circumstances” of
the allegedly deficient representation. 466 U.S. at 690. It is therefore
helpful to review the constitutional limitations on imposing a death
sentence and Utah’s statute governing sentencing in a capital case.
A. The Constitutional Limitations on Capital Punishment
¶63 The death penalty is profoundly different from any other
punishment that the State can impose because it is unique “in both
its severity and its finality.” Gardner v. Florida, 430 U.S. 349, 357–58
(1977) (plurality opinion); Monge v. California, 524 U.S. 721, 732
(1998). The United States Supreme Court has “recognized an acute
need for reliability in capital sentencing proceedings.” Monge, 524
U.S. at 732. This need for reliability also “requires a
correspondingly greater degree of scrutiny of the capital sentencing
determination.” California v. Ramos, 463 U.S. 992, 998–99 (1983).
“Because the death penalty is the most severe punishment, the
Eighth Amendment applies to it with special force.” Roper v.
Simmons, 543 U.S. 551, 568 (2005).
¶64 The United States Supreme Court has explained that “if a
State wishes to authorize capital punishment it has a constitutional
18
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responsibility to tailor and apply its law in a manner that avoids
the arbitrary and capricious infliction of the death penalty.” Godfrey
v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion). This requires
that the death penalty “be limited to those offenders who commit a
narrow category of the most serious crimes and whose extreme
culpability makes them the most deserving of execution.” Roper,
543 U.S. at 568 (cleaned up).
¶65 A death sentence will generally satisfy these constitutional
limitations if it meets two requirements. See Kansas v. Marsh, 548
U.S. 163, 173–74 (2006). The Constitution first requires “that a
capital sentencing scheme must genuinely narrow the class of
persons eligible for the death penalty and must reasonably justify
the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.” Loving v. United States,
517 U.S. 748, 755 (1996) (cleaned up). This narrowing is
accomplished “by requiring that the sentencer find at least one
aggravating circumstance.” Id.¶66 The State “must give narrow and precise definition to the
aggravating factors that can result in a capital sentence.” Roper, 543
U.S. at 568. Otherwise, “a death penalty system could have
standards so vague that . . . a pattern of arbitrary and capricious
sentencing . . . could occur.” Godfrey, 466 U.S. at 428 (cleaned up).
For example, in Godfrey, the Court overturned a death sentence that
was “based upon no more than a finding that the offense was
‘outrageously or wantonly vile, horrible and inhuman.’” Id. The
Court explained that this finding was insufficient to impose a death
sentence because “[a] person of ordinary sensibility could fairly
characterize almost every murder as ‘outrageously or wantonly
vile, horrible and inhuman.’” Id. at 428–29, 433.
¶67 Finding an aggravating circumstance “is not an end in
itself.” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). A death
sentence cannot be automatically imposed merely because the
sentencer finds a narrow and precisely defined aggravating factor.
See Blystone v. Pennsylvania, 494 U.S. 299, 304–05 (1990). Instead, the
Constitution imposes a second requirement—that the sentencer
“render a reasoned, individualized sentencing determination
based on a death-eligible defendant’s record, personal
characteristics, and the circumstances of his crime.” Marsh, 548 U.S.
at 174; see also Lockett v. Ohio, 438 U.S. 586, 606 (1978) (plurality
opinion) (holding that the Constitution demands an
19
STATE v. LOVELL
Opinion of the Court
“individualized consideration of mitigating factors” to impose a
death sentence).
¶68 Considering this second principle, the Supreme Court has
held “that the Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S.
104, 110 (1982) (quoting Lockett, 438 U.S. at 604). Put differently, a
defendant has “the right to present sentencers with information
relevant to the sentencing decision,” and the sentencer is “oblige[d]
. . . to consider that information in determining the appropriate
sentence.” Marsh, 548 U.S. at 175.
¶69 Further, a jury in a capital proceeding must make its
sentencing determination “with the appropriate awareness of its
truly awesome responsibility” to determine whether death is the
appropriate punishment in a specific case. Caldwell v. Mississippi,
472 U.S. 320, 341 (1985) (cleaned up). We generally assume that
jurors will take their role seriously and “act with due regard for the
consequences of their decision.” Id. at 330 (cleaned up). But if a
jury’s sense of responsibility has been diminished, a decision to
impose the death penalty might not meet “the Eighth
Amendment’s heightened need for reliability in the determination
that death is the appropriate punishment in a specific case.” Id. at
340–41 (cleaned up).
¶70 In an effort to conform with these constitutional
requirements, Utah provides statutory guidance on when the death
penalty may be imposed. In Utah, the State must convince the jury
of two elements beyond a reasonable doubt: (1) that the
aggravating circumstances outweigh the mitigating circumstances,
and (2) that the death penalty is justified and appropriate under the
circumstances. 19 UTAH CODE § 76-3-207(5)(b). In weighing the
__________________________________________________________
19 The statute provides a non-exclusive list of mitigating
circumstances, including:
(a) the defendant has no significant history of prior
criminal activity; (b) the homicide was committed
while the defendant was under the influence of
mental or emotional disturbance; (c) the defendant
(continued . . .)
20
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aggravating and mitigating circumstances, the jury does not simply
compare their numbers, but rather it considers “the totality of the
. . . circumstances in terms of their respective substantiality and
persuasiveness.” State v. Maestas, 2012 UT 46, ¶ 265, 299 P.3d 892(cleaned up).
¶71 A death sentence is “never mandated or imposed
automatically,” even if no evidence is offered in mitigation. State v.
Lafferty, 2001 UT 19, ¶ 128, 20 P.3d 342. And “[t]he burden never
shifts to the defendant.” Id. In other words, in Utah capital cases,
death is never the default. The State must prove beyond a
reasonable doubt that death is the appropriate sentence on the
individual facts of each case.
B. Trial Counsel’s Failure to Adequately Object to Testimony
Regarding Church Doctrine and Lovell’s Excommunication from the
Church Was Unreasonable
¶72 Lovell argues that his counsel were deficient because they
failed to adequately object to testimony that he had been
excommunicated from the Church and testimony concerning the
Church’s doctrine regarding forgiveness and readmission to
__________________________________________________________
acted under duress or under the domination of
another person; (d) at the time of the homicide, the
capacity of the defendant to appreciate the
wrongfulness of his conduct or to conform his
conduct to the requirement of law was impaired as a
result of a mental condition, intoxication, or influence
of drugs . . . (e) the youth of the defendant at the time
of the crime; (f) the defendant was an accomplice in
the homicide committed by another person and the
defendant’s participation was relatively minor; and
(g) any other fact in mitigation of the penalty.
UTAH CODE § 76-3-207(4).
The statute also allows the jury to consider aggravating
circumstances outlined in section 76-5-202. Id. § 76-3-207(3). For
example, the statute allows the jury to consider if “the actor
committed homicide for the purpose of . . . preventing a witness
from testifying.” See id. § 76-5-202(2)(a)(xi)(A).
The jury may also consider “any other facts in aggravation or
mitigation of the penalty that the court considers relevant to the
sentence.” Id. § 76-3-207(2)(a)(iv).
21
STATE v. LOVELL
Opinion of the Court
Church membership. Lovell recognizes that his counsel attempted
to object to some of this testimony. But Lovell asserts that these
objections were “ineffective.”
¶73 Lovell’s mitigation strategy was clear. The State had
presented evidence of his heinous crimes. To impose the death
penalty, the State needed to convince every juror that the
aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt. To escape the death
penalty, Lovell needed only a single juror to conclude that the State
had not met its burden. Lovell sought to seed that doubt, in part,
by presenting himself as a different person from the one who had
kidnapped, raped, and murdered Yost. Lovell tried to show he had
changed by admitting to and showing remorse for those crimes.
And he called witnesses who attempted to paint a picture of a
model prisoner who had made genuine steps toward rehabilitation.
¶74 Lovell began his mitigation case by calling Dr. Newton.
Newton was “a religious volunteer” at the prison, where he acted
as Lovell’s “clergy leader.” Newton testified that, based on
conversations with prison officers, he thought that Lovell “was
regarded as a model prisoner.” He explained that the officers “all
spoke very highly of” Lovell. Newton also explained that Lovell
had taken multiple classes while in prison and that he was
“involved with two or three charitable organizations.” And he
testified that he believed Lovell “was very remorseful.” Indeed,
Lovell had expressed remorse for his crimes “many times.”
¶75 Lovell’s questioning of Newton never strayed into
religion. Beyond the background information necessary to explain
that Newton met Lovell as his “clergy leader,” the only hint of
religion from Newton’s direct examination came from Newton’s
response to a general question:
Q. So what did your discussions with Mr. Lovell
entail when you met with him at the prison?
A. . . . We talked about religion on a fairly basic level,
like Ten Commandment kind of stuff . . . at some
point [Lovell] had some questions about things he
had read in the Bible and the Book of Mormon, so we
would talk about that on occasion. Sometimes we
talked about his family.
22
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¶76 Despite the lack of religious testimony during Lovell’s
direct examination of Newton, the State questioned Newton almost
exclusively about religious topics. The State began its
cross-examination by asking Newton if he “w[as] a bishop for the
Church of Jesus Christ of Latter-[d]ay Saints.” After Newton said
he was, the State began a long line of questioning about the Church
and its doctrine.
¶77 The State first questioned Newton about Church
organization and policy, eliciting the following testimony:
Q. . . . [I]n the LDS Church what is the highest
governing body?
A. Well, the [F]irst [P]residency.
¶78 The prosecutor then questioned Newton about Lovell’s
relationship with the Church, asking:
Q. . . . [I]s the defendant currently a member of the
LDS Church?
A. [He] [i]s not.
Q. Okay. Was he ever a member of the church?
A. Yes, he was.
¶79 The prosecutor then asked Newton:
Q. . . . [A]re you aware that the handbook [of
instructions for Church leaders] requires the
convening of [a] disciplinary council when evidence
suggests that an individual has committed murder?
Lovell’s counsel objected for lack of foundation, arguing that
“[Newton] has no expertise or knowledge of the facts.” The court
overruled the objection and allowed the State to continue its
questioning.
¶80 Newton testified that he did not convene a disciplinary
council and that he would “have to just say that’s a fault of mine.”
¶81 Following this testimony, the prosecutor shifted its focus
to Lovell’s eventual excommunication from the Church, asking:
Q. You are aware that the defendant has since been
excommunicated by the church?
A. I am aware of that.
23
STATE v. LOVELL
Opinion of the Court
Q. Okay. Now, in order for an individual to be
readmitted into the church after being
excommunicated for murder, do you know who
makes that decision, that ultimate decision, if they’re
remorseful and changed enough that they can join the
church again?
A. . . . Well, I would assume that it would start with
the local bishop . . . . And then the bishop would talk
to the stake president . . . . And then the stake
president would talk to someone higher up in the
church. The decision wouldn’t be made at the local
level. It would be made higher up in the church. 20
Q. Would it surprise you at all that . . . the [F]irst
[P]residency is the body that makes that
determination?
A. No, that doesn’t surprise me.
Lovell’s counsel did not object.
¶82 The State persisted in this line of questioning, eliciting the
following testimony:
Q. So you would agree, then, that the determination
of remorse or change ultimately can only be made by
the [F]irst [P]residency, not by anyone else within the
church?
A. Well, they certainly are the ones that have the
ultimate say about reinstatement. So, yes.
Q. Okay. And you’re aware that the defendant has
not been readmitted into the church?
A. Yes.
Q. He has not been rebaptized?
__________________________________________________________
20 A stake president “oversees Church programs in a defined
geographic area composed of individual congregations called
wards . . . . He also oversees the activities of the bishops or ward
leaders, counseling them as needed.” Stake President, THE CHURCH
OF JESUS CHRIST OF LATTER-DAY SAINTS NEWSROOM,
https://newsroom.churchofjesuschrist.org/article/stake-
president [https://perma.cc/24VJ-XGYJ].
24
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A. I knew that.
Lovell’s counsel did not object.
¶83 The State continued its questioning:
Q. In the LDS Church what is that process called, the
process of changing one’s life, essentially?
A. You could call it repentance.
Q. . . . Would you say that feeling sorrow or remorse
is part of that process?
A. Yes.
Q. . . . Is there a particular kind of sorrow that the
person has to have?
A. I don’t understand your question.
Q. Okay. Are you familiar with the phrase “[g]odly
sorrow”?
A. Well, I’ve heard of it. I’m not sure I know what that
means.
Again, counsel did not object.
¶84 The State continued:
Q. That’s fine. Would you agree that there is a
difference between expressing remorse . . . and
actually being remorseful? . . .
A. Sure. People can say anything.
Q. Okay. Okay. Now, the defendant has made
expressions of remorse to you. He’s expressed
remorse to you, correct?
A. Yes.
Q. . . . [B]ut you can’t say that he is in fact totally
remorseful; is that correct?
A. I don’t think anyone can.
¶85 The State then began questioning Newton about Lovell’s
repentance, asking:
Q. As part of that process of repentance, is a full and
complete confession part of that process to church
leaders and victims?
25
STATE v. LOVELL
Opinion of the Court
A. Sure. Yes.
Q. Okay. And you had indicated earlier that the
defendant hasn’t told you all of the facts related to
this case, the murder of Joyce Yost; is that correct?
A. That’s correct.
Lovell’s counsel objected to this question, arguing that it was
outside the scope of cross-examination because “the crime took
place prior to Mr. Newton’s involvement with Lovell.” The court
overruled the objection.
¶86 Lovell posits that counsel should have lodged additional
challenges to this testimony because it “[s]uggest[ed] the church is
in charge of adequacy of remorse and acceptance of responsibility.”
And that the testimony therefore called on the jury to base its
decision on religious principles, “usurp[ing] the jury’s function,
[and] depriving Mr. Lovell of a fair and independent jury.” Lovell
also argues that the objections his counsel made were ineffective.
¶87 We agree that reasonable counsel would have recognized
both the problems with this testimony and its potential to invite the
jury to base its decision on something other than its own
assessment of Lovell. And we agree that reasonable counsel would
have done something—either object to the entire line of
questioning, seek curative instructions, or move for a mistrial—to
protect their client. 21
__________________________________________________________
21 Lovell does not clearly identify what objection trial counsel
should have made. At one point, he argues that the testimony
amounted to prosecutorial misconduct. And at other times, he
argues that the testimony “usurped the jury’s function, depriving
Lovell of a fair and independent jury.” Typically, the failure to
identify specifically how trial counsel erred will preclude
succeeding on a claim of ineffective assistance. As we explained in
State v. Gallegos, the defendant “has the burden to overcome a
strong presumption of reasonableness which he must do by
identifying the acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment.” 2020 UT
19, ¶ 37, 463 P.3d 641 (cleaned up). We, under the United States
Supreme Court’s instruction, have a greater concern for reliability
when the death sentence is imposed. See Lockett v. Ohio, 438 U.S.
(continued . . .)
26
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¶88 During the penalty phase of a capital case, the evidence
allowed is exceedingly broad. The court may admit “[a]ny evidence
the court considers to have probative force . . . regardless of its
admissibility under the exclusionary rules of evidence.” UTAH
CODE § 76-3-207(2)(b). This statute naturally limits counsel’s ability
to challenge evidence. The broad discretion of the court does not,
however, mean all evidence is admissible. At the very least,
evidence must be probative. See id. And we have contemplated that
evidence may be inadmissible during the penalty phase if it is
“unduly prejudicial” by being confusing or inflammatory to the
jury. Maestas, 2012 UT 46, ¶ 286; see also Lafferty, 2001 UT 19,
¶¶ 105–06.
¶89 We first note that the objections trial counsel made to
Newton’s testimony missed the mark. Counsel objected to the State
asking Newton if he was “aware that the handbook requires the
convening of [a] disciplinary council when evidence suggests that
an individual has committed murder?” Counsel argued that
Newton “has no expertise or knowledge of the facts.” But the State
had laid foundation—without objection—that Newton was a
Church bishop and that the Church handbook “outlines the
policies and procedures” for bishops and other Church leaders. The
State laid sufficient foundation to ask Newton about his duties as a
bishop within the handbook.
¶90 Counsel’s second objection was similarly anemic. Counsel
objected to the State asking Newton “that the defendant hasn’t told
you all of the facts related to this case, the murder of Joyce Yost; is
__________________________________________________________
586, 604 (1978) (plurality opinion); see also State v. Wood, 648 P.2d
71, 81 (Utah 1982). This greater concern for reliability “requires a
correspondingly greater degree of scrutiny” when reviewing a
death sentence. California v. Ramos, 463 U.S. 992, 998–99 (1983).
As such, we “have the sua sponte prerogative in [death penalty]
cases to notice, consider, and correct manifest and prejudicial error
which is not objected to at trial or assigned on appeal, but is
palpably apparent on the face of the record.” State v. Tillman, 750
P.2d 546, 552–53 (Utah 1987). Here, we are not called upon to notice,
consider, or correct an unobjected-to error; trial counsel weakly
objected to some of the problematic questioning, and appellate
counsel generally identified and briefed the issue. We are,
however, required to look past briefing deficiencies that might
have doomed a similar argument in a non-capital case.
27
STATE v. LOVELL
Opinion of the Court
that correct?” Counsel argued that this question was beyond the
scope of cross-examination because “the crime took place prior to
Mr. Newton’s involvement with Mr. Lovell.” However, this
question was not outside the scope of cross-examination because
Newton testified about his knowledge of Lovell’s crimes during
direct examination.
¶91 Lovell’s counsel asked Newton: “in you[r] discussions
with Mr. Lovell about the crimes he was involved in, did you have
a chance to discuss those issues with him at some time?” And
Newton testified: “I don’t recall that [Lovell] and I ever discussed
his crimes. I heard about it from guards and others. But he and I
never discussed any of the details of his crime other than, like I say,
I knew why he was there.” This testimony was sufficient to defeat
an objection based upon exceeding the scope of direct examination.
¶92 Even more troubling than the misaimed objections are the
many instances counsel neglected to object at all. Counsel did not
object to the testimony regarding Lovell’s excommunication nor
the testimony about Church doctrine concerning repentance and
remorse. The problem with Newton’s testimony was not that he
lacked foundation to provide it, nor that it exceeded the scope of
direct examination—it was that the entire line of questioning and
the testimony it elicited was unduly prejudicial.
¶93 We have explained that counsel’s performance may be
deficient when they fail to challenge testimony that is “obviously
improper.” State v. Larrabee, 2013 UT 70, ¶ 26, 321 P.3d 1136. Here,
reasonable counsel would have recognized the obvious
impropriety of Newton’s religious testimony and challenged it.
¶94 That Newton’s religious testimony was unduly prejudicial
would have been apparent to reasonable counsel. The United States
Supreme Court has instructed that “it is constitutionally
impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant’s death rests
elsewhere.” Caldwell, 472 U.S. at 328–29. This is precisely what the
unobjected-to testimony invited the jury to do.
¶95 The State’s cross-examination suggested that Lovell’s
excommunication from the Church and subsequent failure to be
readmitted by its First Presidency was evidence that he lacked
genuine remorse. It insinuated that the jury could consider whether
the Church had found Lovell sufficiently remorseful as a proxy for
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deciding themselves whether he was truly a changed person. This
testimony invited the jury “to believe that the responsibility for
determining the appropriateness of the defendant’s death rests
elsewhere” because the Church had already determined that Lovell
was not remorseful by not readmitting him to membership. See id.
at 329.
¶96 In other words, this testimony encouraged the jury to not
thoroughly consider Lovell’s evidence of his remorse. By inserting
a religious test for remorse into the proceedings, the State gave the
jury a way out of making a decision that is difficult for any person
to make about another: whether a defendant has truly changed. The
State offered jurors an off-ramp by intimating that it could use
readmission to Church membership as a gauge for whether Lovell
was actually remorseful and had changed his ways. The testimony
also invited the jury to discredit Newton’s (and the other
witnesses’) assessment of Lovell by substituting an ecclesiastical
determination of Lovell’s rehabilitation for the jurors’ own review
of the evidence. Any reasonable attorney would have recognized
the risk Newton’s testimony posed to Lovell’s mitigation case and
challenged it.
¶97 We are not the only court to have underscored the
potential for religious doctrine to undermine a defendant’s right to
a fair trial. Indeed, the use of religiously charged arguments
supporting death has been “universally condemned . . . as
confusing, unnecessary, and inflammatory”; they “have no place in
our non-ecclesiastical courts and may not be tolerated there.”
Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996). In Romine v.
Head, the Eleventh Circuit reversed a sentence of death because
“the prosecutor argued Biblical law to the jury as a basis for urging
it to eschew any consideration of mercy and sentence [the
defendant] to death.” 253 F.3d 1349, 1358, 1371 (11th Cir. 2001).
¶98 The Superior Court of Pennsylvania has likewise held that
referring to testimony as “God’s truth” improperly “inject[ed] a
court proceeding with religious law.” Commonwealth v. Chmiel, 777
A.2d 459, 467 (Pa. Super. Ct. 2001). In that case, the court found that
“[b]y arguing that [the witness] speaks ‘God’s truth,’ . . . [t]he
prosecutor elevated [the witness’s] testimony to that of God,”
interjecting religious law for the jury’s consideration. Id. And in
Commonwealth v. Chambers, the Pennsylvania Supreme Court
considered a prosecutor’s argument that, as “the Bible says, ‘and
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STATE v. LOVELL
Opinion of the Court
the murderer shall be put to death.’” 599 A.2d 630, 644 (Pa. 1991).
The court concluded that this argument was improper because it
“advocates to the jury that an independent source of law exists for
the conclusion that the death penalty is the appropriate
punishment.” Id. The court further held that this argument was “a
deliberate attempt to destroy the objectivity and impartiality of the
jury which cannot be cured.” Id.¶99 In People v. Hill, the California Supreme Court explained
that “an appeal to religious authority in support of the death
penalty is improper because it tends to diminish the jury’s personal
sense of responsibility for the verdict.” 952 P.2d 673, 693 (Cal. 1998).
The court made its determination based on the State’s closing
argument where it said that “the biblical maxim ‘Vengeance is mine
sayeth the Lord’ should not dissuade the jury from imposing the
death penalty, for the Bible also says ‘an eye for an eye, a tooth for
a tooth.’” Id. at 692 (cleaned up).
¶100 Furthermore, here there was no reasonable basis for
Lovell’s trial counsel to forego objecting to Newton’s religious
testimony. The State was eliciting evidence that undermined the
entire theory of mitigation—that Lovell was a changed man who
was remorseful for his crimes. The district court suggested that
counsel should have continued challenging this testimony, saying
that it “thought there were areas that we covered with the three
ecclesiastical leaders that . . . were not probative at all,” but the
court “let it go” because “no one seemed to feel that way.”
¶101 The State does not defend the admissibility of the
challenged testimony, but it contends that Lovell’s counsel were
not ineffective because they had a strategic reason to not challenge
the testimony. “If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” State v. Ray,
2020 UT 12, ¶ 34, 469 P.3d 871. The State posits that reasonable
counsel could have decided not to object because doing so could
have “risked excluding testimony Lovell wanted to present.”
¶102 The State claims that “[r]eligious matters played a central
role in Lovell’s defense,” and therefore “counsel could reasonably
think that if he argued that discussion of religious matters was
improper, the court would also prevent Lovell from presenting
evidence he wanted to present.” The State argues that “[r]eligious
references permeated the testimony of Becky Douglas” and that
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“competent counsel could choose not to argue that it was improper
for the State to ask about religious matters because counsel knew
Douglas would be talking about religious matters.”
¶103 We credited a similar argument in a dissimilar case. See
generally State v. Vallejo, 2019 UT 38, 449 P.3d 39. In Vallejo, we
determined that defense counsel made a reasonable decision not to
object to religious testimony because the defense sought to
introduce “Vallejo’s own religion and role as a religious leader.” Id.
¶ 77. We noted that “[d]uring the opening statement, Vallejo’s trial
counsel commented that Vallejo ‘had received his church calling
and was his ward’s bishop.’” Id.
¶104 We explained that “Vallejo also introduced evidence of
his own religious conduct, testifying that he ‘went on a mission for
a couple years’ and that later he ‘was a bishop,’ which he ‘loved.’”
Id. Vallejo “testified that his responsibilities as a bishop took ‘fifteen
to twenty hours of his week.’” Id. (cleaned up). We found that trial
counsel’s decision to promote this religious theme, referenced from
the very beginning of Vallejo’s case, indicated that counsel could
have reasonably not objected to other religious testimony. Id. That
is, Vallejo’s counsel could have reasonably feared that if he objected
to the State’s religious-themed questions, he could lose a large
portion of what he hoped to present to the jury.
¶105 Unlike in Vallejo, Lovell’s mitigation case did not rely on
religion. Indeed, it appears that the defense carefully attempted to
avoid wading into religious waters during its direct examination of
Newton. During Newton’s direct examination, the defense elicited
minimal testimony about religion, limited to Newton forming a
relationship with Lovell as his “clergy leader” and as a “religious
volunteer” at the prison. Newton’s direct examination was the
most overtly religious when counsel asked Newton to describe his
discussions with Lovell. Newton volunteered that when he and
Lovell would meet, they would talk about things Lovell had “read
in the Bible and the Book of Mormon.” At no point during their
examination of Newton did Lovell’s counsel seek to talk about
repentance or the Church as an organization. In fact, at no point did
counsel even identify the Church, much less that Newton had been
Lovell’s bishop. This testimony only came in through the State’s
questioning.
¶106 To be sure, Lovell’s counsel asked the next two
witnesses, Lovell’s former Church bishops Webster and
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STATE v. LOVELL
Opinion of the Court
Thompson, about Lovell’s status with the Church. Both witnesses
testified that Lovell had been excommunicated and that they were
not aware whether Lovell had asked to rejoin the Church. Lovell’s
counsel even asked Webster about his “impression of [Lovell’s]
progress towards remorse and repentance.” But this questioning
can be explained as Lovell’s counsel attempting to mop up after the
disastrous testimony that the State elicited from Newton. That is,
after the State put evidence before the jury that only the Church’s
First Presidency could readmit someone like Lovell into Church
membership and that this decision would turn on whether the First
Presidency concluded that Lovell had repented and shown
remorse, Lovell’s counsel needed to try and convince the jury that
Lovell had not sought readmission. 22 The questions posed to
Webster and Thompson appear to be a gambit to explain to the jury
that the Church’s First Presidency had made no assessment of
Lovell’s repentance because Lovell had not started the process to
be readmitted. Unlike in Vallejo, Lovell’s counsel did not open the
door to religious themes. They tried to make the best of the
situation once the State had thrown that door open.
¶107 The State also argues that reasonable counsel could have
decided not to object to Newton’s testimony because they feared
they would lose the ability to elicit favorable testimony from Becky
Douglas. Though some of Douglas’s testimony certainly had a
religious flavor, that was not the sole, or even primary, purpose of
her testimony. Indeed, Lovell’s counsel focused their questioning
of Douglas on her relationship with Lovell and his volunteer work
with her organization.
¶108 In essence, Douglas testified that when she met with
Lovell, she felt “this incredible remorse, this sadness, [from
Lovell],” explaining that “he just felt so, so desponden[t], that there
was so much despair of what he had done.” She also testified “that
by going through 30 years of prison, [Lovell] has become literally a
gentle and a kind man.” She also testified that she “ha[s] absolute
confidence that the [Lovell] I know is the real [Lovell] now” and
__________________________________________________________
22 We also note that neither Webster nor Thompson presented
their opinions on Lovell’s remorse as anything but their personal
beliefs. To the contrary, both witnesses testified that they did not
represent the Church and that they could not truly know what was
in Lovell’s heart.
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that she “wouldn’t have any hesitation to invite him into [her]
home” if he were ever released.
¶109 Unlike the testimony the State sought to elicit from
Newton, Douglas’s testimony was not about religious doctrine,
and, to the extent her testimony possessed a religious tinge,
Douglas volunteered that in her responses. For example, on direct
examination Lovell’s counsel asked Douglas questions to which
Douglas provided religiously flavored responses.
¶110 Lovell’s counsel asked:
Q. I understand that in 2012 that you made a visit to
[Lovell] in the prison?
A. I did.
Q. Can you tell us how that came about?
Douglas then explained that an employee with her charity had a
relative who was “a stake president . . . in the Mormon Church”
and that “[p]art of [his] ministry” is working at the prison. She
continued explaining that her employee was invited to meet Lovell
and that her employee “was very touched by th[e] experience,”
after which Douglas asked the stake president “if he could arrange
for me to go see [Lovell].”
¶111 Douglas recounted how she was put in touch with
Lovell’s bishop, who helped arrange for her to visit Lovell. After
Douglas had explained this background information, Lovell’s
counsel asked:
Q. Did you have any concerns about this visit with
[Lovell] coming up about what you would talk
about?
A. Yeah. I—I mean, I’d been writing to him, but I
didn’t really feel like I knew him. I—what was I going
to talk about? I mean, I literally had no idea what I
was going to talk about. . . .
Q. Did you have a discussion about that concern with
[Lovell’s] bishop?
A. I did. Well—yes, with both his bishop and his stake
president . . . . And they both suggested that if I
should get in, that I should talk to him about the
atonement.
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STATE v. LOVELL
Opinion of the Court
And I said, “Well, I mean, you all haven’t done this?”
And they said, “Well, yes, but he seems to be stuck
spiritually. He just simply cannot forgive himself.”
His bishop . . . said [“]he’s recently been rereading the
transcripts of his trial, and he has just reached the
conclusion that he will never, ever be able to forgive
himself. And we just feel he’s—spiritually, he’s just
kind of stuck there. He can’t move past that and
maybe you could talk to him about the atonement
and Jesus Christ.”
¶112 Trial counsel asked Douglas to describe her visit with
Lovell, and she testified that: “He was teary. He was so excited to
meet me. We had been corresponding at this point for, I guess,
probably five years, close to five years, and he was very excited.
And he sat and I sat and we—we talked.” She explained that they
talked for a while, and after a break in the discussion she said, “I
would like to talk to you about the atonement if that’s okay.”
Douglas then testified:
[Lovell] immediately became very guarded. He hung
his head down and he said, “You know, I’d honestly
rather not talk about that.”
And I said, “Oh, well, you know, I don’t want to
upset you any. Why?”
And he—he literally and tears just started rolling
down his face, and he said, “You are going to tell me
I need to forgive myself. Everybody keeps telling me
I need to forgive myself.” And he said, “I will never
forgive myself.” He said, “I have tried. So I cannot
forgive myself. So I don’t want to talk about it.” He
said, “I’ve been through this and through this and
through this.” And he said, “Let’s talk about
something else.”
And I said, “Well”—and by now he was just—I mean
he was weeping. And I said, “Would it be okay if I
just talked and you listened? Would that be all right?”
And he said, “Well, okay.” He kind of shrugged
basically. And I said, “Okay. Well, [Lovell] have you
read the New Testament?”
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¶113 At this point, the State objected, arguing that “if she’s
going to give an exposition on the doctrinal basis of the New
Testament, I think it’s inappropriate.” Lovell’s counsel explained
that Douglas would not be discussing religious doctrine but that
she would explain how after she mentioned the New Testament,
Lovell “recall[ed] a letter she wrote to him years before.” Lovell’s
counsel also explained that this testimony “goes to the strength of
the connection between the two of them.”
¶114 With this explanation, the court allowed the testimony to
continue, and Lovell’s counsel asked:
Q. You had a brief discussion with [Lovell] about the
New Testament?
A. Yes. And the reason I mentioned it is because I was
specifically talking about Paul. When I mentioned
Paul’s name, [Lovell] brightened and he said, “Oh,
you wrote about Paul in your letter of” whatever,
November 2007.
And I said, “Really?” And he had my letters in a little
folder right there and he opened it and they were just
pristine and he pulled it out. He said, “Yes, you wrote
that even though Paul was in prison, he did a lot of
good in the world through his letters, and because of
that we know Christian doctrine today.”
And I said, “You are in prison, but you are already
trying to do good by supporting a child in India
affected by leprosy. You are also reaching out.”
And so I thought that was very interesting.
The reason I brought this up, and I’ve only met
[Lovell] one time. So as a character witness, I don’t
have—I don’t have a whole lot. I just have this one
meeting I had with [Lovell]. But it was a powerful
meeting and that’s why I’m here today.
¶115 Although Douglas’s narration of her visit certainly
contained numerous religious references, the important
testimony—that Lovell was remorseful, along with her opinion
that he had changed—did not rely on religion. Had Douglas simply
never mentioned anything religious, her testimony would still
provide evidence that Lovell felt remorse for his crime. And unlike
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STATE v. LOVELL
Opinion of the Court
the State’s questioning of Newton, Douglas’s testimony did not
devolve into religious doctrine or whether Lovell’s ecclesiastic
leaders had decided that he was remorseful.
¶116 Additionally, during the 23B hearing, the district court
found that there was an abundance of religious testimony that
Douglas “wanted to share with the jury” but was not given the
opportunity to provide. The court found that Douglas wanted to
tell the jury that “Lovell took religious instruction courses for four
years, he studied the scriptures, he reconciled himself to God, he
watched a PBS series on the New Testament and was moved by it,
[and] he encouraged inmates who were discouraged and did not
have God in their lives.” The court also found that “Douglas
wanted to tell the jury that because of . . . Lovell’s actions, over forty
inmates wrote to her telling her that . . . Lovell had told them,
‘There is a way for you spiritually to come back to the Lord.’”
¶117 Had Lovell intended to use Douglas to present an overtly
religious theme at trial, as the State contends, it stands to reason
that he would have sought to solicit at least some of this testimony
from Douglas. And the fact that Lovell avoided this religious
testimony leads us to believe that the religious aspects of Douglas’s
testimony were not part of counsel’s trial strategy.
¶118 If the district court were to remove all religious
references from Newton and Douglas’s testimony, the State could
not have established Lovell’s excommunication or the doctrine of
repentance. But Lovell could have still established his remorse and
changed character through Douglas. Consequently, continued
objections to Newton’s testimony did not present a risk of
excluding the mitigating evidence in Douglas’s testimony.
¶119 Moreover, even if further objections to Newton’s
religious testimony presented a risk of excluding evidence that
Lovell wanted to present, the failure to object was still
unreasonable. Reasonable counsel in these circumstances would
not have foregone objecting to prejudicial religious testimony
based on a hope of introducing the religious testimony Douglas
had to offer. 23 The severe prejudicial nature of Newton’s
__________________________________________________________
23 This opinion should not be read to suggest that all evidence
with a religious tinge is categorically improper. Rather, we
recognize that religiously themed testimony can sometimes exert a
(continued . . .)
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cross-examination testimony, challenging the defense theme that
Lovell was remorseful, and implying that the jury could look to the
actions of ecclesiastical leaders to decide whether Lovell had
changed belies any reasonable strategy.
¶120 In the end, reasonable counsel might have done
something other than raise additional objections in response to
Newton’s testimony, such as move for a mistrial or seek a curative
instruction. But because of the life-or-death stakes of the
proceeding and the potential for such obviously improper
testimony to prejudice the jury, reasonable counsel would have
done something more to try and neutralize it. Lovell’s trial counsel
lodged two misaimed objections and tried to clean-up with
subsequent witnesses. That was objectively unreasonable.
C. The Admission of Improper Testimony Prejudiced Lovell
¶121 To prevail on an ineffective assistance of counsel claim, a
defendant must show more than deficient performance. Counsel
must also demonstrate that the error had a prejudicial effect on the
outcome. Strickland, 466 U.S. at 687. This requires that the
defendant “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. In the specific circumstances of a
challenge to a death sentence, “the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695. And
“[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Put differently, the prejudice
prong is satisfied when the defendant shows “that counsel’s errors
were so serious as to deprive the defendant of . . . a trial whose
result is reliable.” Id. at 687.
¶122 The State argues that even if trial counsel’s performance
was deficient, Lovell fails to show prejudice because the jurors were
faced with “overwhelming evidence in favor of the death penalty.”
The State also argues that this is especially true considering that the
alternative sentence was life with the opportunity of parole. The
State avers that “no reasonable probability exists that even one
__________________________________________________________
powerful pull, and counsel and courts must be on-guard for
religious testimony that might unduly prejudice a defendant.
37
STATE v. LOVELL
Opinion of the Court
juror would have voted for life with parole if only the challenged
evidence had been excluded.”
¶123 We reiterate that the death penalty is “never mandated
or imposed automatically,” even if no evidence is offered in
mitigation. Lafferty, 2001 UT 19, ¶ 128. The State must convince the
entire jury—beyond a reasonable doubt—that the aggravating
circumstances outweigh the mitigating circumstances, and that the
death penalty is justified and appropriate under the circumstances.
UTAH CODE § 76-3-207(5)(b).
¶124 Without the improper religious testimony, there is a
reasonable probability that at least one member of the jury would
not have been convinced that the State had met its burden.
¶125 Prejudice is always a difficult inquiry, requiring
reconsideration of the entire evidentiary picture to determine
whether the outcome might have been different absent counsel’s
deficient performance. See Strickland, 466 U.S. at 695 (“In making
this [prejudice] determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or
jury.”). But here, we can see that counsel’s errors altered the balance
between the aggravators and the mitigators in a way that likely
impacted at least one juror’s decision. Moreover, these errors
created a reasonable probability that at least one juror’s sense of
responsibility regarding the decision to impose death was
diminished.
¶126 The bulk of the aggravating evidence before the jury
focused on the nature of the crime and the severe and lasting
impact it had on Yost’s family. The jury heard the details of how
Lovell attempted to hire two people to murder Yost and eventually
murdered her himself. The State highlighted that Lovell took Yost’s
life to prevent her from testifying that he had raped her. The State
also offered witnesses who opined that Lovell was untruthful,
manipulative, cold, calculating, and an escape risk.
¶127 Lovell attempted to counter this testimony, in part, with
two experts opining and explaining why they believed Lovell
experienced diminished culpability. But the overwhelming
majority of Lovell’s mitigation evidence was testimony from
people who had met Lovell while he was in prison and believed
that he was remorseful for his crime and that he had taken steps to
change his life.
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¶128 Therefore, the primary dispute during Lovell’s
sentencing proceedings was the depth of his remorse and the
sincerity of his efforts to rehabilitate. While remorse is not
something that can be determined for certain, the improper
religious testimony gave jurors a proxy to use in lieu of personally
deciding whether Lovell was remorseful. The religious testimony
told them they could look to the Church and its leaders who,
Newton’s testimony suggested, had evidently determined that
Lovell had not shown the requisite remorse for readmittance to
Church membership. Newton, together with the State’s questions,
informed the jury that Lovell would have to repent and show
remorse to be readmitted. The State’s questioning and Newton’s
responses invited the jury to conclude that Lovell had not been
readmitted into the Church because he was not sufficiently
remorseful.
¶129 This highlights why many courts have ruled that certain
religious testimony can distort a jury’s deliberations. See, e.g.,
Bennett, 92 F.3d at 1346; Hill, 952 P.2d at 693; Romine, 253 F.3d at
1358; Chambers, 599 A.2d at 644; Chmiel, 777 A.2d at 467. It calls on
jurors to rely on something other than their own consideration of
the evidence to answer the difficult questions put to them. See
Caldwell, 472 U.S. at 328–29; see also Chandler v. Florida, 449 U.S. 560,
574 (1981) (“Trial courts must be especially vigilant to guard
against any impairment of the defendant’s right to a verdict based
solely upon the evidence and the relevant law.”). And Newton’s
testimony altered the entire evidentiary picture by weakening all
the evidence Lovell presented about his remorse and efforts to
rehabilitate. See Strickland, 466 U.S. at 695–96 (explaining that
“[s]ome errors will have had a pervasive effect on the inferences to
be drawn from the evidence, altering the entire evidentiary
picture”).
¶130 Even though Lovell’s counsel attempted to mitigate the
harm from the excommunication testimony by eliciting testimony
from Newton and the other bishops that they were not aware if
Lovell had sought readmittance, the harm had already been done.
Because Newton’s excommunication testimony went to the entirety
of Lovell’s mitigation argument, it could not be isolated. And the
follow-up testimony only served to remind the jury of the State’s
implicit assertion—that Lovell had not sufficiently changed
because he had not sought to repent and rejoin the Church. And,
perhaps more to the point, the fact that Lovell had not sought to be
39
STATE v. LOVELL
Opinion of the Court
readmitted suggested to the jury that Lovell knew he could not
convince the Church’s First Presidency that he was truly
remorseful.
¶131 The prejudicial nature of Newton’s testimony is even
more acute considering our State’s religious demographics. 24
¶132 The prosecution’s cross-examination of Newton
suggested to the jurors that they could look to the Church and its
leaders, who “are the living oracles of God” according to Church
doctrine. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,
TEACHINGS OF THE LIVING PROPHETS STUDENT MANUAL 45 (2016)
(quoting Joseph Fielding Smith, The First Presidency and the Council
of the Twelve, 69 THE IMPROVEMENT ERA 977, 978 (1966)). A juror who
was a faithful Church member might reasonably have believed that
Lovell’s excommunication and the fact that he had not been
readmitted could be interpreted as evidence of divine guidance
that he was not remorseful. Or, at the very least, that Lovell did not
believe that he could demonstrate to the First Presidency that his
remorse was genuine.
¶133 Under different circumstances, our court of appeals has
found that testimony of a defendant’s excommunication likely had
a prejudicial effect on a conviction in part because of Utah’s unique
religious demographics. See State v. Hood, 2018 UT App 236, ¶ 25
n.6, 438 P.3d 54. In Hood, the court of appeals held that testimony
of a defendant’s excommunication from the Church was
improperly admitted. Id. ¶ 52. The court concluded that there was
a reasonable probability that this testimony affected the outcome of
the trial. Id. ¶ 57. The court’s conclusion rested, at least in part, on
the fact that a Utah jury is “likely to be familiar with the type of
conduct that would trigger church discipline.” Id. ¶ 25 n.6.
¶134 In some instances, general demographic information on
its own might be sufficient to undermine our confidence in the
proceedings because there is a reasonable probability that at least
one juror would be swayed by improper religious testimony. But
__________________________________________________________
24 At the time Lovell was sentenced, a majority of Utahns
considered themselves to be members of the Church. See Religious
Landscape Study, PEW RSCH. CTR., http://www.pewforum.org/reli
gious-landscape-study/state/utah/ [https://perma.cc/W9L3-
R2ZK].
40
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we need not rely on just general demographics in this case. The
record before us indicates that at least two of the seated jurors were
familiar with the Church’s religious materials, with one indicating
that they read “anything on www.lds.org” and another saying they
read the “Ensign.” 25 And while not specific to the Church, another
juror indicated that they read “religious based material.”
¶135 The record developed at the 23B hearing establishes that
the State believed that there would be members of the Church on
the jury. 26 The prosecutor who questioned Newton testified at the
23B hearing that “in the State of Utah there are many individuals
who are members of the Church . . . and so some of the members of
the jury, very likely, would be affiliated with that particular faith.”
The prosecutor evidently decided that the religious testimony he
elicited from Newton would be persuasive to the jury because of
their apparent religious affiliation, and we have no reason to
conclude otherwise. 27
¶136 At its core, this religious testimony called on the jury to
assign Lovell’s mitigation evidence little weight because they could
look to Lovell’s Church status to determine that Lovell lacked
__________________________________________________________
25 Ensign magazine was a monthly magazine the Church
published from 1971 until 2021 that contained material and articles
related to the Church and its teachings. See Sean P. Means, LDS
Church Phasing Out Ensign, Its 50-Year-Old Magazine, for New Global
Publications, SALT LAKE TRIB. (Aug. 14, 2020),
https://www.sltrib.com/religion/2020/08/14/lds-church-
phasing-out/ [https://perma.cc/2RWE-MJ7G].
26 The prosecutor “was . . . in a much better position to gauge
how these particular . . . jurors might respond to this evidence than
we are.” See State v. Vallejo, 2019 UT 38, ¶ 79, 449 P.3d 39.
27 We also find it informative that the State did not, after
Newton’s testimony had concluded, elicit any similar testimony
from Lovell’s other bishops, who were all questioned by different
prosecutors than the one that examined Newton. At the 23B
hearing, one of the senior prosecutors testified that they made “an
on-the-fly decision” to change who would cross-examine the other
bishops because they “didn’t want to go down the road” that they
did with Newton’s cross-examination. This suggests that the State
immediately recognized the prejudicial nature of the testimony it
had elicited from Newton.
41
STATE v. LOVELL
Opinion of the Court
remorse and that he had not changed. The testimony impermissibly
risked diminishing the jury’s sense of responsibility for
determining the appropriateness of death, and it is reasonably
likely that a juror either based their sentencing decision on this
testimony or used Newton’s testimony to discount the mitigation
evidence Lovell presented. Our confidence in the sentencing
hearing has been undermined because there is a reasonable
probability that at least one juror would have opposed imposition
of the death penalty if the jury had not been exposed to this
evidence. Lovell has met his Strickland burden of establishing that
his counsel’s errors prejudiced his sentencing.
CONCLUSION
¶137 Lovell has not shown that his conviction for the murder
of Joyce Yost should be overturned. We affirm his conviction.
¶138 Lovell’s trial counsel rendered ineffective assistance
when they failed to effectively object, or otherwise sufficiently
respond, to testimony regarding Lovell’s excommunication from
the Church of Jesus Christ of Latter-day Saints and regarding the
need for him to repent and demonstrate remorse to the Church’s
First Presidency before it could readmit him to membership. This
evidence prejudiced Lovell’s ability to have a jury fairly weigh the
aggravating and mitigating factors, as Utah’s capital sentencing
statute requires, before it sentenced him to death. We vacate
Lovell’s sentence and remand for further proceedings.
42