State of Utah v. Lovell
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff and Appellee,
v.
Douglas A. Lovell,
Defendant and Appellant.
No. 930439
F I L E D
April 23, 1999
1999 UT 40
---
Second District, Weber County
The Honorable Stanton M.
Taylor
Attorneys:
Jan Graham, Att'y General,
Thomas B. Brunker, Asst Att'y General, Salt Lake City, William F. Daines,Gary
R. Heward, Ogden, for Appellee
James C. Bradshaw, Salt
Lake City, Karen A. Chaney, Colorado Springs, for Appellant
---
DURHAM, Associate Chief Justice:
¶1
Appellant Douglas Anderson
Lovell (Lovell) appeals from a conviction of aggravated murder and a sentence
of death. Lovell contends that (1) his Sixth Amendment right to counsel
was violated because trial counsel had a conflict of interest due to personal
and business associations with the prosecutor, (2) his right to counsel
was also violated because the trial court failed to conduct an inquiry
into complaints Lovell made about his court-appointed attorney, (3) he
was denied due process of law because the trial court unconstitutionally
applied the aggravating circumstances in the sentencing stage, and because
Utah's death penalty scheme is unconstitutional, (4) he received ineffective
assistance of counsel because trial counsel did not object to the allegedly
unconstitutional application of the aggravating factors during sentencing
and did not challenge the death penalty scheme. We affirm.
FACTS
¶2
On June 28, 1993, Lovell
pled guilty to the aggravated murder of Joyce Yost (Ms. Yost). Lovell waived
his right to be sentenced by a jury and the State sought the death penalty.
In a memorandum decision issued on August 5, 1993, the trial court held
that (1) the aggravating circumstances outweighed the mitigating circumstances
beyond a reasonable doubt, and (2) death was appropriate beyond a reasonable
doubt. The trial court therefore sentenced Lovell to death.
I. THE CRIMES
¶3
On April 4, 1985, Lovell,
while sitting in a stolen car, observed Ms. Yost leaving a restaurant.
When she drove away alone, Lovell followed Ms. Yost to her home and approached
her in her driveway. Lovell invited her to have a drink with him but she
refused. Lovell then forced her into the stolen car and took her to his
home in Clearfield, where he raped her twice and forced her to commit sodomy.
Ms. Yost reported the crimes to the police, and the State charged Lovell
with aggravated kidnaping, aggravated sexual assault, and forcible sodomy.
¶4
In late April or early May,
while awaiting a preliminary hearing on the charges against him, Lovell
contacted a friend from a former prison term, William Wiswell (Billy Jack).
Lovell offered Billy Jack $600 to kill Ms. Yost, and Billy Jack agreed.
On May 4, 1985, Lovell and Billy Jack burglarized a home and took several
guns with which they intended to murder Ms. Yost. Lovell and Billy Jack
chose a night for the murder, and Billy Jack waited at Ms. Yost's apartment
to kill her. Billy Jack did not carry out the murder, however, because
Ms. Yost did not return home that night.
¶5
Sometime after this failed
attempt, Billy Jack left town without telling Lovell. With the preliminary
hearing approaching, Lovell continued to plan Ms. Yost's murder. Although
Lovell had been separated from his wife, Rhonda Buttars (Buttars) at the
time of the rape, Lovell and Buttars had resumed living together after
Lovell was charged with the Yost rape. On two occasions, Lovell had Buttars
drive him to Ms. Yost's apartment to find a way to get inside. On one of
these occasions, he discovered an unlocked kitchen window. He then asked
another friend from prison, Tom Peters (Peters), to murder Ms. Yost. Peters
agreed to murder Ms. Yost for $600 to $800. Lovell obtained the money through
a fraudulent workers compensation claim and gave it to Peters. Lovell told
Peters how to get into Ms. Yost's apartment, and on the planned night,
Lovell went to a family gathering to establish an alibi. Peters, however,
did not kill Ms. Yost but spent the money on heroin. The preliminary hearing
was held as scheduled. Ms. Yost testified against Lovell, and the court
bound Lovell over for trial.
¶6
Sometime after Peters failed
to perform the murder, Lovell decided to murder Ms. Yost himself. On August
10, 1985, Buttars drove Lovell to Ms. Yost's apartment and dropped him
off around midnight. Buttars then drove back home and went to bed. Lovell,
wearing a stocking on his head, broke into Ms. Yost's apartment through
the unlocked kitchen window. He went to Ms. Yost's bed where she was asleep,
put his hand over her mouth and held a knife over her. Ms. Yost started
when she awoke and cut her hand on the knife. Her blood soaked the sheets
and mattress.
¶7
Ms. Yost pleaded with Lovell
for her life and offered to drop the sexual assault charges. Lovell told
Ms. Yost he would not kill her and gave her some Valium. Lovell then gathered
up the blood-soaked sheets, turned over the mattress, and made the bed
with fresh linens. He packed a suitcase to make the police believe Ms.
Yost had left of her own accord. Lovell then drove Ms. Yost to a canyon
outside of Ogden and strangled her. Lovell covered Ms. Yost's body with
leaves and left her on the mountainside.
¶8
Some time after the murder,
Lovell took a shovel back to the murder site, stole Ms. Yost's watch, and
buried her body. Police never found Ms. Yost's body. On December 13, 1985,
Lovell was convicted of the kidnapping and sexual assault of Ms. Yost based
on her preliminary hearing testimony.
II. THE MURDER INVESTIGATION AND GUILTY PLEA
¶9
Lovell was the primary suspect
when Ms. Yost disappeared, but the investigation did not make any progress
for several years. In January 1988, Detective Terry Carpenter (Carpenter)
became the lead detective on the case. In April 1991, Carpenter contacted
Buttars, who had divorced Lovell in 1990. Carpenter offered Buttars immunity
if she testified about the murder provided Buttars had not been the one
to "pull the trigger." Buttars then told Carpenter about the murder and
that Lovell had strangled Ms. Yost.
¶10
After Buttars' admission,
Detective Carpenter visited Lovell in prison in May 1991 to question him
about Ms. Yost's disappearance. Lovell refused to talk to Carpenter, but
after Carpenter's visit, he began calling Buttars asking her to visit him
at the prison. At the request of Detective Carpenter, Buttars recorded
her conversations with Lovell during visits in June 1991 and January 1992.
Lovell made incriminating statements in both conversations. For example,
Lovell speculated that Billy Jack might have given police information about
the murder, but that "Billy doesn't know that I did it. Billy doesn't know,
neither does Tom. Nobody knows. You [referring to Buttars] was the only
one. You're the only one that can get on the stand and say, 'that's him.'"
Lovell also stated, "I committed a first degree felony to cover another
felony. It's the death penalty . . . I premeditated - premeditated. I planned
to kill Joyce. I planned to end Joyce's life. That's premeditated capital
homicide." During these discussions, Lovell did not disclose the location
of Ms. Yost's body. On May 14, 1992, the State charged Lovell with Ms.
Yost's murder.
PROCEDURAL HISTORY
¶11
On December 10, 1992, Lovell's
appointed trial counsel, John Caine (Caine) moved to suppress Lovell's
recorded statements and Buttars' testimony. The trial court denied the
motion, and Lovell petitioned for interlocutory review. The petition for
interlocutory appeal was denied on March 26, 1993.
¶12
While the petition for interlocutory
appeal was pending, Caine and the prosecution discussed the possibility
of a plea bargain. Some time in January 1993, the prosecutor, Reed Richards
(Richards), indicated to Caine that the only basis upon which they might
fashion an agreement would be the returning of Ms. Yost's body to her family.
When Caine gave this information to Lovell, Lovell assured Caine that he
could locate Ms. Yost's body "in a snowstorm." No agreement was reached,
however, and in February of 1993, Richards was injured and incapacitated.
He subsequently left the prosecutors office and was not involved in the
case any time after early February 1993.
¶13
After Richards left the
case, Caine continued to work with the prosecution toward a plea agreement.
On March 29, 1993, Lovell appeared before the trial court to discuss the
denial of his interlocutory appeal. Lovell contends that he believed he
had a plea agreement and would plead guilty on that date; however, no agreement
was reached at that time. On April 14, 1993, the trial date was set for
June 28, 1993, but the parties agreed to try to resolve the case before
trial. On June 17, 1993, Lovell signed a memorandum of understanding, which
required him to lead police to Ms. Yost's remains, to plead guilty to aggravated
murder, and to accept a sentence of life without the possibility of parole.
In exchange, the State agreed not to introduce any evidence in support
of the death penalty and to dismiss the aggravated kidnapping charge. The
agreement also provided that Lovell's failure to find the body would void
the agreement.
¶14
Meanwhile, on May 7, 1993,
the trial court received a letter from Lovell. In the letter, Lovell stated
he wanted to defend himself. Lovell claimed he had confessed to Ms. Yost's
murder to Detective Carpenter in reliance on Caine's representation that
the parties had reached a plea agreement at his March hearing. Lovell confessed
to Carpenter on the day of the March hearing during a chance meeting with
the detective. Although Carpenter discouraged the conversation because
Lovell's counsel was not present, Lovell said, "I can talk to you if I
want." At that time, Lovell also told Carpenter that he had already confessed
the murder to his father.
¶15
By the June trial date,
after numerous attempts using his best efforts, Lovell had failed to lead
police to Ms. Yost's remains. Although that failure voided his agreement
to plead guilty, Lovell pleaded guilty to aggravated murder anyway. The
trial court accepted the guilty plea, and Lovell waived his right to be
sentenced by a jury.
I. SENTENCING PHASE
¶16
The trial court found that
the evidence established the following statutorily-defined aggravating
circumstances: (1) Lovell murdered Ms. Yost while committing an aggravated
burglary and aggravated kidnaping (Utah Code Ann. § 76-5-202(d));
(2) Lovell murdered Ms. Yost for the personal gain of avoiding incarceration
(Utah Code Ann. § 76-5-202(f)); (3) defendant had a prior conviction
for the violent felony of aggravated robbery (Utah Code Ann. § 76-5-202(h));
and (4) Lovell murdered Ms. Yost to prevent her from testifying at trial
and in retaliation for providing evidence against defendant (Utah Code
Ann. § 76-5-202(i)). The trial court did not find that the evidence
satisfied the "especially heinous" (Utah Code Ann. § 76-5-202(q))
or "murder-for-hire" (Utah Code Ann. § 76-5-202(g)) aggravators, but
did rely on Lovell's "cold-blooded" planning and his contracting with two
other men to kill Ms. Yost as additional aggravating factors.
¶17
The defense presented four
theories in mitigation: (1) sentencing Lovell to death would punish him
disproportionately to Ms. Buttars, who had received immunity; (2) Lovell's
difficult childhood led to his criminal activities; (3) Lovell had done
all he could to return Ms. Yost's body to her family; and (4) Lovell had
become a better person during his incarceration and had much to offer society.
Lovell focused primarily on his third and fourth arguments, contending
that he was truly penitent and had become a better person during his incarceration.
In rebuttal, the State argued that Lovell's attempts to change did not
begin until after his arrest on the murder charges, and that Lovell only
wanted to build a mitigation case.
¶18
The trial court analyzed
the evidence and recognized that the most serious issue at sentencing was
whether defendant was a changed person. The trial court observed that Lovell's
willingness to cooperate had come only when it was clear the State had
such overwhelming evidence against him that he had only a remote chance
of prevailing at trial or sentencing. Therefore, the trial court concluded
that no statutory mitigating factors were present and sentenced
Lovell to death.
II. RULE 23(b) REMAND
¶19
After his sentencing, Lovell
requested a withdrawal of his guilty plea and appealed his sentence to
this Court. Lovell sought a limited remand in order to develop a record
on ineffective assistance of counsel issues and to allow a hearing on his
plea withdrawal request. In January 1995, pursuant to Rule 23B of the Utah
Rules of Appellate Procedure, this Court granted the motion with regard
only to the issue of "defendant's allegation of conflict of interest between
defense counsel and the Weber County attorney." The district court held
evidentiary hearings and heard argument from the parties in 1996 and 1997,
and entered its findings of fact on March 21, 1997.
ANALYSIS
¶20
On appeal, Lovell claims
that trial counsel's associations with one of the prosecutors caused a
conflict of interest, and that the trial court's failure to inquire into
Lovell's complaints about counsel violated his Sixth Amendment rights.
Lovell also claims he was denied due process in the sentencing phase, and
that counsel's failure to object to the sentencing process constituted
ineffective assistance.
I. CONFLICT OF INTEREST
¶21
Lovell argues that his trial
counsel had extensive personal associations with prosecutor Reed Richards
and that the relationship denied Lovell his constitutional right to conflict-free
counsel.
¶22
The right to conflict-free
representation is guaranteed by the Sixth Amendment. See Holloway
v. Arkansas, 434 U.S. 474 (1977); United States v. Burney, 756 F.2d 787, 790 (10th Cir. 1985). However, in order to show this right was
violated, Lovell must establish both that Caine had an actual conflict
of interest, and that the conflict adversely affected Caine's performance.
See State v. Taylor, 947 P.2d 681, 686 (Utah 1997). To establish
an actual conflict of interest, Lovell must show that Caine had to make
choices that would advance his own interests to the detriment of Lovell's.
See Id. Having remanded this case for an evidentiary hearing
on the conflict issue under Rule 23B of the Utah Rules of Appellate Procedure,
we defer to the trial court's findings of fact but treat the conflict issue
as a question of law. See State v. Taylor, 947 P.2d at 685
(Utah 1997) (deferring to trial court's findings after 23B remand).
¶23
The trial court found that
the record does not establish that Caine had an actual conflict nor that
any conflict adversely affected Caine's performance. Lovell's claims of
conflict stem from a lengthy personal and professional relationship between
Caine and Richards. Caine and Richards jointly owned real estate properties;
Richards assisted Caine in preparing his personal and business tax returns;
Caine had participated in Richards' campaigns for county attorney; Caine
and Richards had previously taught college courses together and had practiced
law together. Lovell also contends that Richards had access to Caine's
client files during the time of trial. Also, at that time, Caine's partners
were relatives of Richards; Richards' office was in the same building as
Caine's firm although on a separate floor; and Richards had access to the
copy machine belonging to Caine's firm.
¶24
Although Richards and Caine
were friends and business associates, Lovell fails to establish that Caine's
ties to Richards forced Caine to make any choice that advanced his interests
to the detriment of Lovell's. Determining whether any conflict adversely
affected Caine's performance turns on whether (1) other counsel likely
would have approached the case differently and (2) a tactical reason other
than the alleged conflict existed for Caine's decisions. See State
v. Webb, 790 P.2d 65, 76 (Utah Ct. App. 1990). The record shows that
because the State had such a strong case against Lovell, it was in Lovell's
best interest to work toward a plea agreement with the prosecution. Caine
did everything he could to obtain a favorable plea bargain, and it is not
apparent that other counsel could or would have approached the case differently.
Furthermore, Caine's decisions were obviously guided by the tactic of trying
to avoid the death penalty. Because Lovell did not establish that other
counsel would have approached the case differently or that Caine's decisions
were not guided by professionally acceptable tactical reasons, Lovell fails
to establish that Caine's performance was adversely affected in any way
by his association with Richards.
¶25
At the 23B hearing, the
trial court found that Caine had discussed with Lovell his relationship
with Richards. Although Caine did not specifically discuss his relationship
with Richards' family in the law firm, his and Richards' joint property
holdings, or their joint teaching and tax preparation relationships in
the past, Caine explained to Lovell that Richards was his good friend.
The trial court found that Lovell knew about Caine's relationship with
Richards and thought that the relationship could actually benefit his defense.
The trial court also found that Richards did not have access to Caine's
files and that the files were kept in a part of the building to which Richards
did not have access. There is nothing in the record that suggests Caine
or Richards acted improperly or that Caine could have gained any benefit
by acting to the detriment of Lovell's interests in his dealings with the
prosecution.
¶26
Lovell also claims that
Caine's represention of him in this case created the "appearance of impropriety."
However,
Taylor makes clear that an actual conflict is required
to show ineffective assistance of counsel. See 947 P.2d at 686.
Lovell fails to demonstrate an actual conflict of interest that adversely
affected Caine's performance; Lovell's conflict claim therefore fails.
II. FAILURE TO INQUIRE
¶27
Lovell argues that the trial
court's failure to inquire into his dissatisfaction with counsel was reversible
error. Although a failure to inquire into dissatisfaction with counsel
is error, we find that the facts of this case do not warrant reversal.
As the Utah Court of Appeals has properly held, when a defendant expresses
dissatisfaction with counsel, a trial court "must make some reasonable,
non-suggestive efforts to determine the nature of the defendant's complaints."
State
v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987) (holding that
trial court's failure to inquire deeply into defendant's reasons for dissatisfaction
with counsel was not reversible error where defendant's complaints were
insubstantial). We agree with the court of appeals and emphasize that trial
courts in all cases should conduct specific inquiry. Although the trial
court should have addressed Lovell's letter on the record in this case,
we conclude that the failure to inquire was not harmful to Lovell given
the circumstances of this case.
¶28
Lovell's letter can be interpreted
in two ways: a request to represent himself, or a request for substitute
counsel. Either way, the failure to inquire does not warrant reversal.
If we treat Lovell's letter as a request to proceed pro se, the trial court's
failure to inquire does not violate Lovell's Sixth Amendment right to self-representation.
It is clear that a defendant may waive the right to counsel. See
United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990). It
is also well established that before allowing a defendant to proceed pro
se, the judge "must ensure and establish on the record that defendant 'knows
what he is doing and [that] his choice is made with eyes open.'" See
id. (quoting Faretta v. California, 422 U.S. 806, 835 (1975)).
The purpose of this requirement is to ensure that the defendant has a sense
of the "magnitude of the undertaking and the hazards inherent in self-representation"
when choosing to proceed pro se. See id. (quoting Von
Moltke v. Gillies, 332 U.S. 708 (1948)). The failure to inquire is
reversible when the defendant proceeds pro se without making a "voluntary,
knowing and intelligent" waiver. See Allen, 895 F.2d at 1578
(reversing conviction when defendant was not represented by counsel and
trial court had not ensured a knowing, voluntary waiver). Since Lovell
did not represent himself but was represented by counsel, the trial
court's failure to inquire does not require reversal on this theory.
¶29
Likewise, if we view the
letter as a request for substitute counsel, the failure to inquire is not
reversible error. This case is similar to United States v. Young,
482 F.2d 993 (5th Cir. 1993). During trial in that case, the defendant
claimed that his attorney had disclosed confidential defense matters to
the prosecution. The trial judge summarily rejected this contention based
on his long-standing professional acquaintance with the attorney in question.
In reviewing the failure to inquire into defendant's seemingly substantial
complaint about counsel, the circuit court held that, "[n]ormally, failure
to conduct such an inquiry constitutes reversible error." Id. at
995 (citing United States v. Morrissey, 461 F.2d 666, 669 (2d Cir.
1972)). However, because the record as a whole reflected that the defendant
"received vigorous and able representation at trial," the circuit court
found that no prejudice resulted from the failure to conduct an inquiry,
and reversal was not required.
Id. at 669-70.
¶30
Likewise, in Pursifell,
supra, the defendant claimed that counsel had not prepared adequately
for his case. The defendant based this allegation on the fact that he had
met with counsel just once before trial. The Pursifell court held
that the trial court's failure to inquire deeply into this allegation did
not constitute reversible error since a single meeting was not, on its
face, indicative of a lack of preparation in the case. 746 P.2d at 273-74.
Based on the record, the Pursifell court held that defendant's "dissatisfaction
with counsel was not so substantial as to rise to a constitutional level
requiring the appointment of new counsel." Id. at 274. Therefore,
as in Lovell's case, "[w]hile it might have been preferable to delve deeper
into defendant's arguable claim of inadequate preparation, the failure
to do so was neither a constitutional violation nor an abuse of discretion."
Id.
at 274.
¶31
Lovell's only expression
of dissatisfaction is found in his letter to the trial court. In the letter,
Lovell claimed he had had a "misunderstanding" with counsel regarding his
plea agreement. Lovell asserted he had confessed to Ms. Yost's murder to
several people because he believed he had already reached a plea agreement
with the State. Lovell also mentioned an earlier misunderstanding with
counsel regarding another failed plea agreement. However, as the trial
court found, no plea agreement had been finalized, and Lovell had no reason
to believe that an agreement had been reached. As in Pursifell,
Lovell's allegations do not rise to a constitutional level requiring the
appointment of new counsel. It is well established that to warrant substitution
of counsel, a defendant "must show good cause, such as a conflict of interest,
a complete breakdown in communication or an irreconcilable conflict which
leads to an apparently unjust verdict." Young, 482 F.2d at 995 (citing
Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970)). Lovell's claims
of misunderstandings do not amount to a conflict of interest or a complete
breakdown in communication.
¶32
In fact, after he sent the
letter to the trial court, Lovell appeared to be satisfied with counsel.
Less than one month after the court received the letter, Lovell appeared
at a pretrial conference with counsel and made no mention of the letter
or of any complaints about his counsel. Similarly, less than two months
after sending the letter, Lovell had a plea colloquy with the trial court
in which he affirmed that he was satisfied with counsel and that counsel
had performed competently.
¶33
Furthermore, the record
does not show that failure to substitute counsel resulted in an apparently
unjust verdict. The record shows that Lovell had already implicated himself
in the murder in recorded statements long before he was charged with the
crime. This evidence was to be used at trial. Given these facts, the record
shows that counsel vigorously and ably represented Lovell. Because the
evidence was so overwhelmingly conclusive regarding Lovell's guilt, counsel
did everything he could to obtain a favorable plea agreement for Lovell.
Counsel even obtained a preliminary agreement with the State in which Lovell
would receive a life sentence with the possibility of parole if Lovell
could produce Ms. Yost's remains. Counsel based this agreement on Lovell's
representation that he could find Ms. Yost's body "in a snowstorm." Lovell
knew that his failure to find Ms. Yost's remains would void the agreement.
¶34
In addition, Lovell claimed
in his letter that a misunderstanding regarding a plea agreement at his
hearing on March 29, 1993 caused him to confess to the murder to several
people. Lovell now claims that these confessions compromised his position.
The trial court found, however, that there was no factual predicate for
Lovell's claim, because no offer of settlement was pending on that date,
and Lovell was never told otherwise. Furthermore, Lovell knew that any
agreement would require him to produce Ms. Yost's body before he received
any sentencing concession. And yet, before any agreements had been reached,
and before he had attempted to find the body, Lovell confessed to Ms. Yost's
murder. It is apparent from the record that Lovell could not have prevailed
at trial or received a lesser sentence even without these confessions,
given the facts of his crime and the evidence against him.
¶35
The trial court did not
violate Lovell's Sixth Amendment right to counsel by not conducting an
inquiry regarding the necessity for substitute counsel. There is nothing
in the record to suggest an irreconcilable conflict of interest or a complete
breakdown of communication between Lovell and Caine. Also, there is no
indication that had an inquiry been conducted or had counsel been substituted,
the outcome would have been any better for Lovell. Therefore, the failure
to inquire was harmless error.
III. SENTENCING
¶36
Lovell argues that he was
denied due process of law during the sentencing phase of his conviction.
He claims: (1) the Utah Death Penalty Scheme is unconstitutional because
it fails to narrow the class of persons eligible for the death penalty
and to channel the sentencer's discretion, and the "personal gain" (Utah
Code Ann. § 76-5-202(1)(f)) and "especially heinous" (Utah Code Ann.
§ 76-5-202(1)(q)) aggravators are unconstitutionally vague and overbroad;
(2) the trial court unconstitutionally applied the "especially heinous"
(Utah Code Ann. § 76-5-202(1)(q)) and "murder for hire" (Utah Code
Ann. § 76-5-202(1)(g)) aggravators in this case; (3) the trial court
improperly applied both the "personal gain" (Utah Code Ann. § 76-5-202(1)(f))
and "killing a witness" (Utah Code Ann. § 76-5-202(1)(i)) aggravators
to the same underlying acts; and (4) trial counsel rendered ineffective
assistance by failing to object to the sentence imposed by the trial court.
¶37
Lovell did not raise any
constitutional challenges in the trial court. However, in a death penalty
case,
[t]his Court will
review errors raised and briefed on appeal in death penalty cases, even
though no proper objection was made at trial, but will reverse a conviction
based upon such errors only if they meet the manifest and prejudicial error
standard. In addition, this Court has the power to notice manifest ("palpable")
error apparent in the record and correct a conviction based upon the same
if the error is prejudicial, even though such error is not objected to
at trial or assigned on appeal.
State v. Carter, 776 P.2d 886, 888 (Utah 1989) (citing 5 Am.Jur.2d Appeal & Error, §
901, at 338 and cases cited therein). Under this standard, we find that
reversal is not warranted.
UTAH'S DEATH PENALTY SCHEME
¶38
Lovell argues that the Utah
death penalty statute insufficiently narrows the class of persons eligible
for the death penalty. However, the constitutionality of Utah's death penalty
scheme has already been considered and upheld by this Court. State v.
Young, 853 P.2d 327, 336-38 (Utah 1993). In
Young, a majority
of this Court(1) held that under both the
state and federal constitutions, "the death penalty under the Utah statutory
scheme is constitutional." Id. at 337-38. Furthermore, the statute's
constitutionality under the federal constitution has been upheld by the
Tenth Circuit. See Andrews v. Shulsen, 802 F.2d 1256, 1261-62
(10th Cir. 1986), cert. denied, 485 U.S. 919 (1988). Since this
issue has already been decided, we will not readdress it at this time.
¶39
Lovell further argues that
the "personal gain" and "especially heinous" aggravators are facially vague
and overbroad. The constitutionality of the "personal gain" aggravating
circumstance has been challenged and upheld on federal grounds. See
Andrews v. Shulsen, 600 F. Supp. 408, 424 (D. Utah 1984) (relying
on "other personal gain" as one of the aggravating circumstances at the
guilt phase), aff'd, 802 F.2d 1256 (10th Cir. 1986). In Andrews,
the district court held that the "personal gain" aggravator constitutionally
narrowed the class of persons eligible for the death penalty after defining
the "personal gain" circumstance as a "killing so as to gain a substantial
advantage or to rid oneself of substantial difficulty [such as] to silence
a witness."
Andrews, 600 F. Supp. at 424.
¶40
Likewise, the constitutionality
of the "especially heinous" aggravating circumstance has been upheld by
this Court.
See State v. Tuttle, 780 P.2d 1203, 1217-18 (Utah
1989) (limiting construction of the "especially heinous" aggravating circumstance).
This Court has held that the limited construction of the "especially heinous"
circumstance adopted in Tuttle sufficiently narrowed the meaning
of the aggravating circumstance. Id. Because these issues have already
been resolved, the trial court committed no obvious error by not ruling
sua sponte that any part of the Utah death penalty scheme was unconstitutional.
APPLICATION OF "ESPECIALLY
HEINOUS" AND
"MURDER FOR HIRE" AGGRAVATORS
¶41
Lovell claims that the trial
court improperly applied both the "especially heinous" and the "murder
for hire" aggravating factors in the sentencing process. However, the trial
court did not find that the facts of Lovell's case met the "especially
heinous" circumstance. Instead, the trial court noted that the cold-blooded
nature of Lovell's crime probably did not meet the criteria for use of
the"especially heinous" aggravator but that it could be considered as aggravating
evidence under the provision allowing the court to consider "any evidence
in mitigation or aggravation." Utah Code Ann. § 76-3-207(2) (Supp.
1993). Therefore, even if the trial court had ruled erroneously on the
"especially heinous" circumstance, no harm was done. See State
v. Menzies, 889 P.2d 393, 405 (Utah 1994) (finding it doubtful that
the trial court relied on heinousness as an aggravator, but finding any
error harmless beyond a reasonable doubt because the trial court could
rely on the same evidence as a circumstance of the crime), cert. denied,
513 U.S. 1115 (1995).
¶42
Lovell also argues that
the trial court violated his due process rights by relying on the "especially
heinous" aggravator when it had not been alleged by the prosecution. Due
process requires the prosecution to allege a circumstance so that the defendant
has adequate notice to prepare a defense. SeeLankford v. Idaho,
500 U.S. 110, 120-28 (1991). However, Lovell has not shown that the alleged
lack of notice affected or impaired his preparation. In fact, he effectively
admitted all of the evidence that the trial court relied on regarding the
nature of his crime. This evidence could have been relied on as a general
aggravating circumstance, so again, any error is harmless beyond a reasonable
doubt.
¶43
Similarly, the trial court
did not rely explicitly on the "murder for hire" aggravating circumstance.
The trial court recognized that the individuals Lovell hired to kill Ms.
Yost did not carry out the murder, but further noted that, although the
circumstance may not meet the requirements of the "murder for hire" aggravating
circumstance, the court could still consider the evidence of the murder
contracts as having relevance to the sentence or penalty with the same
net effect. This was not error.
APPLYING TWO AGGRAVATORS TO THE SAME UNDERLYING ACTS
¶44
Lovell argues that the trial
court erred by concluding that the fact that Lovell murdered Ms. Yost to
prevent her from testifying against him made both the "personal gain" and
"killing a witness" aggravators applicable. Lovell claims that this violated
the constitutional prohibition against the "double-counting of a single
act of the defendant." Parsons v. Barnes, 871 P.2d 516 (Utah 1994),
cert.
denied, 513 U.S. 966 (1994).
¶45
Even if the trial court
wrongly counted the same fact for two different aggravators, any error
is harmless beyond a reasonable doubt. By weighing the totality of the
aggravating circumstances against the totality of the mitigating circumstances,
"not in terms of the relative numbers of the aggravating and mitigating
factors, but in terms of their respective substantiality and persuasiveness,"
the trial court found that death was appropriate beyond a reasonable doubt.
State
v. Wood, 648 P.2d 71, 83 (holding that sentencing authority must decide
how "compelling or persuasive the totality of the mitigating factors are
when compared against the totality of the aggravating factors"). Even if
only counted once, the motive for this murder was sufficiently egregious
to permit the imposition of the death penalty. See State v. Archuleta,
850 P.2d 1232, 1248 (Utah 1993) ("we can confidently say beyond a reasonable
doubt that even if the jury had not considered the invalid aggravator,
it would have returned a verdict of death"), cert. denied, 510 U.S. 979 (1993). The trial court found overwhelming aggravating evidence and
rejected all of Lovell's mitigation theories. As in Archuleta, leaving
out the "personal gain" aggravator would not have reduced Lovell's sentence,
so any error is harmless beyond a reasonable doubt.
INEFFECTIVE ASSISTANCE
¶46
Lovell claims that his trial
counsel performed ineffectively because he did not raise the constitutional
challenges to the specific aggravating circumstances that Lovell raises
on appeal. In order to prove his claim, Lovell must identify specific acts
or omissions by counsel which fell below an objective standard of reasonableness,
overcoming the presumption that counsel rendered constitutionally adequate
assistance.
See Strickland v. Washington, 466 U.S. 668, 687-88,
690 (1984). Furthermore, under Strickland, Lovell must also affirmatively
prove that the challenged acts or omissions undermine confidence in the
outcome of his trial. See Id. at 694. As we have discussed,
Lovell's counsel had no basis on which to challenge the constitutionality
of the death penalty statute, including the specific aggravators. The constitutionality
of the statute has been upheld by this Court, so counsel had no reason
to believe he could make a legitimate constitutional challenge. As we have
noted, the trial court could and did consider all the evidence in the case
under the general sentencing provision, without relying explicitly on the
specific aggravators as aggravators challenged by Lovell. Lovell
fails to establish that his counsel's failure to challenge the statutory
provisions fell below an objective standard of reasonableness. Therefore,
Lovell's claim does not overcome the strong presumption that counsel performed
adequately; Lovell's constitutional claims must fail.
CONCLUSION
¶47
Because we find that all
of Lovell's claims fail, we affirm his conviction and sentence of death.
---
Chief Justice Howe, Justice Stewart, Justice Zimmerman, and Justice Russon concur in Associate Chief Justice Durham's opinion.
1. The author still subscribes to the analysis in her dissent in State v. Young, which concludes that Utah's statute does not meaningfully narrow the class of death-eligible murders. See 853 P.2d at 399.
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