Petition for Writ of Certiorari — Utah v. Ott

Supreme Court

Ab Pee US:

\ No. to- 10-490 Gel 12 7010

OFFICE OF THE CLERK

In The

Supreme Court of the United States

STATH OF UTAH,

Petittoner.

MARK ANTHONY OTT,

Respondent

/

On Petition For Writ Of Certiorar:

To The Utah Supreme Court

+

PETITION FOR WRIT OF CERTIORARI

MAKK L. SHURTLEFE

Utah Attorney General

KIRK M. 'TORGENSEN

Chief Deputy Attorney General

LAURA B. DUPAIX*

Chief, Criminal Appeals Division

160 East 300 South, 6th Floor

Post Office Box 140854

Salt Lake City, UT 44114-0854

(801) 366-0180

lauradupaix@utah.gov

‘Counsel of Record

Counsel for Petittoner

COCKLE LAW BRIEF PRINTING CO) (KOO) 225 696

OR CALL COLLECT (402) 842 2B41

QUESTIONS PRESENTED

In Booth v. Maryland, 482 U.S. 496 (1987), this

Court held that the Eighth Amendment erected a per

se bar against a capital sentencing jury considering

two types of victim evidence: (1) “victim impact evi

dence,” which relates to the victim’s personal charac

teristics and the emotional impact. of the victim’s

murder on family members, and (2) the victim's

family members’ characterizations and opinions about

the crime, defendant, and appropriate sentence.

In Payne v. Tennessee, 501 U.S. 808 (1991), this

Court partially overruled Booth, holding that the

Eighth Amendment did not bar victim impact evidence

or the first type of victim evidence. Payne expressly

left unanswered whether the Eighth Amendment still

bars the second type of victim evidence.

The questions presented are:

1. Should this Court overrule the remaining part of

Booth holding that the Eighth Amendment erects a

per se bar against a victim’s family members’ charac-

terizations and opinions about the crime, defendant,

and appropriate sentence?

2. ‘To the extent that any part of Booth survives,

does 1t apply to a sentencing proceeding in which

death is not option?

Pag

QUESTIONS PRESENTED .... :

TABLE OF AUTHORITIES .. iv

OPINJONS AND ORDERG...........

JURISDICTION. .......cccccccccecceeseeeeseeeee

CONSTITUTIONAL PROVISIONS

INVOLVED...

STATEMENT OF THE CASE..............00000000+- 2

REASONS FOR GRANTING THE PETITION.. 1]

TABLE OF CONTENTS

This Court Should Answer the ‘Two

Decades-Old Question of Whether the

Kighth Amendment Continues to Bar

All Victim Opinion on the Crime, De

fendant’s Character, and Appropriate

sentence....... vers caxeetecccscce.

A. Booth’s blanket bar’ unnecessarily

excludes otherwise relevant. victim

pe a

B. The Decision Below Has Deepened an

Existing Conflict on Whether the

Kighth Amendment Continues to Bar

Victims From Offering an Opinion

on the Defendant’s Character and

cic iccccasscnccescccss

The Utah Supreme Court’s Decision to

Apply Booth in a Non-Death Sentencing

Proceeding is Directly Contrary to Booth

and the Clear Majority of Jurisdictions....

OA

On

af

TABLE OF CONTENTS

Il. Both Questions Presented Are of Nation

al Importance..

CONCLUSION

APPENDIX

Opinion of the Utah Supreme Court (Stat

Utah v. Mark Anthony Ott, 2010 UT 1.

P3d )

»f

j

App

Order Denying State’s Petition for Rehearing

(State of Utah v. Mark Anthony Ott,

Cast

No. 20040638-SC) .

App

)

>

'

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Booth v. Maryland, 482 U.S. 496 (1987)............ passim

Cooey v. Anderson, 988 F. Supp. 1066 (N.D.

I ae ee ce ye ee

Disotell v. Warden La. Corr. Inst. for Women,

2010 WL 2483420 (W.D. La. 2010)................00..0... 28

Kddings v. Oklahoma, 455 U.S. 104 (1982)............... 2

Rnmund v. Florida, 458 U.S. 782 (1982)............ 28

Gregg v. Georgia, 428 U.S. 153 (1976) ..0....secccecessseses. Pe

Hain v. Gibson, 287 F.3d 1224 (1LOth Cir. 2002) ........24

Hatcher v. Duckworth, 917 F.2d 1306 (7th Cir

BE oc ctecuacessxeis eS REO AME RIT (aesoEeTae eueainaeecaal 28

Hawkins v. Wong, No. Civ. S-96-1155, 2010

WL3516399 (E.D. Cal. Sept. 2, 2010).............. sented

Hooper v. Mullin, 314 F.3d 1162 (10th Cir.

| | SEO RRE NBER Be RAR e NODDY Ploy Tey ents Gal pan pe TURE NDE 24, 26

Ivey v. Catoe, 36 Fed. Appx. 718 (4th Cir.), cert.

cremated, BAS BS. Ch. BO GD vovcccecoscccccccnscecacnessescsss 25

Jackson v. Epps, No. 4:03-CV461-P, 2010 WI.

3853158 (N.D. Miss. Sept. 28, 2010)...................... 20

Lockett v. Ohio, 438 U.S. 586 (1978).....................0.. 19

Mahan v. Cate, No. CV 08-04699 ABC, 2009

WL 3244911 (C.D. Calif. Oct. 2, 2009) .........0.00000... 28

Parker v. Bowersox, 188 F.3d 923 (8th Cir.

1999), cert. dented, 529 U.S. 1038 (2000)............... 25

TABLE OF AUTHORITIES — Continued

Page

Payne v. Tennessee, 501 U.S. 808 (1991)............ passim

Razo v. Blair, No. 08-1106-PHX-NVW, 2010

WL 1433487 (D. Ariz. Feb. 11, 2010)................... BO

Skipper v. South Carolina, 476 U.S. 1 (1986) «2.2.0.0... 20

South Carolina v. Gathers, 490 U.S. 805 (1989) ....... L5

United States v. Horsfall, 552 F.3d 1275 (11th

Cir. 2008), cert. denied, 129 S.Ct. 2034 (2009).......28

United States v. Santana, 908 F.2d 506 (9th

en en re ee Ce 28

Woods v. Johnson, 75 F.3d 1017 (5th Cir. 1996)........ 25

Woodson v. North Carolina, 428 U.S. 280

2. SEARS a aoe earn RPL RNAI Sgr LPR APE Net one 28

Zant v. Stephens, 462 U.S. 862 (1983)................. 21,21

‘, ’ r ‘ ‘ ‘ . , ,

STATE CASES

Beck v. Commonwealth, 484 S.E.2d 898 (Va.

gh isp: ier Oe Re OR EMT Se RA NN ON NA 9 Ape ee, Ph 25

Conover v. State, 933 P.2d 904 (Okla. Crim.

WN, TOE Dv eevcvecxescaiixscexsvveais sbi hnbsdablobeieraivekteamteaee 26

Davis v. State, 315 S.W.3d 908 (Tex. App. 2010)....... 20

Ex Parte McWilliams, 640 So.2d 1015 (Ala.

SIN ss vad cuns uch bacrpexd -uxpusnsicaxvssieasre spielen ee ae 25

Kills on Top v. State, 15 P.3d 422 (Mont. 2000)......... 28

Ledbetter v. State, 933 P.2d 880 (Okla. Crim.

FRG BED saivesdcctacadessasvicexese eraccue ana 13, 25, 26

Vi

TABLE OF AUTHORITIES — Continued

Lynn v. Reinstetn, 68 P.38d 412 (Ariz. 2003) .. Sosvueccanel

Murphy v. State, 47 P.3d 876 (Okla Crim. App

2002), cert. denied, 538 U.S. 985 (2008).....25. 26. 27

People v. Ratzke, 625 N.E.2d 1004 (II]. 1993). 25

Randell v. State, 846 P.2d 278 (Nev. 1993)......... 28

State v. Fautenberry, 650 N.E.2d 878 (Ohio),

cert. denied, 516 U.S. 996 (1995)................ cout 25

State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995) ......29

State v. Harwell, 102 Ohio St. 3d 128, 807

NB. el SOO CZODE) oo... ccccece: =e é ee ae Seeac cease

State v. Jordan, _ S.W.3d . 2010 WL

ri © Seek TRE GO De ckeusUenéuwéucenccccvanccouccscallitl

State v. Koskovich, 776 A.2d 144 (N.J. 2001) ............25

State v. Middlebrooks, 995 S.W.2d 550 (Tenn

Ee ee ae ERE TERE aS Rn ae a

State v. Mundt, 873 N.E.2d 828 (Ohio 2007)........... 20

State v. Ott, 2010 UT 1, Sa a ene l

State v. Pirtle, 904 P.2d 245 (Wash. 1995), cert

denied, 518 U.S. 1026 (1996)......... 0.00... cece cece ceee mee,

State v. Searcy, 798 P.2d 914 (Idaho 1990)..... Co

State v. Tyler, 565 S.E.2d 368 (W. Va. 2002).............. 28

Turrentine v. State, 965 P.2d 955 (Okla. Crim.

App.), cert. denied, 525 U.S. 1057 (1998)............... 25

Ware v. State, 759 A.2d 764 (Md.), cert. dented,

ee Fo. RL CO) ccc nccaccccssocces Rccwty Me Rae! mee

TABLE OF AUTHORITIE

FEDERAL STAT!

STATE CONSTITUTIONAI

» Continued

Pie

PROVISION

STATUTES, AND RULES

18 Pa. Cons. Stat. Ann. § 11.201]

725 Il. Comp. Stat. 120/4

Ala. Code § 15-23-74

Ala. Const. art. I, § 6.01(a

Alaska Const. art. |

Alaska Stat. § 12.61.010(a)(9)

Ariz. Const. art. I]

Ariz. Rev. Stat. Ann. § 13-701.01

Ariz. Rev. Stat. Ann. § 13-4426.

Ark. Code. Ann. § 16-90-1112(a)(

Calif. Const. art. I, § 28(b)(8) ..

Calif. Penal Code Ann. § 1191.1

Colo. Const. art. I]

Colo. Rev. Stat. Ann. § 24-4.1-30:

Conn. Const. art. I ........

“>;

Conn. Gen. Stat. Ann. § 53a-39.

Del. Code Ann. tit. 11

1)

2.0

Page

TABLE OF AUTHORITIES — Continued

Fla. Const. art. |.

Fla. Stat. Ann. § 921.143

Ga. Code Ann. § 17-10-1.1

Idaho Code Ann. § 19-5306(1)

Idaho Const. art. |]

[ll]. Const. art. I.

Ind. Code Ann. § 35-40-5-5

Ind. Code Ann. § 35-40-5-6

Ind. Const. art. |

lowa Code Ann. § 915.21

Kan. Const. art. 15.

Kan. Stat. Ann. § 22-3424

Ky. Rev. Stat. Ann. § 421.520

La. Const. art. 1]

La. Rev. Stat. Ann. § 46°1844

Mass. Gen. Laws ch. 279.

Md. Code. Ann. § 11-402............

Md. Const. Declaration of Rights, art. 47(b)

Me. Rev. Stat. Ann. tit. 17-A § 1174

Mich. Comp. Laws Ann. § 780.763 to 765.

Mich. Const. art. |

Minn. Stat. Ann. § 611A.038

Miss. Code Ann. §

99-43-31 .....

1X

TABLE OF AUTHORITIES -- Continued

Page

Miss. Code Ann. § 99-43-33... 30

Miss. Const. § 26........ Aen 30

mao. Comet. Of%. I cccecsssacscses ae 30

NEO. Rev. Stat. © GOT ceccescecsssccccsess 7 30

Mont. Code Ann. § 46-18-115(4)(a).. 30

N.C. Cost. art. & sccssceceeaeees 30

N.C. Gen. Stat. Ann. § 15A-833(a) 30

N.D. Cent. Code Ann. § 12.1-34-02(14) 30

N.H. Rev. Stat. Ann. § 21........... 0)

N.H. Rev. Stat. Ann. § 651:4........ e 30, 31

N.J. Const. art. I.. md 30

N.J. Stat. Ann. § 2C:44-6.................. 30

Na. Conet. art. Bvcicccsneeee 30

N.M. Stat. Ann. § 31-26-4............ 30

N.Y. Crim. Proc. Law § 380.50..... * 30

Neb. Const. art. I, § 28(1).............. | 30

Neb. Rev. Stat. § 81-1848 ....... eae 30

Nev. Const. art. I, § 8(2)............. as | 30

Nev. Rev. Stat. § 176.015............. 30

Ohio Const. art. 1 ..:ssesaseeen vee 30

Ohio Rev. Code Ann. § 2930.13-14 ... a 30

Okla. Const. mrt. Bi ccccssseeee nas 30

Okla. Stat. Ann. tit. 21 § 142A-1......... a” 30

TABLE OF AUTHORITIES — Continued

Or. Const. art

Or. Kev. Stat

R.I. Const. art. ]

R.I. Gen. Laws Ann

»s.C. Code Ann. § 16-:

5.C. Const. art. |

S.D. Codified Laws § 24-15A-43

Tenn. Code Ann. § 40-38-202

Tenn. Code Ann. § 40-38-203

Tenn. Const. art. |

Texas Code Crim. Proc. Ann. art

Texas Const. art. |

Utah Code Ann. § 76-3-206 (West 2004)

Utah Code Ann. § 76-3-207 (West 2004)

Utah Code Ann. § 76-5-202 (West 2004)

Utah Code Ann. § 77-:

Utah Const. art. |

Va. Code Ann. § 19.2-11.01(4)(a) & § 19.5

Va. Const. art. |

Vt. Stat. Ann. tit

W. Va. Code Ann

Wash. Const

TABLE OF AUTHORITIES — Cont.nued

Wash. Rev. Code Ann. § 7.69.030 30

Wyo. Stat. Ann. § 1-40-203 30

OTHER WORKS CITED

Douglas E. Beloof. Constitutional Implication

rm }

of Crime Victims as Participants, 88 Cornel!

L. Rev. 282 (2003 ¢

PETITION FOR WRIT OF CERTIORARI

The State of Utah respectfully petitions for a writ

of certiorari to review the judgment of the Utah

Supreme Court in this case

«

OPINIONS AND ORDERS

The opinion of the Utah Supreme Court is re

ported at 2010 UT 1, P.3d (App. 1-33). The

order of the Utah Supreme Court denying the petition

for rehearing under review is unreported (App. 34)

e

JURISDICTION

The decision of the Utah Supreme Court was

entered on January 5, 2010. (App. 1). The State’s

petition for rehearing was denied on June 11, 2010

(App. 34). The State was granted an enlargement of

time until October 12, 2010 to file its petition. This

Court has jurisdiction under 28 U.S.C. § 1257(a)

—~¢

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., amend. VIII

Excessive bail shall not be required, nor ex

cessive fines imposed, nor cruel and unusual pun

ishments inflicted

Utah Code Ann. § 76-3-207(2) (West 2004

(a) In capital sentencing proceedings, evidence

may be presented on

(i) the nature and circumstances

crime;

(43) the defendant’s character, background.

history, and mental and physical condition;

Gil) the victim and the impact of the crime

on the victim’s family and community without com

parison to other persons or victims; and

iv) any other facts In aggravation or mit

gation of the penalty that the court considers relevant

to the sentence

(b) Any evidence the court considers to have

probative force may be received regardless of it

admissibility under the rules of evidence. The state’

attorney and defendant shall be permitted to present

argument for or against the sentence of death

STATEMENT OF THE CASE

1. Summary of Facts. At 2:30 a.m., September

1, 2002, Respondent Mark Anthony Ott cut the phone

lines to his estranged wife’s home. R. 1378:144, 199

Armed with a knife, lighters, and Coleman fuel,

he then burst into her home. R. 1374:174-76:

R. 1375:148-49, 151-53, 156. Ott went directly to his

wife’s bedroom where he stabbed her boyfriend, Allen

Lawrence, 23 times. R. 1375:15-19. When Ott’s teen

aged stepdaughter tried to intervene, he stabbed her

in the stomach. R. 1374:85. Ott then doused his wife’s

bed with gasoline and lit it, a couch, and a loveseat on

fire. R. 13875:24-25

Lawrence, Ott’s wife, and her two teenaged

daughters and their friend, all managed to escape the

burning house. But Lawrence's six-year-old daughter

Lacey, who had been momentarily forgotten, died in

the fire. R. 1376:99, 103, 105-06, 114

2. Trial court proceedings. Ott was charged

with aggravated murder, Utah Code Ann. § 76-!

202

(West 2004), and several other aggravated felonies

t. 1-4, 35-37. In Utah, aggravated murder is punish

able by death, life without the possibility of parole, or

an indeterminate prison term of 20 years to life, for

which parole is available. Utah Code Ann. § 76-3-206

(West 2004). On the day trial was to begin, Ott en

tered an Alford plea to the aggravated murder charge

yravated murder and

r

‘

and guilty pleas to attempted ag

aggravated assault. R. 1122, 1]

State dropped the other charges and agreed not to

35. In exchange, the

pursue the death penalty. R. 1135. The parties agreed

that a sentencing jury would decide whether Ott

should be sentenced to life with or without the possi

bility of parole R. 1135

The sentencing phase lasted five days, three of

which were spent on Ott’s mitigation case. The jury

heard from 27 witnesses. and the evidence and

argument spanned over 1,000 pages of transcript. See

generally R. 1374, 1375, 1376, 13877, 1378.

Most of the State’s presentation included evi-

dence about the horrific circumstances of the charged

crimes; Ott’s harassing, threatening, and violent

conduct leading up to his crimes; and his violent and

out-of-control behavior in jail — 114 incidents in all

while he awaited trial. Jd.

Victim testimony. After testifying regarding the

crimes and Ott’s conduct leading up to those crimes,

the victims present in the house that night also

testified regarding the effect the attack had on them,

their opinion of Ott’s character, their belief that he

was incapable of changing, and their fear that if ever

released, Ott would harm them again

Ott’s by then ex-wife testified that if Ott were

ever released, she believed he would come looking for

them and try to harm them again. App. 18-19. She

stated that she did not believe he would change,

because he was a “control freak.” App. 19.

One of Ott’s stepdaughters — the one he stabbed

testified that she had been unable to sleep since that

night. App. 19. She testified that based on having

lived with Ott for some years, she did not believe he

was capable of changing. App. 19-20. She testified

that she was “terrified” of Ott, even though he re

mained in prison, and that she would “hate to see

how scared [she]'d be if he was actually out.” App. 20

Ott’s other stepdaughter who had also lived

some years with Ott and who was in the house that

night — testified that she was “very much” afraid of

Ott and that if he were ever released, “it doesn’t

matter how old he’s going to be, I think that, you

know, he’ll finish what he went there to do. I honest

to God I [sic] feel that way.” App. 20

Lawrence — who, in addition to his child’s death

had suffered on-going harassment and 23. stab

wounds at Ott’s hands testified that in imposing

sentence, the jury needed “to take what kind of guy

this person is into consideration.” App. 17. Lawrence

stated that Ott’s crimes showed what kind of man he

was and that he had “used up all his chances”

Hie’s shown what he truly is, the kind of man

he is... these types of crimes are committed

by certain types of people and he just hap

pens to be one of them. They are psycho

pathic in nature. They have no respect for

other people’s rights. No respect for other

people’s pursuit of happiness. No respect for

other people’s feelings. They can kill and

they don’t have any more feeling for killing

someone than if they reached up and picked

an apple off of a tree. They don’t feel it

That’s the kind of guy this is. I don’t think

he'll ever change. I don’t think he should ey

er have the opportunity to again perpetrate

his violent nature on any human being any

where again ever. He doesn’t deserve it. He’s

used up all his chances. He’s shown who he

is and what he does when he does not get hi

6

way. He’s shown us. He showed his hand.

That’s what he is. That’s is [sic] the defining

moment of that man’s life. That five minute

episode defined him as what he is. That’s

what Mr. Ott is. That’s him.

App. 17. When asked if he believed, based on his

persona] experience, that Ott would have helped

Lacey out of the house if he had known she was

there, Lawrence characterized Ott as an unfeeling

“terrorist”:

I don’t think he would have done a damn

thing different. This man is a terrorist. He

deals with anarchist cookbooks. He looks at

how bombs are built. When he set that house

on fire this isn’t like building a campfire with

a grocery sack. This is a bomb. If I dumped

gallons of gasoline on this floor rmght here

and lit it with a match, can you imagine how

explosive that would be? It goes up instantly.

I've thrown little bits of gas on a campfire

to start one. It flares up instantly. Can you

imagine that much gasoline in the house?

He didn’t care. This guy does not care about

other people’s feelings. He has no empathy

for anybody, none. He doesn’t have it. It’s not

inside of his character to have that

App LS

The prosecution also presented the testimony of

Lacey’s older sister and mother, neither of whom

were present the night of the crimes. Lacey’s sister

testified that the thought of Ott being released

“terrifield]” her and that she believed Ott “wouldn’t

change at all.” App. 21. She could not “see how any-

body could do what he did.” /d. She stated that if it

had been up to Ott, her “dad would not be here at all

... But it could have very well been me instead of my

little sister, or both of us.” Jd. She wanted the jury to

know that Ott “does not care”:

He doesn’t care what happened that night.

He doesn’t care if it was me or my sister or

everybody in that house. He burned it down.

He didn’t help anybody out of it. He didn’t

try to pick out one person out of five. He

wanted just for us, my dad. He was there for

whoever and whatever was in that house

I mean, the house could have caught on fire

to the next door neighbors. He didn’t care

who died. He didn’t care who got hurt

I know his intention was to kill my dad, but

instead he killed my little sister. And I don’t

think he deserved anything more than what

she got. She can’t be here today to say what

she thinks. I don’t think that he deserves any

rights. He shouldn’t have any rights. He took

all of hers away from her, and I don’t believe

that he should have any

App. 21-22

Responding in part to defense counsel’s opening

statement asking the jury to walk in Ott’s shoes

(R. 1374:56-57), Lacey's mother testified that she

hoped that Ott never got out on parole, because he

did not deserve it

I think he should have to walk in my shoes

[ think you should have to walk in my shoes

8

‘cause my last two years have been horrible.

You know what? They are not going to get

better. I loved my daughter. The love I had

for my daughter was so strong. You can’t

take that away ... and | hate to say this, but

I hope you don’t get out on parole because

you don't deserve it. My daughter don’t get to

come back to me right now. I didn’t get to fin-

ish with my daughter’s life. I have to go

home tonight without my daughter there,

and I have to be alone for the rest of my life.

1 hope you can think about that for the rest

of your life.

App. 22.

The defense did not object to any of the foregoing

evidence.

Ott’s evidence: In mitigation, Ott put on testi-

mony that he had served his country for years, 1n-

cluding a stint in the Gulf War. R. 1377:119-23. Ott’s

mitigation specialist detailed his military service and

the medals he had received for meritorious service

R. 1377:121-23. Ott presented testimony that he

suffered physical abuse as a child and post-traumatic

stress syndrome and depression upon his return from

the Gulf War. R. 1377:123-77; see also R. 1376:176-78,

183-84, 186. Ott also presented expert testimony

suggesting that he had been suffering from undiag-

nosed bi-polar disorder and that proper medication

had improved his behavior in jail. R. 1378:80-90, 103

Ott also called friends and family members to testify

that he was a “good guy” and father and had no real

anger problems until after he married his wife; his

violent acts were an anomaly, and not in keeping with

his character; his wife and Lawrence shared some of

the responsibility for Lacey’s death; he did not intend

to kill anyone on the night of the crimes; and he

should be given a chance at parole. R. 1376:175, 178,

190-91, 203, 206, 207-10, 212, 232-47; R. 1377:14,

18-19, 26-33, 42, 52, 55-58, 72-73, 86, 248

Ott did not testify at the sentencing hearing, but,

as permitted by Utah law, he did make an unsworn

statement to the jury. He admitted that he intended

to kill Allen Lawrence and that he stabbed his step

daughter when she tried to stop him. R. 1378:134. He

told Lacey’s mother “and everybody who loved Lacey,”

that he was “truly sorry for what happened” and that

he “mourned” for Lacey “every night.” R. 1378:134-35

He said that he could “empathize” with Lacey

mother, particularly because, in the intervening 18

months, he had not been able to see his own children

Ott then told the jury that he hoped that “one day I

have the opportunity to be put on parole.” /d

The jury, on a vote of ten to two. IMpo ed life

without the possibility of parole. On appeal, Ott

challenged his sentence on several grounds, including

the admission of “victim impact evidence.” In a single

sentence, which cited only Payne v. Tennessee, 501

U.S. 808 (1991) for support, Ott asserted that the

Kighth Amendment “bans family members’ opinion

and characterizations of the crime, the defendant,

and the appropriate sentence to be imposed.” Br. Aplt

at 87. Ott also challenged admission of the evidence

LO

on due process grounds under both the federal and

state constitutions. See id. at 86-95. Because Ott had

not preserved his victim impact evidence claim, he

argued that his counsel was constitutionally ineffec

tive for not moving to exclude it.

3. Utah Supreme Court Decision. On appeal

the Utah Supreme Court reversed Ott’s sentence on

the sole ground that the Eighth Amendment per s

barred both the victims and Lacey’s surviving family

members from addressing the defendant’s character,

his chances for rehabilitation, and the appropriate

sentence. App. 15-16, 31-32. The court relied on Boot/

v. Maryland, 482 U.S. 496 (1987), “which held the

Kighth Amendment barred victim impact evidence

App. 15. The Utah court acknowledged that thi

Court in Payne partially overruled the part of Booth

that held that the Eighth Amendment did not bar, per

e, victim impact evidence l.e., evidence of the

victim’s personal characteristics and the effect the

victim’s death had on the family. The Utah court

concluded, however, that “to the extent Payne over

ruled Booth, Booth retained viability for its holding

hat victim impact evidence that address: the de

fendant’s character or expresses the victim’s opinion

of the appropriate sentence at the penalty phase of

trial is inadmissible under the Eighth Amendment

App. 15

The Utah Supreme Court concluded that “large

portions of the victim impact evidence

the victims’ opinions of the defendant’s character o1

the appropriate sentence and were therefore clearly

L]

at odds with United States Supreme Court precedent”

in Payne and Booth. App. 16, 23. The court found trial

counsel “objectively deficient for failing to object to

victim impact evidence that addressed Mr. Ott’s

character, chances for rehabilitation, and deserved

sentence because such victim impact evidence clearly

violates the Eighth Amendment when introduced in

capital sentencing hearings.” App. 32. The court

concluded that “but for the admission of the victim

impact evidence that addressed Mr. Ott’s character

and the victims’ opinions of the appropriate sentence,

Mr. Ott would have received a more favorable sen

tence.” App Zi

Petition for rehearing. The State timely pet

tioned for rehearing, pointing out that Booth, a casi

that neither party had relied on, by its plain terms

applied only when the death penalty wa

The Utah Supreme Court denied the ps

]

explanation

REASONS FOR GRANTING THE PETITION

Summary of Reasons

Relying on Booth v. Maryland, 482 U.S. 496

1987), the Utah Supreme Court held that it consti

tutes crue! and unusual punishment for crime victim

and a murder victim’s family members to testify in a

capital sentencing hearing — whether or not death i

an option — regarding their opinions and characteri

zations of the crime, defendant, and appropriate

12

sentence. But in Payne v. Tennessee, 501 U.S. 808

(1991), this Court expressly left open whether the

Eighth Amendment continues to bar this type of

victim evidence.

That question — the first question presented for

review has been unanswered by this Court for

nearly two decades. This Court should now answer

the question by overruling Booth’s blanket bar to such

evidence. Just as this Court determined in Payne that

Booth wrongly held that victim impact evidence had

no relevance to the capital sentencing decision, it

should now recognize that victims’ characterization

and opinions of the crime, defendant, and appropriat:

sentence can also, in some circumstances, be relevant

to that decision. This is especially true where, a

here, all but two of the victims personally witnessed

the defendant’s crimes and had a personal relation

ship with him. Their personal observations of the

defendant's character and criminal conduct were all

relevant to assessing his future dangerousne and

whether he was an appropriate candidate for eventu

al parole. But, as long as Booth stands, this relevant

evidence is per se barred by the Eighth Amendment

This Court’s long silence on the subject of victim

evidence has resulted in a clear split of authority or

what, if any, part of Booth survived Payne. The Tentl

Circuit Court of Appeals like most courts agree

with the court below that, under Booth, the Eighth

Amendment erects a per se bar to victim testimony

regarding a capital defendant’s character and the

appropriate sentence. But a criminal court of last

resort in that circuit the Oklahoma Court of Crimi

nal Appeals has reached the opposite conclusio!

holding that “in light of the discussion in Payne

whatever ban against this evidence there may be doe

not lie in the Eighth Amendment.” Ledbetter v. State

933 P.2d 880, 890 (Okla. Crim. App. 1997). The Okla

homa courts, therefore, have consistently allowed

victims in capital cases to recommend the appropriat«

entence within the limitations imposed by due pro

The Utah Supreme Court

.

ing conflict

a un ie Boot kaighth

cription stand ooth appli

| vhere de:

tatements tl!

penalty contex » COUT

three state ite n tni ‘ and Ohi

ipplie

14

sentencing proceedings. The majority of federal and

state courts addressing the issue, however, have

reached the opposite conclusion

The questions presented are a matter of national

importance. The constitutions or statutes of at least

forty-eight states, including Utah, either explicitly or

implicitly grant victims the right to be heard at

sentencing hearings. Nearly half of those states allow

victims to be heard regarding the crime, defendant

character, and/or the appropriate sentence. ‘lhe

decision below implicates the constitutionality

tho e@ provisior

hi Court and only thi ‘ uri i answel

these questions with a straightforward clamfication

Payne holding that “the Eighth Amendment erect

no per se bar,” against victim impact evidence exten

to victim statemen ibout the crime, defendant

character, and the appropriate sentence. Payne

it 827 here 1s 1 re mn te reat ic]

lence differently than other relevant eviden

treated.” /d. And any ! K Un ich evidence

be unduly prejudicial may be addressed by applica!

evidentiary rules or by the Due Pro (lause

LnNose Cas¢ whnert i witne Lestim I pros

yT remark o intect tne entens lI

[. This Court Should Answer the Two-

Decades-Old Question of Whether the

Eighth Amendment Continues to Bar All

Victim Opinion on the Crime, Defendant’s

Character, and Appropriate Sentence.

The controversy in this case centers on the que

tion left open by this Court in Payne v. Tennessee, 501

U.S. 808 (1991), when it partially overruled Booth |

Marvland. 482 U.S. 496 (1987). In Booth. this Court

held in a 5-4 decision that the Eighth Amendment

erected a per ‘ bar to L ipital entencing jury

onsidering two types of victim evidence: (1) “victim

mpact evidence,” which relates to the victim per

nal characteristics and the emotional impact of the

nurde! n the victim family, and ctl

family member haracterizatior ind oF hou

the erime lefendant and appropriat ente

Boot! 182 | t 502-0 In S Ah

(sath 1K | ROS QRO } ( 7 ed

this bar to prosecute equi ital

" oul

| ( ) qd | }

i y ging nat | ( | ‘ yey }

in O cetir ipact evidence i ore

irgument n tn Ipjyer ie fy th A f Iment

erect } er , pP? ()] “ it RY

holdir the ( erruled t} t of Bi p

hibiting victi mpact « l of

ictin ger it} er I} ( ole

however, that whil he hight (mendment 1 not

16

in a given case the evidence introduced “is so unduly

prejudicial that it renders the trial fundamentally

unfair.” Jd. at 825.

But Payne expressly left open the question of

whether the Eighth Amendment continued to erect

a per se bar to the second kind of victim evidence

addressed in Booth:

Our holding today is limited to the holdings

ef Booth v. Maryland and South Carolina v.

Gathers that evidence and argument relating

to the victim and the impact of the victims’

death on the victim’s family are inadmissible

at a capital sentencing hearing. Booth also

held that the admission of a victim’s family

members’ characterizations and _ opinions

about the crime, the defendant, and the

appropriate sentence violates the Eighth

Amendment. No evidence of the latter sort

was presented at the trial in this case.

Payne, 501 U.S. at 830 n.2 (citations omitted). See

also id. at 833 (O’Connor, J., concurring) (“Booth also

addressed another kind of victim impact evidence —

opinions of the victim’s family about the crime, the

defendant, and the appropriate sentence. As the

Court notes in today’s decision, we do not reach this

issue as no evidence of this kind was introduced at

petitioner’s trial.”). The only reason the question

remained open in Payne was that it was not at issue

there. It is squarely at issue here, however, and,

as shown below, will continue to be at issue with

conflicting results among the States, unless this

Court intervenes.

A. Booth’s blanket bar unnecessarily ex-

cludes otherwise relevant victim evi-

dence.

In the two decades since Payne, this Court has

not addressed the admissibility of victim evidence in

either capital or non-capital sentencing proceedings.

This Court should now take the opportunity to an-

swer the question it left unresolved in Payne.

In erecting a per se bar to all victim impact

evidence and victim opinion of the crime, defendant’s

character, and appropriate sentence, Booth assumed

that such evidence was never relevant in a capital

sentencing proceeding. See Booth, 482 U.S. at 503-09.

In Payne, this Court recognized the invalidity of that

assumption with respect to victim impact evidence —

i.e., evidence of the victim’s character and the impact

of the victim’s murder on family members. See Payne,

501 U.S. at 819-27. The Payne court explained that

“the assessment of harm caused by the defendant as a

result of the crime charged” had long been an im-

portant relevant consideration in deciding a defend-

ant’s punishment, both in death and non-death cases.

Id. at 819. Victim impact evidence was “simply an-

other form or method of informing the sentencing

authority about the specific harm caused by the crime

in question.” /d. at 825.

18

Payne recognized that Booth’s blanket ban on

victim impact evidence prevented the jury “from

having before it all the information necessary to

determine the proper punishment for a first-degree

murder.” Jd. at 826. While “virtually no limits are

placed on the relevant mitigating evidence a capital

defendant may introduce concerning his own circum-

stances,” under Booth, “the State [was] barred from

either offering ‘a quick glimpse of the life’ which a

defendant ‘chose to extinguish,’ or demonstrating the

loss to the victim’s family and to society which has

resulted from the defendant’s homicide.” Payne, 501

U.S. at 823 (citation omitted). The Payne court con-

cluded that the State had “a legitimate interest in

counteracting the mitigating evidence which the

defendant is entitled to put in, by reminding the

sentencer that just as the murderer should be con-

sidered as an individual, so too the victim is an

individual whose death represents a unique loss to

society and in particular to his family.” Jd. at 825

(internal quotation marks and citation omitted).

Just as Booth wrongly imposed a blanket ban on

all victim impact evidence, it wrongly banned all

victims’ opinions of the crime, defendant’s character,

and appropriate sentence. As this Court recognized in

both Booth and Payne, the decision on whether a

defendant should be executed must be an “individual-

ized determination ... based on ‘the character of the

individual and the circumstances of the crime.”

Booth, 482 U.S. at 502 (quoting Zant v. Stephens, 462

U.S. 862, 879 (1983)) (emphasis in Zant). See also

19

Payne, 501 U.S. at 818. Consistent with that author-

ity, Utah, like most states, expressly permits both the

State and the defendant to present evidence in capi-

tal sentencing hearings on (1) “the nature and cir-

cumstances of the crime”; (2) “the defendant's

character, background, history, and mental and

physical condition”; (3) “the victim and the impact of

the crime on the victim’s family and community

without comparison to other persons or victims”; and

(4) “any other facts in aggravation or mitigation of

the penalty that the court considers relevant to the

sentence.” Utah Code Ann. § 76-3-207(2).

Just as Ott did here, capital defendants regularly

put on character evidence through family, friends,

employers, and experts to portray the defendant as a

good, caring, contributing member of society with a

likely prospect for rehabilitation. See, e.g., Payne, 501

U.S. at 814 (girlfriend testified defendant was “very

caring person” and good father to her children and

that his crimes were generally inconsistent with his

character; psychiatrist testified defendant was “most

”

polite prisoner he had ever met”; parents testified

defendant did not drink or abuse drugs, was good

painter, good with children, and good son). Indeed,

this Court has long held that the Constitution affords

capital defendants broad latitude in having the

sentencer consider such evidence. See Lockett v. Ohio,

438 U.S. 586, 604-05 (1978) (plurality) (Eighth

Amendment requires that sentencer, “in all but the

rarest kind of capital case,” not be precluded from

considering as mitigating factor “any aspect of a

20

defendant’s character or record and any of the cir-

cumstances of the offense that the defendant proffers

as a basis for a sentence less than death”). Capital

defendants are also permitted to make their own

sentencing recommendations, through testimony or

unsworn statements, family members asking for

mercy, and argument. See, e.g., State v. Mundt, 873

N.E.2d 828, 857 (Ohio 2007) (defendant asked jury in

allocution and unsworn statement to spare his hfe);

State v. Jordan, __ S.W.3d ___, 2010 WL 3668513,

*20 (Tenn. 2010) (defendant’s brother testified he

would be devastated if defendant were executed and

asked for life without parole sentence); Jackson v.

Epps, No. 4:083CV461-P, 2010 WL 3853158, *27 (N.D.

Miss. Sent. 28, 2010) (counsel asked jury to spare

defendant’s life). Ott employed all three methods here

to ask the jury to impose the most lenient sentence.

As Payne recognized, the State must also be

permitted to put on adverse evidence of a capital

defendant’s character to show that execution is the

appropriate sentence. See Payne, 501 U.S. at 825.

Prosecutors do that in a variety of ways, including

calling witnesses to detail a defendant’s prior conduct

to show future dangerousness. See Skipper v. South

Carolina, 476 U.S. 1, 5 (1986) (permissible for

“

sentencer to consider defendant’s “past conduct as

indicative of his probable future behavior”); see, e.g.,

Hawkins v. Wong, No. Civ. S-96-1155, 2010 WL3516399

(E.D. Cal. Sept. 2, 2010). The prosecution may also

call witnesses to opine on a defendant’s reputation

and character. See, e.g., Davis v. State, 315 S.W.3d

21

908, 915 (Tex. App. 2010) (Texas law permits either

party in capital sentencing proceeding to introduce

“the prior record of the defendant, his general reputa-

tion, his character, an opinion regarding his charac-

ter”). The prosecution may also call witnesses to

detail the circumstances of the charged crimes to

show the depravity of a defendant’s character. See

Zant, 462 U.S. at 879.

But while the Constitution places no proscription

on the foregoing relevant character evidence general-

ly — indeed, this Court has emphasized its importance

—- Booth’s blanket ban, as read by the Utah Supreme

Court, excludes this relevant evidence merely because

it happens to come from the defendant’s victims.

Arguably, Booth’s proscription made some sense

as applied to the victim evidence in that case. The

surviving members of Booth’s victims were not wit-

nesses to the crimes nor were they acquainted with

Booth. Thus, they were not in a position to render an

opinion on his character or to comment on the cir-

cumstances of his crimes. But, unlike the victims’

family members in Booth, four of the six testifying

victims here were eyewitnesses to the charged crimes

and had personal knowledge of Ott’s volatile and

violent character. Three of the six — Ott’s wife and two

stepdaughters — had lived with him for several years

and were intimately familiar with his character. The

fourth — Allen Lawrence — having personally endured

Ott’s harassment and threats for the two months

leading up to the crimes, was also familiar with Ott’s

character. These four witnesses testified to Ott’s

on-going aggressive and angry harassment, threats,

and abuse and to his horrific acts the night of the

murder. Based on their personal interactions with

Ott, these witnesses testified that they did not believe

he would change. They also testified how Ott’s crimes

had adversely affected their lives, including making

them extremely fearful of what he might do to them if

ever released. Granted, Lawrence’s characterization

of Ott as a remorseless, unfeeling terrorist might

arguably be considered inflammatory. But given the

admissible evidence the jury had already heard

detailing Ott’s on-going harassment and_ horrific

crimes, Lawrence’s characterization was a fair — and

obvious — summation of his own relevant, admissible

testimony. Certainly, his characterizations were ones

that the prosecution could have legitimately made in

argument.

In short, these four witnesses’ testimony was

directly relevant to Ott’s character and, hence, to the

sentencing determination. Yet, because these four

witnesses were also victims, the Utah Supreme Court

read Booth as per se barring their otherwise relevant

and admissible testimony.

Significantly, while the Utah court read Booth as

prohibiting the victims here from testifying regarding

Ott’s character and characterizing his crimes against

them, the lower court never suggested that Ott’s

witnesses — who had not personally witnessed the

crimes — should have been prohibited from opining on

Ott’s good qualities, background, and lack of criminal

intent. By imposing a blanket ban on this type of

23

evidence merely because it comes from victims, Booth

continues to unfairly prevent a capital sentencing

jury “from having before it all the information neces-

sary to determine the proper punishment for a first-

degree murder.” Payne, 502 U.S. at 826. That is the

very evil this Court sought to avoid in Payne when it

overruled Booth’s blanket proscription on _ victim

impact evidence.

Booth as applied here and by most other courts

also wrongly and unfairly prohibits a victim’s sur-

viving family members from ever offering an opinion

as to the appropriate sentence, either directly or

indirectly. Here, Lacey’s mother and sister testified

that they hoped Ott never got parole. That testimony

— intimately tied to how Ott’s crimes had affected

them — was clearly admissible under Payne. Lacey’s

sister stated that based on the crimes, she feared

what Ott might do if ever released. Lacey’s mother

testified that she hoped Ott never received parole, so

that he might know what it was like “to walk in [her]

shoes.” Given the horrific nature of Ott’s crimes and

the damage he inflicted on so many, Lacey’s family

members’ suggestion that he was too dangerous to

ever be paroled told the jury nothing they would not

have already surmised from the evidence before

them. Certainly, such a sentencing recommendation

does not constitute cruel and unusual punishment.

More importantly, defendants often either direct-

ly or indirectly recommend what they think their

sentence should be through allocution, family mem-

bers, and argument. And Ott fully availed himself of

24

that opportunity. If a defendant and his family mem-

bers are permitted to offer an opinion on the appro-

priate sentence, there is no principled basis for

barring victims from also recommending an appro-

priate sentence, particularly where, as here, the

victims personally knew the defendant, suffered

harm directly at his hands, and legitimately feared

for their safety if he were ever released.

B. The Decision Below Has Deepened an

Existing Conflict on Whether the

Eighth Amendment Continues to Bar

Victims From Offering an Opinion on

the Defendant’s Character and Sen-

tencing.

The Utah Supreme Court’s decision has deepened

an already existing and irreconcilable conflict among

lower courts on the extent, if any, the Eighth

Amendment continues to per se bar victims from

characterizing or offering opinions on the crime,

defendant, and appropriate sentence. On the one

hand, most courts, as articulated by the Tenth Cir-

cuit, have held that “the portion of Booth prohibiting

family members of a victim from stating ‘characteri-

zations and opinions about the crime, the defendant,

and the appropriate sentence’ during the penalty

phase of a capital trial survived the holding in Payne

and remains valid.” Hain v. Gibson, 287 F.3d 1224.

1238-39 (10th Cir. 2002) (quoting Payne, 501 U.S. at

830 n.2). See also Hooper v. Mullin, 314 F.3d 1162,

1174 (10th Cir. 2002) (same). Other courts reaching

the same conclusion include the Eighth Circuit,’ the

Fifth Circuit, and the Fourth Circuit® in dictum, and

the highest courts of Alabama,’ Arizona,’ Maryland,

New Jersey, Ohio,” Tennessee,’ Virginia,” and Wash-

° 11

ington, and now Utah.

On the other hand, the Oklahoma Court of Crim-

inal Appeals, that state’s criminal court of last resort,

has reached the opposite conclusion. See Murphy uv.

State, 47 P.3d 876, 885 (Okla. Crim. App. 2002), cert.

denied, 538 U.S. 985 (2003); Turrentine v. State, 965

P.2d 955, 980 (Okla. Crim. App.), cert. denied, 525

U.S. 1057 (1998); Ledbetter v. State, 933 P.2d 880,

' See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999),

cert. denied, 529 U.S. 1038 (2000) (dictum)

* See Woods v. Johnson, 75 F.3d 1017, 1037-38 (5th Cir

1996) (dictum).

* See Ivey v. Catoe, 36 Fed. Appx. 718, 725-26 (4th Cir.), cert

dented, 123 S.Ct. 420 (2002) (dictum).

* See Ex Parte McWilliams, 640 So.2d 1015, 1017 (Ala

1993).

* See Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003)

° See Ware v. State, 759 A.2d 764, 783-86 (Md.), cert. denied,

531 U.S. 1115 (2000).

” See State v. Koskovich, 776 A.2d 144, 177 (N.J. 2001).

* See State v. Fautenberry, 650 N.E.2d 878, 882 (Ohio), cert

denied, 516 U.S. 996 (1995).

* See State v. Middlebrooks, 995 S.W.2d 550, 558 (Tenn

1999).

" See Beck v. Commonwealth, 484 S.E.2d 898. 906 (Va.

1997).

'"' See State v. Pirtle, 904 P2d 245, 269 (Wash. 1995), cert

denied, 518 U.S. 1026 (1996).

26

890-91 (Okla. Crim. App. 1997); Conover v. State, 933

P.2d 904, 920 (Okla. Crim. App. 1997). The Oklahoma

court noted that although Payne declined to address

Booth “as it related to characterizations and opinions

about the crime, the defendant and the appropriate

punishment,” it was clear from a reading of both

Booth and Payne that “whatever ban against this

evidence there may be does not lie in the Eighth

Amendment.” Ledbetter, 933 P.2d at 890. The Okla-

homa court reasoned that “since the Eighth Amend-

ment rationale supporting the ban of the ... victim

impact evidence in Booth was overruled in Payne,

this portion was also overruled, insofar as it had its

roots in the Eighth Amendment.” /d. at 890-91.

Accordingly, the Oklahoma Court of Criminal Appeals

consistently permits victims in capital cases to rec-

ommend the appropriate sentence, albeit with some

due process limitations. See Murphy, 47 P.3d at 885.

This conflict will not be resolved without this

Court’s intervention. Indeed, the Tenth Circuit,

acknowledging the conflict with the Oklahoma Court

of Criminal Appeals, has characterized the latter’s

position as so contrary to clearly established Su-

preme Court precedent to warrant habeas review.

See Hooper, 314 F.3d at 1174 (“Although the OCCA

concluded the trial court properly admitted this

testimony, we agree with Petitioner that the trial

court’s decision to admit the testimony is contrary to

clearly established Supreme Court precedent. See

28 U.S.C. 2254(d)(1).”). For its part, the Oklahoma

Court of Criminal Appeals has interpreted this

Court’s denial of repeated petitions for certiorari

presenting the question as implicit approval of its

position, see Murphy, 47 P.3d at 885, and rejected any

“contention that our interpretation of Payne and

Booth, or for that matter our own statute, is errone

ous or unconstitutional.” /d

Il. The Utah Supreme Court’s Decision to

Apply Booth in a Non-Death Sentencing

Proceeding is Directly Contrary to Booth

and the Clear Majority of Jurisdictions.

Booth, by its express terms, applies only to the

“decision to impose the death sentence.” Booth, 482

U.S. at 508. This Court noted in Booth that its “dis-

approval of victim impact statements at the sentenc

ing phase of a capital case does not mean... that this

type of information will never be relevant in any

context.” Jd. at 507 n.10. Indeed, the Court noted that

at least 36 states and Congress had provided for some

form of victim participation in the criminal justice

system and that its decision in Booth should not be

read to imply any “opinion as to the use of [victim im

pact] statements in noncapital cases.” /d. at 509 n.12.

The crux of the Court’s reasoning was based on

its holdings over the prior decade regarding what

factors a jury might constitutionally consider in

deciding whether to impose the death penalty. See

Booth, 482 U.S. at 502-05 (citing Gregg v. Georgia,

428 U.S. 153 (1976); Zant v. Stephens, 462 U.S. 862

(1983); Eddings v. Oklahoma, 455 U.S. 104 (1982):

Enmund v. Florida, 458 U.S. 782 (1982): Woodson

North Carolina, 428 U.S. 280 (1976)). Thus, thi

Court explained, its decision was “guided by the fact

death is a ‘punishment different from all other sanc-

tions, and that therefore the considerations that

inform the sentencing decision may be different from

those that might be relevant to other liability or

punishment determinations.” Booth, 482 U.S. at 509

n.12 (citations omitted).

Despite Booth’s express limitation of its holding

to death penalty cases, the Utah Supreme Court

applied Booth to a sentencing proceeding in which

death was not an option. This was contrary not only

to Booth, but to the overwhelming authorities that

have held that Booth does not apply in non-death

12 . . .

penalty cases.” Petitioner has found only two other

courts that have applied Booth’s Eighth Amendment

analysis to exclude victim evidence in a non-death

See, e.g., United States v. Horsfall, 552 F.3d 1275, 1284

(llth Cir. 2008), cert. denied, 129 S.Ct. 2034 (2009): Hatcher «

Duckworth, 917 F.2d 1306 (7th Cir. 1990) (unpublished); United

States v. Santana, 908 F.2d 506, 507 (9th Cir. 1990): Disotell «

Warden La. Corr. Inst. for Women, 2010 WL 2483420, *6, (W.D

ia. 2010) (slip copy); Razo v. Blair, No. 08-1106-PHX-NVW, 2010

WL 1433487, *15 (D. Ariz. Feb. 11, 2010) (slip copy); Mahan 1

Cate, No. CV08-04699 ABC, 2009 WL 3244911, *2 (C.D. Calif

Oct. 2, 2009) (unreported); Cooey v. Anderson, 988 F. Supp. 1066

(N.D. Ohio 1997); State v. Searcy, 798 P.2d 914, 919 (Idaho

1990): People v. Ratzke, 625 N.E.2d 1004, 1017 (Ill. 1993): Kills

on Top v. State, 15 P.3d 422, 437 (Mont. 2000); Randell v. State,

846 P2d 278, 280 (Nev. 1993): State v. Tyler, 565 S.E.2d 368, 377

n.11 (W. Va. 2002)

case. See State v. Harwell, 102 Onto St 3d 128, 807

N.E.2d 330 (2004) (in case of juvenile murderer who

was not eligible for death penalty, all capital sen

tencing protections applied, including proscription on

victim impact statements); State v. Gideon, 257 Kan

591. 894 P2d 850 (1995) (in non-death sentencing

proceeding, suggesting in dicta that victim’ en

tencing recommendation would have been improper

if presented to a jury)

Thus, the highest courts in Utah, Ohio, and

Kansas have mistakenly read Booth to reach much

farther than it actually does. That reading conflict

not only with Booth’s express holding, but also with

its core reasoning. This Court should grant certiorari

review to correct that growing misapprehension

Ill. Both Questions Presented Are of National

Importance.

30th questions presented are a matter of national

significance. Forty-eight states, including Utah, grant

victims the right — by constitution, statute, or both — to

make a statement at sentencing Twenty-three of

See Al: on art. I, $6.0l](a); Ala. Code § 15-23-74

Alaska Const. art. I, § 24: Alaska Stat. § 12.61.010(aX9): Ariz

Const. art. I], § 2.1(A)(4): Ariz. Rev. Stat. Ann. § 13-4426(A).: Ark

Code. Ann. § 16-90-1112(a)(1); Calif. Const. art. I, § 28(b)(8)

Calif. Penal Code Ann. § 1191.1; Colo. Const. art S 16a; Colo

Rev. Stat. Ann. § 24-4.1-302.5(d): Conn. Const. ; I § Ri b)(s

Conn. Gen. Stat. Ann. § 53a-39(d); Del. Code Ann. tit. 11, § 9415

Fla. Const. art. 1, § 16(b); Fla. Stat. Ann. § 921.143: Ga. Cod

Continued on following pag

Ann. § 17-10-1.1; Idaho Const. art. I, § 22(6); Idaho Code Ann

§ 19-5306(1); Til. Const. art. I, § 8.1; 725 Ill. Comp. Stat. 120/4(a);

Ind. Const. art. I, § 13(b); Ind. Cade Ann. §§ 35-40-5-5 & 35-40-5-

6(a); lowa Code Ann. § 915.21; Kan. Const. art. 15(a); Kan. Stat.

Ann. § 22-3424(e); Ky. Rev. Stat. Ann. § 421.520; La. Const. art.

1, § 25; La. Rev. Stat. Ann. § 46:1844; Me. Rev. Stat. Ann. tit. 17-

A § 1174; Md. Const. Declaration of Rights, art. 47(b); Md. Code.

Ann. § 11-402; Mass. Gen. Laws ch. 279, § 4B; Mich. Const. art.

I, § 24(1); Mich. Comp. Laws Ann. § 780.763 to 765; Minn. Stat.

Ann. § 6114.038(a)(3); Miss. Const. § 26-A; Miss. Code Ann. § 99-

43-31 & -33; Mo. Const. art. I, § 32.1(2); Mo. Rev. Stat. § 557;

Mont. Code Ann. § 46-18-115(4)(a); Neb. Const. art. I, § 28(1);

Neb. Rev. Stat. § 81-1848; Nev. Const. art. 1, § 8(2); Nev. Rev. Stat.

§ 176.015(3); N.H. Rev. Stat. Ann. § 21-M-k(IIp) & § 651:4-a;

N.J. Const. art. I, § 22: N.J. Stat. Ann. § 2C:44-6(3); N.M. Const

art. 2, § 24(A)(7); N.M. Stat. Ann. § 31-26-4; N.Y. Crim. Proc.

Law § 380.50(2\b); N.C. Const. art. I, § 37; N.C. Gen. Stat. Ann.

§ 15A-833(a); N.D. Cent. Code Ann. § 12.1-34-02(14); Ohio

Const. art. I, § 10a; Ohio Rev. Code Ann. § 2930.13-14; Okla.

Const. art. II, § 34(A); Okla. Stat. Ann. tit. 21 § 142A-1; Or.

Const. art. I, § 42(1)(a); Or. Rev. Stat. § 137.013 & 163.150(1)(a)

18 Pa. Cons. Stat. Ann. § 11.201(5); R.I. Const. art. I, § 23; R.I.

Gen. Laws Ann. § 12-28-3 to -4: S.C. Const. art. I, § 24(A)(5)

S.C. Code — s 16-3-1535(B)(6) “ee S.D. Codified Laws

§ 24-15A-43(8); Tenn. Const. art. I, § 35(4); Tenn. Code Ann.

§ 40-38-202 to -203; Texas Const. om 4 § 380(b); Texas Code

Crim. Proc. Ann. art. 56.02; Utah Const. art. I, § 28(1)(b); Utah

Code Ann. § 77-38-4(1)(b); Vt. Stat. Ann. tit. 13, § 5321(a (2), Va.

Const. art. I, § 8-A; Va. Code Ann. § 19.2-11.01(4\a) & § 19.2-

299-.1; Wash. Const. art. I, §35; Wash. Rev. Code Ann.

§ 7.69.030(14); W. Va. Code Ann. § 61-11A-2(b); Wyo. Stat. Ann.

§ 1-40-203(b)Uix) & (xviii) & § 7-21-102(c). See also Douglas E

Beloof, Constitutional Implications of Crime Victims as Partici

pants, 88 Cornell L. Rev. 282, 286-87 (2003) (“The constitutions

of forty States either explicitly or implicitly grant victims the

right to give recommendations at sentencing. Twenty-three of

these States grant victims the constitutional right to address the

sentencing authority. Seventeen States do not have the right in

their constitutions but grant the right by statute.”)

those states have statutes expressly granting victims

the mght to be heard at sentencing proceedings

regarding the defendant’s character, crime, and/or

recommended sentence.” Of those states, at least two

— Arizona and New Hampshire — expressly permit

victims to make such statements in death penalty

: - 15 . . ’

sentencing proceedings. ° The enactment of Arizona's

provision, however, is conditional and takes place

only if on or before June 30, 2013, this Court or the

Arizona Supreme Court holds that it is constitution-

ally permissible for a victim in a capital case to make

a sentencing recommendation. See Ariz. Rev. Stat.

Ann. § 13-701.01.

The Utah Supreme Court has now squarely held

that the Eighth Amendment, without exception, bars

victims from offering an opinion on the crime, de-

fendant’s character, and sentence, even when those

opinions are relevant, and even when death is not a

sentencing option. That decision — along with those in

Ohio and Kansas — casts constitutional doubt on the

laws and constitutions of all those States that afford

victims the right to participate in .non-capital sen

tencing proceedings. As noted, nearly half the States

Those States are Alabama, Arizona (conditional enact

ment), Arkansas, California, Connecticut, Florida, Kentucky,

Massachusetts, Michigan, Minnesota, Mississippi, Montana,

Nevada, New Hampshire, New York, North Dakota, Ohio,

Oklahoma, Oregon, South Dakota, Tennessee, Vermont, and

Wyoming

See Ariz. Rev. Stat. Ann § 13-4426: N.H. Rev. Stat. Ann

§ 651:4-a

allow victims to comment on the crime, defendant’s

character, and/or recommend a sentence in non-death

cases. Applying Booth to all sentencing proceedings

would be disruptive to the long-standing and wide-

spread practice of allowing victims to address these

matters at sentencing.

Because Booth and Payne are at the center of the

controversy, only this Court can answer the questions

presented. It should do so by holding that the Eighth

Amendment erects no per se bar against victim

statements about the defendant’s character and the

appropriate sentence. There is no reason to treat this

evidence any differently than other relevant evidence

in both capita! and non-capital sentencing proceed-

ings. Any risk that such evidence would be unduly

prejudicial in a given case may be addressed by

applicable evidentiary rules or by the Due Process

Clause, should a “witness’ testimony ... so infect ]

the sentencing proceeding as to render it funda-

mentally unfair.” Payne, 501 U.S. at 827.

33

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARK L. SHURTLEFF

Utah Attorney General

KIRK M. TORGENSEN

Chief Deputy Attorney General

LAURA B. DUPAIXx*

Chief, Criminal Appeals Division

Utah Attorney General’s Office

160 East 300 South, 6th Floor

P.O. Box 140854

Salt Lake City, UT 84114-0854

(801) 366-0180

*Counsel of Record

Counsel for Petitioner

App. 1

This opinion ts subject to revision before

final publication in the Pacific Reporter.

IN THE SUPREME COURT

OF THE STATE OF UTAH

State of Utah,

Plaintiff and Appellee, No. 20040638.

V. FILED

Mark Anthony Ott, Jan. 5, 2010.

Defendant and Appellant.

Second District, Farmington

The Honorable Michael G. Allphin

No. 021701485

Attorneys: Mark L. Shurtleff, Att’y Gen., Laura B.

DuPaix, Asst. Att’y Gen., Salt Lake City,

for plaintiff Elizabeth Hunt, Salt Lake

City, for defendant.

NEARING, Justice:

INTRODUCTION

{11 This case comes to us on direct appeal] from

Mark Ott’s sentencing for aggravated murder and

other charges. On one horrific night in the summer of

2002, Mr. Ott broke into the home of his wife, Donna

Ott, who had recently filed for divorce. Knife in hand,

App. 2

Mr. Ott attacked Mrs. Ott’s boyfriend, Allen Law-

rence. He also stabbed his stepdaughter, Sarah

Gooch. Mr. Ott then set the house on fire. Al! of the

residents of the house escaped except Lacey Law-

rence, Mr. Lawrence’s six-year-old daughter, who died

in the fire. Mr. Ott eventually entered an Alford plea

of guilty to aggravated murder in connection with

Lacey’s death and pled guilty to other charges. He

was sentenced by a jury to life in prison without the

possibility of parole. In Mr. Ott’s direct appeal, he

argues over the legality of his plea as well as various

instances of ineffective assistance. We hold that Mr.

Ott’s counsel provided ineffective assistance because

counsel failed to object to portions of the victim

impact evidence.

BACKGROUND

q2 Mr. Ott married Donna Ott in 1996. Mrs. Ott

had three children from a previous marriage (Daniel,

Sarah, and Lucy), and had two more after her mar-

riage to Mr. Ott (Carssa and William). Over the

years, marital and family problems increased, and

Mrs. Ott eventually separated from Mr. Ott and filed

for divorce. A month after their separation, Mrs. Ott

met Allen Lawrence and they began to date. Mr. Ott

disapproved of Mrs. Ott’s relationship with Mr. Law-

rence and verbally and physically threatened the two

of them on several occasions.

{3 On the night of the fire, Mrs. Ott was awak-

ened by her dogs barking. She went to the window to

App. 3

check on them and saw Mr. Ott in the backyard. She

then ran to Mr. Lawrence, who was asleep in her bed,

and attempted to wake him. Meanwhile, Mr. Ott

broke into the house, entered Mrs. Ott’s bedroom, and

began to stab Mr. Lawrence. Mrs. Ott’s daughter,

Sarah, attempted to stop Mr. Ott from stabbing Mr.

Lawrence by jumping on Mr. Ott’s back and hitting

his head with a can of mace. Mr. Ott then stabbed

Sarah in her abdomen. During the attack, Mrs. Ott

attempted to call the police but was unsuccessful

because the phone line had been cut.

44 Despite his wounds, Mr. Lawrence was able

to escape the bedroom and make his way to the front

door. Mr. Ott followed Mr. Lawrence and continued to

stab him. At some point, the knife broke and Mr. Ott

was distracted by Mrs. Ott who had been watching

the attack from the hallway. Mr. Ott said to Mrs. Ott,

“Now look what you’ve made me do. Are you happy

now?” He then approached Mrs. Ott and embraced

her from behind. At that point, Lucy came upstairs

from her bedroom in the basement, saw Mr. Ott,

screamed, and ran back downstairs. Then, either

while Mr. Ott held Mrs. Ott or shortly after, Sarah

came from the bedroom and helped Mr. Lawrence out

the front door. Sarah and Mr. Lawrence ran down the

street and hid behind a fence.

{5 Meanwhile, Mr. Ott went out the back door.

Mr. Ott re-entered the home and poured gasoline,

which he had obtained from the garage, on Mrs. Ott’s

bed. Mr. Ott then went downstairs, lit a sofa and a

loveseat on fire, and told Mrs. Ott to get everyone out

App. 4

of the house. Seeing the fire, Mrs. Ott yelled for her

daughter, Lucy, and Lucy’s friend, Hillary, who was

spending the night. She found the girls in the base-

ment, and they safely exited the house. Mrs. Ott

confirmed that her children were safely out of the

house by conducting a head count, but she forgot to

]

confirm the whereabouts of Lacey. Lacey was Mr.

Lawrence's six-year-old daughter, and she was spend-

ing the night in Carissa’s room on the main floor of

the house. Mrs. Ott then observed Mr. Ott leaving the

scene in her vehicle.

{6 Just as Mr. Ott drove away, Mrs. Ott re-

membered that Lacey was still in the house. She ran

back to the burning house and attempted to enter it,

but was prevented from doing so by a police officer.

Firefighters found Lacey inside a bedroom, dead from

carbon monoxide poisoning.

7 Mr. Ott was charged with aggravated mur-

der as a capital felony. The State also charged him

with aggravated arson, aggravated burglary, aggra-

vated assault, theft, attempted aggravated murder,

and violation of a protective order. Mr. Ott main-

tained that he never knew Lacey was in the house,

though he admitted starting the fire that killed her.

Mr. Ott moved to quash his bindover on the charge of

aggravated murder. He argued that he could not have

intentionally and knowingly killed Lacey because he

Daniel had moved out of the house, and William and

Carissa were spending the night at Mr. Ott’s home

App. 5

did not know she was in the house. Ms. Ott further

argued that his intent to kill Mr. Lawrence with a

knife was different from his intent to burn the house

down.

18 The State argued that transferred intent

and concurrent intent, also known as the “kill zone”

theory, sufficed to sustain charges of aggravated

murder. The district court rejected as too tenuous the

State’s theory that Mr. Ott’s intent to kill Mr. Law-

rence could be transferred and treated as the intent

to kill Lacey. Nevertheless, the district court held

that the magistrate, in ordering the bindover, had

implicitly found that Mr. Ott harbored an intent to

kill Mrs. Ott in the fire and that this intent trans-

ferred to Lacey.

19 Mr. Ott petitioned unsuccessfully for inter-

locutory review of the district court’s order. A plea

bargain was arranged, and Mr. Ott entered an Alford

plea’ to the aggravated murder charge and guilty

By entering an Alford plea, a defendant does not admit

guilt. Rather, the defendant enters a guilty plea because he

recognizes that a prosecutor has enough evidence to obtain a

guilty verdict. In North Carolina v. Alford, Mr. Alford argued

that he was innocent of the murder charge but pled guilty to

second degree murder in an attempt to avoid the threat of :

sentence of death for first degree murder. 400 U.S. 25, 28 (1970)

The United States Supreme Court stated that “while most pleas

of guilty consist of both a waiver of trial and an express admis-

sion of guilt, the latter element is not a constitutional requisite

to the imposition of criminal penalty.” Jd. at 37. The Court went

on to hold that “[aJn individual accused of crime may voluntarily,

knowingly, and understandingly consent to the imposition of a

(Continued on following page)

App. 6

pleas to the other charges in exchange for the State’s

agreement not to pursue the death penalty in his

capital sentencing hearing and to drop several charg-

es.

410 At the capital sentencing hearing, the

jurors heard testimony from various individuals. Ten

of the twelve jurors voted to sentence Mr. Ott to life

in prison without the possibility of parole. The dis-

trict court then imposed the statutory prison terms

for each of the other charges and ordered them to run

consecutively to each other and to the life without

parole sentence.

{11 Mr. Ott’s case next came to us on direct

appeal where the central issue was Mr. Ott’s claim

that his attorneys were ineffective. We ordered that

the case be temporarily remanded to the district court

for discovery pursuant to rule 23B of the Utah Rules

of Appellate Procedure. At the conclusion of the

hearings, the district court entered findings that no

conflict of interest existed and that Mr. Ott’s counsel

was not ineffective. The record was returned to us for

final action on Mr. Ott’s direct appeal.

prison sentence even if he is unwilling or unable to admit his

participation in the acts constituting the crime.” /d. The Court

concluded that this type of plea would be appropriate when “a

defendant intelligently concludes that his interests require entry

of a guilty plea and the record before the judge contains strong

evidence of actual guilt.” /d.

App. 7

412 After hearing oral arguments and review

ing the parties’ briefs and the record, we asked for

supplemental briefing on the issue of whether Mr

Ott’s Alford plea to aggravated murder could satisfy

the elements of Utah Code section 76-5-202 (2008)

We were concerned that Mr. Ott’s Alford plea was

defective as a matter of law because of the statutory

requirement that to be guilty of aggravated murder a

defendant must knowingly and intentionally kill the

victim.

413 This appeal will address (1) whether Mr.

Ott’s plea was defective as a matter of law and (2)

whether Mr. Ott’s representation constitutes ineffec

tive assistance of counsel. Because we hold that Mr.

Ott’s counsel was objectively deficient for failing to

object to portions of the victim impact evidence intro

duced by the prosecution, and that this failure preju

diced Mr. Ott, we do not address the rest of Mr. Ott’s

ineffective assistance claims. See State v. Carter, 776

P2d 886, 889 (Utah 1989) (overruled on other

grounds) (noting court’s ability “to expeditiously focus

judicial resources and energy on those critical or

outcome-determinative issues which may be raised in

any given case and/or which have not in substance

been previously urged upon this Court and rejected”)

We have jurisdiction over this appeal pursuant to

Utah Code section 78A-3-102(3)(j) (2008).

App

STANDARD OF REVIEW

"14 We will address the following two issues on

appeal: (1) whether Mr. Ott’s guilty plea was proper

and (2) whether Mr. Ott’s counsel was ineffective

115 First, attempts to withdraw a guilty plea

invite multiple standards of review. State

Beckstead, 2006 UT 42, 47, 140 P3d 1288. As an

initial matter, we note “an attempt to withdraw a

guilty plea on appeal must be preceded by a motion

before the district court.” State v. Rhinehart, 2007 UT

61, J 2, 167 P.3d 1046

116 Second, some of Mr. Ott’s claims of ineffe:

tive assistance of counsel are raised for the first time

on appeal and some have been addressed by the trial

court in the 23B hearing, both categories bearing

different standards of review. Mr. Ott’s ineffective

assistance claim relating to counsels’ failure to object

to the victim impact evidence was not a part of hi

23B hearing. Because we decide this case on a claim

of ineffective assistance of counsel that is presented

for the first time on appeal, we need only describe one

appropriate standard of review. “An ineffective assi

tance of counsel claim raised for the first time

appeal presents a question of law.” Stat

2004 UT 25, 7 6, 89 P.3d 162

ANALYSIS

THIS COURT LACKS JURISDICTION TO

ADDRESS MR. OTT’S GUILTY PLEA BE

CAUSE MR. OTT FAILED TO MOVE THE

COURT TO WITHDRAW HIS PLEA

117 Utah Code section 77-13-6 (2008

the withdrawal of guilty pleas, including thi

plea in Mr. Ott’s case. Section 77-13-6 state

! A plea of not guilty may be

at any time prior to conviction

2a) A plea of guilty or no contest may

withdrawn only upon leave of the court and a

howing that it was not knowingly and

untanily madi

bD) A re ‘quest to wit hdraw a D iea of

i 1T)

abeyance, shall be made by motion before

guilty or no contest, except for a plea hel

sentence is announced. Sentence may not bi

announced unless the motion is denied. For a

plea held in abeyance, a motion to withdraw

the plea shall be made within 30 day

pleading guilty or no contest

e3 Any challenge tO a gullity plea

made within the time period specified

Subsection (2)(b) shall be pursued under Ti’

tie 7T&B. Chapter 4. Post-Conviction Reme

dies Act, and Rule 65C. Utah Rules of C

Procedure

118 We have previously held Li failure t

withdraw a guilty plea within the time frame dictat

ed by section 77-13-6 deprive trial court and

appellate courts ol jurisaiction t review the validity

of the plea. State v. Rhinehart, 2007 UT 61, 4J 12-14

167 P3d 1046: see also Grimmett v. State, 2007 UT

Ll, 4 8, 152 P3d 306 (“Utah Code ection 77-13

6(2)(b) establishes the filing limitations that govern a

criminal! defendant’s right to withdraw a guilty plea

These filing limitations are jurisdictional.”) “Sectio:

'

17-13-6(2\(b) ‘Imposes a jurl dictional bar on late-filed

LO

motions to withdraw guilty pleas,’ and failure

omply with its requirements ‘extinguishes a defend

int’s right to challenge the validity of the guilty plea

nm appeal.’” Grimmett, 2007 UT 11, 48 (internal

yuotation marks and citations omitted); State

Merrill, 2005 UT 34, 44 13-20, 114 P.3d 585 (addre

ing jurisdictional nature of section 77-13-6(2)(b) prior

to significant 2003 amendment In Rhinehart, we

further held that a defendant may not overcome

failure to timely withdraw his guilty plea even if the

faulure is “ tyled a a claim of ineffective istance ol

ounse!l ' 2007 UT 6 |

719 Mr. Ott did not move to withdraw his guilty

1 within the time restrctions of section 77-13-6

He argues that this court should disregard his failurs

to timely move to withdraw his guilty plea because

his guilty plea constitutes a misplea. We stated

State v. Kay that a misplea may be granted

where obviou reversible error has beer

committed in connection with the terms or

the acceptance of the plea agreement and no

undue prejudice to the defendant is appar

fraud {)7

enti in ituation where ome

I

App. 1l

deception by one party leads to the ac-

ceptance of the plea agreement[,|.... [and]

other circumstances where the balancing of

the interests and legitimate expectations of

the defendant and the public.

717 P2d 1294, 1305 (Utah 1986), overruled on other

grounds by State v. Hoff, 814 P.2d 1119, 1123 (Utah

1991). Obvious reversible error occurs when manifest

necessity is present. /d. at 1303.

{20 We decline to discuss whether Mr. Ott’s

plea met the requirements for a court to grant a

misplea because we hold that the misplea doctrine in

Mr. Ott’s case cannot be used to circumvent jurisdic-

tional requirements. Furthermore, neither the State

nor Mr. Ott made any motion to the trial court that a

misplea occurred, a factor which is considered in

cases that have granted a misplea. See Id. at 1296-97;

State v. Lopez, 2005 UT App 496, {4 2-8, 14-27, 128

P.3d 1; State v. Bernert, 2004 UT App 321, {J 2-5, 7-

12, 100 P.3d 221; State v. Horrocks, 2001 UT App 4,

qq 2-7, 12-32, 17 P.3d 1145; State v. Moss, 921 P.2d

1021, 1022-27 (Utah Ct. App. 1996). The Utah Court

of Appeals has recognized that a trial court may sua

sponte set aside a guilty plea even after the time

restrictions of section 77-13-6 have expired. Lopez,

Z005 UT App 496, 7 19. In this case, however, the

trial court never exercised this discretion. Moreover,

unlike the circumstance here, sentencing had not yet

occurred in Lopez. We therefore do not have jurisdic-

tion to determine the validity of Mr. Ott’s guilty plea.

App. 12

Il. MR. OTT’S COUNSEL WAS INEFFECTIVE

BECAUSE HE FAILED TO OBJECT TO VIC-

TIM IMPACT EVIDENCE, THEREBY PREJU-

DICING MR. OTT

{21 Mr. Ott argues his trial counsel was ineffec-

tive because counsel failed to object to the admission

of certain victim impact evidence during his capital

sentencing hearing. Specifically, counsel did not

challenge the admissibility of a six-minute videotape

featuring pictures of Lacey Lawrence set to moving

music, testimony from Lacey’s family members about

the devastating effect Lacey’s death had on them, and

testimony from Lacey’s family on their opinion of Mr.

Ott’s character and the appropriate sentence.

{22 “An ineffective assistance of counsel claim

raised for the first time on appeal presents a question

of law.” State v. Clark, 2004 UT 25, 4 6, 89 P.3d 162.

“To prove ineffective assistance of counsel, defendant

must show: (1) that counsel’s performance was objec-

tively deficient and (2) a reasonable probability exists

that but for the deficient conduct defendant would

have obtained a more favorable outcome at trial.” Id.

“To satisfy the first part of the test, defendant must

overcome the ‘strong presumption that [his] trial

counsel rendered adequate assistance.’” Jd. (quoting

State v. Crosby, 927 P.2d 638, 644 (Utah 1996)) (alter-

ations 1n original).

423 In State v. Carter, we questioned whether

victim impact evidence concerning a defendant’s

blameworthiness was probative and held that victim

App. 13

impact evidence was inadmissible in capital sentenc-

ing. 888 P.2d 629, 652-53 (Utah 1995), superseded by

statute, Utah Code Ann. § 76-3-207(2)(a)Qiii) (1995)

(“This censure of victim impact evidence in capital

cases applies to evidence of the victim’s character,

evidence of the effects of the crime on the surviving

members of the family, and evidence of the surviving

members’ opinions of the crime.”). In 1995, the Legis-

lature amended section 76-3-207 to expressly allow

evidence pertaining to “the victim and the impact of

the crime on the victim’s family and community

without comparison to other persons or victims,” in

capital sentencing proceedings. Utah Code Ann. § 76

3-207(2)(a)Qii) (2008).

124 Mr. Ott argues that regardless of the

amendment to section 76-3-207, his trial counsel

should have argued that the victim impact evidence

presented by the State in his sentencing proceeding

was not admissible either because (1) section 76-3-

207(2)(a)ll) is unconstitutional under the Utah

Constitution, or (2) that under Carter the evidence is

inadmissible because it is not probative. Mr. Ott also

contends that his counsel provided ineffective assis-

tance for failing to object to portions of the victim

impact evidence that spoke to Mr. Ott’s character,

chances for his rehabilitation, and the appropriate

penalty to be imposed; all of which he insists violated

the United States Constitution. We do not address

Mr. Ott’s first two arguments today because we hold

that portions of the impact evidence the State intro-

duced at Mr. Ott’s sentencing hearing violated the

App. 14

Eighth Amendment of the United States Constitu-

tion, and that Mr. Ott’s counsels’ failure to object to

this evidence constitutes ineffective assistance of

3

counsel

' Mr. Ott has cited various provisions of the Utah Constitu-

tion as possibly standing for the proposition that Utah Code

section 76-3-207(2)(aX{ill) is unconstitutional. In the past we

have declined to address the constitutionality of section 76-3-

207(2)(a)(iii) because either the issue had not been briefed or

admission of the victim impact evidence constituted harmless

error. See State v. Arguelles, 2003 UT 1, J 123 n.26, 63 P.3d 731;

State v. Honie, 2002 UT 4, 4 61 n.7, 57 P.3d 977; State v. Kell,

2002 UT 106, 9] 52-54, 61 P.3d 1019. In Mr. Ott’s case, we

decline to address the constitutionality of section 76-3-

207(2)(a)iil). We also do not address whether Mr. Ott’s counsel

was objectively deficient for failing to object to the “Meet Lacey

Lawrence” video. This court follows the primacy approach and

“looks first to state constitutional law, develops independent

doctrine and precedent, and decides federal questions only when

state law is not dispositive.” West v. Thomson Newspapers, 872

P.2d 999, 1006 (Utah 1994) (internal quotation marks omitted).

We do not address the state constitutional issues briefed by Mr.

Ott because doing so may require us to find section 76-3-

207(2Ma)iil) unconstitutional. Avoiding such an outcome is an

adequate reason to stray from the primacy approach in this

case. See State v. Briggs, 2008 UT 83, 4 26, 199 P3d 935 (“{I]f

the challenged state action violates the federal Constitution, we

need not reach the question of whether the Utah Constitution

provides additional protection; we may instead resolve the case

with reference only to the federal Constitution.”)

App. 15

Mr. Ott’s Counsel Was Objectively Deficient

Because They Failed to Object or to Attempt

to Otherwise Exclude Portions of the Victim

Impact Evidence

125 “To establish a claim of ineffectiveness

based on an oversight or misreading of law, a defend-

ant bears the burden of demonstrating why, on the

basis of the law in effect at the time of trial, his or her

trial counsel’s performance was deficient.” State v.

Dunn, 850 P.2d 1201, 1228 (Utah 1993). In Payne v.

Tennessee, the United States Supreme Court held

that the Eighth Amendment does not bar, per se,

victim impact evidence, but victim impact evidence

may be inadmissible if the evidence 1s so prejudicial

that it makes sentencing fundamentally unfair under

the Due Process Clause. 501 U.S. 808, 823, 827

(1991); see also Darden v. Wainwright, 477 U.S. 168,

181 (1986) (“The relevant question is whether the

prosecutors’ comments ‘so infected the trial with

unfairness as to make the resulting conviction a

denial of due_ process.’” (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Payne

overturned Booth v. Maryland, which held the Fighth

Amendment barred victim impact evidence. Payne,

501 U.S. at 830. However, to the extent Payne over-

ruled Booth, Bocth retained viability for its holding

that victim impact evidence that addresses the de-

fendant’s character or expresses the victim’s opinion

of the appropriate sentence at the penalty phase of

trial is inadmissible under the Eighth Amendment.

Id. at 830, n.2 (stating, Payne is limited to holding

“that evidence and argument relating to the victim

App. 16

and the impact of the victim’s death on the victim’s

family are inadmissible at a capital sentencing hear-

ing”); see also id. at 833 (O’Connor, J. concurring)

(stating, “we do not reach this issue as no evidence of

this kind was introduced at petitioner’s trial”); United

States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir.

1998) (stating, “Payne did not overrule the prohibi-

tions in Booth against the admission of ‘information

concerning a victim’s family members’ characteriza-

tion of and opinions about the crime, the defendant,

and the appropriate sentence.’” (quoting Payne, 501]

U.S. at 835 n.1 (Souter, J., concurring))).

126 We hold that large portions of the victim

impact evidence introduced at Mr. Ott’s capital sen-

tencing hearing featured the victims’ opinions of the

defendant’s chafacter or the appropriate sentence and

were therefore clearly at odds with United States

Supreme Court precedent. Each victim was asked to

testify about how he or she would feel if Mr. Ott were

to be released in twenty years. Each expressed the

opinion that Mr. Ott could not be rehabilitated and

the notion that he might ever be released frightened

them. We recount the relevant testimony below. In

order to provide context for the statements made, we

have quoted large portions of the testimony given at

Mr. Ott’s sentencing hearing. Although this testimony

contains many impermissible statements, we are not

suggesting that every statement quoted below 1s

constitutionally inadmissible.

App. 17

4] 27 Allen Lawrence, Lacey’s father, testified as

follows:

Q. In giving you an opportunity at this

point to express your thoughts and feelings

to the jury about what you think they ought

to consider in imposing sentence on Mr. Ott,

what would you say?

A. Well, I think they need to take what

kind of guy this person is into consideration.

I mean, he’s shown his hand. He’s shown

what he truly is, the kind of man he is

these types of crimes are committed by cer-

tain types of people and he just happens to

be one of them. They are psychopathic in na-

ture. They have no feelings for other people.

They have no respect for other people’s

rights. No respect for other people’s pursuit

of happiness. No respect for other people’s

feelings. They can kill and they don’t have

any more feeling for killing someone than if

they reached up and picked an apple off of a

tree. They don’t feel it. That’s the kind of guy

this is. I don’t think he’ll ever change. I don’t

think he should ever have the opportunity to

again perpetrate his violent nature on any

human being anywhere again ever. He

doesn’t deserve it. He’s used up all his chanc-

es. He’s shown who he is and what he does

when he does not get his way. He’s shown us.

He showed his hand. That’s what he is.

That’s is [sic] the defining moment of that

man’s life. That five minute episode defined

him as what he is. That’s what Mr. Ott is.

That’s him.

App. 18

@. Based upon your personal experi-

ences with Mr. Ott ... and what you ob-

served and perceived in the manner and

fashion in which he carried out the attack on

you on Hawthorne Drive, is it your percep-

tion that if he had known Lacey was in that

house would he have escorted her out before

setting that house on fire?

A. I don’t think he would have done a

damn thing different. This man is a terrorist.

He deals with anarchist cookbooks. He looks

at how bombs are built. When he set that

house on fire this isn’t like building a camp-

fire with a grocery sack. This is a bomb. If I

dumped gallons of gasoline on this floor right

here and lit it with a match, can you imagine

how explosive that would be? It goes up in-

stantly. ve thrown little bits of gas on a

campfire to start one. It flares up instantly.

Can you imagine that much gasoline in the

house? ... He didn’t care. This guy does not

care about other people’s feelings. He has no

empathy for anybody, none. He doesn’t have

it. It’s not inside of his character to have

that.

{28 Donna Ott testified as follows:

@. Assuming that Mr. Ott was given a

sentence of life with possibility of parole, do

you have any concerns about him getting out

of prison?

A. Ithink I should. As a matter of fact,

I do.

App. 19

Q. Okay. What is that concern?

A. I know a lot of very healthy 60-year-

old men. I don’t see that things will change

much in 20 years. I believe that he’ll come

out and he will look for us. Knock. Knock.

Exactly right.

@. So do you feel like he’d do this to

you again?

A. Exactly. Yes. Yes.

@. You said that you don’t see him

changing. What is that based on?

A. The control freak. They don’t know

if they don’t get what they want, they don’t

know any other way but to threaten. It’s a

lifestyle. He doesn’t know how to deal — it’s

how he lives his life.

429 Sarah Gooch, Donna Ott’s daughter,

sponded to a similar line of questioning as follows:

@. Based upon your — your knowledge

having lived with Mark Ott for those years,

experienced life in the home with Mark Ott,

and experienced the attack on September Ist

of 2002 by Mark Ott, what if any concerns do

you have if Mark Ott is ever released from

prison?

A. Ihave a hard enough time sleeping

as it is. It’s a long time for somebody to stir

about how pissed off they are.

@. What about his ability to change in

prison based upon what you know of him?

App. 20

A. Mark’s been like — his whole life, ev-

er since I’ve known him. How is he gonna

change?

Q. How will that impact you personal-

ly, do you believe, if he’s ever released from

the Utah State Prison?

A. I don’t know. I — I don’t know. I’m

terrified now. I’d hate to see how scared I’d

be if he was actually out.

Lucy Gooch testified:

@. After the event of that might, what

you've done, what you’ve gone through since,

do you have any — are you fearful of the de-

fendant?

A. Very much so.

@. And do you have any fear if he

would be released from prison in 20 years or

what he might do?

A. I think that if we let him out, it

doesn’t matter how old he’s going to be, I

think that, you know, he'll finish what he

went there to do. I honest to God I [sic] feel

that way.

431 Amber Lawrence, Lacey’s sister, testified as

follows:

@. Amber, knowing what happened in

the home on September lst of 2002, in the

Out [sic] Home, and what heppened to your

little sister, what are your thoughts and feel-

ings on how it would make you feel knowing

App. 21

that the man that did this to your father and

sister might have the possibility of being re

leased from prison in 20-plus years.

A. ‘Terrifies me. I don’t think that it

he wouldn’t — he wouldn’t change. He

wouldn’t change at all. And I didn’t — I came

here not knowing about not even a portion of

the things that have went on in the jail,

things that he had done. But I mean, it

scares me enough just sitting in this court-

room with him knowing he has no handcuffs

on. That scares me enough. And I don’t even

want to think about how it would be knowing

he was going to get out in any amount of

time. I don’t see how anybody could do what

he did. But he did that today. And I know

that if it was up to him, my dad wouldn’t be

sitting here today. My dad would not be here

at all... But it could have very well been me

instead of my little sister, or both of us.

@. Amber, is there anything else you

want this jury to know? Any other thoughts

or feelings you have you want to make sure

they are -

A. I want them to know that Mark does

not care. He doesn’t care what happened that

night. He doesn’t care if it was me or my sis-

ter or everybody in that house. He burned it

down. He didn’t help anybody out of it. He

didn’t try to pick out one person out of five.

He wanted just for us, my dad. He was there

for whoever and whatever was in that house

I mean, the house could have caught on fire

App Zz

to the next door neighbors. He didn’t care

who died. He didn’t care who got hurt. |

know his intention was to kill my dad, but

instead he killed my little sister. And I don’t

think he deserves anything more than what

she got. She can’t be here today to say what

she thinks. I don’t think that he deserves any

rights. He shouldn’t have any rights. He took

all of hers away from her, and I don’t believe

that he should have any

132 ‘Terry Cook, Lacey Lawrence’s mother

testified as follows:

@. ... Do you have any feelings that

you would like to express as they relate to

the defendant and what should happen to

the defendant?

A. Yeah. I think he should have to walk

in my shoes. I think you should have to walk

in my shoes ‘cause my last two years have

been horrible. You know what? They are not

going to get better. I loved my daughter. The

love I had for my daughter was so strong

You can’t take that away ... and I hate to

say this, but I hope you don’t get out on pa

role because you don’t deserve it. My daugh

ter don’t get to come back to me right now. |

didn’t get to finish with my daughter's life. |

have to go home tonight without my daugh

ter there, and I have to be alone for the rest

of my life and be unhappy for the rest of my

life. I hope you can think about that for the

rest of your life

133 It is clear to us that the testimony offered

at Mr. Ott’s sentencing falls squarely within the

categories of evidence identified as inadmissible, in

capital sentencing hearings, by Payne and Booth. M1

Ott’s counsel was objectively deficient for failing to

object to the offensive evidence

134 The State argues, however, that Mr. Ott’

counsel deliberately chose not to object to the inad

missible evidence as part of trial strategy. We find

this argument to be without merit. “Proving that his

counsel’s performance fell below an objective stand

ard of reasonableness requires |Mr. Ott] to ‘rebut the

strong presumption that under the circumstances,

the challenged action might be considered sound tria!

strategy.’” Taylor v. State, 2007 UT 12, 4 73, 156 P.3d

739 (quoting Carter v. Galetka, 2001 UT 96, { 40, 44

P3d 626). We “‘will not review counsel’s tactical

decisions simply because another lawyer, e.g., appel

late counsel, would have taken a different course.’”

Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994)

(quoting State v. Jones, 823 P.2d 1059, 1063 (Utah

1991)). Additionally, “whenever there is ‘a legitimate

exercise of professional judgment in the choice of trial

strategy, the fact that it did not produce the expected

result does not constitute ineffectiveness of counsel.’”

Id. (quoting State v. Bullock, 791 P.2d 155, 160 (Utah

1989)). In essence, the question is “[wlJas the failure to

raise the objections before the trial court the result of

a consciously chosen strategy of trial counsel rather

than an oversight, and if it was a strategic decision

did the making of that choice constitute ineffective

assistance of counsel?” Bullock, 791 P.2d at 158-59

35 We have previously analyzed whether trial

counsels’ failure to object to victim testimony at trial

is merely trial strategy. /d. at 155. In Bullock, a child

sexual abuse case, the defendant argued his trial

counsel was ineffective in failing to argue that vide

otaped testimeny of alleged child abuse victims and

expert testimony was inadmissible. /d. At trial,

videotaped testimony of four boys describing the

alleged abuse was presented to the jury, and the

social worker to whom the boys first disclosed the

abuse was questioned at trial. /d. at 156. Among

other things, defense counsel did not object to the

admissibility of the out-of-court statements, the

videotaping procedures, or the expert witness's testi-

mony that the children were victims of sexual abuse

Id. at 157-58

36 We found that allowing the jury to hear the

videotaped descriptions and the expert testimony and

{

then cross-examining the expert to attack the credi

bility of the children’s accusations was defense coun

sels’ strategy. /d. at 160. Defense counsel attempted

to “attack the quality of the State’s evidence in an

effort to persuade the jury of the insufficiency of the

evidence to support a conviction.” /d. at 158. We held

that counsel in Bullock was not objectively deficient

because “[wJhile the evidence complained of may have

been inadmissible, trial counsel could reasonably

conclude under these circumstances that there wa

little chance of keeping the testimony of the childr

App. 25

out of evidence,” and that it was necessary to allow

the expert testimony of the social worker in order for

defense counsel to challenge the veracity of the ex-

pert’s techniques. Jd. at 159. We also took into ac-

count that defense counsels’ presentation of defense

experts and evidence of defendant’s good character

and reputation for truthfulness was consistent with a

rational defense strategy. Jd. at 158.

137 Mr. Ott’s counsels’ failure to object to the

victim impact evidence presented in this case cannot

be construed to be a component of any rational de-

fense strategy. The State presents us with what it

views as one defense strategy that would include

tolerating the admission of prejudicial and inflamma-

tory inadmissible evidence: one that employed as its

central features avoiding the perception that Mr. Ott

was “pushing Lacey aside” while presenting Mr. Ott

as a remorseful man who took responsibility for his

actions. The State argues that any objection made to

the victim impact evidence would minimize the effect

of this strategy.

{38 We conclude, however, that counsels’ over-

all strategy was not just to avoid dishonoring Lacey’s

death, but also to present Mr. Ott as someone who

could be rehabilitated and who deserved the possibil-

ity of parole. In State v. Hovater, we noted if “the

evidence ha[s] no conceivable beneficial value to [the

defendant], the failure to object to it cannot be ex-

cused as trial strategy.” 914 P.2d 37, 42 (Utah 1996).

Victim impact testimony that portrayed Mr. Ott as a

murderer who was motivated by a desire to terrorize

App. 26

his victims and who is beyond rehabilitation does not

conceivably support Mr. Ott’s defense under the

State’s theory or any other that could be rationally

constructed.

739 We note that avoidance of drawing the

jury’s attention to certain facts or over-emphasizing

aspects of the facts is a well recognized trial strategy.

See State v. Harter, 2007 UT App 5, 7 16, 155 P.3d 116

(finding strategic decision in failure of defense coun-

sel to argue for curative jury instruction on implica-

tion of defendant’s flight because defense counsel did

not want to emphasize the fact that defendant fled

the scene of the crime). In Mr. Ott’s case, however,

tactical methods were available to his counsel, which

could have limited the type of victim impact evidence

admitted. For instance, Mr. Ott’s counsel could have

sought exclusion of the victim impact evidence about

Mr. Ott’s character through a motion in lmine. A

decision not to object to the victim impact evidence,

especially when the evidence violated existing prece-

dent prohibiting victims expressing opinions about

the sentence or the defendant’s character, falls below

the line of objective reason and therefore amounts to

ineffective assistance of counsel.

B. Mr. Ott’s Objectively Deficient Representa-

tion Prejudiced Mr. Ott

140 We also hold that Mr. Ott’s objectively

deficient representation prejudiced him. A defendant

“is prejudiced by counsel’s actions only if the result of

App. 27

the proceedings would have been different absent the

claimed deficiency.” State v. Greuber, 2007 UT 50, q 9,

165 P.3d 1185. “To show prejudice in the ineffective

assistance of counsel context, the defendant bears the

burden of proving that counsel’s errors ‘actually had

an adverse effect on the defense’ and that ‘there is a

reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been

different.’” State v. Santana-Ruiz, 2007 UT 34, § 20,

2007 WL 1095559 (quoting Strickland v. Washington,

466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)). “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’

Taylor v. State, 2007 UT 12, | 56, 156 P.3d 739 (quot-

ing Strickland, 466 U.S. at 694). “Because’ [some

errors will have had a pervasive effect on the infer-

%”

ences to be drawn from the evidence, altering the

entire evidentiary picture, and some will have had an

isolated trivial effect,’ in determining the effect of the

error, we ‘consider the totality of the evidence before

the ... jury.’” State v. Hales, 2007 UT 14, 4 86, 152

P.3d 321 (alterations in original) (quoting Strickland,

466 U.S. at 695-96).

41 In this case, the record discloses that there

is a reasonable probability that but for the admission

of the victim impact evidence that addressed Mr. Ott’s

character and the victims’ opinions of the appropriate

sentence, Mr. Ott would have received a more favora-

ble sentence. The admission of the evidence suffi-

ciently undermines our confidence in Mr. Ott’s

sentence.

App. 28

442 In State v. Kell, we analyzed the prejudicial

effect of victim impact evidence. 2002 UT 106, 44 52-

54, 61 P.3d 1019.* Mr. Kell, already incarcerated for

murder, was charged with the aggravated murder of

Mr. Blackmun, another inmate, and Mr. Kell was

convicted and sentenced to death. Jd. {J 1-2. At the

guilt phase of the trial, the victim’s family testified

about the pain, devastation, and anguish the loss of

the victim had caused them. /d. { 52 n.15. We con-

cluded that the victim impact evidence in Mr. Kell’s

case was not prejudicial. In making that determina-

tion, we emphasized that the family’s victim impact

testimony was “[not] particularly inflammatory,”

“moderate in tene, descriptive of the family’s loss and

mourning but not militant or angry,” and made “no

effort to pressure the jury to impose the death penal-

ty.” Id. |] 53-54. Specifically, a statement prepared by

the victim’s family and read to the court stated:

Concerning the penalty phase for this indi-

vidual, the family has an abiding conviction

that man’s laws were written for the unjust

and for evildoers. Therefore whatever pun-

ishment is meted out by this Court or this

“The prejudice of victim impact evidence in Kell was

addressed under the prejudice prong of a plain error analysis.

We have previously held, however, that a prejudice analysis is

the same under both a plain error and ineffective assistance of

counsel framework. State v. Parker, 2000 UT 51, 7 10, 4 P.3d 778

(“The prejudice test for ineffective assistance of counsel claims is

equivalent to the harmfulness test applied in assessing plain

error.”).

App. 29

jury, whether it be the death penalty or some

other sentence, my family will accept that

ruling.

Id. Y 52 n.15.

143 In concluding that the admission of the

victim impact evidence did not prejudice the defend-

ant, and therefore did not undermine our confidence

in the outcome, we found it important to note that the

victims’ statements “did not ask for the death penalty,

but left the decision up to the jury in remarkably

neutral terms.” Jd. { 53. “In fact, the family specified

that they would respect any decision the jury made.”

Id.

144 The content of victim impact testimony in

Mr. Ott’s case is dramatically more inflammatory

than the evidence admitted in Kell. Here, the victim

impact evidence comprised a large portion of the total

evidence presented. The testimony was angry in tone,

inflammatory in content and contained messages that

Mr. Ott was beyond rehabilitation. The existence of

these factors, especially considering that Mr. Ott’s

counsel never uttered a word objecting to the admis-

sion of the evidence, undermines our confidence in

the outcome.

45 The State argues mitigation evidence

presented by Mr. Ott’s counsel ameliorates any preju-

dicial or inflammatory effect the victim impact evi-

dence had. Our caselaw addressing prejudice under

Strickland suggests that deficient counsel that leads

to the admission of inflammatory statements is not

App. 30

prejudicial if other mitigating statements or evidence

is presented. For instance, in State v. Dunn we held

that a defendant was not prejudiced by his counsels’

failure to request a jury instruction concerning uncor-

roborated witness testimony because the county

attorney had testified that the witness’s testimony

was given in exchange for a reduction in his own

charge, the witness admitted on the stand to be a

pathological liar, and the judge instructed the jury

that they may disregard evidence they deemed in-

credible. 850 P.2d 1201, 1226-28 (Utah 1993). The

ameliorating statements mitigated any prejudicial

effect the absence of an uncorroborated witness jury

instruction may have had on the outcome of Mr.

Dunn’s trial. Id.

146 Mr. Ott’s case does not present an instance

where the mitigating evidence presented negates the

prejudicial effect of the unlawful victim impact evi-

dence. The single question before the jury was

whether Mr. Ott should receive a sentence of life with

parole or life without parole. Implicit in a sentence of

life with the possibility of parole is a belief by the jury

that Mr. Ott could one day be rehabilitated and re-

enter society. Underlying the jury’s decision is the

large amount of evidence addressing Mr. Ott’s mental

health, including any mood or personality disorders.

{47 Dr. Egh, the prison psychiatrist who treat-

ed Mr. Ott, testified that Mr. Ott was responding

positively to medication. Mr. Ott’s counsel also pre-

sented evidence of Mr. Ott’s tumultuous childhood,

war experience, and numerous psychiatric hospital

App. 31

stays leading up to the night of the crime wherein he

may have been improperly medicated. While persua-

sive, this evidence does not, in our judgment, neutral-

ize in any meaningful way the prejudicial effect that

the characterization of Mr. Oit as a murdering “ter-

rorist” made by people who directiy encountered Mr.

Ott on the night of the crime. That he was improving

while medicated in prison did nothing to mitigate the

numerous statements made that, once released, Mr.

Ott would become uncontrollable. In considering “‘the

totality of the evidence before the ... jury,” Hales,

2007 UT 14, ¥ 86 (quoting Strickland, 466 U.S. at

695-96), we must conclude that counsels’ failure to

object to the inadmissible evidence undermines

confidence in the outcome and therefore prejudiced

Mr. Ott.

{48 We therefore remand to the trial court with

instructions to afford Mr. Ott a new sentencing hear-

Ing.

CONCLUSION

149 The facts and issues presented by this case

are very complex. Although we first questioned

whether Mr. Ott could properly plead to aggravated

murder, we are without jurisdiction to address his

guilty plea because his failure to move to withdraw

the plea is a jurisdictional bar on this court. Mr. Ott

brought several claims addressing his counsels’ inef-

fective assistance. Today, we address only the argu-

ment that his counsel provided ineffective assistance

App. 32

for failing to object to victim impact evidence. Specifi-

cally, we hold that counsel was objectively deficient

for failing to object to victim impact evidence that

addressed Mr. Ott’s character, chances for rehabilita-

tion, and deserved sentence because such victim

impact evidence clearly violates the Eighth Amend-

ment when introduced in capital sentencing hearings.

Counsels’ failure to object to this evidence also preju-

diced Mr. Ott such that the objectively deficient

counsel constitutes ineffective assistance of counsel.

We remand to the trial court for a new sentencing

hearing consistent with this opinion.

{50 Associate Chief Justice Durrant and Jus-

tice Wilkins concur in Justice Nehring’s opinion.

DURHAM, Chief Justice, concurring:

451 I concur fully in the analysis and result of

the majority opinion on the federal issue, Dut write

separately to note my concern at the failure to engage

first with the state law questions properly preserved

and briefed. Structurally, I believe this court should

determine first whether state law has been complied

with before addressing claims that the federal Consti-

tution has been violated. West v. Thomson Newspa-

pers, 872 P.2d 999, 1005-06 (Utah 1994) (adopting the

primacy approach wherein the court “looks first to

state constitutional law, develops independent doc-

trine and precedent, and decides federal questions

only when state ‘aw is not dispositive,” and thus

provides for a “consistent method” that accords “with

App. 33

the original purpose of the federal system” (internal

quotation marks omitted)); see also State v. Briggs,

2008 UT 83, 7 52, 199 P.3d 935 (Durham, C.J., con-

curring) (“The failure to undertake independent state

analysis in cases where state law is argued contrib-

utes to a paucity of precedent and the absence of an

independent and adequate state ground for our

holding.”); State v. Tiedemann, 2007 UT 49, 4 3°. 162

P.3d 1106 (“{I]t is part of the inherent logic of federal-

ism that state law be interpreted independently and

prior to consideration of federal questions.”); Jeffs v.

Stubbs, 970 P.2d 1234, 1248 (Utah 1998) (“[Wlihen a

party asserts claims under both the Utah and federal

Constitutions, this court ordinarily first determines

the issue under the Utah Constitution and only

resorts to the federal Constitution if the state consti-

tution is not dispositive.”).

752 Justice Parrish concurs in Chief Justice

Durham’s concurring opinion

App. 34

IN THE UTAH SUPREME COURT

State of Utah,

Plaintiff and Appellee,

Case No. 20040638-SC

(Filed Jun. 11, 2010)

V.

Mark Anthony Ott,

Defendant and Appellant

ORDER

This matter is before the court upon Appellee’s

Petition for Rehearing, filed on February 9, 2010. The

Appellant’s filed a response to the Petition for Re-

hearing on March 30, 2010.

IT IS HEREBY ORDERED that pursuant to Rule

35 of the Utah Rules of Appellate Procedure the

petition for rehearing is denied. FURTHER the

opinion has been corrected. There is no change to the

result. A copy of the corrected opinion is included with

this order.

Kor The Court

6-11-10 s/ [Illegible|

Date Matthew B. Durrant

Associate Chief Justice