Failure To Respond To Excommunication Evidence Was Ineffective Assistance

The Utah Supreme Court affirmed a murder conviction but vacated the sentence and remanded for further proceedings

We agree that Lovell did not receive the representation the United States Constitution guarantees him. Lovell’s two attorneys provided ineffective assistance when they failed to object to, among other things, testimony regarding Lovell’s excommunication from the Church of Jesus Christ of Latter-day Saints (the Church). This prejudiced Lovell’s ability to have a fair sentencing hearing. Lovell is entitled to a sentencing hearing free from this improper and prejudicial evidence. We therefore vacate Lovell’s sentence and remand for further proceedings.

The crime

In 1985, Lovell kidnapped Joyce Yost and raped her. See State v. Lovell (Lovell I), 1999 UT 40, ¶¶ 3–8, 984 P.2d 382. Yost reported these crimes to the police. Id. Lovell then attempted to hire two individuals to kill Yost to prevent her from testifying against him. Id. ¶¶ 4–5. After those attempts failed, Lovell kidnapped Yost and killed her in a canyon outside of Ogden. Id. ¶¶ 6–7.

Evidence

Unlike in Vallejo, Lovell’s mitigation case did not rely on religion. Indeed, it appears that the defense carefully attempted to avoid wading into religious waters during its direct examination of Newton. During Newton’s direct examination, the defense elicited minimal testimony about religion, limited to Newton forming a relationship with Lovell as his “clergy leader” and as a “religious volunteer” at the prison. Newton’s direct examination was the most overtly religious when counsel asked Newton to describe his discussions with Lovell. Newton volunteered that when he and Lovell would meet, they would talk about things Lovell had “read in the Bible and the Book of Mormon.” At no point during their examination of Newton did Lovell’s counsel seek to talk about repentance or the Church as an organization. In fact, at no point did counsel even identify the Church, much less that Newton had been Lovell’s bishop. This testimony only came in through the State’s questioning.

To be sure, Lovell’s counsel asked the next two witnesses, Lovell’s former Church bishops Webster and Thompson, about Lovell’s status with the Church. Both witnesses testified that Lovell had been excommunicated and that they were not aware whether Lovell had asked to rejoin the Church.

Prejudice

The prosecution’s cross-examination of Newton suggested to the jurors that they could look to the Church and its leaders, who “are the living oracles of God” according to Church doctrine. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, TEACHINGS OF THE LIVING PROPHETS STUDENT MANUAL 45 (2016) (quoting Joseph Fielding Smith, The First Presidency and the Council of the Twelve, 69 THE IMPROVEMENT ERA 977, 978 (1966)). A juror who was a faithful Church member might reasonably have believed that Lovell’s excommunication and the fact that he had not been readmitted could be interpreted as evidence of divine guidance that he was not remorseful. Or, at the very least, that Lovell did not believe that he could demonstrate to the First Presidency that his remorse was genuine.

(Mike Frisch)