This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 25 

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, 

Appellee,

v. 

DOUGLAS A. LOVELL, 

Appellant. 

No. 20150632 

Heard February 9, 2024

Filed July 25, 2024 

On Direct Appeal

Second District, Weber County

The Honorable Michael D. DiReda

No. 921900407 

Attorneys:

Sean D. Reyes, Att’y Gen., Mark C. Field, William M. Hains, 

Asst. Solics. Gen., Salt Lake City, for appellee

Colleen K. Coebergh, Salt Lake City, for appellant

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the 

Court, in which JUSTICE PETERSEN, JUSTICE HAGEN, JUDGE JOHNSON, 

and JUDGE KELLY joined.

Having recused themselves, CHIEF JUSTICE DURRANT and 

JUSTICE POHLMAN do not participate herein; DISTRICT COURT

JUDGES CHRISTINE S. JOHNSON and KEITH A. KELLY sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Douglas Lovell appeals his 2015 conviction and death 

sentence for the murder of Joyce Yost. Lovell first argues that his 
STATE v. LOVELL

Opinion of the Court

2

conviction should be overturned because the district court 

improperly admitted testimony he provided in connection with his

now-vacated 1993 guilty plea. Even if we assume that this 

testimony should not have been admitted, its admission did not 

prejudice Lovell in light of the overwhelming evidence of his guilt.

We affirm Lovell’s conviction.

¶2 Lovell also argues that, even if his conviction is not 

overturned, he is entitled to a new sentencing proceeding. He 

contends that his counsel was constitutionally deficient in various

ways. We agree that Lovell did not receive the representation the 

United States Constitution guarantees him. Lovell’s two attorneys

provided ineffective assistance when they failed to object to, among 

other things, testimony regarding Lovell’s excommunication from

the Church of Jesus Christ of Latter-day Saints (the Church). This

prejudiced Lovell’s ability to have a fair sentencing hearing. Lovell 

is entitled to a sentencing hearing free from this improper and 

prejudicial evidence. We therefore vacate Lovell’s sentence and

remand for further proceedings.

BACKGROUND

¶3 In 1985, Lovell kidnapped Joyce Yost and raped her. See 

State v. Lovell (Lovell I), 1999 UT 40, ¶¶ 3–8, 984 P.2d 382. Yost 

reported these crimes to the police. Id. Lovell then attempted to hire 

two individuals to kill Yost to prevent her from testifying against 

him. Id. ¶¶ 4–5. After those attempts failed, Lovell kidnapped Yost 

and killed her in a canyon outside of Ogden. Id. ¶¶ 6–7.

¶4 Eight years later, Lovell pled guilty to the aggravated 

murder of Yost and was sentenced to death. Id. ¶ 2. After he was 

sentenced, Lovell moved to withdraw his guilty plea. State v. Lovell

(Lovell II), 2005 UT 31, ¶¶ 4, 12, 114 P.3d 575. The district court 

dismissed the motion to withdraw, concluding that it lacked 

jurisdiction to consider the merits of Lovell’s motion. Id. ¶ 12.

Lovell appealed. We reversed the district court’s determination and 

remanded for the district court to conduct a hearing on the merits 

of Lovell’s motion to dismiss. Id. ¶ 29.

¶5 On remand, Lovell argued that good cause existed to 

withdraw his plea “because the trial court failed to strictly comply 

with Utah Rule of Criminal Procedure 11(e).” State v. Lovell (Lovell 

III), 2011 UT 36, ¶ 3, 262 P.3d 803, abrogated on other grounds by State 

v. Guard, 2015 UT 96, ¶¶ 52, 61, 371 P.3d 1. Lovell contended that 

the district court erred because it failed to inform him of the rights 
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Opinion of the Court

3

he would be waiving by pleading guilty. Id. Lovell also argued that 

the court erred because it did not inform him of his right to appeal

or the time limit to withdraw his plea. Id. Lovell further contended

that the district court “did not properly determine what plea 

agreement was reached by . . . Lovell and the State.” Id. The district 

court did not permit Lovell to withdraw his plea. Id. ¶ 4. Lovell 

appealed again, and we reversed, holding that the district court 

failed to comply with rule 11(e). Id. ¶ 80. We concluded that this 

failure presented good cause for Lovell to withdraw his plea. Id.

¶6 With his plea withdrawn, Lovell’s case proceeded to trial. 

In this trial, Lovell did not plead guilty, but neither did he contest

his guilt, telling the jury during opening statements that he “is in 

fact guilty.” As part of the guilt phase of Lovell’s trial, the State

presented the jury with evidence of Lovell’s crimes. The State 

introduced surreptitious recordings of Lovell that it obtained while 

he was in prison. In those recordings, Lovell admitted that he 

murdered Yost.

¶7 Rhonda Buttars, Lovell’s former spouse, testified that 

Lovell had told her that Yost had accused him of rape and that he 

wanted to kill Yost to prevent her from testifying against him.

Buttars also testified that Lovell attempted to hire two people to 

murder Yost before ultimately killing her himself.

¶8 The State introduced Yost’s testimony from the 

preliminary hearing on Lovell’s rape charges. Yost testified that 

Lovell had raped her twice. The State offered Tom Peters’s

testimony from Lovell’s 1993 sentencing. Peters was one of the men 

Lovell had tried to hire to kill Yost. Peters explained that Lovell told

him Yost “was trying to accuse him of raping her . . . and that 

something had to be done.”

¶9 The State also introduced transcripts of Lovell’s testimony 

following his 1993 guilty plea. During that testimony, Lovell 

confessed to kidnapping, sexually assaulting, and murdering Yost 

to keep her from testifying against him.

¶10 Lovell did not cross-examine any of the State’s witnesses

at trial, although the transcript of Yost’s prior testimony contained

cross-examination. The jury convicted Lovell of aggravated 

murder.
STATE v. LOVELL

Opinion of the Court

4

¶11 After establishing Lovell’s guilt, his trial entered the 

penalty phase.1 There, the State presented additional evidence to 

support its burden of demonstrating that death was the 

appropriate punishment for Lovell’s crimes.2

¶12 The State first presented victim-impact testimony from 

Yost’s son, daughter, and two granddaughters. They testified about 

the effect Yost’s murder had on them and their family.

¶13 The State presented testimony from two law enforcement 

witnesses who investigated Yost’s death. The State also called Kim 

Holden, an adult probation and parole officer. These witnesses 

testified about Lovell’s lengthy criminal history and opined that he 

was untruthful, manipulative, and self-centered. Holden told the 

jury that if Lovell’s sentence held open the possibility of parole, the 

parole board would “have the authority to release [him] 

immediately.”

¶14 Carl Jacobson—a correctional supervisor at the prison—

testified that, in his opinion, Lovell is manipulative, cold, 

calculating, and controlling. Jacobson also opined that Lovell was

an escape risk.

¶15 Lovell then presented his case for mitigation. Lovell’s 

theme was that he was a changed person who had shown remorse 

and accepted responsibility for his crimes.

¶16 Lovell began his argument by presenting testimony from 

three of his former ecclesiastical leaders. Each witness described 

Lovell as very remorseful, a model prisoner, a hard worker, and a 

__________________________________________________________

1 Pursuant to Utah Code section 76-3-207(1), Lovell’s trial was 

split into a guilt phase, where the jury determined whether Lovell 

was guilty of the crime, and a penalty phase, where the jury 

considered whether the death penalty should be imposed.

2 We note that because Lovell committed the murder before

April 27, 1992, but was sentenced after that date, Utah law allowed

Lovell “to proceed either under the law which was in effect at the 

time the offense was committed or under the additional sentencing 

option of life in prison without parole.” UTAH CODE § 76-3-207.5(2).

The punishments available to Lovell when he committed his crime 

were life in prison with the opportunity of parole or death. See id.

§ 76-3-207.5(1)(b). Lovell elected to proceed under the old law, 

removing life without parole as a possible sentence.
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Opinion of the Court

5

caring individual. They testified that he was continually trying to 

improve himself and that he was involved with several charitable 

organizations.

¶17 Dr. John Newton was the first to testify. Newton testified 

that Lovell had expressed remorse for his crimes “[m]any times” 

during their interactions and that he believed Lovell “was very 

remorseful.” Newton explained that Lovell had “turned down an 

opportunity to have the details of his case aired because he was 

concerned that . . . it would affect the victim’s family.” Newton also 

testified that based on conversations he had with the officers in the 

prison, he “think[s] [Lovell] was regarded as a model prisoner.”

And he testified that Lovell “was involved with two or three 

charitable organizations.”

¶18 On direct examination, Lovell did not elicit any testimony 

about Newton’s religious affiliation. Indeed, it appears that 

Lovell’s counsel assiduously avoided asking Newton any 

questions about his role as a Church bishop.3 Nor did Lovell’s 

counsel ask Newton any questions about Lovell’s religious 

affiliation or status. The only suggestion that Newton’s interactions 

with Lovell involved the Church was Newton’s response when 

counsel asked him, “what did your discussions with Mr. Lovell 

entail when you met with him?” Newton testified that he talked 

__________________________________________________________

3 In the Church, “A bishop is the leader of a local congregation 

(known as a ward) with duties similar to those of a pastor, priest or 

rabbi.” Bishop, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS

NEWSROOM, https://newsroom.churchofjesuschrist.org/article/

bishop [https://perma.cc/8P7M-9CCQ].

To provide context, we will explain or define terms witnesses 

used that refer to Church teachings or practices. To the extent any 

of these might be considered adjudicative facts, we can take judicial 

notice of them because they are generally known in the jurisdiction 

where trial occurred or can be accurately and readily determined 

from sources whose accuracy cannot reasonably be questioned. See 

UTAH R. EVID. 201(b).
STATE v. LOVELL

Opinion of the Court

6

with Lovell about “religion on a fairly basic level” and “things 

[Lovell] had read in the Bible and the Book of Mormon.”4

¶19 The State, on the other hand, used cross-examination as an 

opportunity to explore both Newton’s and Lovell’s religious 

backgrounds. The State established that Newton was a Church 

bishop and that the Church has a handbook “that outlines the 

policies and procedures” for bishops to follow. The State then 

asked Newton whether “the handbook requires the convening of 

[a] disciplinary council when evidence suggests that an individual 

has committed murder?”5 Lovell’s counsel objected to this line of 

questioning for lack of foundation and was overruled. Newton 

then replied that he did not convene a disciplinary council to have 

Lovell removed from Church membership.

¶20 The prosecutor asked Newton if Lovell had been 

excommunicated from the Church.6 After confirming that Lovell 

__________________________________________________________

4 The Book of Mormon is one of the Church’s books of scripture.

Book of Mormon, ENCYC. BRITANNICA, https://www.britannica.co

m/topic/Book-of-Mormon [https://perma.cc/77B6-K9VP].

5 Church disciplinary councils are held “to consider a member’s 

standing in the Church following serious transgression[s].” M. 

Russell Ballard, A Chance to Start Over: Church Disciplinary Councils 

and the Restoration of Blessings, ENSIGN, Sept. 1990, at 15. According 

to the Church, the purpose of a disciplinary council is “to save the 

soul of the transgressor, to protect the innocent, and to safeguard 

the Church’s purity, integrity, and good name.” Id. A “disciplinary 

council ‘must be held in cases of murder, incest, or apostasy.’” State 

v. Hood, 2018 UT App 236, ¶ 23, 438 P.3d 54 (quoting id.). These 

councils are now referred to as “membership councils” within the 

Church, although they have the same function, requirements, and 

purpose. See THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,

GENERAL HANDBOOK: SERVING IN THE CHURCH OF JESUS CHRIST OF 

LATTER-DAY SAINTS 297, 302–04 (2023).

6 In the Church, excommunication refers to the “loss of Church 

membership.” Church Discipline, THE CHURCH OF JESUS CHRIST OF 

LATTER-DAY SAINTS NEWSROOM, (Dec. 10, 2018),

www.mormonnewsroom.org/article/church-discipline

[https://perma.cc/J8XZ-WW84]. Excommunication is “[t]he most 

serious sanction [a] disciplinary council may prescribe,” and it is “a 

(continued . . .)
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Opinion of the Court

7

had been excommunicated, the State asked Newton if Lovell had 

been readmitted into Church membership. The State also asked 

Newton what the process for readmittance after excommunication

entails. By this questioning, the jury heard that “the [F]irst 

[P]residency is the body” that determines whether a person is 

“remorseful and changed enough” to rejoin the Church.7

¶21 The State then elicited testimony from Newton that 

“repentance” is “the process of changing one’s life,” that it requires 

“feeling sorrow or remorse,” and that it is necessary to be 

readmitted to Church membership after excommunication. 

Following this testimony, the State asked Newton what “kind of 

sorrow” was required to show repentance.

¶22 When Newton responded that he was confused by the 

State’s question, the State asked Newton if he was familiar with the 

phrase “[g]odly sorrow.”8 Newton said he was familiar with the 

__________________________________________________________

course of last resort . . . only taken when less serious disciplinary 

measures are insufficient.” Id.

7 The First Presidency is comprised of the President of the 

Church and two counselors. First Presidency, THE CHURCH OF JESUS 

CHRIST OF LATTER-DAY SAINTS NEWSROOM, 

https://newsroom.churchofjesuschrist.org/topic/firstpresidency?cp=hrv-hr [https://perma.cc/69CP-FZNY]. The First 

Presidency holds “the supreme governing power of the Church” 

and they “supervise the work of the entire Church in all matters of 

policy, organization, and administration.” THE CHURCH OF JESUS 

CHRIST OF LATTER-DAY SAINTS, TEACHINGS OF THE LIVING PROPHETS 

STUDENT MANUAL 45 (2016) (quoting Joseph Fielding Smith, The 

First Presidency and the Council of the Twelve, 69 THE IMPROVEMENT 

ERA 977, 978 (1966)). A basic tenet of Church doctrine instructs that

members of the First Presidency “are the living oracles of God and 

the supreme adjudicators . . . of the law of the Church.” Id.

8 The Church teaches that “godly sorrow” is a principle of 

repentance that “leads to conversion and a change of heart,” 

requiring “heartfelt regret and true remorse.” Dieter F. Uchtdorf, 

Godly Sorrow, NEW ERA, Sept. 2019, at 32; see also Dieter F. Uchtdorf, 

You Can Do It Now!, ENSIGN, Nov. 2013, at 55–56. The term “godly 

sorrow” is taken from a New Testament passage: “For godly 

sorrow worketh repentance to salvation not to be repented of: but 

(continued . . .)
STATE v. LOVELL

Opinion of the Court

8

phrase but could not define it. Newton responded affirmatively 

when the State asked if repentance requires “a full and complete 

confession.” Newton also confirmed that Lovell had not told him

“all of the facts related to this case.” Lovell’s counsel again objected, 

arguing that this question was outside the scope of crossexamination. The district court again overruled the objection.

¶23 Lovell next called Gary Webster, another Church bishop. 

On direct examination, Lovell’s trial counsel asked Webster about 

Lovell’s excommunication from the Church. Webster explained 

that he had been involved in Lovell’s excommunication, and that 

he believed Lovell “understood clearly what [excommunication]

meant and . . . was comfortable with it.” He also testified that he 

was not aware if Lovell had ever asked to be readmitted to Church 

membership.

¶24 Lovell’s counsel asked Webster, “what was your 

impression of [Lovell’s] progress towards remorse and repentance 

as it pertains to the process and the church?” Webster testified that 

during their discussions, Lovell “was consistent in expressing 

remorse . . . . He never made light, never made fun, always was 

contrite, was concerned about the crime, the impact . . . and he was 

always consistent.”

¶25 On cross-examination, the State elicited testimony from 

Webster confirming that he did not represent the Church and that 

he believed that “no man knows what’s in another man’s heart.”

¶26 Lovell then called Charles Thompson, a third Church 

bishop. Lovell’s trial counsel asked Thompson about Lovell’s 

excommunication from the Church. Thompson testified that he 

knew that Lovell was excommunicated, and that Lovell never 

spoke to him about being readmitted. Thompson also testified that 

“[he] see[s] [Lovell] as a model prisoner.” And he testified that 

every time he met with Lovell, “[Lovell] has talked about remorse, 

particularly for the members of the family.”

¶27 On cross-examination, Thompson testified that his 

opinions did not represent the Church and that he “cannot read 

what’s in [Lovell’s] mind or heart.”

__________________________________________________________

the sorrow of the world worketh death.” 2 Corinthians 7:10 (King 

James).
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Opinion of the Court

9

¶28 Lovell continued his mitigation case by calling Becky 

Douglas, the founder of one of the charities Lovell had donated to

while in prison. Douglas testified that she had corresponded with 

Lovell for several years and that she had met with him in person 

on one occasion. While recounting that meeting, Douglas said that 

she asked Lovell if he had read the New Testament.

¶29 The State objected, arguing that “if she’s going to give an 

exposition on the doctrinal basis of the New Testament, I think it’s 

inappropriate.” Lovell’s counsel explained that Douglas would not 

be discussing religious doctrine. The court overruled the objection 

but explained that it didn’t “want to get into her interpretation of 

scriptures and other things any more than [it] wanted to get into 

the church’s stance on the death penalty.”

¶30 The court added that it “thought there were areas that we 

covered with the three ecclesiastical leaders” that were “not 

probative at all” and “out of bounds, but no one seemed to feel that 

way, so I let it go.”

¶31 Douglas continued her testimony, saying that when she 

had met with Lovell “he just felt so, so desponden[t]” and that she 

felt “this incredible remorse, this sadness [from Lovell] . . . that 

there was so much despair of what he had done.”9 She shared her 

belief that “by going through 30 years of prison” he has become a 

gentle, kind, sincere, and thoughtful man. During her testimony, 

Douglas explained that in her interactions with Lovell, he 

consistently expressed sorrow for Yost and her family. And she 

testified that if Lovell were ever released from prison, she

“wouldn’t have any hesitation to invite him into [her] home.” She 

continued by saying she has “absolute confidence that the [Lovell] 

I know is the real [Lovell] now.”

¶32 On cross-examination, Douglas reaffirmed her belief that 

Lovell had changed, saying Lovell “felt like he’d done so much evil, 

that he felt like he needed to do as much good as he could possibly 

do.”

¶33 Lovell presented other mitigation witnesses, including his 

caseworker and an officer at the prison. The officer testified that 

Lovell was a good inmate and that he would often resolve disputes 

__________________________________________________________

9 The State again objected to this testimony for relevance and

was overruled.
STATE v. LOVELL

Opinion of the Court

10

between inmates and even guards. Lovell presented evidence that 

in his thirty years of imprisonment, he had only received two writeups: one for having an unbuttoned shirt and another for having too 

many socks in his cell. And one of these witnesses talked about an 

instance where Lovell had helped a guard who had been 

accidentally sprayed in the eyes with insecticide. These witnesses 

uniformly testified that Lovell was polite, respectful, and took 

responsibility for his actions.

¶34 Lovell’s relatives testified that he was kind, humble, and 

positive. They also testified that, in their opinion, he would not be 

a risk if released and that they would support him if he were 

paroled. Lovell also read to the jury letters from seven of his penpals. These letters described Lovell as encouraging, supportive, 

understanding, respectful, courteous, and a good friend. They also 

talked about how Lovell had a positive outlook on life, he was 

constantly trying to improve himself, he had a lot to offer, and that 

he would be a beneficial addition to society if he were ever paroled.

¶35 In addition to the witnesses who testified about their 

personal relationships with Lovell, two expert witnesses testified 

in favor of mitigation. Lovell first elicited testimony from Dr. Mark 

Cunningham, a clinical and forensic psychologist, who testified 

that Lovell was not as morally culpable as other individuals.

Cunningham described multiple causes of Lovell’s diminished 

culpability, explaining that Lovell had a genetic predisposition to 

substance abuse and dependence, along with mood disorders and 

personality disturbance. Cunningham also explained that Lovell 

was exposed to amphetamines while his mother was pregnant. 

And he opined that Lovell likely suffered from a learning disability 

and neuropsychological deficits from recurrent head injuries.

¶36 Cunningham further testified that Lovell has diminished 

culpability because of his traumatic family life. He explained that 

Lovell had witnessed parental substance abuse and mental illness, 

the chronic absence of his father, and chronic dysfunction between 

his parents with “perverse sexuality.” He also explained that Lovell 

was subject to the “corruptive influence of his older brothers.”

Cunningham testified that Lovell had inadequate family structure, 

supervision, and guidance, along with inadequate community 

interventions. Cunningham also detailed the harm Lovell suffered 

when his brother died. Cunningham testified that, in his opinion,

there was a very low likelihood that Lovell would be violent in 
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Opinion of the Court

11

prison and that there was also little risk he would be violent if he 

were ever paroled.

¶37 Lovell’s second expert was Dr. Vickie Gregory, a 

neuropsychologist. Gregory testified that Lovell had sustained 

multiple head injuries throughout his life, at ages four, six, eleven, 

sixteen, and nineteen. She explained that prior tests had shown that 

Lovell suffered from moderate brain damage, which impaired his 

memory and executive functioning. Gregory also testified that she 

had tested Lovell, and in her opinion, he suffered from mild 

neurocognitive deficits due to traumatic brain injury. Gregory 

opined that she did not believe Lovell was a psychopath. And she 

testified that during her interactions with Lovell, she learned that 

he had completed forty-six high school and college-level classes 

and that he is involved in three charities.

¶38 Following the presentation of evidence, the jury retired to 

determine the appropriate punishment. They returned a verdict of 

death.

¶39 Lovell appealed, and we remanded under rule 23B of the 

Utah Rules of Appellate Procedure. We directed the district court 

to conduct an evidentiary hearing and make findings of fact 

concerning the representation Lovell’s trial counsel provided. After 

conducting an evidentiary hearing, the district court issued its 

findings of fact related to counsel’s performance. We now consider 

Lovell’s arguments on appeal with the benefit of the 23B court’s 

factual findings.

ISSUES AND STANDARDS OF REVIEW

¶40 Lovell first argues that the district court erred when it 

admitted statements in the guilt phase of his trial that Lovell had

made following his guilty plea in his earlier trial. We review a 

court’s decision to admit evidence for abuse of discretion. State v. 

Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186. But we review “the legal 

questions underlying the admissibility of evidence” for correctness. 

Id. (cleaned up).

¶41 Lovell next argues that his trial attorneys were 

constitutionally ineffective when they failed to adequately object to 

improper testimony during the penalty phase. An ineffective 

assistance of counsel claim “presents a question of law that we 

review for correctness.” State v. Carter, 2023 UT 18, ¶ 25, 535 P.3d 

819. When a claim for ineffective assistance of counsel has been 
STATE v. LOVELL

Opinion of the Court

12

developed upon rule 23B remand, we defer to the 23B court’s 

factual findings, reviewing them for clear error. See State v. 

Drommond, 2020 UT 50, ¶ 46, 469 P.3d 1056. 10

ANALYSIS

I. THE ADMISSION OF LOVELL’S PRIOR TESTIMONY IN THE GUILT 

PHASE OF HIS TRIAL WAS HARMLESS

¶42 Lovell first contends that his conviction should be 

overturned because the district court improperly admitted the 

testimony he gave after he was convicted in 1993. Following his 

1993 guilty plea, Lovell was called as a witness in the sentencing 

phase. Lovell first read the court a letter he wrote to plead for

leniency. Lovell was then questioned under oath by both the State

and his own attorneys.

__________________________________________________________

10 In our 23B remand order, we directed the district court “to 

make all findings of fact necessary to resolve: 1. Whether [trial 

counsel] performed deficiently” regarding multiple claims; and 

“2. Whether Lovell was prejudiced by [trial counsel’s] deficient 

performance, if any.” The district court not only made the factual 

findings we requested, but it analyzed legal arguments and entered 

conclusions of law.

As much as we appreciate the court’s initiative, we must 

emphasize that rule 23B does not contemplate, or indeed permit, a 

district court to make legal conclusions based upon the factual 

findings it enters. See UTAH R. APP. P. 23B(a), (e). Rule 23B remands 

are conducted for the purpose of developing facts related to the 

claims of ineffective assistance, and a district court’s role is limited 

to making these findings. Id. R. 23B(e). This process permits 

appellate counsel, armed with the facts developed on remand, to 

craft its appellate arguments to an appellate court.

The district court’s willingness to decide legal issues on rule 23B 

remand is perhaps understandable given that on at least one 

occasion we stated that we review the 23B court’s factual findings 

for clear error and its legal conclusions for correctness. See State v. 

Drommond, 2020 UT 50, ¶ 46, 469 P.3d 1056. This is, however, an 

incorrect description of the law. If a rule 23B remand hearing 

proceeds as the rule contemplates, there should be no legal 

conclusions for us to review. As much as we appreciate the district 

court’s efforts, we disregard its legal conclusions because they are 

outside the scope of both rule 23B and the remand order.
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Opinion of the Court

13

¶43 During that examination, Lovell admitted to specific facts 

of the crime. Lovell testified that he kidnapped and sexually 

assaulted Yost and that he later murdered her. He described the 

details of the murder, how he hid Yost’s body, and how he later 

attempted to locate her body as part of his plea agreement. He also 

testified about his attempt to solicit others to murder Yost. Lovell 

admitted that he decided to murder Yost himself after these 

attempts fell through. And he testified that he murdered Yost to 

keep her from testifying that he had raped her.

¶44 In 2011, this court vacated Lovell’s guilty plea and 

remanded for a new trial. Lovell III, 2011 UT 36, ¶ 80, 262 P.3d 803.

During his new trial—the trial Lovell asks us to review here—

Lovell’s counsel sought to suppress the admission of the testimony

he provided in the sentencing phase of his previous trial. Lovell 

argued that this testimony arose in the context of allocution and 

that the admission of allocution testimony would violate his 

constitutional rights.11

¶45 The district court allowed the admission of Lovell’s 

testimony, reasoning that it was not allocution because the 

statements were made under oath and subject to crossexamination.12 The transcripts of Lovell’s testimony were 

subsequently used to establish guilt at the trial that is the subject of 

this appeal.

¶46 Lovell argues that the district court erred when it 

determined that the testimony did not qualify as allocution. He 

further contends that because the testimony was obtained in 

connection with his vacated guilty plea, its admission violated his 

“right to appear and defend in person” under article I, section 12 of 

the Utah Constitution.

__________________________________________________________

11 “Allocution is a defendant’s right to speak on his or her own 

behalf after the fact finder determines guilt but before the judge 

pronounces sentence.” 24 C.J.S. Criminal Procedure and Rights of the 

Accused § 2255 (2024). “It is designed to temper punishment with 

mercy in appropriate cases, and to ensure that sentencing reflects 

individualized circumstances.” 21 AM. JUR. 2D Criminal Law § 723 

(2024).

12 The district court concluded that the letter Lovell read into the 

record should be considered allocution and excluded it.
STATE v. LOVELL

Opinion of the Court

14

¶47 Lovell points to our decision in State v. Maestas and argues 

that we concluded there that the constitutional right to allocution 

prevents using allocution statements in a subsequent prosecution. 

See 2002 UT 123, ¶¶ 3, 48–49, 140, 63 P.3d 621.13 Lovell explains that 

the testimony contained admissions that “Lovell . . . sexually 

assaulted Joyce Yost, conspired to kill her, ultimately killed [her]

and attempted to conceal the crime.” And Lovell appears to argue, 

although it is far from clear, that the admission of this testimony 

requires reversal of his conviction, reasoning that if “this testimony 

were excluded, the jury would have little [sic] of the crime or its 

circumstances.”14

¶48 The State contends that the district court did not err

because Lovell’s sworn statements did not qualify as allocution,

and therefore our holding in Maestas did not prevent using the 

statements at Lovell’s trial. Alternatively, the State argues that even

“if the trial court erred, the error was harmless beyond a reasonable 

doubt because admission of Lovell’s prior testimony was 

__________________________________________________________

13 The Maestas court considered whether the State could use

inculpatory allocution statements Maestas had made in the 

sentencing phase of a prior trial after that trial had been reversed 

and was being retried. State v. Maestas, 2002 UT 123, ¶¶ 14, 42, 63 

P.3d 621. While a majority of the court recognized a constitutional

right to allocution that “would be meaningless” if allocution 

statements could be used in a future prosecution, the court did not 

rest its holding on this principle. See id. ¶¶ 48–50, 140–41. The court 

instead held that Maestas’s allocution statements were 

inadmissible under rule 24(d) of the Utah Rules of Criminal 

Procedure, which says, “If a new trial is granted, the party shall be 

in the same position as if no trial had been held and the former 

verdict shall not be used or mentioned either in evidence or in 

argument.” See id. ¶¶ 51, 56 (cleaned up).

14 We note that Lovell does not explicitly argue that this error 

would require the reversal of his conviction, and the rest of his 

arguments challenge the penalty phase of the trial. Nevertheless, 

Lovell concludes his briefing by asserting, “[a]t the very least, the 

Court must reverse and remand for a new sentencing phase.”

Because Lovell’s prior testimony was admitted during the guilt 

phase, we treat his challenge to its admission as an argument that 

the error requires us to overturn his underlying conviction.
Cite as: 2024 UT 25

Opinion of the Court

15

cumulative of evidence eleven other witnesses provided.” The 

State also argues that it was harmless because the prior testimony 

“supported [Lovell’s] trial strategy to concede guilt in order to 

convince the jury at the penalty phase that he had taken 

responsibility for the crimes he committed.”

¶49 Lovell does not respond to either of the State’s arguments,

nor does he explain how the exclusion of this evidence would have 

altered Lovell’s decision to not contest his guilt.

¶50 In part because of the lack of briefing from Lovell on this 

topic, we will assume, without deciding, that the district court 

erred when it admitted Lovell’s 1993 sentencing testimony. We are 

willing to make this assumption because the State has 

demonstrated that even if the admission of this evidence violated 

Lovell’s constitutional rights, its admission was harmless beyond a 

reasonable doubt.15

¶51 “A constitutional error is harmless when it appears 

beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.” Mitchell v. Esparza, 540 U.S. 12, 

17–18 (2003) (cleaned up). Here, that means the admission of 

Lovell’s 1993 sentencing testimony was harmless if the State shows, 

beyond a reasonable doubt, that the jury would have convicted him

even if the challenged evidence had been excluded.

¶52 The State presented overwhelming evidence of Lovell’s 

guilt to the jury. The jury heard from William Holthaus, who 

investigated the kidnapping and sexual assault of Yost. Holthaus 

testified that he interviewed Yost and that she provided a 

description that matched Lovell and his vehicle. Holthaus told the 

jury that Lovell was ultimately charged with these crimes and 

bound over for trial during a preliminary hearing. He also testified 

that Lovell had told him “[t]his is not going to trial” and that a 

month later, Yost had gone missing.

__________________________________________________________

15 As the State points out, we have not conclusively determined 

that violations of the Utah Constitution require the application of 

the harmless beyond a reasonable doubt standard used for 

violations of the United States Constitution. See State v. Bell, 770 

P.2d 100, 106 n.12 (Utah 1988). We will assume, without deciding, 

that this is the correct standard to apply because Lovell fails to clear 

the hurdle he argues should apply.
STATE v. LOVELL

Opinion of the Court

16

¶53 The jury also heard from Rhonda Buttars, Lovell’s former 

spouse, who had spoken with the police in exchange for immunity.

Buttars testified that Lovell had told her that Yost accused him of 

rape and that he wanted to kill her because he didn’t want to go 

back to prison.

¶54 Buttars also testified that Lovell had contacted a friend, 

Billy Jack, offering him several thousand dollars to kill Yost. Buttars

explained that Billy Jack did not follow through with the murder. 

She further testified that Lovell then hired Tom Peters to murder 

Yost. But Buttars stated that Peters, like Billy Jack, did not do it.16

Buttars testified that, after these attempts to hire someone failed,

Lovell decided to kill Yost himself. Buttars told the jury that she

went with Lovell to surveil Yost’s apartment.

¶55 Buttars testified that Lovell told her, “I’m going to do it 

tonight, so drive me over there,” and that she drove Lovell to Yost’s 

apartment, dropped him off, and did not hear from him again for 

several hours. She explained that when she picked Lovell up, he 

told her that it “was pretty easy” to kill Yost. Lovell recounted to 

Buttars that he entered Yost’s home through an unlocked window,

and that he drove her up the canyon and strangled her, stomping 

on her neck once she fell to the ground. Buttars also testified that 

Lovell took Yost’s watch and tried to pawn it.

¶56 The State then called Detective Terry Carpenter. Carpenter 

explained that the police fitted Buttars with a hidden recording 

device to record her conversations with Lovell while he was in 

prison. Portions of these recordings were played for the jury, and 

transcripts were admitted into evidence. During these 

conversations, Lovell admitted to raping Yost. Lovell also detailed

that he had plotted to, and eventually did, murder Yost. The jury 

heard Lovell tell Buttars that he “committed a first-degree felony to 

cover another felony. It’s the death penalty. At the very least they’re 

__________________________________________________________

16 The State also introduced Tom Peters’s earlier testimony that 

Lovell had told him “this lady was trying to accuse him of raping 

her and that she was trying to break up his family and that 

something had to be done.” Peters also testified that he took this to 

mean that Lovell wanted Yost killed, and that Lovell offered him 

eight hundred dollars after which Peters said he would take care of 

it.
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Opinion of the Court

17

going to give me life without parole if I cooperate with them and 

go to them.”

¶57 Considering the totality of the evidence before the jury, the 

admission of the challenged testimony did not cause the jury to 

convict when it otherwise might have acquitted. Even without 

Lovell’s 1993 testimony, the jury heard recorded statements of 

Lovell admitting to the crime. Buttars and others testified about 

Lovell’s crimes. Lovell did not cross-examine these witnesses.17 As 

such, there is nothing in the record that would allow us to conclude 

that the jury would not have credited the truth of their testimony. 

On this record, the State has shown that the admission of Lovell’s 

prior testimony was harmless beyond a reasonable doubt. We 

affirm Lovell’s conviction.

II. LOVELL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING 

THE PENALTY PHASE OF HIS TRIAL

¶58 Lovell argues that his death sentence must be overturned, 

and that he must be given a new sentencing hearing because his 

counsel provided ineffective assistance during the penalty phase of 

his trial. While Lovell raises multiple claims of ineffectiveness, we 

focus on one—whether trial counsel was ineffective for failing to 

adequately object to testimony about Church doctrine and Lovell’s 

status within the Church.18

¶59 Essential to a criminal defendant’s Sixth Amendment 

“right to counsel is the right to the effective assistance of counsel.” 

Strickland v. Washington, 466 U.S. 668, 685–86 (1984) (cleaned up); 

see also State v. Gallegos, 2020 UT 19, ¶¶ 33, 35, 463 P.3d 641. To 

assess whether a defendant has been denied the representation the 

United States Constitution promises, we apply the two-part test 

Strickland established. Strickland requires the defendant to show 

that (1) “counsel’s performance was deficient” and (2) “the 

deficient performance prejudiced the defense.” 466 U.S. at 687.

__________________________________________________________

17 The sole exception was the cross-examination of Yost, which 

appeared on the preliminary hearing transcript; however, that

cross-examination was brief, and did not seek to challenge her 

credibility.

18 Because we vacate Lovell’s sentence, we do not opine on any 

of his other challenges.
STATE v. LOVELL

Opinion of the Court

18

¶60 Under Strickland’s first prong, our inquiry focuses on 

“whether counsel’s assistance was reasonable considering all the 

circumstances.” Id. at 688. This is “a deliberately stringent standard 

that requires us to ‘indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance.’” State v. Carter, 2023 UT 18, ¶ 27, 535 P.3d 819 (quoting 

Strickland, 466 U.S. at 689). A defendant must overcome this 

presumption by “identify[ing] the acts or omissions of counsel that 

are alleged not to have been the result of reasonable professional 

judgment.” Strickland, 466 U.S. at 690.

¶61 “In short, the question of deficient performance is not 

whether some strategy other than the one that counsel employed 

looks superior given the actual results of trial. It is whether a 

reasonable, competent lawyer could have chosen the strategy that 

was employed in the real-time context of trial.” State v. Nelson, 2015 

UT 62, ¶ 14, 355 P.3d 1031 (cleaned up). Even if counsel fails to 

object to inadmissible testimony, that decision might—under the 

circumstances—fall within “the range of legitimate decisions 

regarding how best to represent a criminal defendant.” See

Strickland, 466 U.S. at 689; State v. Bermejo, 2020 UT App 142, ¶ 47, 

476 P.3d 148.

¶62 Strickland instructs us to look at “all the circumstances” of 

the allegedly deficient representation. 466 U.S. at 690. It is therefore 

helpful to review the constitutional limitations on imposing a death 

sentence and Utah’s statute governing sentencing in a capital case.

A. The Constitutional Limitations on Capital Punishment

¶63 The death penalty is profoundly different from any other 

punishment that the State can impose because it is unique “in both 

its severity and its finality.” Gardner v. Florida, 430 U.S. 349, 357–58 

(1977) (plurality opinion); Monge v. California, 524 U.S. 721, 732 

(1998). The United States Supreme Court has “recognized an acute 

need for reliability in capital sentencing proceedings.” Monge, 524 

U.S. at 732. This need for reliability also “requires a 

correspondingly greater degree of scrutiny of the capital sentencing 

determination.” California v. Ramos, 463 U.S. 992, 998–99 (1983).

“Because the death penalty is the most severe punishment, the 

Eighth Amendment applies to it with special force.” Roper v. 

Simmons, 543 U.S. 551, 568 (2005).

¶64 The United States Supreme Court has explained that “if a 

State wishes to authorize capital punishment it has a constitutional 
Cite as: 2024 UT 25

Opinion of the Court

19

responsibility to tailor and apply its law in a manner that avoids 

the arbitrary and capricious infliction of the death penalty.” Godfrey 

v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion). This requires

that the death penalty “be limited to those offenders who commit a 

narrow category of the most serious crimes and whose extreme 

culpability makes them the most deserving of execution.” Roper, 

543 U.S. at 568 (cleaned up).

¶65 A death sentence will generally satisfy these constitutional 

limitations if it meets two requirements. See Kansas v. Marsh, 548 

U.S. 163, 173–74 (2006). The Constitution first requires “that a 

capital sentencing scheme must genuinely narrow the class of 

persons eligible for the death penalty and must reasonably justify 

the imposition of a more severe sentence on the defendant 

compared to others found guilty of murder.” Loving v. United States, 

517 U.S. 748, 755 (1996) (cleaned up). This narrowing is 

accomplished “by requiring that the sentencer find at least one 

aggravating circumstance.” Id.

¶66 The State “must give narrow and precise definition to the 

aggravating factors that can result in a capital sentence.” Roper, 543 

U.S. at 568. Otherwise, “a death penalty system could have 

standards so vague that . . . a pattern of arbitrary and capricious 

sentencing . . . could occur.” Godfrey, 466 U.S. at 428 (cleaned up).

For example, in Godfrey, the Court overturned a death sentence that 

was “based upon no more than a finding that the offense was 

‘outrageously or wantonly vile, horrible and inhuman.’” Id. The 

Court explained that this finding was insufficient to impose a death 

sentence because “[a] person of ordinary sensibility could fairly 

characterize almost every murder as ‘outrageously or wantonly 

vile, horrible and inhuman.’” Id. at 428–29, 433.

¶67 Finding an aggravating circumstance “is not an end in 

itself.” Lowenfield v. Phelps, 484 U.S. 231, 244 (1988). A death 

sentence cannot be automatically imposed merely because the 

sentencer finds a narrow and precisely defined aggravating factor. 

See Blystone v. Pennsylvania, 494 U.S. 299, 304–05 (1990). Instead, the 

Constitution imposes a second requirement—that the sentencer 

“render a reasoned, individualized sentencing determination 

based on a death-eligible defendant’s record, personal 

characteristics, and the circumstances of his crime.” Marsh, 548 U.S. 

at 174; see also Lockett v. Ohio, 438 U.S. 586, 606 (1978) (plurality 

opinion) (holding that the Constitution demands an 
STATE v. LOVELL

Opinion of the Court

20

“individualized consideration of mitigating factors” to impose a 

death sentence).

¶68 Considering this second principle, the Supreme Court has 

held “that the Eighth and Fourteenth Amendments require that the 

sentencer . . . not be precluded from considering, as a mitigating 

factor, any aspect of a defendant’s character or record and any of 

the circumstances of the offense that the defendant proffers as a 

basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 

104, 110 (1982) (quoting Lockett, 438 U.S. at 604). Put differently, a 

defendant has “the right to present sentencers with information 

relevant to the sentencing decision,” and the sentencer is “oblige[d] 

. . . to consider that information in determining the appropriate 

sentence.” Marsh, 548 U.S. at 175.

¶69 Further, a jury in a capital proceeding must make its 

sentencing determination “with the appropriate awareness of its 

truly awesome responsibility” to determine whether death is the 

appropriate punishment in a specific case. Caldwell v. Mississippi, 

472 U.S. 320, 341 (1985) (cleaned up). We generally assume that 

jurors will take their role seriously and “act with due regard for the 

consequences of their decision.” Id. at 330 (cleaned up). But if a 

jury’s sense of responsibility has been diminished, a decision to 

impose the death penalty might not meet “the Eighth 

Amendment’s heightened need for reliability in the determination 

that death is the appropriate punishment in a specific case.” Id. at 

340–41 (cleaned up).

¶70 In an effort to conform with these constitutional

requirements, Utah provides statutory guidance on when the death 

penalty may be imposed. In Utah, the State must convince the jury 

of two elements beyond a reasonable doubt: (1) that the 

aggravating circumstances outweigh the mitigating circumstances, 

and (2) that the death penalty is justified and appropriate under the 

circumstances.19 UTAH CODE § 76-3-207(5)(b). In weighing the 

__________________________________________________________

19 The statute provides a non-exclusive list of mitigating 

circumstances, including:

(a) the defendant has no significant history of prior 

criminal activity; (b) the homicide was committed 

while the defendant was under the influence of 

mental or emotional disturbance; (c) the defendant 

(continued . . .)
Cite as: 2024 UT 25

Opinion of the Court

21

aggravating and mitigating circumstances, the jury does not simply 

compare their numbers, but rather it considers “the totality of the 

. . . circumstances in terms of their respective substantiality and 

persuasiveness.” State v. Maestas, 2012 UT 46, ¶ 265, 299 P.3d 892 

(cleaned up).

¶71 A death sentence is “never mandated or imposed 

automatically,” even if no evidence is offered in mitigation. State v. 

Lafferty, 2001 UT 19, ¶ 128, 20 P.3d 342. And “[t]he burden never 

shifts to the defendant.” Id. In other words, in Utah capital cases, 

death is never the default. The State must prove beyond a 

reasonable doubt that death is the appropriate sentence on the 

individual facts of each case.

B. Trial Counsel’s Failure to Adequately Object to Testimony 

Regarding Church Doctrine and Lovell’s Excommunication from the 

Church Was Unreasonable

¶72 Lovell argues that his counsel were deficient because they 

failed to adequately object to testimony that he had been 

excommunicated from the Church and testimony concerning the 

Church’s doctrine regarding forgiveness and readmission to 

__________________________________________________________

acted under duress or under the domination of 

another person; (d) at the time of the homicide, the 

capacity of the defendant to appreciate the 

wrongfulness of his conduct or to conform his 

conduct to the requirement of law was impaired as a 

result of a mental condition, intoxication, or influence 

of drugs . . . (e) the youth of the defendant at the time 

of the crime; (f) the defendant was an accomplice in 

the homicide committed by another person and the 

defendant’s participation was relatively minor; and 

(g) any other fact in mitigation of the penalty.

UTAH CODE § 76-3-207(4).

The statute also allows the jury to consider aggravating 

circumstances outlined in section 76-5-202. Id. § 76-3-207(3). For 

example, the statute allows the jury to consider if “the actor 

committed homicide for the purpose of . . . preventing a witness 

from testifying.” See id. § 76-5-202(2)(a)(xi)(A).

The jury may also consider “any other facts in aggravation or 

mitigation of the penalty that the court considers relevant to the 

sentence.” Id. § 76-3-207(2)(a)(iv).
STATE v. LOVELL

Opinion of the Court

22

Church membership. Lovell recognizes that his counsel attempted

to object to some of this testimony. But Lovell asserts that these 

objections were “ineffective.”

¶73 Lovell’s mitigation strategy was clear. The State had 

presented evidence of his heinous crimes. To impose the death 

penalty, the State needed to convince every juror that the 

aggravating circumstances outweighed the mitigating 

circumstances beyond a reasonable doubt. To escape the death 

penalty, Lovell needed only a single juror to conclude that the State 

had not met its burden. Lovell sought to seed that doubt, in part, 

by presenting himself as a different person from the one who had 

kidnapped, raped, and murdered Yost. Lovell tried to show he had 

changed by admitting to and showing remorse for those crimes. 

And he called witnesses who attempted to paint a picture of a 

model prisoner who had made genuine steps toward rehabilitation.

¶74 Lovell began his mitigation case by calling Dr. Newton.

Newton was “a religious volunteer” at the prison, where he acted 

as Lovell’s “clergy leader.” Newton testified that, based on 

conversations with prison officers, he thought that Lovell “was 

regarded as a model prisoner.” He explained that the officers “all 

spoke very highly of” Lovell. Newton also explained that Lovell 

had taken multiple classes while in prison and that he was

“involved with two or three charitable organizations.” And he 

testified that he believed Lovell “was very remorseful.” Indeed, 

Lovell had expressed remorse for his crimes “many times.”

¶75 Lovell’s questioning of Newton never strayed into 

religion. Beyond the background information necessary to explain 

that Newton met Lovell as his “clergy leader,” the only hint of 

religion from Newton’s direct examination came from Newton’s 

response to a general question:

Q. So what did your discussions with Mr. Lovell 

entail when you met with him at the prison?

A. . . . We talked about religion on a fairly basic level, 

like Ten Commandment kind of stuff . . . at some 

point [Lovell] had some questions about things he 

had read in the Bible and the Book of Mormon, so we 

would talk about that on occasion. Sometimes we 

talked about his family.
Cite as: 2024 UT 25

Opinion of the Court

23

¶76 Despite the lack of religious testimony during Lovell’s 

direct examination of Newton, the State questioned Newton almost 

exclusively about religious topics. The State began its 

cross-examination by asking Newton if he “w[as] a bishop for the 

Church of Jesus Christ of Latter-[d]ay Saints.” After Newton said 

he was, the State began a long line of questioning about the Church 

and its doctrine.

¶77 The State first questioned Newton about Church 

organization and policy, eliciting the following testimony:

Q. . . . [I]n the LDS Church what is the highest 

governing body?

A. Well, the [F]irst [P]residency.

¶78 The prosecutor then questioned Newton about Lovell’s 

relationship with the Church, asking:

Q. . . . [I]s the defendant currently a member of the 

LDS Church?

A. [He] [i]s not.

Q. Okay. Was he ever a member of the church?

A. Yes, he was.

¶79 The prosecutor then asked Newton:

Q. . . . [A]re you aware that the handbook [of 

instructions for Church leaders] requires the 

convening of [a] disciplinary council when evidence 

suggests that an individual has committed murder?

Lovell’s counsel objected for lack of foundation, arguing that 

“[Newton] has no expertise or knowledge of the facts.” The court 

overruled the objection and allowed the State to continue its 

questioning.

¶80 Newton testified that he did not convene a disciplinary 

council and that he would “have to just say that’s a fault of mine.”

¶81 Following this testimony, the prosecutor shifted its focus 

to Lovell’s eventual excommunication from the Church, asking:

Q. You are aware that the defendant has since been 

excommunicated by the church?

A. I am aware of that.
STATE v. LOVELL

Opinion of the Court

24

Q. Okay. Now, in order for an individual to be 

readmitted into the church after being 

excommunicated for murder, do you know who 

makes that decision, that ultimate decision, if they’re 

remorseful and changed enough that they can join the 

church again?

A. . . . Well, I would assume that it would start with 

the local bishop . . . . And then the bishop would talk 

to the stake president . . . . And then the stake 

president would talk to someone higher up in the 

church. The decision wouldn’t be made at the local 

level. It would be made higher up in the church.20

Q. Would it surprise you at all that . . . the [F]irst 

[P]residency is the body that makes that 

determination?

A. No, that doesn’t surprise me.

Lovell’s counsel did not object.

¶82 The State persisted in this line of questioning, eliciting the 

following testimony:

Q. So you would agree, then, that the determination 

of remorse or change ultimately can only be made by 

the [F]irst [P]residency, not by anyone else within the 

church?

A. Well, they certainly are the ones that have the 

ultimate say about reinstatement. So, yes.

Q. Okay. And you’re aware that the defendant has 

not been readmitted into the church?

A. Yes.

Q. He has not been rebaptized?

__________________________________________________________

20 A stake president “oversees Church programs in a defined 

geographic area composed of individual congregations called 

wards . . . . He also oversees the activities of the bishops or ward 

leaders, counseling them as needed.” Stake President, THE CHURCH 

OF JESUS CHRIST OF LATTER-DAY SAINTS NEWSROOM, 

https://newsroom.churchofjesuschrist.org/article/stakepresident [https://perma.cc/24VJ-XGYJ].
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Opinion of the Court

25

A. I knew that.

Lovell’s counsel did not object.

¶83 The State continued its questioning:

Q. In the LDS Church what is that process called, the 

process of changing one’s life, essentially?

A. You could call it repentance.

Q. . . . Would you say that feeling sorrow or remorse 

is part of that process?

A. Yes.

Q. . . . Is there a particular kind of sorrow that the 

person has to have?

A. I don’t understand your question.

Q. Okay. Are you familiar with the phrase “[g]odly

sorrow”?

A. Well, I’ve heard of it. I’m not sure I know what that 

means.

Again, counsel did not object.

¶84 The State continued:

Q. That’s fine. Would you agree that there is a 

difference between expressing remorse . . . and 

actually being remorseful? . . .

A. Sure. People can say anything.

Q. Okay. Okay. Now, the defendant has made 

expressions of remorse to you. He’s expressed 

remorse to you, correct?

A. Yes.

Q. . . . [B]ut you can’t say that he is in fact totally 

remorseful; is that correct?

A. I don’t think anyone can.

¶85 The State then began questioning Newton about Lovell’s 

repentance, asking:

Q. As part of that process of repentance, is a full and 

complete confession part of that process to church 

leaders and victims?
STATE v. LOVELL

Opinion of the Court

26

A. Sure. Yes.

Q. Okay. And you had indicated earlier that the 

defendant hasn’t told you all of the facts related to 

this case, the murder of Joyce Yost; is that correct?

A. That’s correct.

Lovell’s counsel objected to this question, arguing that it was 

outside the scope of cross-examination because “the crime took 

place prior to Mr. Newton’s involvement with Lovell.” The court 

overruled the objection.

¶86 Lovell posits that counsel should have lodged additional 

challenges to this testimony because it “[s]uggest[ed] the church is 

in charge of adequacy of remorse and acceptance of responsibility.”

And that the testimony therefore called on the jury to base its 

decision on religious principles, “usurp[ing] the jury’s function, 

[and] depriving Mr. Lovell of a fair and independent jury.” Lovell 

also argues that the objections his counsel made were ineffective.

¶87 We agree that reasonable counsel would have recognized 

both the problems with this testimony and its potential to invite the 

jury to base its decision on something other than its own 

assessment of Lovell. And we agree that reasonable counsel would 

have done something—either object to the entire line of 

questioning, seek curative instructions, or move for a mistrial—to 

protect their client. 21

__________________________________________________________

21 Lovell does not clearly identify what objection trial counsel 

should have made. At one point, he argues that the testimony 

amounted to prosecutorial misconduct. And at other times, he 

argues that the testimony “usurped the jury’s function, depriving 

Lovell of a fair and independent jury.” Typically, the failure to 

identify specifically how trial counsel erred will preclude 

succeeding on a claim of ineffective assistance. As we explained in 

State v. Gallegos, the defendant “has the burden to overcome a 

strong presumption of reasonableness which he must do by 

identifying the acts or omissions of counsel that are alleged not to 

have been the result of reasonable professional judgment.” 2020 UT 

19, ¶ 37, 463 P.3d 641 (cleaned up). We, under the United States 

Supreme Court’s instruction, have a greater concern for reliability 

when the death sentence is imposed. See Lockett v. Ohio, 438 U.S.

(continued . . .)
Cite as: 2024 UT 25

Opinion of the Court

27

¶88 During the penalty phase of a capital case, the evidence 

allowed is exceedingly broad. The court may admit “[a]ny evidence 

the court considers to have probative force . . . regardless of its 

admissibility under the exclusionary rules of evidence.” UTAH 

CODE § 76-3-207(2)(b). This statute naturally limits counsel’s ability 

to challenge evidence. The broad discretion of the court does not, 

however, mean all evidence is admissible. At the very least, 

evidence must be probative. See id. And we have contemplated that 

evidence may be inadmissible during the penalty phase if it is 

“unduly prejudicial” by being confusing or inflammatory to the 

jury. Maestas, 2012 UT 46, ¶ 286; see also Lafferty, 2001 UT 19, 

¶¶ 105–06.

¶89 We first note that the objections trial counsel made to 

Newton’s testimony missed the mark. Counsel objected to the State 

asking Newton if he was “aware that the handbook requires the 

convening of [a] disciplinary council when evidence suggests that 

an individual has committed murder?” Counsel argued that 

Newton “has no expertise or knowledge of the facts.” But the State 

had laid foundation—without objection—that Newton was a 

Church bishop and that the Church handbook “outlines the 

policies and procedures” for bishops and other Church leaders. The 

State laid sufficient foundation to ask Newton about his duties as a 

bishop within the handbook.

¶90 Counsel’s second objection was similarly anemic. Counsel 

objected to the State asking Newton “that the defendant hasn’t told 

you all of the facts related to this case, the murder of Joyce Yost; is 

__________________________________________________________

586, 604 (1978) (plurality opinion); see also State v. Wood, 648 P.2d 

71, 81 (Utah 1982). This greater concern for reliability “requires a 

correspondingly greater degree of scrutiny” when reviewing a 

death sentence. California v. Ramos, 463 U.S. 992, 998–99 (1983).

As such, we “have the sua sponte prerogative in [death penalty] 

cases to notice, consider, and correct manifest and prejudicial error 

which is not objected to at trial or assigned on appeal, but is 

palpably apparent on the face of the record.” State v. Tillman, 750 

P.2d 546, 552–53 (Utah 1987). Here, we are not called upon to notice, 

consider, or correct an unobjected-to error; trial counsel weakly 

objected to some of the problematic questioning, and appellate 

counsel generally identified and briefed the issue. We are, 

however, required to look past briefing deficiencies that might 

have doomed a similar argument in a non-capital case.
STATE v. LOVELL

Opinion of the Court

28

that correct?” Counsel argued that this question was beyond the 

scope of cross-examination because “the crime took place prior to 

Mr. Newton’s involvement with Mr. Lovell.” However, this 

question was not outside the scope of cross-examination because 

Newton testified about his knowledge of Lovell’s crimes during 

direct examination.

¶91 Lovell’s counsel asked Newton: “in you[r] discussions 

with Mr. Lovell about the crimes he was involved in, did you have 

a chance to discuss those issues with him at some time?” And 

Newton testified: “I don’t recall that [Lovell] and I ever discussed 

his crimes. I heard about it from guards and others. But he and I 

never discussed any of the details of his crime other than, like I say, 

I knew why he was there.” This testimony was sufficient to defeat 

an objection based upon exceeding the scope of direct examination.

¶92 Even more troubling than the misaimed objections are the 

many instances counsel neglected to object at all. Counsel did not 

object to the testimony regarding Lovell’s excommunication nor 

the testimony about Church doctrine concerning repentance and 

remorse. The problem with Newton’s testimony was not that he 

lacked foundation to provide it, nor that it exceeded the scope of 

direct examination—it was that the entire line of questioning and 

the testimony it elicited was unduly prejudicial.

¶93 We have explained that counsel’s performance may be 

deficient when they fail to challenge testimony that is “obviously 

improper.” State v. Larrabee, 2013 UT 70, ¶ 26, 321 P.3d 1136. Here, 

reasonable counsel would have recognized the obvious 

impropriety of Newton’s religious testimony and challenged it.

¶94 That Newton’s religious testimony was unduly prejudicial 

would have been apparent to reasonable counsel. The United States

Supreme Court has instructed that “it is constitutionally 

impermissible to rest a death sentence on a determination made by 

a sentencer who has been led to believe that the responsibility for 

determining the appropriateness of the defendant’s death rests 

elsewhere.” Caldwell, 472 U.S. at 328–29. This is precisely what the 

unobjected-to testimony invited the jury to do.

¶95 The State’s cross-examination suggested that Lovell’s 

excommunication from the Church and subsequent failure to be 

readmitted by its First Presidency was evidence that he lacked 

genuine remorse. It insinuated that the jury could consider whether 

the Church had found Lovell sufficiently remorseful as a proxy for 
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Opinion of the Court

29

deciding themselves whether he was truly a changed person. This 

testimony invited the jury “to believe that the responsibility for 

determining the appropriateness of the defendant’s death rests 

elsewhere” because the Church had already determined that Lovell 

was not remorseful by not readmitting him to membership. See id.

at 329.

¶96 In other words, this testimony encouraged the jury to not 

thoroughly consider Lovell’s evidence of his remorse. By inserting 

a religious test for remorse into the proceedings, the State gave the 

jury a way out of making a decision that is difficult for any person 

to make about another: whether a defendant has truly changed. The 

State offered jurors an off-ramp by intimating that it could use 

readmission to Church membership as a gauge for whether Lovell 

was actually remorseful and had changed his ways. The testimony 

also invited the jury to discredit Newton’s (and the other 

witnesses’) assessment of Lovell by substituting an ecclesiastical 

determination of Lovell’s rehabilitation for the jurors’ own review 

of the evidence. Any reasonable attorney would have recognized 

the risk Newton’s testimony posed to Lovell’s mitigation case and 

challenged it.

¶97 We are not the only court to have underscored the 

potential for religious doctrine to undermine a defendant’s right to 

a fair trial. Indeed, the use of religiously charged arguments 

supporting death has been “universally condemned . . . as 

confusing, unnecessary, and inflammatory”; they “have no place in 

our non-ecclesiastical courts and may not be tolerated there.” 

Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996). In Romine v. 

Head, the Eleventh Circuit reversed a sentence of death because 

“the prosecutor argued Biblical law to the jury as a basis for urging 

it to eschew any consideration of mercy and sentence [the 

defendant] to death.” 253 F.3d 1349, 1358, 1371 (11th Cir. 2001).

¶98 The Superior Court of Pennsylvania has likewise held that 

referring to testimony as “God’s truth” improperly “inject[ed] a 

court proceeding with religious law.” Commonwealth v. Chmiel, 777 

A.2d 459, 467 (Pa. Super. Ct. 2001). In that case, the court found that 

“[b]y arguing that [the witness] speaks ‘God’s truth,’ . . . [t]he 

prosecutor elevated [the witness’s] testimony to that of God,” 

interjecting religious law for the jury’s consideration. Id. And in 

Commonwealth v. Chambers, the Pennsylvania Supreme Court

considered a prosecutor’s argument that, as “the Bible says, ‘and 
STATE v. LOVELL

Opinion of the Court

30

the murderer shall be put to death.’” 599 A.2d 630, 644 (Pa. 1991).

The court concluded that this argument was improper because it 

“advocates to the jury that an independent source of law exists for 

the conclusion that the death penalty is the appropriate 

punishment.” Id. The court further held that this argument was “a 

deliberate attempt to destroy the objectivity and impartiality of the 

jury which cannot be cured.” Id.

¶99 In People v. Hill, the California Supreme Court explained 

that “an appeal to religious authority in support of the death 

penalty is improper because it tends to diminish the jury’s personal 

sense of responsibility for the verdict.” 952 P.2d 673, 693 (Cal. 1998). 

The court made its determination based on the State’s closing 

argument where it said that “the biblical maxim ‘Vengeance is mine 

sayeth the Lord’ should not dissuade the jury from imposing the 

death penalty, for the Bible also says ‘an eye for an eye, a tooth for 

a tooth.’” Id. at 692 (cleaned up).

¶100 Furthermore, here there was no reasonable basis for 

Lovell’s trial counsel to forego objecting to Newton’s religious

testimony. The State was eliciting evidence that undermined the 

entire theory of mitigation—that Lovell was a changed man who 

was remorseful for his crimes. The district court suggested that 

counsel should have continued challenging this testimony, saying

that it “thought there were areas that we covered with the three 

ecclesiastical leaders that . . . were not probative at all,” but the 

court “let it go” because “no one seemed to feel that way.”

¶101 The State does not defend the admissibility of the 

challenged testimony, but it contends that Lovell’s counsel were

not ineffective because they had a strategic reason to not challenge 

the testimony. “If it appears counsel’s actions could have been 

intended to further a reasonable strategy, a defendant has 

necessarily failed to show unreasonable performance.” State v. Ray, 

2020 UT 12, ¶ 34, 469 P.3d 871. The State posits that reasonable 

counsel could have decided not to object because doing so could 

have “risked excluding testimony Lovell wanted to present.”

¶102 The State claims that “[r]eligious matters played a central 

role in Lovell’s defense,” and therefore “counsel could reasonably 

think that if he argued that discussion of religious matters was 

improper, the court would also prevent Lovell from presenting 

evidence he wanted to present.” The State argues that “[r]eligious 

references permeated the testimony of Becky Douglas” and that 
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Opinion of the Court

31

“competent counsel could choose not to argue that it was improper 

for the State to ask about religious matters because counsel knew 

Douglas would be talking about religious matters.”

¶103 We credited a similar argument in a dissimilar case. See

generally State v. Vallejo, 2019 UT 38, 449 P.3d 39. In Vallejo, we 

determined that defense counsel made a reasonable decision not to

object to religious testimony because the defense sought to 

introduce “Vallejo’s own religion and role as a religious leader.” Id.

¶ 77. We noted that “[d]uring the opening statement, Vallejo’s trial 

counsel commented that Vallejo ‘had received his church calling 

and was his ward’s bishop.’” Id.

¶104 We explained that “Vallejo also introduced evidence of 

his own religious conduct, testifying that he ‘went on a mission for 

a couple years’ and that later he ‘was a bishop,’ which he ‘loved.’” 

Id. Vallejo “testified that his responsibilities as a bishop took ‘fifteen 

to twenty hours of his week.’” Id. (cleaned up). We found that trial 

counsel’s decision to promote this religious theme, referenced from 

the very beginning of Vallejo’s case, indicated that counsel could 

have reasonably not objected to other religious testimony. Id. That

is, Vallejo’s counsel could have reasonably feared that if he objected 

to the State’s religious-themed questions, he could lose a large 

portion of what he hoped to present to the jury.

¶105 Unlike in Vallejo, Lovell’s mitigation case did not rely on 

religion. Indeed, it appears that the defense carefully attempted to 

avoid wading into religious waters during its direct examination of 

Newton. During Newton’s direct examination, the defense elicited 

minimal testimony about religion, limited to Newton forming a 

relationship with Lovell as his “clergy leader” and as a “religious 

volunteer” at the prison. Newton’s direct examination was the 

most overtly religious when counsel asked Newton to describe his

discussions with Lovell. Newton volunteered that when he and 

Lovell would meet, they would talk about things Lovell had “read 

in the Bible and the Book of Mormon.” At no point during their

examination of Newton did Lovell’s counsel seek to talk about 

repentance or the Church as an organization. In fact, at no point did 

counsel even identify the Church, much less that Newton had been

Lovell’s bishop. This testimony only came in through the State’s 

questioning.

¶106 To be sure, Lovell’s counsel asked the next two 

witnesses, Lovell’s former Church bishops Webster and 
STATE v. LOVELL

Opinion of the Court

32

Thompson, about Lovell’s status with the Church. Both witnesses 

testified that Lovell had been excommunicated and that they were 

not aware whether Lovell had asked to rejoin the Church. Lovell’s 

counsel even asked Webster about his “impression of [Lovell’s]

progress towards remorse and repentance.” But this questioning

can be explained as Lovell’s counsel attempting to mop up after the 

disastrous testimony that the State elicited from Newton. That is, 

after the State put evidence before the jury that only the Church’s 

First Presidency could readmit someone like Lovell into Church 

membership and that this decision would turn on whether the First 

Presidency concluded that Lovell had repented and shown 

remorse, Lovell’s counsel needed to try and convince the jury that 

Lovell had not sought readmission.22 The questions posed to 

Webster and Thompson appear to be a gambit to explain to the jury 

that the Church’s First Presidency had made no assessment of 

Lovell’s repentance because Lovell had not started the process to 

be readmitted. Unlike in Vallejo, Lovell’s counsel did not open the 

door to religious themes. They tried to make the best of the 

situation once the State had thrown that door open.

¶107 The State also argues that reasonable counsel could have 

decided not to object to Newton’s testimony because they feared 

they would lose the ability to elicit favorable testimony from Becky 

Douglas. Though some of Douglas’s testimony certainly had a 

religious flavor, that was not the sole, or even primary, purpose of 

her testimony. Indeed, Lovell’s counsel focused their questioning 

of Douglas on her relationship with Lovell and his volunteer work 

with her organization.

¶108 In essence, Douglas testified that when she met with 

Lovell, she felt “this incredible remorse, this sadness, [from 

Lovell],” explaining that “he just felt so, so desponden[t], that there 

was so much despair of what he had done.” She also testified “that 

by going through 30 years of prison, [Lovell] has become literally a 

gentle and a kind man.” She also testified that she “ha[s] absolute 

confidence that the [Lovell] I know is the real [Lovell] now” and 

__________________________________________________________

22 We also note that neither Webster nor Thompson presented 

their opinions on Lovell’s remorse as anything but their personal 

beliefs. To the contrary, both witnesses testified that they did not 

represent the Church and that they could not truly know what was 

in Lovell’s heart.
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Opinion of the Court

33

that she “wouldn’t have any hesitation to invite him into [her] 

home” if he were ever released.

¶109 Unlike the testimony the State sought to elicit from 

Newton, Douglas’s testimony was not about religious doctrine, 

and, to the extent her testimony possessed a religious tinge,

Douglas volunteered that in her responses. For example, on direct 

examination Lovell’s counsel asked Douglas questions to which 

Douglas provided religiously flavored responses.

¶110 Lovell’s counsel asked:

Q. I understand that in 2012 that you made a visit to 

[Lovell] in the prison?

A. I did.

Q. Can you tell us how that came about?

Douglas then explained that an employee with her charity had a 

relative who was “a stake president . . . in the Mormon Church” 

and that “[p]art of [his] ministry” is working at the prison. She 

continued explaining that her employee was invited to meet Lovell 

and that her employee “was very touched by th[e] experience,” 

after which Douglas asked the stake president “if he could arrange 

for me to go see [Lovell].”

¶111 Douglas recounted how she was put in touch with 

Lovell’s bishop, who helped arrange for her to visit Lovell. After 

Douglas had explained this background information, Lovell’s 

counsel asked:

Q. Did you have any concerns about this visit with 

[Lovell] coming up about what you would talk 

about?

A. Yeah. I—I mean, I’d been writing to him, but I 

didn’t really feel like I knew him. I—what was I going 

to talk about? I mean, I literally had no idea what I 

was going to talk about. . . .

Q. Did you have a discussion about that concern with 

[Lovell’s] bishop?

A. I did. Well—yes, with both his bishop and his stake 

president . . . . And they both suggested that if I 

should get in, that I should talk to him about the 

atonement.
STATE v. LOVELL

Opinion of the Court

34

And I said, “Well, I mean, you all haven’t done this?” 

And they said, “Well, yes, but he seems to be stuck 

spiritually. He just simply cannot forgive himself.”

His bishop . . . said [“]he’s recently been rereading the 

transcripts of his trial, and he has just reached the 

conclusion that he will never, ever be able to forgive 

himself. And we just feel he’s—spiritually, he’s just 

kind of stuck there. He can’t move past that and 

maybe you could talk to him about the atonement 

and Jesus Christ.”

¶112 Trial counsel asked Douglas to describe her visit with 

Lovell, and she testified that: “He was teary. He was so excited to 

meet me. We had been corresponding at this point for, I guess, 

probably five years, close to five years, and he was very excited.

And he sat and I sat and we—we talked.” She explained that they 

talked for a while, and after a break in the discussion she said, “I 

would like to talk to you about the atonement if that’s okay.”

Douglas then testified:

[Lovell] immediately became very guarded. He hung 

his head down and he said, “You know, I’d honestly 

rather not talk about that.”

And I said, “Oh, well, you know, I don’t want to 

upset you any. Why?”

And he—he literally and tears just started rolling 

down his face, and he said, “You are going to tell me 

I need to forgive myself. Everybody keeps telling me 

I need to forgive myself.” And he said, “I will never 

forgive myself.” He said, “I have tried. So I cannot 

forgive myself. So I don’t want to talk about it.” He 

said, “I’ve been through this and through this and 

through this.” And he said, “Let’s talk about 

something else.”

And I said, “Well”—and by now he was just—I mean 

he was weeping. And I said, “Would it be okay if I 

just talked and you listened? Would that be all right?”

And he said, “Well, okay.” He kind of shrugged 

basically. And I said, “Okay. Well, [Lovell] have you 

read the New Testament?”
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Opinion of the Court

35

¶113 At this point, the State objected, arguing that “if she’s 

going to give an exposition on the doctrinal basis of the New 

Testament, I think it’s inappropriate.” Lovell’s counsel explained 

that Douglas would not be discussing religious doctrine but that 

she would explain how after she mentioned the New Testament, 

Lovell “recall[ed] a letter she wrote to him years before.” Lovell’s 

counsel also explained that this testimony “goes to the strength of 

the connection between the two of them.”

¶114 With this explanation, the court allowed the testimony to 

continue, and Lovell’s counsel asked:

Q. You had a brief discussion with [Lovell] about the 

New Testament?

A. Yes. And the reason I mentioned it is because I was 

specifically talking about Paul. When I mentioned 

Paul’s name, [Lovell] brightened and he said, “Oh, 

you wrote about Paul in your letter of” whatever, 

November 2007.

And I said, “Really?” And he had my letters in a little 

folder right there and he opened it and they were just 

pristine and he pulled it out. He said, “Yes, you wrote 

that even though Paul was in prison, he did a lot of 

good in the world through his letters, and because of 

that we know Christian doctrine today.”

And I said, “You are in prison, but you are already 

trying to do good by supporting a child in India 

affected by leprosy. You are also reaching out.”

And so I thought that was very interesting.

The reason I brought this up, and I’ve only met 

[Lovell] one time. So as a character witness, I don’t 

have—I don’t have a whole lot. I just have this one 

meeting I had with [Lovell]. But it was a powerful 

meeting and that’s why I’m here today.

¶115 Although Douglas’s narration of her visit certainly 

contained numerous religious references, the important 

testimony—that Lovell was remorseful, along with her opinion 

that he had changed—did not rely on religion. Had Douglas simply 

never mentioned anything religious, her testimony would still 

provide evidence that Lovell felt remorse for his crime. And unlike 
STATE v. LOVELL

Opinion of the Court

36

the State’s questioning of Newton, Douglas’s testimony did not 

devolve into religious doctrine or whether Lovell’s ecclesiastic 

leaders had decided that he was remorseful.

¶116 Additionally, during the 23B hearing, the district court 

found that there was an abundance of religious testimony that 

Douglas “wanted to share with the jury” but was not given the 

opportunity to provide. The court found that Douglas wanted to 

tell the jury that “Lovell took religious instruction courses for four 

years, he studied the scriptures, he reconciled himself to God, he 

watched a PBS series on the New Testament and was moved by it, 

[and] he encouraged inmates who were discouraged and did not 

have God in their lives.” The court also found that “Douglas 

wanted to tell the jury that because of . . . Lovell’s actions, over forty 

inmates wrote to her telling her that . . . Lovell had told them, 

‘There is a way for you spiritually to come back to the Lord.’”

¶117 Had Lovell intended to use Douglas to present an overtly

religious theme at trial, as the State contends, it stands to reason 

that he would have sought to solicit at least some of this testimony 

from Douglas. And the fact that Lovell avoided this religious 

testimony leads us to believe that the religious aspects of Douglas’s 

testimony were not part of counsel’s trial strategy.

¶118 If the district court were to remove all religious 

references from Newton and Douglas’s testimony, the State could 

not have established Lovell’s excommunication or the doctrine of 

repentance. But Lovell could have still established his remorse and 

changed character through Douglas. Consequently, continued 

objections to Newton’s testimony did not present a risk of 

excluding the mitigating evidence in Douglas’s testimony.

¶119 Moreover, even if further objections to Newton’s 

religious testimony presented a risk of excluding evidence that 

Lovell wanted to present, the failure to object was still 

unreasonable. Reasonable counsel in these circumstances would 

not have foregone objecting to prejudicial religious testimony 

based on a hope of introducing the religious testimony Douglas 

had to offer.23 The severe prejudicial nature of Newton’s 

__________________________________________________________

23 This opinion should not be read to suggest that all evidence 

with a religious tinge is categorically improper. Rather, we 

recognize that religiously themed testimony can sometimes exert a 

(continued . . .)
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Opinion of the Court

37

cross-examination testimony, challenging the defense theme that 

Lovell was remorseful, and implying that the jury could look to the 

actions of ecclesiastical leaders to decide whether Lovell had 

changed belies any reasonable strategy.

¶120 In the end, reasonable counsel might have done 

something other than raise additional objections in response to 

Newton’s testimony, such as move for a mistrial or seek a curative 

instruction. But because of the life-or-death stakes of the 

proceeding and the potential for such obviously improper

testimony to prejudice the jury, reasonable counsel would have 

done something more to try and neutralize it. Lovell’s trial counsel 

lodged two misaimed objections and tried to clean-up with 

subsequent witnesses. That was objectively unreasonable.

C. The Admission of Improper Testimony Prejudiced Lovell

¶121 To prevail on an ineffective assistance of counsel claim, a 

defendant must show more than deficient performance. Counsel 

must also demonstrate that the error had a prejudicial effect on the 

outcome. Strickland, 466 U.S. at 687. This requires that the 

defendant “show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Id. at 694. In the specific circumstances of a 

challenge to a death sentence, “the question is whether there is a 

reasonable probability that, absent the errors, the sentencer . . . 

would have concluded that the balance of aggravating and 

mitigating circumstances did not warrant death.” Id. at 695. And 

“[a] reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694. Put differently, the prejudice 

prong is satisfied when the defendant shows “that counsel’s errors 

were so serious as to deprive the defendant of . . . a trial whose 

result is reliable.” Id. at 687.

¶122 The State argues that even if trial counsel’s performance 

was deficient, Lovell fails to show prejudice because the jurors were 

faced with “overwhelming evidence in favor of the death penalty.”

The State also argues that this is especially true considering that the 

alternative sentence was life with the opportunity of parole. The

State avers that “no reasonable probability exists that even one 

__________________________________________________________

powerful pull, and counsel and courts must be on-guard for 

religious testimony that might unduly prejudice a defendant.
STATE v. LOVELL

Opinion of the Court

38

juror would have voted for life with parole if only the challenged 

evidence had been excluded.”

¶123 We reiterate that the death penalty is “never mandated 

or imposed automatically,” even if no evidence is offered in 

mitigation. Lafferty, 2001 UT 19, ¶ 128. The State must convince the 

entire jury—beyond a reasonable doubt—that the aggravating 

circumstances outweigh the mitigating circumstances, and that the 

death penalty is justified and appropriate under the circumstances. 

UTAH CODE § 76-3-207(5)(b).

¶124 Without the improper religious testimony, there is a 

reasonable probability that at least one member of the jury would 

not have been convinced that the State had met its burden.

¶125 Prejudice is always a difficult inquiry, requiring 

reconsideration of the entire evidentiary picture to determine 

whether the outcome might have been different absent counsel’s 

deficient performance. See Strickland, 466 U.S. at 695 (“In making 

this [prejudice] determination, a court hearing an ineffectiveness 

claim must consider the totality of the evidence before the judge or 

jury.”). But here, we can see that counsel’s errors altered the balance 

between the aggravators and the mitigators in a way that likely 

impacted at least one juror’s decision. Moreover, these errors 

created a reasonable probability that at least one juror’s sense of 

responsibility regarding the decision to impose death was 

diminished.

¶126 The bulk of the aggravating evidence before the jury

focused on the nature of the crime and the severe and lasting 

impact it had on Yost’s family. The jury heard the details of how 

Lovell attempted to hire two people to murder Yost and eventually 

murdered her himself. The State highlighted that Lovell took Yost’s

life to prevent her from testifying that he had raped her. The State 

also offered witnesses who opined that Lovell was untruthful, 

manipulative, cold, calculating, and an escape risk.

¶127 Lovell attempted to counter this testimony, in part, with 

two experts opining and explaining why they believed Lovell 

experienced diminished culpability. But the overwhelming

majority of Lovell’s mitigation evidence was testimony from 

people who had met Lovell while he was in prison and believed 

that he was remorseful for his crime and that he had taken steps to 

change his life.
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Opinion of the Court

39

¶128 Therefore, the primary dispute during Lovell’s 

sentencing proceedings was the depth of his remorse and the 

sincerity of his efforts to rehabilitate. While remorse is not 

something that can be determined for certain, the improper 

religious testimony gave jurors a proxy to use in lieu of personally 

deciding whether Lovell was remorseful. The religious testimony 

told them they could look to the Church and its leaders who, 

Newton’s testimony suggested, had evidently determined that 

Lovell had not shown the requisite remorse for readmittance to 

Church membership. Newton, together with the State’s questions, 

informed the jury that Lovell would have to repent and show

remorse to be readmitted. The State’s questioning and Newton’s 

responses invited the jury to conclude that Lovell had not been 

readmitted into the Church because he was not sufficiently 

remorseful.

¶129 This highlights why many courts have ruled that certain 

religious testimony can distort a jury’s deliberations. See, e.g.,

Bennett, 92 F.3d at 1346; Hill, 952 P.2d at 693; Romine, 253 F.3d at 

1358; Chambers, 599 A.2d at 644; Chmiel, 777 A.2d at 467. It calls on 

jurors to rely on something other than their own consideration of 

the evidence to answer the difficult questions put to them. See 

Caldwell, 472 U.S. at 328–29; see also Chandler v. Florida, 449 U.S. 560, 

574 (1981) (“Trial courts must be especially vigilant to guard 

against any impairment of the defendant’s right to a verdict based 

solely upon the evidence and the relevant law.”). And Newton’s 

testimony altered the entire evidentiary picture by weakening all 

the evidence Lovell presented about his remorse and efforts to 

rehabilitate. See Strickland, 466 U.S. at 695–96 (explaining that 

“[s]ome errors will have had a pervasive effect on the inferences to 

be drawn from the evidence, altering the entire evidentiary 

picture”).

¶130 Even though Lovell’s counsel attempted to mitigate the 

harm from the excommunication testimony by eliciting testimony 

from Newton and the other bishops that they were not aware if 

Lovell had sought readmittance, the harm had already been done.

Because Newton’s excommunication testimony went to the entirety 

of Lovell’s mitigation argument, it could not be isolated. And the 

follow-up testimony only served to remind the jury of the State’s 

implicit assertion—that Lovell had not sufficiently changed

because he had not sought to repent and rejoin the Church. And, 

perhaps more to the point, the fact that Lovell had not sought to be 
STATE v. LOVELL

Opinion of the Court

40

readmitted suggested to the jury that Lovell knew he could not 

convince the Church’s First Presidency that he was truly 

remorseful.

¶131 The prejudicial nature of Newton’s testimony is even 

more acute considering our State’s religious demographics.24

¶132 The prosecution’s cross-examination of Newton 

suggested to the jurors that they could look to the Church and its 

leaders, who “are the living oracles of God” according to Church 

doctrine. THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS,

TEACHINGS OF THE LIVING PROPHETS STUDENT MANUAL 45 (2016)

(quoting Joseph Fielding Smith, The First Presidency and the Council 

of the Twelve, 69 THE IMPROVEMENT ERA 977, 978 (1966)). A juror who 

was a faithful Church member might reasonably have believed that 

Lovell’s excommunication and the fact that he had not been 

readmitted could be interpreted as evidence of divine guidance 

that he was not remorseful. Or, at the very least, that Lovell did not 

believe that he could demonstrate to the First Presidency that his 

remorse was genuine.

¶133 Under different circumstances, our court of appeals has 

found that testimony of a defendant’s excommunication likely had

a prejudicial effect on a conviction in part because of Utah’s unique 

religious demographics. See State v. Hood, 2018 UT App 236, ¶ 25 

n.6, 438 P.3d 54. In Hood, the court of appeals held that testimony 

of a defendant’s excommunication from the Church was 

improperly admitted. Id. ¶ 52. The court concluded that there was 

a reasonable probability that this testimony affected the outcome of 

the trial. Id. ¶ 57. The court’s conclusion rested, at least in part, on 

the fact that a Utah jury is “likely to be familiar with the type of 

conduct that would trigger church discipline.” Id. ¶ 25 n.6.

¶134 In some instances, general demographic information on 

its own might be sufficient to undermine our confidence in the 

proceedings because there is a reasonable probability that at least 

one juror would be swayed by improper religious testimony. But 

__________________________________________________________

24 At the time Lovell was sentenced, a majority of Utahns 

considered themselves to be members of the Church. See Religious 

Landscape Study, PEW RSCH. CTR., http://www.pewforum.org/reli

gious-landscape-study/state/utah/ [https://perma.cc/W9L3-

R2ZK].
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Opinion of the Court

41

we need not rely on just general demographics in this case. The 

record before us indicates that at least two of the seated jurors were 

familiar with the Church’s religious materials, with one indicating 

that they read “anything on www.lds.org” and another saying they 

read the “Ensign.”25 And while not specific to the Church, another 

juror indicated that they read “religious based material.”

¶135 The record developed at the 23B hearing establishes that 

the State believed that there would be members of the Church on 

the jury.26 The prosecutor who questioned Newton testified at the

23B hearing that “in the State of Utah there are many individuals 

who are members of the Church . . . and so some of the members of 

the jury, very likely, would be affiliated with that particular faith.”

The prosecutor evidently decided that the religious testimony he 

elicited from Newton would be persuasive to the jury because of 

their apparent religious affiliation, and we have no reason to 

conclude otherwise.27

¶136 At its core, this religious testimony called on the jury to 

assign Lovell’s mitigation evidence little weight because they could

look to Lovell’s Church status to determine that Lovell lacked 

__________________________________________________________

25 Ensign magazine was a monthly magazine the Church 

published from 1971 until 2021 that contained material and articles 

related to the Church and its teachings. See Sean P. Means, LDS 

Church Phasing Out Ensign, Its 50-Year-Old Magazine, for New Global 

Publications, SALT LAKE TRIB. (Aug. 14, 2020), 

https://www.sltrib.com/religion/2020/08/14/lds-churchphasing-out/ [https://perma.cc/2RWE-MJ7G].

26 The prosecutor “was . . . in a much better position to gauge 

how these particular . . . jurors might respond to this evidence than 

we are.” See State v. Vallejo, 2019 UT 38, ¶ 79, 449 P.3d 39.

27 We also find it informative that the State did not, after 

Newton’s testimony had concluded, elicit any similar testimony 

from Lovell’s other bishops, who were all questioned by different 

prosecutors than the one that examined Newton. At the 23B 

hearing, one of the senior prosecutors testified that they made “an 

on-the-fly decision” to change who would cross-examine the other 

bishops because they “didn’t want to go down the road” that they 

did with Newton’s cross-examination. This suggests that the State

immediately recognized the prejudicial nature of the testimony it 

had elicited from Newton.
STATE v. LOVELL

Opinion of the Court

42

remorse and that he had not changed. The testimony impermissibly

risked diminishing the jury’s sense of responsibility for 

determining the appropriateness of death, and it is reasonably 

likely that a juror either based their sentencing decision on this 

testimony or used Newton’s testimony to discount the mitigation 

evidence Lovell presented. Our confidence in the sentencing 

hearing has been undermined because there is a reasonable 

probability that at least one juror would have opposed imposition 

of the death penalty if the jury had not been exposed to this 

evidence. Lovell has met his Strickland burden of establishing that 

his counsel’s errors prejudiced his sentencing.

CONCLUSION

¶137 Lovell has not shown that his conviction for the murder 

of Joyce Yost should be overturned. We affirm his conviction.

¶138 Lovell’s trial counsel rendered ineffective assistance 

when they failed to effectively object, or otherwise sufficiently 

respond, to testimony regarding Lovell’s excommunication from 

the Church of Jesus Christ of Latter-day Saints and regarding the 

need for him to repent and demonstrate remorse to the Church’s 

First Presidency before it could readmit him to membership. This 

evidence prejudiced Lovell’s ability to have a jury fairly weigh the 

aggravating and mitigating factors, as Utah’s capital sentencing 

statute requires, before it sentenced him to death. We vacate

Lovell’s sentence and remand for further proceedings.