This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 50

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

DAVID EDWARD DROMMOND, JR.,

Appellant.

No. 20080252

Heard April 30, 2013

Reheard February 10, 2020

Filed July 17, 2020

On Direct Appeal

Second District, Farmington

The Honorable Jon M. Memmott

The Honorable Robert J. Dale

No. 051701317

Attorneys:

Sean D. Reyes, Att‘y Gen., Christopher D. Ballard,

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

Scott L. Wiggins, Salt Lake City, for appellant

JUSTICE HIMONAS authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 David Drommond, Jr., shot and killed his ex-wife. After 

he pleaded guilty to aggravated murder, Drommond was 

sentenced by a jury at a penalty-phase trial to life in prison without

the possibility of parole—not to twenty years to life in prison with

the possibility of parole as he had hoped. Drommond challenges 
STATE v. DROMMOND

Opinion of the Court

2

that sentence, arguing that it should not stand because his 

penalty-phase trial was fraught with mistakes and his trial 

counsel was ineffective. We affirm.

BACKGROUND

¶2 We split the facts into five sections. The first section 

recounts Drommond‘s murder of his ex-wife and how he later 

pleaded guilty to aggravated murder, in part so the State 

wouldn‘t seek the death penalty. The second summarizes pretrial 

motions that Drommond‘s counsel filed and the trial court‘s 

corresponding rulings. The third details the evidence at 

Drommond‘s penalty-phase trial. The fourth depicts the trial‘s 

closing arguments and the jury‘s verdict. And the last describes

Drommond‘s appeal to this court and the later rule 23B hearing

that the trial court held to enter findings of fact on one of 

Drommond‘s claims for ineffective assistance of counsel.

I. THE MURDER AND THE GUILTY PLEA

¶3 On the morning of August 28, 2005, Janeil Reed, 

Drommond‘s ex-wife, went with her father to Drommond‘s 

apartment to drop off their children for a visit. Reed‘s father, Neil 

Bradley, waited for her in the car. Upon arriving, the children ran 

up the stairs to Drommond‘s apartment door and were let inside. 

Reed went up the stairs to the door, too, carrying a box of items 

that Drommond had asked her to bring.

¶4 Reed and Drommond stood just inside the doorway, 

talking. The conversation ended abruptly when Drommond

pulled a handgun from his waistband and shot Reed once, hitting 

her in the arm and chest area. Reed screamed and stumbled back, 

falling partway down the front stairs of the apartment. 

Drommond followed her, stepping out of the doorway to the top 

of the stairs. He then raised the gun (so that it was three or four 

feet from Reed‘s head) and pulled the trigger again, this time 

shooting her in the head. She died very quickly. 

¶5 Hearing the shots, Bradley darted from his car toward

Drommond, hoping to detain him. At the same time, 

Drommond‘s roommate, Ryan Zimmer—who had been outside as 

well—came toward Drommond. Zimmer stopped when he saw 

that the Drommond children ―were just right inside the doorway‖

of the apartment. He told them to stay in the apartment and 

closed the door.

¶6 Bradley came running up the stairs toward Drommond, 

and Drommond shot him. The bullet pierced Bradley‘s arm and 
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Opinion of the Court

3

entered his body. (Bradley survived his wounds.) Bradley and 

Zimmer tried to wrestle the gun away from Drommond. They

eventually received help from Jason Von Weller, a neighbor, who 

stripped the gun from Drommond. Drommond tried to get the 

gun back but was pinned down until the police arrived and 

arrested him.

¶7 The State charged Drommond with aggravated murder, 

attempted murder, and violating a protective order. Drommond 

was then evaluated for competency by four court-appointed 

psychologists: Randal Oster, John Malouf, Nancy Cohn, and 

Stephen Golding. Each psychologist diagnosed him with a 

different mental health problem, but each concluded that 

Drommond was competent to proceed.

¶8 Next, Drommond pleaded guilty to aggravated murder. 

As part of the plea deal, the State dismissed the remaining charges 

and agreed not to seek the death penalty.

II. THE PENALTY-PHASE TRIAL: PRETRIAL MOTIONS

¶9 After Drommond pleaded guilty to aggravated murder, a 

penalty-phase jury trial was held. The jury‘s task was to decide

whether Drommond should serve a life sentence without the 

possibility of parole or twenty years to life with the possibility of 

parole.

¶10 Before the penalty-phase trial, Drommond filed two 

motions relevant to this appeal. First, he filed a motion asking the 

trial court for confrontation rights at sentencing. The trial court 

denied the motion, holding that hearsay would be admissible at 

the penalty-phase trial if (1) it was reliable, (2) Drommond had the 

opportunity to rebut it, and (3) it was not unfairly prejudicial. 

Second, Drommond filed a motion asking the court to limit 

impermissible victim-impact evidence at the penalty-phase trial. 

The court held that victim-impact evidence would be admissible 

at the penalty-phase trial as long as it wasn‘t ―unfairly 

prejudicial‖ and didn‘t ―make comparative judgments about the 

worth of the victim‘s life in comparison to the life of the 

defendant.‖ 

III. THE PENALTY-PHASE TRIAL: EVIDENCE

¶11 The jury received evidence at trial about

(A) Drommond‘s relationship with Reed, (B) his mental health 

problems after their divorce, (C) his desire to keep her from 

dating or marrying someone else, (D) his bipolar disorder at the 

time of the murder, (E) the murder itself, (F) his statements after 
STATE v. DROMMOND

Opinion of the Court

4

the murder, and (G) the impact of the murder on the Drommond 

children. We summarize below the relevant parts of that 

testimony.

A. Drommond’s Relationship with Reed

¶12 Bradley (Reed‘s father) and Melina Yorke (Reed‘s friend)

testified about Reed and Drommond‘s relationship, which began 

in 1994. According to Yorke, in August 1995, Reed told Yorke that 

she had talked to a male friend from high school at a music store,

and that when Drommond found out that the two had talked, his 

temper snapped. Yorke said that Drommond choked Reed, 

leaving bruises on her neck.

¶13 Despite this incident, the couple married a short while

later. Reed and Drommond later had two children. Bradley 

testified that when Drommond lost his job in about 2002, the 

marriage deteriorated, and, by the beginning of 2005, Reed and 

Drommond had divorced.

¶14 Bradley testified that soon after the divorce—in March 

2005—Drommond strangled Reed to the point that she thought 

she would die because she had used his cell phone to call another 

man and had incurred a large bill. After the strangling, Reed

obtained a protective order against Drommond, but she agreed to

continue taking the children to visit him. Bradley testified that

Drommond also frightened Reed with threatening emails in 

August 2005, causing Bradley to stay periodically at Reed‘s house 

at night.

B. Drommond’s Mental Health Problems

After the Divorce

¶15 After the divorce, Drommond went to live with his 

parents and stayed there until June 2005. Dr. Linda Gummow—a 

neuropsychologist and Drommond‘s expert witness at trial—

detailed much of Drommond‘s mental health history during this 

time. 

¶16 Dr. Gummow first outlined Drommond‘s mental health. 

She said that Drommond was diagnosed with major depressive 

disorder at the end of 2004, and at the beginning of the next year,

he was diagnosed with bipolar disorder. Bipolar disorder, 

explained Dr. Gummow, is ―a major mood disorder.‖ She further 

explained that, to be diagnosed with bipolar disorder, a person 

must have had at least one manic episode—which is an ―episode[] 

of very high mood, way beyond normal elation‖—and episodes of 

depression, which are episodes of ―very extremely low moods.‖
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¶17 A few months after the divorce, testified Dr. Gummow, 

Drommond cut himself, attempted suicide several times, and had 

―hostile thoughts‖ toward Reed and his own family. As a result, 

he was admitted to Lakeview Hospital at the beginning of May 

2005, where he stayed for about five days.

¶18 Dr. Gummow said that while Drommond was at 

Lakeview Hospital, he was treated by several physicians and 

received many diagnoses of his mental health problems. At 

various times at the hospital, Drommond was diagnosed with 

bipolar disorder not otherwise specified (bipolar disorder NOS),

1

schizoaffective disorder, and—upon discharge—bipolar disorder 

one.2

¶19 Dr. Gummow testified that after being discharged from 

Lakeview Hospital, Drommond had ―no treatment‖ other than 

being ―given some bottles of pills.‖ Dr. Gummow said that this 

was a mistake—that he should have seen a mental health 

professional once a week, that ―his medication should have been 

monitored,‖ and that ―his moods should have been tracked very 

regularly.‖

C. Drommond’s Desire to Prevent Reed 

from Dating or Marrying Someone Else

¶20 As mentioned above, Drommond lived with his parents 

after the divorce. But at the end June 2005—about a month after 

he was released from Lakeview Hospital—he moved into an 

apartment with some roommates.

¶21 Drommond‘s roommate, Rian Carlson, testified that, a

couple of months before the murder, Drommond asked Carlson to 

get him a gun so the two could start a ―bounty hunter service‖ or, 

more accurately, so Drommond could have the gun to use as an 

―an intimidation factor.‖ Carlson said that he obtained a handgun 

__________________________________________________________

1 According to Dr. Gummow, bipolar disorder NOS is the 

diagnosis that a physician gives a patient when the physician does 

not know what type of bipolar disorder the patient has.

2 Dr. Gummow explained that there are ―several different 

types of bipolar disorders‖ but that ―bipolar disorder one means 

you‘ve had a clear manic episode and you have an episode of 

depression, multiple.‖
STATE v. DROMMOND

Opinion of the Court

6

about a month before the murder and gave it to Drommond. That

was the handgun that Drommond would use to murder Reed. 

¶22 Carlson testified that he and Drommond eventually 

shared their ―bounty hunter idea‖ with a friend named Michael 

Hansen. Carlson testified that Drommond talked with him and 

Hansen about how they were going to ―scare‖ and ―rough [] up‖ 

people who owed him money. The group never followed through 

with any of those plans, and the group‘s focus soon shifted to 

Reed.

¶23 Carlson explained at trial that Drommond found out that 

Reed was dating someone, and he didn‘t like it. He wanted to put 

a stop to it. So, testified Carlson, two or three weeks before the 

murder, Drommond talked with him and Hansen about scaring 

Reed out of dating by breaking into her house and cutting her 

phone line. Carlson told the jury that the group never did so but

that Drommond did have Hansen drive by Reed‘s house and her 

boyfriend‘s house to ―check it out.‖

¶24 Detective Lloyd Kilpack, who investigated Reed‘s 

murder, testified that Hansen told him in an interview that 

Drommond even paid Hansen $400 to break into Reed‘s house to 

tell her not to marry her fiancé and to drive by Reed‘s house and 

her fiancé‘s to jot down the license plate numbers of the vehicles 

parked outside.3(Hansen never did so.) Detective Kilpack also 

testified that Hansen told him that, on the day before the murder, 

Drommond again asked Hansen to break into Reed‘s house and 

scare her out of getting married, reminding Hansen that he had 

paid him $400 to do so. Detective Kilpack added that Hansen even 

showed him a text message from Drommond in ―which Mr. 

Hansen was reminded that he was given $400 by Mr. Drommond 

for this particular situation and driving by the house.‖ According 

to Detective Kilpack‘s testimony, Hansen refused to go through 

with it and offered to return Drommond the money. Detective 

Kilpack testified that he saw the following text message from 

Drommond to Hansen in response: ―I‘ve been doing this for years. 

__________________________________________________________

3 Detective Kilpack also testified that Drommond‘s father told 

him that, a few weeks before the murder, Drommond ―told his 

mother that he was going to hurt [Reed]‖ and ―told [his mother] 

not to be a hero.‖ According to Kilpack, Drommond told his 

mother ―that if he wasn‘t able to do it, he had an army that would 

accomplish it for him.‖
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Opinion of the Court

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Don‘t worry about it. I‘ll take care of this.‖ Apart from Kilpack‘s 

testimony about the text messages, we refer in this opinion to the 

testimony in this paragraph as the Kilpack–Hansen Hearsay 

Testimony.

D. Drommond’s Bipolar Disorder

¶25 Dr. Gummow testified that, when Drommond murdered 

Reed, he suffered from bipolar disorder NOS, childhood onset.

This was important, she said, ―because the bipolar disorder has a 

lot to do with Mr. Drommond‘s criminal behavior and 

understanding what happened, and also understanding what 

might happen in the future with regard to him.‖

¶26 Dr. Gummow explained how people with bipolar 

disorder might generally behave. She explained that people 

experiencing a manic episode are ―extremely active,‖ ―talk too 

fast,‖ ―move too fast,‖ and are ―not rational.‖ She also said that 

those experiencing manic episodes are likely to ―get involved in 

legal trouble‖ because, for example, ―they‘re out and about and 

they irritate people, they get in fights‖—all that, because they 

―don‘t know that they‘re high.‖ A person experiencing a manic 

episode ―may think that they‘ve lost control of themselves,‖ said 

Dr. Gummow, ―but often they‘re not aware of the fact that their 

behavior is going off the chart.‖ Dr. Gummow testified that 

bipolar disorder is ―incurable‖—that ―it can be controlled, 

minimized, and people can be comfortable, but it‘s always there.‖

¶27 Besides opining that Drommond had bipolar disorder

NOS, Dr. Gummow also discussed the diagnoses of the four

court-appointed psychologists who had determined that 

Drommond was competent. Each psychologist—none of whom 

were called as witnesses at trial—had diagnosed Drommond 

differently: bipolar disorder one (Dr. Oster); narcissistic 

personality disorder (Dr. Malouf); personality disorder not 

otherwise specified, with prominent narcissistic and borderline 

features (Dr. Cohn); and major depression and severe cluster B 

personality disorder (Dr. Golding).4 Dr. Gummow conceded that 

Dr. Cohn‘s and Dr. Golding‘s diagnoses were supported by some 

__________________________________________________________

4 The parties do not point to clear definitions of these 

personality disorders in their briefs and so we do not define them 

here.
STATE v. DROMMOND

Opinion of the Court

8

evidence and that they would be harder to treat than bipolar 

disorder and that they couldn‘t be treated with medication.

5

E. Evidence About the Murder

¶28 Several witnesses testified about the murder itself, too. 

The jury heard that Drommond shot Reed twice, that he shot 

Bradley too, and about the later struggle to disarm and subdue 

Drommond. See supra ¶¶ 3–8. And a medical examiner testified 

that an autopsy confirmed that Reed died from her wounds.

F. Drommond’s Postmurder Statements

¶29 The jury also heard testimony about things Drommond 

told Carlson, Sean Buchanan (Drommond‘s cellmate), and 

Kristina Shakespeare (Drommond‘s cousin) after the murder.

¶30 First, Carlson testified that when he went to visit 

Drommond in jail after the murder, Drommond expressed no 

remorse and seemed to think it was ―a joke that he was there.‖

¶31 Then, Detective Kilpack testified about his interview with 

Buchanan. Kilpack testified that Buchanan said that Drommond 

told him (1) that he wanted Reed‘s sister to be ―taken out of the 

box;‖(2) that he wanted Reed‘s sister‘s ―neck broken‖ or for her to 

be ―killed‖ so ―she could not take care of his children;‖ (3) that he 

should have killed the entire Bradley family; (4) that he planned 

to be released from custody after six or seven years, after which 

―they will see I‘m crazy‖ and ―that the bitch had it coming;‖ and 

(5) that ―he had popped [Reed] with precision‖ and that as he said 

so, ―he was smiling.‖ We refer to this testimony as the Kilpack–

Buchanan Hearsay Testimony.

¶32 Detective Kilpack also testified about his interview with 

Kristina Shakespeare. Kilpack said that, in the interview,

Shakespeare shared how Drommond told her after the murder 

that ―he felt great because [Reed] was gone‖ and that ―if he had 

the power to do so, he would kill the entire Bradley family.‖ We 

refer to this testimony as the Kilpack–Shakespeare Hearsay 

Testimony.

__________________________________________________________

5 Dr. Golding‘s diagnosis was characterized at trial as 

personality disorder not otherwise specified with cluster B traits.
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G. The Impact of the Murder on the Drommond Children

¶33 Finally, Reed‘s sister testified that Reed‘s children ―miss 

their mother very much.‖ A photograph of Reed and her two 

children was also admitted into evidence.

IV. THE PENALTY-PHASE TRIAL: CLOSING ARGUMENTS, 

JURY INSTRUCTIONS, AND THE VERDICT

¶34 At the close of the penalty-phase trial, Drommond‘s 

counsel asked the jury to impose a sentence of twenty years to life 

in prison, rather than life in prison without the possibility of 

parole. Drommond‘s counsel claimed that this sentence was 

proper because, if Drommond were to have ―structure‖ and 

―treatment,‖ he could ―be normalized.‖

¶35 After closing argument, Drommond asked the trial court 

for a special verdict, which would require the jury to find that any 

―uncharged crimes‖ presented at trial were proven beyond a 

reasonable doubt before it could consider them in the sentencing 

decision. The court rejected this request.

¶36 The jury then deliberated and sentenced Drommond to 

life in prison without the possibility of parole, and he appealed.

V. THE APPEAL AND THE RULE 23B REMAND

¶37 After appealing, Drommond filed a motion in 2010 under 

rule 23B of the Utah Rules of Appellate Procedure. He requested 

that we remand his case for an entry of finding of facts as to

whether his trial counsel was ineffective because he failed to 

investigate and present expert testimony about the effects of one 

of Drommond‘s antidepressant medications, Effexor, on his

bipolar disorder.6

¶38 After initially rejecting the rule 23B motion, we granted it 

in 2013. We remanded and directed the lower court to ―enter 

findings of fact as to (1) any adverse effects of Effexor on 

[Drommond‘s] bipolar disorder, and (2) whether [Drommond‘s]

trial counsel provided effective assistance when counsel failed to 

investigate and present expert testimony regarding the possible 

effects of Effexor on [Drommond‘s] bipolar disorder.‖

__________________________________________________________

6 Effexor is a brand name for the antidepressant drug, 

venlafaxine. For consistency and ease of reference, we refer to the 

drug in this opinion as Effexor instead of venlafaxine.
STATE v. DROMMOND

Opinion of the Court

10

¶39 At the rule 23B hearing, Drommond called two expert 

witnesses—both psychiatrists—to testify: Pablo Stewart and Peter 

Breggin. The State called its own expert psychiatrist, David 

Moulton.

¶40 Dr. Stewart testified that treatment with ―pretty high 

doses of Effexor . . . alone could flip one into mania,‖ and that

―even if [Drommond] stopped taking the medication, the mania 

[would have had] a life of its own.‖ He added that ―once you‘re 

flipped into mania, then . . . you‘re in a manic state‖ and ―that‘s 

going to run its course.‖

¶41 In the same vein, Dr. Breggin testified that ―Effexor 

causes aggression and impulsivity,‖ that it ―should never be given 

to a patient with mania,‖ and that ―it played a considerable role in 

[Drommond‘s] actions.‖ Dr. Breggin added that the ―meds in 

combination with bipolar‖ caused Drommond to become very 

―disturbed‖ at Lakeview Hospital. Dr. Breggin said that ―once 

he‘s that disturbed, that could last for months off the medication.‖ 

He opined that it wouldn‘t go away just ―because [Drommond]

stopped the meds,‖ and that ―if he stopped the meds shortly 

before the violence, then he would have been in withdrawal.‖

¶42 Contrary to Dr. Stewart and Dr. Breggin, Dr. Moulton

(the State‘s expert witness) testified that ―there‘s nothing in the 

medical literature that supports that mania in and of itself causes 

serious violence.‖ Dr. Moulton said that ―we don‘t have evidence 

that [Effexor] lead[s] to homicide or increase[s] the homicide 

rate.‖ He added that ―[i]f there‘s any interpretation to be made it‘s 

that people on [Effexor] would be less likely to commit a homicide 

[than] somebody that‘s not on [Effexor].‖ He also explained that 

antidepressant withdrawal causes a ―flu-like reaction.‖ It ―can 

cause malaise, headaches, nausea, vomiting, diarrhea,‖ and ―some 

irritability, similar to the irritability someone might experience 

who has the flu.‖ But those symptoms go away within forty-eight 

to seventy-two hours or ―almost immediately‖ after one resumes

taking the medication.

¶43 After hearing the testimony, the rule 23B court first found 

that Dr. Moulton‘s testimony was ―the most credible regarding 

the effects of Effexor on a person with Bipolar Disorder‖ because 

of his ―training, education, experience, and the way he testified at 

the evidentiary hearing.‖ The court also found that Drommond 

―did not take his medications, including Effexor, in July or August

2005.‖ Most importantly, the court found that Drommond had not 

shown ―by a preponderance of the evidence that the effects of 
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Opinion of the Court

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Effexor would [have] still [been] contributing to [his] mental state 

as late as August 28, 2005.‖

¶44 The court then found that Drommond‘s trial counsel had 

been deficient by not investigating how Effexor affects people 

with bipolar disorder, but that Drommond wasn‘t prejudiced by 

the mistake ―[b]ecause the preponderance of the evidence does 

not support that Effexor contributed to [Drommond‘s] mental 

state at the time he committed the homicide.‖

¶45 With the rule 23B proceedings concluded, we now decide

Drommond‘s appeal. We have jurisdiction under Utah Code 

section 78A-3-102(3)(i).

STANDARD OF REVIEW

¶46 Drommond first maintains that he received ineffective 

assistance of counsel before and during the penalty-phase trial. 

When raised for the first time on appeal, an ineffective-assistanceof-counsel claim ―presents a question of law,‖ which we review 

for correctness. State v. Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 

(citation omitted). And when a claim for ineffective assistance of 

counsel has been decided at a rule 23B hearing, we review the 

rule 23B court‘s ―purely factual findings for clear error, but review 

the application of the law to the facts for correctness.‖ Taylor v. 

State, 2007 UT 12, ¶ 13, 156 P.3d 739.

¶47 Drommond next claims that the trial court erred by 

holding that he had no constitutional right to confrontation at his 

penalty-phase trial. This is a question of law, and we review it for 

correctness. State v. Timmerman, 2009 UT 58, ¶ 7, 218 P.3d 590

(―Interpretations of federal and state constitutions are questions of 

law.‖).

¶48 Drommond also argues that the trial court erred by ruling 

that the constitutional right to due process didn‘t preclude certain

victim-impact evidence. This is also a question of law, and thus 

we review it for correctness. Id.

¶49 Drommond last claims that the trial court erred by 

refusing to instruct the jury that it could consider evidence of 

uncharged crimes only if it found that the State had proven them 

beyond a reasonable doubt. We review a trial court‘s ―refusal to 

give a jury instruction‖ for abuse of discretion. State v. Berriel, 2013 

UT 19, ¶ 8, 299 P.3d 1133 (citation omitted). We afford ―significant 

deference‖ on ―issues that are primarily or entirely factual‖ but 

―little or no deference‖ on ―issues that are primarily or entirely 

legal.‖ Id.
STATE v. DROMMOND

Opinion of the Court

12

ANALYSIS

¶50 Drommond raises four categories of errors on appeal: 

(1) that he received ineffective assistance of counsel, (2) that 

hearsay evidence violated his right to confrontation, (3) that

victim-impact evidence violated his right to due process, and 

(4) that evidence of uncharged crimes violated his right to due 

process. Last, he asserts that the cumulative effect of these alleged 

errors requires a new penalty-phase trial. For the reasons we 

detail below, we reject each of these arguments and affirm the 

jury‘s verdict.7

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶51 Drommond argues that his trial counsel was ineffective 

and that, as a result, he was deprived of his constitutional right to 

effective assistance of counsel under the Sixth Amendment to the 

United States Constitution. To show that counsel‘s assistance was 

ineffective, thus depriving a defendant of this right, the defendant 

must meet the two-pronged test that the United States Supreme 

Court set out in Strickland v. Washington, 466 U.S. 668 (1984). 

Strickland requires the defendant to show that (1) ―counsel‘s 

performance was deficient‖ and (2) ―the deficient performance 

prejudiced the defense.‖ Id. at 687; see also State v. Newton, 2020 UT 

24, ¶ 20, --- P.3d ---.

¶52 Drommond contends that his trial counsel was ineffective 

in two ways: first, by not investigating and presenting evidence 

on how Effexor influenced his bipolar disorder at the time of the 

murder, and, second, by not presenting at the penalty-phase trial 

the expert testimony of all four court-appointed psychologists. We 

__________________________________________________________

7 Drommond argues that this is a capital case. This is relevant, 

he says, to all of his claims because (1) counsel is held to a higher 

standard in capital cases for ineffective-assistance-of-counsel 

claims, (2) the right to confrontation applies to capital sentencing 

proceedings, (3) victim-impact evidence should be excluded from 

capital sentencing proceedings, and (4) uncharged crimes can be 

considered in capital sentencing proceedings only if they are 

proven beyond a reasonable doubt. He also argues that it allows 

us to review any palpable error, even if it wasn‘t objected to 

below. We need not distinguish between capital and noncapital 

cases in deciding any of the issues here because, even assuming it 

is a capital case, Drommond‘s claims fail.
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Opinion of the Court

13

reject both claims. The first claim fails because, even assuming 

Drommond‘s trial counsel‘s performance was rendered deficient

by his failure to investigate and present evidence about the effects 

of Effexor, Drommond wasn‘t prejudiced by it. The second claim 

fails because trial counsel wasn‘t deficient in not presenting the 

psychologists‘ testimony.

A. Ineffective Assistance of Counsel: 

Failure to Investigate and Present Evidence on Effects of Effexor

¶53 Drommond argues that he received ineffective assistance 

of counsel when his trial counsel failed to investigate the potential 

role Effexor played in the murder and present expert testimony 

about it. This claim was remanded to the rule 23B court for 

findings of fact. The rule 23B court found that, although 

Drommond‘s trial counsel was deficient in not investigating the 

effects of Effexor on bipolar disorder, that mistake didn‘t

prejudice Drommond‘s defense. The court also found that trial 

counsel‘s overall trial strategy was reasonable.

¶54 Drommond disagrees with the rule 23B court‘s findings

for two main reasons. First, he says that the court‘s findings of fact 

were clearly erroneous. Second, he argues that he was prejudiced 

by his counsel‘s failure to investigate and present evidence on the 

effects of Effexor on his bipolar disorder. After reviewing both 

claims, we conclude, first, that Drommond has not shown that the 

court‘s findings of fact are clearly erroneous and, second, that he

suffered no prejudice as a result of his counsel‘s failure to 

investigate and present evidence on the effects of Effexor. This 

ineffective-assistance-of-counsel claim consequently fails.

1. Findings of Fact

¶55 Drommond disagrees with two of the rule 23B court‘s 

findings of fact and contends that they are clearly erroneous. He

challenges the court‘s findings that (1) Dr. Moulton was ―the most 

credible regarding the effects of Effexor on a person with Bipolar 

Disorder‖ and (2) Drommond ―did not take his medications, 

including Effexor, in July or August.‖ Drommond, however, 

hasn‘t met his burden of showing that the rule 23B court‘s 

findings of fact are clearly erroneous.

¶56 ―We defer to a trial court‘s findings of fact after a rule 23B 

hearing,‖ State v. Taylor, 947 P.2d 681, 685 (Utah 1997), and we 

review them only for clear error, State v. Sagal, 2019 UT App 95, 

¶ 20, 444 P.3d 572, cert. denied, 456 P.3d 389 (Utah 2019). That 

means we set aside the rule 23B court‘s factual findings only if 
STATE v. DROMMOND

Opinion of the Court

14

they ―are against the clear weight of the evidence,‖ or if we 

―otherwise reach[] a definite and firm conviction that a mistake 

has been made.‖ See State v. Walker, 743 P.2d 191, 193 (Utah 1987).

¶57 We start with Drommond‘s challenge to the finding that 

Dr. Moulton was ―the most credible regarding the effects of 

Effexor on a person with Bipolar Disorder.‖ The trial court based 

this finding on Dr. Moulton‘s ―training, education, [and] 

experience, and the way he testified at the evidentiary hearing.‖ 

Drommond asserts that this finding was ―unreasonable and 

against the clear weight of the evidence‖ for three reasons.

¶58 First, Drommond contends that Dr. Moulton wasn‘t

credible because he admitted that he had been testifying from the 

wrong report during the rule 23B hearing. On cross-examination, 

Dr. Moulton admitted that he was testifying from an earlier 

version of his report, rather than from the latest version. He 

clarified, however, that he had created two reports, each dated 

one week apart from the other, and that his conclusions in each 

report were the same. The second report, he explained, had 

merely fine-tuned the first report by adding a heading and 

revising a few words and sentences for clarity. We think it a real 

stretch to say that such an innocuous mistake would render 

Dr. Moulton not credible.

¶59 Second, Drommond complains that Dr. Moulton wasn‘t

credible because he referenced in his report a ―serotonin neuron 

reuptake inhibitor‖ but conceded in his testimony that such a 

thing doesn‘t exist. Dr. Moulton remedied this error at the 

rule 23B hearing, explaining that he had made a typographical 

error in his report. He had written ―serotonin neuron reuptake 

inhibitor‖—which, he acknowledged, does not exist—instead of 

―serotonin norepinephrine reuptake inhibitor.‖ Like the first 

error, this error in no way shows that Dr. Moulton wasn‘t

credible; it shows only that he, like the rest of us, is prone to the 

occasional typo.

¶60 Third, Drommond complains that Dr. Moulton is not 

credible because his report ―was almost totally devoid of any 

clinical analysis‖ of Drommond. When asked about this on crossexamination, Dr. Moulton explained that he had not provided a 

diagnosis of Drommond because he wasn‘t asked to do so; he was 

asked only ―to provide what the effects of [Drommond‘s]

medication may have had on this case.‖ Dr. Moulton said that he

didn‘t dispute—indeed he supported—the conclusion that 

Drommond had bipolar disorder and that he therefore didn‘t
Cite as: 2020 UT 50

Opinion of the Court

15

need to do a clinical analysis. And, he said, a clinical analysis 

―would not change [his] response that there is no medical 

literature that supports that [Effexor and other medications that 

Drommond had been prescribed] lead to serious violence.‖ Given 

that Dr. Moulton didn‘t dispute that Drommond had bipolar 

disorder, we cannot say that his decision not to perform his own 

clinical analysis of Drommond rendered him not credible.

¶61 In short, Drommond has not shown that the rule 23B 

court erred, much less clearly erred, in finding that Dr. Moulton 

was the most credible expert witness.

¶62 Besides challenging the court‘s finding that Dr. Moulton 

was the most credible expert, Drommond challenges the factual

finding that Drommond ―did not take his medications, including 

Effexor, in July or August.‖ The rule 23B court found that 

Drommond ―stopped taking Effexor at least by July 2005.‖ We

first examine the evidence supporting the finding, and then we 

address Drommond‘s arguments against it. We conclude that the 

rule 23B court didn‘t clearly err in finding that Drommond didn‘t

take Effexor in July or August.

¶63 There was plenty of evidence that supported the finding 

that Drommond stopped taking Effexor by July 2005. 

Accordingly, the finding wasn‘t ―so lacking in support‖ that it is 

―against the clear weight of the evidence.‖ 438 Main St. v. Easy 

Heat, Inc., 2004 UT 72, ¶ 75, 99 P.3d 801. For example, trial counsel 

testified at the rule 23B hearing that the two bottles of Effexor that 

the police had seized after the murder—one of which had been 

filled in January, the other, in July—were full. That suggests that 

Drommond did not take Effexor in July 2005. Importantly,

Drommond‘s trial counsel also testified that Drommond told him 

after the murder, ―I don‘t take those. I don‘t like them.‖ This 

evidence strongly supports the rule 23B court‘s finding that 

Drommond wasn‘t taking Effexor in July and August 2005.

¶64 Drommond asserts that these findings were clearly 

erroneous and that he ―proved by a preponderance of the 

evidence that he had been taking the Effexor up to approximately 

the time of the homicide.‖ To support his conclusion, Drommond 

points to (1) evidence that he filled his Effexor prescriptions in 

May, June, and July 2005; (2) evidence that the police—who seized

two bottles of Effexor from Drommond‘s apartment after the 

murder—didn‘t record the exact number of pills in the bottles;

(3) Dr. Breggin‘s and Dr. Stewart‘s testimonies about 

Drommond‘s pharmacy records; (4) Drommond‘s mother‘s 
STATE v. DROMMOND

Opinion of the Court

16

testimony that she checked the pill bottles and noticed that the 

number of pills had decreased; and (5) evidence that he requested 

his medication after his arrest. Drommond has presented some 

―plausible evidence,‖ id. ¶ 73, that he didn‘t stop taking Effexor by 

July 2005, but he has not shown that the court‘s finding was ―so 

lacking in support‖ that it was ―against the clear weight of the 

evidence,‖ id. ¶ 75.

¶65 We start with Drommond‘s strongest evidence that he 

never stopped taking the medications—his first and fifth points. 

Drommond‘s first point—that he filled his prescriptions in May, 

June, and July 2005—is his strongest evidence that he had been 

taking Effexor in July and August 2005. But that he filled the 

prescriptions for Effexor is not direct evidence that he indeed took

Effexor in July and August. And Drommond‘s fifth point—his 

request for Effexor after his arrest—is perhaps some evidence that 

he was taking the medication but doesn‘t establish that he was 

taking the medication before the murder. As the State suggests, ―a

factual finding is not clearly erroneous merely because some 

contrary evidence exists.‖ See Taylor, 947 P.2d at 686 (holding that 

a rule 23B court‘s finding wasn‘t clearly erroneous because 

―enough evidence‖ supported the court‘s finding even though the 

court could have found the opposite but didn‘t).

¶66 We finish with Drommond‘s other evidence that he was 

taking Effexor at the time of the murder (his second, third, and 

fourth points). The second point—that the police didn‘t record the 

number of pills in the bottles—simply shows that nobody knew 

exactly how many pills were in the bottles. But it didn‘t contradict 

Drommond‘s trial counsel‘s testimony that the bottles were full. 

The third point—which highlights testimony from Dr. Breggin 

and Dr. Stewart—also doesn‘t undermine the rule 23B court‘s 

finding. Although the psychiatrists testified that Drommond took 

Effexor in August, they had no firsthand knowledge of the matter. 

Drommond‘s fourth point—which is about his mother‘s 

testimony that he took Effexor—doesn‘t show that he took Effexor 

in July or August. His mother‘s testimony that Drommond took 

the medication referred only to a two-week period at some time 

after his stay at Lakeview Hospital and before he moved out of his 

parents‘ house at the end of June 2005. Her testimony, then, didn‘t

contradict the court‘s finding that Drommond stopped taking 

Effexor by July 2005.

¶67 Drommond has failed to show that the rule 23B court‘s 

finding that he had not taken Effexor in July or August 2005 was 
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Opinion of the Court

17

against the clear weight of the evidence. As a result, it merits our 

deference.

2. Lack of Prejudice

¶68 Drommond argues that his trial counsel rendered 

ineffective assistance when he failed to investigate and present 

evidence on the effects of Effexor on Drommond‘s bipolar 

disorder. We reject this claim because, even assuming 

Drommond‘s counsel was deficient in failing to investigate and 

present evidence on the effects of Effexor, Drommond was not 

prejudiced by that deficiency.

¶69 To determine whether Drommond was prejudiced (under 

the second prong of Strickland) by the failure to investigate and 

present evidence, the ultimate question we must answer is 

whether ―there is a reasonable probability that, but for counsel‘s 

unprofessional errors, the result of the proceeding would have 

been different.‖ Strickland, 466 U.S. at 694. ―A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome.‖ Id. This inquiry requires us to consider whether the 

evidence that would have been presented if counsel‘s 

performance had not been deficient would have ―affect[ed] the 

 ̳entire evidentiary picture.‘‖ Gregg v. State, 2012 UT 32, ¶ 26, 279 

P.3d 396 (alteration in original) (citation omitted). Specifically, we 

―consider the totality of the evidence, taking into account such 

factors as whether the errors affect the entire evidentiary picture 

or have an isolated effect and how strongly the verdict is 

supported by the record.‖ Id. (citation omitted); see also Caro v. 

Woodford, 280 F.3d 1247, 1256–57 (9th Cir. 2002) (―This inquiry . . . 

compels us to couple the omitted evidence with the mitigating 

evidence presented at trial and reweigh it against the aggravating 

evidence to determine whether the omitted evidence  ̳might well

have influenced the jury‘s appraisal of . . . [the defendant‘s] moral 

culpability.‘‖ (second and third alterations in original) (quoting

Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).

¶70 Drommond argues that the expert testimony flowing 

from a reasonable investigation ―could have documented . . . 

Drommond‘s mental status in the penalty phase trial‖ and could 

have given the jury ―an explanation of how the Effexor aggravated 

his Bipolar Disorder by switching him into a mania that took on a 

life of its own.‖ He also argues that ―[e]xpert testimony would 

have explained how the Effexor  ̳flipped‘ or switched Mr. 

Drommond into a manic episode, unmasking his underlying 

psychiatric condition, and that the medication also caused 
STATE v. DROMMOND

Opinion of the Court

18

untoward activating side effects that made any mania he might 

otherwise have experienced much more severe.‖ In short, 

Drommond believes that the evidence of ―Effexor and the whole 

pharmacologic mismanagement would have been mitigating 

evidence in the penalty phase trial‖ and would have 

―humanize[d] and explain[ed]‖ Drommond.

¶71 The rule 23B court‘s findings cut against Drommond‘s 

arguments. The rule 23B court found that any expert testimony 

resulting from an investigation into the effects of Effexor would 

have shown only that Drommond‘s ―illness was mismanaged 

pharmacologically between December 30, 2004, and May 2, 2005 

when he entered the hospital.‖ Such testimony, the rule 23B court 

explained, ―may have helped the jury understand some of his 

behavior during those months, but it wouldn‘t have mitigated 

[Drommond‘s] behavior in July and August, including August 28, 

2005, the day of the homicide.‖ Critically, the rule 23B court found 

that ―the preponderance of the evidence [did] not support that 

Effexor contributed to [Drommond‘s] mental state at the time he 

committed the homicide.‖ Similarly, it found that the expert 

testimony wouldn‘t have shown that ―Effexor nor withdrawal 

from Effexor caused [Drommond] to commit a serious act of 

violence such as homicide or assault.‖

¶72 Based on the rule 23B court‘s factual findings, the omitted 

evidence wouldn‘t have affected the entire evidentiary picture of 

the penalty-phase trial, nor helped mitigate Drommond‘s moral 

culpability. And Drommond has not shown that the rule 23B 

court‘s factual findings were clearly erroneous. Supra ¶¶ 55–67. 

So, contrary to what Drommond suggests, the omitted evidence 

wouldn‘t have shown that Effexor affected Drommond‘s actions 

on the day of the murder, thereby mitigating his culpability for 

the murder. The most it would‘ve done is perhaps mitigate his 

culpability for the March 2005 strangling incident. But there was 

other evidence besides the March 2005 strangling incident that 

Drommond acted with hostility toward Reed, even when not 

taking Effexor: testimony about the 1995 strangling incident, the 

threatening emails, Drommond‘s requests to his friends to scare 

her out of dating and marrying another man, and the murder 

itself. Thus any evidence about Effexor‘s effect on Drommond 

would have had an isolated effect on the evidentiary picture.

¶73 Deferring to the rule 23B court‘s factual findings, we 

conclude that there is no reasonable probability that the omitted 

evidence would have influenced the jury‘s appraisal of 
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19

Drommond‘s moral culpability and thereby swayed the jury to 

give Drommond a more lenient sentence. Put differently, our 

confidence in the outcome of the penalty-phase trial has not at all 

been undermined. Thus, even assuming counsel rendered 

deficient performance by failing to investigate and present 

evidence on the effects of Effexor on Drommond‘s bipolar 

disorder, Drommond wasn‘t prejudiced by it. He, therefore, 

cannot show that counsel‘s failure to investigate and present 

mitigating evidence about the effects of Effexor on Drommond‘s 

bipolar disorder constituted ineffective assistance of counsel.

B. Ineffective Assistance of Counsel: 

Failure to Call the Court-Appointed Psychologists

¶74 Drommond also claims that his counsel was ineffective at 

the penalty-phase trial by limiting the expert evidence of 

Drommond‘s mental state to just Dr. Gummow‘s testimony. 

Drommond argues that counsel should have also used as 

mitigation evidence the evaluations and diagnoses of the four 

court-appointed psychologists who had evaluated him for 

competency just after the murder—those of Dr. Oster, Dr. Malouf, 

Dr. Cohn, and Dr. Golding. We hold that counsel‘s representation 

didn‘t fall below an objective standard of reasonableness. For this 

reason, this ineffective-assistance-of-counsel claim fails.

¶75 Drommond‘s trial counsel presented expert testimony 

about Drommond‘s mental health problems through 

Dr. Gummow only. Given its importance to this issue, we briefly 

recap parts of Dr. Gummow‘s trial testimony before analyzing 

whether trial counsel‘s performance was deficient.

¶76 Dr. Gummow documented Drommond‘s mental health 

problems and concluded that, at the time of the murder, 

Drommond had bipolar disorder NOS. Dr. Gummow claimed that

Drommond‘s bipolar disorder had worsened before the murder 

because (1) he either hadn‘t been taking his medication or, if he

had been, he had been on the wrong dosage and (2) ―his life [had 

been] falling apart.‖ Also, she believed that Drommond ―had not 

fully accepted the need for psychotropic medication.‖

¶77 Dr. Gummow explained that, although bipolar disorder 

cannot be cured, it can be ―controlled‖ and ―minimized.‖ More 

importantly, she said that several factors suggested that 

Drommond had a good chance of managing his bipolar disorder

going forward, in part because he now realized the importance of 

medication and was taking it.
STATE v. DROMMOND

Opinion of the Court

20

¶78 Dr. Gummow also discussed the opinions of the four 

court-appointed psychologists who had diagnosed Drommond 

with different mental health problems, asserting that her 

diagnosis—bipolar disorder NOS—was ―pretty consistent with 

everyone else‘s.‖

¶79 Dr. Gummow testified that she had reviewed Dr. Oster‘s 

and Dr. Malouf‘s reports and relied on them in part in forming 

her opinion about Drommond. She acknowledged that Dr. Oster 

diagnosed Drommond with bipolar disorder one and that 

Dr. Malouf—who ―was not completely convinced‖ that 

Drommond had a bipolar disorder—diagnosed Drommond with 

delusional disorder and ―felt there was [a] more psychiatric 

process more akin to schizophrenia going on.‖ And, on crossexamination, Dr. Gummow agreed that Dr. Cohn‘s diagnosis

(personality disorder not otherwise specified with narcissistic and 

borderline features) and Dr. Golding‘s diagnosis (severe cluster B 

personality disorder not otherwise specified) both found some 

support in the evidence. And if Dr. Cohn‘s and Dr. Golding‘s 

diagnoses were correct, she conceded, then treatment would be 

harder.

¶80 Then Dr. Gummow shared why she felt her diagnosis—

bipolar disorder NOS—was more correct than theirs. She said that 

it was more accurate than that of Dr. Cohn and Dr. Golding

because her diagnosis fell in line with those of the mental 

healthcare professionals who had treated Drommond on 

―multiple occasions‖ and who had ―a much better vantage point‖

than did Dr. Cohn and Dr. Golding, who had seen only a 

―snapshot.‖

¶81 Having reviewed Dr. Gummow‘s expert testimony, we 

now turn to whether Drommond‘s trial counsel was ineffective in 

his handling of the expert testimony on Drommond‘s mental state 

at the time of the murder. To meet the first prong of the Strickland

standard, a defendant must show ―that counsel‘s representation 

fell below an objective standard of reasonableness.‖ Strickland, 466 

U.S. at 687–88. Put differently, a defendant must show that 

counsel‘s performance wasn‘t ―reasonable[] under prevailing 

professional norms.‖ Id. at 688. 

¶82 ―There are . . . countless ways to provide effective 

assistance in any given case.‖ Harrington v. Richter, 562 U.S. 86, 

106 (2011) (citation omitted) (internal quotation mark omitted). 

We need only discern whether the strategy chosen by trial counsel 

was one of those ways. Drommond‘s trial counsel chose to call as 
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Opinion of the Court

21

a witness a neuropsychologist who testified that she had 

diagnosed Drommond with bipolar disorder and who maintained

that his bipolar disorder was treatable and that treatment would 

allow him to one day safely reenter society. In so doing, trial 

counsel chose to focus on that expert‘s diagnosis rather than the 

diagnoses of the four court-appointed competency psychologists

whom he chose not to call as witnesses. We cannot say that this 

strategy was unreasonable; far from it.

¶83 If trial counsel had chosen the strategy advocated by 

Drommond on appeal—calling every court-appointed 

psychologist to testify— there would have been a serious risk of

the jury believing that Drommond didn‘t have bipolar disorder 

and instead had a mental health problem that was harder to 

treat—i.e., a personality disorder. State v. Ott, 2010 UT 1, ¶ 39, 247 

P.3d 344 (―We note that avoidance of drawing the jury‘s attention 

to certain facts or over-emphasizing aspects of the facts is a wellrecognized trial strategy.‖). Indeed, on cross-examination, 

Dr. Gummow acknowledged that the diagnoses of Dr. Cohn 

(personality disorder not otherwise specified with narcissistic and 

borderline features) and Dr. Golding (severe cluster B personality 

disorder not otherwise specified) were also supported by the 

evidence and that they would be harder to treat than bipolar 

disorder.

¶84 Had trial counsel focused on these diagnoses, the jury 

may have been less likely to believe that Drommond‘s mental 

health problems could be treated and, as a result, less likely to 

impose a sentence that allowed for the possibility of parole. As a 

result, rather than calling all the psychologists to testify, 

reasonable counsel could have believed that the jury would feel 

that the diagnosis of bipolar disorder would be more mitigating 

than a personality disorder and so called an expert who had 

diagnosed Drommond with bipolar disorder. See George L. Blum, 

Annotation, Adequacy, Under Strickland Standard, of Defense 

Counsel’s Representation of Client in Sentencing Phase of State Court 

Death Penalty Case—Failure to Present Evidence Regarding Client’s 

Mental Illness or Dysfunction, Other than as Result of Lack of 

Investigation, 7 A.L.R. 7th Art. 3 (2016) (―Diagnoses of specific 

mental illnesses, which are associated with abnormalities of brain 

and can be treated with appropriate medication, are likely to be 

regarded by the jury in a capital case as more mitigating than 

generalized personality disorders, and for good reason, as 

involuntary physical alteration of brain structures, with its 
STATE v. DROMMOND

Opinion of the Court

22

attendant effects on behavior, tends to diminish moral culpability, 

altering the causal relationship between impulse and action.‖).

¶85 True, one other psychologist—Dr. Oster—diagnosed 

Drommond with a type of bipolar disorder, and trial counsel 

didn‘t call him as a witness. That testimony, however, would have 

been cumulative. And ―[a]dditional, but cumulative, evidence 

which could have been presented does not . . . establish ineffective 

assistance.‖ Parker v. Allen, 565 F.3d 1258, 1279 (11th Cir. 2009); see 

also Farina v. State, 937 So. 2d 612, 624 (Fla. 2006) (―[C]ounsel does 

not render ineffective assistance by failing to present cumulative 

evidence.‖); State v. Oliver, 820 P.2d 474, 478 (Utah Ct. App. 1991) 

(holding that trial counsel wasn‘t deficient by failing to present 

evidence when ―[a]ny additional evidence would have been

cumulative‖). Moreover, Dr. Gummow acknowledged that 

Dr. Oster had also diagnosed Drommond with bipolar disorder.

By calling only Dr. Gummow to testify, counsel enjoyed the best 

of both worlds: he bolstered Dr. Gummow‘s diagnosis with that 

of Dr. Oster without allowing Dr. Oster to be subject to the State‘s 

cross-examination—in which the State would have no doubt 

brought up once again Dr. Cohn‘s and Dr. Golding‘s less 

favorable diagnoses.

¶86 In short, Drommond‘s counsel wasn‘t deficient by 

choosing not to present the testimony of the four court-appointed 

competency experts. Drommond‘s second claim for ineffective 

assistance of counsel fails.

II. RIGHT TO CONFRONTATION

¶87 Drommond claims that his rights to confrontation under 

both the United States and Utah Constitutions were violated at 

trial because the jury heard certain hearsay statements, and he 

was unable to cross-examine the declarants of those statements. 

The State replies that the trial court didn‘t err because there is no 

constitutional right to confrontation at sentencing and, in any 

event, the testimony was reliable and not unfairly prejudicial.

¶88 We recognize below that our case law is somewhat

inconsistent as to whether the right to confrontation applies at 

sentencing. But we need not decide the issue here because any 

error in admitting the hearsay statements was harmless beyond a 

reasonable doubt.
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Opinion of the Court

23

A. The Right to Confrontation at Sentencing 

Under the U.S. and Utah Constitutions

¶89 Drommond alleges that both the Confrontation Clause of 

the Sixth Amendment to the U.S. Constitution and article I, 

section 12 of the Utah Constitution apply at sentencing.8 The 

Confrontation Clause provides that ―[i]n all criminal prosecutions, 

the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.‖ U.S. CONST. amend. VI. Similarly, article I, 

section 12 of the Utah Constitution gives the accused ―[i]n 

criminal prosecutions . . . the right . . . to be confronted by the 

witnesses against him.‖ When the right to confrontation applies

and a witness does not testify, a ―party can only introduce [the]

witness‘s testimonial statements into evidence if the witness is 

__________________________________________________________

8 Drommond also argues that the hearsay testimony violated 

two other provisions of the Utah Constitution: article I, section 7

(the due process provision) and article I, section 9, which says in 

part that ―[p]ersons arrested or imprisoned shall not be treated 

with unnecessary rigor.‖ The argument based on these 

constitutional provisions, however, is inadequately briefed

because Drommond does not provide any analysis about why 

those provisions specifically supply the right to confront 

witnesses at sentencing. See Bank of Am. v. Adamson, 2017 UT 2, 

¶ 13, 391 P.3d 196 (―A party must cite the legal authority on which 

its argument is based and then provide reasoned analysis of how 

that authority should apply in the particular case . . . .‖). 

Drommond has thus not met his burden of persuading us that he 

is entitled to relief under these provisions. See id. ¶¶ 12–13.

Drommond next contends that, even if there is no 

constitutional right to confrontation, the trial court erred by not 

properly evaluating whether the hearsay evidence was admissible 

under rule 403 of the Utah Rules of Evidence. But the Utah Rules 

of Evidence don‘t govern whether evidence is admissible in 

sentencing proceedings. UTAH R. EVID. 1101(c)(3). And whether 

evidence is admissible at a capital sentencing proceeding is 

governed by Utah Code section 76-3-207 and constitutional law.

See, e.g., State v. Maestas, 2012 UT 46, ¶ 297, 299 P.3d 892 (holding 

that due process requires that ―evidence presented in the penalty 

phase . . . be relevant and reliable‖). Thus, the trial court didn‘t err 

when it didn‘t evaluate the admissibility of the evidence under 

rule 403.
STATE v. DROMMOND

Opinion of the Court

24

unavailable to testify . . . and the opposing party had a prior 

opportunity to cross-examine.‖ State v. Timmerman, 2009 UT 58, 

¶ 9, 218 P.3d 590.

¶90 The issue here is whether the right to confrontation 

applies at sentencing. We first discuss federal case law on this 

issue. Although the United States Supreme Court has never 

addressed it, every circuit court of appeals has. We then discuss 

our own case law on the issue. It is inconsistent and, for that 

reason, does not clearly resolve the issue before us.

¶91 We begin with federal case law. Whether the 

Confrontation Clause applies at sentencing has gone unanswered 

by the U.S. Supreme Court.9 But every federal circuit court of 

appeals has held that there is no right to confront witnesses at 

sentencing under the Sixth Amendment‘s Confrontation Clause.

10

__________________________________________________________

9 The U.S. Supreme Court has held that defendants have no 

right to confront witnesses at sentencing proceedings—even at 

capital sentencing proceedings—under the Due Process Clause of 

the Fourteenth Amendment. Williams v. New York, 337 U.S. 241, 

245 (1949) (affirming a sentencing procedure that allowed the 

sentencing judge to consider information about the defendant 

―even though [it was] obtained outside the courtroom from 

persons whom a defendant has not been permitted to confront or 

cross-examine‖). The Court in Williams based its holding in part 

on its belief that a sentencing judge must have ―the fullest 

information possible‖ about ―the defendant‘s life and 

characteristics.‖ Id. at 247. And the Court recognized ―that most of 

the information now relied upon by judges to guide them in the 

intelligent imposition of sentences would be unavailable if 

information were restricted to that given in open court by 

witnesses subject to cross-examination.‖ Id. at 250. In the end, 

however, Williams doesn‘t control the outcome of Drommond‘s 

Confrontation Clause challenge because it ―is a due process, 

rather than Sixth Amendment, case.‖ United States v. Fields, 483 

F.3d 313, 327 (5th Cir. 2007). Indeed, the Confrontation Clause 

wasn‘t incorporated against the States by the Fourteenth 

Amendment‘s Due Process Clause until well after the Williams

decision. See Pointer v. Texas, 380 U.S. 400 (1965).

10 See United States v. Zerpa-Ruiz, 784 F. App‘x 353, 356 (6th Cir. 

2019); United States v. Umaña, 750 F.3d 320, 348 (4th Cir. 2014);

Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1076 (11th 

(continued . . .)
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Opinion of the Court

25

So although there is no binding U.S. Supreme Court precedent,

recent federal case law strongly suggests that the Confrontation 

Clause does not apply at sentencing.

¶92 Next, we put our own case law under the microscope.

The Utah Supreme Court has applied both the state and federal 

right to confrontation at a sentencing proceeding. We did so in 

State v. Carter, 888 P.2d 629 (Utah 1995), superseded on other grounds 

by UTAH CODE § 76-3-207(2)(a)(iii) (1999).

¶93 There, the defendant challenged a statute as violating the 

right to confrontation under both the U.S. and Utah Constitutions. 

Id. at 641. The statute applied to capital resentencing proceedings. 

Id. It allowed all evidence properly admitted at trial and in 

previous sentencing proceedings—including all exhibits and a 

transcript of all testimony—to be admitted into evidence at the 

resentencing proceeding. Id. The defendant argued that the statute 

violated his right to confrontation. Id. In deciding the appeal, we 

didn‘t question whether the right to confrontation applies at 

sentencing; we took as a given that it does. Id. at 642 (determining 

that the capital resentencing statute implicated ―a capital 

defendant‘s right to confrontation‖). And we incorporated into 

the resentencing statute ―the safeguards articulated by the United 

States Supreme Court in [Ohio v. Roberts, 448 U.S. 56, 66 (1980), 

abrogated by Crawford v. Washington, 541 U.S. 36 (2004)] and 

adopted by this court in [State v. Brooks, 638 P.2d 537, 539 (Utah 

1981), abrogated by constitutional amendment as stated in State v. 

Goins, 2017 UT 61, ¶¶ 31–32, 45, 423 P.3d 1236].‖ Id. Roberts had 

held that an unavailable witness‘s hearsay statement could be 

admitted at trial under the Confrontation Clause only if the 

hearsay statement ―bears adequate  ̳indicia of reliability,‘‖ such as 

when it ―falls within a firmly rooted hearsay exception.‖11 448 

 

Cir. 2013); United States v. Ghiassi, 729 F.3d 690, 695–96 (7th Cir. 

2013); Fields, 483 F.3d at 327; United States v. Bras, 483 F.3d 103, 109 

(D.C. Cir. 2007); United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 

2007); United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 

2006); United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006);

United States v. Brown, 430 F.3d 942, 943–44 (8th Cir. 2005); United 

States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005); United States v. 

Martinez, 413 F.3d 239, 243 (2d Cir. 2005).

11 The U.S. Supreme Court overruled the Roberts ―indicia of 

reliability‖ test in Crawford v. Washington and instead held that an 

(continued . . .)
STATE v. DROMMOND

Opinion of the Court

26

U.S. at 66. In short, the Carter court applied article I, section 12 of 

the Utah Constitution and the Confrontation Clause of the U.S. 

Constitution without even questioning whether those provisions 

apply at sentencing. See 888 P.2d at 646.

¶94 We have found no Utah case that predates Carter that 

applied the constitutional right to confrontation (be it state or 

federal) at sentencing, and the parties haven‘t pointed us to one 

either. The only case within the same ballpark analyzed whether 

the defendant‘s right to due process was violated when the trial 

court relied on hearsay statements at sentencing and precluded 

the confrontation of certain witnesses at sentencing. See State v. 

Sanwick, 713 P.2d 707 (Utah 1986). There, we relied on an Idaho 

Supreme Court decision that held that ―[h]earsay was admissible 

[at sentencing] as long as the defendant had the opportunity to 

rebut the adverse evidence and to challenge the reliability of the 

evidence presented.‖ Id. at 709 (citing State v. Johnson, 618 P.2d 759 

(1980)).

¶95 Nor have we consistently applied our Carter decision in 

later cases. For example, we implied in State v. Kell, that the right 

to confrontation applies at sentencing, but we didn‘t mention 

Carter in that context or its requirements that the hearsay 

declarant be unavailable and that the hearsay statement bear 

adequate indicia of reliability. 2002 UT 106, ¶¶ 43–44, 61 P.3d 

1019. And later, in Taylor v. State, we held that the defendant‘s 

appellate counsel wasn‘t ineffective for failing to challenge the 

trial court‘s 1991 admission of hearsay evidence at sentencing. 

2007 UT 12, ¶ 108, 156 P.3d 739. Citing Carter and Sanwick, we 

reasoned that when the defendant appealed in 1991, ―hearsay 

evidence generally was considered to be admissible at 

sentencing‖ as long as the hearsay was ―reliable‖ and the 

defendant was ―given the opportunity to rebut the evidence.‖ Id.

In dicta, we said that the U.S. Supreme Court‘s Crawford opinion 

had ―triggered some debate as to whether confrontation rights 

apply to sentencing.‖ Id. ¶ 108 n.4. But because the issue wasn‘t

determinative in that case, we didn‘t address it. Id.

¶96 Next, in State v. Timmerman, while analyzing whether one 

has a constitutional right to confrontation at preliminary hearings,

 

unavailable witness‘s hearsay statement can be admitted at trial 

only if it was previously ―test[ed] in the crucible of crossexamination.‖ 541 U.S. 36, 61 (2004).
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Opinion of the Court

27

we held that three U.S. Supreme Court cases ―establish Supreme 

Court precedent confining the Sixth Amendment Confrontation 

Clause to trial.‖ 2009 UT 58, ¶ 11, 218 P.3d 590. (emphases added) 

(citing Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality 

opinion); California v. Green, 399 U.S. 149, 157 (1970); Barber v. Page, 

390 U.S. 719, 725 (1968)); see also State v. Rhinehart, 2006 UT App 

517, ¶ 14, 153 P.3d 830 (―The Confrontation Clause pertains to a 

criminal defendant‘s right to confront and cross-examine the 

witnesses against the defendant at trial . . . .‖ (emphasis added)). 

And, we held, because the federal Confrontation Clause applies 

only at trial, it ―does not apply to preliminary hearings.‖

Timmerman, 2009 UT 58, ¶ 13. So if, as Timmerman held, the 

Confrontation Clause is confined to trial, then it wouldn‘t provide 

a right to confrontation at sentencing (assuming sentencing is not 

part of trial). See United States v. Ray, 578 F.3d 184, 196 (2d Cir. 

2009) (―[W]e conclude that the word  ̳trial,‘ as understood at the 

time of the Founding, would not have encompassed sentencing

proceedings.‖). But see John G. Douglass, Confronting Death: Sixth 

Amendment Rights at Capital Sentencing, 105 COLUM. L. REV. 1967, 

1973 (2005) (concluding that, in 1791, ―[t]here was no distinction 

between trial rights and sentencing rights because, in both 

purpose and effect, the trial was the sentencing‖).

¶97 And, most recently, we said in State v. Maestas, that ―we 

have never analyzed whether a defendant in a penalty phase 

should be afforded the right to confront witnesses.‖ 2012 UT 46, 

¶ 297, 299 P.3d 892. We said so without citing Sanwick, Carter, Kell, 

Taylor, or Timmerman. Id. And we didn‘t decide whether the right 

applied at sentencing in Maestas because we held that any alleged 

error in that case was harmless. Id. ¶ 298.

¶98 Taken together, our case law is somewhat contradictory

as to whether the constitutional right to confrontation applies at

sentencing, and, if so, how that right is satisfied. All in all, the arc 

of both our case law and federal case law seems to bend away 

from applying the right to confrontation at sentencing. But this is 

not the case for us to decide this issue because, even assuming the 

right to confrontation does apply at sentencing (or at the very 

least, at capital sentencing), any error in Drommond‘s case was 

harmless beyond a reasonable doubt. Kell, 2002 UT 106, ¶ 54

(declining to reach constitutional questions when any potential 

error wasn‘t prejudicial). We look forward, however, to resolving 

this issue in a future case in which it is necessary to do so. See, e.g., 

State v. Argueta, 2020 UT 41, ¶ 55, --- P.3d ---.
STATE v. DROMMOND

Opinion of the Court

28

B. Any Error Was Harmless Beyond a Reasonable Doubt

¶99 The hearsay statements that Drommond complains of all 

came from Detective Kilpack‘s testimony: the Kilpack–Hansen 

Hearsay Testimony, the Kilpack–Buchanan Hearsay Testimony, 

and the Kilpack–Shakespeare Hearsay Testimony. See supra ¶¶ 24, 

31–32. Neither Hansen, Buchanan, nor Shakespeare testified at the 

penalty-phase trial. The State contends that any error in allowing 

Detective Kilpack to testify about these witnesses‘ statements was 

harmless beyond a reasonable doubt. We first determine that

Drommond did not preserve his objection to the Kilpack–

Shakespeare Hearsay Testimony. We then hold that any 

constitutional error in admitting the Kilpack–Hansen Hearsay 

Testimony and the Kilpack–Buchanan Hearsay Testimony was 

indeed harmless beyond a reasonable doubt.

1. Preservation Issues

¶100 Drommond did not preserve his assertion that the 

Kilpack–Shakespeare Hearsay Testimony was improperly 

admitted into evidence. To preserve an issue for appeal, a party 

must raise a ―timely and specific objection.‖ State v. Low, 2008 UT 

58, ¶ 17, 192 P.3d 867 (citation omitted). Only then will the alleged 

errors come ―to the trial court‘s attention to give the court an 

opportunity to correct the errors if appropriate.‖ Id. (citation 

omitted). And if ―there is no clear or specific objection and the 

specific ground for objection is not clear from the context[,] the 

theory cannot be raised on appeal.‖ Id. (alteration in original)

(citation omitted).

¶101 Because Drommond didn‘t raise a timely and specific 

objection to the Kilpack–Shakespeare Hearsay Testimony, 

Drommond failed to preserve his argument that it was 

improperly admitted into evidence. In his argument before the 

penalty-phase trial for the right to confront witnesses, 

Drommond‘s counsel excluded Shakespeare: ―There‘s one witness 

that‘s a cousin and her name is . . . Shakespeare. . . . She‘s clearly 

unavailable, so she‘s not going to fall within the confines of the 

argument I‘m about to present to you.‖ The trial court rejected

counsel‘s request for the right to confrontation.

¶102 Then, just before Detective Kilpack testified, 

Drommond‘s counsel renewed his argument for the right to 

confront witnesses: ―Just for the record, next witness you‘re going 

to have is a variety of statements, not all of them are going to be 

hearsay. But you‘ll know it when you [h]ear it. So, I would like to 

renew my objection with respect to confrontation.‖ Drommond 
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Opinion of the Court

29

now urges us that this statement was somehow an objection to the

Kilpack–Shakespeare Hearsay Testimony. He says that this 

renewal ―rectified‖ the earlier ―waiver.‖

¶103 We disagree. Drommond didn‘t raise a timely and 

specific objection to the Kilpack–Shakespeare Hearsay Testimony. 

And the trial court never had the chance to rule on the 

admissibility of the testimony because counsel excluded 

testimony about Shakespeare‘s statements from the original 

objection. By simply renewing that original objection before 

Detective Kilpack testified, Drommond didn‘t object to the 

Kilpack–Shakespeare Hearsay Testimony. Because Drommond 

failed to object to the Kilpack–Shakespeare Hearsay Testimony, 

his challenge to that testimony on appeal is unpreserved.

12 The 

Kilpack–Shakespeare Hearsay Testimony was, on that basis,

properly before the jury.

2. Any Error Was Harmless Beyond a Reasonable Doubt

¶104 We are left only with deciding whether the admission of 

the Kilpack–Hansen Hearsay Testimony and the Kilpack–

Buchanan Hearsay Testimony was harmless beyond a reasonable 

doubt.

¶105 When an error amounts to a violation of a defendant‘s 

constitutional right to confrontation, ―reversal is required unless 

the error is harmless beyond a reasonable doubt.‖ State v. 

Villarreal, 889 P.2d 419, 425 (Utah 1995) (citation omitted).

This harmless-beyond-a-reasonable-doubt analysis requires us to 

determine ―the probable impact of the [testimony] on the minds 

of the average juror.‖ Id. (citation omitted). We can evaluate 

several factors in deciding whether an error was harmless beyond 

a reasonable doubt, such as ―the importance of the witness‘[s]

testimony in the prosecution‘s case, whether the testimony was 

cumulative, the presence or absence of evidence collaborating or 

contradicting the testimony of the witness on material points, the 

extent of cross-examination otherwise permitted, and, of course,

the overall strength of the prosecution‘s case.‖ Id. at 425–26

(citation omitted).

¶106 Two main pieces of evidence emerged from the Kilpack–

Hansen Hearsay Testimony and the Kilpack–Buchanan Hearsay 

__________________________________________________________

12 Drommond has not argued for an exception to our 

preservation rule.
STATE v. DROMMOND

Opinion of the Court

30

Testimony. The first was that Drommond had asked Hansen to 

break into Reed‘s house and scare her out of getting married and 

to drive by the houses of Reed and her fiancé to record license 

plate numbers. The second was that Drommond had expressed 

his desire to kill other members of Reed‘s family and that he had 

no remorse about killing Reed.

¶107 Applying the harmless-beyond-a-reasonable-doubt 

standard to each piece of evidence, we find that it wouldn‘t likely 

impact the mind of the average juror because (1) the prosecution‘s 

case was strong and (2) other testimony corroborated this 

evidence.

¶108 First, ―the overall strength of the prosecution‘s case,‖ id.

at 426 (citation omitted), supports our holding that Kilpack‘s 

testimony about the Hansen and Buchanan interviews was 

harmless beyond a reasonable doubt. The State presented potent 

evidence upon which the jury could have relied to sentence 

Drommond to life in prison without the possibility of parole. 

Specifically, the jury heard evidence that Drommond tucked a 

gun in his waistband before meeting his ex-wife, who was 

dropping their children off for visitation. It heard that—while his

children were nearby—he shot her in the body from close range.

Jurors also heard that he then walked closer to Reed and shot her

in the head. It heard evidence that he then shot his former fatherin-law and that he continued to fight those at the murder scene for

possession of the gun. The jury also heard testimony that 

Drommond sent Reed threatening emails shortly before the 

murder.

¶109 Second, the Kilpack–Hansen Hearsay Testimony and the 

Kilpack–Buchanan Hearsay Testimony were corroborated by 

other evidence properly before the jury.

¶110 The Kilpack–Hansen Hearsay Testimony was 

corroborated by Carlson‘s testimony and by Kilpack‘s testimony 

about text messages he saw. For starters, Carlson testified that

Drommond wanted to scare Reed out of dating or marrying other 

men. Carlson also testified that Drommond, two or three weeks 

before the murder, talked with him and Hansen about ―breaking 

into [Reed‘s] house,‖ and ―like cutting the phone line kind of 

thing, and like scaring her, you know with fear, if you date him 

then bad things will happen to you.‖ Carlson further explained 

that Drommond had Hansen drive by Reed‘s house ―and kind of 

check it out‖ and said that he and Drommond had even gone to 

Reed‘s house to do so. On top of hearing Carlson‘s testimony, the 
Cite as: 2020 UT 50

Opinion of the Court

31

jury heard Kilpack testify that he saw text messages from 

Drommond that corroborated the Kilpack–Hansen Hearsay 

Testimony. One of the texts reminded Hansen that he had been 

―given $400 by Mr. Drommond for this particular situation and 

driving by the house.‖ And so the Kilpack–Hansen Hearsay 

Testimony was corroborated by other evidence.

¶111 The Kilpack–Buchanan Hearsay Testimony—which 

went toward Drommond‘s lack of remorse and his desire to kill 

members of Reed‘s family—was likewise corroborated by other 

evidence. First, Kilpack testified that Shakespeare told him that 

Drommond told her after the murder that ―he felt great because 

[Reed] was gone‖ and that ―if he had the power to do so, he 

would kill the entire Bradley family.‖ We held above that this

testimony was properly before the jury because Drommond didn‘t

object to it. Supra ¶ 103. It is thus proper for us to consider it in the 

harmless-beyond-a-reasonable-doubt analysis. Second, Carlson

also testified that Drommond expressed no remorse for the 

murder and that it ―almost kind of seemed like a joke that he was 

[in jail].‖ Thus the jury heard other evidence that Drommond 

wanted to have members of Reed‘s family killed and that he 

didn‘t regret murdering Reed.

¶112 Overall, the Kilpack–Hansen Hearsay Testimony and the 

Kilpack–Buchanan Hearsay Testimony were just two small pieces

of the State‘s case. The substance of the interviews was 

corroborated by other evidence before the jury and the overall 

strength of the prosecution‘s case was strong. Any constitutional 

error in admitting the evidence would not affect the mind of the 

average juror and was therefore harmless beyond a reasonable 

doubt.

III. VICTIM-IMPACT EVIDENCE

¶113 Drommond next maintains that certain victim-impact 

evidence violated his right to due process under the Utah 

Constitution.13 This claim fails because most of the evidence that 

__________________________________________________________

13 Drommond also claims the victim-impact evidence violated 

his right to due process under the United States Constitution. The 

Due Process Clause of the Fourteenth Amendment bars victimimpact evidence that ―is so unduly prejudicial that it renders the 

trial fundamentally unfair.‖ Payne v. Tennessee, 501 U.S. 808, 825

(continued . . .)
STATE v. DROMMOND

Opinion of the Court

32

Drommond complains about is not victim-impact evidence. And 

the evidence that is victim-impact evidence wasn‘t prejudicial.

¶114 Utah Code section 76-3-207(2)(a)(iii) allows, during 

capital sentencing proceedings, the presentation of evidence about 

―the victim and the impact of the crime on the victim‘s family and 

community without comparison to other persons or victims.‖ 

Victim-impact evidence is evidence that ―speaks to the victim‘s 

character, effects of the crime on the surviving family, or any 

opinions of the surviving members about the crime.‖ See State v. 

Lafferty, 2001 UT 19, ¶ 83, 20 P.3d 342. Evidence is not victimimpact evidence when it merely ―portrays . . . what took place at 

the crime scene.‖ See id.

¶115 Drommond characterizes evidence about the following 

as victim-impact evidence: the 1995 strangling, the 2005 strangling 

and the resulting protective order, Drommond‘s threatening 

emails to Reed, the ―bounty hunter service,‖ Drommond‘s 

requests that his friends break into Reed‘s house and scare her out 

of dating and getting remarried, the murder and the struggle to 

disarm and subdue Drommond, Drommond‘s lack of remorse, 

Drommond‘s postmurder statements that he wanted Reed‘s sister 

to be hurt or killed, Drommond‘s statements that he wanted to kill 

the entire Bradley family, Reed‘s autopsy, and the testimony of 

Reed‘s sister that Reed‘s children ―miss their mother very much‖ 

and that ―they don‘t understand what‘s happened.‖14

¶116 The only evidence here that is victim-impact evidence is 

the testimony about Reed‘s children missing their mother. That 

evidence speaks to the ―effects of the crime on the surviving 

family.‖ Id. The rest of the evidence is not victim-impact evidence, 

 

(1991). Because the victim-impact evidence wasn‘t prejudicial, 

infra ¶¶ 117–21, it didn‘t violate the U.S. Constitution.

14 Drommond also complains that the jury saw a photograph 

of Reed and her two children. When the State moved to admit the 

photograph at trial, Drommond‘s trial counsel said that he had no 

objection. And because Drommond‘s trial counsel didn‘t object, 

Drommond has lost the chance to argue on appeal that its 

admission was erroneous. State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 

867 (citation omitted) (holding that, to preserve an issue for 

appeal, a party must raise a ―timely and specific objection‖

(emphasis omitted)).
Cite as: 2020 UT 50

Opinion of the Court

33

however, because it does not go toward ―the victim‘s character, 

effects of the crime on the surviving family, or any opinions of the 

surviving members about the crime.‖ Id. It just describes the 

events before the crime, what took place at the crime scene, and 

Drommond‘s lack of remorse after the crime.

¶117 Because the other evidence is not victim-impact 

evidence, we need only determine whether the testimony about 

Reed‘s children missing their mother violated Drommond‘s right 

to due process under the Utah Constitution. Because Drommond 

has not shown that he was prejudiced by the victim-impact 

evidence, his claim fails.

¶118 We have never ―addressed what limitations, if any, the 

state constitution places on the use of victim-impact evidence 

during the penalty phase of a capital trial.‖15 State v. Maestas, 2012 

UT 46, ¶ 307, 299 P.3d 892. That is because, ―[b]efore treating the 

constitutional issue on its merits, we determine whether the 

victim impact evidence . . . was prejudicial.‖ State v. Kell, 2002 UT 

106, ¶ 52, 61 P.3d 1019 (footnote omitted). And if a ―potential 

error is not prejudicial,‖ we need not decide the constitutional 

limits on victim-impact evidence. Id. Following that logic in Kell

and Maestas, we found a lack of prejudice and declined to reach 

the constitutional question. Id. ¶¶ 53–54; Maestas, 2012 UT 46, 

¶ 317. Likewise, we do so today: Drommond has not shown that 

he was prejudiced by the testimony about the children missing 

their mother and so we do not address any constitutional limits 

on victim-impact evidence.

¶119 A defendant is prejudiced by an error if there is not ―a 

mere possibility, but a reasonable likelihood that the error affected 

the result.‖ Maestas, 2012 UT 46, ¶ 308 (citation omitted). When 

deciding ―whether a defendant was prejudiced by the admission 

of victim-impact evidence, we consider the totality of the evidence 

before the jury.‖ Id. (citation omitted) (internal quotation marks 

omitted). Prejudice is a high bar to meet; even ―detailed 

__________________________________________________________

15 This court has previously indicated, without deciding, that 

Utah Code section 76-3-207(2)(a)(iii) may violate the Utah 

Constitution. State v. Ott, 2010 UT 1, ¶ 24 n.3, 247 P.3d 344. The 

State asks us to ―reconsider Ott because it incorrectly extended 

death-penalty victim-impact precedent to a non-death 

sentencing.‖ We need not decide either of these issues today 

because the victim-impact evidence didn‘t prejudice Drommond.
STATE v. DROMMOND

Opinion of the Court

34

descriptions‖ of victims‘ grief may be admissible. Id. Victimimpact evidence may be prejudicial, however, ―if it is pervasive, if 

it contains an opinion of the defendant‘s character or the 

appropriate sentence, if it exceeds a description of the  ̳family‘s 

loss and mourning,‘ or if it fails to be  ̳moderate in tone.‘‖ Id.

(footnotes omitted) (citations omitted).

¶120 Drommond wasn‘t prejudiced by the testimony about 

the children missing their mother. In its entirety, the statement 

was this: ―They of course miss their mother very much. And they 

don‘t understand what‘s happened. But they are good kids and I 

love them.‖ As in Maestas, this statement was ―moderate in tone,‖ 

―not pervasive,‖ and ―did not express an opinion about 

[Drommond‘s] character or the appropriate sentence.‖ Id. ¶ 313. 

Indeed, this victim-impact evidence was minimal. See State v.

Arguelles, 2003 UT 1, ¶ 123, 63 P.3d 731 (holding that any error in 

admitting victim-impact evidence was harmless because it was

―minimal‖). And although even ―vivid images of . . . grief . . . are 

not necessarily prejudicial,‖ Maestas, 2012 UT 46, ¶ 316, this short, 

benign testimony was in not even vivid. It was just a quick 

description of the family‘s loss and mourning.

¶121 We thus hold that the admitted victim-impact evidence

testimony didn‘t prejudice Drommond, and we decline to define 

the constitutional limits on victim-impact evidence.

IV. FAILURE TO GIVE A JURY INSTRUCTION 

UNDER LAFFERTY

¶122 Drommond next protests the admission of evidence of 

his previous ―uncharged crimes,‖ arguing that it violated his 

rights under the United States Constitution—the right to due 

process and the right to be free from cruel and unusual 

punishment. He maintains that the jury should have received an 

instruction prohibiting it from considering those crimes unless the 

jury found that the crimes had been proven beyond a reasonable 

doubt.16 The State contends that such an instruction is not 

__________________________________________________________

16 Drommond also argues that the evidence of the ―uncharged 

crimes‖ violated his state constitutional rights—his rights under 

article I, sections 7, 9, and 12. But Drommond has failed to carry 

his burden of persuasion on appeal for these arguments because 

they were inadequately briefed. See Bank of Am. v. Adamson, 2017 

UT 2, ¶ 13, 391 P.3d 196. Drommond cites these constitutional 

(continued . . .)
Cite as: 2020 UT 50

Opinion of the Court

35

necessary because the evidence merely gave context to the crime 

for which Drommond had pleaded guilty, and wasn‘t evidence of 

unrelated, uncharged crimes. We agree with the State and hold 

that the trial court didn‘t abuse its discretion in refusing to give 

the jury instruction that Drommond advocates for.

¶123 Drommond objects specifically to evidence (1) that he 

asked Carlson to get him a gun so they could start a ―bounty 

hunter service‖ and intimidate people who owed Drommond 

money; (2) that he, two or three weeks before the murder, wanted 

Carlson and Hansen to break into Reed‘s house and scare her out 

of dating another man; (3) that he, on the day before the homicide, 

asked Hansen to break into Reed‘s house and scare her into not 

getting married to her fiancé; and (4) that he told his cellmate, 

Buchanan, that he wanted Reed‘s sister to be severely hurt or 

killed ―so that she could not take care of his children.‖

¶124 Utah‘s capital sentencing statute allows the admission of

aggravating or mitigating evidence that enables the court or jury

body to appropriately sentence a defendant. See UTAH CODE

§ 76-3-207(2)(a). That evidence includes ―the nature and 

circumstances of the crime,‖ the defendant‘s ―character, 

background, history, and mental and physical condition,‖ ―the 

victim and the impact of the crime on the victim‘s family,‖ and 

―any other facts in aggravation or mitigation of the penalty that 

the court considers relevant to the sentence.‖ Id. This wideranging information allows the court or jury to sentence the 

defendant based on the defendant‘s history, character, ―violent 

propensities and future dangerousness.‖ State v. Lafferty, 749 P.2d 

1239, 1259 (Utah 1988), adhered to on reconsideration, 776 P.2d 631 

(Utah 1989), and overruled on other grounds by Met v. State, 2016 UT 

51, ¶¶ 89–90, 388 P.3d 447.

¶125 Drommond correctly asserts that, before the jury can 

consider other criminal activity as an aggravating factor, the jury 

must first be ―convinced beyond a reasonable doubt that the 

 

provisions and a few cases but does not provide sufficient 

―development of that authority‖ or sufficient ―reasoned analysis 

based on that authority.‖ Angilau v. Winder, 2011 UT 13, ¶ 27, 248 

P.3d 975 (citation omitted); see also Smith v. Four Corners Mental 

Health Ctr., Inc., 2003 UT 23, ¶ 46, 70 P.3d 904 (declaring an 

appellant‘s brief inadequate when it ―merely cite[d] a few cases‖

and ―provide[d] very little analysis‖).
STATE v. DROMMOND

Opinion of the Court

36

accused did commit the other crime.‖ Id. at 1260. So ―when the 

prosecution introduces evidence of aggravating factors in the 

form‖ of another crime that hasn‘t resulted in a conviction, ―the 

sentencing jury must be instructed (i) as to the elements of the 

other crime regarding which the evidence was adduced and 

(ii) that it is not to consider evidence of that crime as an 

aggravating factor unless it first finds that the prosecution has 

proven all the elements of the crime beyond a reasonable doubt.‖

Id.

¶126 The issue here, however, is whether the evidence that 

Drommond protests was used as evidence of other criminal 

activity and as an aggravating factor. We find that it wasn‘t. A 

beyond-a-reasonable-doubt instruction was thus unnecessary.

¶127 The facts of Lafferty illustrate that point. In Lafferty, the 

defendant was convicted of two counts of first-degree murder. Id.

at 1241. During the penalty-phase trial, the State introduced 

evidence that the defendant ―had assaulted several people in jail 

while he awaited his trial.‖ Id. at 1258. On appeal, we held that the 

jury could not rely on the assaults as an aggravating factor for 

sentencing unless it was convinced that the defendant committed 

them. Id. at 1260.

¶128 Lafferty thus applies when the State uses evidence of 

other, unrelated criminal activity as ―important information about 

the accused‘s violent propensities and future dangerousness‖ or 

as ―evidence of a defendant‘s past criminal behavior so that the 

jury [can] have an accurate picture of the defendant‘s background, 

history, and character.‖17 State v. Maestas, 2012 UT 46, ¶ 287, 299 

__________________________________________________________

17 See also Maestas, 2012 UT 46, ¶¶ 1, 278–79 (applying Lafferty

in a death-penalty case in which the defendant had been 

convicted of committing aggravated murder during an 

aggravated burglary and the State had introduced evidence that 

the defendant had committed previous aggravated burglaries that 

were not related to the crime for which the defendant was 

sentenced); Arguelles, 2003 UT 1, ¶¶ 1, 22, 111 (applying Lafferty in 

an aggravated murder case because the State presented evidence 

of the defendant‘s past crimes); State v. Taylor, 818 P.2d 1030, 

1031–35 (Utah 1991) (applying Lafferty in a first-degree murder 

case in which the defendant had raped and killed a young girl 

and the State presented evidence that the defendant, as a juvenile, 

(1) had sexual intercourse with his younger sister against her will, 

(continued . . .)
Cite as: 2020 UT 50

Opinion of the Court

37

P.3d 892. No case has held, however, that Lafferty applies any time

the jury hears evidence of conduct that could constitute other 

criminal activity. Context matters. ―[E]vidence may be relevant in 

several different contexts.‖ State v. Carter, 888 P.2d 629, 654 (Utah 

1995), superseded on other grounds by UTAH CODE 

§ 76-3-207(2)(a)(iii) (1999). Evidence may, for example, be relevant 

to whether one committed a crime unrelated to the one for which 

the person is being sentenced (and thus relevant to future 

dangerousness or propensity for criminal activity), but it may also 

be relevant as evidence showing the nature and circumstances of 

the crime for which the person is being sentenced. We hold that 

Lafferty applies to the former use but not to the latter. In other 

words, Lafferty‘s beyond-a-reasonable-doubt standard does not 

apply when the State uses evidence merely to show the nature 

and circumstances of the crime for which the defendant is being 

sentenced—even if that evidence might be criminal activity in and 

of itself.

¶129 We must now determine whether Lafferty‘s beyond-areasonable-doubt standard applies here. The State, at 

Drommond‘s penalty-phase trial, didn‘t argue that the above 

evidence was evidence of crimes distinct from the aggravated 

murder for which he was being sentenced. Neither did it argue 

that the above evidence supported a sentence of life without the 

possibility of parole. Rather, the State presented the evidence as 

part of the circumstances of the murder. The evidence showed 

what Drommond did before the murder and informed the jury 

about Drommond‘s lack of remorse afterward. It showed how he 

got the murder weapon and his fixation on Reed dating another 

 

(2) burglarized a home, and (3) sexually abused a six-year-old 

neighbor girl and evidence that the defendant, as an adult, (1) was 

convicted of burglary and carrying a concealed weapon and 

(2) molested young girls at a public swimming pool); State v. 

Parsons, 781 P.2d 1275, 1276, 1279, 1283 (Utah 1989) (applying 

Lafferty in a death-penalty case in which the defendant had been 

convicted of first-degree murder after stabbing his victim to death 

and the State introduced as evidence of aggravating 

circumstances that the defendant murdered the victim ―as a 

person on parole who knowingly possessed or had a firearm 

under his control or custody‖ in violation of a Utah criminal 

statute).
STATE v. DROMMOND

Opinion of the Court

38

man in the weeks preceding the murder. The evidence wasn‘t

used to claim that Drommond had a history of criminal activity or

that he had committed similar crimes and so had a propensity for 

violence; the evidence was entwined with the crime for which 

Drommond had pleaded guilty and merely informed the jury 

about ―the nature and circumstances of the crime.‖ See UTAH 

CODE § 76-3-207(2). The evidence thus wasn‘t ―other . . . criminal 

activity‖ used ―as an aggravating factor,‖ Lafferty, 749 P.2d at 

1260, in favor of a sentence of life without parole. So, Lafferty

doesn‘t apply to the evidence, and the trial court didn‘t err by 

refusing to give the Lafferty beyond-a-reasonable-doubt 

instruction.18

¶130 In sum, the State didn‘t seek to prove that Drommond 

committed other crimes and to use those crimes as an aggravating 

factor. So the trial court didn‘t abuse its discretion by refusing to 

give a beyond-a-reasonable-doubt jury instruction under Lafferty.

V. CUMULATIVE ERROR DOCTRINE

¶131 Drommond last maintains that he deserves a new 

penalty-phase trial under the cumulative error doctrine. But he 

has inadequately briefed this argument and has thus failed to 

carry his burden of persuasion on appeal.

¶132 Our opinion in Bank of America v. Adamson, straightened 

out our briefing requirements. 2017 UT 2, ¶ 11, 391 P.3d 196. We 

held there that we do not have ―a bright-line rule determining 

when a brief is inadequate.‖

19 Id. ¶ 12. As a result, we now focus 

__________________________________________________________

18 The State also argues that Lafferty does not apply because 

Lafferty was a death-penalty case, and Drommond‘s is not. We 

need not decide whether Lafferty applies to non-death-sentenceeligible cases because, even assuming it does, it does not apply to 

the evidence challenged here.

19 We realize that the briefs for this appeal were filed in 2010 

and so the parties didn‘t have the benefit of our opinion in Bank of 

America. But at that time, we routinely declined to address issues 

that were inadequately briefed. See, e.g., State v. Timmerman, 2009 

UT 58, ¶ 25 n.5, 218 P.3d 590 (―An issue is inadequately briefed if 

the argument merely contains bald citations to authority [without] 

development of that authority and reasoned analysis based on 

that authority.‖ (alteration in original) (citation omitted) (internal 

quotation marks omitted)).
Cite as: 2020 UT 50

Opinion of the Court

39

our analysis on whether Drommond has made a ―sufficient 

argument for ruling in [his] favor‖ rather than ―on whether there 

is a technical deficiency in [briefing] meriting a default.‖ Id.

(alteration in original). Under this analysis, a ―party must cite the 

legal authority on which its argument is based and then provide 

reasoned analysis of how that authority should apply in the 

particular case, including citations to the record when 

appropriate.‖ Id. ¶ 13; UTAH R. APP. P. 24(a)(8) (―The argument 

must explain, with reasoned analysis supported by citations to 

legal authority and the record, why the party should prevail on 

appeal.‖).

¶133 Drommond‘s argument is inadequately briefed because 

it does not meet rule 24(a)(8)‘s standard. Drommond could win 

his appeal under the cumulative error doctrine ―only if the 

cumulative effect of the several errors undermines our confidence 

. . . that a fair trial was had.‖ State v. Martinez-Castellanos, 2018 UT 

46, ¶ 39, 428 P.3d 1038 (alteration in original) (citation omitted).

Yet Drommond didn‘t provide ―reasoned analysis‖ in his briefs 

about whether the alleged errors had a cumulative effect and, if 

so, why the cumulative effect of the alleged errors should 

undermine our confidence that his penalty-phase trial was fair. In

other words, he didn‘t analyze the facts through the lens of the 

cited law.

¶134 Drommond‘s argument, rather than containing 

―reasoned analysis‖ about the cumulative error doctrine, is 

conclusory. See Conocophillips Co. v. Utah Dep’t of Transp., 2017 UT 

App 68, ¶ 29, 397 P.3d 772 (rejecting an argument for cumulative 

error as inadequately briefed because it was ―confined to a single

conclusory sentence‖ in the party‘s opening brief). Indeed, the 

argument in his opening brief just lists the alleged errors and 

concludes that the ―cumulative effect of these errors precluded 

Defendant from obtaining a fair trial and due process in violation 

of his federal and state constitutional rights.‖ And the argument 

in his reply brief is no more detailed. It claims simply that ―the 

cumulative effect of [the] errors magnifies the unfairness of the 

capital sentencing trial and requires reversal.‖ This is not the type 

of ―reasoned analysis‖ that our opinion in Bank of America

contemplates.

¶135 Because Drommond has inadequately briefed his 

argument under the doctrine of cumulative error, he has failed to 

carry his burden of persuasion on appeal. Bank of Am., 2017 UT 2, 

¶ 12. (―[A]n appellant who fails to adequately brief an issue  ̳will 
STATE v. DROMMOND

Opinion of the Court

40

almost certainly fail to carry its burden of persuasion on appeal.‘‖ 

(citation omitted)).

CONCLUSION

¶136 Drommond is not entitled to a new penalty-phase trial. 

His sentence—life in prison without the possibility of parole—

stands. We affirm.