*1
STATE Anthony OTT, Defendant
Mark Appellant.
No. 20040638.
Supreme Court Utah. 5, 2010.
Jan. 11, 2010.
Rehearing Denied June *3 Shurtleff, Gen., Att'y Laura B. L.
Mark DuPaix, Gen., Att'y City, for Asst. Salt Lake plaintiff. Hunt, City, Salt Lake for defen-
Elizabeth dant.
NEHRING, Justice:
INTRODUCTION appeal comes to us on direct 1 This case sentencing aggravated from Mark Ott's charges. On one horrific murder and other night the summer of Mr. Ott broke in Ott, wife, Donna who into the home of his hand, recently in had filed for divoree. Knife boyfriend, Allen Mr. Ott attacked Mrs. Ott's stepdaugh- Lawrence. He also stabbed ter, Mr. then set Sarah Gooch. Ott on fire. All of the residents of the house Lawrence, escaped except Lacey Mr. house six-year-old daughter, who died Lawrence's eventually in entered an the fire. Mr. Ott in plea guilty aggravated murder Alford Lacey's pled connection with death and guilty charges. He sentenced to other was possi- by a to life without the bility parole. appeal, direct plea argues legality he over the of his as well as various instances of ineffective assistance. provided hold that Ott's counsel inef- We Mr. failed to fective assistance because counsel portions of the victim evi- dence.
BACKGROUND
married Donna Ott in 1996.
Mr. Ott
previous
three children from a
Mrs. Ott had
(Daniel, Sarah,
Lucy),
marriage
and
and had
marriage
her
to Mr. Ott
two more after
William).
(Carissa
years,
mari-
and
Over
increased,
family problems
and Mrs.
tal and
eventually separated from Mr. Ott and
Ott
sepa-
A month after their
filed for divorcee.
ration,
Allen Lawrence and
Mrs. Ott met
disapproved of
they began to date. Mr. Ott
relationship with Mr. Lawrence
Mrs. Ott's
verbally
physically
safely
and
threatened the
that her children were
out of the house
count,
by conducting a
forgot
two of them on several occasions.
head
but she
Lacey.1 Lacey
confirm the
whereabouts
¶
fire,
night
3 On the
Mrs. Ott was
six-year-old
was Mr.
daughter,
Lawrence’s
dogs barking.
awakened
her
She went to
spending
night
and she was
in Carissa’s
check on them and
the window to
saw
room
main
on the
floor of the house. Mrs.
backyard.
ran
Ott
She then
to Mr.
leaving
Ott then observed Mr. Ott
the scene
Lawrence,
bed,
asleep
who
her
in her vehicle.
Meanwhile,
attempted to wake him.
Mr. Ott
¶
away,
6 Just as Mr. Ott drove
Mrs. Ott
house,
broke into the
entered Mrs. Ott’s bed-
remembered that
was still
in the
room,
began
to stab Mr. Lawrence.
house. She ran back
burning
house
Sarah,
daughter,
attempted
Mrs. Ott’s
*4
it,
attempted
prevented
and
to enter
but was
stop
stabbing
by
Mr. Ott from
Mr. Lawrence
doing
by police
from
a
Firefight-
so
officer.
jumping on Mr.
hitting
Ott’s back and
his
bedroom,
Lacey
ers found
inside a
dead from
with a can
head
of mace. Mr. Ott then
poisoning.
carbon monoxide
in
During
stabbed Sarah
her abdomen.
the
attack,
¶
attempted
police
call
Mrs. Ott
to
the
charged
aggravated
Mr. Ott was
with
phone
but was unsuccessful because the
line
capital felony.
murder as a
The State also
had been cut.
charged
arson,
him
aggravated
with
aggra-
burglary, aggravated assault, theft,
vated
at-
¶
wounds,
Despite
his
Mr. Lawrence was
murder,
tempted aggravated
and violation of
escape
able to
the bedroom and make his
protective
order. Mr. Ott maintained that
way to the front door. Mr. Ott followed Mr.
Lacey
house,
he never knew
inwas
the
Lawrence and continued to stab him. At
though he
starting
admitted
the fire that
point,
some
the knife broke and Mr. Ott was
killed her. Mr.
quash
Ott moved to
his
by
distracted Mrs. Ott who had been watch-
charge
bindover
aggravated
on the
of
mur-
ing
hallway.
the attack from the
Mr. Ott
argued
der. He
that he could not have in-
Ott,
you’ve
said to Mrs.
“Now look what
tentionally
knowingly
and
killed
be-
you happy
made me do. Are
now?” He
cause
did
he
not know she was in the house.
approached
then
Mrs. Ott and embraced her
argued
Mr. Ott further
that his intent to kill
Lucy
from
point,
up-
behind. At that
came
Mr. Lawrence with a knife was different
basement,
stairs from her bedroom in the
from his intent
to burn the house down.
Ott, screamed,
saw Mr.
and ran back down-
¶
argued
8 The State
Then,
that transferred in-
stairs.
either while Mr. Ott held Mrs.
intent,
tent and concurrent
also
as
after,
known
the
shortly
Ott or
Sarah came from the
theory,
“kill zone”
charges
sufficed to sustain
helped
bedroom and
Mr. Lawrence out the
aggravated
of
murder. The district court
front door. Sarah and Mr. Lawrence ran
rejected as too tenuous the
theory
State’s
down the street and hid behind a fence.
that Mr. Ott’s intent to kill Mr. Lawrence
¶ Meanwhile,
Mr. Ott went out the back
could be transferred and treated as the in-
door. Mr. Ott re-entered the home and
Nevertheless,
Lacey.
tent to kill
the district
poured gasoline, which he had obtained from
court
magistrate,
held that the
in ordering
garage,
the
on Mrs. Ott’s bed. Mr. Ott then
bindover,
implicitly
the
had
found that Mr.
downstairs,
went
lit a sofa and a loveseat on
Ott harbored an intent to kill Mrs. Ott in the
fire, and
get everyone
told Mrs. Ott to
out of
fire and that this
Lacey.
intent transferred to
fire,
Seeing
yelled
the house.
the
Mrs. Ott
¶
daughter, Lucy,
friend,
for her
Lucy’s
and
petitioned
9 Mr.
unsuccessfully
Ott
Hillary,
spending
night.
who was
the
interlocutory
She
for
review of the district court’s
basement,
girls
found the
in
they
and
A plea bargain
order.
arranged,
safely exited the house. Mrs. Ott confirmed Mr. Ott entered an
plea2
ag
Alford
house,
1.
By entering
Daniel had moved out
plea,
and Wil-
2.
a defendant does
Alford
Rather,
guilt.
spending
night
liam and Carissa
not admit
guilty plea
were
defendant enters a
Mr.
recognizes
prosecu-
because he
Ott's home.
enough
guilty
has
tor
evidence to obtain a
ver-
Alford,
dict.
In North Carolina v.
Mr. Alford
failing to
objectively
deficient
charge
guilty pleas
murder
gravated
intro
impact evidence
portions of the victim
exchange for the State's
charges in
the other
this fail
prosecution, and that
duced
in
penalty
pursue the death
agreement not
Ott, we do not address
prejudiced
ure
drop
hearing and to
sentencing
capital
assistance
Mr. Ott's ineffective
the rest of
charges.
several
Carter,
claims. See State
sentencing hearing,
capital
At the
(Utah 1989) (overruled
grounds)
on other
various individ-
from
jurors heard
ability
expeditiously focus
(noting
"to
court's
jurors voted to
twelve
Ten
uals.
those criti
energy
judicial resources
without
to life
Mr. Ott
sentence
issues which
cal or outcome-determinative
then
The district court
parole.
possibility
which
any given
case
raised
be
and/or
for each
statutory prison terms
imposed
urged
previously
been
have not
substance
run
them to
charges and ordered
the other
rejected"). We have
upon
Court and
this
to the life
other and
consecutively to each
pursuant
jurisdiction
appeal
over
sentence.
parole
without
(2008).
78A-8-102(8)()
section
Utah Code
{11
next came to us on
case
was Mr.
the central issue
where
appeal
direct
REVIEW
OF
STANDARD
attorneys were ineffec-
that his
claim
Ott's
*5
following two
T14
will address
We
tempo-
the case be
ordered
tive. We
(1)
appeal:
whether Mr. Ott's
issues on
court for dis-
to the district
rarily remanded
(2)
plea
proper
was
whether
guilty
the Utah
to rule 23B of
covery pursuant
was ineffective.
Ott's counsel
At the con-
Procedure.
Appellate
of
Rules
hearings,
the district court
clusion
First,
a
attempts to withdraw
115
interest
findings that no conflict of
entered
of re
plea
multiple
invite
standards
guilty
Ott's counsel was
and that Mr.
existed
Beckstead, 2006 UT
view. State v.
to us
was returned
The record
ineffective.
matter, we
As an initial
note
ted); Merrill, 13-20, State v. ANALYSIS (addressing jurisdictional na 77-18-6(2)(b) prior ture of section signifi I. THIS COURT LACKS JURISDICTION amendment). Rhinehart, cant 2003 TO MR. ADDRESS OTTS GUILTY further held that may a defendant not over PLEA FAILED BECAUSE MR. OTT timely come a failure guilty withdraw his THE TO MOVE COURT TO WITH- plea "styled even if the failure is a claim as PLEA DRAW HIS ineffective assistance of counsel." 2007 UT ¶ Utah Code section 77-18-6 14, 167P.3d 1046. (2008) governs guilty pleas, the withdrawal of 119 Mr. Ott did not move to with including plea in Mr. Ott's case. Alford guilty plea draw his within the time restric Section 77-18-6 states: tions of section argues 77-18-6. He that this (1) plea guilty may A of not be withdrawn disregard court should timely his failure to any prior time to conviction. guilty move to plea withdraw his because his (2)(a) plea guilty A or no contest guilty plea a misplea. constitutes We stated only upon be withdrawn leave of the court Kay that misplea may grant be showing knowingly and a that it ed voluntarily made. where obvious reversible error has been (b) request A plea to withdraw a committed connection with the terms or contest, guilty except plea or no held *6 acceptance the plea agreement of the and abeyance, in by shall be made motion be- prejudice no undue to the defendant is may fore sentence is announced. Sentence apparent[,] .... in situations where some not be announced unless the motion is deception by party fraud or one leads to plea abeyance, denied. For in a held a acceptance the plea agreement{,] of the plea motion to withdraw the shall be made .... other [and] cireumstances where the days
within pleading guilty 80 or no balancing legitimate of the interests and contest. expectations pub- of the defendant and the (c) Any challenge guilty plea to a Tic. period specified made within the in time (Utah 1294, 1986), 717 (2)(b) P.2d 1805 overruled pursued Subsection shall be under 78B, 9, grounds Chapter by Hoff, Title on other v. Post-Convietion State 814 P.2d (Utah 1119, 1991). Act, 65C, Remedies 1123 and Rule Utah Obvious reversible Rules of Civil Procedure. error occurs when necessity pres- manifest is ent. Id. at 1808.
{18
previously
We have
held that
guilty
failure to
plea
withdraw a
within the
120 We decline to discuss whether Mr.
by
time frame dictated
section 77-18-6
plea
requirements
de Ott's
met the
for a court
prives
appellate
the trial
grant
court and
courts of
misplea
a
because we hold that the
jurisdiction
validity
plea.
to review the
misplea doctrine in Mr. Ott's case cannot be
¶¶
Rhinehart,
61,
12-14,
State v.
2007
UT
167 used to
jurisdictional
require
ciremmvent
1046;
State,
Furthermore,
P.3d
see also Grimmett v.
2007 ments.
neither the State nor
¶
("Utah
11, 8,
UT
Code
any
section Mr. Ott made
motion to the trial court
T(-18-6(2)(b)
filing
occurred,
establishes the
misplea
limitations
that a
a factor which is
govern
right
a criminal defendant's
in
granted
considered
cases that have
a mis-
guilty plea.
1296-97;
withdraw a
filing
plea.
These
limita
Lopes,
See Id. at
State v.
496,
2-8, 14-27,
1;
App
"Section 77-183- 2005 UT
jurisdictional.")
128 P.3d
tions are
6(2)(b)
¶¶
'imposes
jurisdictional
Bernert,
321,
2-5,
a
bar on late- State v.
App
7-
12,
Horrocks,
guilty pleas,
221;
filed motions to withdraw
100 P.3d
State v.
¶¶4,
2-7, 12-32,
App
1145;
comply
requirements
failure to
with its
'ex
(Utah
Carter,
questioned
In
Moss,
Ct.App.
State
P.2d
1022-27
1996).
concerning
rec-
Appeals
impact
has
victim
evidence
The Utah Court
whether
probative
blameworthiness was
defendant's
sponte
trial court
sua
set
ognized that a
time re-
even after the
guilty plea
impact
aside
that victim
evidence was
and held
expired.
have
77-18-6
of section
strictions
P.2d
capital sentencing.
in
inadmissible
496, 119,
P.3d 1.
App
Lopez, 2005 UT
(Utah
1995),
by
superseded
stat-
652-58
however,
76-8-2070)(a)@i)
case,
never
the trial court
ute,
§
In this
Ann.
Utah Code
Moreover, unlike
this discretion.
exercised
("This
(1995)
impact
of victim
evi-
censure
here, sentencing
had
cireumstance
the
capital
applies
to evidence of
dence
cases
do not
Lopes.
We therefore
yet occurred
character,
victim's
evidence of the effects
the
validity
the
jurisdiction to determine
have
surviving members of the
of the crime on the
guilty plea.
surviving
mem-
family, and evidence of
crime.").
opinions bers'
WAS INEF-
II. MR. OTTS COUNSEL
Legislature amended section 76-3-207 to ex-
HE
BECAUSE
FAILED
FECTIVE
pertaining to "the vice-
pressly allow evidence
TO VICTIM IMPACT
TO OBJECT
impact
on the
tim and the
of the crime
EVIDENCE, THEREBY PREJUDIC-
family
community
without com-
victim's
ING MR. OTT
victims,"
capi-
parison
persons
to other
or
argues
trial counsel was
121 Mr. Ott
his
Ann.
sentencing proceedings. Utah Code
tal
object to
because counsel failed to
76-3-207(2)(a)(ii) (2008).
ineffective
§
impact evi-
admission of certain victim
sentencing hearing.
during
capital
his
dence
argues
regard
124 Mr. Ott
challenge
did not
Specifically, counsel
76-8-207,
less of the amendment
to section
videotape
admissibility of a six-minute
fea-
argued
have
that the
his trial counsel should
turing pictures of
Lawrence set
presented
victim
music,
family
Lacey's
from
moving
sentencing proceeding
in his
was not
State
devastating
La-
effect
members about
(1)
either because
section 76-3-
admissible
them,
cey's
testimony from
death had on
207(@2)(a)@ii)is unconstitutional
under
Lacey's family
opinion
on their
of Mr. Ott's
(2)
Constitution, or
that under Carter
Utah
appropriate
sentence.
character and
it is not
the evidence is inadmissible because
probative. Mr. Ott also contends
*7
"An
of
122
ineffective assistance
provided ineffective assistance for
counsel
counsel claim raised for the first
time
failing
object
portions
to
of the victim
appeal presents
question
law."
v.
of
State
spoke
that
to Mr.
char
impact evidence
Ott's
Clark,
2004 UT
351
Objectively
A. Mr. Ott's Counsel Was
833,
(O'Connor,
111
S.Ct. 2597
J. concur
Defi-
They
Object
ring) (stating,
cient Because
Failed to
or
"we do not reach this issue as
Attempt
Exclude Por-
to Otherwise
no evidence of
kind
this
was introduced at
Impact
tions
the Victim
Evidence
trial");
petitioner's
United
States
v.
(10th Cir.1998)
1166,
McVeigh,
F.3d
158
1217
25 "To establish a claim inef
(stating, "Payne
prohibi
did
overrule the
oversight
on an
or misread
fectiveness based
against
tions in Booth
the admission of 'infor
law,
ing of
a defendant bears the burden of
concerning
mation
family
victim's
mem
demonstrating why, on the
of the law in
basis
bers'
opinions
characterization of and
about
trial,
effect at the time of
his or her trial
crime,
defendant,
appropriate
and the
performance
counsel's
was deficient." State
(quoting Payne,
sentence.""
who is They A. control freak. don't The get way. us. He He's shown want, they get they know-if don't what he is. showed his hand. That's what they any way don't know other but defining That's is moment of [sic] lifestyle. He doesn't threaten. It's episode five minute de- man's life. That know how to deal-it's how he lives his life. him what he is. That's what Mr. fined as Gooch, daughter, Donna Ott's Sarah is. That's him. Ott responded questioning to a similar line of as Q. upon your personal experi- Based follows: you with Mr. Ott ... and what ob- ences Q. your-your knowledge upon Based perceived served and in the manner and years, having livedwith Mark Ott for those attack fashion in which he carried out the experienced life in the home with Mark Drive, you your it on Hawthorne is Ott, experienced Sep- the attack on perception that if he had known Ott, if ist of 2002 Mark what tember in that house would he have escorted her any you if concerns do have Mark Ott is setting that on fire? out before house prison? ever released from A. I think he would have done a don't enough sleeping A. I have a hard time thing damn different. This man is a ter- long somebody it as is. It's a time for rorist. He deals with anarchist cookbooks. pissed they how off are. stir about are built. He looks at how bombs When he set that house on fire this isn't like Q. ability change in What about his building campfire grocery with a sack. upon you what know of him? based dumped gallons This is a If I bomb. life, A. Mark's been like-his whole gasoline right on this floor here and lit it ever since I've known him. How is he match, you imagine explo- with a can how gonna change? instantly. goes up sive that would be? It Q. you personal- How will that gas campfire I've thrown little bits of on a believe, ly, you if ever do he's released *9 up instantly. to start one. It flares Can from Utah Prison? State you imagine gasoline that much in the I'm A. I don't know. I-I don't know. guy house? ... He didn't care. This does terrified now. I'd hate to see how seared people's feelings. not care about other He actually if I'd be he was out. empathy anybody, has no none. He have it. It's not inside of his char- doesn't Luey 1 30 Gooch testified: to have that. acter Q. night, After the event of that what done, you've gone through you've what 28 Donna Ott testified as follows: since, whoever and whatever inwas that house. you any-are you do have fearful of mean, the defendant? I caught house could have neighbors. fire to the next door Very He A. much so. didn't care who died. He didn't got care who Q. you any if And do have fear he hurt. I know his my intention was to kill prison years would be released from in 20 dad, my but instead he killed little sister. might or what he do? IAnd don't think anything he deserves out, A. I think that if him it we let got. more than what she She can't be be, going doesn't matter how old he's to I today say here to what she I thinks. don't that, know, you think he'll finish what he think any that he rights. deserves He went there to do. I honest to I [sic] God any shouldn't rights. have He took all of way. feel that her, away hers from and I don't believe Lawrence, sister, Lacey's 31 Amber tes- any. that he should have tified as follows: Cook, Terry Lawrence's moth- Amber, Q. knowing happened what in er, testified as follows: September the home on in ist of Home, happened Out and what to [sic] Q. ... you any Do feelings have that sister, your your thoughts little what are you express they would like to as relate to feelings you on how it would make feel the defendant and happen what should to knowing your that the man that did this to the defendant? might father and sister possibility have the A. Yeah. I think he should have to being 20-plus released from in my walk in you shoes. I think should have years. to in my walk my shoes 'cause last two A. Terrifies Ime. don't think that it- years have been horrible You know he change. wouldn't-he wouldn't He They what? going get are not to better. I change wouldn't at all. And I didn't-I my daughter. loved The my love I had for knowing came here not about not even a daughter was strong. so You can't take portion things that have went on in away this, ... and I say hate to I but jail, things that he had I done. But hope you get parole don't out on because mean, just it enough sitting scares me you don't My daughter deserve it. don't this courtroom him knowing with he has no get to come right back to me I now. didn't handcuffs on. enough. That seares me get my to finish with daughter's I life. IAnd don't even want to think about how go have tonight to home my without knowing it would be going get he was to there, daughter and I have to be alone for any out in amount of time. I don't see my the rest of unhappy life and be for the anybody how could do what he did. But my hope rest of life. I you can think about today. he did that IAnd know that if it that for the your rest of life. him, up my to sitting dad wouldn't be 183 It is clear to us that today. My here dad would not be here at offered at Mr. sentencing Ott's squarely falls all ... very But it could have well been me categories within the of evidenceidentified as sister, my instead of little or both of us. inadmissible, capital sentencing hearings, Q. Amber, anything you is there else by Payne and Booth. Mr. Ott's counsel was want Any to know? other objectively failing object deficient for to thoughts you feelings you or have want to the offensive evidence. they make sure are- A. I want them to know that Mark however, argues, The State does not care. hap- He doesn't care what that Mr. deliberately Ott's counsel chose not pened night. He doesn't care if it was part inadmissible evidence as my me or everybody sister or strategy. of trial argument We find this house. He it burned down. He didn't "Proving be without merit. that his counsel's help anybody try out of it. He didn't performance objective fell below an standard requires pick reasonableness [Mr. Ott] to 'rebut person out one out of five. He wanted *10 us, just my dad. strong He was there for presumption the that under the cir- 354 might
cumstances,
challenged action
be
objectively deficient
the
sel in Bullock was not
complained
the
of
Taylor
"[wlhile
v. because
evidence
strategy'"
trial
sound
considered
178,
inadmissible,
12,
(quot-
789
State,
156 P.3d
trial counsel
have been
2007 UT
reasonably
under
cir-
Galetka,
96, 140,
could
conclude
these
44
v.
ing Carter
little chance of
cumstances that
there was
626).
counsel's
"'will not review
P.3d
We
testimony of the children out of
keeping the
another
simply because
tactical decisions
evidence,"
necessary
allow
and that it was
to
counsel,
have
appellate
would
lawyer, e.g.,
expert
testimony of the social worker
the
v.
course'"
Parsons
a different
taken
(Utah 1994)
challenge
defense counsel
to
the
Barnes,
(quot-
order for
871 P.2d
at
veracity
expert's techniques.
Id.
(Utah
Jones,
1059, 1063
828 P.2d
ing
v.
State
into account that defense
159. We also took
1991).
'a
Additionally, "whenever there is
presentation
experts
of defense
counsels'
judgment
professional
exercise of
legitimate
good
of defendant's
character and
evidence
strategy,
the fact that it
of trial
in the choice
consistent
reputation for truthfulness was
expected result does not
produce the
did not
strategy.
at
a rational defense
Id.
158.
with
Id.
of counsel!"
ineffectiveness
constitute
Bullock,
P.2d
v.
(quoting State
object to
87 Mr. Ott's counsels' failure to
(Utah 1989)).
essence,
question is
In
the
impact
presented
the victim
objections
the
be-
failure to raise
the
component
case cannot be construed to be
"Iwlas
consciously
the result of a
the trial court
fore
strategy.
any
of
rational defense
The State
rather
than
strategy of trial counsel
chosen
presents us with what it views as one defense
strategic
if it was a
deci-
oversight, and
strategy
tolerating
that would include
the
sion,
making
that
constitute
of
choice
inflammatory
did the
prejudicial and
admission of
Bullock,
of counsel?"
employed
ineffective assistance
that
as
inadmissible evidence: one
791P.2d at 158-59.
avoiding
perception
central
features
the
its
"pushing
aside"
that Mr. Ott was
previously analyzed whether
have
35 We
Mr.
presenting
while
Ott as
remorseful
object
failure to
to victim testi-
trial counsels'
responsibility
man
took
for his actions.
who
merely
strategy.
trial
Id. at
mony
trial is
objection
argues
any
that
made to
The State
Bullock,
case,
In
a child sexual abuse
155.
minimize
impact
the victim
evidence would
argued
trial
was
defendant
counsel
the
strategy.
the effect of this
failing
argue
videotaped
that
ineffective in
{38
conclude, however, that counsels
We
testimony
alleged child abuse victims and
strategy
just
overall
was not
to avoid dishon-
testimony
Id.
expert
was inadmissible.
At
death,
oring Lacey's
present
but also to
Mr.
trial,
testimony
boys
videotaped
of four
de-
who could
rehabilitated
Ott
someone
be
as
alleged
presented
abuse was
scribing the
parole.
possibility
deserved the
who
jury, and the social worker to whom the
Hovater,
if
we noted
"the evidence
State
questioned
boys first disclosed the abuse was
value to [the
no conceivable beneficial
hals]
Among
things,
at 156.
other
at trial.
Id.
defendant],
object
the failure to
to it cannot
to the admissi-
defense counsel did
strategy."
as trial
be excused
statements,
bility
the vid-
of the out-of-court
(Utah 1996).
testimony
Victim
procedures,
expert
or the
witness's
eotaping
portrayed
that
Mr. Ott as a murderer who
testimony that
the children were victims of
motivated
a desire to terrorize his
Id. at 157-58.
sexual abuse.
beyond
does
victims and who is
rehabilitation
jury
allowing
found
We
conceivably support
Ott's defense
videotaped descriptions
hear
and the ex-
theory
any
or
other
under
State's
cross-examining the
pert
and then
rationally
could be
constructed.
expert
credibility
attack
of the chil-
of draw
139 We note
avoidance
dren's
was defense
counsels
accusations
jury's
to certain facts or
strategy.
ing
counsel at-
attention
Id. at 160. Defense
aspects
the facts is a
over-emphasizing
tempted
quality
to "attack the
of the State's
strategy. See State v.
recognized trial
persuade
evidence in an effort to
of well
Harter,
App
support a
insufficiency
of the evidence to
de
(finding strategic
in failure of
that coun-
decision
conviction." Id. at 158. We held
*11
effect,
argue
jury
for curative
in
determining
fense counsel to
had an isolated trivial
error,
the effect of
implication
flight
of defendant's
the
we 'consider the total
struction
ity
jury!"
of the evidence
the ...
want
before
defense counsel did not
to em
because
Hales,
14, ¶86,
State v.
2007 UT
phasize the fact that defendant fled the scene
(alterations
crime).
original)
(quoting Strick
case, however,
In Mr.
of the
Ott's
land,
2052).
695-96,
U.S.
104 S.Ct.
tactical methods were available to his coun
sel,
type
the
which could have limited
case,
T 41 In this
the record discloses that
impact
For
in
victim
evidence admitted.
probability
there is a reasonable
that but for
stance,
sought
counsel could have
Mr. Ott's
impact
the admission of the victim
impact
victim
exclusion of the
evidence about
that addressed Mr. Ott's character and the
through a motion in li-
opinions
sentence,
Mr. Ott's character
appropriate
victims'
A
not to
to the victim
mine.
decision
Mr. Ott would have received a more favor-
evidence,
impact
especially when the evi- able sentence. The admission of the evi-
existing precedent prohibiting
denee violated
sufficiently
dence
undermines our confidence
in Mr. Ott's sentence.
expressing opinions
victims
about
the sen
character,
tence or the defendant's
falls be
Kell,
142 In
analyzed
State v.
we
the
objective
low the line of
reason and therefore
prejudicial
impact
effect of victim
evidence.
amounts
ineffective assistance
counsel.
106, 1152-54,
2002 UT
also Mr. Ott such objec- that the
tively deficient counsel constitutes ineffective
assistance of counsel. We remand to the
trial court for a new sentencing hearing con-
sistent with opinion. 4UT [ 50 Associate Chief Justice DURRANT WEISER, Glen C. Plaintiff and Justice WILKINS concur in Justice Appellant, and opinion. NEHRING's DURHAM, Justice, Chief concurring: UNION PACIFIC RAILROAD 151 I concur fully in analysis COMPANY, Defendant
result of the majority opinion on the federal Appellee. issue, but write separately to my note con- cern at the failure to engage first with the No. 20080124. questions state law properly preserved and Supreme Court of Utah. briefed. Structurally, I believe this court should determine first whether state law has Feb. 2010. complied been with before addressing claims Rehearing May 24, that the Denied federal 2010. Constitution has been violat- ed. West v. Thomson Newspapers, 872 P.2d (Utah 1994) 1005-06 (adopting pri-
macy approach wherein the court "looks first
to state law, constitutional develops indepen-
dent precedent, doctrine and and decides questions
federal only when state law is not
dispositive," and provides thus for a "consis-
tent method" that accords "with original
purpose (internal system" federal quo- tation omitted)); marks see also State v.
Briggs,
88, 52,
(Dur-
ham, C.J., ("The concurring) failure to under- independent
take analysis state in cases
where state law argued is contributes to a
paucity precedent and the absence of an
independent and adequate ground state our holding."); Tiedemann,
49, 133, ("[Ilt part is logic
inherent of federalism that state law be
interpreted independently prior to con-