State v. Lovell, 930439.

• Decision Date: 23 April 1999
• Docket Number: No. 930439.,930439.
• Citation: 1999 UT 40,984 P.2d 382
• Parties: STATE of Utah, Plaintiff and Appellee, v. Douglas A. LOVELL, Defendant and Appellant.
• Court: Utah Supreme Court

984 P.2d 382

1999 UT 40

STATE of Utah, Plaintiff and Appellee, v. Douglas A. LOVELL, Defendant and Appellant.

No. 930439.

Supreme Court of Utah.

April 23, 1999.

Rehearing Denied June 22, 1999.

Jan Graham, Att'y General, Thomas B. Brunker, Asst Att'y General, Salt Lake City, William F. Daines, Gary R. Heward, Ogden, for Appellee.

James C. Bradshaw, Salt Lake City, Karen A. Chaney, Colorado Springs, for Appellant.

DURHAM, Associate Chief Justice:

¶1 Appellant Douglas Anderson Lovell (Lovell) appeals from a conviction of aggravated murder and a sentence of death. Lovell contends that (1) his Sixth Amendment right to counsel was violated because trial counsel had a conflict of interest due to personal and business associations with the prosecutor, (2) his right to counsel was also violated because the trial court failed to conduct an inquiry into complaints Lovell made about his court-appointed attorney, (3) he was denied due process of law because the trial court unconstitutionally applied the aggravating circumstances in the sentencing stage, and because Utah's death penalty scheme is unconstitutional, (4) he received ineffective assistance of counsel because trial counsel did not object to the allegedly unconstitutional application of the aggravating factors during sentencing and did not challenge the death penalty scheme. We affirm.

FACTS

¶2 On June 28, 1993, Lovell pled guilty to the aggravated murder of Joyce Yost (Ms. Yost). Lovell waived his right to be sentenced by a jury and the State sought the death penalty. In a memorandum decision issued on August 5, 1993, the trial court held that (1) the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, and (2) death was appropriate beyond a reasonable doubt. The trial court therefore sentenced Lovell to death.

I. THE CRIMES

¶3 On April 4, 1985, Lovell, while sitting in a stolen car, observed Ms. Yost leaving a restaurant. When she drove away alone, Lovell followed Ms. Yost to her home and approached her in her driveway. Lovell invited her to have a drink with him but she refused. Lovell then forced her into the stolen car and took her to his home in Clearfield, where he raped her twice and forced her to commit sodomy. Ms. Yost reported the crimes to the police, and the State charged Lovell with aggravated kidnaping, aggravated sexual assault, and forcible sodomy.

¶4 In late April or early May, while awaiting a preliminary hearing on the charges against him, Lovell contacted a friend from a former prison term, William Wiswell (Billy Jack). Lovell offered Billy Jack $600 to kill Ms. Yost, and Billy Jack agreed. On May 4, 1985, Lovell and Billy Jack burglarized a home and took several guns with which they intended to murder Ms. Yost. Lovell and Billy Jack chose a night for the murder, and Billy Jack waited at Ms. Yost's apartment to kill her. Billy Jack did not carry out the murder, however, because Ms. Yost did not return home that night.

¶5 Sometime after this failed attempt, Billy Jack left town without telling Lovell. With the preliminary hearing approaching, Lovell continued to plan Ms. Yost's murder. Although Lovell had been separated from his wife, Rhonda Buttars (Buttars) at the time of the rape, Lovell and Buttars had resumed living together after Lovell was charged with the Yost rape. On two occasions, Lovell had Buttars drive him to Ms. Yost's apartment to find a way to get inside. On one of these occasions, he discovered an unlocked kitchen window. He then asked another friend from prison, Tom Peters (Peters), to murder Ms. Yost. Peters agreed to murder Ms. Yost for $600 to $800. Lovell obtained the money through a fraudulent workers compensation claim and gave it to Peters. Lovell told Peters how to get into Ms. Yost's apartment, and on the planned night, Lovell went to a family gathering to establish an alibi. Peters, however, did not kill Ms. Yost but spent the money on heroin. The preliminary hearing was held as scheduled. Ms. Yost testified against Lovell, and the court bound Lovell over for trial.

¶6 Sometime after Peters failed to perform the murder, Lovell decided to murder Ms. Yost himself. On August 10, 1985, Buttars drove Lovell to Ms. Yost's apartment and dropped him off around midnight. Buttars then drove back home and went to bed. Lovell, wearing a stocking on his head, broke into Ms. Yost's apartment through the unlocked kitchen window. He went to Ms. Yost's bed where she was asleep, put his hand over her mouth and held a knife over her. Ms. Yost started when she awoke and cut her hand on the knife. Her blood soaked the sheets and mattress.

¶7 Ms. Yost pleaded with Lovell for her life and offered to drop the sexual assault charges. Lovell told Ms. Yost he would not kill her and gave her some Valium. Lovell then gathered up the blood-soaked sheets, turned over the mattress, and made the bed with fresh linens. He packed a suitcase to make the police believe Ms. Yost had left of her own accord. Lovell then drove Ms. Yost to a canyon outside of Ogden and strangled her. Lovell covered Ms. Yost's body with leaves and left her on the mountainside.

¶8 Some time after the murder, Lovell took a shovel back to the murder site, stole Ms. Yost's watch, and buried her body. Police never found Ms. Yost's body. On December 13, 1985, Lovell was convicted of the kidnapping and sexual assault of Ms. Yost based on her preliminary hearing testimony.

II. THE MURDER INVESTIGATION AND GUILTY PLEA

¶9 Lovell was the primary suspect when Ms. Yost disappeared, but the investigation did not make any progress for several years. In January 1988, Detective Terry Carpenter (Carpenter) became the lead detective on the case. In April 1991, Carpenter contacted Buttars, who had divorced Lovell in 1990. Carpenter offered Buttars immunity if she testified about the murder provided Buttars had not been the one to "pull the trigger." Buttars then told Carpenter about the murder and that Lovell had strangled Ms. Yost.

¶10 After Buttars' admission, Detective Carpenter visited Lovell in prison in May 1991 to question him about Ms. Yost's disappearance. Lovell refused to talk to Carpenter, but after Carpenter's visit, he began calling Buttars asking her to visit him at the prison. At the request of Detective Carpenter, Buttars recorded her conversations with Lovell during visits in June 1991 and January 1992. Lovell made incriminating statements in both conversations. For example, Lovell speculated that Billy Jack might have given police information about the murder, but that "Billy doesn't know that I did it. Billy doesn't know, neither does Tom. Nobody knows. You [referring to Buttars] was the only one. You're the only one that can get on the stand and say, `that's him.'" Lovell also stated, "I committed a first degree felony to cover another felony. It's the death penalty ... I premeditated — premeditated. I planned to kill Joyce. I planned to end Joyce's life. That's premeditated capital homicide." During these discussions, Lovell did not disclose the location of Ms. Yost's body. On May 14, 1992, the State charged Lovell with Ms. Yost's murder.

PROCEDURAL HISTORY

¶11 On December 10, 1992, Lovell's appointed trial counsel, John Caine (Caine) moved to suppress Lovell's recorded statements and Buttars' testimony. The trial court denied the motion, and Lovell petitioned for interlocutory review. The petition for interlocutory appeal was denied on March 26, 1993.

¶12 While the petition for interlocutory appeal was pending, Caine and the prosecution discussed the possibility of a plea bargain. Some time in January 1993, the prosecutor, Reed Richards (Richards), indicated to Caine that the only basis upon which they might fashion an agreement would be the returning of Ms. Yost's body to her family. When Caine gave this information to Lovell, Lovell assured Caine that he could locate Ms. Yost's body "in a snowstorm." No agreement was reached, however, and in February of 1993, Richards was injured and incapacitated. He subsequently left the prosecutors office and was not involved in the case any time after early February 1993.

¶13 After Richards left the case, Caine continued to work with the prosecution toward a plea agreement. On March 29, 1993, Lovell appeared before the trial court to discuss the denial of his interlocutory appeal. Lovell contends that he believed he had a plea agreement and would plead guilty on that date; however, no agreement was reached at that time. On April 14, 1993, the trial date was set for June 28, 1993, but the parties agreed to try to resolve the case before trial. On June 17, 1993, Lovell signed a memorandum of understanding, which required him to lead police to Ms. Yost's remains, to plead guilty to aggravated murder, and to accept a sentence of life without the possibility of parole. In exchange, the State agreed not to introduce any evidence in support of the death penalty and to dismiss the aggravated kidnapping charge. The agreement also provided that Lovell's failure to find the body would void the agreement.

¶14 Meanwhile, on May 7, 1993, the trial court received a letter from Lovell. In the letter, Lovell stated he wanted to defend himself. Lovell claimed he had confessed to Ms. Yost's murder to Detective Carpenter in reliance on Caine's representation that the parties had reached a plea agreement at his March hearing. Lovell confessed to Carpenter on the day of the March hearing during a chance meeting with the detective. Although Carpenter discouraged the conversation because Lovell's counsel was not present, Lovell said, "I can talk to you if I want." At that time, Lovell also told Carpenter that he had already confessed the murder to his father.

¶15 By the June trial date, after numerous attempts using his best efforts, Lovell had failed to lead police to Ms. Yost's remains. Although that failure voided his agreement to plead guilty, Lovell pleaded guilty to aggravated...