STATE v. OTT No. 20040638.
247 P.3d 344 (2010)
2010 UT 1
STATE of Utah, Plaintiff and Appellee, v. Mark Anthony OTT, Defendant and Appellant.
Supreme Court of Utah.
Rehearing Denied June 11, 2010.
Mark L. Shurtleff, Att'y Gen., Laura B. DuPaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.
Elizabeth Hunt, Salt Lake City, for defendant.
¶ 1 This case comes to us on direct appeal from Mark Ott's sentencing for aggravated murder and other charges. On one horrific night in the summer of 2002, Mr. Ott broke into the home of his wife, Donna Ott, who had recently filed for divorce. Knife in hand, Mr. Ott attacked Mrs. Ott's boyfriend, Allen Lawrence. He also stabbed his stepdaughter, Sarah Gooch. Mr. Ott then set the house on fire. All of the residents of the house escaped except Lacey Lawrence, Mr. Lawrence's six-year-old daughter, who died in the fire. Mr. Ott eventually entered an Alford plea of guilty to aggravated murder in connection with Lacey's death and pled guilty to other charges. He was sentenced by a jury to life in prison without the possibility of parole. In Mr. Ott's direct appeal, he argues over the legality of his plea as well as various instances of ineffective assistance. We hold that Mr. Ott's counsel provided ineffective assistance because counsel failed to object to portions of the victim impact evidence.
¶ 2 Mr. Ott married Donna Ott in 1996. Mrs. Ott had three children from a previous marriage (Daniel, Sarah, and Lucy), and had two more after her marriage to Mr. Ott (Carissa and William). Over the years, marital and family problems increased, and Mrs. Ott eventually separated from Mr. Ott and filed for divorce. A month after their separation, Mrs. Ott met Allen Lawrence and they began to date. Mr. Ott disapproved of Mrs. Ott's relationship with Mr. Lawrence
¶ 3 On the night of the fire, Mrs. Ott was awakened by her dogs barking. She went to the window to check on them and saw Mr. Ott in the backyard. She then ran to Mr. Lawrence, who was asleep in her bed, and attempted to wake him. Meanwhile, Mr. Ott broke into the house, entered Mrs. Ott's bedroom, and began to stab Mr. Lawrence. Mrs. Ott's daughter, Sarah, attempted to stop Mr. Ott from stabbing Mr. Lawrence by jumping on Mr. Ott's back and hitting his head with a can of mace. Mr. Ott then stabbed Sarah in her abdomen. During the attack, Mrs. Ott attempted to call the police but was unsuccessful because the phone line had been cut.
¶ 4 Despite his wounds, Mr. Lawrence was able to escape the bedroom and make his way to the front door. Mr. Ott followed Mr. Lawrence and continued to stab him. At some point, the knife broke and Mr. Ott was distracted by Mrs. Ott who had been watching the attack from the hallway. Mr. Ott said to Mrs. Ott, "Now look what you've made me do. Are you happy now?" He then approached Mrs. Ott and embraced her from behind. At that point, Lucy came upstairs from her bedroom in the basement, saw Mr. Ott, screamed, and ran back downstairs. Then, either while Mr. Ott held Mrs. Ott or shortly after, Sarah came from the bedroom and helped Mr. Lawrence out the front door. Sarah and Mr. Lawrence ran down the street and hid behind a fence.
¶ 5 Meanwhile, Mr. Ott went out the back door. Mr. Ott re-entered the home and poured gasoline, which he had obtained from the garage, on Mrs. Ott's bed. Mr. Ott then went downstairs, lit a sofa and a loveseat on fire, and told Mrs. Ott to get everyone out of the house. Seeing the fire, Mrs. Ott yelled for her daughter, Lucy, and Lucy's friend, Hillary, who was spending the night. She found the girls in the basement, and they safely exited the house. Mrs. Ott confirmed that her children were safely out of the house by conducting a head count, but she forgot to confirm the whereabouts of Lacey.
¶ 6 Just as Mr. Ott drove away, Mrs. Ott remembered that Lacey was still in the house. She ran back to the burning house and attempted to enter it, but was prevented from doing so by a police officer. Firefighters found Lacey inside a bedroom, dead from carbon monoxide poisoning.
¶ 7 Mr. Ott was charged with aggravated murder as a capital felony. The State also charged him with aggravated arson, aggravated burglary, aggravated assault, theft, attempted aggravated murder, and violation of a protective order. Mr. Ott maintained that he never knew Lacey was in the house, though he admitted starting the fire that killed her. Mr. Ott moved to quash his bindover on the charge of aggravated murder. He argued that he could not have intentionally and knowingly killed Lacey because he did not know she was in the house. Mr. Ott further argued that his intent to kill Mr. Lawrence with a knife was different from his intent to burn the house down.
¶ 8 The State argued that transferred intent and concurrent intent, also known as the "kill zone" theory, sufficed to sustain charges of aggravated murder. The district court rejected as too tenuous the State's theory that Mr. Ott's intent to kill Mr. Lawrence could be transferred and treated as the intent to kill Lacey. Nevertheless, the district court held that the magistrate, in ordering the bindover, had implicitly found that Mr. Ott harbored an intent to kill Mrs. Ott in the fire and that this intent transferred to Lacey.
¶ 9 Mr. Ott petitioned unsuccessfully for interlocutory review of the district court's order. A plea bargain was arranged, and Mr. Ott entered an Alford plea
¶ 10 At the capital sentencing hearing, the jurors heard testimony from various individuals. Ten of the twelve jurors voted to sentence Mr. Ott to life in prison without the possibility of parole. The district court then imposed the statutory prison terms for each of the other charges and ordered them to run consecutively to each other and to the life without parole sentence.
¶ 11 Mr. Ott's case next came to us on direct appeal where the central issue was Mr. Ott's claim that his attorneys were ineffective. We ordered that the case be temporarily remanded to the district court for discovery pursuant to rule 23B of the Utah Rules of Appellate Procedure. At the conclusion of the hearings, the district court entered findings that no conflict of interest existed and that Mr. Ott's counsel was not ineffective. The record was returned to us for final action on Mr. Ott's direct appeal.
¶ 12 After hearing oral arguments and reviewing the parties' briefs and the record, we asked for supplemental briefing on the issue of whether Mr. Ott's Alford plea to aggravated murder could satisfy the elements of Utah Code section 76-5-202 (2008). We were concerned that Mr. Ott's Alford plea was defective as a matter of law because of the statutory requirement that to be guilty of aggravated murder a defendant must knowingly and intentionally kill the victim.
¶ 13 This appeal will address (1) whether Mr. Ott's plea was defective as a matter of law and (2) whether Mr. Ott's representation constitutes ineffective assistance of counsel. Because we hold that Mr. Ott's counsel was objectively deficient for failing to object to portions of the victim impact evidence introduced by the prosecution, and that this failure prejudiced Mr. Ott, we do not address the rest of Mr. Ott's ineffective assistance claims. See State v. Carter,
STANDARD OF REVIEW
¶ 14 We will address the following two issues on appeal: (1) whether Mr. Ott's guilty plea was proper and (2) whether Mr. Ott's counsel was ineffective.
¶ 15 First, attempts to withdraw a guilty plea invite multiple standards of review. State v. Beckstead, 2006 UT 42, ¶ 7,
¶ 16 Second, some of Mr. Ott's claims of ineffective assistance of counsel are raised for the first time on appeal and some have been addressed by the trial court in the 23B hearing, both categories bearing different standards of review. Mr. Ott's ineffective assistance claim relating to counsels' failure to object to the victim impact evidence was not a part of his 23B hearing. Because we decide this case on a claim of ineffective assistance of counsel that is presented for the first time on appeal, we need only describe one appropriate standard of review. "An
I. THIS COURT LACKS JURISDICTION TO ADDRESS MR. OTT'S GUILTY PLEA BECAUSE MR. OTT FAILED TO MOVE THE COURT TO WITHDRAW HIS PLEA
¶ 17 Utah Code section 77-13-6 (2008) governs the withdrawal of guilty pleas, including the Alford plea in Mr. Ott's case. Section 77-13-6 states:
¶ 18 We have previously held that failure to withdraw a guilty plea within the time frame dictated by section 77-13-6 deprives the trial court and appellate courts of jurisdiction to review the validity of the plea. State v. Rhinehart, 2007 UT 61, ¶¶ 12-14,
¶ 19 Mr. Ott did not move to withdraw his guilty plea within the time restrictions of section 77-13-6. He argues that this court should disregard his failure to timely move to withdraw his guilty plea because his guilty plea constitutes a misplea. We stated in State v. Kay that a misplea may be granted
¶ 20 We decline to discuss whether Mr. Ott's plea met the requirements for a court to grant a misplea because we hold that the misplea doctrine in Mr. Ott's case cannot be used to circumvent jurisdictional requirements. Furthermore, neither the State nor Mr. Ott made any motion to the trial court that a misplea occurred, a factor which is considered in cases that have granted a misplea. See Id. at 1296-97; State v. Lopez, 2005 UT App 496, ¶¶ 2-8, 14-27,
II. MR. OTT'S COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO OBJECT TO VICTIM IMPACT EVIDENCE, THEREBY PREJUDICING MR. OTT
¶ 21 Mr. Ott argues his trial counsel was ineffective because counsel failed to object to the admission of certain victim impact evidence during his capital sentencing hearing. Specifically, counsel did not challenge the admissibility of a six-minute videotape featuring pictures of Lacey Lawrence set to moving music, testimony from Lacey's family members about the devastating effect Lacey's death had on them, and testimony from Lacey's family on their opinion of Mr. Ott's character and the appropriate sentence.
¶ 22 "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark, 2004 UT 25, ¶ 6,
¶ 23 In State v. Carter, we questioned whether victim impact evidence concerning a defendant's blameworthiness was probative and held that victim impact evidence was inadmissible in capital sentencing.
¶ 24 Mr. Ott argues that regardless of the amendment to section 76-3-207, his trial counsel should have argued that the victim impact evidence presented by the State in his sentencing proceeding was not admissible either because (1) section 76-3-207(2)(a)(iii) is unconstitutional under the Utah Constitution, or (2) that under Carter the evidence is inadmissible because it is not probative. Mr. Ott also contends that his counsel provided ineffective assistance for failing to object to portions of the victim impact evidence that spoke to Mr. Ott's character, chances for his rehabilitation, and the appropriate penalty to be imposed; all of which he insists violated the United States Constitution. We do not address Mr. Ott's first two arguments today because we hold that portions of the impact evidence the State introduced at Mr. Ott's sentencing hearing violated the Eighth Amendment of the United States Constitution, and that Mr. Ott's counsels' failure to object to this evidence constitutes ineffective assistance of counsel.
A. Mr. Ott's Counsel Was Objectively Deficient Because They Failed to Object or to Attempt to Otherwise Exclude Portions of the Victim Impact Evidence
¶ 25 "To establish a claim of ineffectiveness based on an oversight or misreading of law, a defendant bears the burden of demonstrating why, on the basis of the law in effect at the time of trial, his or her trial counsel's performance was deficient." State v. Dunn,
¶ 26 We hold that large portions of the victim impact evidence introduced at Mr. Ott's capital sentencing hearing featured the victims' opinions of the defendant's character or the appropriate sentence and were therefore clearly at odds with United States Supreme Court precedent. Each victim was asked to testify about how he or she would feel if Mr. Ott were to be released in twenty years. Each expressed the opinion that Mr. Ott could not be rehabilitated and the notion that he might ever be released frightened them. We recount the relevant testimony below. In order to provide context for the statements made, we have quoted large portions of the testimony given at Mr. Ott's sentencing hearing. Although this testimony contains many impermissible statements, we are not suggesting that every statement quoted below is constitutionally inadmissible.
¶ 27 Allen Lawrence, Lacey's father, testified as follows:
¶ 28 Donna Ott testified as follows:
¶ 29 Sarah Gooch, Donna Ott's daughter, responded to a similar line of questioning as follows:
¶ 30 Lucy Gooch testified:
¶ 31 Amber Lawrence, Lacey's sister, testified as follows:
¶ 32 Terry Cook, Lacey Lawrence's mother, testified as follows:
¶ 33 It is clear to us that the testimony offered at Mr. Ott's sentencing falls squarely within the categories of evidence identified as inadmissible, in capital sentencing hearings, by Payne and Booth. Mr. Ott's counsel was objectively deficient for failing to object to the offensive evidence.
¶ 34 The State argues, however, that Mr. Ott's counsel deliberately chose not to object to the inadmissible evidence as part of trial strategy. We find this argument to be without merit. "Proving that his counsel's performance fell below an objective standard of reasonableness requires [Mr. Ott] to `rebut the strong presumption that under the circumstances,
¶ 35 We have previously analyzed whether trial counsels' failure to object to victim testimony at trial is merely trial strategy. Id. at 155. In Bullock, a child sexual abuse case, the defendant argued his trial counsel was ineffective in failing to argue that videotaped testimony of alleged child abuse victims and expert testimony was inadmissible. Id. At trial, videotaped testimony of four boys describing the alleged abuse was presented to the jury, and the social worker to whom the boys first disclosed the abuse was questioned at trial. Id. at 156. Among other things, defense counsel did not object to the admissibility of the out-of-court statements, the videotaping procedures, or the expert witness's testimony that the children were victims of sexual abuse. Id. at 157-58.
¶ 36 We found that allowing the jury to hear the videotaped descriptions and the expert testimony and then cross-examining the expert to attack the credibility of the children's accusations was defense counsels' strategy. Id. at 160. Defense counsel attempted to "attack the quality of the State's evidence in an effort to persuade the jury of the insufficiency of the evidence to support a conviction." Id. at 158. We held that counsel in Bullock was not objectively deficient because "[w]hile the evidence complained of may have been inadmissible, trial counsel could reasonably conclude under these circumstances that there was little chance of keeping the testimony of the children out of evidence," and that it was necessary to allow the expert testimony of the social worker in order for defense counsel to challenge the veracity of the expert's techniques. Id. at 159. We also took into account that defense counsels' presentation of defense experts and evidence of defendant's good character and reputation for truthfulness was consistent with a rational defense strategy. Id. at 158.
¶ 37 Mr. Ott's counsels' failure to object to the victim impact evidence presented in this case cannot be construed to be a component of any rational defense strategy. The State presents us with what it views as one defense strategy that would include tolerating the admission of prejudicial and inflammatory inadmissible evidence: one that employed as its central features avoiding the perception that Mr. Ott was "pushing Lacey aside" while presenting Mr. Ott as a remorseful man who took responsibility for his actions. The State argues that any objection made to the victim impact evidence would minimize the effect of this strategy.
¶ 38 We conclude, however, that counsels' overall strategy was not just to avoid dishonoring Lacey's death, but also to present Mr. Ott as someone who could be rehabilitated and who deserved the possibility of parole. In State v. Hovater, we noted if "the evidence ha[s] no conceivable beneficial value to [the defendant], the failure to object to it cannot be excused as trial strategy."
¶ 39 We note that avoidance of drawing the jury's attention to certain facts or over-emphasizing aspects of the facts is a well recognized trial strategy. See State v. Harter, 2007 UT App 5, ¶ 16,
B. Mr. Ott's Objectively Deficient Representation Prejudiced Mr. Ott
¶ 40 We also hold that Mr. Ott's objectively deficient representation prejudiced him. A defendant "is prejudiced by counsel's actions only if the result of the proceedings would have been different absent the claimed deficiency." State v. Greuber, 2007 UT 50, ¶ 9,
¶ 41 In this case, the record discloses that there is a reasonable probability that but for the admission of the victim impact evidence that addressed Mr. Ott's character and the victims' opinions of the appropriate sentence, Mr. Ott would have received a more favorable sentence. The admission of the evidence sufficiently undermines our confidence in Mr. Ott's sentence.
¶ 42 In State v. Kell, we analyzed the prejudicial effect of victim impact evidence. 2002 UT 106, ¶¶ 52-54,
Id. ¶ 52 n. 15.
¶ 43 In concluding that the admission of the victim impact evidence did not prejudice
¶ 44 The content of victim impact testimony in Mr. Ott's case is dramatically more inflammatory than the evidence admitted in Kell. Here, the testimony was angry in tone, inflammatory in content and contained messages that Mr. Ott was beyond rehabilitation. Additionally, the victim impact evidence was admitted during the penalty phase of the trial and comprised a large portion of the total evidence presented. The existence of these factors, especially considering that Mr. Ott's counsel never uttered a word objecting to the admission of the evidence, undermines our confidence in the outcome.
¶ 45 The State argues mitigation evidence presented by Mr. Ott's counsel ameliorates any prejudicial or inflammatory effect the victim impact evidence had. Our caselaw addressing prejudice under Strickland suggests that deficient counsel that leads to the admission of inflammatory statements is not prejudicial if other mitigating statements or evidence is presented. For instance, in State v. Dunn we held that a defendant was not prejudiced by his counsels' failure to request a jury instruction concerning uncorroborated witness testimony because the county attorney had testified that the witness's testimony was given in exchange for a reduction in his own charge, the witness admitted on the stand to be a pathological liar, and the judge instructed the jury that they may disregard evidence they deemed incredible.
¶ 46 Mr. Ott's case does not present an instance where the mitigating evidence presented negates the prejudicial effect of the unlawful victim impact evidence. The single question before the jury was whether Mr. Ott should receive a sentence of life with parole or life without parole. Implicit in a sentence of life with the possibility of parole is a belief by the jury that Mr. Ott could one day be rehabilitated and re-enter society. Underlying the jury's decision is the large amount of evidence addressing Mr. Ott's mental health, including any mood or personality disorders.
¶ 47 Dr. Egli, the prison psychiatrist who treated Mr. Ott, testified that Mr. Ott was responding positively to medication. Mr. Ott's counsel also presented evidence of Mr. Ott's tumultuous childhood, war experience, and numerous psychiatric hospital stays leading up to the night of the crime wherein he may have been improperly medicated. While persuasive, this evidence does not, in our judgment, neutralize in any meaningful way the prejudicial effect that the characterization of Mr. Ott as a murdering "terrorist" made by people who directly encountered Mr. Ott on the night of the crime. That he was improving while medicated in prison did nothing to mitigate the numerous statements made that, once released, Mr. Ott would become uncontrollable. In considering "`the totality of the evidence before the . . . jury,'" Hales, 2007 UT 14, ¶ 86,
¶ 48 We therefore remand to the trial court with instructions to afford Mr. Ott a new sentencing hearing.
¶ 49 The facts and issues presented by this case are very complex. Although we first questioned whether Mr. Ott could properly plead to aggravated murder, we are without jurisdiction to address his guilty plea because his failure to move to withdraw the plea is a jurisdictional bar on this court. Mr. Ott
¶ 50 Associate Chief Justice DURRANT and Justice WILKINS concur in Justice NEHRING's opinion.
DURHAM, Chief Justice, concurring:
¶ 51 I concur fully in the analysis and result of the majority opinion on the federal issue, but write separately to note my concern at the failure to engage first with the state law questions properly preserved and briefed. Structurally, I believe this court should determine first whether state law has been complied with before addressing claims that the federal Constitution has been violated. West v. Thomson Newspapers,
¶ 52 Justice PARRISH concurs in Chief Justice DURHAM's concurring opinion.
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