State v. Drommond , 2020 UT 50 ( 2020 )

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
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
2
Cite as: 2020 UT 50
Opinion of the Court
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
3
STATE v. DROMMOND
Opinion of the Court
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.‖
4
Cite as: 2020 UT 50
Opinion of the Court
¶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.‖
5
STATE v. DROMMOND
Opinion of the Court
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.‖
6
Cite as: 2020 UT 50
Opinion of the Court
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.
7
STATE v. DROMMOND
Opinion of the Court
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.
8
Cite as: 2020 UT 50
Opinion of the Court
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.
9
STATE v. DROMMOND
Opinion of the Court
¶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
10
Cite as: 2020 UT 50
Opinion of the Court
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-assistance-
of-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.
11
STATE v. DROMMOND
Opinion of the Court
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.
12
Cite as: 2020 UT 50
Opinion of the Court
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
13
STATE v. DROMMOND
Opinion of the Court
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 cross-
examination, 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
14
Cite as: 2020 UT 50
Opinion of the Court
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
15
STATE v. DROMMOND
Opinion of the Court
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
16
Cite as: 2020 UT 50
Opinion of the Court
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
17
STATE v. DROMMOND
Opinion of the Court
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
18
Cite as: 2020 UT 50
Opinion of the Court
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.
19
STATE v. DROMMOND
Opinion of the Court
¶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 cross-
examination, 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
20
Cite as: 2020 UT 50
Opinion of the Court
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 well-
recognized 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
21
STATE v. DROMMOND
Opinion of the Court
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.
22
Cite as: 2020 UT 50
Opinion of the Court
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.
23
STATE v. DROMMOND
Opinion of the Court
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).
10See 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 . . .)
24
Cite as: 2020 UT 50
Opinion of the Court
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 . . .)
25
STATE v. DROMMOND
Opinion of the Court
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 cross-
examination.‖ 541 U.S. 36, 61 (2004).
26
Cite as: 2020 UT 50
Opinion of the Court
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 ---.
27
STATE v. DROMMOND
Opinion of the Court
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
28
Cite as: 2020 UT 50
Opinion of the Court
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.
29
STATE v. DROMMOND
Opinion of the Court
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 father-
in-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
30
Cite as: 2020 UT 50
Opinion of the Court
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 victim-
impact evidence that ―is so unduly prejudicial that it renders the
trial fundamentally unfair.‖ Payne v. Tennessee, 501 U.S. 808, 825
(continued . . .)
31
STATE v. DROMMOND
Opinion of the Court
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 victim-
impact 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)).
32
Cite as: 2020 UT 50
Opinion of the Court
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.
33
STATE v. DROMMOND
Opinion of the Court
descriptions‖ of victims‘ grief may be admissible. Id. Victim-
impact 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 . . .)
34
Cite as: 2020 UT 50
Opinion of the Court
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 wide-
ranging 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‖).
35
STATE v. DROMMOND
Opinion of the Court
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 . . .)
36
Cite as: 2020 UT 50
Opinion of the Court
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-a-
reasonable-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).
37
STATE v. DROMMOND
Opinion of the Court
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-sentence-
eligible 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)).
38
Cite as: 2020 UT 50
Opinion of the Court
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
39
STATE v. DROMMOND
Opinion of the Court
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.
40