393 P.3d 314 (Utah 2017), 20130281, State v. Hummel

Docket Nº:20130281
Citation:393 P.3d 314, 2017 UT 19
Opinion Judge:Lee, Associate Chief Justice.
Party Name:STATE OF UTAH, Appellee, v. JOHN E. HUMMEL, Appellant
Attorney:Sean D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City for appellee. Gary W. Pendleton, St. George, for appellant.
Judge Panel:ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE HIMONAS joined. JUSTICE JOHN A. PEARCE became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.
Case Date:April 04, 2017
Court:Supreme Court of Utah
 
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Page 314

393 P.3d 314 (Utah 2017)

2017 UT 19

STATE OF UTAH, Appellee,

v.

JOHN E. HUMMEL, Appellant

No. 20130281

Supreme Court of Utah

April 4, 2017

Released for Publication May 5, 2017.

Page 315

[Copyrighted Material Omitted]

Page 316

Sixth District, Panguitch. The Honorable James R. Taylor. No. 121600018.

Sean D. Reyes, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City for appellee.

Gary W. Pendleton, St. George, for appellant.

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE HIMONAS joined. JUSTICE JOHN A. PEARCE became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.

OPINION

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Lee, Associate Chief Justice.

[¶1] John Hummel was charged and tried on four counts of theft and one count of attempted theft under Utah Code section 76-6-404. All eight jurors found him guilty on all five counts. There is no dispute in the record on this point. The jury was polled and all indicated that the verdict as announced was the one they voted for.

[¶2] Yet Hummel challenges his conviction under the Unanimous Verdict Clause of the Utah Constitution. Utah Const. art. I, § 10.1 He does so on the basis of an alleged lack of unanimity as to alternative factual theories advanced by the prosecution in support of some of the theft counts against him. Because of an alleged lack of record evidence to support some of the prosecution's theories, Hummel contends that we cannot be certain it was unanimous in its verdict. And he urges reversal on that basis. Alternatively, Hummel alleges two other sets of trial errors as grounds for reversal--in the prosecution purportedly changing theories partway through trial and in alleged " prosecutorial misconduct."

[¶3] We affirm. First, we hold that unanimity is not required as to theories (or methods or modes) of a crime. Under the text and original meaning of the Unanimous Verdict Clause, unanimity is required only as to the jury's verdict--its determination of guilt, or in other words its determination that the prosecution has proven each element of each crime beyond a reasonable doubt. There is no doubt that the jury was unanimous at that level in this case. And we affirm on that basis. We also reject Hummel's other arguments, concluding that his objection to the purported change in theories mid-trial was not preserved and that his charges of " prosecutorial

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misconduct" fail either on their merits or under plain error review.

I. BACKGROUND

[¶4] Garfield County does not have a full-time public defender. Instead it retains a private attorney to handle all public defense cases for a flat annual fee. In 2008 and 2009 the county retained John Hummel to do its public defense work.

[¶5] Hummel apparently concluded that he could make more money if he could convince his would-be public defense clients to retain him privately. So he met with a number of these clients before his formal appointment as public defender. In those meetings Hummel tried to persuade these clients to retain him privately.

[¶6] Jerry Callies was one of the defendants who met with Hummel under these circumstances. Callies met with Hummel after Callies had applied for court-appointed counsel. A bailiff directed Callies to meet with Hummel to discuss Callies' application. During the meeting Hummel told Callies that he did not qualify for appointed counsel. Hummel then suggested that Callies retain him and pay him as his private lawyer.

[¶7] Hummel told the imprisoned Callies that if Callies would sign over his guns and pay $2,500, Hummel would get him out of prison that day. He also warned that if Callies did not hire Hummel, Callies would spend thirty more days in prison and might even face additional charges. Callies relented. He gave Hummel his firearms and signed a promissory note for $2,500 in exchange for representation.

[¶8] Callies also alleges that Hummel asked him to fill out a new application for appointment of counsel and to list an inflated income amount in order to guarantee that Hummel would not be appointed as counsel. At trial, there was conflicting evidence as to whether Hummel was in fact appointed as Callies' counsel (a minute entry suggested that Hummel was appointed, while a recommendation by the county attorney that Callies be denied counsel cuts the other way).

[¶9] John Burke was a second would-be public defense client who met with Hummel. Hummel met with Burke after Burke had been charged with various drug and weapons charges. After filling out an application for court-appointed counsel, Burke gave the application to Hummel, believing that Hummel was in charge of the paperwork. During the meeting, Hummel mentioned that Burke, who had been in court before, must " know how courts are about public defenders." Hummel also indicated that he would be able to " better represent [Burke]" if Burke paid Hummel $5,000. After this conversation, Burke's father agreed to a $2,500 charge to his credit card. Hummel suggested he would work out a plan for payment of the remaining $2,500.

[¶10] Scotty Harville and Joe Sandberg also met with Hummel. A judge had told them both that they qualified for counsel. Yet Hummel told them that " it would look better" in court if they hired private counsel rather than rely on the work of a public defender. He also said they had a " better chance" of getting out of jail and avoiding further jail time if they retained him privately. Hummel convinced both Harville and Sandberg to sign promissory notes, which, Hummel claimed, would " make it seem as though" they " had retained him as private counsel." Hummel indicated that he would never try to collect on the promissory notes. He also suggested that Harville sign over to Hummel the weapons seized upon Harville's arrest to avoid facing further charges related to the weapons.

[¶11] John Spencer was the last of the would-be public defense clients at issue in this case. Spencer met with Hummel after completing his application for court-appointed counsel. Hummel asked Spencer for collateral in return for Hummel's services. And Spencer agreed--at Hummel's urging--to sign over multiple firearms to Hummel as collateral. As with Callies, a minute entry suggested that Hummel had in fact been appointed to represent Spencer.

[¶12] Hummel admitted that he removed the applications for court-appointed counsel prepared by four of these clients--Burke, Harville, Sandberg, and Spencer--from the desk of the court clerk. When questioned by the

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clerk about his actions, Hummel stated that he had destroyed the applications " because the men would not qualify for the public defender."

[¶13] Hummel acquired the following property as a result of this scheme: at least $2,500 cash, $15,000 worth of written or oral promises, and eight firearms.

[¶14] One of Hummel's clients eventually filed a complaint with the County Attorney's Office. An investigation ensued. Hummel was subsequently charged with theft under Utah Code section 76-6-404.

[¶15] The case eventually proceeded to trial. At trial the prosecution advanced distinct theories of Hummel's theft under the various counts against him--different ways in which Hummel was alleged to have " obtain[ed] or exercise[d] unauthorized control over the property of another with a purpose to deprive him thereof" under Utah Code section 76-6-404. The prosecution's distinct theories were reflected in the jury instructions. On four of the counts the prosecution asserted that Hummel had committed theft (or attempted theft) by " engaging in a deception, or by engaging in an extortion." 2 On the fifth count, the one involving Spencer, the prosecution claimed only that Hummel had obtained the property " by deception."

[¶16] The jury instructions further described ways that the jury could find that Hummel had committed theft by " deception" or " extortion" --they listed means by which the elements of the crime of theft could be satisfied. In the instructions the jury was presented with four ways that Hummel could have extorted his victims3 and three ways that he could have deceived them.4

[¶17] The jurors were not required to reach unanimity on any particular theory. But they were instructed that unanimity was required as to the determination that a theft had occurred. The relevant jury instruction on unanimity read as follows: " It is not necessary that all of you agree upon a particular alternative, only that all of you do agree that a theft under one of the alternatives did occur." Jury Instruction No. 13.

[¶18] The jury convicted Hummel on all five counts, and he now appeals. He raises four...

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