State v. Cater
| Citation | 336 P.3d 32,2014 UT App 207 |
| Decision Date | 05 September 2014 |
| Docket Number | No. 20120201–CA.,20120201–CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Spencer Isaiah CATER, Defendant and Appellant. |
| Court | Court of Appeals of Utah |
David M. Corbett and Craig L. Pankratz, Salt Lake City, Attorneys for Appellant.
Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.
1
Opinion
¶ 1 Spencer Isaiah Cater appeals his aggravated kidnapping and aggravated robbery convictions, both first-degree felonies. He argues that the trial court erred by declining to disqualify the entire Salt Lake County District Attorney's office (the SLCDA) from prosecuting his case. Because Cater has not demonstrated that the trial court's disqualification decision was erroneous, we affirm.
¶ 2 Cater's convictions arise from a crime spree that involved five robberies, two kidnappings, and a murder. The SLCDA charged Cater in February 2009 for his role in the crimes, and the case was assigned to Assistant District Attorneys Stephen L. Nelson and Michael E. Postma. An attorney from the Salt Lake Legal Defender Association initially entered an appearance as Cater's defense counsel, but withdrew due to a conflict of interest. Shortly thereafter, B. Kent Morgan, Jeffrey W. Hall, and another attorney entered their appearances as counsel for Cater. Morgan and Hall had both previously worked as prosecutors for the SLCDA.
¶ 3 In April 2009, Morgan resumed his employment with the SLCDA and terminated his representation of Cater. In December 2009, the State moved the trial court to conduct a hearing to determine whether Morgan's employment with the SLCDA presented a conflict of interest that would require disqualification of the entire SLCDA as the prosecuting agency. At the March 2010 hearing, the SLCDA notified the court that the Utah Attorney General's office would replace the SLCDA as the entity prosecuting Cater. As a result, the parties agreed that the hearing was no longer necessary. In January 2011, Hall also returned to the SLCDA, and he terminated his representation of Cater at that time.
¶ 4 On February 14, 2011, the Attorney General's office notified Cater that it had appointed Nelson, Postma, and another SLCDA attorney, Nathan J. Evershed, as special assistant attorneys general to prosecute his case. Cater filed a motion objecting to their appointment, arguing that Morgan's and Hall's employment by the SLCDA after having represented Cater required the disqualification of every attorney in that office from his prosecution. The SLCDA opposed Cater's motion, and the trial court scheduled an evidentiary hearing.
¶ 5 After the hearing, the trial court concluded that the SLCDA had implemented sufficient measures to screen Cater's former defense counsel from his prosecution and had therefore rebutted a presumption that Cater's former counsel had shared his confidences with SLCDA attorneys. In making this determination, the trial court found that an unwritten screening policy was in effect at the time Morgan and Hall rejoined the SLCDA. With respect to Morgan, the trial court found that Morgan was aware of the unwritten policy at the time he rejoined the SLCDA, that he was screened from Cater's prosecution during his time at the SLCDA, and that he had not disclosed any confidences obtained during his representation of Cater. With respect to Hall, the trial court found that Hall acknowledged his ethical responsibilities at the time he rejoined the SLCDA and knew that he needed to be screened from Cater's prosecution, that he had been screened from the prosecution from the time he rejoined the SLCDA, and that he had not disclosed any of Cater's confidences.
¶ 6 Having found that the SLCDA had taken necessary and effective steps to prevent Morgan and Hall from sharing any of Cater's confidences with the SLCDA, and that Morgan and Hall had not, in fact, shared any of Cater's confidences, the trial court denied Cater's objection to the appointment of SLCDA prosecutors to his case. A jury convicted Cater at trial of aggravated kidnapping and aggravated robbery. He now appeals.
¶ 7 Cater challenges the trial court's denial of his motion to disqualify the SLCDA. “Trial courts are generally allowed considerable discretion in granting or denying motions to disqualify counsel, and such decisions will only be overturned when that discretion is exceeded.” State v. Balfour, 2008 UT App 410, ¶ 11, 198 P.3d 471. We therefore review the trial court's ultimate decision not to disqualify the SLCDA for an abuse of discretion.2 Id. Where Cater challenges subsidiary factual findings or legal conclusions, we review the trial court's factual findings for clear error and its legal conclusions for correctness. Id.
¶ 8 Generally, when a district attorney's office hires a former defense attorney, the entire office will be presumed privy to any client confidences obtained by the defense lawyer. State v. McClellan, 2009 UT 50, ¶ 19, 216 P.3d 956. Unless rebutted, this presumption of shared confidences requires the disqualification of that district attorney's office from the prosecution of any of the defense attorney's former clients. See id. ¶¶ 23, 26. The district attorney's office may rebut this presumption “by showing that effective screening procedures have been used to isolate the defendant's former counsel from the prosecution of the substantially related criminal charges.” Id. ¶ 19 (citation and internal quotation marks omitted).
¶ 9 Cater challenges the trial court's determination that the SLCDA rebutted the presumption of shared confidences that arose when Morgan and Hall rejoined the SLCDA. In addressing Cater's appeal, we first consider his argument that certain of the trial court's factual findings were clearly erroneous, and then address his challenge to the trial court's determination that Hall and Morgan were effectively screened from his prosecution.
¶ 10 Cater argues that two of the trial court's findings regarding the SLCDA's screening procedures are clearly erroneous. To establish clear error, the challenging party must show that a finding is not supported by legally sufficient evidence even when the evidence is viewed in a light most favorable to the finding. State v. Clark, 2005 UT 75, ¶ 17, 124 P.3d 235. And we will set aside a factual finding only if it is “against the clear weight of the evidence” or we reach a “definite and firm conviction that a mistake has been made.” Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 486 (citation and internal quotation marks omitted).
¶ 11 The trial court ruled orally that Morgan “was aware of the unwritten policy and procedure pertaining to this kind of circumstance.” Cater argues that this finding is clearly erroneous because it is contrary to Morgan's testimony that he was unaware of any screening policy and did not believe the SLCDA had one in place at the time of his return to the office. However, the trial court found that the SLCDA did have an unwritten screening policy in place. And the trial court's finding that Morgan was aware of this policy is supported by record evidence. Dahnelle Burton–Lee, then a chief deputy of the SLCDA, submitted an affidavit to the trial court stating that she had discussed the terms of Morgan's reinstatement with him upon his return to the office. Specifically, she averred that after Morgan disclosed all of the cases he had been involved with in private practice, she instructed him “not to participate any further in any manner in any of those cases, and ... not to discuss or disclose any information regarding any of those cases, including the criminal case pending against Mr. Cater, to anyone within the office or outside of the office.” Burton–Lee also averred that she reminded Morgan that “he was required to conduct himself in accordance with the Rules of Professional Conduct.” Given this evidence supporting the trial court's factual finding, we cannot say the finding is clearly erroneous.
¶ 12 Cater argues that we should disregard Burton–Lee's affidavit because it was not formally introduced as an exhibit at the hearing on Cater's motion. He asserts that the affidavit testimony cannot support the trial court's findings unless admitted into evidence as an exhibit. We disagree. Generally, a trial court may decide motions on the basis of affidavits submitted by the parties. Utah R. Civ. P. 43(b) ; see also id. R. 81(e) (). And our supreme court has recognized that a trial court may “grant or deny a motion on the sole or combined bases of affidavits, depositions or oral testimony.” Stan Katz Real Estate, Inc. v. Chavez, 565 P.2d 1142, 1143 (Utah 1977). Nothing in our rules requires that in deciding a motion, the trial court formally receive affidavits as exhibits in an evidentiary hearing before considering affidavit testimony, and Cater has identified no authority to that effect. Here, the State included Burton–Lee's affidavit with its opposition to Cater's motion to disqualify, and the trial court properly considered that affidavit testimony. Accordingly, we will not disturb the trial court's finding that Morgan was aware of the unwritten screening policy on this basis.
¶ 13 Cater next challenges the trial court's finding that Morgan “was screened from the prosecution of the defendant” during the time he was employed at the SLCDA.
He argues that the evidence shows that the unwritten policy in place at the SLCDA “was not consistently...
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State v. Clark
...only if it is against the clear weight of the evidence or we reach a definite and firm conviction that a mistake has been made." State v. Cater, 2014 UT App 207, ¶ 10, 336 P.3d 32 (citation and internal quotation marks omitted).¶ 33 In support of her argument that the district court's findi......
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...is not supported by legally sufficient evidence even when the evidence is viewed in a light most favorable to the finding.” State v. Cater, 2014 UT App 207, ¶ 10, 336 P.3d 32. We do not reweigh the evidence or substitute our decision for that of the Department but instead will uphold its de......