State v. Melancon

• Decision Date: 14 November 2014
• Docket Number: No. 20120508–CA.,20120508–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael MELANCON, Defendant and Appellant.

339 P.3d 151

2014 UT App 260

STATE of Utah, Plaintiff and Appellee

v.Michael MELANCON, Defendant and Appellant.

No. 20120508–CA.

Court of Appeals of Utah.

Nov. 14, 2014.

Matthew D. Carling, for Appellant.

Sean D. Reyes and Deborah L. Bulkeley, for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judges GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

Opinion

PEARCE, Judge:

¶ 1 Paul Melancon set fire to his brother's house. After his arrest, he met with a prosecutor and accepted a plea deal. As part of that deal, Paul Melancon agreed to testify that he had enkindled the house as part of a plan his brother, Michael Melancon (Defendant), had devised to collect the proceeds of an insurance policy. Before Defendant's trial, Defendant sought to disqualify the prosecutor, claiming he needed to call the prosecutor as a witness to testify concerning the plea negotiations. The trial court denied the disqualification motion. Defendant was convicted of both aggravated arson as an accomplice and criminal solicitation. After trial, the court merged the criminal-solicitation conviction into the aggravated-arson conviction. The trial court also denied Defendant's Shondel motion, by which he sought to be sentenced only for criminal solicitation.

¶ 2 Defendant challenges his conviction, contending that the trial court abused its discretion in denying his motion to disqualify the prosecutor and also erred by sentencing him for aggravated arson rather than criminal solicitation. Because the prosecutor was not a necessary witness and because Defendant was not entitled to confront the prosecutor, we find no abuse of discretion in the trial court's denial of the disqualification motion. Because the elements of the two offenses differ, we conclude that the Shondel doctrine did not apply and that the trial court correctly sentenced Defendant for aggravated arson. We affirm.

BACKGROUND

¶ 3 We recite the facts from the record in the light most favorable to the jury's verdict, supplementing them as necessary to understand the issues raised on appeal. State v. Marchet, 2014 UT App 147, ¶ 2 n. 3, 330 P.3d 138.

¶ 4 After his arrest, Paul Melancon (Brother) met with a police investigator and a prosecutor. Brother agreed to plead guilty to second-degree felony arson and to testify against Defendant. At trial, Brother testified that Defendant had asked for his help in setting fire to Defendant's house so that Defendant could collect the insurance proceeds. Brother testified that they prepared the house for the fire by removing tools from the garage, placing firearms in a fireproof room, backing up computers, and stashing important documents in a fireproof safe. Defendant instructed Brother on how to ignite the fire. Defendant then took his family to Las Vegas while Brother stayed behind to carry out the plan.

¶ 5 Brother further testified that he followed Defendant's instructions by removing property from the house, disconnecting the house's circuit breakers, disabling smoke detectors, and perforating the sheetrock in the basement. Brother also spread accelerants throughout the house. Brother set fire to a pillow and threw it into a downstairs media room to ignite the blaze. The fire spread more quickly than he had anticipated, and Brother suffered extensive and severe burns while escaping from the house.

¶ 6 Defendant denied much of Brother's story. Defendant testified that they had not planned to burn down his house, that he had not asked Brother to set his house on fire, and that he had never instructed Brother on how to do so. Defendant sought to discredit Brother's testimony as the result of a plea deal that permitted Brother to plead guilty to a lesser offense. Defendant believed that the prosecutor, Scott Garrett, was a necessary witness to testify concerning the plea negotiations leading to Brother's testimony. Defendant therefore moved to disqualify Garrett from serving as prosecutor in the apparent hope of calling him as a witness. The State noted that the plea negotiations had been recorded and agreed to the admission of the recording to settle any dispute about the content of the negotiations. The State also noted that the police investigator who had been present during the negotiations would testify at the trial and could be cross-examined by Defendant. The trial court denied Defendant's disqualification motion after ruling that an alternative source existed for the impeachment evidence Defendant sought and that Defendant's Confrontation Clause rights would not be violated.

¶ 7 A jury convicted Defendant of criminal solicitation and of aggravated arson under an accomplice-liability theory. Before sentencing, Defendant filed a Shondel motion, seeking to be sentenced solely for the criminal-solicitation conviction. See State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969) ; State v. Wolf, 2014 UT App 18, ¶ 37, 319 P.3d 757 (explaining that, under the Shondel doctrine, when the elements of two crimes are wholly duplicative, the defendant may be sentenced only to the lesser punishment). In the alternative, Defendant asked the court to merge the charges and enter his conviction only for first-degree-felony aggravated arson. The State conceded that the convictions should be merged but argued that Defendant was not entitled to the lesser penalty under the Shondel doctrine, because the elements of accomplice liability and criminal solicitation did not overlap completely. The trial court ruled that Defendant was not entitled to the lesser penalty, because the elements of the two crimes differed. The trial court did, however, merge the second-degree-felony criminal-solicitation conviction into the first-degree-felony aggravated-arson conviction. The trial court then sentenced Defendant to a five-years-to-life prison term on the aggravated-arson conviction.

¶ 8 Defendant appeals the denial of his disqualification and Shondel motions.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Defendant first contends that the trial court abused its discretion in denying the disqualification motion, because the prosecutor was a necessary witness to the plea negotiations and his testimony could have been used to impeach Brother. We review a disqualification decision for an abuse of discretion. Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 P.3d 1058.

¶ 10 Defendant also contends that the trial court erred by failing to apply the Shondel doctrine and sentence him for criminal solicitation only. We review a trial court's application of the Shondel doctrine for correctness. State v. Jensen, 2004 UT App 467, ¶ 8, 105 P.3d 951.

ANALYSIS

I. Defendant's Motion to Disqualify Garrett

¶ 11 Defendant asserts that the trial court abused its discretion by denying his motion to disqualify Garrett. The trial court ruled that it was too late in the proceedings to disqualify a prosecutor, that it was not “likely” that Garrett would be called as a necessary witness, and that there was no Confrontation Clause violation because Brother's testimony could be impeached by the recorded plea negotiations.

A. Garrett was not a necessary witness.

¶ 12 Defendant sought to discredit Brother's testimony by explaining to the jury that it “was given in hopes of gaining a favorable plea agreement, and it was given based upon promises made directly by Scott Garrett and his involvement in that interview.” To do so, Defendant argued that he might need to call Garrett as a witness “to talk about what his promises were, why he promised it, and why he proceeded to believe” Brother's testimony. The Utah Rules of Professional Conduct provide, in pertinent part, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless ... the testimony relates to an uncontested issue....” Utah R. Prof'l Conduct 3.7(a)(1). On appeal, Defendant contends that the trial court should have ruled that Garrett was a necessary witness and thus disqualified Garrett from prosecuting this case. He argues that the investigating officer's testimony was not a valid alternative to Garrett's, because the officer should not have participated in the plea negotiations.

¶ 13 We first note limitations on the testimony Defendant sought to elicit from Garrett. Before the trial court, Defendant argued that Garrett could testify not only to the content of the plea negotiations but also to why Garrett believed Brother's version of events and offered Brother a plea deal. On appeal, Defendant argues that he “should have been allowed to cross-examine Garrett regarding his statements and reasoning related to the plea negotiations. It was insufficient for [Brother] and the officer to testify as to Garrett's statements, and they could not testify as to his reasoning or subjective position.”

¶ 14 The attorney-work-product doctrine generally protects the work of prosecutors from the discovery process. See 23 Am.Jur.2d Depositions and Discovery § 278 (2014) (titled “Work product of prosecution” and noting that “the accused is not entitled to learn about the prosecutor's decision whether to prosecute” including the “opinion work product prepared by the prosecution in anticipation of any criminal prosecution, not merely the particular prosecution in which the request for disclosure is made”). Cf. Southern Utah Wilderness Alliance v. Automated Geographic Ref. Ctr., 2008 UT 88, ¶ 24, 200 P.3d 643 (“ ‘[C]ore or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances.’ ” (quoting In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir.2003) )). Defendant provides no contrary authority to support his assertion that he was entitled to present evidence of the prosecutor's internal thought processes that resulted in his offer of a plea deal to Brother.

¶ 15 We next consider Defendant's argument that the trial court should have disqualified Garrett so that he could be called to testify concerning...