Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
S PENCER I SAIAH C ATER , Defendant and Appellant.
Oрinion No. 20120201-CA Filed September 5, 2014 Third District Court, Salt Lake Department The Honorable William W. Barrett No. 091901251 David M. Corbett and Craig L. Pankratz, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in which J UDGE J. F REDERIC V OROS J R . and S ENIOR J UDGE R USSELL W. B ENCH concurred.
CHRISTIANSEN, Judge: 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 1. The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).
prosecuting his case. Because Cater has not demonstrated that the trial court’s disqualification decision was erroneous, we affirm.
BACKGROUND
¶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. 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.
ISSUES AND STANDARDS OF REVIEW 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. Id. Where Cater challenges subsidiary factual findings [2]
or legal conclusions, we review the trial court’s factual findings for clear error and its legal conclusions for correctness. Id.
ANALYSIS
¶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 lawyеr.
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
2. In
State v. Balfour
, we observed that “due to the special interest
in administering the law governing attorney ethical rules, a trial
court’s discretion in situations implicating those rules is limited.”
2008 UT App 410, ¶ 11, 198 P.3d 417 (citation and internal
quotation marks omitted). We stated that, as a result, “attorney
disqualifications are reviewed as mixed questions of law and fact.”
Id.
However, disсretionary rulings and mixed-question
determinations are distinct concepts subject to different types of
appellate review.
See Murray v. Labor Comm’n
,
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). Cater challenges the trial court’s determination that the
SLCDA rebutted the presumption of shared confidenсes 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.
I. The Trial Court’s Factual Findings Are Not Clearly Erroneous.
¶10 Cater argues that two of the trial court’s findings regarding
the SLCDA’s screening procedures are clearly erroneous. To
establish clear error, thе 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
,
A. The Trial Court’s Finding that Morgan Was Aware of the
Unwritten Policy Is Not Clearly Erroneous.
¶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 tеrms 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) (explaining that the Utah Rules of
Civil Procedure govern in criminal cases where no other rule is
applicable). 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
,
B. The Trial Court’s Finding that Morgan Was Screened from
Cater’s Prosecution Is Not Clearly Erroneous. ¶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 placе at the SLCDA “was not consistently applied” to screen Morgan from Postma, Evershed, and Nelson. We conclude, however, that the evidence in the record supports the trial court’s finding. Postma testified that he discussed screening Morgan with Nelson and another SLCDA attorney shortly after Morgan returned to the office. In those discussions, Postma was directed not to discuss the case with Morgan, share files with him, or allow him access to materials. Postma was also instructed that Morgan “was to have absolutely no contact whatsоever with any part of the prosecution.” Nelson was a party to these discussions with Postma. Nelson testified that he did not receive formal, written screening procedures but employed his own procedures to screen himself from Morgan. Evershed testified that he received instruction on the screening policy for former defense attorneys at the time he was assigned to the case. ¶14 Cater’s attack on this finding appears targeted in part at the sufficiency of the measures undertaken by the SLCDA to screen Morgan from Cater’s prosecution. We address the sufficiency of the measures undertaken by the SLCDA as part of Cater’s challenge to the trial court’s ultimate disqualification decision. However, with respect to whether the SLCDA took steps to screen Morgan from Postma, Evershed, and Nelson, we conclude that the evidence supports the trial court’s factual finding.
II. The Trial Court Did Not Abuse Its Discretion in Determining
that Disqualification Was Unnecessary.
¶15 Cater argues that the trial court’s disqualification decision
should be reversed because “the State failed to рrove that it
employed adequate screening measures after its employment of
Morgan and Hall.” To rebut the presumption of shared
confidences, the State was required to show that “effective
screening procedures” were in place to isolate Morgan and Hall
from Cater’s prosecution.
State v. McClellan
,
a trial court to protect a criminal defendant from the due process
concern at issue—the disclosure of confidences revealed to his
attorney during the attorney–client relationship.”
Lux v.
Commonwealth
, 484 S.E.2d 145, 151 (Va. Ct. App. 1997). We will
reverse the trial court’s disqualification determination only if it is
“beyond the limits of reasonability,”
State v. Olsen
,
McClellan
, we look to other jurisdictions that have adopted similar
rules to govern the disqualification of a prosecutor’s office under
comparable circumstances.
See supra
n.3. In
State v. Kinkennon
, the
Nebraska Supreme Court considered whether a county attorney’s
3. In the time since our supreme court adopted the rebuttable
presumption of shared confidenсes in
State v. McClellan
, 2009 UT
50,
office should be disqualified from prosecuting a defendant after the
office hired an associate from the firm representing the defendant.
Appeals of West Virginia considered whether a district court had
abused its discretion in denying appointment of a special
prosecutor where the county attorney’s office had hired the
defendant’s former counsel.
¶18 Here, the trial court received testimony from each of the prosecutors assigned to the case—Nelson, Postma, and Evershed. Each prosecutor testified regarding the measures that were taken to screen Morgan and Hall from Cater’s prosecution. Postma testified that his supervisors instructed him not to have any discussions or share any materials with Morgan or Hall after each joined the office. Postma testified that Nelson was involved in instructing him to screen Morgan from the case. Nelson testified that his superiors had instructed him both orally and in writing not to have anything to do with Hall with respect to the case. He also testified that SLCDA prosecutors’ case files are generally password protected and cannоt be accessed without permission. Evershed testified that he was instructed on the screening policy for former defense attorneys at the time he was appointed as a prosecutor on the case.
¶19 The trial court also heard testimony from assistant district attorney Robert Stott. Stott testified that an unwritten screening policy was in place at the SLCDA during the time Cater’s prosecution was ongoing, which he had memorialized in written form in February 2011. The written policy instructs disqualified attorneys that they may not participate in, access files related to, maintain at the office materials related to, or discuss with any person in the office the prosecution of their former clients. The written policy also instructs prosecutors not to discuss screened cases with or around the disqualified attorney and not to allow the disqualified attorney access to any files or other materials related to those cases.
¶20 Both Morgan and Hall, the disqualified attorneys, also
testified at the hearing. Hall testified that upon joining the office, he
understood that he had an ethical responsibility not to discuss any
aspect of the cases he had worked on, including Cater’s case, with
other members of the SLCDA. Morgan also testified that he
understood his ethical obligation not to divulge any information
related to Cater’s case. Although Morgan testified that he believed
the SLCDA had no screening procedures in place at the time of his
rehire, he testified that he screened himself from the prosecution.
However, we again note that Cater has not successfully сhallenged
the trial court’s finding that Morgan was aware of the SLCDA’s
screening policy at the time of his rehire.
Supra
¶¶ 11–12.
¶21 Considering the record evidence and the trial court’s
findings on the disputed facts, we conclude that the SLCDA
demonstrated that sufficient screening procedures were in place to
prevent the disclosure of any of Cater’s privileged information to
the prosecutors involved in his case. The disqualified attorneys
“acknowledge[d] the obligation not to communicate with any of
the other lawyers in the office with respect to the matter,” and the
prosecutors assigned to Cater’s case were “informed that the
screening [was] in place and that they [were] not to discuss the
matter with the disqualified lawyer.”
See State v. Kinkennon
, 747
N.W.2d 437, 445 (Neb. 2008). The trial court’s findings that no
confidences were shared by either Morgan or Hall persuades us
that the screening procedures implemented by the SLCDA were
effective in safeguarding Cater’s confidences. Accordingly, we are
not convinced that the trial court erred in determining that the
SLCDA had rebutted the presumption of shared confidences.
¶22 Cater argues that despite the actual effectiveness of the
screening procedures employed by SLCDA, we should conclude
that an unwritten policy is always inadequate to rebut the
presumption of shared confidences established by
McClellan
. Cater
asserts that the
McClellan
court’s citation to the decision of the
Michigan Court of Appeals in
People v. Davenport
,
whether the prosecutor’s office implemented effective, written screening procedures that take into account the structural organization of the law firm or office, the likelihood of contact between an attorney with a conflict of interest and the personnel involved in the ongoing representation, and the existence of rules that prevent the attorney with the conflict of interest from accessing files or information pertaining to a particular case.
Id. (citation and internal quotation marks omitted). Cater therefore invites this сourt to “hold that, at a minimum, the screening measures must include a written policy, distributed to all attorneys and staff of the prosecuting agency, that (1) identifies the existence of the conflict to all attorneys and staff; (2) provides a specific list of rules to be followed by employees aimed at prohibiting all communication with the disqualified attorney about the case; (3) prohibits the conflicted attorney’s access to office files and information about the case; and (4) provides for the easy identificatiоn of affected prosecution files.” ¶23 While we agree that a written policy setting forth comprehensive screening measures may be advisable, we are not persuaded that such measures are necessary to effectively screen former defense attorneys in all cases. Indeed, after Davenport was remanded for an evidentiary hearing to explore the county attorney office’s screening procedures, the Michigan Court of Appeals held that the office’s unwritten screening policy was suffiсient:
Though the office maintained no written procedures about how to handle a potential conflict or the Davenport file in particular, it is abundantly clear that both attorneys and all staff members were informed and understood that [the disqualified attorney] was to have no contact with the Davenport file and that he would not participate in any discussions, interviews, or meetings about the case.
People v. Davenport
,
CONCLUSION
¶25 Cater has not demonstrated that the trial court’s factual findings lacked evidentiary support. The trial court did not abuse its discretion in determining that the SLCDA rebutted the presumption of shared confidences and that disqualification was unnecessary. We therefore affirm Cater’s convictions.