State v. Morris , 400 P.3d 1183 ( 2017 )

2017 UT App 112THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DARRELL WAYNE MORRIS,
Appellant.
Opinion
No. 20150187-CA
Filed July 7, 2017
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 111401543
Neil Skousen, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Darrell Wayne Morris appeals the trial court’s
order in which it denied his motion to quash a subpoena and
found him in contempt of court for his refusal to testify. We
affirm.
BACKGROUND
¶2 This case arises out of an act of gang retaliation against an
informant (Victim). The retaliation, perpetrated by Danny Leroy
State v. Morris
Logue and Morris, resulted in Victim’s death. 1 While serving a
prison sentence for an unrelated crime, Morris was involved
with a prison gang that had instructed him, upon his release
from prison, to assault Victim as revenge for Victim’s having
“snitched” to the police. Morris recruited Logue to help him
complete the task. Logue agreed to help; then he shot and killed
Victim. In exchange, the gang paid Morris and Logue in
methamphetamine. The State charged them both with
conspiracy to commit aggravated murder, a first degree felony;
aggravated murder, a first degree felony; purchase, transfer,
possession or use of a firearm by a restricted person, a second
degree felony; obstruction of justice, a second degree felony;
seven counts of possession of a controlled substance with intent
to distribute, first degree felonies; manufacture of a vehicle
compartment for contraband, a third degree felony; and
possession of a controlled substance, a second degree felony.
¶3 Morris entered into plea negotiations with the State in
connection with his role in Victim’s death. The State first made
an offer to Morris that would have prevented it from calling him
as a witness in Logue’s trial if he pled guilty to certain crimes,
but Morris believed those crimes were too severe and declined
the deal. The State then made a second offer that reduced
Morris’s charges to manslaughter, a second degree felony;
obstruction of justice, a second degree felony; and possession of
a dangerous weapon by a restricted person, a third degree
felony. Although the offer did not obligate Morris to testify in
Logue’s trial, it did not excuse him from doing so, either. Morris
1. The events germane to this appeal arose during Logue’s trial
for his role in Victim’s death. The jury convicted Logue, without
Morris’s testimony, and Logue’s appeal is pending in this court.
See State v. Logue, 20151092-CA. In deciding Morris’s case, we
rely on the trial court’s findings in its contempt order and the
trial record as it relates to Morris.
20150187-CA 2 2017 UT App 112State v. Morris
agreed to the second deal, pled guilty to each of those counts,
and was sentenced accordingly.
¶4 Meanwhile, Logue’s case advanced to trial. During trial, a
subpoenaed witness (Witness) testified that he had been a
member of the gang and that Logue confessed to him while they
were both in prison. Witness conveyed the details of the
homicide as told to him by Logue. He also testified that he was
violating gang rules by doing so, risking being beaten or
otherwise injured. Nonetheless, Witness acknowledged that he
was still in prison and was testifying voluntarily and without
any promised benefit in exchange for his testimony, though he
hoped the Board of Pardons and Parole would favorably
consider his willingness to testify and grant him early release so
he could leave Utah.
¶5 Morris also received a subpoena to testify against Logue.
Upon receiving the subpoena, Morris wrote the prosecution,
objecting to the subpoena and expressing his belief that his plea
deal did not require him to testify. Morris later filed a motion to
quash, arguing that if the State could call Morris at all, it could
only be as a rebuttal witness after Logue had testified. Morris
also contended there were procedural problems with the
subpoena, including that his counsel did not receive notice of the
subpoena; that he believed he had agreed to a plea deal that
would not require his testimony; that he was protected from
testifying by the Fifth Amendment; and that he feared for his
safety if he testified, necessitating the State and court to provide
him protection. The State responded by granting Morris
immunity from the use of his testimony against him.
¶6 The trial court then heard oral argument regarding the
motion to quash, during which Morris’s counsel addressed only
the issues of notice and whether the plea deal required Morris’s
testimony. A brief discussion regarding Morris’s fear of
retaliation occurred, but it was actually initiated by the
20150187-CA 3 2017 UT App 112State v. Morris
prosecutor, not Morris’s counsel. The court found that there was
no requirement that Morris’s counsel receive notice of the
subpoena, that any procedural errors had been cured, that
Morris’s plea deal left open the possibility for the State to compel
Morris’s testimony, and that “Morris may have legitimate fears
of retaliation if he testifies, [but] that is not a basis for a subpoena
being quashed.”
¶7 The court resolved the Fifth Amendment issue by relying
on the Department of Justice’s “Dual or Successive Prosecution
Policy,” known as the Petite Policy. In the court’s view, the
policy “precludes the initiation or continuation of a federal
prosecution following a prior state or federal prosecution based
on substantially the same acts or transactions unless” there is
both a “substantial federal interest” that was “demonstrably
unvindicated” by the first prosecution and a federal offense for
which the prosecution has enough evidence to obtain a
conviction. The court concluded that this policy rendered
Morris’s fear of further prosecution “fanciful and merely
speculative.” Thus, it concluded that Morris had no Fifth
Amendment privilege and denied his motion to quash.
¶8 Upon denial of his motion to quash, Morris was called as
a witness and was warned, outside the presence of the jury, that
he had no Fifth Amendment privilege and that failure to testify
would prompt the trial court to adjudge him in contempt of
court. But once questioning before the jury began, Morris took
the stand, indicated to the court that he had discussed the
subpoena with his counsel, and refused to testify. Then, out of
the presence of the jury, the trial court found Morris in
contempt. The trial court ordered him to pay a $1,000 fine and
serve thirty days in the county jail, the contempt incarceration to
20150187-CA 4 2017 UT App 112State v. Morris
run consecutively with his existing prison sentence. Morris
appeals. 2
ISSUES
¶9 On appeal, Morris argues that the trial court erred in
denying his motion to quash the subpoena and holding him in
contempt of court when he refused to testify. Morris contends
(1) that the court failed to adequately consider the “substantial
risk of bodily harm or death” that he feared he would face “if he
testified in [Logue’s] trial” and failed to protect him from
retaliation and (2) that the court wrongly concluded that he “had
no Fifth Amendment privilege to assert as a reason to not testify
at [Logue’s] trial.”
ANALYSIS
I. Risk of Bodily Harm or Death
¶10 On appeal, Morris contends that the trial court “failed to
address the issue of Morris being at substantial risk of bodily
harm or death if he testified.” Specifically, he argues that the trial
court failed to consider that his need for safety outweighed the
State’s need for his testimony, suggesting that because Logue
was convicted without his testimony, his testimony was
redundant and unnecessary. He also claims that the trial court
was obligated to quash the subpoena in order to protect him
from the dangers of retaliation that he believed would arise if he
testified. As noted, although the prosecutor briefly touched upon
Morris’s concern about retaliation during argument on Morris’s
2. Sometime later, the State charged Morris with obstruction of
justice, a second degree felony, for his refusal to testify. That case
has been stayed in the district court pending this appeal.
20150187-CA 5 2017 UT App 112State v. Morris
motion to quash, Morris failed to adequately develop this
argument.
¶11 “We generally will not consider an issue unless it has
been preserved for appeal.” Patterson v. Patterson, 2011 UT 68,
¶ 12, 266 P.3d 828. “[T]o preserve an issue for appeal, the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” Brookside Mobile
Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[T]he
trial court had a legally sufficient opportunity to rule on the
issue” if “the issue was raised in a timely and specific manner
along with ‘supporting evidence or relevant legal authority.’”
State v. Howell, 2016 UT App 90, ¶ 13, 374 P.3d 1032 (quoting
Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366).
A. Court’s Obligation To Weigh Morris’s Risk Against the
State’s Need for His Testimony
¶12 Morris did not raise with the trial court the argument that
his fear of retaliation outweighed the prosecution’s need for his
testimony. His motion dedicated a mere two sentences—of a
nine-page motion—to his fear of retaliation given “the
dangerous circumstances of the prison environment.” Those two
sentences insisted that the court “is well aware” that other
witnesses were threatened during the course of the Logue
prosecution and that Morris himself would be “at risk of
suffering substantial bodily harm or death” if he testified. 3
3. Even if Morris’s argument on appeal were that his fear alone
justified quashing the subpoena, he did not provide the trial
court with specific evidence of threats against him. All that
Morris has articulated—below and on appeal—is a generalized
fear of retaliation by members of his former gang based on the
fact that the underlying case involved gang retaliation; he does
not point to any specific threats. And a generalized fear is not a
(continued…)
20150187-CA 6 2017 UT App 112State v. Morris
Morris did not provide details about the nature of the risk, nor
did he proffer evidence of actual threats he or other witnesses
had received. He also did not argue that his testimony was
unnecessary to convict Logue, which would have been a matter
of speculation prior to Logue’s trial and conviction. And Morris
failed to provide the trial court with authority supporting his
theory that the trial court was obligated to weigh his fear against
the need for his testimony. 4 His “generalized argument[s]” were
(…continued)
sufficient defense for violating the law, cf. State v. Harding, 635
P.2d 33, 35 (Utah 1981) (concluding that a defendant was not
justified in escaping from prison even though other inmates had
threatened his life), or for refusing to testify when compelled, see
Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961) (noting that
“fear of reprisal” does not relieve an immunized person of his or
her obligation to testify); United States v. Doe (In re Grand Jury
Proceeding), 13 F.3d 459, 461 (1st Cir. 1994) (per curiam) (“[I]t
has been widely held that a witness’ fear of reprisal against
himself or his family does not constitute just cause for refusing
to testify.”). Otherwise, the authority and decisions of the courts
of this state would be subject to the superseding authority of the
gangs in our prison system—a proposition that is untenable, as
Morris conceded during oral argument. Thus, fear alone does
not support quashing his subpoena.
4. In his reply brief, Morris claims he did not have to raise his
argument for weighing fear against the State’s need for his
testimony because “‘weighing’ is accomplished as a final
determination of the court, not something specifically
requested.” But he provides no citation to support this assertion.
And while “[t]he court may quash or modify the subpoena if
compliance would be unreasonable,” Utah R. Crim. P. 14(a)(2),
rule 14 does not compel the court to act in any particular
manner, nor has Morris shown that the court would have found
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20150187-CA 7 2017 UT App 112State v. Morris
inadequate to preserve his claim because he “failed to meet the
requirements of specificity and citation to authority.” See Hatch v.
Davis, 2004 UT App 378, ¶ 57, 102 P.3d 774. See also State v.
Rangel, 866 P.2d 607, 612 (Utah Ct. App. 1993) (determining that
“vague objections” “were not specific enough to properly raise
and preserve [the argument] for appeal”). And because he has
not argued any exception to our preservation doctrine, 5 we will
not consider this claim further.
(…continued)
that compelling him to testify would have been unreasonable if
it had weighed his fear against the need for his testimony.
5. We will consider an unpreserved claim only if the appellant
demonstrates that one of the exceptions to our preservation
doctrine has been satisfied. See State v. Holgate, 2000 UT 74, ¶ 11,
10 P.3d 346. In his reply brief and at oral argument, Morris
belatedly suggested that the trial court committed plain error
when it denied the motion to quash because, given that the trial
itself was about gang retaliation against an informant, the court
should have recognized the risk and acted to protect him by
granting the motion to quash. But the obviousness of any error
in this regard was likely diminished by Witness having testified
willingly and with no promise of protection; by Morris’s own
willingness to testify as a rebuttal witness without any
explanation as to why rebuttal testimony would be viewed more
generously by retaliation-minded gang members than case-in-
chief testimony; and by the fact that in his letter to the
prosecution, in his motion, and during oral argument, Morris
emphasized issues of procedural fairness and made little
mention of his fear. See id. ¶ 13 (requiring a party who claims
plain error to show that the error was both obvious and
harmful). Thus, even had he timely argued that the plain error
exception applied, it is unlikely that any error on the part of the
trial court would have met the plain error standard.
20150187-CA 8 2017 UT App 112State v. Morris
B. Trial Court’s Obligation To Protect Morris
¶13 Likewise, Morris did not preserve his argument that the
trial court’s duty to protect him obligated it to quash his
subpoena. While his motion to quash did claim that the court
and the State owed him protection, the motion included no
explanation of what protection he sought and outlined no legal
authority supporting his claim. Rather, he simply cited rule 45 of
the Utah Rules of Civil Procedure 6 as proof that the State and the
court “have an obligation . . . to ensure and protect Mr. Morris’
safety and well-being.”
¶14 Rule 45 requires that “[t]he party or attorney responsible
for issuing a subpoena . . . take reasonable steps to avoid
imposing an undue burden or expense on the person subject to
the subpoena” and that “[t]he court . . . enforce this duty and
impose upon the party or attorney in breach of this duty an
appropriate sanction, which may include . . . lost earnings and a
reasonable attorney fee.” Utah R. Civ. P. 45(e)(1). The rule speaks
in terms of limiting the burden on the subpoenaed witness, but it
does not contemplate relieving the witness of the obligation to
testify. See id. R. 45(e)(3). See also id. R. 37(a)(1), (7) (permitting a
party to “request that the judge enter an order regarding any
discovery issue,” including a rule 45 subpoena, and permitting
the court to “enter orders . . . to protect a party or person from
discovery being conducted in” a harmful manner by limiting the
6. Reliance on a rule of civil procedure in this criminal case is not
necessarily incorrect. See Utah R. Civ. P. 81(e) (“These rules of
procedure shall also govern in any aspect of criminal
proceedings where there is no other applicable statute or rule,
provided, that any rule so applied does not conflict with any
statutory or constitutional requirement.”). But see Utah R. Crim.
P. 14 (supplementing Utah R. Civ. P. 45 in the context of criminal
cases).
20150187-CA 9 2017 UT App 112State v. Morris
discovery method, but not by quashing a subpoena). Thus, while
his argument could have prompted the court to consider
whether the State was required to provide protection to Morris
in assessing whether mandating compliance with the subpoena
was reasonable, see Utah R. Crim. P. 14(a)(2), the argument did
not provide the court with the guidance necessary to conclude
that it was obligated to quash if the State failed to take steps to
protect the witness. Without a more specific argument regarding
the nature of the threat, the court’s duty to protect, or citations to
legal authority supporting such an argument, the trial court did
not have an obligation to do what Morris now insists it should
have done. Because Morris “failed to meet the requirements of
specificity and citation to authority,” see Hatch, 2004 UT App 378,
¶ 57, and because he failed to adequately preserve his argument,
we decline to consider it further.
II. Fifth Amendment Privilege
¶15 Morris also contends that his testimony was privileged
under the Fifth Amendment, claiming that the trial court erred
by requiring him to testify and holding him in contempt when
he refused to do so. Whether testimony is privileged under the
Fifth Amendment is a question of law, which we review for
correctness. See State v. Daniels, 2002 UT 2, ¶ 37, 40 P.3d 611(“[C]onstitutional interpretation presents questions of law.”);
Price v. Armour, 949 P.2d 1251, 1254 (Utah 1997) (“The existence
of a privilege is a question of law for the court, which we review
for correctness[.]”). “We . . . review a trial court’s findings of fact
under the deferential clearly erroneous standard.” Daniels, 2002
UT 2, ¶ 18.
¶16 The Fifth Amendment to the United States Constitution
protects individuals from twice “be[ing] subject for the same
offence to . . . jeopardy of life or limb” and from “be[ing]
compelled in any criminal case to be a witness against”
themselves. U.S. Const. amend. V. Double Jeopardy protection
20150187-CA 10 2017 UT App 112State v. Morris
does not, however, preclude prosecutions by separate
sovereigns. See United States v. Lanza, 260 U.S. 377, 382 (1922)
(“[A]n act denounced as a crime by both national and state
sovereignties is an offense against the peace and dignity of both
and may be punished by each.”). But see State v. Robertson, 2017
UT 27, ¶ 44 (noting that a prosecution in one jurisdiction
precludes prosecution in another if the prior prosecution results
“‘in an acquittal, conviction, or termination’” and is “‘for the
same offense or offenses’”) (quoting Utah Code Ann. § 76-1-404(LexisNexis 2012)). Thus, Morris argues that while the State may
not be able to further prosecute him for his participation in the
retaliation against Victim, he remains exposed to prosecution by
the federal government. He claims that any testimony he might
have given in Logue’s trial would have been self-incriminating
and is therefore privileged under the Fifth Amendment.
¶17 We disagree. Morris need not fear prosecution from the
federal government. Before he was called to testify in Logue’s
trial, the prosecution delivered to Morris’s counsel a grant of use
immunity, which prohibited any prosecutorial use of his
testimony or evidence gained from it. According to the Utah
Supreme Court, when “a State compels an individual to testify
through a grant of immunity, the federal government is
prohibited from then using that testimony or its fruits against
the witness in a federal prosecution.” State v. Bond, 2015 UT 88,
¶ 26, 361 P.3d 104.
¶18 In Bond, the Court considered whether the prosecution
had committed misconduct by calling a witness it knew would
claim a Fifth Amendment privilege against self-incrimination. Id.
¶ 22. There, the witness refused to testify against his co-
conspirator despite having reached a plea agreement in his own
case and, eventually, he received use immunity from the State in
exchange for his compelled testimony. Id. ¶¶ 18–19. The Court
concluded that the witness’s testimony was not privileged
because there was no possibility of self-incrimination, despite
20150187-CA 11 2017 UT App 112State v. Morris
the witness’s expressed concern about potential federal charges,
and thus that there was no prosecutorial misconduct. Id. ¶¶ 26–
27. Because the United States Supreme Court had previously
determined that the Fifth Amendment privilege extends to both
state and federal prosecutions and that prosecutors have the
ability to compel testimony in exchange for immunity, even
where the testimony would otherwise be privileged, the Utah
Supreme Court concluded that any such grant of immunity must
also extend to both sovereigns. Id. ¶ 26. See also Kastigar v. United
States, 406 U.S. 441, 453 (1972) (“Immunity from the use of
compelled testimony, as well as evidence derived directly and
indirectly therefrom, affords this protection. It prohibits the
prosecutorial authorities from using the compelled testimony in
any respect[.]”) (emphasis added). Under Bond, the State’s
granting Morris use immunity nullified his privilege because it
foreclosed any subsequent prosecutions, state or federal,
growing out of this criminal episode. 7 See Bond, 2015 UT 88,
¶¶ 26–27. Thus, he had no Fifth Amendment privilege to assert.
7. The trial court relied on the fact that federal prosecutorial
practice guides suggest that Morris had no reasonable concern
that he would be federally prosecuted. As the trial court noted,
the Department of Justice’s longstanding Petite Policy generally
prohibits “a federal prosecution . . . except when necessary to
advance compelling interests of federal law enforcement.”
Rinaldi v. United States, 434 U.S. 22, 28 (1977) (per curiam). See
generally Petite v. United States, 361 U.S. 529 (1960). “Although not
constitutionally mandated, this Executive policy serves to
protect interests which, but for the ‘dual sovereignty’ principle
inherent in our federal system, would be embraced by the
Double Jeopardy Clause.” Id. at 29. But as Morris points out, the
Petite Policy “is discretionary by the prosecuting arm of the
government . . . [and] is not law.” See United States v. Catino, 735
F.2d 718, 725 (2d Cir. 1984). It “does not confer any enforceable
rights upon criminal defendants.” United States v. Barrett, 496
(continued…)
20150187-CA 12 2017 UT App 112State v. Morris
CONCLUSION
¶19 We affirm the trial court’s refusal to quash the subpoena,
as well as its contempt judgment and sanction.
(…continued)
F.3d 1079, 1120 (10th Cir. 2007). Nevertheless, our departure
from the trial court’s exact reasoning is permissible, as we can
affirm “on any legal ground or theory apparent on the record.”
Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation and
internal quotation marks omitted). In essence, the trial court’s
decision was on even firmer legal ground than it realized.
20150187-CA 13 2017 UT App 112