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State v. Hummel

Supreme Court of Utah

April 4, 2017

State of Utah, Appellee,
John E. Hummel, Appellant.

         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.


          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 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 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 victims[3] 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 arguments. First, Hummel contends that the jury should have been required to unanimously agree on theft by deception or extortion for the counts where both theories were presented. Second, he asserts that the evidence was insufficient to support a guilty verdict on all counts. Third, Hummel claims that the prosecution ran afoul of article 1, section 12 of the Utah Constitution by changing the theories of theft presented to the jury, in a manner preventing Hummel from knowing what crimes he was accused of and from mounting an appropriate defense. Fourth, he claims that prosecutorial misconduct tainted the verdict and violated his right to due process. We reject each of these arguments and affirm.


         ¶19 In Utah there is a single crime of "theft." Utah Code § 76-6-403. In enacting this theft provision the legislature combined a variety of "separate offenses, " such as embezzlement, false pretense, extortion, and blackmail, into what now constitutes ―a single offense." Id.[5] The elements of that crime are simple and straightforward. A person commits theft if he "obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." Id. § 76-4-404 (stating these elements in a section titled "Theft-Elements"). Our law lists common means by which those elements may be fulfilled.[6] It does so by setting forth ways that one may exercise unauthorized control over the property of another, as in different means by which one may engage in extortion or deception. See id. §§ 76-6-405 to -406. But these provisions set forth only non-exhaustive examples. They describe illustrative ways that the single crime of theft may be committed.[7] So the once separate offenses of theft by extortion and theft by deception are now just manners by which one commits the single offense of theft.

         ¶20 Sections 405 and 406 hammer this point home. In section 405 we learn that "a person commits theft" (another indication this is the single crime) "if the person obtains or exercises control over property of another person: (i) by deception; and (ii) with a purpose to deprive the other person of property." Id. § 76-6-405 (emphasis added). And this section then goes on to identify what does and doesn't count as deception. Section 406 is similar. It says that "[a] person is guilty of theft if he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof, " and also proceeds to identify prohibited means of extortion. Id. § 76-6-406 (emphasis added).

         ¶21 Theft by deception and theft by extortion are not and cannot logically be separate offenses. If they were, Hummel could be charged in separate counts and be convicted on both. That cannot be. When Hummel took money or property from a client, he may have both deceived and extorted the client. But he only committed one act of theft (just like the murderer who both poisons and suffocates the same victim has committed only one murder). This is why Hummel's counts are defined by victim, and not theory or manner of committing theft.

         ¶22 Nothing in the record on appeal suggests that the jury was less than unanimous in its decision to convict Hummel of theft. Nor is there any basis for finding a lack of unanimity as to the elements of theft in section 76-6-403.

         ¶23 Yet the jury was not given a special verdict form. It was asked to return only a general verdict. So we cannot tell from the record which of the prosecution's various theories the jury may have relied on, or whether it was unanimous as to which theory it accepted. And this uncertainty is the focus of Hummel's unanimity argument on appeal. He asserts that unanimity was required as to which of the prosecution's various theories of theft was accepted by the jury. And he also claims that evidence of at least some of those theories was lacking-a point he advances as a distinct (if related) basis for reversal.

         ¶24 We affirm. First, we conclude that our precedent does not support the requirement of unanimity or sufficiency of the evidence for alternative, exemplary means of committing a crime. With that conclusion in mind, we take a fresh look at our law of unanimity in light of the text and historical understanding of the Unanimous Verdict Clause. Because there is no textual, historical, or logical basis for a requirement of unanimity or sufficiency of the evidence as to alternative means of committing a crime, we conclude that the Utah Constitution imposes no such requirement. And we accordingly hold that there is no basis for reversal on the record before us on this appeal.

         A. Utah Supreme Court Precedent on Unanimity

         ¶25 The Unanimous Verdict Clause requires that "[i]n criminal cases the verdict shall be unanimous." Utah Const. art. I, § 10. At its most basic level, this provision requires the full concurrence of all empaneled jurors on their judgment as to the criminal charges submitted for their consideration. That is the jury's function-to render a verdict on the defendant's guilt on the charges presented for their deliberation. And a non-unanimous verdict has long been viewed as an invalid one. If there are holdouts on the appropriate verdict, the result is a mistrial. See, e.g., State v. Moore, 126 P. 322, 323 (Utah 1912) (noting that a trial "resulted in a mistrial for the reason that the jury was unable to agree upon a verdict").

         ¶26 The implications of this constitutional requirement do not stop there. The article I, section 10 requirement of unanimity "is not met if a jury unanimously finds only that a defendant is guilty of a crime.'" State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d 951 (plurality opinion) (emphasis added). The Unanimous Verdict Clause requires unanimity as to each count of each distinct crime charged by the prosecution and submitted to the jury for decision. So a generic "guilty" verdict that does not differentiate among various charges would fall short. See also infra ¶ 54 (citing an 1859 Maryland case in which the court refused to accept a verdict of "guilty" of murder in a circumstance in which the jury was required to also determine the precise degree of murder involved).

         ¶27 For similar reasons, a verdict would not be "valid if some jurors found a defendant guilty of robbery while others found him guilty of theft, even though all jurors agree that he was guilty of some crime." Saunders, 1999 UT 59, ¶ 60. There is no such thing as an omnibus "crime" in Utah. Our crimes are set out distinctly in our law, with different elements and distinct punishments for each offense. So a verdict of "guilty of some crime" would not tell us whether the jury was unanimous in finding guilt on any individual crime. And the verdict would fall short on that basis.

         ¶28 The same goes for the notion that a verdict would not "be valid if some jurors found a defendant guilty of robbery committed on December 25, 1990, in Salt Lake City, but other jurors found him guilty of a robbery committed January 15, 1991, in Denver, Colorado, even though all jurors found him guilty of the elements of the crime of robbery." Id. These are distinct counts or separate instances of the crime of robbery, which would have to be charged as such.[8] So we have also concluded that "[j]ury unanimity means unanimity as to a specific crime." Id.

         ¶29 We have also said that "'a jury must be unanimous on all elements of a criminal charge for [a] conviction to stand.'" State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991). If there is a holdout on the jury on one of the essential elements of one of the crimes charged, there is necessarily a lack of unanimity on the question of the defendant's guilt. So if the verdict indicates a lack of unanimity on one of the essential elements of a charged crime, there will also be a basis for a reversal under the Unanimous Verdict Clause.

         ¶30 All of the above is well-established in our law. But Hummel asks us to take our statements in Saunders and Johnson a substantial step further. He asks us to view our cases as establishing a requirement that each "theory" presented to the jury be supported by sufficient evidence. The scope of the term theory is not entirely clear from the briefing. But it appears to encompass all methods, modes, or manners by which a defendant is accused of committing a crime.[9] We find no basis for this requirement in our precedent. We have never required unanimity-or sufficient evidence-on alternate manners or means of fulfilling an element of a crime. Instead, Johnson and the cases it relied on required sufficient evidence on alternate elements of a crime as defined in our law. Our cases have used loose, broad language-referring to unanimity as to "theories" or "methods, modes, or manners" of committing a crime.[10] But we have never required unanimity or sufficient evidence on anything other than an element- or alternative element- of a crime.

         ¶31 Johnson involved alternate elements of the crime of attempted aggravated murder. By statute, attempted aggravated murder requires proof that the defendant attempted to cause the death of another intentionally or knowingly and that one of several aggravating circumstances was established. Utah Code § 76-5-202. In Johnson the prosecution alleged two aggravating circumstances -"(i) attempting to kill by administration of oxalic acid, which was either (a) a 'poison' or 'a lethal substance' or (b) 'a substance administered in lethal amount, dosage or quantity'; or (ii) attempting to kill 'for the purpose of pecuniary or other personal gain.'" Johnson, 821 P.2d at 1158 (quoting Utah Code § 76-5-202(1)(n) & (f) (1990)). Because "the State failed to prove either that oxalic acid is a poison or a lethal substance or that Johnson administered or attempted to administer a quantity of the acid that would have been lethal, " the Johnson court found a unanimity problem with the verdict. Id. It reversed the aggravated attempted murder conviction without considering the sufficiency of the evidence on the other statutory aggravator - attempting to kill for pecuniary or other personal gain. And it based that decision on the Unanimous Verdict Clause.

         ¶32 The problem in Johnson was rooted in the jury's entry of only a general verdict. "No special verdicts were given that would indicate upon which aggravating circumstance the jury based the conviction." Id. at 1159. And because the court "has stated that a jury must be unanimous on all elements of a criminal charge for the conviction to stand, " the Johnson court held that reversal was required "if the State's case was premised on more than one factual or legal theory of the elements of the crime and any one of those theories is flawed or lacks the requisite evidentiary foundation." Id. (emphasis added). But the Johnson court's subsequent analysis of sufficient evidence was only on the alternative elements of the crime, not anything below that level, such as theories or modes. So its broader language must be read in light of what it said elsewhere, and what it actually did- merely require sufficient evidence on both alternative elements, nothing more.

         ¶33 The Johnson opinion cannot sustain the broad reading Hummel gives it. Johnson in no way requires sufficient evidence on every method or means of fulfilling each individual element of each crime in question. It imposes that requirement only for "all elements of a criminal charge." Id.

         ¶34 Johnson's predecessors are along the same lines. The plurality in State v. Tillman required unanimity on-and sufficient evidence to support a verdict on-the alternative elements of the crime of first-degree murder. 750 P.2d 546, 562-68 (Utah 1987) (plurality of the court requiring unanimity as to which of two aggravating circumstances was established-specifically, whether defendant intentionally caused the victim's death while engaged in the commission of (a) burglary or attempted burglary, or (b) arson or attempted arson). Our other cases are similar.[11]

         ¶35 Thus, the sufficiency of evidence requirement pushed by Hummel is by no means clearly established. Our past cases have invoked this principle only in the context of alternative elements of a crime. We have never extended this principle to proof of alternative means of fulfilling an element of a crime.

         B. The Unanimous Verdict Clause

         ¶36 Our precedents in this field are entitled to a measure of respect. "Stare decisis 'is a cornerstone of Anglo-American jurisprudence.'" Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). It "is crucial to the predictability of the law and the fairness of adjudication." Id. (citation omitted).

         ¶37 Yet the presumption of preserving our past holdings is a rebuttable one. The "presumption against overruling precedent is not equally strong in all cases." Id. at ¶ 22. We have identified circumstances in which we may properly repudiate the standards in our prior decisions, as where the standard we have adopted has become unworkable over time, in a manner that sustains no significant interest of reliance on our decisions. See id. (observing that "how firmly precedent has become established . . . encompasses a variety of considerations, including . . . how well it has worked in practice, . . . and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned").

         ¶38 In all events, the principle of stare decisis is focused on holdings of our prior decisions. Our law has long recognized a significant distinction between holding and dicta. See Spring Canyon Coal Co. v. Indus. Comm'n of Utah, 277 P. 206, 210 (Utah 1929) ("Dictum is not embraced within the rule of stare decisis."). Thus, we retain even greater flexibility on points of law reflected only in the broad dicta of our prior decisions. See Eldridge, 2015 UT 21, ¶ 32 (suggesting a relaxed standard for repudiation of dicta, noting that "we would follow even . . . dicta if we had no good reason to do otherwise").

         ¶39 That is where we stand on the question in this case. We have never squarely decided whether the Unanimous Verdict Clause requires unanimity on different means of fulfilling the elements of a crime, much less whether any such requirement should also sustain a requirement of sufficient evidence on each such means presented to the jury. This is an important issue. Absent a square holding resolving it, we return to first principles-to the text and original meaning of the constitution. And we affirm.

         ¶40 First, there is nothing in the language or history of the Unanimous Verdict Clause to support the requirement of unanimity on, or sufficient evidence of, alternative means of fulfilling the elements of a crime. The constitution requires unanimity only as to the "verdict, " and that guarantee has long been understood to be limited to the matters submitted to the jury for decision (as to the defendant's guilt). So we interpret the Utah Constitution in line with this understanding, and affirm on the ground that there is no relevant unanimity problem on the record before us on this appeal.

         ¶41 Second, there is no logical connection between the constitutional guarantee of a unanimous verdict and the judicially imposed requirement of sufficient evidence to support alternative theories advanced by the prosecution. If anything the existence of sufficient evidence to sustain alternative theories would heighten the risk of a lack of unanimity. See infra ¶¶ 77-79. And if we were serious about requiring unanimity as to alternative means of fulfilling an element of a crime, we would not examine the sufficiency of the evidence; we would require a special verdict form. Our longstanding refusal to do so underscores the fact that the sufficiency of the evidence requirement is not a component of the constitutional guarantee of unanimity. This suggests that it would be improper to extend Johnson for this reason as well. We may have reason to respect the Johnson decision as a matter of stare decisis; but there is no basis for extending it further.

         ¶42 Finally, there is tension between the principle advanced by Hummel and longstanding caselaw on harmless error. The operative principle in these parallel cases goes to the appellant's burden of persuasion on appeal. That burden has long been understood to encompass an obligation to prove not only error but prejudice. The converse principle is known as the doctrine of harmless error. It holds that we reverse a judgment on appeal only if an error is shown to have likely made a difference in the lower court. And it yields the benefit of the doubt on that question to the appellee-or in other words to the outcome in the lower court. Hummel's reading of the Unanimous Verdict Clause is in substantial tension with this doctrine. Allowing an appellant to overturn a verdict based only on a showing of insufficient evidence to support an alternative means of establishing an element of a crime is problematic. It effectively suspends the requirement that an appellant establish not just error, but prejudicial error. And it does so by yielding the benefit of the doubt to the appellant-by holding that because we can't be sure there was unanimity where there is a lack of evidence on alternative means of proving an element of a crime, we should reverse and remand for a new trial.

         1. Text and Original Meaning

         ¶43 In adopting the Unanimous Verdict Clause, the framers of our Utah Constitution indicated their intent to memorialize a "well[-]understood, definite, common-law" principle. 1 Utah Convention Debates 494 (1895). We therefore interpret this provision in a matter in line with this historical understanding. And we reject the requirement of unanimity as to alternative means of fulfilling an element of a crime. We affirm here because the jury was unanimous on its verdict- on all matters submitted to it for decision.

         a. Historical principles of unanimity

         ¶44 The requirement of a unanimous jury has common law origins. At common law, "the truth of every accusation" - of any criminal charge in an "indictment" or "information" - had to "be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbors." 4 William Blackstone, Commentaries on the Laws of England 343 (1769). This was an essential feature of the common law right to a jury trial at the time of the founding of our state Constitution. "A trial by jury [wa]s generally understood to mean . . . a trial by a jury of twelve men, impartially selected, who must unanimously concur in the guilt of the accused before a legal conviction c[ould] be had." 2 Joseph Story, Commentaries on the Constitution of the United States 559 n.2 (5th ed. 1891) (emphasis added).

         ¶45 Yet the requirement of unanimity went no further than that. Unanimity was required "on the point or issue submitted to the[] jury." Archibald Brown, A New Law Dictionary and Institute of the Whole Law 377 (1874). And the point or issue submitted to the jury was purely a matter of guilt. Jurors were asked only to render a decision on the criminal charges presented-to enter a verdict of "guilty" or "not guilty" on each charge submitted for their deliberation. So "jurors [we]re not obliged to agree in the reason for finding a verdict as it is found; and if a reason be given by one or more of them, upon a question being asked by the judge, for finding it as it is ...

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