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State v. Morris

Court of Appeals of Utah

July 7, 2017

State of Utah, Appellee,
v.
Darrell Wayne Morris, Appellant.

         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.

          OPINION

          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 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 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 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, ...


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