District Court, Provo Department The Honorable Derek P.
Pullan No. 111401543
Skousen, Attorney for Appellant.
D. Reyes and Christopher D. Ballard, Attorneys for Appellee.
GREGORY K. ORME authored this Opinion, in which JUDGES J.
FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
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
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. 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.
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.
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.
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.
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."
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.
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, ...