State v. Melancon

2014 UT App 260
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
MICHAEL MELANCON,
Defendant and Appellant.

Opinion
No. 20120508-CA
Filed November 14, 2014

Fifth District Court, Cedar City Department
The Honorable Pamela G. Heffernan
No. 081500742

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.

PEARCE, Judge:

¶1 Paul Melancon set fire to his brother’s house. After his
arrest, he met with a prosecutor and accepted a plea deal. As
part of that deal, Paul Melancon agreed to testify that he had
enkindled the house as part of a plan his brother, Michael
Melancon (Defendant), had devised to collect the proceeds of an
insurance policy. Before Defendant’s trial, Defendant sought to
disqualify the prosecutor, claiming he needed to call the
prosecutor as a witness to testify concerning the plea
negotiations. The trial court denied the disqualification motion.
Defendant was convicted of both aggravated arson as an
State v. Melancon

accomplice and criminal solicitation. After trial, the court
merged the criminal-solicitation conviction into the aggravated-
arson conviction. The trial court also denied Defendant’s Shondel
motion, by which he sought to be sentenced only for criminal
solicitation.

¶2 Defendant challenges his conviction, contending that the
trial court abused its discretion in denying his motion to
disqualify the prosecutor and also erred by sentencing him for
aggravated arson rather than criminal solicitation. Because the
prosecutor was not a necessary witness and because Defendant
was not entitled to confront the prosecutor, we find no abuse of
discretion in the trial court’s denial of the disqualification
motion. Because the elements of the two offenses differ, we
conclude that the Shondel doctrine did not apply and that the
trial court correctly sentenced Defendant for aggravated arson.
We affirm.

BACKGROUND

¶3 We recite the facts from the record in the light most
favorable to the jury’s verdict, supplementing them as necessary
to understand the issues raised on appeal. State v. Marchet, 2014
UT App 147, ¶ 2 n.3, 330 P.3d 138.

¶4 After his arrest, Paul Melancon (Brother) met with a
police investigator and a prosecutor. Brother agreed to plead
guilty to second-degree felony arson and to testify against
Defendant. At trial, Brother testified that Defendant had asked
for his help in setting fire to Defendant’s house so that
Defendant could collect the insurance proceeds. Brother testified
that they prepared the house for the fire by removing tools from
the garage, placing firearms in a fireproof room, backing up
computers, and stashing important documents in a fireproof
safe. Defendant instructed Brother on how to ignite the fire.

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State v. Melancon

Defendant then took his family to Las Vegas while Brother
stayed behind to carry out the plan.

¶5 Brother further testified that he followed Defendant’s
instructions by removing property from the house,
disconnecting the house’s circuit breakers, disabling smoke
detectors, and perforating the sheetrock in the basement. Brother
also spread accelerants throughout the house. Brother set fire to
a pillow and threw it into a downstairs media room to ignite the
blaze. The fire spread more quickly than he had anticipated, and
Brother suffered extensive and severe burns while escaping from
the house.

¶6 Defendant denied much of Brother’s story. Defendant
testified that they had not planned to burn down his house, that
he had not asked Brother to set his house on fire, and that he had
never instructed Brother on how to do so. Defendant sought to
discredit Brother’s testimony as the result of a plea deal that
permitted Brother to plead guilty to a lesser offense. Defendant
believed that the prosecutor, Scott Garrett, was a necessary
witness to testify concerning the plea negotiations leading to
Brother’s testimony. Defendant therefore moved to disqualify
Garrett from serving as prosecutor in the apparent hope of
calling him as a witness. The State noted that the plea
negotiations had been recorded and agreed to the admission of
the recording to settle any dispute about the content of the
negotiations. The State also noted that the police investigator
who had been present during the negotiations would testify at
the trial and could be cross-examined by Defendant. The trial
court denied Defendant’s disqualification motion after ruling
that an alternative source existed for the impeachment evidence
Defendant sought and that Defendant’s Confrontation Clause
rights would not be violated.

¶7 A jury convicted Defendant of criminal solicitation and of
aggravated arson under an accomplice-liability theory. Before
sentencing, Defendant filed a Shondel motion, seeking to be

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sentenced solely for the criminal-solicitation conviction. See State
v. Shondel, 453 P.2d 146, 148 (Utah 1969); State v. Wolf, 2014 UT
App 18, ¶ 37, 319 P.3d 757 (explaining that, under the Shondel
doctrine, when the elements of two crimes are wholly
duplicative, the defendant may be sentenced only to the lesser
punishment). In the alternative, Defendant asked the court to
merge the charges and enter his conviction only for first-degree-
felony aggravated arson. The State conceded that the convictions
should be merged but argued that Defendant was not entitled to
the lesser penalty under the Shondel doctrine, because the
elements of accomplice liability and criminal solicitation did not
overlap completely. The trial court ruled that Defendant was not
entitled to the lesser penalty, because the elements of the two
crimes differed. The trial court did, however, merge the second-
degree-felony criminal-solicitation conviction into the first-
degree-felony aggravated-arson conviction. The trial court then
sentenced Defendant to a five-years-to-life prison term on the
aggravated-arson conviction.

¶8 Defendant appeals the denial of his disqualification and
Shondel motions.

ISSUES AND STANDARDS OF REVIEW

¶9 Defendant first contends that the trial court abused its
discretion in denying the disqualification motion, because the
prosecutor was a necessary witness to the plea negotiations and
his testimony could have been used to impeach Brother. We
review a disqualification decision for an abuse of discretion.
Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299
P.3d 1058.

¶ 10 Defendant also contends that the trial court erred by
failing to apply the Shondel doctrine and sentence him for
criminal solicitation only. We review a trial court’s application of

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the Shondel doctrine for correctness. State v. Jensen, 2004 UT App
467, ¶ 8, 105 P.3d 951.

ANALYSIS

I. Defendant’s Motion to Disqualify Garrett

¶ 11 Defendant asserts that the trial court abused its discretion
by denying his motion to disqualify Garrett. The trial court ruled
that it was too late in the proceedings to disqualify a prosecutor,
that it was not ‚likely‛ that Garrett would be called as a
necessary witness, and that there was no Confrontation Clause
violation because Brother’s testimony could be impeached by the
recorded plea negotiations.

A. Garrett was not a necessary witness.

¶ 12 Defendant sought to discredit Brother’s testimony by
explaining to the jury that it ‚was given in hopes of gaining a
favorable plea agreement, and it was given based upon promises
made directly by Scott Garrett and his involvement in that
interview.‛ To do so, Defendant argued that he might need to
call Garrett as a witness ‚to talk about what his promises were,
why he promised it, and why he proceeded to believe‛ Brother’s
testimony. The Utah Rules of Professional Conduct provide, in
pertinent part, ‚A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness
unless . . . the testimony relates to an uncontested issue . . . .‛
Utah R. Prof’l Conduct 3.7(a)(1). On appeal, Defendant contends
that the trial court should have ruled that Garrett was a
necessary witness and thus disqualified Garrett from
prosecuting this case. He argues that the investigating officer’s
testimony was not a valid alternative to Garrett’s, because the
officer should not have participated in the plea negotiations.

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¶ 13 We first note limitations on the testimony Defendant
sought to elicit from Garrett. Before the trial court, Defendant
argued that Garrett could testify not only to the content of the
plea negotiations but also to why Garrett believed Brother’s
version of events and offered Brother a plea deal. On appeal,
Defendant argues that he ‚should have been allowed to cross-
examine Garrett regarding his statements and reasoning related
to the plea negotiations. It was insufficient for [Brother] and the
officer to testify as to Garrett’s statements, and they could not
testify as to his reasoning or subjective position.‛

¶ 14 The attorney-work-product doctrine generally protects
the work of prosecutors from the discovery process. See 23 Am.
Jur. 2d Depositions and Discovery § 278 (2014) (titled ‚Work
product of prosecution‛ and noting that ‚the accused is not
entitled to learn about the prosecutor’s decision whether to
prosecute‛ including the ‚opinion work product prepared by the
prosecution in anticipation of any criminal prosecution, not
merely the particular prosecution in which the request for
disclosure is made‛). Cf. Southern Utah Wilderness Alliance v.
Automated Geographic Ref. Ctr., 2008 UT 88, ¶ 24, 200 P.3d 643
(‚‘*C+ore or opinion work product receives greater protection
than ordinary work product and is discoverable only upon a
showing of rare and exceptional circumstances.’‛ (quoting In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir. 2003))).
Defendant provides no contrary authority to support his
assertion that he was entitled to present evidence of the
prosecutor’s internal thought processes that resulted in his offer
of a plea deal to Brother.

¶ 15 We next consider Defendant’s argument that the trial
court should have disqualified Garrett so that he could be called
to testify concerning the plea negotiations. Under Rule 3.7 of the
Utah Rules of Professional Conduct, Defendant needed to
demonstrate that Garrett was ‚likely to be a necessary witness.‛
Utah R. Prof’l Conduct 3.7(a). If the testimony sought to be
elicited from a lawyer is ‚‘duplicative and obtainable from other

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sources, *the lawyer’s+ testimony may not be necessary, and the
lawyer should not withdraw or should not be subject to
disqualification.’‛ Rupp v. Transcontinental Ins. Co., 2:07-CV-333-
TC-PMW, 2008 WL 2627516, at *3 (D. Utah July 2, 2008)
(alteration in original) (quoting Utah State Bar Ethics Advisory
Opinion No. 04-02, ¶ 5 (April 19, 2004)). Thus, a party seeking to
disqualify an opposing attorney because the party wishes to call
the attorney as a witness must persuade the court that the
testimony sought from the attorney is unobtainable from other
sources. Id.

¶ 16 Here, a police investigator attended the plea negotiations
and was available to testify. Defendant relies on statements this
court made in State v. Thurston, 781 P.2d 1296 (Utah Ct. App.
1989), to explain why he believes the testimony of the
investigating officer was not a valid alternative to the testimony
Defendant sought to elicit from Garrett. In Thurston, this court
discussed an Arizona Supreme Court case in which a defendant
and a prosecutor reached a plea agreement under which the
prosecutor promised not to make any sentencing
recommendation. See id. at 1299 (examining State v. Rogel, 568
P.2d 421, 423 (Ariz. 1977)). In the Arizona case, the investigating
police officer prepared a presentence report that recommended a
lengthy sentence. Id. The Arizona Supreme Court concluded that
because the police do not participate in plea negotiations and
have no input on the bargain reached, the plea deal between the
prosecutor and the defendant was not breached by the officer’s
recommendation. Id. The Thurston court agreed and held that an
‚investigating police department is not bound in making
sentencing recommendations by a plea bargain agreement
entered into by the prosecutor.‛ Id. at 1300. Defendant construes
this holding to mean that ‚plea negotiations should not occur
with police input or participation.‛ Consequently, in
Defendant’s view, even though the police investigator in this
case was present at the plea negotiations, ‚the officer could not
testify to such negotiations since they are not allowed to have

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input and plea agreements are the prerogative of the
prosecutorial branch.‛

¶ 17 Defendant’s characterization stretches Thurston too far.
Our rules of evidence generally allow an individual with
personal knowledge of a matter to testify as a percipient witness.
See Utah R. Evid. 602. Nothing in Thurston changes that, and
Defendant’s argument thus fails to demonstrate that the police
investigator was barred from testifying about the plea
negotiations.

¶ 18 Furthermore, there appear to be at least two other
alternative sources for the non-work-product testimony
Defendant sought to elicit from Garrett: Brother himself and the
recording of the negotiations. Defendant does not explain why
the testimony he sought was not obtainable from Brother or why
the recording of the negotiations was insufficient to impeach
Brother’s testimony.

¶ 19 Because alternatives to Garrett’s testimony were available,
we cannot agree with Defendant’s assertion that Garrett was a
necessary witness to a contested issue.1 It follows that the trial
court did not abuse its discretion by determining that Garrett
was not a necessary witness.

1. In addition to being necessary, the testimony sought from an
attorney facing disqualification must relate to a contested issue.
See Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1309
(10th Cir. 2000), overruled on other grounds by TW Telecom Holdings
Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011). A
lawyer should not be disqualified if there is no such contested
issue. Id. Here, Defendant has not identified a contested factual
issue.

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B. Defendant has not shown that he was entitled to confront
Garrett.

¶ 20 Defendant next contends that the ‚Sixth Amendment
requires that [Defendant] be afforded the right to confront
Garrett since his plea negotiations were ‘testimonial evidence.’‛
The Sixth Amendment’s Confrontation Clause provides that ‚the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.‛ U.S. Const. amend. VI. ‚The focus of the
Confrontation Clause is on witnesses who bear testimony
against the accused.‛ Salt Lake City v. Williams, 2005 UT App 493,
¶ 15, 128 P.3d 47.

¶ 21 Defendant had the opportunity to cross-examine each of
the witnesses who testified at trial. Nevertheless, Defendant
argues that statements Garrett made during the plea
negotiations were testimonial in nature and therefore raised the
type of Confrontation Clause concerns the United States
Supreme Court described in Crawford v. Washington, 541 U.S. 36,
59, 68 (2004) (holding that out-of-court testimonial statements
may only be admitted if the declarant is unavailable and there
has been a prior opportunity for cross-examination). Even
assuming without deciding that Defendant is correct in
characterizing a prosecutor’s statements during plea
negotiations as testimonial, Defendant does not identify any
statement Garrett made during plea negotiations that was
introduced at trial. Because Garrett did not testify and none of
his out-of-court statements were used at trial, Defendant’s
constitutional right to confront the witnesses against him was
neither implicated nor violated.

¶ 22 Defendant has not shown that the testimony he sought to
elicit from Garrett was unavailable from any alternative source.
Nor has Defendant shown that he was entitled to confront
Garrett. As a result, Defendant fails to demonstrate that Garrett
should have been disqualified from serving as the prosecutor.

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Consequently, the trial court properly denied Defendant’s
motion to disqualify, and we affirm.2

II. The Shondel Doctrine

¶ 23 Defendant contends that the trial court erred by
sentencing him for accomplice-liability aggravated arson. He
asserts that the court should have applied the Shondel doctrine
and sentenced him only to the lesser punishment attendant to a
conviction for criminal solicitation. The trial court merged
Defendant’s criminal-solicitation conviction into his aggravated-
arson conviction. But the court ruled that Defendant was not
entitled to the lesser penalty under the Shondel doctrine, because
it determined that the elements of the two offenses were not
wholly duplicative.

¶ 24 The Shondel doctrine limits the application of overlapping
criminal statutes. State v. Williams, 2007 UT 98, ¶ 12, 175 P.3d
1029. While there is ‚nothing inherently wrong with criminal
laws that overlap,‛ ‚the enforcement of criminal laws with
overlapping elements or with disparate penalties for identical
conduct is limited by fundamental constitutional guarantees,

2. Defendant also contends that because the State contributed to
a delay in the filing of the disqualification motion, it was
improper for the trial court to hold the delay against him.
However, the trial court stated that the untimeliness of the
disqualification motion was ‚not the primary reason that I’m
going to deny it.‛ Rather, the trial court based the denial
principally on the determination that Garrett was not a likely or
necessary witness. Because Defendant has not demonstrated an
abuse of discretion in that determination, which was a sufficient
independent ground for denying his motion to disqualify, we
need not further address the timeliness of his motion.

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most notably the guarantees against double jeopardy and of
equal protection of the laws.‛ Id.

¶ 25 In Shondel, the Utah Supreme Court held that ‚where
there is doubt or uncertainty as to which of two punishments is
applicable to an offense[,] an accused is entitled to the benefit of
the lesser.‛ State v. Shondel, 453 P.2d 146, 148 (Utah 1969).
Accordingly, ‚where two statutes define exactly the same penal
offense, a defendant can be sentenced only under the statute
requiring the lesser penalty.‛ State v. Jeffries, 2009 UT 57, ¶ 15,
217 P.3d 265 (emphasis added) (citation and internal quotation
marks omitted). Put another way, the Shondel doctrine applies
only when two statutes are ‚wholly duplicative as to the
elements of the crime.‛ See State v. Bryan, 709 P.2d 257, 263 (Utah
1985); see also State v. Kent, 945 P.2d 145, 147 (Utah Ct. App.
1997). The Shondel doctrine does not apply when one or both of
the crimes at issue require proof of some fact or element not
required to establish the other, because the statutes do not
criminalize identical conduct. State v. Coble, 2010 UT App 98, ¶ 8,
232 P.3d 538.

¶ 26 The elements of the two statutes at issue here are not
wholly duplicative. Under Utah’s accomplice-liability statute, a
defendant is liable for criminal conduct if he, ‚acting with the
mental state required for the commission of an
offense[,] . . . solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which
constitutes an offense.‛ Utah Code Ann. § 76-2-202 (LexisNexis
2003). A defendant ‚commits criminal solicitation if with intent
that a felony be committed, he solicits, requests, commands,
offers to hire, or importunes another person to engage in specific
conduct that under the circumstances as [the defendant] believes
them to be would be a felony or would cause the other person to
be a party to the commission of a felony.‛ Id. § 76-4-203(1).

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¶ 27 Accomplice liability, unlike criminal solicitation, is not an
independent crime. Because accomplice liability is not ‚a
separate offense from principal liability,‛ State v. Gonzales, 2002
UT App 256, ¶ 12, 56 P.3d 969, it is ‚impossible for the State to
charge an individual with accomplice liability standing alone,‛
State v. Briggs, 2008 UT 75, ¶ 16, 197 P.3d 628. Rather, the State
must prove that an underlying crime was actually attempted or
completed in order to secure a defendant’s conviction as an
accomplice to that crime. See Briggs, 2008 UT 75, ¶ 16.
Conversely, a criminal solicitation charge requires the State to
prove that the defendant solicited conduct that would be a crime
if performed but does not require that the solicited person
actually attempt or complete the underlying crime. Compare
Utah Code Ann. § 76-2-202, with Utah Code Ann. § 76-4-203(1).

¶ 28 A defendant cannot be an accomplice to a crime that is
neither attempted nor completed. But a defendant may be guilty
of criminally soliciting an unattempted crime. Consequently, the
Shondel doctrine is not implicated, because the elements of these
two statutes are not ‚wholly duplicative,‛ Bryan, 709 P.2d at 263,
and do not ‚criminalize identical conduct,‛ Coble, 2010 UT App
98, ¶ 8 (citation and internal quotation marks omitted). 3

¶ 29 We hold that the accomplice-liability and criminal-
solicitation statutes do not require proof of the same elements
and that the Shondel doctrine is therefore inapplicable. As a
result, Defendant is not entitled to the lesser penalty associated
with criminal solicitation. We conclude that the trial court did

3. Stated differently, the elements of criminal solicitation would
have to be wholly duplicative of the elements of accomplice-
liability aggravated arson for Shondel to apply in this case.

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not err by sentencing Defendant for aggravated arson under an
accomplice-liability theory.4

CONCLUSION

¶ 30 Defendant has failed to show that the trial court abused
its discretion by denying his disqualification motion. We
conclude that the Shondel doctrine does not apply, because the
elements of criminal solicitation and accomplice liability are not
wholly duplicative.

¶ 31 Affirmed.

____________

4. We express no opinion on whether the trial court correctly
determined that the criminal-solicitation conviction merged into
the aggravated-arson conviction.

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