State v. Cater

2014 UT App 207
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH ,
Plaintiff and Appellee,
v.
SPENCER ISAIAH CATER,
Defendant and Appellant.

Opinion
No. 20120201-CA
Filed September 5, 2014

Third District Court, Salt Lake Department
The Honorable William W. Barrett
No. 091901251

David M. Corbett and Craig L. Pankratz, Attorneys
for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion,
in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE
RUSSELL W. BENCH concurred.1

CHRISTIANSEN, Judge:

¶1 Spencer Isaiah Cater appeals his aggravated kidnapping and
aggravated robbery convictions, both first-degree felonies. He
argues that the trial court erred by declining to disqualify the entire
Salt Lake County District Attorney’s office (the SLCDA) from

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
State v. Cater

prosecuting his case. Because Cater has not demonstrated that the
trial court’s disqualification decision was erroneous, we affirm.

BACKGROUND

¶2 Cater’s convictions arise from a crime spree that involved
five robberies, two kidnappings, and a murder. The SLCDA
charged Cater in February 2009 for his role in the crimes, and the
case was assigned to Assistant District Attorneys Stephen L. Nelson
and Michael E. Postma. An attorney from the Salt Lake Legal
Defender Association initially entered an appearance as Cater’s
defense counsel, but withdrew due to a conflict of interest. Shortly
thereafter, B. Kent Morgan, Jeffrey W. Hall, and another attorney
entered their appearances as counsel for Cater. Morgan and Hall
had both previously worked as prosecutors for the SLCDA.

¶3 In April 2009, Morgan resumed his employment with the
SLCDA and terminated his representation of Cater. In December
2009, the State moved the trial court to conduct a hearing to
determine whether Morgan’s employment with the SLCDA
presented a conflict of interest that would require disqualification
of the entire SLCDA as the prosecuting agency. At the March 2010
hearing, the SLCDA notified the court that the Utah Attorney
General’s office would replace the SLCDA as the entity prosecuting
Cater. As a result, the parties agreed that the hearing was no longer
necessary. In January 2011, Hall also returned to the SLCDA, and
he terminated his representation of Cater at that time.

¶4 On February 14, 2011, the Attorney General’s office notified
Cater that it had appointed Nelson, Postma, and another SLCDA
attorney, Nathan J. Evershed, as special assistant attorneys general
to prosecute his case. Cater filed a motion objecting to their
appointment, arguing that Morgan’s and Hall’s employment by the
SLCDA after having represented Cater required the
disqualification of every attorney in that office from his

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prosecution. The SLCDA opposed Cater’s motion, and the trial
court scheduled an evidentiary hearing.

¶5 After the hearing, the trial court concluded that the SLCDA
had implemented sufficient measures to screen Cater’s former
defense counsel from his prosecution and had therefore rebutted
a presumption that Cater’s former counsel had shared his
confidences with SLCDA attorneys. In making this determination,
the trial court found that an unwritten screening policy was in
effect at the time Morgan and Hall rejoined the SLCDA. With
respect to Morgan, the trial court found that Morgan was aware of
the unwritten policy at the time he rejoined the SLCDA, that he
was screened from Cater’s prosecution during his time at the
SLCDA, and that he had not disclosed any confidences obtained
during his representation of Cater. With respect to Hall, the trial
court found that Hall acknowledged his ethical responsibilities at
the time he rejoined the SLCDA and knew that he needed to be
screened from Cater’s prosecution, that he had been screened from
the prosecution from the time he rejoined the SLCDA, and that he
had not disclosed any of Cater’s confidences.

¶6 Having found that the SLCDA had taken necessary and
effective steps to prevent Morgan and Hall from sharing any of
Cater’s confidences with the SLCDA, and that Morgan and Hall
had not, in fact, shared any of Cater’s confidences, the trial court
denied Cater’s objection to the appointment of SLCDA prosecutors
to his case. A jury convicted Cater at trial of aggravated
kidnapping and aggravated robbery. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Cater challenges the trial court’s denial of his motion to
disqualify the SLCDA. “Trial courts are generally allowed
considerable discretion in granting or denying motions to
disqualify counsel, and such decisions will only be overturned
when that discretion is exceeded.” State v. Balfour, 2008 UT App

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410, ¶ 11, 198 P.3d 471. We therefore review the trial court’s
ultimate decision not to disqualify the SLCDA for an abuse of
discretion.2 Id. Where Cater challenges subsidiary factual findings
or legal conclusions, we review the trial court’s factual findings for
clear error and its legal conclusions for correctness. Id.

ANALYSIS

¶8 Generally, when a district attorney’s office hires a former
defense attorney, the entire office will be presumed privy to any
client confidences obtained by the defense lawyer. State v.
McClellan, 2009 UT 50, ¶ 19, 216 P.3d 956. Unless rebutted, this
presumption of shared confidences requires the disqualification of
that district attorney’s office from the prosecution of any of the
defense attorney’s former clients. See id. ¶¶ 23, 26. The district

2. In State v. Balfour, we observed that “due to the special interest
in administering the law governing attorney ethical rules, a trial
court’s discretion in situations implicating those rules is limited.”
2008 UT App 410, ¶ 11, 198 P.3d 417 (citation and internal
quotation marks omitted). We stated that, as a result, “attorney
disqualifications are reviewed as mixed questions of law and fact.”
Id. However, discretionary rulings and mixed-question
determinations are distinct concepts subject to different types of
appellate review. See Murray v. Labor Comm’n, 2013 UT 38, ¶ 33, 308
P.3d 461. And in Balfour itself we did not review the attorney
disqualification at issue as a true mixed question, but reviewed “the
district court’s factual conclusions under a clear error standard”
and “the district court’s legal interpretation of particular ethical
norms under a de novo standard.” 2008 UT App 410, ¶ 11 (citation
and internal quotations marks omitted). Accordingly, we interpret
Balfour as simply stating that a trial court’s discretionary ruling on
a motion to disqualify counsel may involve subsidiary legal and
factual determinations, and not as departing from our established
standard of review.

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attorney’s office may rebut this presumption “by showing that
effective screening procedures have been used to isolate the
defendant’s former counsel from the prosecution of the
substantially related criminal charges.” Id. ¶ 19 (citation and
internal quotation marks omitted).

¶9 Cater challenges the trial court’s determination that the
SLCDA rebutted the presumption of shared confidences that arose
when Morgan and Hall rejoined the SLCDA. In addressing Cater’s
appeal, we first consider his argument that certain of the trial
court’s factual findings were clearly erroneous, and then address
his challenge to the trial court’s determination that Hall and
Morgan were effectively screened from his prosecution.

I. The Trial Court’s Factual Findings Are Not Clearly Erroneous.

¶10 Cater argues that two of the trial court’s findings regarding
the SLCDA’s screening procedures are clearly erroneous. To
establish clear error, the challenging party must show that a
finding is not supported by legally sufficient evidence even when
the evidence is viewed in a light most favorable to the finding. State
v. Clark, 2005 UT 75, ¶ 17, 124 P.3d 235. And we will set aside a
factual finding only if it is “against the clear weight of the
evidence” or we reach a “definite and firm conviction that a
mistake has been made.” Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d
486 (citation and internal quotation marks omitted).

A. The Trial Court’s Finding that Morgan Was Aware of the
Unwritten Policy Is Not Clearly Erroneous.

¶11 The trial court ruled orally that Morgan “was aware of the
unwritten policy and procedure pertaining to this kind of
circumstance.” Cater argues that this finding is clearly erroneous
because it is contrary to Morgan’s testimony that he was unaware
of any screening policy and did not believe the SLCDA had one in
place at the time of his return to the office. However, the trial court
found that the SLCDA did have an unwritten screening policy in

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place. And the trial court’s finding that Morgan was aware of this
policy is supported by record evidence. Dahnelle Burton-Lee, then
a chief deputy of the SLCDA, submitted an affidavit to the trial
court stating that she had discussed the terms of Morgan’s
reinstatement with him upon his return to the office. Specifically,
she averred that after Morgan disclosed all of the cases he had been
involved with in private practice, she instructed him “not to
participate any further in any manner in any of those cases, and . . .
not to discuss or disclose any information regarding any of those
cases, including the criminal case pending against Mr. Cater, to
anyone within the office or outside of the office.” Burton-Lee also
averred that she reminded Morgan that “he was required to
conduct himself in accordance with the Rules of Professional
Conduct.” Given this evidence supporting the trial court’s factual
finding, we cannot say the finding is clearly erroneous.

¶12 Cater argues that we should disregard Burton-Lee’s affidavit
because it was not formally introduced as an exhibit at the hearing
on Cater’s motion. He asserts that the affidavit testimony cannot
support the trial court’s findings unless admitted into evidence as
an exhibit. We disagree. Generally, a trial court may decide
motions on the basis of affidavits submitted by the parties. Utah R.
Civ. P. 43(b); see also id. R. 81(e) (explaining that the Utah Rules of
Civil Procedure govern in criminal cases where no other rule is
applicable). And our supreme court has recognized that a trial
court may “grant or deny a motion on the sole or combined bases
of affidavits, depositions or oral testimony.” Stan Katz Real Estate,
Inc. v. Chavez, 565 P.2d 1142, 1143 (Utah 1977). Nothing in our rules
requires that in deciding a motion, the trial court formally receive
affidavits as exhibits in an evidentiary hearing before considering
affidavit testimony, and Cater has identified no authority to that
effect. Here, the State included Burton-Lee’s affidavit with its
opposition to Cater’s motion to disqualify, and the trial court
properly considered that affidavit testimony. Accordingly, we will
not disturb the trial court’s finding that Morgan was aware of the
unwritten screening policy on this basis.

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B. The Trial Court’s Finding that Morgan Was Screened from
Cater’s Prosecution Is Not Clearly Erroneous.

¶13 Cater next challenges the trial court’s finding that Morgan
“was screened from the prosecution of the defendant” during the
time he was employed at the SLCDA. He argues that the evidence
shows that the unwritten policy in place at the SLCDA “was not
consistently applied” to screen Morgan from Postma, Evershed,
and Nelson. We conclude, however, that the evidence in the record
supports the trial court’s finding. Postma testified that he discussed
screening Morgan with Nelson and another SLCDA attorney
shortly after Morgan returned to the office. In those discussions,
Postma was directed not to discuss the case with Morgan, share
files with him, or allow him access to materials. Postma was also
instructed that Morgan “was to have absolutely no contact
whatsoever with any part of the prosecution.” Nelson was a party
to these discussions with Postma. Nelson testified that he did not
receive formal, written screening procedures but employed his
own procedures to screen himself from Morgan. Evershed testified
that he received instruction on the screening policy for former
defense attorneys at the time he was assigned to the case.

¶14 Cater’s attack on this finding appears targeted in part at the
sufficiency of the measures undertaken by the SLCDA to screen
Morgan from Cater’s prosecution. We address the sufficiency of the
measures undertaken by the SLCDA as part of Cater’s challenge to
the trial court’s ultimate disqualification decision. However, with
respect to whether the SLCDA took steps to screen Morgan from
Postma, Evershed, and Nelson, we conclude that the evidence
supports the trial court’s factual finding.

II. The Trial Court Did Not Abuse Its Discretion in Determining
that Disqualification Was Unnecessary.

¶15 Cater argues that the trial court’s disqualification decision
should be reversed because “the State failed to prove that it
employed adequate screening measures after its employment of

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Morgan and Hall.” To rebut the presumption of shared
confidences, the State was required to show that “effective
screening procedures” were in place to isolate Morgan and Hall
from Cater’s prosecution. State v. McClellan, 2009 UT 50, ¶ 19, 216
P.3d 956 (citation and internal quotation marks omitted). “What
constitutes an effective screening procedure will depend on the
particular circumstances of each case.” State v. Kinkennon, 747
N.W.2d 437, 445 (Neb. 2008).3 This “case-by-case approach enables
a trial court to protect a criminal defendant from the due process
concern at issue—the disclosure of confidences revealed to his
attorney during the attorney–client relationship.” Lux v.
Commonwealth, 484 S.E.2d 145, 151 (Va. Ct. App. 1997). We will
reverse the trial court’s disqualification determination only if it is
“beyond the limits of reasonability,” State v. Olsen, 860 P.2d 332,
334 (Utah 1993) (citation and internal quotation marks omitted),
though we are mindful that the trial court’s discretion is “limited”
here, State v. Balfour, 2008 UT App 410, ¶ 11, 198 P.3d 471. Because
Cater has not successfully challenged any of the trial court’s factual
findings, we take those findings, together with the evidence in the
record, as the starting point for our analysis. CCW Ranch, LLC v.
Nielsen, 2012 UT App 205, ¶ 3 & n.1, 283 P.3d 1072.

¶16 In evaluating the SLCDA’s screening procedures under
McClellan, we look to other jurisdictions that have adopted similar
rules to govern the disqualification of a prosecutor’s office under
comparable circumstances. See supra n.3. In State v. Kinkennon, the
Nebraska Supreme Court considered whether a county attorney’s

3. In the time since our supreme court adopted the rebuttable
presumption of shared confidences in State v. McClellan, 2009 UT
50, 216 P.3d 956, there has been little development in this area of
the law in Utah. See, e.g., Williams v. Department of Corr., 2013 UT
App 159, ¶¶ 4–6, 12, 306 P.3d 821; State v. Steele, 2010 UT App 185,
¶ 41, 236 P.3d 161. Accordingly, as the supreme court did in
McClellan, we look to other jurisdictions for guidance. See 2009 UT
50, ¶¶ 22–23.

20120201-CA 8 2014 UT App 207
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office should be disqualified from prosecuting a defendant after the
office hired an associate from the firm representing the defendant.
747 N.W.2d at 441. The defendant had requested appointment of
a special prosecutor, arguing that the associate’s employment with
the county attorney’s office created a conflict of interest. Id. The
Nebraska Supreme Court declined to adopt a per se rule of
disqualification, ruling that the need for disqualification in a
particular case may be rebutted if the county attorney
demonstrates that “the disqualified attorney is effectively screened
from any participation in the prosecution of the defendant.” Id. at
444. The court observed that “at a minimum, the disqualified
lawyer should acknowledge the obligation not to communicate
with any of the other lawyers in the office with respect to the
matter” and “the other lawyers in the office who are involved with
the matter should be informed that the screening is in place and
that they are not to discuss the matter with the disqualified
lawyer.” Id. at 445. The court noted that other screening measures
may be appropriate in a particular case, such as screening the
disqualified attorney from the entire office, limiting the disqualified
attorney’s access to files related to the matter, and issuing periodic
reminders of the screening procedures. Id. Ultimately, the court
determined that “there is nothing in the record to suggest, nor does
[the defendant] allege, that any [confidential] information was
communicated by [the disqualified attorney] to the county
attorney’s office to aid in the prosecution of this case.” Id. The court
therefore concluded that the district court had not abused its
discretion by declining to disqualify the county attorney’s office
and appoint a special prosecutor. Id.

¶17 In State ex rel. Tyler v. MacQueen, the Supreme Court of
Appeals of West Virginia considered whether a district court had
abused its discretion in denying appointment of a special
prosecutor where the county attorney’s office had hired the
defendant’s former counsel. 447 S.E.2d 289, 290–91 (W. Va. 1994).
The court adopted the rule that disqualification is not necessary
where the district court “has held a hearing on any motion to
disqualify filed on this basis and determined that the assistant

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prosecutor has effectively and completely been screened from
involvement, active or indirect, in the case.” Id. at 293. At a hearing
on the defendant’s motion, the county attorney’s office submitted
affidavits from both the county attorney and disqualified counsel
explaining the measures undertaken to screen counsel from the
prosecution. Id. at 292. Specifically, the county attorney averred
that he instructed the disqualified attorney “to avoid any
discussion of the case with any other [prosecutors]” and that all
prosecutors in the office “are instructed to avoid discussing any
case with anyone in the office who may have a conflict of interest.”
Id. The county attorney further averred that, to the best of his
knowledge, the disqualified attorney had followed those directions
and no other prosecutor had attempted to discuss the defendant’s
case with the disqualified attorney. Id. The disqualified attorney
averred that no employee of the county attorney’s office had
attempted to discuss the defendant’s case with him and that he had
not divulged any information related to the case to any person at
the office. Id. The court concluded that the “alleged appearance of
impropriety” resulting from the disqualified attorney’s
employment with the county attorney’s office dissipated “when
viewed against the ongoing efforts of the prosecutor’s office to
completely screen [the disqualified attorney] from any involvement
in [the defendant’s] case.” Id. The court accordingly declined to
disturb the district court’s refusal to appoint a special prosecutor.
Id. at 293.

¶18 Here, the trial court received testimony from each of the
prosecutors assigned to the case—Nelson, Postma, and Evershed.
Each prosecutor testified regarding the measures that were taken
to screen Morgan and Hall from Cater’s prosecution. Postma
testified that his supervisors instructed him not to have any
discussions or share any materials with Morgan or Hall after each
joined the office. Postma testified that Nelson was involved in
instructing him to screen Morgan from the case. Nelson testified
that his superiors had instructed him both orally and in writing not
to have anything to do with Hall with respect to the case. He also
testified that SLCDA prosecutors’ case files are generally password

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protected and cannot be accessed without permission. Evershed
testified that he was instructed on the screening policy for former
defense attorneys at the time he was appointed as a prosecutor on
the case.

¶19 The trial court also heard testimony from assistant district
attorney Robert Stott. Stott testified that an unwritten screening
policy was in place at the SLCDA during the time Cater’s
prosecution was ongoing, which he had memorialized in written
form in February 2011. The written policy instructs disqualified
attorneys that they may not participate in, access files related to,
maintain at the office materials related to, or discuss with any
person in the office the prosecution of their former clients. The
written policy also instructs prosecutors not to discuss screened
cases with or around the disqualified attorney and not to allow the
disqualified attorney access to any files or other materials related
to those cases.

¶20 Both Morgan and Hall, the disqualified attorneys, also
testified at the hearing. Hall testified that upon joining the office, he
understood that he had an ethical responsibility not to discuss any
aspect of the cases he had worked on, including Cater’s case, with
other members of the SLCDA. Morgan also testified that he
understood his ethical obligation not to divulge any information
related to Cater’s case. Although Morgan testified that he believed
the SLCDA had no screening procedures in place at the time of his
rehire, he testified that he screened himself from the prosecution.
However, we again note that Cater has not successfully challenged
the trial court’s finding that Morgan was aware of the SLCDA’s
screening policy at the time of his rehire. Supra ¶¶ 11–12.

¶21 Considering the record evidence and the trial court’s
findings on the disputed facts, we conclude that the SLCDA
demonstrated that sufficient screening procedures were in place to
prevent the disclosure of any of Cater’s privileged information to
the prosecutors involved in his case. The disqualified attorneys
“acknowledge[d] the obligation not to communicate with any of

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the other lawyers in the office with respect to the matter,” and the
prosecutors assigned to Cater’s case were “informed that the
screening [was] in place and that they [were] not to discuss the
matter with the disqualified lawyer.” See State v. Kinkennon, 747
N.W.2d 437, 445 (Neb. 2008). The trial court’s findings that no
confidences were shared by either Morgan or Hall persuades us
that the screening procedures implemented by the SLCDA were
effective in safeguarding Cater’s confidences. Accordingly, we are
not convinced that the trial court erred in determining that the
SLCDA had rebutted the presumption of shared confidences.

¶22 Cater argues that despite the actual effectiveness of the
screening procedures employed by SLCDA, we should conclude
that an unwritten policy is always inadequate to rebut the
presumption of shared confidences established by McClellan. Cater
asserts that the McClellan court’s citation to the decision of the
Michigan Court of Appeals in People v. Davenport, 760 N.W.2d 743,
750 (Mich. Ct. App. 2008), “likely signaled” our supreme court’s
understanding of what would constitute minimally effective
screening procedures. See State v. McClellan, 2009 UT 50, ¶ 23, 216
P.3d 956. In Davenport, the court directed trial courts to consider

whether the prosecutor’s office implemented
effective, written screening procedures that take into
account the structural organization of the law firm or
office, the likelihood of contact between an attorney
with a conflict of interest and the personnel involved
in the ongoing representation, and the existence of
rules that prevent the attorney with the conflict of
interest from accessing files or information pertaining
to a particular case.

Id. (citation and internal quotation marks omitted). Cater therefore
invites this court to “hold that, at a minimum, the screening
measures must include a written policy, distributed to all attorneys
and staff of the prosecuting agency, that (1) identifies the existence
of the conflict to all attorneys and staff; (2) provides a specific list

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of rules to be followed by employees aimed at prohibiting all
communication with the disqualified attorney about the case;
(3) prohibits the conflicted attorney’s access to office files and
information about the case; and (4) provides for the easy
identification of affected prosecution files.”

¶23 While we agree that a written policy setting forth
comprehensive screening measures may be advisable, we are not
persuaded that such measures are necessary to effectively screen
former defense attorneys in all cases. Indeed, after Davenport was
remanded for an evidentiary hearing to explore the county
attorney office’s screening procedures, the Michigan Court of
Appeals held that the office’s unwritten screening policy was
sufficient:

Though the office maintained no written procedures
about how to handle a potential conflict or the
Davenport file in particular, it is abundantly clear
that both attorneys and all staff members were
informed and understood that [the disqualified
attorney] was to have no contact with the Davenport
file and that he would not participate in any
discussions, interviews, or meetings about the case.

People v. Davenport, 779 N.W.2d 257, 260 (Mich. Ct. App. 2009). The
court therefore concluded that “the prosecutor’s office took
adequate steps to prevent improper communications and
consistently followed through with those steps, and no evidence
showed that there were any improper communications about the
case.” Id. at 261. Our review of the case law on this subject confirms
that the memorialization of a screening policy in writing is a factor
to be considered by the district courts in evaluating the
effectiveness of that policy, not a categorical requirement. See, e.g.,
State ex rel. Romley v. Superior Court, 908 P.2d 37, 43 (Ariz. Ct. App.
1995) (observing that “reducing the [screening] mechanism to
writing with officewide distribution . . . will enhance its
effectiveness”); Kinkennon, 747 N.W.2d at 445 (explaining that some

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circumstances may require additional screening procedures, such
as “a written undertaking by the screened lawyer to avoid any
communication with other lawyers in the office . . . relating to the
matter”); State v. Addison, 89 A.3d 1214, 1220 (N.H. 2014) (denying
a motion to disqualify the prosecutor’s office on appeal, based on
the existence of a screening policy that was not memorialized until
two months after the disqualified attorney began work).

¶24 Ultimately, we are not convinced that the screening
procedures Cater asks us to require of a prosecutor’s office were
necessary in this case. Cater has neither demonstrated that the
screening efforts undertaken by the SLCDA were inadequate to
safeguard the confidences he had shared with his former counsel,
nor explained how the screening requirements he proposes would
have more effectively protected those confidences. Absent a
showing that the measures employed by the SLCDA did not
“protect [Cater] from the due process concern at issue—the
disclosure of confidences revealed to his attorney during the
attorney–client relationship,” Lux, 484 S.E.2d at 151, we cannot say
the trial court abused its discretion in determining that the SLCDA
showed that it employed sufficient screening measures to rebut the
presumption of shared confidences.

CONCLUSION

¶25 Cater has not demonstrated that the trial court’s factual
findings lacked evidentiary support. The trial court did not abuse
its discretion in determining that the SLCDA rebutted the
presumption of shared confidences and that disqualification was
unnecessary. We therefore affirm Cater’s convictions.

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