State v. Hummel , 393 P.3d 314 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2017 UT 19
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
JOHN E. HUMMEL,
Appellant.
No. 20130281
Filed April 4, 2017
Sixth District, Panguitch
The Honorable James R. Taylor
No. 121600018
Attorneys:
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.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶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
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Opinion of the Court
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
1 On October 25, 2016, this court requested supplemental
briefing on the question whether ―the Utah Constitution
require[s] sufficient evidence on both of two alternative theories
(or methods or modes) of a crime that are submitted to a jury.‖
Suppl. Briefing Order 1, Oct. 25, 2016. In response the State
asserted that the Due Process Clause of the Utah Constitution
does not require unanimity as to alternative factual theories
supporting conviction. State‘s Suppl. Br. passim, Nov. 9, 2016. In
his reply to the State‘s supplemental brief, Hummel clarified that
his appeal on this issue rests exclusively on the Unanimous
Verdict Clause of the Utah Constitution, not the Due Process
Clause. Reply to State‘s Suppl. Br. at 2–3, Nov. 18, 2016. Our
analysis is accordingly focused on the Unanimous Verdict Clause;
we do not reach the due process issues alluded to by the State
because Hummel has not advanced a due process claim.
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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
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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,
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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
2 The count involving Sandberg was for attempted theft, given
that Hummel did not actually acquire Sandberg‘s property. On
the attempted theft charge the jury instruction spoke of
―attempt[ing] to obtain or exercise‖ rather than ―obtain[ing] or
exercis[ing].‖
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presented with four ways that Hummel could have extorted his
victims3 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
3 The listed means of extortion were as follows:
(1) ―threaten[ing] to subject the alleged victim to physical
confinement or restraint,‖ (2) ―threaten[ing] to . . . take action as
an official against the alleged victim,‖ (3) ―threaten[ing] to . . .
withhold official action related to the victim,‖ or (4) ―threaten[ing]
to . . . cause such action or withholding of action.‖
4 The listed means of deception were as follows: (1) ―creat[ing]
or confirm[ing] by words or conduct an impression of law or fact
that [was] false,‖ which Hummel did not believe to be true, and
that was likely to affect the judgment of another in the transaction,
(2) ―fail[ing] to correct a false impression of law or fact that
[Hummel] previously created or confirmed by words or conduct
that [was] likely to affect the judgment of another and that
[Hummel] does not now believe to be true,‖ or (3) ―prevent[ing]
another from acquiring information likely to affect his judgment
in the transaction.‖ For the count that offered only a theory of
theft by deception, only the latter two sub-theories were presented
to the jury.
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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.
II. UNANIMOUS VERDICT CLAUSE
¶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
5 See also State v. Taylor, 570 P.2d 697, 698 (Utah 1977) (―The Utah
theft statute consolidates the offenses known under prior law as
larceny, embezzlement, extortion, false pretenses, and receiving
stolen property into a single offense entitled theft, and clearly
evidences the legislative intent to eliminate the previously
existing necessity of pleading and proving those separate and
distinct offenses. All that is now required is to simply plead the
general offense of theft and the accusation may be supported by
evidence that it was committed in any manner specified in
sections 404 through 410 of the Code . . . .‖ (footnotes omitted));
Paul N. Cox, Note, Utah’s New Penal Code: Theft, 1973 UTAH L. REV.
718, 733 (1973) (observing that the Utah legislature consolidated
extortion, larceny, false pretenses, and several other property
offenses into one single crime of theft; and noting that ―[t]he
complex technical distinctions among offenses against property
and resulting procedural reversals of criminal convictions gave
rise to a . . . movement to eliminate these distinctions through
substantive consolidation‖).
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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
6 ―An accusation of theft may be supported by evidence that it
was committed in any manner specified in Sections 76-6-404
through 76-6-410.‖ UTAH CODE § 76-6-403 (emphasis added).
7 A defendant could hardly escape a theft charge by admitting
he ―obtain[ed] or exercise[d] unauthorized control over the
property of another with a purpose to deprive him thereof‖ but
insisting that he didn‘t do so in any of the specific manners set
forth in sections 405 through 410. (A pickpocket, for example, is
still guilty of theft even if pickpocketing is not expressly set forth
as a manner of committing theft.) Thus, section 404 sets the
general elements of the crime of theft and sections 405 through
410. identify exemplary (non-exclusive) ways of fulfilling those
elements.
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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
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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
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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
8 See, e.g., State v. Thompson, 87 P. 709, 710 (Utah 1906) (―Every
information or indictment, to be adequate, must allege a day and
year on which the offense was committed. It is inadequate to
charge an offense committed at some indefinite time between two
specified days.‖); State v. Hoben, 102 P. 1000, 1006 (Utah 1909)
(―The record here shows two separate and distinct offenses, and
two separate and distinct transactions. Two separate and distinct
offenses were testified to by the prosecutrix and proven by the
state. One was committed on the 1st day of April, 1906, when the
prosecutrix became pregnant, and the other along about the 1st of
November, 1905. It was with respect to the offense of April, 1906,
and to the transactions out of which it arose, that the defendant
was given his constitutional privilege of a preliminary hearing.‖).
9 Hummel‘s arguments are not even limited to the distinct
theories of theft set forth in the exemplary provisions of the Utah
Code—to theft by extortion or theft by deception. In assessing the
sufficiency of the evidence to support the prosecution‘s theory of
(continued…)
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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
theft, Hummel also analyzes sub-theories. He asks not whether
there was sufficient evidence to support a theory of theft by
extortion, but whether there was sufficient evidence to support
the separate means by which the prosecution argued that theft by
extortion was committed. That exacerbates the line-drawing
problem introduced by Hummel‘s position.
10 See Johnson, 821 P.2d at 1159 overruled in part on other grounds
by State v. Crank, 142 P.2d 178 (Utah 1943); State v. Tillman, 750
P.2d 546, 563 (Utah 1987) (plurality opinion); State v. Russell, 733
P.2d 162, 165 (Utah 1987).
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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
11 The other two cases on point are State v. Russell, 733 P.2d 162
(Utah 1987), and State v. Johnson, 287 P. 909 (Utah 1930) overruled
in part on other grounds by State v. Crank, 142 P.2d 178 (Utah 1943).
(continued…)
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Russell raised the question whether unanimity was required as to
which of three alternative mental states for second-degree murder
was proven beyond a reasonable doubt—―intentionally or
knowingly‖ causing death; intending to cause ―serious bodily
injury‖ and causing death by an act clearly ―dangerous to human
life‖; and causing death in circumstances evidencing ―depraved
indifference to human life.‖ Russell, 733 P.2d at 164. The court was
splintered. The lead opinion (of Justice Howe, joined by Justice
Hall) concluded that unanimity was not required at this level,
asserting that ―[t]he decisions are virtually unanimous that a
defendant is not entitled to a unanimous verdict on the precise
manner in which the crime was committed.‖ Id. at 165. Justice
Stewart concurred in the result and wrote separately. He
indicated his view ―that it would have been preferable for the trial
judge to give an instruction on unanimity as to the defendant‘s
mens rea,‖ but concluded that ―the fundamental principle of jury
unanimity was [not] violated in this case.‖ Id. at 169. Justice
Durham also concurred in the result and authored an opinion. She
indicated that she would require unanimity except where ―(1) a
single crime has been charged, even though it may be committed
in alternative ways or by alternative but related acts, (2) those acts
are not substantially distinct from each other in terms of either
their legal, factual, or conceptual content, and (3) the State has
presented substantial evidence supporting each alternative mode
of commission of the crime.‖ Id. at 176. Yet she voted to affirm
because she found these conditions to be met. Id. at 178
(concluding that the three alternative mens rea elements arise
under ―a single offense,‖ that the three alternative elements were
―significantly distinct from one another in terms of their legal or
factual content,‖ and there was sufficient ―evidence on each of the
three alternatives‖). Justice Zimmerman concurred only in the
result, without opinion. Id. at 178.
Thus, Russell also stopped short of resolving the question in this
case. Like Tillman, Russell involved not distinct ―theories‖ in the
sense of merely different manners of fulfilling an element of a
crime, but different alternative elements of a crime. And there was
no majority view on the standard for assessing the constitutional
requirement of unanimity as to such alternative elements.
(continued…)
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¶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
Lastly, in the earlier Johnson case the court reversed an
involuntary manslaughter conviction where there was insufficient
evidence to support one of the alternative elements for satisfying
the unlawful act requirement of the statute. 287 P. at 911–12; see
also State v. Rasmussen, 68 P.2d 176, 182 (Utah 1937) (plurality
opinion) (identifying the unlawful acts requirement of the
manslaughter statute as involving ―several elements . . . any one
of which properly pleaded and proved would support a [guilty]
verdict‖); State v. Roedl, 155 P.2d 741, 747 (Utah 1945) (discussing
Rasmussen and reiterating that an ―unlawful act[]‖ was one of the
―necessary elements to be proved beyond a reasonable doubt in
proving the crime of involuntary manslaughter and the finding of
a verdict of guilty by the jury‖).
In 1928, our law defined involuntary manslaughter as ―the
unlawful killing of a human being without malice . . . in the
commission of an unlawful act not amounting to a felony, or in
the commission of a lawful act which might produce death, in an
unlawful manner or without due caution and circumspection.‖
UTAH CODE § 103–28–5 (1928). Like the aggravating circumstance
element of aggravated murder, the element requiring a killing ―in
the commission of an unlawful act‖ is subject to the requirement
of unanimity, but that element may be proved by reference to any
number of statutory violations. The information in Johnson
asserted several alternative unlawful acts not amounting to a
felony, including driving while intoxicated and a variety of traffic
infractions. Johnson, 287 P. at 910. The defendant contended that
there was insufficient evidence to support a finding that he was
driving while intoxicated and the court agreed. Id. at 911–12.
Because the jury had rendered only ―a general verdict of guilty ‗as
charged in the information,‘‖ the court could not determine
whether there had been unanimity on the unlawful act element.
Id. at 912. Accordingly, the court reversed the conviction. Id.
Contrary to Hummel‘s assertion, the earlier Johnson case only
strengthens our conclusion that unanimity is required only as to
elements of an offense.
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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
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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
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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
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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 found, this [wa]s
not to be considered or recorded as part of the verdict.‖ 7
MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 8 (5th ed.
1798).
¶46 The Unanimous Verdict Clause articulates this same
principle. It does so by requiring that ―the verdict shall be
unanimous‖ in criminal cases. UTAH CONST. art. I, § 10 (emphasis
added). By law and longstanding practice, the jury‘s verdict is
simply its determination of guilt or innocence. See, e.g., State v.
Creechley, 75 P. 384, 384 (Utah 1904) (―A verdict upon a plea of not
guilty shall be either ‗Guilty‘ or ‗Not guilty.‘‖ (citation omitted)).
¶47 A verdict consists of the jury‘s decision on the matters
submitted to it for decision.12 In criminal cases the jury generally
is charged only with determining the defendant‘s guilt on the
12 See WILLIAM C. COCHRAN, THE STUDENTS‘ LAW LEXICON: A
DICTIONARY OF LEGAL WORDS AND PHRASES 266 (1888) (defining
verdict as ―the decision of a jury reported to the court, on the
matters submitted to them on the trial of a cause‖); HENRY
CAMPBELL BLACK, DICTIONARY OF LAW 1216 (1891) (defining verdict
as the ―formal and unanimous decision or finding of a jury,
impaneled and sworn for the trial of a cause, upon the matters or
questions duly submitted to them upon the trial‖); J. KENDRICK
KINNEY, A LAW DICTIONARY AND GLOSSARY 683 (1893) (defining
verdict as ―the finding of a jury as to the truth of matters of fact
submitted to them for trial‖).
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Opinion of the Court
counts presented at trial.13 Other matters, such as sentencing,
generally are submitted to the trial judge for decision.
¶48 As a general rule, juries are asked to drill no deeper than a
judgment of conviction or acquittal. This is the essence of a
general verdict. Such a verdict involves only a ―find[ing] for the
plaintiff or defendant‖ in a civil case, or ―a verdict of guilty or not
guilty‖ in a criminal case. 2 STEWART RAPALJE & ROBERT L.
LAWRENCE, A DICTIONARY OF AMERICAN AND ENGLISH LAW 1326
(1888).14
¶49 In the standard case submitted on a general verdict, the
constitutional requirement of unanimity calls for a
straightforward assessment. All jurors must agree on whether the
defendant has been proven guilty beyond a reasonable doubt.
Any holdouts will require a mistrial.
¶50 Special verdicts, of course, have long been permitted.15 But
they are not required.16 And the constitutional requirement of
13 See, e.g., State v. Creechley, 75 P. 384, 384 (Utah 1904) (―A
verdict upon a plea of not guilty shall be either ‗Guilty‘ or ‗Not
guilty,‘ which imports a conviction or acquittal of the offense
charged in the information or indictment. Upon a plea of a former
conviction or acquittal of the same offense, it shall be either 'For
the state' or ‗For the defendant.‘‖ (quoting UTAH REV. ST. 1898,
§ 4891)).
14 See also Callahan v. Simons, 228 P. 892, 894 (Utah 1924) (noting
that in a general verdict, ―as contradistinguished from a special
verdict,‖ ―the jury merely . . . found the issues in favor of the
defendant and stated the amount that was allowed him on his
counterclaim‖); State v. Tillman, 750 P.2d 546, 563 (Utah 1987)
(observing that ―the jury was given a general verdict form which
it subsequently returned unanimously finding defendant guilty of
first degree murder‖).
15 See, e.g., 1876 COMPILED UTAH LAWS 728, § 175 (declaring that
a special verdict lays out the jury‘s findings of fact, not the
evidence needed to prove those conclusions); UTAH REV. ST., §
3292(2) (1898) (providing means of proving that a juror has ―been
(continued…)
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unanimity in the case of a special verdict is still directed to the
question of guilt or innocence on the crimes charged and
submitted for the jury‘s decision. A special verdict form may ask
the jury to indicate its specific factual findings on certain issues, in
addition to its conclusion as to the defendant‘s guilt.17 But the
constitutional requirement of unanimity extends only to the jury‘s
determination that the prosecution proved each element of the
crimes in question beyond a reasonable doubt.
¶51 On either a general or special verdict the scope of the
protections afforded by the Unanimous Verdict Clause is defined
by the elements of the substantive criminal law. If a defendant is
charged with first-degree murder, for example, the prosecution
must prove beyond a reasonable doubt that the defendant
―cause[d] the death of another‖ either ―intentionally or
knowingly.‖ UTAH CODE § 76-5-203(2)(a). On a general verdict the
jury is charged only with deciding the defendant‘s guilt—a
determination that then forms the basis for a judgment of
induced to assent to any general or special verdict‖); Toltec Ranch
Co. v. Cook, 67 P. 1123, 1123 (Utah 1902) (concluding that there was
no ―irregularity . . . as to warrant a reversal‖ where jury found
both general and special verdicts for each defendant, and the
―court adopted the verdict and special findings of the jury‖).
16 ―At early common law, the jury determined whether it would
bring in a general or special verdict. . . . With few exceptions, it is
discretionary with the court whether to require a general or
special verdict.‖ 6 AM. JUR. TRIALS 1043 (2016).
17 Cf. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 377 (1768) (noting that in a special verdict, the jury
―state[s] the naked facts, as they find them to be proved, and pray
the advice of the court thereon‖); Special verdict, Black‘s Law
Dictionary (10th ed. 2014) (―A verdict in which the jury makes
findings only on factual issues submitted to them by the judge,
who then decides the legal effect of the verdict.‖).
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Opinion of the Court
conviction or acquittal entered by the court.18 On a special verdict,
the jury must be unanimous in its findings on these elements. In
neither case, however, would the Unanimous Verdict Clause
require unanimity on the manner, mode, or factual or legal theory
on which its verdict is based.
¶52 In a case in which the prosecution presented alternative
evidence of the mechanism of the cause of death, for example, the
jury would not be required to achieve unanimity as to which
mechanism it agreed upon beyond a reasonable doubt. 19 So if the
18 See, e.g., State v. Logan, 712 P.2d 262, 264 (Utah 1985)
(distinguishing the verdict handed down by the jury from the
judgment entered by the trial judge).
19 See United States v. Furlong, 18 U.S. 184, 201 (1820) (unanimity
not required on whether the crime of piracy was ―committed . . .
in a haven . . . or bay,‖ on one hand, or ―on the high seas,‖ on the
other; general verdict deemed sufficient); GEORGE BEMIS, REPORT
OF THE CASE OF JOHN W. WEBSTER 471 (1850) (quoting Chief Justice
Lemuel Shaw in the Webster case on whether unanimity was
required as to ―several modes of death‖: ―The indictment is but
the charge or accusation made by the grand jury, with as much
certainty and precision as the evidence before them will warrant.
They may well be satisfied that the homicide was committed, and
yet the evidence before them leave it somewhat doubtful as to the
mode of death . . . . Take the instance of a murder at sea. The man
is struck down, —lies some time on the deck insensible, and in
that condition is thrown overboard. The evidence proves the
certainty of a homicide by the blow, or by the drowning, but
leaves it uncertain by which. That would be a fit case for several
counts . . . . [I]t would certainly be unreasonable that the
defendant should escape conviction because of difference of
opinion among the jurors as to whether his victim was killed by
the blow or by drowning, when all were convinced that the killed
was effected by the felonious act of the defendant.‖); People v.
Sullivan, 65 N.E. 989, 989–90 (N.Y. 1903) (―[I]t was not necessary
that all the jurors should agree in the determination that there was
a deliberate and premeditated design to take the life of the
(continued…)
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jury heard evidence that the defendant both poisoned the victim
and tried to suffocate him with a pillow, there would be no
requirement for the jury to agree on which mechanism was the
ultimate cause of death. That is because the precise mechanism of
the cause of death is not an element of the crime of murder. All
that matters under our substantive law is that the defendant
caused death knowingly or intentionally.
¶53 This is not to say that a mere verdict of guilty or not guilty
will always suffice. That depends on the elements of the charged
crimes as defined by the lawmaker, and on whether the verdict is
clear on its face in establishing that all jurors agreed on each
element of each crime.
¶54 Where separate crimes are charged, for example, a verdict
may be insufficient if it fails to disclose the jury‘s unanimity on all
elements of each crime. In a case involving charges of both first-
deceased, or in the conclusion that the defendant was at the time
engaged in the commission of a felony, or an attempt to commit
one. It was sufficient that each juror was convinced beyond a
reasonable doubt that the defendant had committed the crime of
murder in the first degree as that offense is defined by the
statute.‖); State v. Baker, 63 N.C. 276, 281 (1869) (observing that
―[t]he killing is the substance, the mode is the form: and while it is
important, that the prisoner should be specifically informed of the
charge against him, so that he may make his defence, yet he
cannot complain that he is informed that, if he did not do it in one
way, he did it in another—both ways being stated; and it is not to
be tolerated, that the crime is to go unpunished, because the
precise manner of committing it is in doubt. . . . [W]hen there are
several counts, some [supported by the evidence] and some [not],
and a general verdict, judgment may pass upon the good,
rejecting the [unsupported] as surplusage. Where there are several
counts, and evidence was offered with reference to one only, the
verdict though general, will be presumed to have been given on
that alone. Where there are several counts, charging the same
crime to have been done in different ways, the jury are not bound
to distinguish in which way it was done, but the verdict may be
general.‖ (citations omitted)).
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Opinion of the Court
degree murder and manslaughter, for example, it would not be
enough for the jury to unanimously indicate its support for a
judgment of guilt. The classic case is Ford v. State, 12 Md. 514, 548
(Md. 1859). Ford involved a jury verdict in a case involving both
manslaughter and first-degree murder charges. The jury foreman
in Ford merely announced a verdict of ―guilty,‖ and eleven of
twelve jurors stated only that they found the defendant ―guilty‖
rather than ―guilty of murder in the first degree.‖ Id. And the
Maryland Supreme Court held that the verdict fell short on
unanimity grounds, explaining that ―[t]he law says, that when a
person shall be found guilty of the crime of murder, by a jury, the
jury shall, in their verdict, find the degree.‖ Id. at 549. Because ―this
had not been done‖ in Ford, the court reversed. Id.
b. The unanimous verdict in this case
¶55 This is the plain meaning of the Unanimous Verdict Clause
of the Utah Constitution. The requirement of unanimity extends
only to the jury‘s verdict. And a verdict—both historically and
today—is defined by the matters submitted to the jury for
decision. Such matters, in turn, are dictated by the substantive
criminal law.
¶56 As noted above, the substantive criminal law of theft in
Utah sets forth a single crime with a discrete set of elements. Our
legislature has expressly consolidated the common-law offenses
―heretofore known as larceny, larceny by trick, larceny by bailees,
embezzlement, false pretense, extortion, blackmail, [and]
receiving stolen property‖ into a ―single offense‖ denominated as
―theft.‖ UTAH CODE § 76-6-403. Under Utah Code section 76-6-404,
―[a] person commits theft if he obtains or exercises unauthorized
control over the property of another with a purpose to deprive
him thereof.‖ Those are the elements of the crime of theft. And
these are accordingly the matters committed to the jury in
entering its verdict.
¶57 No other matters—whether denominated ―theories‖ or
―methods, modes, or manners‖ of committing a crime, supra ¶ 16
n.6—must be found by the jury to sustain a verdict on a count
charging theft. And accordingly no unanimity is required under
the Utah Constitution on anything except the prosecution‘s charge
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that Hummel exercised unauthorized control over his various
clients‘ property (on the dates in the five counts against him) with
the purpose to deprive them of such control.
¶58 Hummel identifies multiple ―theories‖ behind the charges
of theft against him—extortion by threatening to subject someone
to criminal confinement, extortion by threatening to take or
withhold official action, extortion by threatening to cause a public
official to take or withhold official action, deception by a false
impression of law or fact, and deception by preventing another
from acquiring information likely to affect his judgment. But those
―theories‖ do not represent distinct criminal offenses with
different elements in our substantive criminal law. Instead they
are definitional examples—and non-exhaustive ones—of the
various means by which someone may commit the single offense
of theft.
¶59 The operative statutory provisions bear this out. Utah Code
section 76-6-405 spells out how someone may commit theft
through deception. But it does not establish a separate crime of
theft by deception. It says only that ―[a] person commits theft 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.‖ UTAH CODE § 76-6-405(2)(a) (emphasis
added). Section 76-6-406 is along the same lines. 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 then proceeds to define ―extortion‖ for
purposes of the crime of theft. UTAH CODE § 76-6-406(1) (emphasis
added).
¶60 Importantly, neither of these provisions purports to define
a separate crime. Both define the crime of theft.20 For that reason
20 ―A person commits theft if the person obtains or exercises
control over property of another person: (i) by deception.‖ UTAH
CODE § 76-6-405(1) (emphasis added). ―A person is guilty of theft if
he obtains or exercises control over the property of another by
extortion . . . .‖ Id. § 76-6-406(1) (emphasis added).
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Opinion of the Court
they do not alter the elements of theft, or add in any way to what
the jury must find to enter a verdict on a charge of theft.
¶61 We see no basis for this court to second-guess the
legislature‘s determination of the requisite elements of the crime
of theft. Hummel appears to argue that the different ―theories‖ on
which the jury might find guilt are legally distinct because each
contains alternative actus reus elements by which a person could
be found to have committed theft. But our substantive criminal
law does not bear that out. The statutory examples of means by
which a person can meet the elements of the single crime of theft
are not ―alternative actus reus elements‖ of theft. They are simply
exemplary means of satisfying the criminal elements defined by the
legislature—that the defendant ―obtain[ed] or exercise[d]
unauthorized control over the property of another with a purpose
to deprive him thereof.‖ UTAH CODE § 76-6-404.
¶62 The relevant parallel here would be to the above-noted
example of a murder case with evidence of two alternative means
by which it was committed—by poison and by suffocation. There
is no distinct crime of murder by poison or murder by suffocation.
And for that reason it cannot be said that these distinct theories or
means of committing the murder are legally distinct, or more
importantly, that they are legal elements that must be found
unanimously by the jury to have a valid conviction under the
Unanimous Verdict Clause.
¶63 The only defensible way to distinguish what is legally
distinct from what is not is to defer to the substantive criminal
law. Doing so here would require unanimity only as to the
elements of the charge of theft on each of the counts against Mr.
Hummel. Nothing in the record suggests that there were any
holdouts among the jurors at that level. And that leads to an
affirmance under the plain meaning of the Unanimous Verdict
Clause set forth herein.21
21 The district court in this case followed this line of reasoning
precisely. In issuing the jury instructions for Hummel‘s trial, the
trial court rejected defense counsel‘s proposal for an alternative
(continued…)
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¶64 Hummel‘s construction of the Unanimous Verdict Clause
would set us on a slippery slope without a logical endpoint. If
unanimity is required as to anything we could call a distinct
―theory‖ of a crime, our juries would be required to agree on
every minute detail presented by the evidence—on whether a
murder was caused by suffocation or poisoning, or whether a
shoplifter placed a stolen item in his pocket or backpack. If we
divorced the requirement of unanimity from the elements set
forth in the substantive criminal law, we would open the door to
the argument that any and every detail presented by the evidence
implicates a distinct ―theory‖ of the crime charged.22
instruction that would have required unanimity as to the means
or manner in which the theft was committed. And it did so,
correctly, on the basis of the determination that ―the unanimity
rule‖ turns on ―whether [the charged crime] is a single crime that
can be committed in different ways.‖ Transcript of Trial, 132 (Feb.
1, 2013). Because the theft charges at issue here fit that mold, the
district court properly held that there was no requirement of
unanimity at the granular level of the ―way[]‖ in which the crime
was committed.
In explaining his conclusion, the trial judge raised a murder
hypothetical, in which there is some question of how the murder
was caused. And he rightly noted that under our cases ―it doesn‘t
really matter‖ whether they agreed on the means of causing death
―if they think that he caused the death.‖ Id. That conclusion is
precisely in line with our decision today. We affirm on that basis,
while noting that Hummel‘s contrary approach would open a
hornet‘s nest of problems in future cases, as in the murder
hypothetical raised above.
22 See State v. Russell, 733 P.2d 162, 167–68 (Utah 1987) (Howe, J.,
plurality) (expressing agreement with concerns raised in other
courts about ―the difficulty that would be encountered with juries
if‖ unanimity were required on sub-elemental aspects of a crime);
State v. James, 698 P.2d 1161, 1165 (Alaska 1985) (―There are
differences in conduct, intent or circumstances between the
subsections of almost every criminal statute in our code. Rejection
of the [limiting principles of the] Sullivan rule would therefore
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¶65 We avoid these line-drawing problems by leaving the
requirement of unanimity where it stands under the plain text of
the Unanimous Verdict Clause. We therefore hold that the
constitutional requirement of unanimity is limited to those
matters identified as elements of a crime in the substantive
criminal law. Mere examples of ways of fulfilling such elements,
on the other hand, are not a necessary part of a verdict, and thus
fall beyond the requirement of unanimity.23
2. The Requirement of Sufficient Evidence of Alternative Theories
¶66 The sufficiency of the evidence requirement is generally
traced back to the influential decision in People v. Sullivan, 65 N.E.
result in juror disagreement over semantics in many cases in
which they unanimously agree that the defendant committed the
wrongful deed. . . . By requiring semantic uniformity we
encourage overcomplicated instructions and hung juries in cases
in which the jurors actually agree upon the defendant‘s guilt.‖);
Holland v. State, 280 N.W.2d 288, 293 (Wis. 1979) (―To require
unanimity as to the manner of participation would be to frustrate
the justice system, promote endless jury deliberations, encourage
hung juries, and precipitate retrials in an effort to find agreement
on a nonessential issue.‖).
23 In rejecting Hummel‘s approach we also avoid another line-
drawing problem of constitutional magnitude—whether reversal
on the basis of insufficient evidence of one of more theories of a
crime bars retrial under the Double Jeopardy Clause. This is an
important, complex question without a clear answer. Some courts
have rejected double jeopardy arguments in analogous
circumstances. See United States v. Garcia, 938 F.2d 12, 13 (2d Cir.
1991); State v. Kalaola, 237 P.3d 1109, 1112 (Haw. 2010). But there is
a contrary argument with some weight behind it: Hummel has
once been subjected to the full range of jeopardy that attaches to a
defendant at trial, and it is not at clear whether a retrial after
reversal on the grounds proposed by Hummel would give the
state ―another opportunity to supply evidence which it failed to
muster in the first proceeding.‖ Burks v. United States, 437 U.S. 1,
11 (1978). Our decision to affirm allows us to avoid this difficult
question.
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989, 989 (N.Y. 1903). Courts in Utah and elsewhere have cited
Sullivan as support for a requirement of ―substantial evidence to
support each of‖ two alternative theories of a crime. 24 But this
conclusion is rooted in a misunderstanding of Sullivan. And it
bears no logical connection to the constitutional requirement of
unanimity, and in fact undermines it. We reject it, at least as
extended to alternative means of fulfilling an element of a crime.
a. Sullivan
¶67 People v. Sullivan involved two alternative grounds to
support a charge of first-degree murder: (1) that the victim was
killed with a ―deliberate and premeditated design to effect his
death‖; and (2) ―that he was killed by the defendant while the
latter was engaged in the perpetration of a felony, or an attempt to
commit one.‖ 65 N.E. at 989. The jury returned a verdict of
―guilty.‖ Sullivan challenged the verdict on appeal, asserting that
the jury had failed to identify the specific ground on which they
had found guilt. The New York Court of Appeals affirmed.
¶68 In so doing it emphasized that ―[t]here was but a single
crime charged in the indictment against the defendant[]—that of
murder in the first degree.‖ Id. And it noted that ―the only issue to
be determined by the jury was whether the defendant had been
guilty of that crime.‖ Id. Because guilt of that crime could be
24 See State v. Tillman, 750 P.2d 546, 564 (Utah 1987) (plurality
opinion of Hall, C.J.); see also State v. Arndt, 553 P.2d 1328, 1330
(Wash. 1976) (citing Sullivan for the proposition that ―it is
unnecessary to a guilty verdict that there be more than unanimity
concerning guilt as to the single crime charged, . . . regardless of
unanimity as to the means by which the crime is committed
provided there is substantial evidence to support each of the means
charged‖ (emphasis added)); Bloomquist v. State, 914 P.2d 812, 818–
19 (Wyo. 1996) (holding that defendant was not denied the
constitutional right to a unanimous verdict when he was charged
with committing a crime in two different ways, the jury returned
a general verdict, and there was ―sufficient evidence support[ing]
each alternative ground‖ for the conviction).
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Opinion of the Court
established upon ―proof either that the defendant killed the
deceased with a deliberate and premeditated design to effect his
death, or while the defendant was engaged in the commission of a
felony, or an attempt to commit a felony,‖ the Sullivan court
concluded that it was not ―necessary that a jury . . . should concur
in a single view of the transaction disclosed by the evidence.‖ Id.
¶69 In other words, Sullivan said ―it was not necessary that all
the jurors should agree in the determination that there was a
deliberate and premeditated design to take the life of the
deceased, or in the conclusion that the defendant was at the time
engaged in the commission of a felony, or an attempt to commit
one.‖ Id. at 989–90. ―It was sufficient that each juror was
convinced beyond a reasonable doubt that the defendant had
committed the crime of murder in the first degree as that offense
is defined by the statute.‖ Id. at 990.
¶70 This account of Sullivan is entirely consistent with the plain
text of the Utah Unanimous Verdict Clause, as set forth above.
Yet, as noted, Sullivan is frequently cited as the root of the
requirement of sufficient evidence to support both of two
alternative theories of a crime. One basis for this view of Sullivan
is the following statement in the Sullivan majority: ―‗If the
conclusion may be justified upon either of two interpretations of
the evidence, the verdict cannot be impeached by showing that a
part of the jury proceeded upon one interpretation and part upon
the other.‘‖ Id. (quoting Murray v. N.Y. Life Ins. Co., 96 N.Y. 614,
615 (N.Y. 1884)).
¶71 That statement is not a basis for a requirement that each
theory presented to the jury be supported by sufficient evidence.
See Johnson, 821 P.2d at 1159 (speaking of a rule of reversal where
―any one‖ of the prosecution‘s theories ―lacks the requisite
evidentiary foundation‖). Instead, the Sullivan majority—and the
Murray opinion on which it relies—articulates a much more
lenient standard. The operative requirement of Sullivan is simply
that ―the conclusion may be justified upon either of two interpretations
of the evidence.‖ Sullivan, 65 N.E. at 989 (emphasis added). In
context, the relevant ―conclusion‖ is the determination of guilt on
the ―single crime charged in the indictment‖—and on ―the only
issue to be determined by the jury,‖ which was ―whether the
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defendant had been guilty of that crime.‖ Id. With this in mind,
the requirement that the verdict be justifiable ―upon either of two
interpretations of the evidence‖ is just a classic statement of the
general requirement of sufficient evidence to sustain a jury
verdict.
¶72 Sullivan required sufficient evidence to support ―either of
two‖ theories of the crime presented to the jury. Naturally. If the
record is lacking in evidence of both a premeditated killing and a
killing in the course of a felony, there can be no evidentiary basis
for a jury to find the defendant guilty of the single crime of first-
degree murder. This version of the Sullivan rule is unimpeachable.
It is also the view that prevailed when Sullivan was handed
down—and around the time of the framing of the Utah
Constitution.25
¶73 Yet Sullivan was misconstrued over time to require
sufficient evidence upon both of two theories of a crime. That
conclusion is traceable to a separate sentence in the Sullivan
opinion—a stray statement that ―[i]f as to either claim the
evidence was insufficient to justify the submission of the question
to the jury, the conviction must be reversed, since it cannot be
known on which ground the jury based its verdict.‖ 65 N.E. at
989. Yet this statement seems to turn the more detailed analysis in
the opinion on its head. It seems to require sufficient evidence on
25 See, e.g., State v. Baker, 63 N.C. 276, 280 (N.C. 1869) (citing
WHARTON‘S CRIM. LAW § 3047) (affirming conviction on homicide
where the indictment contained four counts covering several
distinct methods of commission, all of which were submitted to
the jury, but only one of which was supported by the evidence);
Rhea v. State, 88 N.W. 789, 799 (Neb. 1902) (applying the Murray
rule where the defendant was charged with first degree murder,
either by a premeditated act or in the course of a felony; observing
that ―[t]he rule, as we understand the authorities,‖ was that the
jury could return a general verdict when either of the alternatives
was supported by the evidence (emphasis added)).
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both theories of a crime, or in other words reversal (not affirmance)
if the evidence is insufficient ―as to either claim.‖
¶74 The purported rule of reversal if evidence is lacking on
―either‖ theory of the crime is inconsistent with the thrust of the
majority‘s analysis in Sullivan. And this point is a rank dictum: It
was completely unnecessary to the court‘s holding (given that the
majority found evidence supporting both theories of the crime26),
and it appears to represent only an arguendo response to the
dissent.
¶75 In any event, over time this stray sentence has become the
tail that has wagged the Sullivan dog. The opinion generally—and
quite clearly—declined to require unanimity on which of two
theories of the crime was accepted by the jury. And it
unequivocally held that evidence of ―either‖ variant was sufficient
to sustain the verdict. Yet in this court and others, Sullivan
eventually became known for a supposed rule of reversal if
evidence was lacking on either theory of a crime, or in other
words a requirement of sufficient evidence as to both theories of
the crime.
b. The (il)logic of the requirement of sufficient evidence on
alternative theories
¶76 For these reasons the notion of a requirement of sufficient
evidence to sustain both of two theories of a crime is a product of
a mistaken reading of precedent.27 And that begs a
26 See People v. Sullivan, 65 N.E. 989, 991–92 (N.Y. 1903) (finding
sufficient evidence for the jury to find the defendant guilty of first
degree murder via premeditation and deliberation); id. at 992
(concluding that ―the evidence was also sufficient to justify the
jury in finding that the defendant and his associates were engaged
in an attempt to commit a felony . . . when they took the life of the
deceased‖).
27 Many courts in other jurisdictions agree with this conclusion.
In the decisions cited below and others, the courts have declined
to adopt the broad reading of the Sullivan dictum. See, e.g., Rice v.
(continued…)
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Opinion of the Court
reconsideration of this principle. Not only is this principle
indefensible as a matter of the plain language and original
meaning of the constitution, but it also fails as a matter of basic
logic.
¶77 The sufficiency of the evidence on alternative means of
committing a crime tells us nothing about the jury‘s unanimity on
such means. If anything, the existence of evidence of both of two
alternatives heightens the risk of a lack of unanimity.
¶78 Consider again the hypothetical murder case involving
evidence of both poisoning and suffocation. Compare two
alternative cases, one in which we have evidence of only one
theory or means of committing the murder and one in which we
have evidence of both. The jury returns a guilty verdict in both
cases. In which case would we have a greater cause for doubting
the jury‘s unanimity on the means by which the crime was
committed? Surely the latter, in which there is sufficient evidence
of both alternative means. In that case the likelihood of a split
verdict—with some jurors finding murder by suffocation and
others finding murder by poisoning—is obvious.
¶79 Such a split is also possible in a case in which the record
evidence supports only one theory (but the prosecution argues
both, and/or the jury instructions identify both). Members of the
jury, after all, could become confused. Or they could vote for a
verdict on a theory unsustained by any evidence at all. But the
lack of evidence on an alternative theory makes the possibility of a
lack of unanimity less likely. And this tells us that the requirement
of sufficient evidence on two alternative theories has little or
nothing to do with the requirement of unanimity.
State, 532 A.2d 1357, 1364 (Md. 1987) (citation omitted) (arguing
that the Sullivan logic ―requires unanimity only in the verdict, not
in the rationale upon which the verdict is based,‖ without
including an additional requirement of sufficient evidence on all
alternatives); see also People v. Smith, 906 N.E.2d 529, 537–38 (Ill.
2009); State v. Elliott, 987 A.2d 513, 520–21 (Me. 2010); Davis v.
State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010); State v. Johnson,
627 N.W.2d 455, 459 (Wis. 2001).
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¶80 If we were to seriously require unanimity as to distinct
theories or means of committing a crime, it would not be enough
to require sufficient evidence of both alternatives. We would
require a special verdict form requiring the jury to make express
findings on which of two theories or means it found sustained by
the evidence. Our law has never done that, however. And our
refusal to do so further supports the conclusion that our law does
not require unanimity at the level of theory of a crime or means of
fulfilling an element.28
3. The Burden of Establishing Prejudicial Error
¶81 It is true, of course, that ―it is impossible to determine
whether the jury agreed unanimously‖ on which of two
alternative theories of a crime was accepted by a jury who issues a
general verdict. State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991).
But that will hold regardless of whether there is sufficient
evidence to support both theories, and perhaps more so when that
is the case.
¶82 Uncertainty, moreover, is not a basis for reversal.
Uncertainty counts against the appellant, who bears the burden of
proof on appeal, and must overcome a presumption of regularity
as to the record and decision in the trial court.29 Thus, a lack of
28 We need not and do not overrule the Johnson line of cases. We
simply adopt a limited reading of these cases and decline to
extend them to a case involving alternative theories that are not
alternative elements of a crime.
29 See State v. Triptow, 770 P.2d 146, 149 (Utah 1989) (―A previous
judgment of conviction . . . is entitled to a presumption of
regularity . . . .‖); Broderick v. Apartment Mgmt. Consultants, L.L.C.,
2012 UT 17, ¶ 19, 279 P.3d 391 (―We recognize that appellants bear
the burden of persuasion on appeal.‖). That presumption is
further reinforced by the presumption of constitutionality. See
State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (―Under the
presumption of regularity, ‗Utah courts place the initial burden on
the appellant, not on the state, to produce some evidence that the
prior conviction was improper, attaching a presumption of
(continued…)
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Opinion of the Court
certainty in the record does not lead to a reversal and new trial; it
leads to an affirmance on the ground that the appellant cannot
carry his burden of proof.
¶83 Our cases identify a settled means of assessing the effect of
a superfluous jury instruction. Such an instruction does not lead
to automatic reversal. It simply opens the door for the appellant to
carry the burden of showing that the unnecessary instruction
affected the judgment below—that it was not harmless.30
¶84 Hummel‘s theory would have us turn this law on its
head—by concluding that an unnecessary jury instruction leads to
automatic reversal in a case in which there is no evidence to
support it. That is not the law.
¶85 A jury verdict is a product of a substantial investment of
public resources. It is entitled to ample deference on appeal. We
cannot reverse it on the mere basis of uncertainty. Under our
established case law, we may reverse on the basis of an
unnecessary jury instruction only if the instruction is shown to be
prejudicial (or in other words not harmless). And that forecloses
Hummel‘s invitation for reversal whenever a theory is presented
to the jury without any supporting evidence.
regularity, including a presumption of constitutionality, to the
prior conviction.‘‖ (citation omitted)).
30 See State v. Fisher, 680 P.2d 35, 37 (Utah 1984) (finding only
harmless error, and thus no need to ―reverse a conviction even if
there were erroneous instructions on [one] variation‖ of a ―crime
submitted to the jury‖ where ―the evidence overwhelmingly
supports a conviction under one variation‖). See also State v.
Young, 853 P.2d 327, 347 (Utah 1993) (―Even if defendant can show
that the instructions given by the trial court were in a technical
sense incorrect, he has not shown that the instructions prejudiced
him. Only harmful and prejudicial errors constitute grounds for
granting a new trial.‖); State v. Johnson, 774 P.2d 1141, 1146 (Utah
1987) (―[D]efendant does not contend that had his proposed
instruction been given, the outcome of the trial would have been
different, and indeed, nothing appears to indicate that the result
would have been otherwise had the instruction been given.‖).
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III. SUFFICIENCY OF THE EVIDENCE
¶86 Hummel also challenges the sufficiency of the evidence to
support the jury‘s verdict in this case. We assess this challenge in
light of the above understanding of the Unanimous Verdict
Clause.
¶87 Thus, we consider only whether there is credible evidence
to sustain the verdict—the determination of guilt on each of the
elements of the crime charged in each count against Hummel. We
do not require sufficient evidence on alternative theories or means
of committing each count of theft. It is enough that there is
sufficient evidence on even one theory or means of proving theft
on each count in question. In reviewing the sufficiency of
evidence, moreover, ―we ‘assume that the jury believed the
evidence‘‖ and drew reasonable inferences supporting the verdict.
State v. Boyd, 2001 UT 30, ¶16, 25 P.3d 985 (citation omitted).
¶88 We affirm under these standards. We hold that the State
presented believable evidence to support a determination of
guilt—of proof beyond a reasonable doubt on each of the
elements of theft—on each of the counts against Hummel.
¶89 Hummel challenges the strength of the prosecution‘s
evidence on the theory of theft by extortion. And he may be right
to question the strength of the prosecution‘s case on this theory.
But in Utah there is no separate crime called theft by extortion,
and Hummel was not charged with such a crime. He was charged
with theft. And the jury verdict on the counts of theft may be
sustained with evidence of alternative theories of this crime—such
as theft by deception—even if there is insufficient evidence of
theft by extortion. See supra ¶ 87.
¶90 We affirm on that basis. We conclude that there was ample
evidence that Hummel engaged in theft—that he ―obtain[ed] or
exercise[d] unauthorized control over the property of another
with a purpose to deprive him thereof.‖ Id. § 76-4-404.
Specifically, we hold that there was sufficient evidence to sustain
a determination by the jury that Hummel obtained or exercised
unauthorized control over the property of each of his clients by
acts of deception.
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Opinion of the Court
¶91 For four of the five counts against Mr. Hummel, there was
evidence that he committed theft by deception by preventing his
clients ―from acquiring information likely to affect [their]
judgment[s] in the transaction.‖ UTAH CODE § 76-6-401(5) (setting
forth means of engaging in ―deception‖). The evidence indicated
that Hummel removed four of his clients‘ applications for
appointed counsel from the clerk‘s desk before the court could
rule on them. And the jury could reasonably have concluded that
the court‘s disposition of these applications was ―information
likely to affect [their] judgment[s]‖ on the question whether to
retain him privately. It was a fair inference, in fact, that that was
Hummel‘s purpose in removing the applications. Alternative
inferences could also be drawn from the evidence. But this was a
fair one, and that is all that is necessary to sustain the jury verdict.
¶92 There was one other count on which there was no
indication that Hummel had removed his client‘s application from
the clerk‘s desk. But on this count there was evidence that
Hummel encouraged his client to file an application overstating
his annual income in order to ensure that he was denied counsel
(after telling him that he did not qualify). As with the removal of
applications, a jury could find that this prevented the client from
discovering ―information likely to affect [his] judgment.‖ UTAH
CODE § 76-6-401(5). And with this client there was also evidence
that Hummel had in fact been formally appointed as a public
defender, so the jury could have concluded that Hummel‘s
assertion that the client did not qualify for a public defender was
false and deceptive.
¶93 We accordingly find sufficient evidence to sustain guilty
verdict on all of the counts against Hummel. And we affirm on
that basis.
IV. CONSTITUTIONAL RIGHT TO DEMAND THE NATURE
AND CAUSE OF ACCUSATIONS
¶94 Hummel also challenges his convictions under article I,
section 12 of the Utah Constitution. He says the prosecution
initially alleged that Hummel talked his clients out of the public
defender arrangement after it had been finalized, but shifted gears
when it learned that no formal appointment had been made (as to
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Opinion of the Court
most of the clients at issue in this case). And he says that this
deprived him of his right to ―demand the nature and cause of the
accusations against him‖ under the Utah Constitution. UTAH
CONST. art. 1, § 12.
¶95 We reject this argument on preservation grounds. If
Hummel had a gripe with the prosecution‘s change in the theory
of its case he had an obligation to object and ask for a continuance.
See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). Yet he failed to
raise any objection or ask for a continuance. And that failure is
fatal. Id. at 1215–16 (explaining that ―the failure of a defendant to
seek a continuance negates any claim of surprise and amounts to a
waiver of any claim of variance‖).
V. ―PROSECUTORIAL MISCONDUCT‖ IN INTRODUCING
FALSE OR MISLEADING EVIDENCE AT THE PRELIMINARY
HEARING AND TRIAL
¶96 Lastly, Hummel alleges ―misconduct‖ on the part of the
prosecution, asserting that his right to due process was infringed
thereby. The alleged ―misconduct‖ falls into three categories: (a)
presentation of allegedly false hearsay statements at the
preliminary hearing; (b) presentation of misleading or false
testimony at trial; and (c) statements made in closing argument,
which in Hummel‘s view were inaccurate and aimed at
encouraging the jury to engage in speculation.
¶97 Hummel lumps these items together and labels them all
―prosecutorial misconduct.‖ In so doing, he glosses over his lack
of preservation—his failure (on most of these points) to raise an
objection at trial. And he seeks to sidestep the requirement of
proof of obvious, prejudicial error—traditional ―plain error‖—on
the arguments he failed to preserve.
¶98 Citing State v. Emmett, 839 P.2d 781 (Utah 1992), and State v.
Ross, 2007 UT 89, 174 P.3d 628, Hummel says that acts of
―prosecutorial misconduct‖ are reversible error so long as ―they
are harmful‖ (or in other words prejudicial). Appellant’s Brief at 53.
He identifies two broad categories of prosecutorial misconduct:
(a) introducing evidence a prosecutor ―knows or has reason to
know is false,‖ a category he traces to State v. Doyle, 2010 UT App
351, 245 P.3d 206; and (b) making statements in closing that ―call
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to the jurors‘ attention matters that they would not be justified in
considering in reaching a verdict,‖ a category he ties to State v.
Emmett, 839 P.2d 781 (Utah 1992). Id.
¶99 The State responds by asserting that Hummel failed to
preserve an objection to most of these acts of ―misconduct.‖ It
asks us to affirm on the basis of ―inadequate briefing‖ on
Hummel‘s part—his failure to present a more extensive argument
under the law of plain error.
¶100 The State acknowledges Hummel‘s reliance on Ross in
support of his preferred ―plain error standard for a misconduct
claim.‖ But it chides him for ―presum[ing] the State maintains the
burden of proof on appeal in that context without recognizing the
unsettle[d] state of the law on the issue.‖ To illustrate the
unsettled state of the law, the State cites State v. Clark, 2014 UT
App 56, 332 P.3d 761, and State v. Cox, 2012 UT App 234, ¶ 15 n.2,
286 P.3d 15 (Voros, J., concurring), which highlight the lack of
clarity in our law as to ―the harmlessness standard and who bears
the burden of proof for unpreserved claims of prosecutorial
misconduct in the plain error context.‖ Clark, 2014 UT App 56, ¶
31 n.7. And the State urges us to reject Hummel‘s position on
appeal ―as inadequately briefed‖ given his failure to address these
nuances. Appellee’s Brief at 63.
¶101 We recently noted the ―tension in our previous cases‖ on
the standard that applies in a case involving an unpreserved
challenge to a prosecutor‘s questions eliciting material that should
have been withheld from the jury. See State v. Bond, 2015 UT 88,
¶ 38 n.10, 361 P.3d 104. In the Bond case we considered a challenge
to a prosecutor‘s ―leading questions of a witness who claims a
privilege against self-incrimination‖—questions that had a
tendency to inculpate the defendant while depriving him of his
Confrontation Clause right of cross-examination. Id. ¶ 33. Yet we
noted that the defense had failed to object to these questions. Id.
¶ 30. ―Therefore,‖ we held that ―our disposition turn[ed] on
whether the trial court plainly erred in allowing the prosecution
to question [the witness] in this manner or whether [the
defendant‘s] lawyers rendered ineffective assistance in failing to
more for a mistrial based on the Confrontation Clause.‖ Id.
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¶102 Our Bond opinion acknowledged the above-noted line of
cases suggesting a basis for direct review of alleged prosecutorial
misconduct. See id. ¶ 38 (citing Ross, 2007 UT 89). But we also
reiterated our commitment to the law of preservation—and to the
set of well-established exceptions to the general rule requiring an
objection at trial to preserve an argument for appeal (plain error,
exceptional circumstances, and ineffective assistance of counsel).
See id. ¶ 41 n.14 (establishing that ―we have already announced
that our ‗preservation rule applies to every claim, including
constitutional questions, unless a defendant can demonstrate that
exceptional circumstances exist or plain error occurred‘‖ (citation
omitted)). And we ―h[e]ld that unpreserved federal constitutional
claims are not subject to a heightened review standard but are to
be reviewed under our plain error doctrine.‖ Id. ¶ 44.
¶103 In so holding, we emphasized that this rule ―comports with
the aims of preservation as expressed by the United States
Supreme Court and this court.‖ Id. ¶ 45. We noted, for example,
―that under plain error review, the ‗burden should not be too easy
for defendants‘ and the standard of review should ‗encourage
timely objections and reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.‘‖ Id.
(quoting United States v. Dominguez, 542 U.S. 74, 82 (2004)). ―And
because in our adversarial system the responsibility to detect
errors lies with the parties and not the court,‖ we explained that
―preservation rules encourage litigants to grant the district court
the first opportunity to rule on an issue.‖ Id.
¶104 With this in mind, we proceeded in Bond to consider
whether the trial court committed plain error ―in permitting the
prosecutor to ask [the witness] leading questions.‖ Id. ¶ 48. We
asked, in other words, not whether the prosecutor‘s questions
were improper, but whether the impropriety ―should have been
obvious to the trial court.‖ Id.
¶105 This same approach is appropriate here. On points on
which Hummel raised no objection at trial, our review is for plain
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error.31 And our plain error analysis asks not whether the
prosecutor made a misstep that could be characterized as
misconduct, but whether the trial court made an ―obvious‖ error in
its decision. See State v. Thornton, 2017 UT 9 ¶ 49, --P.3d-- (noting
that generally appellate courts ―ask only whether the trial court
committed a reversible error in resolving a question presented for
its determination‖ rather than ―review[ing] the trial record in a
search for an idealized paradigm of justice‖).
¶106 Our Ross line of ―prosecutorial misconduct‖ cases is in
some ―tension‖ with the above. See Bond, 2015 UT 88, ¶ 38 n.10. In
Ross and elsewhere we have suggested that a prosecutor’s error
may constitute a ―‗standalone basis for direct review of the actions
of prosecutors.‘‖ Id. ¶ 23 n.5 (quoting State v. Larrabee, 2013 UT 70,
¶ 65, 321 P.3d 1136 (Lee, J., dissenting)). Yet in Bond we declined
to ―endors[e]‖ that approach. Id. And we emphasized the need to
focus our analysis on district court decisions in order to preserve the
lines and policies protected by the law of preservation.
¶107 We extend Bond a step further here. We do so by
concluding that plain error review considers the plainness or
obviousness of the district court‘s error (not the prosecutor‘s).
That follows from the nature of our appellate jurisdiction:
Appellate courts review the decisions of lower courts. We do not
review the actions of counsel—at least not directly.
¶108 That is not to say that the extent of a prosecutor‘s
―misconduct‖ is irrelevant to our analysis. The propriety of a
lower court decision may turn, in part, on the egregiousness of an
attorney‘s misstep. If a prosecutor asks a question aimed at
eliciting material that is both highly prejudicial and clearly
inadmissible, that may suggest that the trial judge was plainly
wrong in not intervening to block its admission sua sponte. The
more plain or obvious the prosecutor‘s misstep, the greater the
likelihood (other things being equal) that an appellate court
would find plain error in a judge‘s failure to step in to stop it. That
31Hummel makes no exceptional circumstances argument and
does not allege ineffective assistance of counsel.
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Opinion of the Court
kind of thinking may be behind our assertion that ―prosecutorial
misconduct‖ can constitute plain error.32
¶109 It goes too far, however, to suggest that every misstep of a
prosecutor should be corrected by the trial judge—or in other
words that it is always plain error by the judge not to step in
when the prosecutor oversteps his bounds. At least occasionally,
the defense may be aware of a prosecutor‘s misstep but choose
not to highlight it through an objection. Our adversary system,
moreover, relies generally on objections from parties to police the
admissibility of evidence. We do not require or even expect our
trial judges to exercise their own independent judgment on the
question of admissibility.33
¶110 The same goes for statements in closing argument. In
closing counsel have ―considerable latitude‖ in the points they
may raise. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). And
the law recognizes the prerogative of opposing counsel to
swallow their tongue instead of making an objection that might
have the risk of highlighting problematic evidence or even just
32 See State v. Ross, 2007 UT 89, ¶ 53, 174 P.3d 628 (asking
―whether the State’s remarks during closing arguments constitute
prosecutorial misconduct‖ and ―[a]pplying our plain error
standard of review‖ (emphasis added)); id. (concluding that ―it
was not plain error for the trial court not to have intervened when
the State stretched evidence‖ (emphasis added)).
33 See State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202; Polster v. Griff’s
of Am., Inc., 520 P.2d 745, 747 (1974) (citing the general rule that
―the trial court has no duty to question each piece of evidence
offered . . . . It should not assume the role of advocate and on its
own motion, without request therefor, limit, comment upon,
qualify, or strike evidence offered by the parties. These are the
basic functions of trial counsel in our adversary system of justice
and underlie the rationale of the contemporaneous objection
rule‖).
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annoying the jury.34 With this in mind, we cannot properly
conclude that every misstep of counsel in closing amounts to plain
error—subject only to proof of prejudice. We must ask first
whether counsel‘s missteps were so egregious that it would be
plain error for the district court to decline to intervene sua sponte.
¶111 For these reasons we repudiate the statements in Ross and
related cases in which we have identified ―prosecutorial
misconduct‖ as a standalone basis for independent judicial
review. We hold instead that the law of preservation controls here
as in other circumstances. Thus, absent an objection at trial, we
review the district court‘s actions under established exceptions to
the law of preservation (here, plain error).
¶112 A contrary holding would open the door to the use of the
―prosecutorial misconduct‖ label as an end-run around the law of
preservation (and the doctrine of plain error review). Most every
problematic turn in the proceedings in a criminal trial could be
reframed as a result of a prosecutorial misstep. An erroneous jury
instruction, for example, could be blamed on the prosecutor who
was involved in drafting it. The same goes for presenting
inadmissible evidence or asking leading questions to a witness
who has invoked the Fifth Amendment (as in Bond). Appellate
review of these and other proceedings at trial must be subject to
the law of preservation. The call of ―prosecutorial misconduct‖
cannot override our usual standards of review in this area.
34 State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55, as amended
(Mar. 13, 2015) (emphasizing that defense retains the discretion
not to object to arguments made at closing unless a prosecutor‘s
argument is ―so inflammatory that ‗counsel‘s only defensible
choice was to interrupt those comments with an objection‘‖
(citation omitted)); State v. Bedell, 2014 UT 1, ¶ 25, 322 P.3d 697
(refusing to find that counsel was ineffective for failing to object to
a prosecutor‘s closing argument when not doing so was ―a
legitimate strategic decision‖).
43
STATE v. HUMMEL
Opinion of the Court
¶113 In this case, we therefore ask not whether the prosecutor
made missteps but whether the trial judge committed reversible
error. And we distinguish the grounds raised on appeal that were
preserved from those that were not, assessing the latter under
plain error review.
A. Misleading Hearsay Evidence at the Preliminary Hearing
¶114 Hummel complains that the district court admitted
misleading hearsay evidence at the preliminary hearing. The out-
of-court statements in question were from Hummel‘s clients, who
stated they believed Hummel had been appointed as a public
defender before they agreed to enter into a private retention
agreement with him. These statements came in under Utah Rule
of Evidence 1102(b)(8)(B). That rule allows hearsay in ―criminal
preliminary examinations‖ if it is ―a statement of a declarant that
is written, recorded, or transcribed verbatim which is: . . . (B)
pursuant to a notification to the declarant that a false statement
made therein is punishable.‖ Id. On appeal, Hummel argues that
these statements were ―false,‖ and that ―[t]he prosecutor could
have determined‖ their falsity ―by simply consulting the district
court‘s files.‖ Appellant’s Brief at 50. And he challenges the
admission of this evidence in the preliminary hearing on that
basis.
¶115 We affirm. Hummel failed to preserve an objection to the
admission of these statements at the preliminary hearing. He
objected only to the admission of a part of one of the statement—a
part that was unconnected to the question of whether he had been
appointed as counsel. And in his motion to quash the bindover
decision he did not assert that the admission of false statements
was a basis for overturning the bindover decision. So his
argument fails for lack of preservation—and for lack of any
argument for reversal on grounds of plain error.
B. Misleading Testimony at Trial
¶116 Hummel next complains of the admission at trial of
testimony that Hummel had been appointed to represent one of
his clients (Callies). He asserts that this testimony was
misleading—and contradicted by other evidence. And he asks for
44
Cite as: 2017 UT 19
Opinion of the Court
reversal on the basis of ―prosecutorial misconduct‖ in presenting
this testimony.
¶117 The question for our review is not whether to question the
prosecutor‘s actions. It is whether the district court erred in
admitting this evidence. And here we begin by noting a lack of
preservation. Hummel never objected to the admission of the
testimony in question. That is fatal to his argument on appeal.
Hummel cannot establish plain error. His position, as above, is to
question the evidence that was admitted by countering it with
other evidence in the record. That is insufficient.
¶118 It is not error—much less plain error—for the court to
admit evidence (without objection) that is contradicted by other
evidence in the record. Such contradictions are commonplace.
And they are a significant reason why cases go to trial. We affirm
because we cannot fault the district court for admitting evidence
that was not objected to just because other evidence in the record
seems to cut the other way.
C. Statements in Closing Argument
¶119 That leaves the question of the prosecution‘s allegedly
misleading statements in closing argument. Hummel points to
several statements the prosecutor made in closing that were
allegedly inaccurate and encouraged the jury to engage in
speculation. Again, however, there is a preservation problem. For
all but one of the statements in question, Hummel raised no
objection at trial. And none of those statements was so
egregiously false or misleading that the judge had an obligation to
intervene by raising an objection sua sponte.35
35 Such a course is often a perilous one for a trial judge. A judge
who interrupts a closing argument to question the basis for a
lawyer‘s statement risks treading on the toes of opposing
counsel—of highlighting a point that counsel may prefer to
ignore, in the hopes that it may go unnoticed or at least
minimized by the jury. So a judge who does so must be certain
that the attorney‘s statement is both highly prejudicial and
(continued…)
45
STATE v. HUMMEL
Opinion of the Court
¶120 Hummel points to one statement in closing that he objected
to at trial. But the trial judge sustained the objection. And
Hummel makes no attempt to argue that the judge‘s response to
the objection was inadequate—that a curative instruction was
required, or a mistrial. That is also fatal under the law of
preservation.36 If Hummel believed that the sustaining of his
objection was insufficient, he had a duty to ask the judge to do
more. Where the judge gave him everything he asked for
(sustaining his objection), he is in no position to ask for more on
appeal.
V. CONCLUSION
¶121 Mr. Hummel raises important, unresolved questions of
state constitutional law in this appeal. But he has failed to identify
a basis for reversal of his convictions. We affirm.
obviously beyond the bounds of the ―considerable latitude‖ of
counsel at closing to ―discuss fully from their viewpoints the
evidence and the inferences and deductions arising therefrom.‖
State v. Tillman, 750 P.2d 546, 560 (Utah 1987). We are in no
position to question the trial judge‘s decision here to sit silent in
the absence of an objection.
36 See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (―Utah courts
require specific objections in order to bring all claimed errors to
the trial court's attention to give the court an opportunity to
correct the errors if appropriate.‖ (citation omitted)); State v.
Briggs, 2006 UT App 448, ¶ 4, 147 P.3d 969 (concluding that a
defendant failed to preserve an objection because he did not
―request any specific relief‖ (citation omitted)).
46