Jones v. District Court In and For Second Judicial Dist.

• Decision Date: 02 October 1989
• Docket Number: No. 89SA94,89SA94
• Citation: 780 P.2d 526
• Parties: Stephen C. JONES, Petitioner, v. The DISTRICT COURT In and For the SECOND JUDICIAL DISTRICT, State of Colorado, and the Honorable Lynne M. Hufnagel, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 526

780 P.2d 526

Stephen C. JONES, Petitioner, v. The DISTRICT COURT In and For the SECOND JUDICIAL DISTRICT,

State of Colorado, and the Honorable Lynne M.

Hufnagel, one of the judges thereof, Respondents.

No. 89SA94.

Supreme Court of Colorado,

En Banc.

Oct. 2, 1989.

David F. Vela, State Public Defender, and Terri L. Brake, Chief Deputy Public Defender, Denver, for petitioner.

Norman S. Early, Jr., Dist. Atty., and Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for respondents.

Justice ERICKSON delivered the Opinion of the Court.

This is an original proceeding seeking relief in the nature of mandamus or prohibition under C.A.R. 21. The petitioner, Stephen C. Jones, is charged with second-degree burglary in a criminal case pending in the respondent district court (district court). Before trial, petitioner filed a motion seeking to have the respondent trial judge (respondent): (1) direct the court reporter to record all trial proceedings, and, in particular, all bench conferences; and (2) permit the parties to make a contemporaneous record of objections and the grounds for the objections. Respondent granted the motion in part, and denied it in part. We issued a rule to show cause and now make the rule absolute.

I.

Prior to petitioner's trial, his appointed counsel, an attorney from the State Public Defender's Office, filed a motion styled, "Motion for Recorded Bench Conferences and Contemporaneous Record," to obtain "an order requiring the contemporaneous recording of all trial proceedings, including all bench conferences, conferences in chambers, and other hearings outside the jury's presence; and for an order requiring that counsel be allowed to contemporaneously make objections, to state grounds for objections, and to propose proper sanctions for violations,...."

The respondent heard arguments and issued rulings, granting the motion in part, and denying it in part. ¹ Pertinent parts of the transcripts from two hearings conducted on this motion are included as part of this opinion. See Appendix. The gravamen of petitioner's complaint is that he has a right to have the contents of substantive bench conferences recorded contemporaneously by the court reporter. The respondent does not dispute that the parties have a right to make objections, and to state the grounds for those objections. However, the proximity of the jury box to the bench makes it probable that, unless the jury was removed from the courtroom, the jury would overhear conferences held directly in front of the bench. The same objection does not apply to a "side-bar" conference, at the side of the bench, but such a conference would require the court reporter to move to the side of the bench with the attorneys and judge. Therefore, the respondent ruled that she had the discretion to conduct conferences in open court with the parties off the record, subject to the making of a record at some more convenient time in the future. For reasons set forth in this opinion, we conclude that, absent the consent of the parties, Colorado law requires that trial proceedings be recorded contemporaneously by the court reporter.

II.

As a threshold matter, we must decide whether review of the respondent's denial of the motion to record bench conferences and make a contemporaneous record is appropriate for an original proceeding. Section 3 of article VI of the Colorado However, we have not hesitated to exercise original jurisdiction where an otherwise interlocutory ruling may have a significant impact on a party's ability to litigate the merits of a controversy. Id.; Sanchez v. District Court, 624 P.2d 1314, 1316 (Colo.1981). Original proceedings were appropriate when a trial judge proceeded in clear violation of a rule of civil procedure. Varner, 618 P.2d at 1390. However, of more significance here, the failure to contemporaneously record trial proceedings may also interfere with our appellate jurisdiction. Accordingly, we conclude that exercise of our original jurisdiction is appropriate.

Constitution gives us the authority to hear and determine the merits of original proceedings, ² but the exercise of original jurisdiction is discretionary. McConnell v. District Court, 680 P.2d 528, 530 (Colo.1984). An original proceeding may not be used as a substitute for an appeal. Varner v. District Court, 618 P.2d 1388, 1390 (Colo.1980).

III.

District courts in Colorado are courts of record. Colo. Const. art. VI, § 9; § 13-1-111(1)(b), 6A C.R.S. (1987). In Herren v. People, 147 Colo. 442, 363 P.2d 1044 (1961), we reversed the conviction of the defendant in a county court ³ because no record had been made of the proceedings. We rejected the prosecution's argument that the defendant had waived the presence of a court reporter because he had not requested one:

It has been said that the reason for the creation of courts of record is founded on the proposition that judicial records are not only necessary but indispensable to the administration of justice. The court hears arguments and decides upon its records; it acts by its records; its openings, sessions and adjournments can be proved only by its records; its judgments can be evidenced only by its records. The acts of a court of record are known by its records alone and cannot be established by parol testimony. The court speaks only through its records, and the judge speaks only through the court.

The statutes on criminal procedure in the county court provide such proceedings to be the same as in the district court. Decisions of this court point up the necessity of a reporter's transcript where this court is required to review the propriety of judgments of a trial court. It is, therefore, apparent that a reporter plays a vital role in criminal trials.

Id. at 445, 363 P.2d at 1046 (emphasis added). The duties of the court reporter for a district court are set out in section 13-5-127, 6A C.R.S. (1987), which provides, in pertinent part:

Duties of reporters. The shorthand reporter, on the direction of the court, shall take down in shorthand all the testimony, rulings of the court, exceptions taken, oral instructions given, and other proceedings had during the course of the trial of any cause, and in such causes as the court may designate.

(Emphasis added.) In addition, C.R.C.P. 80(a) ⁴ provides, in relevant part:

Reporter. Unless the parties stipulate to the contrary, a district court or superior court shall, and any other court (Emphasis added.) These statutes, and court rules, create an affirmative duty on the part of the trial judge and court reporter to ensure that all the proceedings of a trial are recorded, unless the parties otherwise consent. ⁵ In Keady v. Owers, 30 Colo. 1, 69 P. 509 (1902), we held that a court reporter had a sworn duty to provide a transcript of the record to a party requesting it, and stated that "[t]he order of the judge of the court not to furnish it is no excuse or justification whatever." Id. at 7, 69 P. at 511. We also said:

or referee or master in its discretion may, direct that evidence be taken stenographically and appoint a reporter for that purpose.

One of the duties of the stenographer when directed by the court, is to take down the proceedings occurring at a trial, and his compensation therefor is paid by the county. Indeed the chief object of having this done is not for the benefit of the trial court, but that, in case of a review of the judgment, a full and complete record of the proceedings may be written out to be laid before the appellate tribunal.

Id. at 6, 69 P. at 511 (emphasis added). We agree with the reasoning of the Tennessee Court of Criminal Appeals, where it held that the Tennessee court reporter statute, which is similar to section 13-5-127, ⁶ was violated when the trial judge held off-the-record bench conferences. State v. Hammons, 737 S.W.2d 549 (Tenn.Crim.App.1987). The Tennessee court stated:

The holding of off-the-record bench conferences impairs the ability of this Court to afford the parties a full and complete review of the issues. Such conferences create a void in the record, and prevent this Court from determining why the trial court may have ruled in a certain manner. For this reason trial judges should not conduct off-the-record bench conferences.

Id. at 551. Recording of all trial proceedings necessarily implies that the recording be done contemporaneously, otherwise some proceedings are left unrecorded. We do not agree with the respondent that a reconstruction of the record at a later time is an adequate substitute for a contemporaneous record. As the petitioner points out, human memory is fallible, especially under the stress of trial, and it will sometimes be impossible to adequately recreate, to the satisfaction of all the parties involved, what exactly occurred at some earlier time. This is the reason for the creation of the position of court reporter in the first place, and the corresponding decline in the importance of bills of exception. See Keady v. Owers, 30 Colo. at 6, 69 P. at 511; see generally Louisell & Pirsig, The Significance of Verbatim Recording of Proceedings in American Adjudication, 38 Minn.L.Rev. 29 (1953).

Furthermore, Crim.P. 51 provides:

For all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the court ruling or order is made or sought, makes known to the court the action which he desires the court to take or his objection to the court's action and the grounds therefor. But if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

(Emphasis added.) Thus, it is the grounds that a party states at the time the objection is made that are controlling as to whether error is preserved. Without the aid of a contemporaneous record of the trial proceedings, disputes as to the specific grounds asserted for error can easily arise.

We hold that under Colorado statutory law and rules...