State v. Menzies

Citation889 P.2d 393
Decision Date29 March 1994
Docket NumberNo. 880161,880161
PartiesSTATE of Utah, Plaintiff and Appellee, v. Ralph LeRoy MENZIES, Defendant and Appellant.
CourtSupreme Court of Utah

R. Paul Van Dam, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Brooke C. Wells, Joan C. Watt, Richard G. Uday, Salt Lake City, for defendant and appellant.

ZIMMERMAN, Chief Justice:

Ralph LeRoy Menzies appeals his 1988 jury conviction for capital murder and the trial court's subsequent imposition of the death penalty. Menzies raises numerous claims of error in the guilt and penalty phases of his trial, including (i) failure to remove five jurors for cause; (ii) failure to grant a mistrial following "surprise" testimony; (iii) admission of preliminary hearing testimony of a jailhouse informant; (iv) consideration of a heinousness aggravating circumstance during the penalty phase; (v) admission of victim impact evidence during the penalty phase; and (vi) use of the incorrect standard in sentencing Menzies to death. We affirm the conviction and sentence.

As background, we recite those facts that are largely undisputed. At approximately 9:50 p.m. on Sunday, February 23, 1986, Salt Lake County Sheriff's deputies were dispatched to the Gas-A-Mat station located at 3995 West 4700 South. The deputies found customers waiting to pay, but the cashier's booth empty and the door locked. The station attendant, Maurine Hunsaker, was missing, although her coat was still in the booth and a radio was playing. A preliminary accounting indicated that approximately $70 in cash was missing from the register. 1

At approximately 11:05 that same night, Maurine telephoned her husband, Jim, at their home. Deputy Scott Gamble was with Jim at the time. Maurine told her husband that she had been robbed and kidnapped, but that her abductor(s) intended to release her sometime that night. Deputy Gamble also spoke with Maurine, and she again indicated that a robbery had occurred. However, Deputy Gamble was unable to get a clear answer regarding the kidnapping. Maurine also refused, or was unable, to answer Gamble's question regarding her location. When Jim again spoke with his wife, she asked him what she should do. The line then went dead.

At approximately 5 p.m. on Tuesday, February 25, 1986, a hiker discovered Maurine Hunsaker's body at the Storm Mountain picnic area in Big Cottonwood Canyon. She had been strangled and her throat cut. Her purse, which had not been found at the gas station, was not with the body or in the immediate area. That same evening, a jailer at the Salt Lake County Jail found several identification cards belonging to Maurine Hunsaker in a desk drawer in one of the jail's changing rooms. He recognized the picture on the driver's license as a woman reported missing the night before on television news.

Detectives later determined how the cards got into the drawer. Menzies had been booked into the jail on unrelated charges at approximately 6:40 p.m. on Monday, February 24, 1986. He left the booking area for a short time without supervision and was found in a changing room. Shortly thereafter, Maurine Hunsaker's identification cards were found in a clothing hamper in that room. Unaware of the kidnapping, the officer who found the cards placed them in the desk drawer where the jailer found them Tuesday night.

Also on Tuesday evening, a high school student named Tim Larrabee was watching the news and learned that a hiker had discovered a woman's body at Storm Mountain. On Wednesday, Larrabee notified deputies that he and his girlfriend, Beth Brown, had skipped school on Monday, February 24th, and were at Storm Mountain. Larrabee had noticed a full-sized, two-door, late-1960s model, cream-colored automobile in the parking lot. He said that the vehicle was similar in appearance to a 1968 Buick Riviera. Larrabee and Brown also saw a man and woman at the site but saw nothing unusual happening between the two. They later heard a short scream, but Larrabee thought that the woman had slipped or had been frightened by an animal. Approximately fifteen minutes later, Larrabee saw the man walking alone. Neither Larrabee nor Brown saw the woman again.

Larrabee described the suspect as a white male, 25-30 years of age, 6'1"' tall, with a medium build (approximately 170 pounds), black, curly hair, prominent sideburns and a mustache, and wearing wire-rimmed glasses. A detective created a composite drawing of a possible suspect based on this description. After learning that Maurine's identification cards had been found at the jail, sheriff's detectives compared the composite drawing with the photographs of more than two hundred inmates who had been booked into the facility from February 23rd through the 25th. Three photographs were chosen as possible matches, including that of defendant Menzies.

Detective Jerry Thompson questioned Menzies regarding the Hunsaker homicide. Menzies said that on Sunday, February 23rd, he borrowed a car from Troy Denter and picked up a young woman on State Street that evening. He told the detective that while with this woman, he picked up his girlfriend, Nicole Arnold, and drove around until the two women began to argue. Menzies reportedly dropped off Nicole and then left the unidentified woman somewhere around 7200 West and 2400 South. According to Menzies, he then went home, where he talked with Nicole.

On February 28th, detectives questioned Denter. He told them he loaned his cream-colored 1974 Chevrolet to Menzies on Sunday, February 23rd, sometime in the afternoon. He said that Menzies did not return the car until the afternoon of Monday, February 24th. Detectives then took Larrabee and Brown to the jail parking lot, where they identified Denter's car as the one they saw at Storm Mountain. They were also shown a photospread consisting of six photographs. Larrabee indicated that Menzies appeared to be the man he saw at Storm Mountain. Several months later, however, Larrabee did not correctly identify Menzies in a lineup.

Detectives found Maurine Hunsaker's fingerprint in Denter's car and located her purse in Menzies' apartment. Menzies was charged with first degree murder, a capital offense. See Utah Code Ann. § 76-5-202. 2 After the charges were filed, Walter Britton, Menzies' cell mate, contacted detectives about the homicide. Britton said that on February 27th, Menzies told him that he killed Hunsaker to prevent her from testifying against him.

Following a month-long trial, a jury convicted Menzies of capital homicide and aggravated kidnapping. After Menzies waived the jury in the penalty phase, the trial judge sentenced him to death. Menzies then moved for a new trial, arguing that errors in recording and transcribing made the record inadequate for purposes of appellate review. The trial court denied the motion, and this court affirmed, ordering Menzies to proceed with the appeal on the merits. State v. Menzies, 845 P.2d 220 (Utah 1992). We now address Menzies' contentions.

Menzies' first issue on appeal deals with the jury selection process. He claims that the trial court should have removed four jurors for cause because of their attitudes regarding the death penalty and a fifth because that juror was unable to be impartial during the guilt phase of the trial. Menzies removed all five by peremptory challenge. He now asserts that the trial court committed reversible error by forcing defense counsel to use a peremptory strike to remove potential jurors when the trial court should have removed those jurors for cause. Menzies makes no attempt to demonstrate that the forced use of any of these peremptory challenges was harmful. Instead, he relies on the automatic reversal rule of Crawford v. Manning, 542 P.2d 1091 (Utah 1975), and its progeny. Under these cases, reversal is required whenever a party is compelled "to exercise a peremptory challenge to remove a panel member who should have been stricken for cause." State v. Bishop, 753 P.2d 439, 451 (Utah 1988); see also Crawford, 542 P.2d at 1093.

The State, on the other hand, asks us to overturn the Crawford line of cases and follow the approach utilized by a majority of the states and upheld by the federal courts. Those following the majority approach "reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the [Constitution] was violated." Id. (citing Hopt v. Utah, 120 U.S. 430, 436, 7 S.Ct. 614, 616, 30 L.Ed. 708 (1887)). To prevail on a claim of error based on the failure to remove a juror for cause, a defendant must demonstrate prejudice, viz., show that a member of the jury was partial or incompetent. See id., 487 U.S. at 89, 108 S.Ct. at 2278. We agree with the State and overrule Crawford and its progeny.

We note at the outset that Crawford 's per se rule is a relatively recent development in Utah law. Utah case law dating back to territorial times did not presume prejudice when a trial court erroneously failed to remove a prospective juror for cause and forced a party to use a peremptory challenge. For example, in People v. Hopt, 4 Utah 247, 9 P. 407 (1886), aff'd, 120 U.S. 430, 442, 7 S.Ct. 614, 620, 30 L.Ed. 708 (1887), an early death penalty case, the defendant complained that he was prejudiced because the court had failed to excuse three jurors for cause. The defendant did not exhaust all of his peremptory challenges, and one of the three challenged jurors sat on the jury. On appeal, this court held:

[A] perfect answer to the point raised is that of the three jurors challenged two were not sworn. One was challenged peremptorily by the defendant, and one by the people. Whether,...

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