State v. Menzies, 880161
| Citation | 845 P.2d 220 |
| Decision Date | 11 March 1992 |
| Docket Number | No. 880161,880161 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Ralph Leroy MENZIES, Defendant and Appellant. |
| Court | Supreme Court of Utah |
R. Paul Van Dam, Charlene Barlow, Salt Lake City, for plaintiff and appellee.
Brooke C. Wells, Joan C. Watt, Richard G. Uday, Salt Lake City, for defendant and appellant.
Ralph Leroy Menzies appeals from the denial of his motion for a new trial. We affirm. The issue on appeal is whether the trial court abused its discretion in ruling that the record is sufficient for appellate review.
On March 8, 1988, after a jury trial, Menzies was convicted of first degree murder, 1 a capital offense, and aggravated kidnaping, 2 a first degree felony. He waived the right to a jury for the penalty phase of the proceedings, and the trial court sentenced him to death. On May 26, 1988, he filed a docketing statement in this court, raising twenty-nine issues on appeal. The trial transcript was certified on September 5, 1988. In preparing his brief, Menzies observed that the record contained numerous transcription errors. On November 15, 1989, prior to submitting his brief, Menzies filed a "motion to set aside judgment and/or for a new trial" on the ground that transcription errors rendered the record inadequate for appeal. The trial court referred the matter to this court, and Menzies modified his motion to include claims concerning the qualifications of the court reporter.
We remanded the case to the trial court to conduct proceedings to correct the record, pursuant to rule 11(h) of the Rules of the Utah Supreme Court. 3 We also directed the trial court to rule on Menzies' motion for a new trial and to resolve all issues relating to the qualifications of the court reporter and the adequacy of the transcript.
On remand, several hearings were held in the trial court. It was established at these hearings that the court reporter, Ms. Tauni Lee, was not licensed in the state of Utah. However, evidence was presented that Lee attended Empire Business College in Santa Rosa, California, where she completed a twenty-month course in court reporting. In 1985, Lee passed the California certified shorthand reporter examination. She tested at a speed of 200 words per minute and received an overall score of 97 percent. From August 1985 through July 1987, she worked as a certified court reporter in municipal court in Sonoma County and in municipal and superior court in Marin County. During her tenure in California, Lee completed several transcripts that were used for appeals.
In July 1987, Lee moved to Utah. She stopped paying her California dues because she believed it was no longer necessary to retain her California certification. By reason of nonpayment of dues, her California certification lapsed. Lee, thinking that a national certification was all that was needed to work in Utah, applied for certification from the National Shorthand Reporters Association ("NSRA"). On the basis of her California test scores, Lee obtained a national certification and began paying dues to the NSRA.
In January 1988, Lee was appointed court reporter in the Third Judicial District Court. The administrative office of the courts was aware that Lee was not licensed in Utah. However, on the basis of her qualifications and because she was the only applicant, the office determined that Lee could hold the position until June 1988, when the next Utah examination for certified reporters was scheduled. This determination was based on Utah Code Ann. § 78-56-17, which provides for the appointment of unlicensed court reporters on a temporary basis. 4 Lee reported Menzies' trial in February and March 1988.
In preparing the transcript of Menzies' trial, Lee used a note reader and a proofreader. The note reader would transcribe Lee's shorthand notes and mark any portions of the transcript where she had difficulty reading the notes. Lee would then proofread the portions of the transcript that were marked. The proofreader read over the rest of the transcripts, looking for misspellings and similar errors. It was established in the hearings that certified reporters use note readers in preparing transcripts, and Lee's note reader was considered "excellent." However, it was common practice for the court reporter to proofread all the work prepared by a note reader.
In November 1990, the trial court denied Menzies' motion for a new trial based on Lee's licensure status. The court ruled that Lee was "de facto" qualified because of her "training, testing, and experience." The court also ruled that for a new trial to be granted on the basis of transcription errors, Menzies must show that the errors are uncorrectable and prejudicial. After this ruling, the parties continued in their attempts to correct the record.
As part of the procedures to correct the record, Lee read from her shorthand notes while representatives of both parties read from a copy of the original transcript. Discrepancies between the original version and Lee's notes were noted on this copy of the transcript. Because the process was conducted in California, this copy of the transcript is referred to as the "California version." In addition to the proofreading of the original transcript, several motions and stipulations were filed in an attempt to correct the record. However, in many instances, the parties were unable to agree on what had occurred at trial, and therefore, the record could not be corrected through the procedures of rule 11(h).
Proceedings were also conducted to determine if the errors that existed in the record warrant a new trial. It was established that the trial judge, a member of the prosecutor's staff, and two lawyers representing Menzies had read the transcript from cover to cover. After this extensive review, the trial court concluded that none of the transcription errors were prejudicial. On February 20, 1991, the trial court issued its final ruling, denying Menzies' motion for a new trial on the ground that "the transcript is sufficiently accurate to afford defendant a full and fair review of his issues on appeal." The court also designated the California version of the transcript, as well as the original version of the transcript, as part of the record on appeal.
In the instant appeal, we review only issues concerning the adequacy of the transcript. We do not reach the merits of the conviction and sentence.
The decision to grant a new trial pursuant to Utah Rule of Criminal Procedure 24 is a matter within the discretion of the trial court. Accordingly, we will not reverse a ruling denying a new trial "absent a clear abuse of that discretion." 5 Generally, we will not find abuse of discretion unless, given the applicable facts and law, the trial court's decision is unreasonable. 6 Indeed, granting the trial court deference is appropriate. The judge who presided over the trial is in a far better position to determine whether the record adequately reflects the proceedings.
We also note that in appeals from trials where a sentence of death is imposed, the scope of appellate review is expanded. "This Court will review errors raised and briefed on appeal in death penalty cases, even though no proper objection was made at trial, but will reverse a conviction based upon such errors only if they meet the manifest and prejudicial error standard." 7 In addition, we have the prerogative to notice plain errors that are apparent on the face of the record even if the appellant does not complain of the error on appeal. 8 To be considered plain or manifest error, an error must be both harmful and obvious. 9
At the trial level, Menzies argued that because Lee was not licensed in Utah, the transcript she prepared could not be used on appeal. The trial court rejected this argument, ruling that Lee's licensure status did not affect the validity of the transcript because Lee was "de facto" qualified. On appeal, Menzies claims that this ruling constitutes abuse of discretion.
Menzies' argument is based on Utah Code Ann. § 78-56-15, 10 which provides that "no person may be appointed to the position of shorthand reporter nor act in that capacity ... unless he has received a certificate from the Division of Occupational and Professional Licensing," and on Utah Code Ann. § 76-3-206(2) and Utah Rule of Criminal Procedure 26(10), which provide for mandatory review of the "entire record" in every case in which a sentence of death is imposed. Menzies asserts that these statutes and rule 26(10) implicitly provide that only a transcript prepared by a certified reporter may be used to review a capital case. In the alternative, he argues that even if the transcript can be used, the presumption that the record is correct, provided in Utah Code Ann. § 78-56-6, should not apply to a transcript that was not prepared by a certified reporter. 11
However, section 78-56-15, section 76-3-206(2), and rule 26(10) neither prohibit the use of transcripts prepared by an uncertified reporter nor revoke the presumption of correctness for transcripts prepared by uncertified reporters. Furthermore, although section 78-56-15 requires a Utah license for the position of court reporter, section 78-56-17 provides for unlicensed court reporters under certain conditions. 12 The rules of statutory construction require that these sections be read together, harmonizing their provisions so that neither section negates a part of the other. 13 Given this rule of construction, section 78-56-15 cannot be read as a total prohibition against the use of transcripts prepared by uncertified reporters. Nor can this section be read as providing that transcripts prepared by uncertified reporters are not entitled to the presumption of correctness. Therefore, Menzies' statutory argument is not compelling.
In any event, the trial court's ruling was not based on statutory construction, but on the finding...
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...discretion and grant the trial court deference in determining “whether the record adequately reflects the proceedings.” State v. Menzies, 845 P.2d 220, 224 (Utah 1992). ¶ 17 Finally, King argues that the cumulative prejudicial effect of prosecutorial misconduct and evidentiary errors at tri......
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