State v. Murphy

• Decision Date: 17 September 1999
• Docket Number: No. 24962.,24962.
• Citation: 988 P.2d 715,133 Idaho 489
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gordon Ray MURPHY, Defendant-Appellant.
• Court: Idaho Court of Appeals

988 P.2d 715

133 Idaho 489

STATE of Idaho, Plaintiff-Respondent, v. Gordon Ray MURPHY, Defendant-Appellant.

No. 24962.

Court of Appeals of Idaho.

September 17, 1999.

Featherston Law Firm, Sandpoint, for appellant.

Hon. Alan G. Lance, Attorney General; Rebekah A. Cude, Deputy Attorney General, Boise, for respondent.

PERRY, Chief Judge.

Gordon Ray Murphy appeals from the judgment of conviction entered by the district court upon a jury verdict of guilty for lewd and lascivious conduct with a minor child under sixteen. I.C. § 18-1508. Murphy alleges that the district court erred when it denied his motion for post-trial investigative services and that trial counsel was ineffective for not moving for such investigative services at an earlier time. Murphy also asserts that the sentence imposed by the district court was an abuse of discretion. For the reasons set forth below, we affirm.

I. BACKGROUND

Murphy was charged with lewd and lascivious conduct with a minor child under sixteen. He was found guilty by a jury. Following the verdict, Murphy moved for a judgment of acquittal pursuant to I.C.R. 29, contending that the "charge in this matter... carries with it strong prejudice in the minds of jurors" and that the evidence was insufficient to support the jury's verdict. Murphy also moved for the appointment of an investigator to aid in interviewing the jurors in support of the Rule 29 motion.

The district court heard argument on both of Murphy's motions and subsequently denied them. Murphy was sentenced to a unified nine-year term of incarceration, with three years fixed. He appeals.

II. ANALYSIS

A. Investigative Services

Murphy alleges that the district court abused its discretion when it denied his motion for post-trial investigative services. When a trial court's discretionary decision in a criminal case is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Initially, we note that the transcript from the hearing on Murphy's motion for investigative services is not contained within the record on appeal. It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 702 P.2d 910 (Ct.App.1985). In the absence of an adequate record on appeal to support the appellant's claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct.App.1991).

In his notice of appeal, Murphy failed to request a copy of the transcript from the hearing on his motion for investigative services, but rather requested a transcript of the sentencing hearings conducted on July 31, 1998, and August 10, 1998. The court minutes from July 31 indicate that sentencing, originally scheduled for that date, was continued to August 10, and Murphy's motions were argued instead. Thus, the sentencing hearing was not held on July 31 and the court reporter, understandably, did not construe Murphy's request for a sentencing transcript from that date to include a request for a transcript from the hearing on Murphy's motion for investigative services.

The record on appeal also does not contain an objection by Murphy to the reporter's transcript and clerk's record as prepared. Murphy had the affirmative duty pursuant to I.A.R. 29 to object to the record on appeal within twenty-one days if it was not to his satisfaction. He failed to do so. Moreover, the state indicated that Murphy had failed to provide the transcript from the hearing on the motion for investigative services and asserted that the record was inadequate for appellate review. The state, by its argument on appeal, put appellant's counsel on notice that the necessary transcript was in fact missing from the record. However, counsel failed to move to augment the record as provided for by I.A.R. 30. Thus, appellate counsel had a minimum of two opportunities to ensure that the record on appeal was to his satisfaction, but took advantage of neither.

Although portions of a transcript missing on appeal are presumed to support the actions of the district court, State v. Repici, 122 Idaho 538, 541, 835 P.2d 1349, 1352 (Ct.App. 1992), in the instant case, this Court need not rely on this presumption. Contained within the record on appeal are the court minutes from the hearing on Murphy's motion. Although we strongly suggest that appellate counsel not rely on the district court minutes to provide an adequate record for this Court's review, the minutes are such that meaningful review of Murphy's claim is possible. Therefore, it cannot be said that appellate counsel's failure to include the transcript from the motion hearing is fatal to Murphy's appeal.

Murphy argues that the post-trial investigative services were necessary to an adequate defense and, therefore, he was denied his right to both due process and equal protection by the district court's denial of his motion for such services. Idaho Code Section 19-852(a)(2) states, in relevant part, that an individual who is being detained under a conviction of a serious crime is entitled to be provided with the necessary services of representation, including investigation. The statute recognizes that there are cases where a criminal defendant's right to a fair trial may be jeopardized unless there is access not only to an attorney, but also to certain specialized aid in the preparation of a defense. State v. Olin, 103 Idaho 391, 394, 648 P.2d 203, 206 (1982). Included within the scope of I.C. § 19-852(a) are the Fourteenth Amendment requirements of due process and equal protection as they apply to indigent defendants. Id. However, the Constitution does not require the state to provide investigative assistance merely because a defendant requests it. In determining whether to provide additional assistance at public expense, the Idaho Supreme Court has held that such assistance is not "automatically mandatory." State v. Powers, 96 Idaho 833, 838, 537 P.2d 1369, 1374 (1975). It is incumbent upon the trial court to consider the needs of the defendant and the facts and circumstances of the case, and then decide whether an adequate defense is available to the defendant without the assistance of the requested expert or investigative aid. State v. Row, 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998). Such "a denial of a defendant's request for expert assistance or investigative assistance will not be disturbed absent a showing that the trial court abused its discretion by rendering a decision which is clearly erroneous and unsupported by the circumstances of the case." Olin, 103 Idaho at 395,648 P.2d at 207.

Murphy's request for post-trial investigative services was for the purpose of assisting him with preparation for his argument of the motion for acquittal brought pursuant to I.C.R. 29. In Murphy's I.C.R. 29 motion, he stated that he was "in the process of polling the jurors regarding the charge and deliberations." In that motion, Murphy alleged that the charge of lewd and lascivious conduct "carries with it strong prejudice in the minds of jurors" and that there was insufficient evidence to support the jury's verdict. In Murphy's motion for investigative services, Murphy sought an investigator to assist in "the polling the jurors regarding the deliberations and potential prejudice present with a charge of the nature of this matter." However, jury prejudice is not an appropriate basis of a motion for acquittal under I.C.R. 29 because upon such a motion, the trial court reviews the record to determine whether the verdict it supported by the evidence. See State v. Hoffman, 116 Idaho 480, 482, 776 P.2d 1199, 1201 (Ct.App.1989) (When the defendant moves under I.C.R. 29 for a judgment of acquittal, the trial court, viewing the evidence in the light most favorable to the state, must determine whether the inculpatory evidence presented as to any essential element of the crime is so insubstantial that jurors could not help but have a reasonable doubt.). Therefore, interviewing the jurors was not necessary when Murphy sought acquittal pursuant to I.C.R. 29 because the district court reviewed the evidence when it determined whether to grant that motion. Moreover, any potential bias the jurors may have had against Murphy should have been explored during voir dire, not after the jury returned a finding of guilt. See State v. Hartwig, 112 Idaho 370, 372, 732 P.2d 339, 341 (Ct.App. 1987) ("In selecting a jury, a defendant has the opportunity to conduct voir dire examination of the jury panel in order to develop information to help identify those potential jurors who are or may be so biased that the defendant's right to a fair trial may be abridged."). Therefore, the district court properly denied Murphy's motion for post-trial investigative services because he failed to demonstrate a legitimate basis for such services.

Additionally, the minutes from the hearing on Murphy's motion indicate that trial counsel attempted to contact the jurors both telephonically and by letter. Apparently the jurors chose not to speak with trial counsel. Thus, investigative services were not necessary because the jurors had already indicated an unwillingness to discuss the case.

Moreover, after it rendered its verdict, the jury was instructed:

The question arises as to whether you can or should talk about this case.... for your guidance, I'll advise you that whether you talk about it is up to you. You may but you are not required to....

No one should harass you. And if that should happen, you may bring that to the attention of me or to the court security

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