State v. Menzies

STEWART, Associate Chief Justice,

concurring in part and dissenting in part:

I concur in that part of the majority opinion that overturns the rule requiring reversal when a party has been compelled to exercise a peremptory challenge to remove a juror who should have been removed for cause. I emphasize, however, that if a trial judge errs in not striking a juror on a for-cause challenge and a defendant then expends a peremptory challenge to remove that juror, reversal may still be required if the defendant can demonstrate actual prejudice in having-lost the peremptory challenge. Concededly, it will be much more difficult to establish reversible error under this rule, but the cost of reversing a conviction for an error of the trial judge that is corrected by a peremptory challenge with no demonstrable prejudice to the defendant is too great, if not irrational.

I dissent from the result and note that this case has been mishandled from the beginning. First, the transcript of the trial and penalty phase contains a multitude of errors, and portions of that transcript may be missing. This caused Menzies to challenge the sufficiency of the record for appellate review. State v. Menzies, 845 P.2d 220, 224 (Utah 1992). The Court, however, rejected Menzies’ assertion that the record was unreliable and held that the errors in the transcript were not prejudicial, although accuracy of the transcript was at best problematic. Id. I thought then that the case should have been retried, and I dissented from the Court’s opinion.

Defendant now asserts forty-four claims of error on appeal. The majority decides to address only six and summarily dismisses the remaining thirty-eight on the unexamined, conclusory assertion that they are all without merit. Although some of the issues lack sufficient merit to require discussion, some of them raise substantial claims that should be addressed. For example, the trial court’s instruction on the State’s burden of proof was undeniably in error. It violated the clear ruling of this Court in State v. Johnson, 774 P.2d 1141, 1147-48 (Utah 1989) (Stewart, J., concurring in the result, joined by Durham and Zimmerman, JJ.). See State v. Ireland, 773 P.2d 1375, 1380 (Utah 1989); Cage v. Louisiana, 498 U.S. 39, 41 , 111 S.Ct. 328, 329 , 112 L.Ed.2d 339 (1990) (per curiam) (United States Supreme Court adopted similar- position and held that erroneous reason *408 able doubt instruction in that case required reversal of conviction).

The majority now addresses the issue in a footnote. It erroneously concludes that the correct rule with respect to a reasonable doubt instruction is not entitled to retroactive application. Contrary to the majority opinion, it is well-established law that a judicial opinion changing a rule of criminal law is automatically applied retroactively to criminal cases pending on direct appeal. State v. Norton, 675 P.2d 577, 583 (Utah 1983), overruled on other grounds, State v. Hansen, 734 P.2d 421 (Utah 1986); State v. Belgard, 615 P.2d 1274, 1275 (Utah 1980). The majority asserts that our rulings on the reasonable doubt instruction in Ireland and Johnson should not be applied retroactively to this ease because “ ‘the automatic rule of retroac-tivity as to nonfinal judgments only applies to significant changes of rules that are not expressly declared to be prospective in operation.’ ” Norton, 675 P.2d at 584 . The majority asserts that a proper reasonable doubt instruction is a significant change that represents a “clear break with the past.” Id. at 583 . That assertion is incorrect. A proper reasonable doubt instruction has always meant “beyond” a reasonable doubt and has meant that for a very long time.

Furthermore, neither Ireland nor Johnson “expressly declared” that they are to be applied prospectively only. The majority states that Ireland indicated an intent by the Court that the change in the reasonable doubt instruction was only to be applied prospectively. The language in Ireland that the majority refers to, however, was not in any way related to prospective or retroactive application of the decision. The Court stated that it had “concerns” with the potential effects of the instruction and that the instruction should no longer be given. As stated by the majority, a decision is automatically applied retroactively to nonfinal judgments unless we expressly declare otherwise. The language in Ireland cited by the majority does not even cite to Norton or any of our other cases on retroactivity. See, e.g., Belgard, 615 P.2d at 1275 . That language hardly qualifies as an “express declaration” of prospective application. Neither does Johnson expressly de-dare that the new rule has only prospective application.

Next, I submit that it was error for the trial court to admit defendant’s prison record in bulk. Due process requires that evidence submitted in the penalty phase of a capital homicide case have some degree of relevance and reliability. State v. Brown, 607 P.2d 261, 270 (Utah 1980) (opinion of Wilkins, J., with Maughan, J., concurring in this part of the opinion, and Stewart, J., concurring in the judgment); see also State v. Johnson, 856 P.2d 1064, 1071 (Utah 1993). The trial court did not evaluate either the reliability or the relevance of any of the evidence contained in the file. Although the trial judge, not a jury, imposed the death penalty, there is no way of knowing what impact, if any, the documents in that file may have had. Truth be told, judges may also be influenced by improper evidence, and at least in a death case where findings are riot required, the state ought not submit, and the judge ought not admit, a whole raft of evidence, all or part of which should not be admitted.

Undoubtedly, there are also other issues that should be addressed. Nowhere is the integrity of the law more important than when a person’s life is at stake. To preserve that integrity, we have gone the extra mile in death cases and addressed and decided issues even though no proper objection was made at trial when an error was manifest and prejudicial. State v. Wood, 648 P.2d 71, 77 (Utah 1982). Now, however, the Court summarily disposes of over thirty allegations of error with the summary statement that they are “without merit.”

HALL, J., does not participate herein; BENCH, Court of Appeals Judge, sat.