Opinion
Case No. 20001111-CA.
Filed July 26, 2002. (Not For Official Publication)
Original Proceeding in this Court.
Robert L. Joseph, Sandy, Petitioner Pro Se.
Martha S. Stonebrook, Salt Lake City, for Respondents.
Before Judges Billings, Greenwood, and Thorne.
MEMORANDUM DECISION
Robert L. Joseph appeals from a finding of the Salt Lake City Civil Service Commission (the Commission) affirming the Salt Lake City Police Department's (the Department) conclusion that Joseph acted unprofessionally and violated the Department's deadly force policy. We affirm.
During the pendency of this appeal, Joseph filed a fourteen page motion, wherein he requested relief from the Commission's judgment. Because we conclude that the Commission did not abuse its discretion, we find Joseph's motion to be without merit.
First, absent a demonstration of plain error or exceptional circumstances, we will not review claims that an appellant failed to first raise in the trial court. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Brown, 948 P.2d 337, 343 (Utah 1997) (stating "`[i]f a party through counsel has made a conscious decision to refrain from objecting or has led the trial court into error, we will then decline to save that party from the error'" (citation omitted)). Therefore, we do not address Joseph's arguments concerning the following issues: (1) The Commission's decision to exclude evidence concerning statements made during settlement negotiations between Joseph and the Department; (2) the Commission's actions concerning Joseph's request that the Department produce a crime scene videotape; (3) the admissibility of Darin Bell's transcript testimony; (4) the Commission's decision to exclude two charts from evidence; and (5) the proportionality of Joseph's punishment.
Joseph next argues that the evidence presented was insufficient to support the Commission's findings. To successfully challenge a factual finding, an appellant must first marshal the evidence supporting the finding. See Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. Only then is he permitted to attempt to demonstrate why the finding is clearly erroneous. See id. "When an appellant fails to meet the heavy burden of marshaling the evidence, we assume that the record supports the findings of the trial court. . . ." Id. (citations and quotations omitted) (alteration in original). Here, Joseph does nothing more than reargue the evidence he relied upon before the Commission. Accordingly, because Joseph has failed to properly marshal the evidence, we conclude that the evidence was sufficient to support the Commission's findings that Joseph violated the Department's deadly force policy and that his use of deadly force was unjustified.
Joseph also argues that the Commission violated its own rules concerning burdens of proof and proceeding; however, the thrust of this argument is that the evidence was not sufficient to support the Commission's finding. Accordingly, Joseph is required to first marshal all of the evidence supporting the finding, and only then is he permitted the opportunity to demonstrate that the evidence is insufficient to support the finding. See Brewer v. Denver Rio Grande W.R.R., 2001 UT 77, ¶ 33, 31 P.3d 557. Because Joseph failed to properly marshal the evidence with respect to this claim, we assume the Commission's findings are correct.
Moreover, we review the Commission's findings only to determine whether the Commission "abused its discretion or exceeded its authority." Utah Code Ann. § 10-3-1012.5 (1999). After reviewing the record, we conclude that the Commission had ample evidence available to support its findings, including the following facts: (1) Joseph fired at least twice at the vehicle as it was moving away from him and was no longer a threat to either Joseph or any possible bystanders; and (2) Joseph could not clearly see either the car or his surroundings as he was firing his weapon.
Third, while Joseph couches his fourth argument as a challenge to the Commission's admission into evidence statements that Joseph identifies as hearsay, the actual thrust of his argument is a challenge to the credibility of the witnesses. However, the Commission, as a local administrative body, is not strictly bound by the formal rules of evidence. See Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 755 (Utah Ct.App. 1997). So long as the evidence admitted by the Commission was legally relevant and the Commission provided Joseph an opportunity to introduce evidence of his own, as well as the opportunity to cross-examine the City's witnesses and challenge their credibility, we will conclude that the Commission acted within the scope of their authority. See id. at 756. Moreover, we defer to the initial decision maker in assessments of credibility and evaluations of evidence. See Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997).
Having reviewed the record, we conclude that the Commission did not err in admitting into evidence the testimony challenged by Joseph on appeal. The testimony was clearly relevant to the Commission's determinations, and the Commission gave Joseph the opportunity to present his own counter witnesses and to cross-examine the Department's witnesses. Additionally, the record clearly shows that the Commission examined all of the evidence placed before it prior to making its determination. Therefore, we conclude that the Commission's decision was well within its discretionary bounds.
We can see nothing to suggest that Joseph objected to the testimony during the hearing. However, rather than disposing of this argument on preservation grounds, see State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346, we address it on the merits.
Finally, because Joseph's remaining issues are without merit, we do not address these claims. Rather, we explain why each issue is without merit. See State v. Carter, 776 P.2d 886, 888-89 (Utah 1989).
First, the Commission ruled in favor of Joseph and excluded the letter written by Assistant District Attorney Richard Shepard. Therefore, the letter was never introduced as evidence during the hearing. Second, the Commission enforced Joseph's subpoena, ordering the Department to comply. Third, the Commission admitted into evidence documents concerning two previous unrelated shootings, and there is nothing in the record to indicate that the Commission failed to review these documents prior to concluding that Joseph acted out of policy. Fourth, there is nothing to support Joseph's contention that the Commission denied him the opportunity to introduce evidence of the Department's bias, intent, or retaliatory motive regarding its determination that Joseph acted out of policy. Finally, the record does not support Joseph's allegation that the Commission allowed the Department to modify Chief Connole's original decision to include a finding of unprofessional conduct.
Accordingly, we affirm the Commission's decision.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Pamela T. Greenwood, Judge.