State v. Sage

ENTRY_ORDER.92-204; 161 Vt. 633; 641 A.2d 115

[Filed 23-Mar-1994]

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 92-204

                             MARCH TERM, 1994


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
Bernard Sage                      }
                                  }          DOCKET NO. 4499-9-90Cncr


             In the above entitled cause the Clerk will enter:

     Defendant, Bernard Sage, who was convicted of failing to file tax
returns and of operating a restaurant without a rooms and meals license,
moves for summary reversal of his conviction because the stenographic notes
for one day of the three-day trial are missing and thus no transcript of
that day can be produced.  We deny appellant's motion, and remand for
further action in the district court.

     We first note that the record available to us does not support
defendant's claim that the transcript was "duly ordered."  While there is
some indication that defendant attempted to order transcripts shortly after
the trial in the fall of 1991, this Court has no record of a transcript
order before May 1992, when defendant was directed to file a docketing
statement and transcript order.  Apparently, defendant failed to pay the
required deposit, however, and another entry order requiring a proper
transcript order and deposit was issued in October 1992.  Eventually, the
public defender entered an appearance for defendant, who was represented by
private counsel at trial, and a transcript order was filed in February 1993.
Thus, while it is not clear that the notes would have been available
assuming defendant had properly ordered the necessary transcripts, it
appears that defendant is not blameless regarding the year-long delay in
completing the record.

     Even if we were to assume that the notes would not have been available
had defendant ordered the transcript in a timely manner, however, neither
due process nor equal protection requires reversal and a new trial in every
case in which the transcript is lost.  See United States v. Malady, 960 F.2d 57, 59 (8th Cir. 1992) (lack of complete transcript does not necessarily
require reversal); Bransford v. Brown, 806 F.2d 83, 85-86 (6th Cir. 1986)
(citing other courts for proposition that failure to produce transcript is
not per se constitutional violation, and holding that where appellate
attorney had opportunity to communicate with trial counsel, absence of jury



instruction transcripts was not per se denial of due process right to fair
trial), cert. denied, 481 U.S. 1056 (1987); State v. Hart, 514 P.2d 1243, 1245 (Ariz. 1973) (United States Supreme Court does not mandate reversal
every time transcript is lost through no fault of defendant).  Defendant's
reliance on State v. Kozikowski, 135 Vt. 93, 94, 369 A.2d 1369, 1370 (1977)
(per curiam) is unavailing.  Kozikowski is based on the United States
Supreme Court's holding that the federal constitution requires states to
make transcripts available to indigent defendants as well as to those who
can afford them.  135 Vt. at 94, 369 A.2d  at 1370; see Griffin v. Illinois,
351 U.S. 12, 19 (1956).  The Supreme Court, however, has refused to extend
the Griffin holding to cases in which the transcript is unavailable.  See
Bransford, 806 F.2d  at 85 (citing Norell v. Illinois, 373 U.S. 420 (1963)).

     As we recently stated in State v. Lemire, No. 88-031 (Vt. February 15,
1994) (mem.), because a defendant's right to a transcript stems from the
right to a fair trial, the defendant must show prejudice resulting from the
missing transcripts.  Further, such a showing cannot be made merely by
speculating that the missing transcript might have uncovered unspecified
errors.  Bransford, 806 F.2d  at 86; see State v. Moquin, 135 Vt. 94, 96,
369 A.2d 1371, 1372-73 (1977) (per curiam) ("The function of appellate or
post conviction review is not one of searching a record to find grounds to
argue to this Court.  It is to review the proceedings in the light of claims
of error made at the trial in some form.").  The requirement that defendant
show prejudice is consistent with our earlier rulings regarding missing or
inadequate transcripts.  See In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078,
1081 (1988) (appellant failed to show that loss of transcript "clearly
prejudiced him"); State v. Harvey, 135 Vt. 549, 550, 382 A.2d 210, 210
(1977) (transcript in murder case "so fraught with error that a just review
of the questions raised on appeal is impossible"); Wemyss v. Viens, 125 Vt.
81, 82, 211 A.2d 238, 239 (1965) (per curiam) (since lack of transcript
prevents just review of issues raised on appeal, new trial granted).

     Here, defendant's post-trial motions and his docketing statement
suggest that the only issue on appeal is whether the verdict is supported by
the evidence.  Apparently, the transcribed portions of the trial include
the majority of the State's case against defendant.  Our standard of review
on appeal regarding sufficiency of the evidence is whether the evidence,
when viewed in a light most favorable to the State and excluding any
modifying evidence, is sufficient to fairly and reasonably support a finding
of guilt beyond a reasonable doubt.  State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991).  Given this standard, it is not clear how the
missing transcript in this case prejudices defendant.  Other than stating
the general claim that an adequate review of the case is impossible without
the entire transcript, defendant makes no attempt to show prejudice.
Accordingly, his motion must be denied at this juncture.

     Although defendant's appellate counsel made some initial informal steps
to reconstruct the record by speaking to defendant's trial counsel, he made
no attempt to submit notes provided by the prosecuting attorney to the
judge who presided over the trial to determine whether a statement recon-
structing the missing day's testimony could be worked out.  See V.R.A.P.
10(c); see also State v. Jefferson, 460 P.2d 610, 613 (Kan. 1969) (constru-



ing rule virtually identical to V.R.A.P. 10(c), court held that "[t]he
burden is on the appealing party to initiate the necessary proceedings to
reconstruct a secondary record").  Therefore, defendant must still attempt
to reconstruct the record according to the procedure set forth in V.R.A.P.
10(c), preferably before the trial court judge that presided over his trial.
See Felton v. State, 523 So. 2d 775, 776 (Fla. Dist. Ct. App. 1988) (despite
lack of success of informal efforts to reconstruct record, court remanded
matter to trial court to formally undertake effort at reconstruction).

     On remand, the district court must first consider whether defendant
properly ordered the transcript and, if not, whether the missing notes would
have been available had he done so.  If the court determines that defendant
did not properly order the transcript, and that the missing notes would
have been available had they been properly ordered, the record will be
deemed complete.  Cf. In re S.B.L., 150 Vt. at 297-98, 553 A.2d  at 1081
(appellant not in position to claim missing portion of transcript prejudiced
him where he failed to order parts of transcript that were available).  If
the court determines that the transcript would not have been available even
if the transcript had been properly ordered, it must then determine whether
it is possible to reconstruct the record based on the notes and memories of
the judge, attorneys and witnesses.  If the record can be reconstructed, the
record will be deemed complete.  On the other hand, if the court concludes
that reconstruction of the record is impossible, it must make findings
regarding whether defendant has shown specific prejudice resulting from the
missing portion of the transcript.  If no prejudice is shown, the record
will be deemed complete.  If prejudice is shown, a new trial will be
granted.  This Court shall retain jurisdiction, and the trial court shall
report its findings within ninety days of this entry order.

     The motion for summary reversal is denied.  The matter is remanded for
further proceedings in accordance with this order.




                                   BY THE COURT:


                                   _______________________________________
                                   Frederic W. Allen, Chief Justice

                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   _______________________________________
                                   James L. Morse, Associate Justice
[ ]  Publish
                                   _______________________________________
[ ]  Do Not Publish                Denise R. Johnson, Associate Justice