377 N.W.2d 635 (Wis.App. 1985), 84-1949-CR, State v. DeLeon

Docket Nº:84-1949-CR.
Citation:377 N.W.2d 635, 127 Wis.2d 74
Opinion Judge:The opinion of the court was delivered by: Brown
Party Name:STATE of Wisconsin, Plaintiff-Respondent, v. Raul DeLEON, Defendant-Appellant.
Attorney:For the defendant-appellant, the cause was submitted on the brief of Domingo S. Cruz, attorney at law, of Racine.
Case Date:October 23, 1985
Court:Court of Appeals of Wisconsin

Page 635

377 N.W.2d 635 (Wis.App. 1985)

127 Wis.2d 74

STATE of Wisconsin, Plaintiff-Respondent,


Raul DeLEON, Defendant-Appellant.

No. 84-1949-CR.

Court of Appeals of Wisconsin.

October 23, 1985

Submitted on Briefs Sept. 10, 1985.

Opinion Released Oct. 23, 1985.

Page 636

[127 Wis.2d 76] Domingo S. Cruz, Racine, for defendant-appellant.

Bronson C. LaFollette, Atty. Gen., and Mary Batt, Asst. Atty. Gen., for plaintiff-respondent.


BROWN, Presiding Judge.

The appeal in this case provides this court with an opportunity to clarify the procedure used when it is discovered that a court reporter's notes are lost while post-trial proceedings are pending. 1

The defendant, Raul DeLeon, seeks a reversal of his conviction for first-degree sexual assault because a portion of the court reporter's notes was lost, creating an omission in the trial court transcript. We hold that the fifteen minutes of lost testimony did not constitute a prejudicial omission in the transcript justifying reversal. We affirm.

DeLeon was charged with first-degree sexual assault, contrary to sec. 940.225(1)(d), Stats. A trial to the court was held, and DeLeon was found guilty of the charge. Subsequent to conviction and sentencing, it was discovered that the court reporter had lost a portion of her notes

Page 637

comprising approximately fifteen minutes of testimony.

DeLeon, who had obtained new counsel to represent him during the post-conviction stage, first moved to correct the record. In response to this motion, the trial court ordered a briefing schedule "on the issue of whether a new trial is required in light of the lost notes of the court reporter." Ultimately, the trial court denied the motion for a new trial, holding that the appropriate remedy was to recall the witnesses whose testimony was lost and attempt to reconstruct their testimony at the hearing. The [127 Wis.2d 77] hearing was held on two separate dates. Three witnesses were again examined; also examined were the defense counsel at trial and the assistant district attorney who prosecuted the trial.

The trial court then analyzed the testimony and reached a decision. This decision, although not formally labeled as findings of fact, compared the various inconsistencies in the testimony in light of the credibility of the witnesses and made findings as to the substance of the missing testimony. The trial court then held that the record had been adequately reconstructed for all purposes and denied the defendant's motion for a new trial.

It is this procedure that DeLeon takes issue with on appeal, asserting: (1) the record was not properly reconstructed--in particular the testimony of a social worker, and (2) as one of his claims is ineffectiveness of counsel, he is still unable to assess the original question and answer format of defense counsel during the omitted portion of the transcript.

Courts in other jurisdictions have previously dealt with the problem of transcript omissions and have attempted to reconcile the two conflicting interests which emerge. Where, as here, a portion of the record is lost through no fault of the aggrieved party, that party should not be made to bear the burden of this loss. See United States v. Ullrich, 580 F.2d 765, 773 n. 13 (5th Cir.1978). However, a failure to obtain every word of the trial proceedings should not be held to be reversible error per se. See United States v. Renton, 700 F.2d 154, 157 (5th Cir.1983); United States v. Alfonso, 552 F.2d 605, 620 (5th Cir.), cert. denied, 434 U.S. 857, 98 S.Ct. 179, 54 L.Ed.2d 129 (1977).

There was at one time a Wisconsin statute which governed the approval of transcripts and established a procedure for correcting a defective transcript in this state. See sec. 817.117, Stats. (1975); Peterson v. State, 73 Wis.2d 417, 243 N.W.2d 491 (1976). This statute was repealed in 1978. [127 Wis.2d 78] See Sup.Ct.Order, 83 Wis.2d xxv, eff. July 1, 1978. As explained in the 1978 Judicial Council comments following the current Rule 809.16, Stats.:

The provisions of former s. 817.117, detailing the procedure for approval of the transcript, are eliminated in favor of the federal procedure which treats the correction of the transcript the same as correction of any other part of the record. Thus, correction of any alleged error in the transcript will be made under Rule 809.15(3). [Emphasis added.]

Rule 809.15(3), Stats., allows a party who believes the transcript is defective to move the court to correct the record. It offers little guidance, however, as to the procedure to be used when faced with this problem. Because it was intended that federal procedure be followed, we turn to an examination of Federal Rule of Appellate Procedure 10 entitled "The Record on Appeal." 2

Page 638

[127 Wis.2d 79] To summarize the rule, the parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation or by the amendment and counteramendment procedure outlined in Fed.R.App.P. 10(c). Then, if any dispute remains as to what occurred, the difference shall be submitted to and settled by the trial court. See United States v. Mills, 597 F.2d 693, 698 (9th Cir.1979). In settling this dispute, some courts have held hearings, putting witnesses back on the stand and having them testify, to the best of their recollection, what transpired at trial. See Johnson v. State, 442 So.2d 193, 195 (Fla.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

In criminal cases, the above procedure should be executed with the goal of preserving the integrity of the trial process without violating...

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