State v. DeLeon

• Decision Date: 23 October 1985
• Docket Number: No. 84-1949-CR,84-1949-CR
• Citation: 377 N.W.2d 635,127 Wis.2d 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Raul DeLEON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 635

377 N.W.2d 635

127 Wis.2d 74

STATE of Wisconsin, Plaintiff-Respondent, v. Raul DeLEON, Defendant-Appellant.

No. 84-1949-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 10, 1985.

Opinion Released Oct. 23, 1985.

Opinion Filed Oct. 23, 1985.

Domingo S. Cruz, Racine, for defendant-appellant.

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

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

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 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 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. 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

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 any of the defendant's rights to a fair trial and effective review of that trial. A trial court should examine the amendments, seeking to prevent a second trial because of small or insignificant omissions in the record while assuring that the defendant has not been prejudiced.

One court using this procedure is the District of Columbia Court of Appeals. See Cole v. United States, 478 A.2d 277, 280-85 (D.C.App.1984). ³ In Cole, the court reporter's notes of the defendant's two-day trial were lost subsequent to the filing of the notice of appeal. The appellate court returned the case to the trial court, ordering the parties to prepare a substitute statement of the evidence presented at trial. This was done, and the record was returned to the appellate court. After outlining the statutory procedure, the District of Columbia Court of Appeals recognized that the lack of a complete transcript is not always curable by efforts to reconstruct the record. Conceding that the supplemental record on appeal lacked the completeness and reliability necessary to protect the appellant's right to appeal and noting the appellate court's duty to engage in a meaningful review, the court reversed the conviction. Id. at 287.

Using the Federal Rules of Appellate Procedure and the Cole case as guides, we now develop the procedure that trial courts should follow in Wisconsin. Although the appeal is a criminal case, the same procedure will apply in civil cases.

Before any inquiry concerning missing notes takes place, common sense demands that the appellant claim some reviewable error occurred during the missing portion of the trial. Obviously, the trial court need not conduct an inquiry if the appellant has no intention of alleging error in the missing portion of the proceedings. If, however, the trial court determines that the appellant has at least a facially valid claim of error, the inquiry should take place.

The first inquiry a trial court must make after a facially valid claim has been found is whether the missing portion can be reconstructed. Assuredly, each fact situation will be different, with such variables as the length of the missing transcript, the availability of witnesses and trial counsel, and the amount of time which had elapsed between the trial and when it was learned the reporter's notes were missing. The trial court, in its discretion, should weigh these variables and determine whether reconstruction is a viable possibility. The trial court may find, as a matter of law, taking the claimed error in a light most favorable to the appellant, that the attempt at reconstruction is insurmountable; if so, a new trial should be ordered. See Cole at 285.

If the trial court determines that reconstruction can meaningfully be attempted, the appellant should prepare an affidavit of the evidence presented, as he or she best recollects it. Then the respondent should file objections or proposed amendments to it or approve the statements as accurate. The parties may also file a joint agreed statement.

If there is no dispute between the parties concerning the contents of the missing transcript, then the court may "settle and approve" the substituted record which it may then use in any post-trial proceedings before it. See Cole at 283-84; Mills at 698. If the trial court is not satisfied with the accuracy of the agreed statement, the court may modify the statement to make the record "conform to the truth."

If a dispute remains, the trial court must then engage in a second inquiry--whether the trial court may resolve the dispute. In proceedings pursuant to this inquiry, it is important to note that the trial court may not speculate about what the testimony probably was or might have been. Its duty is to establish what the testimony was. As aids to refresh the trial court's recollection, the trial court may rely on its own recollection and its notes from trial in addition to the affidavits of the parties. It may conduct hearings and consult with counsel and other sources. Cole at 284-85; see also Commercial Credit Equipment Corp. v. L & A Contracting Co., 549 F.2d 979, 980 (5th Cir.1977).

In determining whether the trial court can resolve the dispute between the parties, the trial court must be satisfied to the same level of proof as required during the trial stage. In other words, in a criminal matter, the trial court must be satisfied beyond a...