Edwards v. State

• Decision Date: 13 August 1993
• Citation: 628 So.2d 1021
• Parties: Laddel G. EDWARDS v. STATE. CR 91-1692.
• Court: Alabama Court of Criminal Appeals

Page 1021

628 So.2d 1021

Laddel G. EDWARDS v. STATE.

CR 91-1692.

Court of Criminal Appeals of Alabama.

Aug. 13, 1993.

Rehearing Denied Sept. 30, 1993.

Certiorari Denied Nov. 21, 1993

Alabama Supreme Court 1930086.

Thomas Motley, Dothan, for appellant.

James H. Evans, Atty. Gen. and Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Laddel G. Edwards, the appellant, was convicted of trafficking in cocaine, in violation of Ala.Code 1975, § 13A-12-231, was fined $50,000, and was sentenced to 12 years' imprisonment. He was also convicted of failing to obtain a tax stamp, in violation of § 40-17A-4, was taxed $5,780, and was sentenced to imprisonment for a term of one year and one day. He raises five issues on this direct appeal from those convictions.

I.

Initially, the appellant argues that the transcript of the trial proceedings is "not adequate" because the court reporter who attended the trial died before he produced a transcript of the proceedings and another court reporter was assigned to transcribe the proceedings "to the best of her ability" from the notes of the original reporter.

The facts concerning this matter are as follows:

June 9, 1992: The appellant was convicted. The court reporter was Henry Lowery.

July 21, 1992: The appellant gave notice of appeal.

October 19, 1992: The original court reporter, Mr. Lowery, died.

November 23, 1992: The Court of Criminal Appeals remanded this case to the trial court to determine the possibility of obtaining a transcript pursuant to Rule 10(d) and (e), A.R.App.P. The trial court was ordered to set aside the appellant's conviction and to grant a new trial if that court determined that a transcript or succinct statement of the evidence could not be obtained.

January 19, 1993: Gwen Rester, an official court reporter, filed her Certificate of Reporter, certifying that she had transcribed the stenotype notes of the original court reporter. She certified that the "foregoing pages ... contain a true and correct transcription to the best of my ability of the evidence...." R. 135-36.

January 22, 1993: The record on appeal was filed in the Court of Criminal Appeals.

January 29, 1993: The appellant filed a motion objecting to the transcript.

March 17, 1993: The trial court heard oral argument on the appellant's motion. At the conclusion of that hearing, the trial court denied the motion with the following comments:

"Well, the problem I have with all of this about 'to the best of my ability,' I would hope that every court reporter would transcribe the evidence to the best of their ability, rather than some other way, including Mr. Lowery [the original court reporter], who is now deceased.

"... But I would think that wording ought to be implied into every transcript made by every court reporter. Because if they don't do it to the best of their ability, there could be some major problems, even though they took it down right, if they don't transcribe it to the best of their ability.

"....

"... If Mr. Lowery himself had certified it, I cannot guarantee that every word is in there. And I cannot make such a finding of fact, and no one can.

"... I am making a finding that the fact that someone does something to the best of their ability is not detrimental to the record." Supp.R. 21-22, 24, 25.

March 23, 1993: A supplemental record, consisting of the transcript of the hearing on the appellant's objection to the record, was filed in the Court of Criminal Appeals.

Gwen Rester's "certificate of reporter" states in pertinent part:

"I, Gwen Rester, Official Court Reporter for the Twentieth Judicial Circuit of Alabama and Notary Public, State of Alabama at Large, do hereby certify that I have transcribed the stenotype notes of Henry Lowery, Deceased, of the proceedings in the above-styled cause. I reduced the stenotype notes into typewriting to the best of my ability. The foregoing pages, beginning with the word 'Proceedings' where the same appears in the center of the page, contain a true and correct transcription to the best of my ability of the evidence, including objections, oral motions, rulings of the Court and the oral charge of the Court, where applicable, as therein set out." R. 135.

In Rika v. State, 587 So.2d 1054, 1058 n. 2 (Ala.Cr.App.1991), this Court observed:

"We were not called on in Pope [v. State, 345 So.2d 1382 (Ala.Cr.App.), reversed, 345 So.2d 1385 (Ala.1976) ], nor are we called on in this case, to ascertain whether a certification 'to the best of my ability' is sufficient in cases where the original court reporter has died, left the jurisdiction, or is otherwise unable or unavailable to produce a transcript and a second court reporter produces the transcript from the original court reporter's notes and tapes. Compare Owen v. State, 776 S.W.2d 467, 469 (Mo.App.1989)."

We now hold that where the original court reporter has died and the original court reporter's notes and/or tape recordings are transcribed by another official court reporter, the certificate of the transcribing court reporter that the transcription is "true and correct to the best of my ability" is sufficient. In fact, under such circumstances, it is the most accurate certification that the transcribing court reporter can make. "When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made." Norvell v. Illinois, 373 U.S. 420, 424, 83 S.Ct. 1366, 1368-69, 10 L.Ed.2d 456 (1963).

In cases where the original court reporter has died, the trial court is the proper forum to determine whether the transcribing court reporter has provided an accurate transcript of the proceedings. See Rika, 587 So.2d at 1058. The trial court's determination " 'is conclusive absent extraordinary circumstances.' " Rika, 587 So.2d at 1058. The burden is on the defendant who challenges the certification of the trial transcript to establish that the transcript is insufficient or incomplete. Rika, 587 So.2d at 1059. Here, the appellant has failed to carry that burden.

II.

The appellant contends that the prosecutor used his peremptory jury strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

There were 6 black members on the 35-member or 40-member venire ¹ (17% or 15%) from which the jury was selected. After one black veniremember was challenged for cause, the State used two of its peremptory strikes to remove blacks. Apparently, three blacks sat on the jury (25%). The appellant's Batson motion was based solely on the fact that the State struck two blacks who "never answered any questions whatsoever" on voir dire. R. 10. The trial court ruled that the appellant had failed to establish a prima facie case of racial discrimination.

Batson, Ex parte Branch, 526 So.2d 609 (Ala.1987), and their progeny make it very clear that " '[t]he burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination.' " Ex parte Bird, 594 So.2d 676, 679 (Ala.1991) (quoting Ex parte Branch, 526 So.2d at 622). Until this burden is met, the challenged party "is under no obligation to offer explanations for its peremptory strikes." Jackson v. State, 594 So.2d 1289, 1292 (Ala.Cr.App.1991). See also Huntley v. State, 627 So.2d 1013 (Ala.1992). Merely showing that the challenged party struck one or more members of a particular race is not sufficient to establish a prima facie case. Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991); Ashley v. State, 606 So.2d 187, 192 (Ala.Cr.App.1992); Jones v. State, 603 So.2d 419, 420-21 (Ala.Cr.App.1992). See also Hood v. State, 598 So.2d 1022, 1023 (Ala.Cr.App.1991). "When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created." Harrell v. State, 571 So.2d at 1271. The trial court properly denied the appellant's Batson motion.

III.

The appellant contends that the trial court erred in failing to quash the jury venire because the venire was not a racially balanced representation of the community.

Before challenges for cause were granted, the 40-member jury venire included six blacks. After the jury was struck, the appellant made the following objection:

"So basically we had five blacks out of--after we struck [one black veniremember for cause]--six blacks out of 40 jurors, which is 15%. And that is not half representation of the black community of Houston County. And for that reason, we would ask that the Court impanel us another jury venire that is more representative of my client's racial group." R. 8.

The appellant totally failed to establish a prima facie violation of the fair-cross-section requirement of the Sixth Amendment under Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). See White v. State, 587 So.2d 1218, 1221-22 (Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992).

IV.

The appellant claims error in the admission into evidence of the 28.904 grams of cocaine because the State failed to: 1) establish a proper chain of custody, 2) connect the appellant to the cocaine, or 3) prove the legality of the stop of the automobile.

Although the appellant argues on appeal that the State failed to prove a proper chain of custody for the cocaine, an objection on that ground was not presented to the trial court. "The appellant in stating the grounds for his motion did not include the issue now being raised regarding the chain of custody of the [cocaine]. Because the appellant failed to object concerning the chain of custody, he waived any review of that issue. Washington v. State, 555 So.2d 347, 348 (Al...