Jackson v. State, 58291

• Decision Date: 09 September 1974
• Docket Number: No. 2,No. 58291,58291,2
• Citation: 514 S.W.2d 532
• Parties: Malcolm JACKSON, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 532

514 S.W.2d 532

Malcolm JACKSON, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 58291.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1974.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 14, 1974.

Fred A. Eppenberger, Lawrence P. Katzenstein, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

Malcolm Jackson has appealed from an order refusing to set aside a verdict and judgment finding him guilty of first degree murder, following an evidentiary hearing on his Rule 27.26, V.A.M.R., motion to vacate. This Court has jurisdiction under its en banc order entered April 9, 1973 relating to pending cases involving first degree murder.

On the original appeal the judgment of conviction was affirmed. State v. Jackson, 412 S.W.2d 428 (Mo.1967). Point II on the original appeal assigned as error that the court from the bench during voir dire examination made prejudicial remarks to the panel. The remarks were made at the conclusion of an extensive voir dire examination. The only reference in the transcript to thses remarks follows: '(Reporter's note: At this point Judge McFarland made a statement to the jurors regarding the need for more jurors, which statement was not reported by the official Court Reporter.)' Out of the hearing of the panel trial counsel for appellant promptly commented that the court's statement to the panel was 'wellfounded' but he asked for a mistrial on the basis that one statement was highly prejudicial, 'when the Court said you were talking about civil jurors or civil juries and that 'God forbid' they would be in a criminal case.'

Whether the remarks were prejudicial was not decided on the original appeal, this Court deeming it impossible to judge the effect of the remarks since neither the remarks themselves nor the context in which they were spoken were reported, and because the only reference in the transcript to the nature of the remarks (that contained in counsel's request for a mistrial) was fragmentary and ununderstandable.

On this 27.26 appeal the principal point is that appellant has been denied fundamental constitutional and statutory rights to full appellate review and hence due process of law by being deprived of a full and complete transcript. Citing statutes, decisions, rules and canons of judicial ethics, he asserts his guaranteed right to a complete transcript; claims no adequate substitute for a full transcript is available; objects that the question of prejudicial error cannot be adjudicated because the exact language used by the trial court is irrecoverable; denies that proof of the prejudicial effect of the remarks is required of him 'because such proof is inherently impossible,' and concludes that as a consequence he is entitled to have the conviction set aside and a new trial ordered.

A losing party is entitled to appellate review based upon a full, fair and complete transcript on appeal. The ultimate responsibility for the preparation and filing of a transcript on appeal, however, is upon appellant under Rule 81.12(a). Having the burden of demonstrating error it is his obligation to prepare and file a transcript which incorporates the proceedings showing that the trial court erred. That obligation is not discharged by the simple expedient of ordering the official court reporter to prepare a transcript and then filing whatever is prepared. If the transcript prepared is defective or omits material matters it is appellant's duty to take steps to supply the omission or cure the defect. Appellants are required to exercise due diligence in this regard, and an appellant will not be granted a new trial on account of the absence of a transcript (or failure to file a full and complete transcript) if guilty of laches or negligence, or if appellant fails to establish prejudice as a result of inability to present a complete record. Lawton-Byrne-Bruner Ins. A. Co. v. Air-Flight Cab Co., 479 S.W.2d 218 (Mo.App.1972), and nine cases cited on page 220. The procedure is prescribed by Rule 81.12(c); 'If anything material to either party is omitted from the transcript by error or accident or is inadvertently misstated therein, the parties by stipulation or the trial court, before the transcript is filed in the appellate court, or the appellate court thereafter, on a proper suggestion or of its own initiative, shall direct that the omission or misstatement shall be corrected * * *. The appellate court may, if it seems necessary, order that a supplemental transcript on appeal shall be prepared and filed by either party or by the clerk of the trial court including any additional part of the record, proceedings and evidence, * * *.' Where no record of the proceedings complained of is furnished there is nothing for the appellate court to decide. Garrett v. State, 486 S.W.2d 272, 274(4) (Mo.1972); State v. Paige, 446 S.W.2d 798, 806(16) (Mo.1969); Edwards v. Hrebec, 414 S.W.2d 361, 366(8) (Mo.App.1967). That is what this Court, in effect, held on Point II on the original appeal. State v. Jackson, supra, 412 S.W.2d l.c. 433(3).

If appellant on the original appeal, or on this appeal, desired review of the propriety of the trial judge's remarks from the bench it was incumbent upon him through his counsel to ascertain from the trial judge whether he had a copy of the remarks and if not, whether the judge would prepare a substitute containing the substance of his remarks. Failing in this, the content of the judge's remarks likely could have been agreed to and reduced to writing by counsel conferring with prosecuting officials, the court reporter, deputy clerks, the panel, or bystanders who had occasion to hear and remember what the judge said on this occasion. If the judge made the same statement to all jury panels the members of other panels and other defense counsel could have been consulted in an effort to reproduce the statement and supply the omission. No attempt, however, was made to supply the missing portion of the transcript....