Lindsey v. State

• Decision Date: 16 September 1986
• Docket Number: No. 85-264,85-264
• Citation: 725 P.2d 649
• Parties: Delphine LINDSEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 649

725 P.2d 649

Delphine LINDSEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-264.

Supreme Court of Wyoming.

Sept. 16, 1986.

Leonard D. Munker, Public Defender, and Julie D. Naylor, Appellate Counsel, Wyoming Public Defender Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Michelle McKellar, Legal Intern, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Chief Justice.

This appeal is taken from a judgment of the district court affirming a conviction by a jury in county court of the offense of reckless endangering which is proscribed in § 6-2-504(b) and (c), W.S.1977. ¹ The questions presented relate to the granting of a motion in limine which prevented the defendant from referring to the fact that one of the State's witnesses had been arrested in connection with the events underlying the offense of which the defendant was convicted; the failure to grant a mistrial because of the lack of compliance by the State with a discovery order; asserted prosecutorial misconduct claimed to be so prejudicial as to deprive the defendant of a fair trial; and the manner in which the trial was conducted which is claimed to be deprivation of due process. This latter contention ties to the claim of prosecutorial misconduct additional assertions relating to jury misconduct; an inopportune break for a lunch recess; and assistance of the trial court with respect to prosecutorial evidence which manifests bias. We can discern no prejudicial error with respect to any of the claims made by appellant, and we affirm the judgment of the district court affirming the conviction in the county court.

As we have noted, Delphine Lindsey was charged with a violation of § 6-2-504(b) and (c), W.S.1977. Following a verdict of guilty returned by a jury in the county court, she was sentenced to serve a term of 30 days in the county jail, of which 29 days were suspended, and she was placed on six months unsupervised probation. An appeal then was taken to the district court, and in connection with that appeal a statement of the case, as provided by Rule 4.07, W.R.A.P.C.L.J., was prepared. ² This rule assumes that the statement of the case shall become the record on appeal to the district court in lieu of the usual documents and recordings. There were some special aspects of this statement of the case, however.

In the statement of the case itself this language appears:

"Neither these points nor the statement of the case are meant to be exclusive of the audio transcript of the proceedings, exhibits, and other matters contained in the court file."

The order approving the statement of the case entered by the judge in the county court says in part:

"A WRITTEN STATEMENT OF THE CASE having been presented to this Court by the defendant and the State of Wyoming, and the Court having reviewed the same and being satisfied of the truthfulness thereof, and being otherwise fully advised;

"IT IS HEREBY ORDERED that, pursuant to Rule 4.07, W.R.A.P.C.L.J., the Statement of the Case filed herein is approved and shall be made part of the Record on Appeal, together with the court file, exhibits, and audio transcript of the proceedings in the lower court." (Emphasis added.)

There also was included on the face of the order a handwritten note by the county court judge stating: "The Court calls specific attention to the Audio Record of the proceedings & the matters reflected thereon." Upon review the district court affirmed the judgment and sentence entered in the county court, and this appeal is taken from the order of the district court affirming the conviction.

In her brief Delphine Lindsey recites these issues for resolution:

"I. Whether it was error to grant the Motion in Limine preventing the Defense from referring to the fact that Koenig was arrested for impersonating an officer.

"II. Whether the Court erred in refusing to grant a mistrial based on the failure of the State to comply with the discovery order.

"III. Whether the prosecutorial misconduct was so prejudicial as to deny Appellant a fair trial.

"IV. Whether the trial was conducted in a manner inconsistent with due process."

The State of Wyoming states the issues to be:

"I. Did the trial court err in granting the State's Motion in Limine preventing appellant from referring to any charges which may have been filed against Mark Koenig, a witness in this case?

"II. Did the trial court err in its handling of appellant's complaints regarding discovery?

"III. Was appellant deprived of a fair trial by prosecutorial misconduct or the conduct of the trial court?"

In her reply brief, Delphine Lindsey presents an additional issue:

"Whether the tapes are superseded by the Statement of the Case pursuant to Rule 4.07 W.R.A.P.C.L.J."

As a preliminary matter we will address the scope of the record to be reviewed. Lindsey contends that the electronic tapes of the proceedings in the county court cannot be considered in this appeal because they were superseded by the statement of the case included in the record on appeal. Although Lindsey does not present this contention we also note that, in accordance with Rule 4.02, W.R.A.P., the failure to transcribe the tape recordings would be a ground for not considering them. ³ Rule 4.02, W.R.A.P., differs from Rule 4.02(b), W.R.A.P.C.L.J., which provides that the electronic tapes need not be transcribed for the appeal to the district court, unless that court so requires. We already have alluded to those portions of the record which manifest the intent of the trial court that the record in this instance not be limited to the statement of the case.

It has been a long-standing policy of this court that the record on appeal should include a proper transcript of the proceedings in the trial court, and in the absence of a properly certified transcript of those proceedings this court will not consider them. Salt River Enterprises v. Heiner, Wyo., 663 P.2d 518, 520 (1983), citing Roy v. Union Mercantile Company, 3 Wyo. 417, 26 P. 996 (1891); In re Basin State Bank, 43 Wyo. 1, 296 P. 1074 (1931); Northwestern Terra Cotta Company v. Smith-Turner Hotel Company, 47 Wyo. 190, 33 P.2d 915 (1934). An alternative to a transcript is recognized in Rule 4.03, W.R.A.P., which permits the appellant to prepare a statement of the evidence, to be approved by the district court in those instances in which a transcript is unavailable. Delphine Lindsey did not pursue that alternative for a transcript in this case.

In this court adverse consequences have attached to the failure to provide a statement of the case where no transcript is available. Minnehoma Financial Company v. Pauli, Wyo., 565 P.2d 835 (1977). In Wydisco, Inc. v. McMahon, Wyo., 520 P.2d 218 (1974), the appeal was dismissed because neither a transcript nor a statement of the case was furnished, and the court concluded that it was unable to consider the questions raised in the absence of one or the other. In another case the court said it would presume the regularity of the proceedings and limit itself to questions which did not require a review of the transcript. Matter of Manning's Estate, Wyo., 646 P.2d 175 (1982). In Salt River Enterprises v. Heiner, supra, the court advised that in the absence of a proper transcript the trial court's findings of fact would be accepted for purposes of the appeal. In Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979), the consequence of the appellant's failure to avail himself of Rule 4.03 was that he could not sustain his burden of demonstrating error in the appeal.

Despite the possibility that this court could limit or refuse review in the absence of an appropriate record in the form of a statement of the case according to our rules of appellate procedure or a transcript, we have, in the interest of justice, examined the record including the tapes and considered each of Delphine Lindsey's claims on the merits. Lindsey conceded in oral argument that the statement of the case that was offered was not as thorough as it might have been, although obviously she assumed that it could meet the requirements of Rule 4.03 W.R.A.P. We do not intend to recede from our rule that a transcript rather than the electronic recordings should be provided in this court if claims of error are asserted based upon matters in the record and no statement of the case has been prepared in accordance with Rule 4.03, W.R.A.P. In this instance the record as manifested by the electronic tapes is essentially consistent with the statement of the case. The tapes do reflect some details of significant factual matters. We therefore have relied upon both sources to resolve the issues.

We have gleaned the material facts from the record items alluded to previously. Delphine Lindsey lived in an apartment on the third floor of an apartment building, and her daughter and grandson lived in an apartment across the hall. A dispatcher for the Casper Police Department also lived on the third floor of the same building. On June 24, 1984, Sally, a female friend of the police dispatcher went to the apartment to water plants. Sally was accompanied by two friends, Mark Koenig and Matt. Delphine Lindsey was home, but her daughter and husband were out for the evening. The grandson with a friend, Michael, was in and out of Delphine Lindsey's apartment and his mother's apartment.

Koenig went with Sally while she watered her friend's plants, but Matt entered into dialogue with Delphine's grandson and his friend in the hallway. Koenig then joined in this dialogue which apparently became a confrontation and then degenerated into an altercation involving pushing and shoving. At that time Koenig displayed a dispatcher's badge which he had taken from the apartment, and Koenig and Matt then took a set of numchucks away from the two boys. (Numchucks are two wooden handles which are joined by a short piece of chain, and which have no...