People v. Conley, 88CA0313

• Decision Date: 26 July 1990
• Docket Number: No. 88CA0313,88CA0313
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence CONLEY, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 240

804 P.2d 240

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence CONLEY, Defendant-Appellant.

No. 88CA0313.

Colorado Court of Appeals Div. II.

July 26, 1990.

Rehearing Denied Sept. 6, 1990.

Certiorari Denied Jan. 28, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Robert M. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, and Jaydee K. Bachman, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Lawrence Conley, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree burglary, first degree sexual assault with a weapon, theft, and four counts of habitual criminal. We affirm.

In the early morning hours of August 22, 1986, the victim was awakened by the scream of her infant son, sleeping next to her, who had apparently been stepped on by a knife-wielding man coming through her bedroom window. The man tied the victim's legs with a phone cord as she lay face down on the bed, gagged and blindfolded her, and tied her hands behind her back; she never saw the man's face. He took numerous items from her living room and bedroom, including a turntable, and then ordered the victim to roll onto her back. When she did not comply immediately, the man struck her on the back with his fist, and then sexually assaulted her. Throughout the incident, he talked incessantly.

The police later showed the victim a photographic lineup, and, although she could not identify her assailant, she did recognize one of the photos as being that of a neighbor, the defendant.

In early September, a Denver patrolman stopped the defendant's car for a traffic violation. During the stop, the police officer noticed a turntable in the back seat of the car. Defendant was unable to produce any identification; however, he consented to the officer's search of the car for a small case which purportedly contained this identification. The officer found the case underneath the turntable and simultaneously noted the serial number of the turntable. The officer radioed in defendant's name and the serial number, and learned that the turntable had been reported as stolen and that defendant's driver's license had been suspended. Therefore, the officer took defendant to the police station and impounded his car and the turntable.

The police determined that this turntable belonged to the victim, and informed her that it had been recovered from the neighbor whose picture was in the photo lineup. In early January 1987, the victim telephoned the police department and requested the return of her turntable. During this conversation, she mentioned that she "would never forget" the voice of the man who had assaulted her. Based on this information and on their suspicions concerning defendant's possible culpability, the police arranged a voice lineup. The victim identified defendant's voice as being that of the man who had assaulted her.

I.

Defendant contends that the trial court's refusal to record bench conferences and to allow defense counsel to make a contemporaneous record was reversible error. We decline to reverse on this basis.

Absent a waiver by the parties, bench and sidebar conferences must be recorded. Jones v. District Court, 780 P.2d 526 (Colo.1989). Thus, as the People concede, the trial court's failure here to record bench and sidebar conferences was error. However, the failure to record all trial proceedings is not per se reversible error; the defendant must demonstrate that he suffered substantial prejudice. Jones v. District Court, supra.

Defendant here had two opportunities to make such a demonstration but has failed to do so.

The first such opportunity occurred during the reconstruction conferences held at various points throughout the trial.

We have discerned, from our review of the record, that trial counsel was fully aware from the onset of trial that the trial court would not allow contemporaneous recordation of bench conferences. Defense counsel had filed a written "Motion to Have All Bench Conferences Reported" and the trial court denied it before trial began. The court noted its policy of not conducting bench conferences on the record but reaffirmed its additional policy of allowing counsel to make whatever record they wished at a later time during what it termed a reconstruction conference. In its order, the trial court commented that "both counsel certainly are aware of that [procedure], having appeared in this Court frequently."

The record indicates that the trial court allowed both counsel to make whatever record they wished during a reconstruction conference. Defense counsel did make a lengthy record on numerous issues and then indicated to the court that he had "nothing further" to say. He predicates his claim of reversible error upon an assertion that several of the unrecorded bench conferences concerned substantive issues, and that the record made later is incomplete because he "did not remember what record he needed to make."

Our review of the record before us belies defendant's claim. Several of the unrecorded bench conferences concerned housekeeping matters which were apparent from the context. Others concerned alleged prosecutorial discovery violations which, whether reviewed on a preserved error or plain error basis, do not warrant reversal. A few instances, involving objections to the form of exhibits, were satisfactorily remedied during trial.

The record contains sufficient colloquy between court and counsel which, considered in proper context, allows us to consider defendant's allegations. We conclude that the error here did not so prejudice defendant's substantial rights as to require reversal. See People v. Vialpando, 804 P.2d 219 (Colo.App.1990).

Defendant also had a second opportunity to substantiate his claim of prejudice by using the procedures outlined in C.A.R. 10. However, he did not avail himself of this opportunity.

An appellant is required to take the necessary steps to provide an adequate record for review. C.A.R. 11(a); Continental Air Lines, Inc. v. City & County of Denver, 129 Colo. 1, 266 P.2d 400 (1954). In those circumstances in which a stenographic transcript is not available, C.A.R. 10(c) provides that the appellant should prepare a statement of the evidence or proceedings from the best available means, serve the statement upon opposing counsel for comments and changes, and then submit the final statement to the trial court for settlement, approval, and inclusion in the record on appeal. In the event the parties are unable to reach agreement concerning the contents of this statement, C.A.R. 10(d) provides a mechanism for resolution of these differences.

Just as an appellant will not be permitted to take advantage of his own failure to designate the pertinent portions of the transcript as part of the record on appeal, Till v. People, 196 Colo. 126, 581 P.2d 299 (1978), so will he not be entitled to automatic reversal of a judgment if he fails to follow the provisions of C.A.R. 10. See People v. Velarde, 200 Colo. 374, 616 P.2d 104 (1980).

In this case, defendant has failed to follow the procedures of C.A.R. 10, and we thus do not have the benefit of a complete statement of the proceedings. Defendant has failed to provide any reason for this omission and the record discloses none.

Accordingly, we conclude that defendant has failed to substantiate his claim of prejudice. He did not take advantage of the opportunity provided in the reconstruction conferences to make a record, even though he had ample warning that he could do so. And, he ignored the provisions of C.A.R. 10 and provided this court with no statement of his recollection. Our own review of the record leads us to conclude that defendant's substantial rights were not violated. Thus, we find no reversible error under these circumstances.

II.

Defendant next contends that reversible error occurred when the trial court allowed the prosecutor to introduce evidence of a similar incident. We perceive no error.

The trial of the similar incident had resulted in defendant's being convicted of burglary but acquitted of first degree sexual assault. Defendant concedes that the facts of the incident were sufficiently similar to warrant admission, and that the requirements of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959) and People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979) were amply met. But, he argues, to the extent the trial court allowed evidence concerning the sexual assault, it violated the doctrine of collateral estoppel and the rule announced in People v. Arrington, 682 P.2d 490 (Colo.App.1983), and reversal is required. We disagree.

The elements of collateral estoppel are: 1) the issue in the second trial must be identical to an issue that was actually and necessarily decided at the prior trial; 2) there must have been a final judgment on the merits at the prior trial; 3) there must be identity of parties or privity between parties against whom the doctrine is asserted and 4) the party against whom the doctrine is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. People ex rel. Gallagher v. District Court, 666 P.2d 550 (Colo.1983).

We agree with the trial court that defendant failed to meet his burden of establishing that collateral estoppel precluded evidence of the similar incident.

First, we note that different standards of proof were involved. At the trial concerning the similar incident, the prosecution was required to establish defendant's guilt beyond a reasonable doubt. In contrast, the standard of proof for admission of a similar incident at the time of this trial was by clear and convincing evidence, see People v. Botham, 629 P.2d 589 (Colo.1981); but see Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (...