People v. Jackson, 99CA2473.

• Decision Date: 20 May 2004
• Docket Number: No. 99CA2473.,99CA2473.
• Citation: 98 P.3d 940
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rayford L. JACKSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

98 P.3d 940

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rayford L. JACKSON, Defendant-Appellant.

No. 99CA2473.

Colorado Court of Appeals, Div. IV.

May 20, 2004.

Certiorari Denied October 4, 2004.

Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Christopher T. Braddock, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Rayford L. Jackson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession of a weapon by a previous offender (POWPO) and his adjudication as a habitual criminal. We affirm.

The prosecution charged defendant with two counts of menacing, one count of third degree assault, and three counts of POWPO in connection with domestic violence incidents. Defendant was also charged under counts seven and eight with two habitual criminal counts. Defendant filed a motion to dismiss count eight, challenging the constitutionality of the underlying felony conviction, which the trial court denied.

A jury found defendant guilty of one count of POWPO and third degree assault. Defendant does not appeal the assault conviction.

Defendant's adjudication as a habitual criminal followed a two-day bench trial; the evidence presented on the first day addressed only count seven, and the second day, count eight. Thereafter, the trial court imposed two consecutive sentences totaling eleven years.

Through no fault of defendant, a transcript of the first day of the habitual criminal trial is unavailable. A division of this court ordered a limited remand to the trial court to settle or correct the record pursuant to C.A.R. 10. Following a hearing, the trial court settled the record and recertified this appeal.

I.

Defendant first contends that his habitual criminal adjudication on count seven is invalid because the trial court's reconstruction of the record is not sufficient to protect his right to appellate review. Specifically, defendant asserts that he cannot obtain effective review without a complete transcript of the lost day. We disagree.

Loss of a portion of the trial record does not automatically require reversal. However, reversal is required when a defendant can show that the incomplete record visits a hardship upon him or her and prejudices the appeal. People v. Loggins, 981 P.2d 630 (Colo.App.1998). To obtain relief, a defendant must demonstrate specific prejudice resulting from the state of the record on appeal. People v. Rodriguez, 914 P.2d 230 (Colo.1996).

When a transcript is not available, C.A.R. 10(c) requires the appellant to prepare a statement of the evidence or proceedings from the best available means, including his or her recollection. The appellant then serves the statement upon opposing counsel for comments and changes and submits the final statement to the trial court for settlement, approval, and inclusion in the record on appeal. C.A.R. 10(c); People v. Conley, 804 P.2d 240 (Colo.App.1990).

In cases in which testimony is in dispute and the exact language used is crucial, reconstruction may not be an appropriate remedy for a missing transcript. People v. Killpack, 793 P.2d 642 (Colo.App.1990).

Here, upon the limited remand, defendant submitted a statement explaining that he was unable to reconstruct the record because both his trial defense counsel and one of the trial prosecutors could not recall the events of the lost day. Thereafter, the trial court submitted a proposed order to the parties reconstructing the record from its own recollection and notes and its review of relevant portions of the transcript from the second day of the habitual criminal trial.

The order stated, in relevant part, that the prosecutor (former prosecutor) in defendant's underlying felony conviction testified and sponsored the admission of a triple-certified copy of the mittimus showing the underlying felony conviction and an amended mittimus correcting an erroneous date. The court further noted that the former prosecutor identified defendant based upon several court appearances both previously attended.

The trial court subsequently held a hearing, giving both parties the opportunity to address its proposed reconstruction. At the hearing, trial defense counsel described his limited notes of the former prosecutor's testimony, which corroborated the identification of defendant. Counsel testified that he could not recreate the record from his notes or specifically remember whether he made an objection at the time, but he believed he had objected to the validity of the mittimus.

The prosecution did not present witnesses, but noted that it had contacted the former prosecutor, who stated that the trial court's reconstruction appeared accurate. The prosecution also introduced statements from two of defendant's trial prosecutors, and while both had a limited recollection of the habitual criminal trial, they nevertheless stated that the court's reconstruction appeared accurate. In addition, one of the prosecutors provided a list of questions she asserted had been asked of both the former prosecutor and a witness who testified on the second day of the habitual criminal trial.

Despite defendant's objection that the trial court's reconstruction did not allow for meaningful challenge or appellate review, the trial court found that nothing was presented at the hearing to refute its reconstruction. Accordingly, satisfied with the accuracy of the rendition, the trial court submitted its unaltered reconstruction.

We reject defendant's assertion that the trial court's reconstructed record is inadequate to permit review. The transcript of the reconstruction hearing, coupled with the transcript of the closing arguments from the habitual criminal trial summarizing the events of both days of that trial, support the accuracy of the trial court's reconstruction. The existing record, including the trial court's reconstruction, adequately preserves the substance of the lost day for our review.

Most important, closing arguments reveal that defendant's main, if not sole, argument concerning count seven challenged the validity of the underlying conviction based on the date discrepancies between the original and amended mittimuses. The trial court found those discrepancies to be technical errors of little relevance to its adjudication.

Hence, defendant's argument is ascertainable from the existing record, and the record is sufficient for appellate review, precluding the necessity of a complete transcript of the lost day. See People v. Anderson, 837 P.2d 293 (Colo.App.1992)

(reversal of conviction was not required where appellate court was able fairly to review the defendant's contentions despite missing portions of transcript).

We reject defendant's contention that reconstruction is insufficient because the evidence not transcribed is trial testimony and the precise language used is critical. Unlike the circumstances in People v. Killpack, supra,

on which defendant relies, nothing in his assertions, in the transcript that is available, or in the reconstructed record indicates any crucial evidence could have been misinterpreted, misapplied, misunderstood, or erroneously admitted. The two key elements of habitual criminal count seven, proof of the previous felony conviction and defendant's identification as the person convicted, appear to be undisputed, except for the mittimus variance, which defendant does not challenge on appeal.

For these reasons, defendant has failed to establish that the incomplete record visits a hardship upon him or prejudices his appeal. See People v. Loggins, supra.

II.

Defendant next contends the trial court erred when it sua sponte reconstructed the record of the first day of the habitual criminal trial from its own notes, recollection, and review, contrary to the procedures of C.A.R. 10(c). Specifically, defendant asserts that he was prejudiced because the trial judge acted as a participant at the hearing, instead of as an impartial arbiter. We disagree.

Here, contrary to defendant's assertion, the trial court adhered to the procedures required by C.A.R. 10(c) for record reconstruction. The court ordered defendant to prepare a statement of his recollection of the lost day. The trial court created its own reconstruction for the parties' comment and modification at the subsequent reconstruction hearing only after defendant was unable to do so. Nothing in C.A.R. 10(c) prohibits a trial court from using its own notes or recollection in record reconstruction. See People v. Loggins, supra

(trial judge's recollections and impressions were admitted at reconstruction hearing to assist with record reconstruction).

We reject defendant's contention that the trial judge had a conflict of interest when both reconstructing the record and presiding over the reconstruction hearing. Although the judge relied upon his recollection, notes, and review of the existing record to create the reconstruction, he did not testify against defendant as a witness at the reconstruction hearing. Rather, he served as the final arbiter of the record, laboring impartially to clarify what originally had occurred. See People v. Alomar, 93 N.Y.2d 239, 689 N.Y.S.2d 680, 711 N.E.2d 958 (1999)

(trial judge who both presided over the defendant's reconstruction hearing and relied on his own recollections to reconstruct the record did not violate the defendant's right to...