People v. Whittiker

• Decision Date: 30 November 2006
• Docket Number: No. 01CA2340.,01CA2340.
• Citation: 181 P.3d 264
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hausua A. WHITTIKER, Defendant-Appellant.
• Court: Colorado Court of Appeals

181 P.3d 264

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hausua A. WHITTIKER, Defendant-Appellant.

No. 01CA2340.

Colorado Court of Appeals, Div. III.

November 30, 2006.

As Modified on Denial of Rehearing April 19, 2007.

Certiorari Denied April 7, 2008.

Arapahoe County District Court No. 00CR2822, Frederick B. Skillern, Judge, Anthony F. Vollack, Judge.

John W. Suthers, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RUSSEL.

Defendant, Hausua A. Whittiker, was convicted by a jury of attempted reckless manslaughter, first degree assault, reckless second degree assault, illegal discharge of a firearm, and reckless endangerment. The trial court imposed a thirty-year sentence as follows: (1) consecutive terms of sixteen years for first degree assault and fourteen years for second degree assault; (2) concurrent terms of four years for attempted manslaughter and three years for illegal discharge of a firearm; and (3) no sentence for reckless endangerment because that conviction merged with the conviction for illegal discharge of a firearm.

Defendant now appeals the trial court's judgment of conviction. He asserts three basic contentions:

1. He has been deprived of his due process right to a meaningful and speedy appeal because the trial transcripts are inaccurate and the proceeding has been delayed for several years.

2. The judgment should be reversed for trial errors in the admission of evidence, prosecutor's argument, and jury instructions.

3. The judgment should be modified because some of the jury's verdicts are unsupported, inconsistent, and duplicative.

We evaluate these contentions in turn and affirm the trial court's judgment.

I. Defendant's Right of Appeal

We first determine whether defendant has been deprived of the due process right to a meaningful and speedy appeal. We conclude that he has not.

A. Pertinent Chronology

Defendant filed his notice of appeal in December 2001. This court extended the time for filing the record because the court reporter, Valeri Barnes, had been diagnosed with cancer and was unable to meet the deadline.

Other court reporters were hired to assist in completing the transcripts. However, because Barnes's notes are idiosyncratic, the reporters could not complete the necessary transcripts without her assistance. In light of the ongoing difficulties in preparing the transcripts, this court granted several more extensions of time to file the record.

In July 2003, defendant asked this court to vacate the judgment and remand his case for a new trial. He asserted that, despite extensive efforts, it was impossible to reconstruct the record.

In September 2003, this court remanded defendant's case (along with several others for which Barnes had been the court reporter) to the trial court with orders to determine whether the necessary transcripts could be completed. Retired Supreme Court Chief Justice Anthony Vollack was appointed to oversee the cases on remand.

Justice Vollack conducted several hearings to ensure that the transcripts were in the process of being completed. Defendant's trial was transcribed with Barnes's assistance, and the pertinent transcripts were filed with this court on or before January 14, 2004.

After the transcripts were filed, defense counsel asserted that they were inaccurate and incomplete. In March 2004, this court again remanded defendant's case to the trial court with orders to determine whether the record was accurate and complete.

In April 2004, the trial court held a hearing to address the transcripts in defendant's case and other cases in which Barnes had been the court reporter. The court ruled that the defendants could have an expert court reporter examine Barnes's original notes and could then present evidence on the accuracy and completeness of the various transcripts.

In May 2004, the expert court reporter testified that Barnes's notes contained information that would enable the completion of transcripts in several cases. The expert testified that she would need more time to discover whether the notes would supply all the material that was allegedly missing from defendant's case. The court granted defense counsel's request to have the expert "and any other qualified court reporters that she can recruit" prepare the missing transcripts from Barnes's notes.

Thereafter, the court held several hearings to monitor the progress in completing the missing transcripts. Defendant's case was among the last to be completed.

In November 2005, the court found that the transcripts in five cases, including defendant's case, were "substantially complete and accurate."

Defendant's appeal was recertified by this court in January 2006. The parties completed extensive briefing in May 2006 and presented oral argument in August 2006.

B. Meaningful Appeal

Defendant contends that the trial transcripts are so rife with inaccuracy that he cannot receive a meaningful appeal. We conclude that the transcripts, although flawed, are sufficiently reliable to enable intelligent review of defendant's substantive contentions.

Generally, a criminal defendant is entitled to a record on appeal that includes a complete transcript of the trial court proceedings. People v. Rodriguez, 914 P.2d 230, 300 (Colo.1996). "[T]o obtain relief on a due process claim arising from an incomplete record, a defendant must always demonstrate specific prejudice resulting from the state of that record." People v. Rodriguez, supra, 914 P.2d at 301.

Here, defendant points to the following errors or omissions:

1. The transcript does not contain page 229 of volume IX or page 115 of volume X.

2. The prosecutor appears to object to his own direct examination at page 256 of volume IX.

3. A witness's answer is incorrectly attributed to the examining attorney at page 71 of volume X.

4. Other statements are similarly attributed to the wrong speaker at page 32 of volume XI (prosecutor's statement attributed to the court), page 125 of volume XI (prosecutor's statement attributed to defense counsel), and page 5 of volume XV (defense counsel's statement attributed to the court).

We agree with defendant's observations and acknowledge that the transcript is not perfect. However, we perceive no prejudice. Defendant does not identify, and we do not find, any errors or omissions that relate to the substantive issues raised on appeal. Where errors or omissions do appear, we have interpreted the transcript consistently with defendant's representations.

We do not believe that defendant was deprived of a meaningful opportunity to challenge the accuracy or completeness of the trial transcripts. The trial court granted defense requests for access to Barnes's original notes and for assistance of an expert court reporter. Thereafter, defendant did not request an evidentiary hearing to address the accuracy of his transcripts, nor did he request additional resources to facilitate their independent evaluation. Although defendant asserted in October 2005 that Barnes's "original transcriptions have proven to be inaccurate" (an assertion that rests largely on flaws discovered in other cases), he also stated that "additional hearings are not required." Thus, the court cannot be faulted to order a hearing sua sponte.

We therefore conclude that defendant has not been deprived of the right to a meaningful appeal. The transcripts are sufficiently complete and reliable to enable an intelligent review of defendant's substantive contentions.

C. Speedy Appeal

We next consider whether defendant has been deprived of his right to a speedy appeal. We conclude that he has not been prejudiced.

The Due Process Clause protects a defendant's right to a direct appeal when that right is guaranteed by the state. Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985). Excessive delay in the resolution of an appeal can give rise to a cognizable due process claim. See People v. Rios, 43 P.3d 726 (Colo.App.2001); see also United States v. Smith, 94 F.3d 204 (6th Cir.1996); United States v. Hawkins, 78 F.3d 348 (8th Cir.1996); United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir.1995); Harris v. Champion, 15 F.3d 1538 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865 (2d Cir.1990); Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980).

In People v. Rios, supra, a division of this court applied the constitutional speedy trial test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to evaluate the due process implications of appellate delay. Under this test, courts are to consider the following: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) any prejudice to the defendant resulting from the delay. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192; People v. Rios, supra, 43 P.3d at 732.

We agree with the division in Rios that Barker provides a workable framework and will examine defendant's claim in light of the four Barker factors.

1. Length of Delay

A defendant must make a threshold showing of inordinate delay to trigger inquiry into the remaining Barker factors. People v. Rios, supra, 43 P.3d at 732. Here, the delay is approaching five years. This delay is clearly excessive and inordinate. See United States v. Smith, supra, 94 F.3d at 209 (three-year delay is sufficient to trigger further inquiry); Simmons v. Reynolds, supra (six-year delay is excessive); United States v. Johnson, 732 F.2d 379, 382 (4th Cir.1984) (two-year delay "is in the range of magnitude" for triggering inquiry).

2. Reason for Delay

Because the delay is inordinate, we must inquire into the reason for the delay.

On remand, Justice Vollack determined that the delay resulted from the "illness of the...