State v. Draper

Decision Date18 July 1990
Docket NumberNo. C,C
Citation800 S.W.2d 489
PartiesSTATE of Tennessee, Appellee, v. Larry DRAPER, Appellant. C.A. 67.
CourtTennessee Court of Criminal Appeals

Charles W. Burson, Attorney General & Reporter, Bettye Springfield-Carter, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Phillip Gerald Harris, Asst. Dist. Atty. Gen., Memphis, for appellee.

Barry W. Kuhn, Asst. Public Defender (Appeal Only), Jan Rochester, Asst. Public Defender (Trial Only), Memphis (A C Wharton, Shelby County Public Defender, Memphis, of counsel), for appellant.

OPINION

JONES, Judge.

The appellant, Larry Draper, was convicted of breaking into, entering and burglarizing a motor vehicle and petit larceny by a jury of his peers. The trial judge found that the appellant was a persistent offender 1 and committed especially aggravated offenses, 2 and imposed the following Range II sentences: ten (10) years in the Department of Correction for breaking into, entering and burglarizing a motor vehicle and five (5) years in the Department of Correction for petit larceny. The sentences are to be served consecutively to each other as well as consecutively to the balance of two prior sentences. 3

The appellant presents eleven (11) issues for our review. In two of the issues the appellant contends that the trial judge committed error of prejudicial dimensions during the voir dire examination of prospective jurors. The appellant contends in two other issues that the trial judge committed error of prejudicial dimensions during summation. A perusal of the record transmitted to this Court reveals that neither the voir dire proceedings nor the closing arguments of the parties were transcribed by the court reporter. Consequently, this Court cannot consider these issues.

The record reflects that all four issues were included in the motion for a new trial. The record further reflects that defense counsel presented an order to the trial judge which provided in part:

[I]n view of the proven indigency of the defendant and from the timely filing of the Notice of Appeal, that the Official Court Reporter of this Court shall transcribe the record in the above styled cause(s), so that same can be made a part of the record on appeal for the purpose of Appeal. Any special requests to the standard Transcript of the Evidence are specifically noted as follows:

Voir Dire....

Closing Arguments....

Bench Conference at Closing of Court....

Calendar call....

Sentencing Hearing....

Motion for New Trial Hearing....

The following colloquy took place after the order was tendered to the trial judge:

THE COURT: Why do you need the voir dire examination?

MS. ROCHESTER: If Your Honor, please, I'm requesting the transcript of all issues that are raised in my motion for new trial.

THE COURT: Why do you need the voir dire examination?

MS. ROCHESTER: If Your Honor, please, I'm requesting the transcript in all the issues I've raised in my motion for a new trial.

THE COURT: Why do you need the closing argument?

MS. ROCHESTER: If Your Honor, please, I raised an issue concerning the argument in the motion for a new trial.

* * * * * *

THE COURT: What is the need of the closing arguments, Ms. Rochester?

MS. ROCHESTER: If Your Honor, please, we raised that issue concerning ...

THE COURT: I understand that. What is the need of it, though?

MS. ROCHESTER: If Your Honor, please, the Court of [Criminal] Appeals can't review it if they don't have the transcript.

THE COURT: Let me see the copy of the motion for a new trial.

* * * * * *

THE COURT: ... The only complaint you have is the procedure of voir dire. Is that the only complaint you have?

MS. ROCHESTER: If Your Honor, please, I believe there are two issues.

THE COURT: What are the issues?

MS. ROCHESTER: If Your Honor, please, one was the selection of four men and the other was the latitude of voir dire.

THE COURT: Strike it [from the order] and your complaint on closing argument?

MS. ROCHESTER: If Your Honor, please, I believe I raised an issue as to the comment of the prosecutor in terms of the weight of the evidence.

* * * * * *

THE COURT: Strike it. You've already set out that that's what he used.

The trial judge also denied counsel's request to have a bench conference, calendar call, and the closing of court on the first day of trial transcribed and made a part of the record.

A party seeking review in an appellate court is required to prepare a record which conveys a fair, accurate and complete account of what transpired in the trial court with respect to the issues that will be presented to the court for determination. 4 When, as here, the defendant intends to present issues concerning the voir dire proceedings, a transcript of the proceedings must be included in the record transmitted to the appellate court. 5 The same is true when the accused intends to present issues concerning summation. 6 Rule 24(b), Tennessee Rules of Appellate Procedure, provides that a verbatim transcript of the relevant evidence and procedures shall be included in the record if "a stenographic report or other contemporaneously recorded, substantially verbatim recital of the proceedings is available". 7 The accused may prepare and include a statement of the evidence and proceedings in the record if "no stenographic report, substantially verbatim recital or transcript of the evidence or proceedings is available". [emphasis added]. 8

Allegations contained in pleadings 9 and statements made by counsel during a hearing or the trial 10 are not evidence. Thus, neither can be considered in lieu of a verbatim transcript or statement of the evidence and proceedings. The same is true with regard to the recitation of facts and argument contained in a brief submitted to this Court 11 and statements made by counsel during oral argument. 12

It is well-established that an appellate court is precluded from considering an issue when the record does not contain a transcript or statement of what transpired in the trial court with respect to that issue. 13 Moreover, the appellate court must conclusively presume that the ruling of the trial judge was correct, the evidence was sufficient to support the defendant's conviction, or the defendant received a fair and impartial trial. 14 In summary, a defendant is effectively denied appellate review of an issue when the record transmitted to the appellate court does not contain a transcription of the relevant proceedings in the trial court.

When the defendant is indigent, and appeals as of right to the Supreme Court or this Court, the State of Tennessee is required to provide the defendant with a "record of sufficient completeness" to permit proper consideration of the issues the defendant will present for review. 15 This does not mean, however, that the defendant is entitled, as a matter of constitutional right, to a transcript of all of the evidence and proceedings regardless of circumstances. 16 As the United States Supreme Court said in Draper v. Washington:

... [P]art or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may chose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds--the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions. [footnotes omitted]. 17

When the issues "make out a colorable need for a complete record", the State is required to provide the defendant with a complete verbatim transcript of the evidence and proceedings. 18 If the State contends that a verbatim transcript of only a portion of the proceedings, or, in the alternative, a statement of the evidence will suffice, the State has the burden or onus of showing that a partial transcript or a statement of the evidence is sufficient for the defendant to effectively present the issues and have them determined by the appellate court on the merits. 19

While there are several statutes and rules which address indigency and the right of an indigent defendant to a free transcript, they do not contain an explanation of the procedure to be utilized when an indigent accused applies for a transcription of the proceedings at the state's expense. Nor do these statutes and rules specifically set forth the role of the trial judge in determining what should be included in the transcript requested by an indigent defendant. Since the vast majority of defendants who elect to appeal from their convictions or an adverse judgment are indigent, it is in the interest of justice for this Court to establish the procedure to be followed when an indigent defendant applies for a free transcript.

Once the judgment has become final, it is the duty of the trial judge to advise the defendant of his or her right to appeal to this Court, or, in capital cases, to the Supreme Court. 20 The trial judge...

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