State v. Jefferson, 45320

• Decision Date: 08 November 1969
• Docket Number: No. 45320,45320
• Citation: 460 P.2d 610,204 Kan. 50
• Parties: STATE of Kansas, Appellee, v. Maurice JEFFERSON, Appellant.
• Court: Kansas Supreme Court

Page 610

460 P.2d 610

204 Kan. 50

STATE of Kansas, Appellee, v. Maurice JEFFERSON, Appellant.

No. 45320.

Supreme Court of Kansas.

Nov. 8, 1969.

Syllabus by the Court

1. The inability of the state to provide a full transcript of the trial proceedings does not entitle the defendant to a new trial per se.

2. Before appellant can claim prejudice to his substantive rights based upon the unavailability of all or a portion of the record he must make a good faith effort to obtain a secondary statement of the lost portion of the transcript as outlined in Rule 6(n) of this court.

3. In an appeal from a judgment and sentences for kidnapping, felonious assault and unlawful possession of a pistol, the record is examined and it is held, (1) the portion of the record available on appeal is sufficient to support the judgment and uphold the verdicts, (2) photographs admitted at the trial were properly identified and sponsored by the expert whose testimony they served to explain and illustrate and (3) no reversible error is shown.

Brian Moline, Wichita, argued the cause and Ralph Gilchrist, Carl Buck and Stephen Lester, Wichita, were with him on the brief for appellant.

James Z. Hernandez, Deputy County Atty., argued the cause and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and Reese C. Jones, Deputy County Atty., were with him on the brief for appellee.

FROMME, Justice.

Maurice Jefferson was convicted of first degree kidnapping (K.S.A. 21-449), felonious assault (K.S.A. 21-431) and unlawful possession of a pistol (K.S.A. 21-2611). The trial covered seven days. A jury returned verdicts of guilty on each of the counts. Judgment was entered approving the verdicts and sentencing the defendant.

This is a direct appeal from that judgment.

Five court reporters took turns in reporting the trial proceedings. One of these reporters lost her shorthand notes. A complete transcript of the proceedings is not available. Defendant argues the incomplete transcript makes meaningful appellate review impossible and deprives him of substantive rights. He asks that the judgment be reversed and the verdicts set aside.

The record before us covers a substantial part of the trial proceedings. The testimony of all of the witnesses for the prosecution except one is recorded. The testimony of the last five witnesses for defendant is recorded. The recorded and transcribed testimony available on this appeal is sufficient to support the judgment and uphold the verdicts. The record includes testimony of the victim and five eye witnesses to the shooting and abduction. A brief summary of their testimony will suffice.

On the day in question the defendant called Mrs. Cochran on the telephone and made a veiled threat to her person. The defendant and Mrs. Cochran were estranged paramours. Mrs. Cochran left her home with her three children with the intention of spending the night at her grandmother's home. On the way she stopped at an aunt's house. The aunt accompanied them and drove the car. The children were in the back seat. The defendant drove up and forced them to stop their car by using his car as a battering ram. The defendant jumped out of his car and proceeded to pound on the window of the Cochran vehicle with a pistol until Mrs. Cochran unlocked the door in response to his demands. Defendant jerked Mrs. Cochran out of the car, called her a vile name and shot her in the arm. Thereafter he dragged her down the street toward his car. The aunt and three children got out of the car and pleaded with a couple on the street. They asked for help to assist in taking Mrs. Cochran to the hospital. The aunt and a twelve year old son helped Mrs. Cochran to the couple's car. The defendant threatened the couple, fired his gun into the ground and forced Mrs. Cochran into his car. Two of the children got into the back seat of defendant's car. The defendant drove them several blocks from the scene of the previous action, began crying and then shot himself in the chest. After Mrs. Cocharn had stopped the defendant's car by placing her foot on the brake pedal, she pulled the keys and got out. The gun fell into the street, unnoticed by defendant. Defendant then demanded the keys to his car. On receiving the keys he drove off. The gun was retrieved from the street and Mrs. Cochran was treated at a hospital for the gunshot wound in her arm.

The defendant does not question the sufficiency of this and other evidence which is available in the record. He contends: An appeal to this court may be taken as a matter of right under K.S.A. 62-1701. It is the duty of the official court reporter to take full stenographic notes of the entire trial proceedings as provided in K.S.A. 20-903. An indigent defendant shall be entitled to a transcript of the entire proceedings under K.S.A. 62-1304(b). He concludes under authority of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 and similar cases, that the inability of the state to provide a full transcript of trial proceedings entitles the defendant to a new trial per se. We do not believe the cases cited support such a rule of automatic reversal.

In our present case a portion of the transcript is unavailable because of the loss or destruction of a part of the stenographic notes of the proceedings. The cases referred to by defendant relate to instances where a transcript is available but is denied a defendant because of his inability pay for the same. The high court in such cases has declared that such a denial of an available transcript is an invidious discrimination against the indigent.

The federal courts have not found invidious discrimination attends when all or a portion of the transcript is unavailable because of the loss of stenographic notes or because of the death of the stenographer who alone can transcribe the record of trial. (Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456; Goodwin v. Page, 296 F.Supp. 1205 (D.C.1969); United States v. Pate, (7 C.A.1963) 318 F.2d 559.)

In Norvell v. Illinois, supra, it was said:

'When, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made. * * *

'The 'rough accommodations' made by government do not violate the Equal Protection Clause of the Fourteenth Amendment unless the lines drawn are 'hostile or invidious'. * * *' (83 S.Ct. 1368-1369, 10 L.Ed.2d 459)

Under our Kansas case law we have long recognized and approved the use of a reconstructed statement of a lost or destroyed transcript. The burden is on the appealing party to initiate the necessary proceedings to reconstruct a secondary record. (Spencer v. McClenney, 104 Kan. 107, 178 P. 253; State v. Allen, 111 Kan. 3, 206 P. 340; Addington v. State, 198 Kan. 228, 424 P.2d 871.)

The 'rough accommodations' referred to by the high court are provided by Rule 6(n) of this court as follows:

'In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within ten (10) days after service upon him. Thereupon, the statement, with objections or proposed amendments, shall be submitted to the...