State v. Ladson

Decision Date09 April 2007
Docket NumberNo. 4232.,4232.
Citation644 S.E.2d 271
PartiesThe STATE, Respondent, v. Travis Anthony LADSON, Appellant.
CourtSouth Carolina Court of Appeals

Appellate Defender Aileen P. Clare, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor David M. Pascoe, Jr., of Summerville, for Respondent.

KITTREDGE, J.:

Travis Anthony Ladson was convicted of first-degree burglary following a three-day trial. Ladson was sentenced on November 10, 2004, to prison for a non-parolable term of twenty-five years. Ladson timely appealed his conviction and sentence. In accordance with standard procedure, Ladson promptly requested the transcript of the trial from the court reporter. Approximately ten months later, in August of 2005, the court reporter finally disclosed that there was no record of the trial court proceedings.

Because of the complete absence of a transcript, Ladson moved this court to reverse the convictions and sentences and for a new trial. Based on the State's assurance that the record could be easily reconstructed, a judge of this court denied Ladson's motion and remanded the matter to the trial court to reconstruct the record. More than a year after the trial, the trial judge convened a hearing with trial counsel in an effort to reconstruct the record.

We now have before us what the State contends is a reconstructed record of the trial court proceedings sufficient to permit appellate review. Ladson contends the conclusory and summary nature of the purported record on appeal does not permit meaningful appellate review. Because we find the reconstructed record insufficient for meaningful review of direct appeal issues, we reverse and remand for a new trial.

I.

On January 5, 2006, pursuant to this court's order, the trial judge held a hearing to reconstruct the record for appeal.1 It was clear from the outset of this hearing that reconstructing the record from scratch, after such a substantial delay, would be an uphill struggle. The State presented two affidavits from witnesses and "summarized" the testimony of the other witnesses.

The information provided by the State was conclusory. The State usually prefaced its recall of witness testimony with statements like "his testimony generally would be," "he testified generally to the following," and "the next witness . . . will be by summation." Ladson took issue with the State's summary reconstruction of the record. The trial judge, noting that he no longer had his handwritten notes from the trial, typically would conclude with respect to a particular witness that the State presented "an accurate summation of the testimony," or the State's general description was "a correct summation of the testimony," or "the summation presented by the State . . . [was] a correct statement."

When the State concluded its summary of the testimony of one witness, the trial court concurred with the summary as "an accurate reflection of her testimony," and further held that the witness was "qualified as an expert in her field, and . . . the court found her testimony to be credible." The trial court then remarked, "I do not believe there was any question, at any point in time, as to the chain of evidence regarding these particular fingerprints." The State corrected the trial court and noted that the witness was not qualified as an expert and further that Ladson's trial counsel had preliminarily objected to the chain of custody. The trial court promptly agreed and explained the confusion by referring to another witness.

The State, too, had difficulty recalling the witnesses and the testimony. For example, the State had completely forgotten about one witness, whose identity was determined only by reference to Ladson's trial counsel's notes. As the Solicitor acknowledged, "the final witness that I have to admit I discovered from [Ladson's trial counsel's] notes."

There is even a dispute as to whether Ladson testified in his own defense. Ladson claims he did not testify. The trial court found otherwise, noting the "court's remembrance and recollection that the Defendant was not credible, and did not help himself in his testimony before the jury."

The trial court appeared equally confident that the jury returned its verdict the same day it began its deliberations: "My only recollection is that, after the court answered [a question from the jury], that the jury came out relatively soon after that with a verdict." When confronted with a different recollection from Ladson's counsel (claiming the jury was excused for the day and reached a verdict the following day), the trial court responded, "I usually require the jury to stay for as long as it takes [until it] come[s] back with a verdict. I don't ever remember an occasion where I have allowed a jury to go home and come back." The trial court's recollection was proven faulty when the State called attention to the juror note dated November 9, 2004, and the jury's verdict dated the next day, November 10.

The trial court and the State are confident that Ladson made timely objections at trial and moved for a directed verdict "based upon the evidence." Presumably, the State believes these concessions enlighten Ladson and us to the specific issues to address on appeal.

On January 26, 2006, the trial court issued an "Order for the Record on Appeal."

II.

Ladson maintains the reconstructed record does not allow for meaningful review of his direct appeal. The State disagrees and asserts this court should find the record adequate for appellate review of the claims Ladson raised at the reconstructed hearing.

It is clear from the record before us that all parties made a diligent effort to reconstruct the record. Despite these good faith efforts, the reconstructed record is largely conclusory, with testimony, objections, and the like recalled only in summary fashion. Thus, we must first determine the analytical framework for assessing the sufficiency of a reconstructed record, followed by a determination if the law warrants a new trial under the record before us.

South Carolina jurisprudence recognizes the trial court's authority to set the record for appeal. In China v. Parrott, 251 S.C. 329, 334, 162 S.E.2d 276, 278 (1968), our supreme court held that where a portion of the court reporter's notes were lost, the trial judge properly considered affidavits from counsel and the court reporter in reconstructing the record. See also Koon v. State, 358 S.C. 359, 367, 595 S.E.2d 456, 460 (2004) (recognizing a court's power to remand for a reconstruction hearing), overruled on other grounds by State v. Gentry, 363 S.C. 93, 105, 610 S.E.2d 494, 501 (2005); Whitehead v. State, 352 S.C. 215, 221, 574 S.E.2d 200, 203 (2002) (finding that when a transcript has been lost or destroyed, an appellate court may remand to have the record reconstructed); Dolive v. J.E.E. Developers, Inc., 308 S.C. 380, 383, 418 S.E.2d 319, 321 (Ct.App. 1992) (holding trial court did not err in granting property owner's request to reconstruct the record of zoning proceeding where portions of original tape of hearing were incapable of being transcribed).

The authority of the trial court in South Carolina to reconstruct the record for appellate purposes aligns our state with the majority of jurisdictions that hold "the inability to prepare a complete verbatim transcript, in and of itself, does not necessarily present a sufficient ground for reversal." Smith v. State, 291 Md. 125, 433 A.2d 1143, 1148 (1981); e.g., Lewis v. State, 354 Ark. 359, 123 S.W.3d 891, 893 (2003); Wilson v. State, 334 Md. 469, 639 A.2d 696, 699 (1994); State v. Deschon, 320 Mont. 1, 85 P.3d 756, 760 (2004); Lopez v. State, 105 Nev. 68, 769 P.2d 1276, 1280 (1989); State v. Izaguirre, 272 N.J.Super. 51, 639 A.2d 343, 346 (App.Div. 1994); People v. Shire, 23 A.D.3d 709, 803 N.Y.S.2d 309, 310 (N.Y.App.Div. 2005); State v. Quick, 634 S.E.2d 915, 918 (N.C.Ct.App. 2006); Dickerson v. Commonwealth, 36 Va. App. 8, 548 S.E.2d 230, 232-33 (2001).

Most jurisdictions require an appellant to demonstrate specific prejudice flowing from an incomplete or reconstructed record. See, e.g., Lewis, 123 S.W.3d at 893 ("[I]t is the appellant's duty to demonstrate that prejudice results from the state of the record"); State v. Williams, 227 Conn. 101, 629 A.2d 402, 406 (1993) (holding appellant must show "specific prejudice that results from having to address his claims on appeal with the reconstructed record"); Jones v. State, 923 So.2d 486, 489 (Fla. 2006) (noting appellant must point to prejudice resulting from missing portions of trial transcript); State v. Wright, 97 Idaho 229, 542 P.2d 63, 65 (1975) (holding appellant must demonstrate "specific prejudice" resulting from failure to reconstruct record); Simpson v. Commonwealth, 759 S.W.2d 224, 228 (Ky. 1988) (holding a showing of "prejudicial error" in having to proceed using substitute transcript is required); Smith, 433 A.2d at 1148 (noting "defects must be of a prejudicial character"); Commonwealth v. Chatman, 10 Mass.App.Ct. 228, 406 N.E.2d 1037, 1040 (1980) (holding appellant must "come forward with articulable claims [by] which the reconstruction may be judged"); State v. Borden, 605 S.W.2d 88, 92 (Mo. 1980) (holding appellant must demonstrate prejudice); State v. Dupris, 373 N.W.2d 446, 449 (S.D. 1985) (holding appellant must show "specific error or prejudice" resulting from failure to record entire proceedings of trial); State v. Neal, 172 W.Va. 189, 304 S.E.2d 342, 345 (1983) ("Generally, the failure to report some part of the proceeding will not alone constitute reversible error[;] [s]ome identifiable error or prejudice must be shown by the defendant."). "[B]efore a defendant can establish that he is entitled to a new trial on the basis of an inadequate...

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  • Adams v. Wise
    • United States
    • U.S. District Court — District of South Carolina
    • March 15, 2022
    ...that ‘the incomplete nature of the transcript prevents the appellate court from conducting a “meaningful appellate review.”'” Ladson, 644 S.E.2d at 274 (quoting In re D.W., 615 S.E.2d 90, 94 (N.C. App. 2005)). In finding the reconstructed record in Ladson did not permit meaningful review, t......
  • Adams v. Wise
    • United States
    • U.S. District Court — District of South Carolina
    • March 15, 2022
    ...that ‘the incomplete nature of the transcript prevents the appellate court from conducting a “meaningful appellate review.”'” Ladson, 644 S.E.2d at 274 (quoting In re D.W., 615 S.E.2d 90, 94 (N.C. App. 2005)). In finding the reconstructed record in Ladson did not permit meaningful review, t......
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    • United States
    • U.S. District Court — District of South Carolina
    • March 14, 2022
    ...... . . On. September 15, 2015, Petitioner filed an application for. post-conviction relief (“PCR”) in state court,. alleging, among other claims, involuntary guilty plea and. ineffective assistance of counsel. (ECF No. 14-1 at 5.). Because ... transcript, in and of itself, does not necessarily present a. sufficient ground for reversal.” State v. Ladson , 644 S.E.2d 271, 273 (S.C. Ct. App. 2007) (citing. majority law from numerous other jurisdictions). Here, both. plea counsel and the ......
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    • United States
    • U.S. District Court — District of South Carolina
    • March 14, 2022
    ...... . . On. September 15, 2015, Petitioner filed an application for. post-conviction relief (“PCR”) in state court,. alleging, among other claims, involuntary guilty plea and. ineffective assistance of counsel. (ECF No. 14-1 at 5.). Because ... transcript, in and of itself, does not necessarily present a. sufficient ground for reversal.” State v. Ladson , 644 S.E.2d 271, 273 (S.C. Ct. App. 2007) (citing. majority law from numerous other jurisdictions). Here, both. plea counsel and the ......
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