State v. Neal, 15718

• Decision Date: 22 June 1983
• Docket Number: No. 15718,15718
• Citation: 304 S.E.2d 342,172 W.Va. 189
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Bernard E. NEAL, Jr.

Page 342

304 S.E.2d 342

172 W.Va. 189

STATE of West Virginia v. Bernard E. NEAL, Jr.

No. 15718.

Supreme Court of Appeals of West Virginia.

June 22, 1983.

Syllabus by the Court

"Under the provisions of W.Va.Code, 51-7-1 and -2, all proceedings in the criminal trial are required to be reported; however, the failure to report all of the proceedings may not in all instances constitute reversible error." Syllabus point 5, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978).

Buford P. Early, III, Sanders & Blue, Bluefield, for appellant.

Michael E. Froble, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

This case is before this Court upon an appeal by the petitioner, Bernard E. Neal, from his 1981 conviction in the Circuit Court of Mercer County, West Virginia, for the offense of obstructing an officer. ¹ Obstructing an officer is a misdemeanor offense pursuant to W.Va.Code, 61-5-17 [1931]. ² This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

The State asserted below that on March 12, 1981, the petitioner blocked a narrow road with a motor vehicle near the City of Bluefield in Mercer County and, as a result, obstructed W.T. Jones, an officer of the City of Bluefield, in Jones' pursuit of a suspected felon. On that day, a Mercer County magistrate issued a warrant for arrest charging the petitioner with obstructing an officer. W.Va.Code, 62-1-2 [1965]. The petitioner was later found guilty by a magistrate court jury.

The petitioner appealed his conviction to the Circuit Court of Mercer County. On October 9, 1981, in that court, a jury found the petitioner guilty. The trial judge sentenced the petitioner to 30 days in jail with eligibility for work release. We subsequently granted the petitioner's appeal to this Court.

It should be noted that this Court has before it no transcript of the testimony leading to the petitioner's conviction for the offense of obstructing an officer. The petitioner's trial in circuit court was not reported by a court reporter.

The petitioner asks this Court to set aside his conviction and sentence. He contends inter alia, that the circuit court committed error in failing to provide a court reporter to report the proceedings leading to his conviction. The petitioner asserts that the absence of a court reporter during the proceedings before the circuit court inhibits appellate review by this Court and was, therefore, prejudicial to the petitioner. The State, on the other hand, contends that (1) the petitioner waived any right he may have had to a court reporter in circuit court by failing to request a court reporter, and (2) the absence of a court reporter during the petitioner's circuit court trial resulted in no prejudice to the petitioner.

Inasmuch as we are of the opinion that the court reporter issue is dispositive of this appeal, we need not address the other issues raised in the petition. As the petition indicates in its enumeration of assignments of error, those other issues are overshadowed by the court reporter issue. ³

The appointment of court reporters to report criminal proceedings in circuit court is permitted pursuant to W.Va.Code, 51-7-1 [1931], and W.Va.Code, 51-7-2 [1931]. W.Va.Code, 51-7-1 [1931], provides, in part, as follows:

The circuit courts of the several judicial circuits in this State, or the judges thereof in vacation, or the judges of any intermediate, criminal or common pleas court, are hereby empowered and authorized to appoint competent shorthand reporters to take and report under such regulations as such judges, or any of them, may prescribe, the proceedings had and the testimony given in any case, either civil or criminal, or in any other proceeding had in such court, including the taking of testimony before the grand jury of such court for the use of the prosecuting attorney of the county, and in proceedings before the judge of such court in vacation, and otherwise to aid the judge in the performance of his official duties.

W.Va.Code, 51-7-2 [1931], provides that "[i]t shall be the duty of such reporter to take full shorthand notes of the testimony and proceedings in which his services may be required, and such notes shall be deemed and held to be official and the best authority in any matter in dispute."

Those statutes were discussed by this Court in State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978), in which case this Court affirmed the defendant's felony conviction for arson. The defendant asserted that the State made prejudicial remarks during closing argument and that, because the court reporter failed to report closing argument, reversible error occurred. The nature of the State's remarks were placed in the record at trial after closing argument. This Court held those remarks, and the failure of the court reporter to report them, to be insufficiently prejudicial to justify reversal.

This Court noted in Bolling that most court reporter statutes fall into two categories. The first category includes state statutes "which do not require the court reporter to record all or designated parts of the proceedings unless ordered by the judge or requested by the parties." 162 W.Va. at 110, 246 S.E.2d at 635. The second category includes 28 U.S.C. § 753, a federal court reporter statute, ⁴ as well as certain state statutes. The statutes in the second category set forth a general duty to report all of the proceedings and "no provision for a request is mandated." 162 W.Va. at 111, 246 S.E.2d at 636.

West Virginia was held in Bolling to be included in the second category. This Court held that pursuant to W.Va.Code, 51-7-1 [1931], and W.Va.Code, 51-7-2 [1931], "all proceedings in the criminal trial are required to be reported...." Syllabus point 5. However, in accord with the standard concerning 28 U.S.C. § 753, we noted that a reversal, for failure to comply with the requirement that all proceedings must be reported, will not occur unless some error or prejudice is shown. This Court stated in Bolling as follows:

This Court has not had occasion to consider what must be reported in a criminal trial under the provisions of W.Va.Code, 51-7-1 and -2. We view these statutes as containing language similar to the federal act, 28 U.S.C. § 753, and conclude that a rule similar to that evolved by the federal courts is required. Under such a rule all proceedings occurring in the criminal trial are required to be reported. We also adopt the federal standard that the failure to report all of the proceedings may not in all instances constitute reversible error....

The question of when the failure to report portions of criminal proceedings will constitute reversible error cannot be answered by a mechanistic rule. Generally, the failure to report some part of the proceeding will not alone constitute reversible error. Some identifiable error or prejudice must be shown by the defendant.

162 W.Va. at 113-115, 246 S.E.2d at 637 and 638.

Finally, we indicated in Bolling that the primary ground for the full reporting of a criminal proceeding is to "provide the availability for an adequate record for appeal." 162 W.Va. at 114, 246 S.E.2d at 637 .

The importance of a trial transcript to a defendant in a criminal case is obvious. Recognizing the problems upon appeal resulting to a criminal defendant in the absence of a complete trial transcript, this Court noted in State ex rel. Kisner v. Fox, 165 W.Va. 123, 267 S.E.2d 451 (1980), that, "[p]rejudicial remarks, hidden issues, and questions relating to the judge's instructions to the jury may all disclose error [from a transcript] substantial enough to reverse the conviction." 165 W.Va. at 126 127, 267 S.E.2d at 453. ⁵ Furthermore citing Bolling, supra, we stated in State v. Helmick, 169 W.Va. 94, 286 S.E.2d 245 (1982), that "[t]his Court has previously recognized that omitted portions of the record can cause a petitioner prejudicial hardship." 169 W.Va. at 99, 286 S.E.2d at 249.

Although this Court in Bolling was asked to review a felony conviction, the holding in that case and the accompanying language of the opinion declined to distinguish felonies from misdemeanors with respect to the requirement of court reporters for criminal proceedings on the circuit court level. Syllabus point 5 of Bolling states in full that: "Under the provisions of W.Va.Code, 51-7-1 and -2, all proceedings in the criminal trial are required to be reported; however, the failure to report all of the proceedings may not in all instances constitute reversible error." ⁶ Nor does the language of W.Va.Code, 51-7-1 [1931], and W.Va.Code, 51-7-2 [1931], distinguish felonies from misdemeanors concerning the requirement of court reporters. Specifically, W.Va.Code, 51-7-1 [1931], empowers circuit courts to appoint court reporters for proceedings "either civil or criminal," and W.Va.Code, 51-7-2 [1931], requires court reporters to take notes of "testimony and proceedings" as may be required. We therefore hold that under the provisions of W.Va.Code, 51-7-1 [1931], and W.Va.Code, 51-7-2 [1931], all proceedings in a criminal trial in circuit court are required to be reported, whether such proceedings relate to felony or misdemeanor charges; however, the failure to report all of the proceedings may not in all instances constitute reversible error.

Furthermore, contrary to the assertion of the State in this case, a criminal defendant in circuit court does not waive the reporting of the proceedings by failing to request a court reporter. In Bolling, we indicated that West Virginia is aligned with those jurisdictions in which no such request is mandated.

We must now consider whether the failure to report the circuit court proceedings leading to the petitioner's conviction constitutes reversible error. It must be emphasized that, unlike other instances where only the closing arguments were not recorded, none of the circuit court proceedings in this case were reported...