State v. Perry

• Decision Date: 26 December 1985
• Docket Number: No. 84-875-CR,84-875-CR
• Citation: 381 N.W.2d 609,128 Wis.2d 297
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert L. PERRY, Defendant-Appellant. *
• Court: Wisconsin Court of Appeals

Page 609

381 N.W.2d 609

128 Wis.2d 297

STATE of Wisconsin, Plaintiff-Respondent, v. Robert L. PERRY, Defendant-Appellant.^*

No. 84-875-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 9, 1985.

Opinion Released Dec. 26, 1985.

Opinion Filed Dec. 26, 1985.

Stephen J. Eisenberg and Mark A. Eisenberg and Eisenberg Law Offices, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., for plaintiff-respondent.

Before DYKMAN, EICH and CANE, JJ.

EICH, Judge.

Robert Perry appeals from a judgment convicting him of burglary, robbery, and injury by conduct regardless of life in violation of secs. 943.10(1)(a), 943.32(1)(a) and 940.23, Stats. The dispositive issue is whether the trial transcript, substantial portions of which are missing, is sufficient to permit proper consideration of the appeal. We answer the question in the negative and therefore reverse and remand for a new trial.

Appellant's trial lasted approximately eight days. During the morning sessions of the final two days, a substitute court reporter reported the proceedings. After the trial, the reporter moved to a different city, leaving her notes behind. When a trial transcript was ordered, the notes were mailed to the reporter for transcription. The notes were lost in the mail and, when finally located by postal authorities, were incomplete and in "a jumbled mess."

The reporter pieced together what she could but significant portions of the transcript are missing. The docket entries for the first of the two days indicate that arguments on motions began at 9:05 a.m., after which eleven defense witnesses testified, all before the noon recess. Only the testimony of four of these witnesses is complete. The testimony of two is missing altogether, and only portions of the testimony of the remaining five witnesses have been salvaged. On the following day the trial resumed with admission of exhibits and the state's closing argument. The available transcripts, however, include only the first seven, middle five and final fifteen pages of the state's argument. Six other pages contain random pieces of either closing argument or discussion of evidentiary matters. It is not known how many pages are missing. The problem is compounded by the fact that both counsel on appeal are new to the case; neither participated in the trial.

Appellant's postconviction motions included a request for a new trial on grounds that the defects in the transcript effectively denied him the right to appeal the conviction. The trial court, based on its memory of the year-old trial, ruled that the record was sufficient to "provide the appellate court with a basis of [sic] reviewing the entire record in the matter" and denied all postconviction motions. ¹

It goes without saying that an adequate record is necessary for review of the issues raised on appeal. However, lack of a verbatim transcript does not amount to denial of the right to appeal when a suitable alternative is available, such as a statement of facts agreed to by both sides, a full narrative based, perhaps, on the trial judge's minutes taken during trial, or a bystander's bill of exceptions. Mayer v. Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-15, 30 L.Ed.2d 372 (1971); Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963). In this case no suitable alternative is available. ²

The state argues first that appellant has waived his right to challenge the adequacy of the transcript because he failed to follow available procedures to remedy the defects--a motion to the trial court to correct the record. A majority of jurisdictions will consider a motion for new trial based on transcript deficiencies only if the appellant first establishes that available methods for reconstructing the record are inadequate: Annot., 107 A.L.R. 603 (1937); State v. Hart, 110 Ariz. 55, 514 P.2d 1243, 1245 (1973); People v. Apalatequi, 82 Cal.App.3d 970, 147 Cal.Rptr. 473, 475 (1978); State v. Vitale, 190 Conn. 219, 460 A.2d 961, 965 (1983); Yancey v. State, 267 So.2d 836, 836-37 (Fla.Ct.App.1972); State v. Stafford, 223 Kan. 62, 573 P.2d 970, 972 (1977); Smith v. State, 291 Md. 125, 433 A.2d 1143, 1149 (1981); State v. Borden, 605 S.W.2d 88, 91-92 (Mo.1980); State v. Neely, 21 N.C.App. 439, 204 S.E.2d 531, 532 (1974); State v. Moore, 87 N.M. 412, 534 P.2d 1124, 1126 (1975).

In nearly all of these cases, however, there was a statutory or other well-defined and longstanding procedure which a party was required to follow in the trial court to correct claimed inadequacies in the transcript. In Wisconsin, the matter is governed wholly by statute, and the statutory procedure is permissive rather than mandatory.

The only reported Wisconsin cases dealing with missing or inadequate transcripts do, as the state suggests, adopt a similar "waiver" rule--that a corrective motion is a condition precedent to raising the issue on appeal. Peterson v. State, 73 Wis.2d 417, 422-23, 243 N.W.2d 491, 495 (1976); State v. Prober, 87 Wis.2d 423, 438-40, 275 N.W.2d 123, 129 (Ct.App.1978), rev'd on other grounds, 98 Wis.2d 345, 297 N.W.2d 1 (1980). However, both cases were decided under a then-existing statute requiring any party seeking amendment or correction of a transcript to bring an appropriate motion in the trial court. ³ In the absence of such a motion, the transcript as it existed was deemed approved for certification to the appellate court. The statute was repealed in 1978 and replaced with sec. 809.15(3), Stats., which provides: "A party who believes the record, including the transcript of the reporter's notes, is defective or does not accurately reflect what occurred in the trial court may move the court in which the record is located to correct the record" (emphasis added).

The state's view that sec. 809.15(3), Stats., is a mandatory statute is erroneous. It plainly states that an appellant "may move the court ... to correct the record," and the word "may" is generally construed as permissive. In re Marriage of Bouchard v. Bouchard, 107 Wis.2d 632, 633-34, 321 N.W.2d 330, 331 (Ct.App.1982). Because the statutory procedures for correction of an inadequate transcript are no longer mandatory, appellant has not waived his right to seek a new trial on that ground. ⁴

One of appellant's grounds for relief is a claim of prosecutorial misconduct. He has cited a number of instances in the existing record which he believes give credence to this claim, and he argues that "[s]ince a substantial part of the State's final argument is missing ..., it is impossible to determine whether other examples of prosecutorial misconduct occurred."

"[W]here the grounds of appeal ... make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an 'alternative' will suffice for an effective appeal on those grounds." Mayer, 404 U.S. at 195, 92 S.Ct. at 415. To determine whether appellant has shown a "colorable need," we consider whether it is impossible to pass upon the issue without direct study of relevant portions of the record. Id. at 198, n. 9, 92 S.Ct. at 416-17, n. 9. In Wisconsin, alleged prosecutorial misconduct in closing argument is an issue requiring such study. "As a general rule, this court will not consider an alleged error in closing argument absent a showing in the record of what was said." Smith v. State, 65 Wis.2d 51, 54, 221 N.W.2d 687, 689 (1974). The reasons for not undertaking review where the exact remarks do not appear in the record are obvious: "Slight changes in wording, emphasis and context may materially alter the perceived substance of the remarks." Id. at 54, 221 N.W.2d at 689. See also Zweifel v. Milwaukee Automobile Mut. Ins. Co., 28 Wis.2d 249, 257, 137 N.W.2d 6, 11 (1965). ⁵ Although the missing portion of the transcript may be only a relatively small part of the record--less than one-eighth of the entire trial--it is a crucial portion, for a prosecutor's prejudicial comment in closing argument has long been grounds for reversal. State v. Albright, 98 Wis.2d 663, 677-78, 298 N.W.2d 196, 204 (Ct.App.1980); Hoppe v. State, 74 Wis.2d 107, 120, 246 N.W.2d 122, 130 (1976).

The state argues, however, that "[b]y failing to point to any specific prejudice ... [appellant] has defaulted on his obligation of showing 'a colorable need for a complete transcript.' " The argument begs the question. "If appellant could specifically quote or describe the alleged prejudicial portions of the closing argument, and assuming that the prosecution accepted the defense's version, there would be no need for the missing transcript to insure meaningful appellate review." Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844, 846 (1978). We do not know whether appellant can establish his claim of prosecutorial misconduct because the entire closing argument is not available for our inspection. We note, too, that several jurisdictions have held that an incomplete transcript warrants a new trial where the party seeking relief is without fault and where a new trial is essential to the protection of his or her rights, regardless of whether any specific error has been alleged. United States v. Selva, 559 F.2d 1303 (5th Cir.1977); State v. Ford, 338 So.2d 107 (La.1976); Colwell v. State, 477 P.2d 398 (Okla.Crim.App.1969); Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978); Gamble v. State, 590 S.W.2d 507 (Tex.Crim.App.1979); State ex rel. Kisner v. Fox, 267 W.Va. 123, 267 S.E.2d 451 (1980).

The fact that appellant's counsel on appeal did not represent him at trial bears upon the need for a complete transcript. "[W]hen, as here, new counsel represents the [appellant], how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript?" Hardy v. United States, 375 U.S. 277, 280, 84 S.Ct. 424, 427, 11 L.Ed.2d 331 (1964). "Recollections and notes of trial cou...