State v. Tilton

• Decision Date: 10 July 2003
• Docket Number: No. 72688-4.,72688-4.
• Citation: 149 Wash.2d 775,72 P.3d 735
• Parties: STATE of Washington, Respondent, v. Nathaniel E. TILTON, Petitioner.
• Court: Washington Supreme Court

72 P.3d 735

149 Wash.2d 775

STATE of Washington, Respondent, v. Nathaniel E. TILTON, Petitioner.

No. 72688-4.

Supreme Court of Washington, En Banc.

Argued February 11, 2003.

Decided July 10, 2003.

Nina Hodgson, Nathaniel Tilton, Bellingham, Nielsen, Broman & Assoc., Eric Nielsen, David Koch, Seattle, for petitioner.

David S. McEachran, Whatcom County Prosecutor, Eric Richey, Deputy, Bellingham, for respondent.

CHAMBERS, J.

Nathaniel E. Tilton, a juvenile, was charged with sexually molesting his younger brother. The younger boy testified that his older brother was asleep, and while sleeping had grabbed the younger boy's "private parts."

At trial the court tape recorder was accidentally not turned on when Tilton began to testify.¹ Consequently, none of Tilton's direct testimony, and only a small portion of his cross-examination, was recorded. Tilton contends he was prejudiced by an incomplete record on review. Tilton asserts that the reconstructed record was not sufficiently complete to enable him to effectively identify and argue issues on appeal, particularly a claim for ineffective assistance of counsel based on his counsel's failure to raise diminished capacity or an intoxication defense. We agree with Tilton and vacate his conviction and remand for a new trial.

FACTS

On February 1, 2000, Tilton, age 15, his brother J.L., age 6, and his sister Jiah, age 5, spent the night at the home of a family friend, Gretchen Titus, who was baby-sitting the children while their parents² attended a music concert. Titus's children, Hannah, age 5, and Heidi, age 8, were also in the home. At bedtime, Jiah became upset and began yelling, "I want Nate," referring to Tilton. Report of Proceedings (RP) at 140. Titus asked Tilton to go upstairs and lie down on the mat that Jiah and J.L. were sharing in Hannah's room. Tilton lay down between Jiah and J.L.

Not long after Tilton had gone upstairs, Heidi, who was in an adjoining room, heard J.L. making some "fussing" noises. Report of Pretrial Hr'g at 95. Heidi asked J.L. what was wrong. J.L. told Heidi that "Nate was playing with his privates." RP at 41. Heidi told J.L. to go downstairs and tell her mother. J.L. found Titus and said to her, "Nate keeps touching my private parts.... He is sleeping and I can't wake him up and make him stop." RP at 143. Titus took J.L. back upstairs and told Tilton to go downstairs. When asked if Tilton was asleep or awake when she went upstairs, Titus testified, "He didn't look asleep. He looked maybe just quiet. Kind of relaxed. Like, okay and just lifted up his head, scooted back and it was nothing dramatic." RP at 145. Titus did not say anything to Tilton about J.L.'s complaints. Titus then went downstairs and smoked marijuana with Tilton, which she provided.

The next day Titus told Tilton's and J.L.'s parents. They questioned Tilton, who said that he did not remember any such incident from the night before. He admitted to them that he may have been asleep and that he had been under the influence of marijuana. Tilton apologized to J.L. saying, "If I did this to you I'm really sorry. I don't remember." RP at 240. The parents believed the incident was inadvertent. Titus reported the incident to the police.

At a bench trial before a court commissioner, J.L. testified that Tilton was asleep when the incident occurred and that he believed Tilton was talking in his sleep.

When Tilton began his testimony, the court reporter forgot to turn on the tape recorder which was being used to record the proceedings. The tape recorder was turned on again 36 minutes later, near the end of Tilton's cross-examination. Although we do not have a verbatim transcript of Tilton's testimony, it appears from the commissioner's oral ruling and affidavit that Tilton testified that he smoked marijuana both before and after the alleged incident.

The commissioner found Tilton guilty of molestation in the first degree. Prior to sentencing, Tilton's trial attorney withdrew and another attorney was substituted as counsel. The gap in the record was discovered just prior to sentencing.

At sentencing, a mental health expert, who had been working with Tilton for over a year, testified that Tilton needed drug treatment and indicated that he did not believe Tilton had any problems related to sexual predation. There is also reference at sentencing to a psychiatric expert who examined Tilton and reported Tilton had a history of blackouts from marijuana. Neither of these professionals was called as a witness at trial. Witnesses, who were called at trial, testified that Tilton said he smoked marijuana provided by Titus both before and after he went upstairs to calm down his sister. Tilton contends his attorney's failure to argue diminished capacity or voluntary intoxication was ineffective assistance of counsel.

After sentencing the prosecutor brought a motion in the superior court to reconstruct the missing record. Tilton's counsel was not present and the prosecutor stated he had been unable to locate him. The judge asked the prosecutor if reconstruction of the record was governed by a court rule and the prosecutor responded that it was not. The judge then outlined the following procedure for reconstructing the missing part of the record: he ordered the prosecutor to prepare an affidavit of his recollections of Tilton's testimony, forward it to Tilton's trial counsel, who was to review it and then submit his own affidavit. Both affidavits were to be sent to the court commissioner, who was to prepare his own affidavit, adding or rejecting information. The superior court judge would review the three affidavits and hear motions to resolve any discrepancies.

Tilton's trial attorney indicated in his affidavit that he had no independent recollection of the defendant's testimony and had no notes because he was the one asking questions. He objected to the reconstruction, noting the affidavits were a "poor substitute for a verbatim record of the testimony of a defendant on trial for such a serious offense." Clerk's Papers at 36-37. On the State's motion, the superior court found that there were no conflicts of consequence in the affidavits, that the affidavits should be allowed to reconstruct the record, and that Tilton was not prejudiced by the failure to record his testimony. Tilton's counsel was not present. The superior court granted the State's motion and adopted the affidavits as the reconstructed record.

ANALYSIS

Tilton argues that the reconstructed record is insufficient for purposes of appellate review.

A criminal defendant is "constitutionally entitled to a `record of sufficient completeness' to permit effective appellate review of his or her claims." State v. Thomas, 70 Wash.App. 296, 298, 852 P.2d 1130 (1993) (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)). "A `record of sufficient completeness' does not translate automatically into a complete verbatim transcript." Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414, 30 L.Ed.2d 372 (1971) (quoting Coppedge, 369 U.S. at 446, 82 S.Ct. 917, quoted with approval in Thomas, 70 Wash.App. at 299,

852 P.2d 1130). Other methods of reporting trial proceedings may be constitutionally permissible if they permit effective review. An alternative method must allow counsel to determine which issues to raise on appeal, and "`place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise.'" State v. Jackson, 87 Wash.2d 562, 565, 554 P.2d 1347 (1976) (quoting Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1962)).

The Washington Rules of Appellate Procedure (RAPs) set forth the form, content, and method of preparing a report of proceedings for appellate review. The rules also establish the procedure for reconstructing a record when the tape recording of the proceedings has been lost.

The RAPs direct the party seeking review to prepare either a narrative report of proceedings under RAP 9.3 or an agreed report of proceedings under RAP 9.4, and file that with the trial court.³ Objections and proposed amendments to either the narrative report or a verbatim report are filed with the trial court, and the trial judge settles the objections and approves amendments as per RAP 9.5(c) and (d).

Here, the State brought a motion in superior court for reconstruction of the record. The superior court judge ordered a procedure somewhat similar to that set out in the RAPs. Had the parties followed the RAPs, however, the burden of reconstructing the record would have been on the appellant, Tilton. As it was, the State assumed the burden immediately, recommended a procedure, and then encountered significant problems in the reconstruction of the record.⁴ The usual remedy for a defective record is to supplement the record with appropriate affidavits and have discrepancies resolved by the judge that heard the case. RAP 9.3, 9.4, 9.5. However, where the affidavits are unable to produce a record which satisfactorily recounts the events material to the issues on appeal, the appellate court must order a new trial. For example, in State v. Larson, 62 Wash.2d 64, 381 P.2d 120 (1963), this court held that the reconstructed record was insufficient and ordered a new trial. The court reporter's notes from the entire trial were lost and the trial judge prepared a narrative statement of facts based on his notes. Id. at 65, 381 P.2d 120.

This court found the reconstructed record inadequate. The defense attorney, who had not been the attorney at trial, was unable to test the "sufficiency of completeness" of the narrative statement of facts and was unable to satisfactorily determine what errors to assign for review. Id. at 67, 381 P.2d 120. The lack of a sufficient record constituted a denial of due process, and the court reversed the convictions and remanded for a new trial.

The facts of the current case are similar to Larson....