State v. Verikokides

• Decision Date: 04 October 1996
• Docket Number: No. 940600,940600
• Citation: 925 P.2d 1255
• Parties: STATE of Utah, Plaintiff and Appellee, v. Alex VERIKOKIDES, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1255

925 P.2d 1255

STATE of Utah, Plaintiff and Appellee, v. Alex VERIKOKIDES, Defendant and Appellant.

No. 940600.

Supreme Court of Utah.

Oct. 4, 1996.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Thomas Vuyk, Salt Lake City, for plaintiff.

Lisa J. Remal, Ronald S. Fujino, Salt Lake City, for defendant.

DURHAM, Justice:

Defendant Alex Verikokides appeals from his conviction in third district court for rape of a child, a first degree felony, and sodomy upon a child, a first degree felony, pursuant to Utah Code Ann. § 78-2-2(3)(i) (Supp.1995). Defendant contends that this court should vacate his conviction and order a new trial because the record of his original trial was lost during a seven-year gap between conviction and sentencing due to his fugitive status.

On October 26, 1987, a jury convicted defendant of raping and sodomizing his thirteen-year-old stepdaughter. Before the court could impose sentence, however, defendant fled to Greece. A bench warrant was issued on November 5, 1987. Seven years later, defendant was arrested in Utah and brought before the trial court on June 21, 1994.

During defendant's seven-year absence, a string of unforeseen events occurred. First, the court reporter misplaced his notes of the second day of the two-day trial. Those notes contained the testimony of many of the prosecution's witnesses, including the victim's testimony, and all of the testimony of the defense witnesses, including defendant's testimony, as well as closing arguments. ¹ Second, the district court destroyed the trial exhibits in June 1992. Finally, defendant's counsel died, and his files were destroyed by his firm shortly thereafter. Thus, when defendant was caught in 1994 and taken before the district court for sentencing, the only record left of his trial was the reporter's notes of the first day of testimony and the motions filed with the court.

Before the trial court imposed sentence, defendant moved to arrest judgment on the ground that he would be deprived of a meaningful appeal because the reporter's notes of the second day of trial were "lost or destroyed," the trial exhibits had been destroyed, and his trial counsel had died. After an evidentiary hearing, the district court denied the motion and sentenced defendant to two consecutive minimum mandatory sentences of ten years to life. Defendant thereafter moved for a new trial, arguing that the lack of a trial transcript made appeal impossible. After an evidentiary hearing, the district court denied the motion, holding that by absconding, defendant had "waived" his right to a new trial. Defendant now appeals that ruling.

Defendant claims that the absence of a complete record of his trial makes any appeal illusory, thus precluding him from exercising his right to appeal guaranteed under the state constitution. ² As a result, he argues that we must now vacate his conviction and order a new trial.

This court has recognized a constitutional right to appeal arising from article I, section 12 of the Utah Constitution. ³ See State v. Tuttle, 713 P.2d 703 (Utah 1985). Moreover, we have noted that the almost complete absence of a trial transcript makes appellate review impossible because it precludes a meaningful review of the lower court's decision. Fackrell v. Fackrell, 740 P.2d 1318, 1319-20 (Utah 1987); State v. Taylor, 664 P.2d 439, 447 (Utah 1983); Sawyers v. Sawyers, 558 P.2d 607, 608-09 (Utah 1976); Briggs v. Holcomb, 740 P.2d 281, 283 (Utah.Ct.App.1987); see also State v. Menzies, 845 P.2d 220, 241 (Utah 1992) ("[C]riminal defendants have the right to a 'record of sufficient completeness to permit proper consideration of [their] claims.' " (quoting Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899 (1963))). This court cannot review a record that does not exist. The facts of this case, however, present a unique question: whether a defendant has forfeited his right to a meaningful appeal when his own illegal conduct caused a seven-year delay in the proceedings, thus increasing the risk that his trial transcript might be lost, that evidence and exhibits might be destroyed, and that his defense counsel might die before an appeal could be pursued, and ultimately jeopardizing the adequacy of his appeal.

Defendant argues that under our prior holding in State v. Tuttle, 713 P.2d 703 (Utah 1985), a court cannot refuse to reinstate an inmate's appeal as punishment for his flight. Defendant contends that refusing to grant him a new trial because his actions indirectly led to the impossibility of appellate review is tantamount to denying his appeal as punishment for his escape. We disagree.

Holding that an escape was already subject to a separate legislative punishment, this court in Tuttle determined that refusing to hear the appeal was an unwarranted additional sanction. Id. at 705. Although automatically dismissing an appeal or denying reinstatement of an appeal of a former fugitive is unconstitutional, this court's analysis in Tuttle does allow a criminal appeal to be dismissed or denied reinstatement if "the State can show that it has been prejudiced by the defendant's absence and the consequent lapse of time." Id. The instant case meets this exception.

Because of defendant's lengthy absence, at least ten years will have passed between the time that he allegedly committed the charged offenses and the time of any possible reprosecution. The victim is now a twenty-three-year-old woman living in another state. As the State notes, a jury may respond very differently to the testimony of an adult woman than it would to the same events recounted by a thirteen-year-old girl. See State v. Lundahl, 130 Or.App. 385, 882 P.2d 644, 647 (1994). The State might also be prejudiced in having to locate other witnesses who testified in 1987. Assuming all of the witnesses could be located, the long delay will likely compromise or diminish their ability to remember critical events. See id.

Tuttle concerned a defendant who fled after being sentenced and incarcerated. While he was absent from the jurisdiction, his appeal was dismissed. Upon his recapture, the State opposed the reinstatement of his appeal. As mentioned above, this court held that failure to reinstate the defendant's appeal as a punishment for the escape was not warranted.

The facts in the instant case are different. Unlike Tuttle, Mr. Verikokides's appeal became impossible partly as a result of his flight. Defendant's long absence and consequent failure to request transcription of the reporter's notes increased the risk that they would be lost or damaged by accident or inadvertence. Virtually all of defendant's trial transcript, his trial evidence and exhibits, and his counsel's records were, in fact, inadvertently lost or destroyed during the seven years he remained a fugitive. Therefore, defendant's escape contributed to the loss of opportunity for meaningful review. This case is not concerned with forfeiture of the right to appeal that is based on the sole fact of flight. Rather, we are concerned with the effect of defendant's absence on the appellate process and his responsibility for the difficulties of sustaining an appeal. See State v. Brown, 116 N.M. 705, 866 P.2d 1172, 1174 (App.1993).

Although it is true that defendant's flight did not directly cause the loss of the records, his lengthy absence greatly increased the risk and indeed the likelihood that records would be lost or destroyed. That risk, given human nature and the vagaries of document storage, increased steadily with the passage of time. Defendant's flight, therefore, indirectly resulted in the impossibility of appellate review.

In most circumstances, where the reporter's notes are lost or a transcript is incomplete or missing, the prosecution and defense counsel are required, pursuant to Utah Rule of Appellate...