State v. Waits

Citation520 P.3d 49
Decision Date17 November 2022
Docket Number100622-5
Parties STATE of Washington, Respondent, v. Jason D. WAITS, Petitioner.
CourtUnited States State Supreme Court of Washington

Mary Swift, Nielsen Koch & Grannis, PLLC, 2200 6th Ave., Ste. 1250, Seattle, WA, 98121-1820, PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, for Petitioner.

Benjamin Curler Nichols, Asotin County Prosecutors Office, P.O. Box 220, Asotin, WA, 99402-0220, for Respondent.

Gregory Charles Link, Kate Benward, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, Suzanne Lee Elliott, Attorney at Law, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Amicus Curiae on behalf of Washington Appellate Project.


¶1 The present case concerns the constitutional consequences of a deficient trial record on appeal. Specifically, what is required of the parties in an appeal when faced with a defective or incomplete record. Pursuant to Washington's constitution, criminal defendants have the right to appeal in all cases. WASH. CONST. art. I, § 22. A criminal defendant is " ‘constitutionally entitled to a record of sufficient completeness to permit effective appellate review’ " of their claims.

State v. Tilton , 149 Wash.2d 775, 781, 72 P.3d 735 (2003) (internal quotation marks omitted) (quoting State v. Thomas , 70 Wash. App. 296, 298, 852 P.2d 1130 (1993) ). A sufficiently complete record does not necessarily require " ‘a complete verbatim transcript.’ " Id. (quoting Mayer v. City of Chicago , 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971) ). Alternative methods are permissible if they permit effective review, that is, the alternative method allows counsel to determine which issues to raise on appeal and puts before the reviewing court an equivalent report of the trial events from which the issues arise. Id. (quoting State v. Jackson , 87 Wash.2d 562, 565, 554 P.2d 1347 (1976) ). Where a record is insufficient to permit effective review, a defendant receives a new trial. Id. at 783, 72 P.3d 735 ; State v. Larson , 62 Wash.2d 64, 67, 381 P.2d 120 (1963). In Washington, alternative means are outlined in our Rules of Appellate Procedure (RAP) 9.3 and 9.4. When a state, like Washington, affords the right to appeal, it cannot discriminate between criminal defendants who have the ability to pay appellate costs and those who cannot. See Griffin v. Illinois , 351 U.S. 12, 17-19, 76 S. Ct. 585, 100 L. Ed. 891 (1956) ; U.S. CONST. amend. XIV.

¶2 Because criminal defendants have the constitutional right to an appeal from a record that is sufficiently complete to permit effective appellate review, when that record is deficient, missing, or incomplete, the State is responsible for reconstructing it with the assistance of the parties. Accordingly, we reverse the Court of Appeals and remand the case to the superior court for further proceedings.

¶3 The second issue before us concerns bifurcation: specifically, whether the Court of Appeals erred in declining to separate Jason Waits’ speedy trial issue from the rest of his appeal. On that issue, we affirm the Court of Appeals.


¶4 In August 2020, Waits was tried and convicted of child molestation and attempted child molestation, both in the first degree. The underlying facts of these conviction are not in dispute. Instead, the issues for this court's review arise from the bad acoustics of the building where the trial took place—a former church that was used to accommodate social distancing during the height of the COVID-19 pandemic.

¶5 Over the course of Waits’ two-day trial, the transcription contained over 2,000 "inaudible" notations from the judge, lawyer, jurors, and witnesses. The transcriptionist was later able to fill in some of the gaps, but about 1,500 inaudibles still remain. See Am. Verbatim Tr. of Proc. at 36-38, 58-63, 76, 79 (examples of inaudible notations during jury selection, including entire statements made by prospective jurors, parties’ questions, and court rulings on challenges for cause), 125, 139-40 (examples of inaudible court rulings on parties’ objections), 188, 195, 199-200 (examples of inaudible witness testimony).

¶6 After Waits was convicted, he was found indigent and appointed appellate counsel. Appellate counsel asked the Court of Appeals to remand Waits’ case to the trial court to attempt reconstruction of the record and to bifurcate Waits’ already-identified speedy trial claim. Appellate counsel expressed concern that because she was not Waits’ attorney at trial, she was not in a position to advise Waits on the factual accuracy of the reconstruction effort and, thus, asked that the Court of Appeals direct the trial court to make defense counsel available during reconstruction.1

¶7 The Court of Appeals’ commissioner denied the motion and stayed the appeal, concluding that the RAPs direct the trial court and parties in the proper mechanism to reconstruct the record. Nor did the commissioner appoint trial counsel, stating Waits could make that request to the trial court under RAP 7.2(b). Finally, the commissioner declined to bifurcate the appeal based on the notion that piecemeal appeals are disfavored.

¶8 Waits moved to modify the ruling. The Court of Appeals denied the motion, explaining the reconstruction process and declining to bifurcate Waits’ speedy trial issue. State v. Waits , 20 Wash. App. 2d 800, 804-10, 502 P.3d 878 (2022). The court published its decision, noting that the reconstruction issue was likely to arise again.

¶9 Waits sought emergency review here. He objected to the Court of Appeals’ reconstruction procedure. The State offered no response. At oral argument before Commissioner Michael Johnston, the State was allowed a brief comment and indicated it was not opposed to review, citing the need for definitive guidance on the process of recreating a record. Commissioner Johnston granted review. The Washington Appellate Project submitted amicus curiae briefing in support of Waits.


¶10 Waits primarily disagrees with the Court of Appeals’ process for reconstructing the record. He contends the process unconstitutionally shifts the burden from the State and onto him. The State defends the Court of Appeals but accepts that as a practical matter, the original reconstruction "method proposed by the Appellant seems the most viable." Br. of Resp't at 4. In other words, the State disagrees with Waits on the legal issue but agrees with the remedy. While this court does not hear nonjusticiable controversies or generally give purely advisory opinions, see To-Ro Trade Shows v. Collins , 144 Wash.2d 403, 416, 27 P.3d 1149 (2001), the present case involves a live controversy—which party bears the burden of reconstructing a lost or damaged record in a criminal appeal—between adverse partiesthe State and Waits. The parties may agree on the solution in their case, but they dispute the Court of Appeals’ published decision establishing the current reconstruction rule, which is before us for review. Based on our state constitution, the federal constitution, court rules and case law, we conclude that the State must lead the record reconstruction process and that bifurcation is not warranted in this case.

1. Reconstructing the Record

¶11 As noted, our state constitution guarantees all criminal defendants—indigent as well as those with financial means—the right to an appeal. WASH. CONST. art. I, § 22. In order to pursue an effective appeal, a criminal defendant is " ‘constitutionally entitled to a record of sufficient completeness.’ " Tilton , 149 Wash.2d at 781, 72 P.3d 735 (internal quotation marks omitted) (quoting Thomas , 70 Wash. App. at 298, 852 P.2d 1130 ). For indigent defendants, the Fourteenth Amendment to the United States Constitution guarantees a verbatim transcription of criminal proceedings at public expense. See Draper v. Washington , 372 U.S. 487, 488, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963) (citing Griffin , 351 U.S. at 19, 76 S.Ct. 585 ; Eskridge v. Wash. State Bd. of Prison Terms and Paroles , 357 U.S. 214, 216, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958) ).2

¶12 A sufficiently complete record does not necessarily require a verbatim transcript; alternative methods are acceptable provided they permit effective appellate review. Tilton , 149 Wash.2d at 781, 72 P.3d 735 (quoting Thomas , 70 Wash. App. at 298, 852 P.2d 1130 ; Mayer , 404 U.S. at 194, 92 S.Ct. 410 ; Jackson , 87 Wash.2d at 565, 554 P.2d 1347 ). Effective review allows counsel to determine which issues to raise on appeal and provides the relevant, equivalent report of the trial record where the alleged issues occurred. Id. Effective review on appeal also allows for other methods of reporting trial proceedings in instances when a trial court record is deficient or missing. Id. In such circumstances, the "State ‘may find other means [than providing stenographic transcripts for] affording adequate and effective appellate review to indigent defendants.’ " Mayer , 404 U.S. at 194, 92 S.Ct. 410 (alteration in original) (quoting Griffin , 351 U.S. at 20, 76 S.Ct. 585 ). Alternatives include " [a] statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript.’ " Jackson , 87 Wash.2d at 565, 554 P.2d 1347 (quoting Draper , 372 U.S. at 495-96, 83 S.Ct. 774 ). The burden of showing that alternatives will suffice for an effective appeal rests with the State. Mayer , 404 U.S. at 195, 92 S.Ct. 410.

¶13 In Washington, alternatives include RAP 9.3 and 9.4. Tilton , 149 Wash.2d at 781, 72 P.3d 735. RAP 9.3 sets out the parameters for narrative reports and states,

The party seeking review may prepare a narrative report of proceedings. A party preparing a narrative report must exercise

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