Bryan Gadson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 22, 2016
• Docket: 34A04-1509-CR-1533
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 22 2016, 9:27 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bryan Gadson, March 22, 2016 Appellant-Defendant, Court of Appeals Case No. 34A04-1509-CR-1533 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff Hopkins, Judge Trial Court Cause No. 34D04-1412-F6-170

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A04-1509-CR-1533 | March 22, 2016 Page 1 of 4 [1] Bryan Gadson appeals his conviction for level 6 felony battery against a public

safety official. Specifically, Gadson states that he wishes to challenge the racial

makeup of his jury venire, the State’s “strikes” of potential jurors during voir

dire, and the juror questionnaires. Appellant’s Br. at 4. Although his argument

is difficult to discern, it appears that he essentially wants to make a Batson claim

on appeal. See Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012) (“Purposeful

racial discrimination in selection of the venire violates a defendant’s right to

equal protection because it denies him the protection that a trial by jury is

intended to secure.”) (quoting Batson v. Kentucky, 476 U.S. 79, 86 (1986)).

Gadson asserts, however, that due to the fault of the trial court, he is unable to

submit an adequate record on appeal and therefore has been effectively denied

his right to an appeal and must be given a new trial. We disagree, conclude that

he has waived any claims of error, and affirm his conviction.

[2] It has long been recognized that it is the appellant’s burden to provide us an

adequate record to permit meaningful appellate review. Wilhoite v. State, 7

N.E.3d 350, 354-55 (Ind. Ct. App. 2014). Although the record indicates that

voir dire was recorded in this case, see Appellant’s App. at 44, Gadson has not

provided us with a transcript of voir dire, which would be necessary for any

appellate review of challenges to the selection of his jury. Gadson blames his

failure on the trial court clerk, stating that while his notice of appeal requested

the transcript of his jury trial, the transcript he received did not include the voir

dire. See Ind. Appellate Rule 2(K) (“Transcript shall mean the transcript or

transcripts of all or part of the proceedings in the trial court … that any party

Court of Appeals of Indiana | Memorandum Decision 34A04-1509-CR-1533 | March 22, 2016 Page 2 of 4 has designated for inclusion in the Record on Appeal and any exhibits

associated therewith.”). Be that as it may, if Gadson received what he believed

to be an incomplete record of proceedings, it was his obligation to request the

trial court clerk to supplement the record. At that point, if a transcript of voir

dire was still unavailable for some reason, Indiana Appellate Rule 31 provides,

in part, that “[i]f no Transcript of all or part of the evidence is available, a party

or the party’s attorney may prepare a verified statement of the evidence from

the best available sources, which may include the party’s or the attorney’s

recollection.” It does not appear from the record submitted to us that either

approach was attempted.

[3] Gadson next baldly asserts that the trial court “intentionally destroy[ed]” part

of the record that he needs for this appeal, namely the actual “strike sheets”

used by the parties during voir dire. Appellant’s Br. at 3. Assuming that the

trial court did in fact dispose of these sheets, Gadson cites no authority that the

court was required to maintain them as part of its record. Moreover, it would

have been trial counsel’s obligation to request preservation of those sheets

and/or to make a contemporaneous objection to the State’s juror challenges to

make a record for our review and preserve a Batson claim of error. See Addison,

962 N.E.2d at 1211 (citing Chambers v. State, 551 N.E.2d 1154, 1158) (Ind. Ct.

App. 1990)). Finally, Gadson does not include the challenged juror

questionnaires in his appendix, claiming that they “are unavailable because the

Bailiff is on vacation and no one in the Trial Court will unlock his office so that

copies can be made.” Appellant’s App. at 59. Again, trial counsel would have

Court of Appeals of Indiana | Memorandum Decision 34A04-1509-CR-1533 | March 22, 2016 Page 3 of 4 had both the opportunity and obligation to make a record and preserve error on

this issue. The trial court is not so obliged.

[4] We are unpersuaded by Gadson’s counsel’s bald accusations and attempts to

shift his responsibility to provide an adequate record to others. We have little

choice but to conclude that Gadson has wholly failed to meet his burden to

present us with an adequate record for review and has therefore waived his

claims of error on appeal. See Weekly v. State, 496 N.E.2d 29, 31 (Ind. 1986)

(defendant waived Batson challenge on appeal by failing to present adequate

record). His conviction is affirmed.

[5] Affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A04-1509-CR-1533 | March 22, 2016 Page 4 of 4