Gerry C. DuBose v. John D. Kelly

Eighth Circuit

Gerry C. DuBose v. John D. Kelly

12 F. App'x 428

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 12, 2001

Docket00-2979MN

StatusUnpublished

Cited by1 cases

This text of 12 F. App'x 428 (Gerry C. DuBose v. John D. Kelly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gerry C. DuBose v. John D. Kelly, 12 F. App'x 428 (8th Cir. 2001).

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Opinion

PER CURIAM.

Gerry C. DuBose appeals various unfavorable rulings following a jury trial on his 42 U.S.C. § 1983 claims against attorneys John Kelly and Jennifer Carey and their law firm. For reversal, DuBose challenges the District Court’s 1 denial of his motion for a change of venue, the exclusion of certain evidence, the grant of judgment as a matter of law in favor of Carey, and the entry of judgment upon the jury verdict in favor of Kelly and the firm. The District Court granted DuBose’s request for limited portions of the transcript at government expense.

Without a complete trial transcript, however, we cannot review the District Court’s evidentiary rulings, the grant of judgment, or the sufficiency of the evidence supporting the jury’s verdict. See Fed. R.App. P. 10(b)(2) (discussing appellant’s duty to order transcript); Schmid v. United Bhd. of Carpenters and Joiners, 827 F.2d 384, 386 (8th Cir.1987) (per curiam) (appellant’s failure to provide complete transcript makes it impossible to review evidence presented at trial), cert. denied, 484 U.S. 1071, 108 S.Ct. 1041, 98 L.Ed.2d 1004 (1988); see also DuBose v. Kelly, 187 F.3d 999, 1003-04 (8th Cir.1999) (noting that whether Dubose’s evidence — i.e., his eyewitness account of ex parte contact and alleged agreement that malpractice trial would end in verdict for defendant — was to be believed was matter for jury). In addition, assuming DuBose renewed his change-of-venue motion during voir dire, the absence of a transcript of the jury-selection process makes it impossible to review the necessity of a change of venue. See United States v. Faul, 748 F.2d 1204, 1212 (8th Cir.1984) (holding appellate court has duty to examine independently voir dire testimony to determine whether impartial jury was selected, thus obviating necessity for change of venue), cert. de *429 nied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 632 (1985).

Accordingly, we affirm.

1

. The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.

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PER CURIAM.

Gerry C. DuBose appeals various unfavorable rulings following a jury trial on his 42 U.S.C. § 1983 claims against attorneys John Kelly and Jennifer Carey and their law firm. For reversal, DuBose challenges the District Court’s 1 denial of his motion for a change of venue, the exclusion of certain evidence, the grant of judgment as a matter of law in favor of Carey, and the entry of judgment upon the jury verdict in favor of Kelly and the firm. The District Court granted DuBose’s request for limited portions of the transcript at government expense.

Without a complete trial transcript, however, we cannot review the District Court’s evidentiary rulings, the grant of judgment, or the sufficiency of the evidence supporting the jury’s verdict. See Fed. R.App. P. 10(b)(2) (discussing appellant’s duty to order transcript); Schmid v. United Bhd. of Carpenters and Joiners, 827 F.2d 384, 386 (8th Cir.1987) (per curiam) (appellant’s failure to provide complete transcript makes it impossible to review evidence presented at trial), cert. denied, 484 U.S. 1071, 108 S.Ct. 1041, 98 L.Ed.2d 1004 (1988); see also DuBose v. Kelly, 187 F.3d 999, 1003-04 (8th Cir.1999) (noting that whether Dubose’s evidence — i.e., his eyewitness account of ex parte contact and alleged agreement that malpractice trial would end in verdict for defendant — was to be believed was matter for jury). In addition, assuming DuBose renewed his change-of-venue motion during voir dire, the absence of a transcript of the jury-selection process makes it impossible to review the necessity of a change of venue. See United States v. Faul, 748 F.2d 1204, 1212 (8th Cir.1984) (holding appellate court has duty to examine independently voir dire testimony to determine whether impartial jury was selected, thus obviating necessity for change of venue), cert. de *429 nied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 632 (1985).

Accordingly, we affirm.

1

. The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.

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