In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) ED107188 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) 1722-CR02010-01 ) TERRY M. SLAYTON, ) Honorable Joseph P. Whyte ) Appellant. ) FILED: January 19, 2021
Introduction
Terry M. Slayton (“Slayton”) appeals from the trial court’s entry of judgment and
sentences after a jury trial found him guilty of domestic assault in the fourth degree, burglary in
the first degree, and violating an order of protection. On appeal, Slayton has filed a motion to
remand for a new trial for the failure to obtain a complete transcript on appeal. We grant the
motion, and we reverse the judgment and remand for a new trial.
Background
The State charged Slayton as a prior offender with the class C felony of domestic assault
in the second degree (“Count I”), the class B felony of burglary in the first degree (“Count II”),
and the class A misdemeanor of violation of an order of protection (“Count III”). The charges
stemmed from an altercation between Slayton and his wife, Julia Slayton (“Victim”) on April 14,
2017, when Slayton was alleged to have recklessly caused physical injury to Victim by striking her, which caused Victim to obtain an order of protection against Slayton; and from a subsequent
incident on June 6, 2017, when police arrested Slayton in the basement of the home he and
Victim owned but in which he no longer resided, which was alleged to be in violation of the
order of protection, in that he knowingly entered the premises where Victim resided.
After a three-day trial, a jury found Slayton guilty of the lesser included offense of
misdemeanor domestic assault in the fourth degree, burglary in the first degree, and violating the
order of protection. Slayton filed a motion for new trial, raising issues involving Batson, 1 the
sufficiency of the evidence supporting his burglary conviction, and whether the State presented
sufficient evidence to prove he knowingly violated the order of protection. The trial court denied
the motion for new trial. The trial court then sentenced Slayton as a prior offender to concurrent
sentences of one year in the Medium Security Institution (“MSI”) on Count I, nine years in the
Missouri Department of Corrections on Count II, and one year in MSI on Count III. Slayton has
appealed his convictions, and in his brief he raises three points of error from the trial court’s
decisions to overrule his Batson objections to the State’s use of three of its peremptory strikes
against African-American venirepersons 902, 1154, and 479.
In preparing the appeal, it was discovered that portions of the transcript were missing.
The court reporter produced a transcript on July 1, 2019, containing pre-trial proceedings,
opening statements, the testimony of Victim, a record of Slayton’s decision not to testify, closing
arguments, proceedings during jury deliberations, the verdict announcement, and the sentencing
hearing. The court reporter produced a supplemental transcript on October 18, 2019, containing
voir dire. However, a review of the transcript shows that at a pre-trial hearing, the State
announced its intention to call as witnesses April Becton, Larry Elbert, Joan Noelker, Officer
1 Batson v. Kentucky, 476 U.S. 86 (1986).
2 Julia Newberry, Detective Elijah Simpson, and Victim. Moreover, during closing arguments, the
State referenced the testimony the jury had heard from April Becton, who was a witness to both
incidents, Larry Elbert, Dr. Joan Noelker, and Officer “Onwumere.” Additionally, the defense in
closing arguments referenced testimony the jury had heard from Detective Simpson. The
testimony of none of these witnesses appear in the transcript submitted on appeal. On December
17, 2019, the court reporter submitted an affidavit to this Court attesting that her reporting
equipment had malfunctioned, and that she was unable to recover the testimony of Larry Elbert,
April “Beckton,” and Dr. Joan “Knoelker.” Based on the missing transcript testimony, Slayton
filed a motion with this Court to remand for a new trial, arguing that he had exercised due
diligence to correct the deficiencies in the record and also that he was prejudiced by the
incompleteness of the record.
Motion to Remand Analysis
“A losing party is entitled to appellate review based upon a full, fair and complete
transcript on review.” Jackson v. State, 514 S.W.2d 532, 533 (Mo. 1974). Where no transcript
of the trial exists at all, prejudice is assumed. See State v. Barber, 391 S.W.3d 2, 5 (Mo. App.
W.D. 2012). However, where the transcript is merely incomplete or otherwise defective, that
alone does not entitle an appellant to reversal as a matter of right. Jackson, 514 S.W.2d at 534.
Rather, to obtain reversal and a new trial based on a defective transcript, the appellant must show
both that: (1) he or she exercised due diligence to correct the transcript or to obtain a complete
transcript; and (2) he or she is prejudiced as a result of the inability to present an accurate and
true record. State v. Fults, 719 S.W.2d 46, 48 (Mo. App. E.D. 1986). Here, the State concedes
Slayton exercised due diligence and thus the only issue for this Court to consider is whether
Slayton was prejudiced by the incomplete transcript.
3 Slayton argues that the record is so incomplete as to preclude meaningful appellate
review, and we agree. Where, as here, appellate counsel was not the same attorney who
represented the defendant at trial, appellate counsel cannot realistically be expected to raise all
potentially meritorious allegations of trial error on appeal without a transcript of what occurred at
trial. In the post-trial motion for a new trial, Slayton challenged the sufficiency of the evidence
supporting the convictions for burglary and violating the order of protection. However, on
appeal he has not reasserted these claims, and he explains that with such a deficient transcript as
exists here he has been unable on appeal to adequately present and brief—nor can this Court
review—those sufficiency-of-the-evidence claims. While some missing testimony does not
necessarily impede appellate review, transcripts that omit the entire testimony from a witness or
multiple witnesses can prevent meaningful appellate review. Compare Barber, 391 S.W.3d at 6
(appellate court could not conduct meaningful review when transcript was missing bulk of
defendant’s trial testimony), and Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo. App. S.D. 1991)
(prejudice resulted when part of one respondent’s testimony and entire testimony of two other
witnesses were unable to be transcribed), with State v. Middleton, 995 S.W.2d 443, 466-67 (Mo.
banc 1999) (34 instances of small or corrected omissions in 4,000-page transcript did not
prejudice appellant), and State v. Borden, 605 S.W.2d 88, 92 (Mo. banc 1980) (appellant failed
to establish prejudice from transcript’s omission of last part of his cross-examination, redirect,
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In the Missouri Court of Appeals Eastern District DIVISION TWO
STATE OF MISSOURI, ) ED107188 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) 1722-CR02010-01 ) TERRY M. SLAYTON, ) Honorable Joseph P. Whyte ) Appellant. ) FILED: January 19, 2021
Introduction
Terry M. Slayton (“Slayton”) appeals from the trial court’s entry of judgment and
sentences after a jury trial found him guilty of domestic assault in the fourth degree, burglary in
the first degree, and violating an order of protection. On appeal, Slayton has filed a motion to
remand for a new trial for the failure to obtain a complete transcript on appeal. We grant the
motion, and we reverse the judgment and remand for a new trial.
Background
The State charged Slayton as a prior offender with the class C felony of domestic assault
in the second degree (“Count I”), the class B felony of burglary in the first degree (“Count II”),
and the class A misdemeanor of violation of an order of protection (“Count III”). The charges
stemmed from an altercation between Slayton and his wife, Julia Slayton (“Victim”) on April 14,
2017, when Slayton was alleged to have recklessly caused physical injury to Victim by striking her, which caused Victim to obtain an order of protection against Slayton; and from a subsequent
incident on June 6, 2017, when police arrested Slayton in the basement of the home he and
Victim owned but in which he no longer resided, which was alleged to be in violation of the
order of protection, in that he knowingly entered the premises where Victim resided.
After a three-day trial, a jury found Slayton guilty of the lesser included offense of
misdemeanor domestic assault in the fourth degree, burglary in the first degree, and violating the
order of protection. Slayton filed a motion for new trial, raising issues involving Batson, 1 the
sufficiency of the evidence supporting his burglary conviction, and whether the State presented
sufficient evidence to prove he knowingly violated the order of protection. The trial court denied
the motion for new trial. The trial court then sentenced Slayton as a prior offender to concurrent
sentences of one year in the Medium Security Institution (“MSI”) on Count I, nine years in the
Missouri Department of Corrections on Count II, and one year in MSI on Count III. Slayton has
appealed his convictions, and in his brief he raises three points of error from the trial court’s
decisions to overrule his Batson objections to the State’s use of three of its peremptory strikes
against African-American venirepersons 902, 1154, and 479.
In preparing the appeal, it was discovered that portions of the transcript were missing.
The court reporter produced a transcript on July 1, 2019, containing pre-trial proceedings,
opening statements, the testimony of Victim, a record of Slayton’s decision not to testify, closing
arguments, proceedings during jury deliberations, the verdict announcement, and the sentencing
hearing. The court reporter produced a supplemental transcript on October 18, 2019, containing
voir dire. However, a review of the transcript shows that at a pre-trial hearing, the State
announced its intention to call as witnesses April Becton, Larry Elbert, Joan Noelker, Officer
1 Batson v. Kentucky, 476 U.S. 86 (1986).
2 Julia Newberry, Detective Elijah Simpson, and Victim. Moreover, during closing arguments, the
State referenced the testimony the jury had heard from April Becton, who was a witness to both
incidents, Larry Elbert, Dr. Joan Noelker, and Officer “Onwumere.” Additionally, the defense in
closing arguments referenced testimony the jury had heard from Detective Simpson. The
testimony of none of these witnesses appear in the transcript submitted on appeal. On December
17, 2019, the court reporter submitted an affidavit to this Court attesting that her reporting
equipment had malfunctioned, and that she was unable to recover the testimony of Larry Elbert,
April “Beckton,” and Dr. Joan “Knoelker.” Based on the missing transcript testimony, Slayton
filed a motion with this Court to remand for a new trial, arguing that he had exercised due
diligence to correct the deficiencies in the record and also that he was prejudiced by the
incompleteness of the record.
Motion to Remand Analysis
“A losing party is entitled to appellate review based upon a full, fair and complete
transcript on review.” Jackson v. State, 514 S.W.2d 532, 533 (Mo. 1974). Where no transcript
of the trial exists at all, prejudice is assumed. See State v. Barber, 391 S.W.3d 2, 5 (Mo. App.
W.D. 2012). However, where the transcript is merely incomplete or otherwise defective, that
alone does not entitle an appellant to reversal as a matter of right. Jackson, 514 S.W.2d at 534.
Rather, to obtain reversal and a new trial based on a defective transcript, the appellant must show
both that: (1) he or she exercised due diligence to correct the transcript or to obtain a complete
transcript; and (2) he or she is prejudiced as a result of the inability to present an accurate and
true record. State v. Fults, 719 S.W.2d 46, 48 (Mo. App. E.D. 1986). Here, the State concedes
Slayton exercised due diligence and thus the only issue for this Court to consider is whether
Slayton was prejudiced by the incomplete transcript.
3 Slayton argues that the record is so incomplete as to preclude meaningful appellate
review, and we agree. Where, as here, appellate counsel was not the same attorney who
represented the defendant at trial, appellate counsel cannot realistically be expected to raise all
potentially meritorious allegations of trial error on appeal without a transcript of what occurred at
trial. In the post-trial motion for a new trial, Slayton challenged the sufficiency of the evidence
supporting the convictions for burglary and violating the order of protection. However, on
appeal he has not reasserted these claims, and he explains that with such a deficient transcript as
exists here he has been unable on appeal to adequately present and brief—nor can this Court
review—those sufficiency-of-the-evidence claims. While some missing testimony does not
necessarily impede appellate review, transcripts that omit the entire testimony from a witness or
multiple witnesses can prevent meaningful appellate review. Compare Barber, 391 S.W.3d at 6
(appellate court could not conduct meaningful review when transcript was missing bulk of
defendant’s trial testimony), and Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo. App. S.D. 1991)
(prejudice resulted when part of one respondent’s testimony and entire testimony of two other
witnesses were unable to be transcribed), with State v. Middleton, 995 S.W.2d 443, 466-67 (Mo.
banc 1999) (34 instances of small or corrected omissions in 4,000-page transcript did not
prejudice appellant), and State v. Borden, 605 S.W.2d 88, 92 (Mo. banc 1980) (appellant failed
to establish prejudice from transcript’s omission of last part of his cross-examination, redirect,
and re-cross-examination plus first part of State’s closing argument in light of entire 1,000-page
transcript).
The transcript omissions here are more similar to those deemed prejudicial in Barber and
Lynn, than to Middleton and Borden. The parties’ summaries of witness testimony during
closing arguments reveal that at least six witnesses testified; however, the transcript includes
4 testimony from only one. With testimony from the vast majority of witnesses missing in their
entirety, this Court is unable to conduct meaningful review of the record. Under the
circumstances here, Slayton has demonstrated prejudice from the transcript deficiencies.
While the State argues that evidence from Victim alone was sufficient evidence to
support the convictions, we cannot agree with this argument under the extreme transcript
deficiencies here. To assume the evidence supported the verdict without access to the testimony
of five out of six witnesses renders meaningless our requirement that appellant files a trial
transcript on appeal. See Barber, 391 S.W.3d at 6; see also Mo. R. Crim. P. 30.04(c) (2018).
Rather, our rules mandate that the record on appeal includes the trial transcript, with the
recognition that meaningful review requires the examination of a full, fair, and complete
transcript. See id.; see also Jackson, 514 S.W.2d at 533.
Conclusion
Because this Court is unable to conduct a meaningful review of Slayton’s criminal trial
with a transcript that transcribes the testimony of only one of at least six witnesses, we reverse
the judgment of the trial court and remand for a new trial.
__________________________ Robin Ransom, Presiding Judge
Sherri B. Sullivan, J., and Lisa P. Page, J., concur.