State v. Boatner

861 So. 2d 149, 2003 WL 22853865
Supreme Court of Louisiana·Decided December 3, 2003·No. 2003-K-0485·Published·Cited by 20 cases

Opinion

861 So.2d 149 (2003)

STATE of Louisiana
v.
Tory BOATNER.

No. 2003-K-0485.

Supreme Court of Louisiana.

December 3, 2003.
Rehearing Denied January 16, 2004.

*151 Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Valentin M. Solino, for Applicant.

Bruce G. Whittaker, for Respondent.

WEIMER, Justice.

Tory Boatner was indicted for second degree murder. A jury found him guilty as charged and he was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appealed. Following a convoluted appellate process the defendant's conviction and sentence were vacated and the matter remanded for a new trial. This court granted the State's writ application to consider whether omissions in the trial transcript denied defendant the right to appellate review. State v. Boatner, 03-0485 (La.6/6/03), 845 So.2d 1073.

For reasons that follow, we reverse the ruling of the court of appeal and affirm defendant's conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

During the early morning hours of February 17, 1999,[1] the defendant, his brother Christopher, and his sister Christine were at a lounge called "Lodie's". The victim, Percy Brown, and his sister Jewel were also at the lounge. A fight occurred between Christine Boatner and Keisha Tipit. Jewel attempted to aid Keisha but was prevented from doing so by someone holding her against the wall. The bar's bouncers broke up the fight and asked the Boatners to leave the premises. Percy and Jewel, followed by Tonette Johnson and Roxanne Robinson, left the lounge a short time later. Once outside, Christine continued to taunt Keisha. She removed the belt she was wearing and hit Keisha in the back with the buckle. Percy argued with his sister urging her to leave, but she did not want to abandon her friend.

Tory, the defendant, and his brother, Christopher, who were standing outside the bar, suddenly disappeared. When they reappeared on the scene, Tory was carrying a gun. Christopher kept asking for the gun but Tory refused to give it to him. According to witnesses, shots were fired and everyone began running. Percy pulled his sister toward the car and told her to run. Tonette and Roxanne heard about five shots, saw Percy fall to the ground and the three Boatners and an unidentified female run from the scene down Lafreniere Street toward Paris Avenue. During the police investigation which followed, Roxanne identified the defendant as the person who fired the fatal shots. Roxanne and Tonette each selected the defendant in a photographic lineup, identifying him as the shooter. Approximately three weeks after the crime, Tory Boatner was arrested. He was indicted by a grand jury for the second degree murder of Percy Brown. A jury convicted him as charged. He was sentenced to life in prison without benefit of parole, probation, or suspension of sentence by the trial court in accordance with law.

Defendant appealed assigning two errors: (1) the jury charges failed to include the definition of the offense of second degree murder and failed to include a definition *152 of the responsive verdict of manslaughter; and (2) the transcript of the trial record was so defective as to deprive defendant of his constitutional right of appeal.

On appeal, the court initially vacated defendant's conviction and sentence for failure of the trial court to provide any guidance to the jury on the elements of the offense charged and the responsive verdicts. State v. Boatner, 01-1659 (La.App. 4 Cir. 6/26/02), 844 So.2d 843. The State filed an application for rehearing and a request to supplement the record with the transcript of the jury charges. That application was granted, following which the court of appeal affirmed the conviction and sentence. State v. Boatner, 01-1659 (La. App. 4 Cir. 8/14/02), 844 So.2d 847.

Defendant then requested a rehearing claiming that omissions in the evidentiary portion of the record denied him the right to appellate review. The court of appeal, in a two to one decision, set aside the defendant's conviction and sentence and remanded the matter for a new trial holding that defendant was prejudiced by the amount of dialogue that was unable to be transcribed. Based on the reasoning in State v. Bright, XXXX-XXXX (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1117, writ denied, 02-0698 (La.11/1/02), 828 So.2d 563, the court found the cumulative effect of the omissions rendered the record inadequate. State v. Boatner, 01-1659 (La.App. 4 Cir. 1/15/03), 844 So.2d 851.

In dissent, Chief Judge Byrnes[2] reasoned that the defendant was not entitled to relief absent a showing of prejudice based on the missing portions of the transcript. Judge Byrnes observed the issues to be analyzed were the court's ability to review the record and a demonstration by defendant of the manner in which he was prejudiced. Judge Byrnes noted that omissions do not necessarily constitute reversible error. The defendant must establish that the omitted portions of the transcript caused him prejudice. Boatner, 01-1659 at 1, 844 So.2d at 854 (Byrnes, J., dissenting).

Following that decision, the State filed an application for writ of certiorari which this court granted. State v. Boatner, 03-0485 (La.6/6/03), 845 So.2d 1073.

DISCUSSION

The issue before the court is whether defendant was denied his constitutional right to judicial review of his conviction and sentence because of the numerous "inaudible" notations in the transcribed record.

Both this court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where appellate counsel was not counsel at trial. State v. Deruise, 98-0541, p. 11 (La.4/3/01), 802 So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), citing Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) and State v. Robinson, 387 So.2d 1143 (La.1980). The Louisiana State Constitution guarantees that "[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based." LSA-La. Const. art. I § 19. Additionally, in all felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony *153 of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel. LSA-C.Cr.P. art. 843. The court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the trial proceedings required. LSA-R.S. 13:961(C).

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal require reversal. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214; Robinson, 387 So.2d at 1144. Although this court has found reversible error when material portions of the trial record were unavailable or incomplete, a "slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal" does not require reversal of a conviction.

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