State of Washington v. Jason D. Waits
502 P.3d 878
| Wash. Ct. App. | 2022Background
- Defendant Jason Waits was convicted in Asotin County of first‑degree child molestation and attempted first‑degree child molestation after a pandemic‑era trial held outside the courthouse to accommodate distancing.
- The courtroom audio was poor; the initial transcript contained ~2,000 "inaudible" notations, later reduced by the transcriptionist to ~1,500 gaps.
- Appellate counsel moved to remand, appoint new counsel, and direct the trial court/parties to reconstruct the record; the commissioner instead stayed the appeal and ordered preparation of a RAP 9.3 (narrative) or RAP 9.4 (agreed) report of proceedings.
- Appellate counsel moved to modify, arguing remand and counsel appointment were necessary and that counsel could not ethically prepare a narrative report without personal knowledge.
- The Court of Appeals denied the motion to remand and to appoint new counsel, ordered use of RAP 9.3/9.4 procedures for reconstructing the record, and denied bifurcation of the appeal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Waits) | Held |
|---|---|---|---|
| Whether the appellate court should remand and order appointment of new counsel to reconstruct the trial record | Remand unnecessary; RAP 7.2(b), 9.3, 9.4 authorize the trial court and parties to settle the record without remand | Remand and new counsel needed because appellate counsel lacks personal knowledge to prepare a reliable record and to avoid ethical violations | Denied remand and appointment; parties should use RAP 9.3/9.4 to reconstruct the record and trial court may resolve disputes |
| Whether appellate counsel may assist in preparing a narrative/agreed report without violating RPC 3.3(a) | The State: parties and counsel may participate in preparing narrative reports; counsel need not attest to facts and may assist the appellant | Waits: appellate counsel cannot ethically prepare or attest to facts she did not personally observe | Held: Counsel may assist and prepare the report, but should not personally attest to facts; the "party" (appellant) signs; trial counsel must assist per RAP 15.2(g); disputes resolved by trial judge under RAP 9.5(c) |
| Whether bifurcation (piecemeal review of pretrial issues) should be allowed | State opposes piecemeal review; argues full record should be settled first | Waits seeks bifurcation to decide pretrial issues while record reconstruction proceeds | Denied; court favors avoiding piecemeal appeals and finds defendant's asserted dispositive error not obviously meritorious enough to overcome that presumption |
| Standard and remedy if parties cannot reconstruct an adequate record | State: parties should first attempt RAP 9.3/9.4 and, if unsuccessful, appellate court will review and may order a new trial | Waits: a remand or immediate new trial is necessary if record gaps persist | Court: If narrative/agreed reports cannot produce a record "of sufficient completeness," the appellate court will order a new trial (citing Tilton) |
Key Cases Cited
- Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214 (1958) (verbatim transcription must be provided at public expense to indigent appellants where state law guarantees a right to appeal)
- Draper v. Washington, 372 U.S. 487 (1963) (transcription must be furnished on the same terms as for nonindigents; full rather than partial transcription required when applicable)
- Mayer v. City of Chicago, 404 U.S. 189 (1971) (appellate review requires a record of sufficient completeness; states may employ alternatives to verbatim transcripts)
- Norvell v. Illinois, 373 U.S. 420 (1963) (recognizes alternatives to stenographic transcripts when official reporter unavailable)
- State v. Tilton, 149 Wn.2d 775 (2003) (endorses use of RAP 9.3 narrative reports to reconstruct incomplete records)
- State v. Loughbom, 196 Wn.2d 64 (2020) (demonstrates continued effectiveness of narrative reports; used such report to find prosecutorial misconduct)