391 S.W.3d 2
Mo. Ct. App.2012Background
- Barber was convicted by jury of two counts of tampering with a witness in Missouri.
- Mother and Stepfather reported sexual molestation allegations by a patron; Barber was a friend of the family.
- Barber accessed a civil settlement discussion via recording by Shumaker; recordings captured Barber discussing a $150,000 offer.
- Shumaker and highway patrol investigated; Barber was contacted about the alleged offer and discussed assurances for a settlement.
- Trial record lacked a complete transcript of Barber’s testimony due to recording issues; crucial portions of direct/cross examination were not transcribed.
- Court reversed and remanded for a new trial due to inability to perform meaningful appellate review without the missing transcript.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prejudice from missing transcript on appeal | Barber | Barber | Remand for new trial due to prejudice from incomplete record |
| Attorney-client privilege and admissibility of Shumaker’s testimony | Barber’s statements to Shumaker formed privileged communications | The conversations were not properly preserving privilege | Court cannot meaningfully review privilege issues without complete transcript |
| Due diligence regarding missing portions of transcript | Barber exercised due diligence; strokes affected memory | State challenges due diligence; prejudice not shown | Prejudice shown; due process requires new trial |
Key Cases Cited
- State v. Middleton, 995 S.W.2d 443 (Mo. banc 1999) (incomplete transcript may not necessitate reversal if immaterial omissions)
- State v. Borden, 605 S.W.2d 88 (Mo. banc 1980) (partial missing transcript not reversible where omissions nonprejudicial)
- Lynn v. Plumb, 808 S.W.2d 439 (Mo.App. S.D.1991) (prejudice when missing essential testimony in transcript)