State v. Higginbotham, 60 So. 3d 621

Higginbotham, former mayor of Waterproof, was indicted on 44 counts; the indictment was amended to leave two malfeasance charges, plus a public contract fraud charge; the state sought to disqualify Higginbotham's town attorney due to conflict, and the trial court granted the disqualification.
Trial began with Higginbotham representing himself after invoking his Fifth Amendment right to identify counsel; he later had counsel appointed as the trial resumed.
Evidence on the public contract fraud charge included two witnesses (Higginbotham’s brother and business partner) and numerous exhibits, but the testimony of these witnesses was not recorded by the court reporter.
A partial mistrial was declared as to the public contract fraud charge because witnesses’ testimony was not recorded; exhibits were removed and the jury was instructed to disregard the testimony and exhibits.
Higginbotham contends the unrecorded testimony constituted inadmissible other-acts evidence and that the missing record prevents meaningful appellate review; the court discusses the need for a new, fully recorded trial if the record is incomplete.
The court ultimately concludes that the missing testimony and record require a new trial, citing the importance of a complete transcript for appellate review and analogous Louisiana and federal cases on missing transcripts

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the missing transcript invalidates appellate review of the 404(b) issue	Higginbotham argues no harmless-error analysis possible due to missing record	State contends record supports review despite gaps	New trial required; appellate review hampered by missing testimony
Whether the missing trial-record supports granting a new trial for overall trial integrity	Defendant asserts no prejudice shown by gaps	Harmful impact on defendant’s ability to appeal from trial	New, fully recorded trial warranted; bell cannot be unrung

State v. Harris, 817 So.2d 1164 (La.App. 4 Cir. 2002) (missing transcript requires reversal or remand for new trial when record is incomplete)
State v. Clark, 776 So.2d 1249 (La.App. 4 Cir. 2000) (incomplete record requires remedy for fair appeal)
State v. Bright, 809 So.2d 1112 (La.App. 4 Cir. 2002) (missing excerpts prevent review of defense effectiveness)
State v. Landry, 751 So.2d 214 (La. 1999) (defendant’s right to complete trial record; new trial when counsel cannot review record)
U.S. v. Atilus, 425 F.2d 816 (5th Cir. 1970) (right to complete appellate review; necessity of record)
Hardy v. U.S., 375 U.S. 277 (1964) (importance of complete record for appeal)
State v. Ford, 338 So.2d 107 (La. 1976) (lack of record as basis for remand or new trial)