*1 70 rights prior they have no under ties in the case to the transfer their
asserting that they are land. not Indi- the resolution because that, event, They argue also ans. judgment of the district court is requires construing remedy that tribal law reversed, remanded case inadequate tribal court is because with further accordance this jurisdiction
that court without over opinion. rights on adjudication of water non-Indian respon- lands fee in the state. The
owned GOLDEN, J., dissenting filed a directly, issue do not address this dents opinion. authority in this party cites area no Justice, GOLDEN, dissenting. proposition. With- supports or refutes that respectfully I dissent. I am troubled however., reaching question, we do out power this court’s uninvited exercise through a problem straightfor- resolve I, too, majority, like the have certiorari. application of court rules. ward our sympathy litigants. In a strict for these 25(e), W.R.C.P., context, however, legal I provides question Rule whether matter in case is of ex- specific this as follows: lasting importance to all the treme and any stage “Substitution —Substitu- Historically, it this state. has citizens of parties, provisions tion of under the been in that latter context that this court, rule, may by the trial be made court has considered the exercise judgment, either before or after power certiorari. ap- Supreme Court peal.” authority rule to substitute affords petitioners five now before the court bought parties they from whom properties.
their Both Indian allottees of Indian allottees
non-Indian successors rights
are entitled to reserved water
BEARPAW, Appellant
practicably
treaty priority
for the
dates
W.
Stan
(Defendant),
acreage they
irrigable
are able to demon
irrigated by
strate was either
their Indian
irrigation within
predecessors
put
under
Wyoming,
The STATE of
conveyed.
time after it was
a reasonable
(Plaintiff).
Appellee
parties
We hold that these
the other
No. 89-214.
petitioners
similarly
are
situated under the
case.
no
circumstances of this
We see
Supreme
Wyoming.
Court of
distinguish
reason to
one
the other.
7,
Horn,
Dec.
1990.
P.2d 76. See
Big
753
also Unit
See
(9th
Adair,
F.2d
723
1394
ed States
Rehearing
Dec.
Denied
Cir.1983),
U.S.
cert.
denied
(1984);
3536,
Without whether Fike, have Klingamans, and James Sr. law, adequate remedy pursuant tribal parties proper in this
we hold now are pursu as it exists in the district court
case holding
ant to Rule W.R.C.P. This par- predecessors that their were
assumes
slaughter malice, killing was without ex- pressed implied.
ISSUE Whether the trial court’s instructions concerning degree second murder and manslaughter impermissibly shifted the to the Appellant burden prove that the killing without malice and reckless. ISSUE Whether there was insufficient evi- jury Appellant dence for the the to find guilty degree of second murder. Appellee’s initial issues are: I. sup- Was evidence sufficient port jury’s guilt verdict of of sec- degree ond murder?
II. correctly respond Did trial court questions jury asked their deliberations?
III. Did the trial in instructing court err jury bemay malice inferred deadly weapon? use of a IV. Did trial court err not in- Munker, Leonard D. State Public Defend- structing jury appellant’s on the Cornia, Counsel, Appellate er and Mike for defense accident? appellant. V. it Was reversible error instruct Meyer, Gen., Joseph Atty. B. W. John jury that absence of malice is an Renneisen, Atty. Gen., Deputy Karen A. element lesser included offense Byrne Fransen, Roger C. Sr. Asst. manslaughter? Gen., Attys. appellee. for incomplete An record the trial presented appellate supple- review CARDINE, C.J.,* Before briefing requested. Appel- mental URBIGKIT, THOMAS, MACY and lant’s further issues then address: GOLDEN, JJ. I. Should the failure of counsel to designate the entire have ef- URBIGKIT, Chief Justice. appeal? fect on appeal murder degree from second inability II. the State’s Whether presents basic of an conviction provide grounds the entire record is inadequate of trial ineffectiveness reversal. counsel, and fundamental concerns about Appellant III. Did receive effec- the fairness of the trial. We reverse and tive assistance counsel? remand for retrial. Appellee then asks: I. Does failure defense counsel I.ISSUES designate the entire Appellant initially contends: the trial court for inclu- ISSUE 1 in the record on sion in in- subsequent Whether the court erred unavailability of the tran- structing dire, infer could of voir script opening statements weapon closing use of deadly arguments malice from the necessitate re- Appellant’s man- that one elements of versal conviction? argument. * Chief of oral Justice at time and shot Appellant have effective assist- er out of bureau Bownes
II. Did at trial? single ance of counsel right eye with a shot from a feet. distance of two to six and remand We reverse the conviction then, leaving held Bownes for a time and inadequate for retrial on the basis of *3 floor, baby and walked her on the took the presented for a determination no other whether a fair trial existed out of the house. There were this court of of counsel present any during and whether effective assistance persons at time provided. was events. home, phone in Bear- Since no existed II. PLEADING AND paw, walking adjoining after to an resi- PROCEDURAL HISTORY dence, called the sheriffs office was 2, 1.989, Bearpaw March W. On Stan a late thereafter taken to Lander where (Bearpaw) shot and killed Rita Bownes interrogation A ram- night commenced.2 (Bownes). together The two lived bling, explanation inconsistent followed of their two month Bownes was mother early-morning-hour in- during the extended drinking Following day old son.1 alco- terview, recorded and tran- which was
hol, right eye in the Bearpaw shot Bownes This interview was then intro- scribed. single a .22 action revolver from a objection duced without into evidence as a shooting two to six feet. The distance of trial exhibit. just occurred outside the Wind River Indi- an Reservation on non-Indian land. Bearpaw jail complaint in was held death, day events followed On the degree (purposely and of second murder visiting around and a rather aimless drink- maliciously, premeditation), but without including consumption “pur- ing pattern, 6-2-104, in was filed on March W.S. house, acquaintance’s ple passion” at County appear- Fremont An Court. returning to the rented residence $10,000 ance bond established afternoon, Hudson, Wyoming in the late ap- posted. public never A defender was early evening period. they After arrived Following a pointed representation. home, arguing adults started the two preliminary hearing, Bearpaw was bound happened evidence of what filed over for trial and the information was disorganized found in the and confused April court on 1989. Ar- district Bearpaw given by at the sher- raignment May followed on 1989 when Lander, Wyo- night later that iff's office pre-trial A date Bearpaw pled guilty. ming. That statement is somewhat con- July trial date for of June 1989 and provided Bearpaw’s version as flict with County were set the Fremont resi- parole preparation pre- of a officer for judge. dent district court investigation report, but essential- sentence ly general develops. same scenario order, compliance pre-trial with a comprehensive State filed a list of witness- folding Bearpaw Bownes was clothes and filings No or motions of es and exhibits. watching while en- apparently Bearpaw any kind were made behalf of argument. For whatever rea- gaged in an phased in son, support or sustain his defense Bearpaw got single a .22 action revolv- testify age thirty-two, and whatever Bearpaw, 2. did not at trial W. an Okla- Stan evidence, present Indian, con- is demonstrable from sisting essentially Ange- homa les, was born Los Cherokee rambling the record of his by previ- children He had four California. night explanation to the sheriff's relationship with the victim ous and had lived officers, except there is no other evidence infer- baby years. for about A son born two firing shooting ence from result of firearm couple years before the their association. A death to establish intent to commit a homicide occurrence, date he had followed his of this physical to do serious harm to his two- Shoshoni/Arapahoe mother to the Wind River son's mother. The statement record- month old Wyoming where Indian Reservation in central possibil- credence to the ed ity the officers lends an older sister lived. what, really that he did not know himself why happened. or how it avoidance of the intentional homicide crimi- At some [COUNTY ATTORNEY]: charge. point nal evening, defendant was drinking. I don’t know when for sure. pre-trial conference was conducted witnesses, by the district As to judge resident district court asked: assigned case for trial to the other district THE COURT: The State has filed a District, judge for the Ninth Judicial list witnesses and you exhibits. Have Jackson, away Wyo- resident miles got such prepared, a list coun- [defense ming County. in Teton The defense at the sel]? conference,
pre-trial enunciated defense thought I [DEFENSE COUNSEL]: counsel, purposefulness was lack of in com- No, that I filed—oh. I didn’t file one *4 judge inquired: The mission. district court because other witness besides they the witnesses that might have that I right. degree All We have a second (cid:127)possibly client, my call would be at least charge. murder What is the nature of investigator at this time. Our was work- the defense here? ing on the case and then she took off for Well, the ba- [DEFENSE COUNSEL]: got two weeks and so she hasn’t back sic nature is that I don’t believe that the report yet. with me with a I final But prove degree. State can second It can anticipate don’t that will need we more maybe prove manslaughter, but— this, instance, witnesses than because for you’re putting THE COURT: So they my have sister and client’s her hus- proof charge? State to their on the listed, they band would be two of our Yes. [DEFENSE COUNSEL]: witnesses, primary but al- State’s Why you THE don’t think— COURT: ready listed them. we have other So no you think one of the elements of second already witnesses than what’s other been degree missing apparently. here I listed the State. suppose maliciously purposely. it’s or concluded, As the session the district purpose- The [DEFENSE COUNSEL]: court asked: ly anything. more than Bearpaw, you any ques- Mr. do have county attorney responded The when the tions? district court asked: THE DEFENDANT: If I have happened What does the State contend later, I can talk to [Defense here? counsel]. Well, basi- [COUNTY ATTORNEY]: Okay. always THE That’s COURT: cally that the defendant and the deceased your the best advice is to talk to attor- arguing, pulled pis- were and that he his ney. dining in the tol out of a drawer there entry except The next in area, cocked it and shot her between the judge reassign- an order of district court eyes. Bearpaw’s proposed ment and two instruc- THE COURT: This occurred over tions, Bearpaw is a letter from addressed Hudson as I recall. judge. to the initial district court The let- That’s cor- [COUNTY ATTORNEY]: ter, July days dated fifteen after rect. pre-trial days conference and eleven people THE COURT: These weren’t trial, before stated: married, though, living were Bearpaw go I do not want to Stan together? my as law- with Counsel] [Defense cor- That’s [COUNTY ATTORNEY]: yer[.] try I do not believe he will even rect. jail prove my innocence. I’ve been right. THE All And had COURT: him 20 min. in days maybe talked to living in Hudson some time? been all has a soccer that time. He either Yes. [COUNTY ATTORNEY]: game go he said he would to or when nothing THE in- I have COURT: Was there alcohol come he never would. against man but I don’t believe he volved? prove chances. have ability try my all his I would like to anoth- will with [sic] You me in court at innocence. asked laywer er I met Donna have Sears [sic]. satisfactory arraignment if I he and, Law from Sear Offices would like to might yes thought cause I he said [sic] request my her take over case. still change but he leaves me dark. Sincerely happened know myself I what W. /s/ Stan and I ’don’t feel auful accident [De- [sic] trial, days later four Seven trywill his best court. fense Counsel] judge letter a further to the district my my This is life and future stake any unnessary want was written:3 and I don’t to take subject regarding these sufficien- the letter. The case file’s in courtroom. letters essence, letter, day you you cy up came second of counsel on the But said represented trial: want [Defense didn’t be represent- you wanted to Counsel] Okay. the record. We're THE COURT: On lady, guess another I her name was jury. ed presence of the out chambers Dean, something present. of that nature. are counsel and defendant Both Donna Sears. COUNSEL]: need to be [DEFENSE There two issues that ad- [are] Okay. thing And I the issue of THE COURT: Sears. dressed. The first what going spoken Counsel] the statements that [Defense we were do with *5 week, investigators [County Attorney] phone last has to the on the Mr. made indicated to me he [Defense case. And we stand at the moment and Counsel] this where transcript tape any problems page didn’t think there were with his is that the 45 you representing thought matter and I interview has been admitted into in this recorded morning was laid to And then this that rest. evidence. Counsel], you recess that when we came in from the there’s a I understand [Defense transcript July apparently your page dated like the entire 45 read letter handwriting would your signature point. to at this and addressed to the correct, Judge you put saying wanted to That’s Kail off [DEFENSE COUNSEL]: your your What’s trial until a later date. Your Honor. [County Attorney] position regard with to these matters now? COURT: And would THE that, investigator questions [Defense MR. BEARPAW: On me and ask from rather already, you and it was Counsel] choose. discussed an order him, just really get speak I to with That's correct. that didn’t [COUNTYATTORNEY]: didn’t, know, you you enough I know on this for a bit know. THE COURT: I’ve reflected really represent going going know to that if to error I’m to who he was me. and I think I’m delay on as the Counsel] out And the—as far to error on side of [Defense know, caution, trial, point you get to see no evidence so at this I I didn’t of an abundance of entirety jury. anything a or witnesses for while. have it in its to discuss want to read know, care, Counsel], really my you I didn’t own out- should read [Defense Who it? know, or, son, [County my you thought you But for I I want it Attor- come. who do to read fight way you your can. This is ney], position? would the best what’s me, just get suppose time to to I that I all new to so I needed [COUNTY ATTORNEY]: exactly part Investigator Coppock and see know [Defense Counsel] could read the stand I didn’t part the defendant. where we on this because know and he could read the you, satisfactory with too much. THE COURT: Is that Well, Okay. we’re THE COURT: almost counsel]? [Defense fine, day full into trial now and Coun- [Defense That’s Your [DEFENSE COUNSEL]: representing you. The law that is— Honor. sell’s then, problem [County Okay. MR. BEARPAW: I have no with COURT: And THE you representing Attorney], would me. after think [Defense Counsel] that I you’re Okay. your So satisfied permitted questions to ask of the investi- THE COURT: representation? gator with his as to what the defendant’s demeanor part regard any particular MR. BEARPAW: Yes. it. was this, point being through may get THE COURT: And at this into take a I It while to very the trial now would be difficult to of an of caution that’s it think out abundance going proceed. delay something. way it or We’re over the want to So that takes care I very carefully. you evidence Are satisfied first issue. issue, Bearpaw, up? I was re- with that set Mr. The second just got that was cently assigned the case file MR. BEARPAW: Yes. It I this case and I is, everything and my week. And afraid. whole trial office in Jackson last know, through nothing you before. yesterday I saw a letter in I’ve been I came here when They placed in the file after I THE COURT: Yes. it the file. here; just don’t want to take brought you written MR. BEARPAW: I it back had Kail, my chances with future. Judge and I the date of no don’t remember Today my lawyer occurrence, is the first time perusal available for their [De- fense has talked to me in detail request Counsel] deliberation. This de- my wit- about defence and about nied. [sic] Two regarding additional my [sic], I over nesses defence went the relationship manslaughter mur- feel statements and evidence. I don’t der presented were p.m. 4:00 at with the just getting going over evidence and now guilty verdict p.m. then announced at 5:00 my my lawyer to see case about A sentence of twenty thirty years fol- get three trying to witnesses lowed presentence after a investigation re- I enough ask the court to trial is time. port prepared. put my trial later date so we off for a The record then Ap- reflects a Notice of will notify my can witnessesf] peal August 24, 1989, filed which stated: get Wy. time to have my COMES NOW Defendant lawyer long hereby
I not talked to have gives Appeal him his Notice enough repre- Judg- to know if I want Of to that my sent me at trial. This is the ment And second Sentence entered the [Dis- I you. of 2 letters have written Have day August, trict on the 16th Court] not had answer to the first. 1989, and filed on 18th day of Au- gust, Appeal 1989. This Sincerely taken to the Wyoming Supreme Court. W. Bearpaw /s/ Stan purposes Concurrently No motions for defensive herewith Defendant has * * filed, including *, been either a a transcript motion to ordered Court suppress change or motion for Reporter of venue. has filed Motion Pro pursuant Pauperis ceed In Forma Rule July The trial convened on W.R.A.P. 10.06 *6 p.m. jury impaneled 1:30 The (pro- was transcribed) ceedings not and voir dire com- Appeal A for Motion Leave to Proceed on transcribed), pleted (proceedings fol- not Pauperis Forma also stat- was filed and by testimony lowed of the two first ed: during witnesses the afternoon COMES NOW the above-named Defen- p.m. trial at The recessed 5:10 State com- dant, by through appointed and his coun- pleted testimony by its four wit- additional sel, respectfully and moves this Court for chambers, day. In nesses the next proceed pauperis. leave in forma The Bearpaw he advised the district court that proceed Defendant seeks in for- leave testify elected not to and the defense then costs of pauperis ma as to all and fees presented no in his evidence behalf of fees, including appeal, attorney’s kind, including psy- character witnesses or costs, and of the court costs record Preparation chiatric of instruc- review. transcript appeal. (not completed tions that afternoon was reported) morning, jury and the next designation pursuant A of the record (not transcribed) closing was instructed 4.02 was made coun- W.R.A.P. trial (not transcribed).4 argument made Bearpaw. Following receipt sel for appeal” consisting “record for one vol- only interruption expeditious court, ume in clerk’s office of this progress proceeding request was a pub- forty-five appellate counsel for the office of jury page to have the interview, which was the sole evidence lic defender filed a motion entitled Motion No, COUNSEL): you’ve Okay. THE COURT: So talked with Your Honor. [DEFENSE proceeding No, then about [Defense Counsel] ATTORNEY]: Your Honor. [COUNTY the trial? MR. BEARPAW: Yes. This court’s admonition in Valdez 4. you’re 1986) can THE COURT: And satisfied we (Wyo. of a P.2d "the waiver
go proceed ahead and with the trial? reporter any portion of the criminal Yes, sir. MR. BEARPAW: best, is, gone procedurally risky," at trial right. THE COURT: All Either counsel unheeded. say anything the record want to for time? cause, finding Stay Running Record and sufficient it is there- Supplement Brief, stated: Filing fore Time NOW, Appellant, ORDERED that record on
COMES in- respectfully supplemented of this case be through his counsel transcripts an order clusion of the of all trial court allowing moves this court for supplemented stay- the record and and so supplementation of 17, 1989, filing pursuant running of time certified November ing the 4.04, W.R.A.P.; and, transcript said to Rule it is further Appellant’s brief until filed. that the time which the ORDERED motion, appellant’s counsel for brief is scheduled to be filed support of said (30) hereby thirty states: respectfully extended Appellant supplemented after the record is and cer- (mailed 7, 1989 1. On October [sic with this court. tified and filed 1989)], counsel received noti- September, filing of the record fication of the It then determined in communication was State, No. Bearpaw v. 89-214. case of between this court and counsel reported picked counsel text of the interview had not been 2. October On and was available as an up the record. exhibit—then unlocated; that extensive off-the-record ex- subsequent examination of the 3. A occurred; changes had and that voir Mr. revealed that dire, opening closing argu- statements and degree of second murder after convicted ments had been but not tran- trial. Initially, other trial evidence had scribed. revealed that 4. Further examination transcribed, subsequently but not been transcript of the the record contained no transcribed after an order from this court. rather contained supplemental filing A was made which in- hear- only transcript of an chambers deposit cluded that and a of ex- the trial ing concerning jury which had not been delivered. After hibits judge. discovered, text, having been the interview charge; severity 5. Given January filed on Exhibit Appellant was sentenced to the facts that 8, 1990, Bearpaw’s January counsel prison preclu- On years 20 to 30 *7 supplement: failing raise an issue on renewed his motion to sive effect of * * * Appellant feels appeal, counsel for NOW, Appellant, the Stan W. COMES a absolutely essential that tran- that it is re- Bearpaw, through his counsel and proceedings be reviewed script of the an spectfully moves this Court for Order of the brief. prior preparation supplementation to allow of the record WHEREFORE, Appellant 1) counsel for following the materials: A tran- is- requests dire; 2) that this court respectfully script transcript a of of voir supplementation of allowing statements; 3) closing sue an order all opening and record; filing setting a) a deadline for exhibits, the including not limited to a but 1989; November transcripts of the of transcript in-custody of the interview running the 30 staying the of Appellant read to the with the which was until Appellant’s brief such filing b) for of copy the jury but not recorded a of material supplemental time as signed by Appellant. written statement filed. support of said motion counsel respectfully Appellant states: order of October This court entered an Appellant convicted of supplement 1. The stands granting motion to degree murder. running of time for second stay record and filing received, the brief which stated: originally 2. As transcript proceedings of the trial con- coming be- captioned matter The above (5) page transcript of an of a five appellant’s Mo- sisted upon the court
fore hearing concerning jury ques- in-camera Stay Run- Supplement Record and tion tions. Filing of Brief and the ning of Time transcribed, requesting
3. Counsel filed a Motion pursuant herein to direction supplemented that this record be with a counsel.) of ordering transcript proceedings. of all trial (Whereupon, pre- the Court read the 4. On October Court liminary jury.) instruction on appeal ordered “the record that: of (Whereupon, opening statements of supplemented this case be inclu- counsel for the State and Defendant transcripts all sion of the trial court were made and are but * * * proceedings.” transcribed, pursuant herein direction Although vior dire and open [sic] counsel.) of ordering closing ing and statements were record THE may your You COURT: call first ed, these were not tran witness. “pursuant scribed to direction of counsel.” * * * (Whereupon, jury the Court read the transcript 6. At trial in-custo- charge jury.) to the dy was read to the but was not recorded. (Whereupon, [County Attorney] gave a closing argument State, on behalf statement of the Appel-
7. A written which reported, lant as an but not here tran- was offered exhibit. pursuant scribed ordering direction of 8. The exhibits this case were not counsel.) Wyoming received Clerk of the Supreme (Whereupon, Court. gave a [Defense Counsel] closing argument on behalf of the defen- designation
9. There is no of the dant, reported, which was not here record in the record. pursuant transcribed to direction of or- 10. There were no other witnesses counsel.) dering alleged Appellant than the to the homi- cide. Attorney] (Whereupon, [County gave a closing argument reading rebuttal on
11. Based counsel’s behalf appears reported, it now exists it which was but not as pursuant trial court here inclusion rest transcribed to direction of necessary just counsel.) ordering deter- mination this case. Nothing sup- filed of record which WHEREFORE, Appellant counsel for ported designation of less than the com- requests respectfully that this Court or- plete record. It was also determined that transcripts der that of vior dire and [sic] tape had been taken opening closing pre- statements and that a been erased January pared by 1990 and these dire, impaneling, opening voir state- *8 transcripts and all exhibits in case be closing arguments ments and not could be supplemented to the record. since the basic source of material obtained FURTHER, respectfully counsel re- reporter destroyed by had been the court Appellant’s quests brief be due sev- following exchange occurred whatever had (7) supplemented after en mate- between himself and trial counsel about the and field with this rial is certified [sic] requested transcript. Court. briefs, Following receipt original of this
The stated: reassigned Supreme from the SESSION, MONDAY, expedited argu- docket to
AFTERNOON Court the oral request a JULY ment docket with for additional briefing stating: afternoon, THE ladies COURT: Good gentlemen. expedit- and assigned This case was (Veniremen, summoned, regularly ed docket and came on having been court; having the court reviewed sworn, interrogated, a were of briefs, files, that the finds duly impaneled twelve sworn. record provide briefs parties and is additional The voir dire was should upon designate concepts adequacy representation the effect of failure to of of record, inability supply comprehensive the entire now to a without record. We con- record, appellant the entire and whether that at clude least some of the do counsel; require assistance had effective resolution before we can determine court further finds that this case should that a fair trial held. Because we docket; determination, reassigned argument cannot make that this case wherefore, hereby it is is remanded for retrial. appellant, on or be- ORDERED controlling Wyoming requir The decision order, days from the date of this fore 20 ing complete a retrial where a and ade days thereafter, appellee, within 15 quate transcript is not available is Richard present- file their additional briefs shall State, Wyo. P. 1027 son upon ing positions their the effect of (1907). The have a facts Richardson designate the entire
failure
similarity except
death
remarkable
for its
inability
present
the entire record
now
case,
penalty
In that
homicide conviction.
case,
appellant
and whether
reporter
the court
lost some of his notes
counsel;
of trial
it is
effective assistance
provide
complete
and could not
a
ORDERED that this case
FURTHER
upon
adequate
exception,
which an
bill of
argument
reassigned
is
docket
constituting
Wyoming appellate
briefing
hearing
complete!5!
after
is
process,
prepared.
could be
See Harris
(Tex.Cr.App.1989).
79
required
necessary
when a
record is ab-
sence of a substantial
significant por
and
sent.7
tion ... of the record’ will
result
a
presumption
prejudice
sufficient to man
The rule
regarding
irre-
Richardson
* *
date reversal
Brumley, 560 F.2d
placeable
missing
record was followed
at 1281.
Thomas,
Wyo.
v.
P.
State
38
264
(1928),
when
court deter-
the trial
The Oklahoma courts are
agreement:
mined
exchange during
that an
trial direct-
The Court therefore finds that due to
reported,
ed
trial court not to be
the illness of said court reporter,
it is
exception
was not
to which
impossible
complete
for him to
the record
taken,
immediately
constituted reversible
Court;
of evidence in the District
and it
quoted
error.
as control-
Richardson
impossible
is therefore
for defendant to
approval in
ling precedent
granting
provide this Court with the record and
new trial:
testimony
case;
in this
and that counsel
grave point
assign-
The
before us on this
impossible
asserts
affidavit that it is
ment of error is that we are asked to
for him provide
testimony
such
part
review that
of a record which the
memory.
defendant, through no fault of his own
We have repeatedly held that
where
counsel,
prevented by
or his
timely request
record has been
action of the trial
making.
court from
It
through
made and
no fault of the defen-
would
appellate jurisdic-
seem that the
dant the
prepared
record cannot be
tion of this court is affected.
reporter
certified
the court
a new trial
Thomas,
was amended effective criticism from them in paragraph: performing responsibili- include this a court-mandated ty. opportunity An the to settle record “Transcripts in criminal cases shall con- have been should afforded counsel this open all held in sist of court case. dire, including but not limited to voir
opening arguments, statements and final A reading upon closer of the case which judge presiding conferences with the require the court relies a new to trial at chambers, open court and the court being time reveals now made. this error In testimony 465, to the of the case and State, Wyo. 485, addition Richardson v. 15 89 required 1027, (1907), other materials.” P. 1034 we said: power compel “Incidental to the reporting the of Before amendment up, correct record or a to be sent bill of dire, opening and final ar- voir statements exceptions settled, power, to be is the as gument upon counsel request of us, ordering it seems to a new trial of required part ap- as the record on not cause, appear the where it is made to peal. These were here but delib- only that the record in the cause has erately by Bearpaw’s not ordered trial destroyed been without * * the possibility filing appeal. counsel when his notice of (emphasis substitution add- reporter, upon being The court advised of ed) portions of the trial were not re- these
quired
appeal, destroyed them. After
very purpose
This statement
the
embraces
destruction, Bearpaw’s appellate
coun- of
4.03. A
the
W.R.A.P.
statement of
evi-
their
record.
proceedings approved
sel asked for
inclusion
dence and the
parties
and court in the manner dictated
may
Although I foresee that
this case
“adequate
],
the rule can be an
substitute[
remanded,
majority
ultimately be
equally
good
transcript.”
as
Draper
as a
premature
reversing
ordering
in now
Washington,
372
83
U.S.
S.Ct.
result,
In
arriving
new trial.
at this
(1963).
81 ble. court held that while the rule preceded permis- W.R.A.P. 4.03 was
sive, failure procedure may to use the ad-
versely affect appeal. Id. 980. We
then said that when a defendant makes no
attempt to settle a we will not an
consider issue that could be raised had
the defendant Id. done so. case, Bearpaw’s ignores
purpose of W.R.A.P. in granting 4.03 Bear-
paw having a new trial to identify without potential
what error occurred voir
dire, opening argument attempting
then settlement of the record. attempt
If an to settle record were
unsuccessful, should have to missing portion
show of the record
is “substantial and critical” before a new
trial would be ordered. United v. States (10th
Pilling, Cir.1983). 721 F.2d Smaldone, also United
See States (10th Cir.1978),
F.2d 1133-34 cert.
denied U.S. S.Ct. (1979).
L.Ed.2d 40 require parties
I would first
proceed as outlined above. Compensa
In the Matter of the Workers’ KRAUSE,
tion Claim of Michael J.
Employee Corpora Nuclear United
tion. KRAUSE, Appellant
Michael J.
(Employee-Claimant), rel., Wyoming,
STATE ex WYOMING
WORKERS’ COMPENSATION DIVI
SION, Appellee (Objector-Defendant). Graves, George Santini of Santini & Vil- lemez, appellant. Cheyenne, for
No. 90-91. Atty. Joseph Meyer, Larry B. Gen. and Supreme Wyoming. Court of Gen., Donovan, Atty. appellee. M. Asst. Dec. C.J., THOMAS, URBIGKIT, Before JJ., BROWN, MACY, CARDINE J., Retired.