JOHNSON v. THE STATE.
S17A1105
Supreme Court of Georgia
October 2, 2017
302 Ga. 188
NAHMIAS, Justice.
FINAL COPY
After a six-day trial, a jury found Craig Johnson guilty of malice murder and other crimes related to the stabbing death of Nicole Judge. All of the original verbatim trial transcript materials were later destroyed in a fire at the court reporter‘s house. The State ultimately provided Johnson with a 14-page, double-spaced document purported to be a complete narrative re-creation of the trial transcript. As explained below, we conclude that the re-created transcript is not sufficiently detailed to allow Johnson a fair opportunity to appeal or to allow meaningful appellate review. We therefore reverse the trial court‘s denial of Johnson‘s motion for new trial.1
1. Viewed in the light most favorable to the verdicts, the evidence available for review on appeal, which includes the re-created trial transcript, Johnson‘s videotaped custodial statement, and most of the exhibits admitted at trial, shows the following.2 On the night of February 28-29, 2008, Judge was stabbed to death. She suffered 36 separate stab wounds, including 10 to her head, three to her neck, six to her liver, and 14 to her back. She also had multiple cuts on her arms. Judge was found in her apartment on the floor of her
Four days later, Johnson was arrested, and GBI agents interviewed him for almost four hours. He was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and he signed a waiver of those rights. Johnson first told the agents that he was not at Judge‘s apartment when she died. He then admitted that he had been there and claimed that he and Judge had sex, she said she wanted to be with him, he said no, she began stabbing herself, and he tried to stop her before running away. After an agent told Johnson that Judge‘s stab wounds were not self-inflicted, he again changed his
After being told that the physical evidence did not match this account either, Johnson admitted that there was no boyfriend and told the following story: When he rejected Judge, she threatened to tell his wife about their affair. Judge then pulled out a knife and tried to stab him. While they were fighting over the knife, Judge was stabbed and Johnson cut his hand. He then went to the kitchen to get a knife. He returned to the room where Judge was. She had dropped her knife but rushed at him, and he stabbed her. She then took his knife, and he went to the kitchen for another knife. He returned, and they fought more. At some point, he stabbed her in the back. She eventually fell to the floor, and he stabbed her again. He left her lying on the floor, went to the bathroom, cleaned up, and then fled. He tried to use her ATM card because he wanted to get money for her children.
Johnson did not testify at trial. The jury was instructed on self-defense
Post-Trial Procedural History
2. On October 22, 2009, Johnson‘s trial counsel filed a timely motion for new trial — a two-page document that summarily alleged only that the verdicts were contrary to the evidence and the law. On March 3, 2010, while presumably still represented by trial counsel, Johnson wrote the trial court‘s clerk asking for a transcript of his trial; the clerk‘s office told him to contact the court reporter. On September 24, 2010, Johnson asked the clerk‘s office for a public defender to represent him on appeal; the clerk‘s office told him to contact the public defender‘s office. On March 14, 2011, appellate counsel from the circuit public defender‘s office was finally appointed to represent Johnson.3
Appellate counsel requested the trial transcript. Before the verbatim
On July 26, 2016, Johnson filed an amended motion for new trial, raising five enumerations of error, including a claim that the lack of the original trial transcript denied him a full opportunity to present an appeal and that the re-
3. Our decision in this case rests on two fundamental principles: a defendant convicted of a crime has a right to appeal, and a defendant convicted of a felony has a right to a transcript of the trial to use in bringing that appeal. See Wilson v. State, 246 Ga. 672, 675 (273 SE2d 9) (1980). If an appellant is deprived of an adequate transcript, he has effectively been deprived of his right to appeal. See Sheard v. State, 300 Ga. 117, 120 (793 SE2d 386) (2016); Wade v. State, 231 Ga. 131, 133 (200 SE2d 271) (1973). Because Johnson was deprived of an adequate trial transcript, he has been denied his right to appeal, and he is therefore entitled to a new trial.
(a) This is a felony case, and in felony cases the State is responsible for ensuring that a correct and complete transcript is created, preserved, and provided to the defendant upon his request.
On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel. In the event of a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. . . .
See also
Although not every portion of a criminal trial is required to be transcribed, most must be reported verbatim, with the express purpose of creating an appropriate record for appeal:
Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record. Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record. . . .
If a verbatim transcript is not created or is lost before a defendant appeals, the defendant is not automatically entitled to a new trial, as the State can try to re-create the transcript under
(b) The first part of the trial court‘s ruling — that the re-created transcript is correct — is not reviewable by this Court. See
Complete does not always mean verbatim; “where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form.”
Such measures were not taken to re-create the transcript in this case. On the contrary, at the hearing on the re-created transcript, the prosecutor explained that the State prepared it from the trial court‘s notes, the notes of an investigator from the district attorney‘s office who was present at the trial, and the notes of the different prosecutor who tried the case. In evaluating the new transcript, the trial judge relied solely on those three sets of notes and his own recollection of the trial held more than seven years earlier.8 The State apparently made no attempt to interview or call to testify anyone who had been a witness or present for the trial. Johnson‘s appellate counsel said that he spoke with his client about what had occurred during the trial, but he represented to the court without objection that he was unable to obtain any assistance from Johnson‘s trial
The result of this lackluster information-gathering process was a 14-page transcript — double-spaced, with wide margins and much additional white space — purporting to summarize a six-day trial and sentencing hearing. This elliptical transcript consists of brief summaries of the trial testimony given by the State‘s 14 witnesses. It mentions the cross-examination of only two witnesses, but it is not clear whether that is because Johnson‘s trial counsel did not cross-examine the other witnesses or because the transcript simply does not delineate between testimony given on direct examination and testimony given on cross-examination.9 It is likely the latter, because in the brief summary of one witness, which contains no mention of cross-examination, the transcript notes that “Defendant‘s Exhibit 1” was admitted. More details generally are given about the 58 exhibits offered into evidence, including which witness
More troubling, although the re-created transcript notes that Johnson raised 14 objections to the admission of evidence, all of which were overruled, it does not describe the basis for any of these objections or for any of the trial court‘s rulings. The re-creation also notes that Johnson moved for a mistrial twice based on violations of two granted motions in limine and that the trial court denied both motions. In one instance, the court instructed the jury to disregard the witness‘s use of the word “murder.” In the other instance, the transcript says that after the first responding police officer testified that he found Judge‘s children when he arrived on the scene, in violation of a motion in limine granted on the first day of trial “to exclude any evidence of the victim‘s young children being found in the apartment with the deceased victim,” the trial court concluded there was no prejudice from the witness‘s mention of the victim‘s children because the victim‘s father “previously testified that the children were with their mother, the victim.” No such testimony, however, is reflected in the
A similar problem is found in the description of a GBI agent‘s testimony. The re-created transcript says that when the agent “mentioned that Defendant had been arrested as a juvenile,” the trial court “objected” to this testimony (although objecting is normally done by the opposing party, rather than the court) and “restricted him from testifying as to that matter.” Again, important details are not provided, including whether a curative instruction was requested or given.
Also unfortunately cursory is the re-created transcript‘s account of the jury charge, which consists only of a list of pattern jury instruction numbers and titles that were given. There is no indication as to what instructions were requested by either party or discussed at the charge conference, whether the court denied any instructions requested by Johnson, or whether (and if so, how) the court modified these pattern instructions to fit the facts of the case.10
(c) For these reasons, when considered as a whole, the re-created narrative transcript lacks sufficient accounts of crucial parts of Johnson‘s trial. See Sheard, 300 Ga. at 121 (“[T]he jury charge — which is missing here — is a crucial portion of trial in which jurors are instructed on the applicable law, on how to evaluate the evidence, and on how to deliberate and reach a verdict[.]“);
Johnson asserts that there may have been errors made by the trial court or his trial counsel during the trial, but that without an adequate transcript he has no way of knowing. We agree. In cases where a verbatim transcript is missing just one or a few parts of the trial, particularly parts that are not required to be transcribed in the first place, this Court has held that the appellant is not entitled to a new trial unless he can point more specifically to some error that allegedly occurred during the omitted part. See, e.g., Ruffin v. State, 283 Ga. 87, 88 (656 SE2d 140) (2008) (“[T]he absence of a transcript of voir dire, opening statement, bench conferences and the polling of the jury . . . “cannot be
We do not normally assume that an error occurred during a mere gap in a trial transcript. On the contrary, we presume that a trial court followed the law and that trial counsel rendered adequate assistance. See Edwards v. State, 301 Ga. 822, 827 (804 SE2d 404) (2017); Batten v. State, 295 Ga. 442, 445 (761 SE2d 70) (2014). Those presumptions, however, are just that — presumptions, which can be rebutted by what is shown in the record.
An appeal is Johnson‘s chance to point to the record and overcome those presumptions. He can only do that with an adequate transcript. In this case, where the whole original verbatim transcript of his trial is lost and the narrative re-creation is manifestly inadequate, Johnson has not been given a fair opportunity to identify any trial errors and resulting harm or deficient
Judgment reversed. All the Justices concur.
Decided October 2, 2017.
Murder. Lee Superior Court. Before Judge Peagler.
Kevin Kwashnak, for appellant.
Plez H. Hardin, District Attorney, Lewis R. Lamb, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.