State v. BizetteState v. Bizette
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
MARCUS, Justice.
Rickey B. Bizette was charged by bill of information with the crime of operating a vehicle while intoxicated on April 20, 1975, in violation of
Defendant‘s sole assignment of error complains of the trial court‘s denial of his motion for a judgment of acquittal. In a trial by the judge alone, the court shall enter a judgment of acquittal if the state presents no evidence that the accused committed the crime or an essential element thereof.
Owing to substantial omissions from the transcript of the trial proceedings, we are unable to determine whether the trial court erred in denying defendant‘s motion for a judgment of acquittal.
At the trial of this case, the state presented one witness, Trooper E. W. Sivula, the patrolman who arrested defendant on April 20, 1975 at about four o‘clock in the morning for operating a vehicle while intoxicated. The greater part of the trooper‘s testimony, however, was not recorded at trial. In a note annexed to the transcript, the court reporter states that not all the testimony could be transcribed because the recording equipment malfunctioned. In oral argument before this court, it was asserted that defendant‘s counsel at trial was not aware that the recording equipment was note operating properly.
The portion of the testimony that was recorded begins with the concluding part of Trooper Sivula‘s testimony. Dealing largely with the fact that defendant was advised of his Miranda warnings following his arrest, his recorded testimony relates neither the events leading up to defendant‘s arrest, the officer‘s observation of his intoxicated condition at that time, nor the results of any PEI or other sobriety tests that may have been given. After Trooper Sivula‘s testimony comprising the state‘s case in chief, the transcript continues with
The state argues that, since the crime charged herein is a misdemeanor, defendant waived his right to judicial review based upon a complete record of all evidence upon which the judgment is based because he did not move for recordation of the proceedings.
Article 843 of the Code of Criminal Procedure, as amended, La.Acts 1975, No. 118, § 1, provides as follows:
In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.
Defendant‘s counsel in oral argument stated that it was the practice of the Nineteenth Judicial District Court to record the proceedings in trials for misdemeanor offenses, even in the absence of a motion therefor. Further, as stated above, counsel also was under the impression that the entire proceedings were being recorded and was not aware that, because of the malfunctioning recording equipment, a substantial portion of the trial was not in fact recorded. In our view, under the circumstances here presented, a motion of the defendant for recordation of the trial proceedings, as required by article 843, would have been a vain and useless act. Accordingly, we cannot say that defendant intelligently waived his right of judicial review based upon a complete record of all evidence upon which the judgment is based.
DECREE
For the reasons assigned, the conviction and sentence are reversed and the case is remanded for a new trial in accordance with law.
SUMMERS, J., dissents.