State v. LandryState v. Landry
An Orleans Parish jury found defendant, Derek Landry, guilty of the first-degree murder of Lloyd Gonzales, Jr. The trial of the guilt phase consisted of a day and a half of voir dire and a one-day trial. After a one-day penalty phase hearing, the jury sentenced defendant to death, finding three aggravating circumstances. Although defendant perfected thirty-four assignments of error, we reverse defendant‘s conviction on thе threshold assignment of error, finding the appellate record so deficient that we cannot properly review this case for error.1
As a preface to this issue, we note that thе record before us references loud construction noise which hindered recordation of the trial proceedings. It is likewise inferred that the court reporter experienсed problems with the audio recording equipment which caused skips in the recordation of the trial proceedings. With that as a background, the defendant urges us to reverse this conviction because the record is so wanting that we cannot perform our function as a reviewing court under the mandate of
In Louisiana, a defendant convicted of a capital offense in which a penalty of death has actuаlly been imposed has a constitutional right to an appeal to the supreme court.
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 оr 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 cоurt, and objections.
We have reversed convictions when material portions of the transcript were either incomplete or unavailable. In State v. Ford, 338 So.2d 107, 110 (La.1976), a second-degree murder conviction in which appellate counsel did not serve as trial counsel and the court reporter failed to record the testimony of four state witnesses, voir dire, and the State‘s opening statement, we held: “Without a complete record from which a transcript for appeal may be prepared, a defendant‘s right of appellate review is rendered meaningless.” Similarly, in State v. Jones, 351 So.2d 1194 (La.1977), we held that the omission of a portion of the hearing on a motion for change of venue was not an “inconsequential omission” and required reversal because it was impossible to assess the existence of community prejudice or to ascertain whether the evidence supported the defendant‘s contention that the motion was improvidently denied. Again, in State v. Parker, 361 So.2d 226 (La.1978), reversal was required when the transcript of the closing argument could not be prepared and defendant assigned as error the State‘s closing argument. Likewise, in State v. Rooney, 187 La. 256, 174 So. 348 (1937), we reversed defеndant‘s conviction and sentence, finding that the transcript relative to defendant‘s bill of exceptions was so defective that it made presentation of an appeal impоssible.
In the present case, as in Ford, we are faced with an appellate counsel who did not serve as trial counsel. A criminal defendant has a right to a complete transcript of the trial proceеdings, particularly where counsel on appeal was not counsel at trial. U.S. v. Atilus, 425 F.2d 816 (5 Cir.1970) citing Hardy v. U.S., 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). “[W]here a defendant‘s attorney is unable, through no fault of his own, to review a substantial portion of the trial rеcord for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded
From the outset, we are faced with assignments of error relative to voir dire examination that we cannot resolve on the present record.3 Although the State asserts there are no defense objections recorded during jury selection, appellate counsel adroitly points to numerous defense counsel remarks which were transcribed as, “I [INAUDIBLE].” Furthermore, the record is replete with “(INAUDIBLE)” responses during critical portions of voir dire which make it impossible to ascertain why certain jurors were excluded. To worsen matters, not only are questions shown as inaudible, but the record indicates that the inaudible responses were made by unidentified jurors. In addition, there arе numerous instances where we cannot determine what occurred when jurors were excused because of their views on the death penalty. When we consider that there were approximately forty jurors excluded for cause, there is almost nothing to justify the various exclusions because of the incomplete record. Clearly, on the deficient record before us, we cannot assure that no erroneous excuses for cause were made.
As held in State v. Bizette, 334 So.2d 392 (La.1976), it is not the defendant‘s obligation to insure an adequate record. To the contrary, it is the duty of the court to “require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.”
REVERSED AND REMANDED FOR A NEW TRIAL.
CALOGERO, C.J., concurs and assigns reasons.
CALOGERO, C.J. concurring.
I agree entirely with the majority opinion in this case but concur in order to give my views on an issue not addressed by the majority so that uрon retrial the same error in the sentencing phase of the trial is not repeated. This involves the trial court‘s instruction to the jury on the governor‘s power to commute death sentences.
In State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382, this Court held that Louisiana constitutional amendments are deemed prospective only, unless a contrary intention is clearly expressed in the amendment. In Cousan, we noted thаt neither the express language of the 1995 amendment of
Similarly, in the instant case, the trial court gave the jury аn instruction which was invalid at the time under this Court‘s rule in Jones, supra. I therefore believe that the court erred in instructing the jury on this issue and assume the same error will not be repeated upon retrial.