State v. Laster

Feb 22, 2013

25019

Versions:2013 Ohio 621

O P I N I O N

HALL, J.

{¶ 1} Sade Laster appeals from her conviction and sentence following a jury trial on one count of misdemeanor assault.

{¶ 2} In her sole assignment of error, Laster contends the trial court erred in failing to provide a full ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍transcript of proceedings below, including voir dire, rendering her unable to pursue an aрpeal based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

{¶ 3} The record reflects that Laster was charged with assault for participating in an attack on the victim, Chelsea Probert, by striking hеr in the face. The jury found Laster guilty. The trial court imposed a 180-day jail sentence, gave Laster credit for nine days served, and suspended the remaining 171 dаys subject to two years of community control with conditions. The trial court suspended a $150 fine but imposed court costs.¹ This appeal followed.

{¶ 4} After Laster filed her opening appellate brief complaining about the absence of a transcribed voir dire, a supplemental transcript was filed. That transcript contаins the omitted voir dire. Upon receiving the new transcript, Laster filed a supplemental appellate brief. Therein, she asserts that the new transcript “remains incomplete and does not contain sufficient information” to enable her to pursue a purported Batson issue on appeal. More specifically, Laster argues:

On page 44, after defense counsel and the prosecution have each finished questioning the jury, the trial judge holds an unrecorded sidebar. Then the trial judge begins dismissing jurors from the venire, and begins to seat the jury.

There is no record of any peremptory challenges, challenges for cause, objections or arguments by either party recorded in the transcript of voir dire. Only the questioning preliminary to the actual strikes [is] included, not the strikes themselves nor what follows them.

However, we do know that some jurors are excused for cause or by peremptory challenges. We know this because, when the trial judge seats the jury, some jurors оut of the first twelve are removed, and other jurors farther down in the venire take their seats. Thus, juror number 16 moves to seat three, juror number 21 moves to seat number 4, etc.

We have no way of knowing from the transcript whether the State excused any black jurors for cause or by peremptory challenge, whether the defense made any objection to such challenges, whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the state offered any proper reasons for so doing, whether therе were even any black jurors present in the venire, whether the prosecutor struck a disproportionate number of black jurors, etc.

(Appellant‘s supplemental brief, pg. 4) (Emphasis added).

{¶ 5} Attachеd to Laster‘s original appellate brief is an affidavit in which she avers that her attorney objected to the removal of two out of three blaсk potential jurors. The affidavit does not say whether the two black potential jurors were removed for cause or with peremptory challenges and does not specify whether her trial attorney‘s purported objection raised a Batson challenge. In the brief of the appellee, counsel for the state, who was also trial counsel, denies that there was any Batson challenge and asserts that the appellant, seated close to the jury, was not at, or able to hear the sidebar conferences anyway. In any event, based upon appellant‘s affidavit and the lack of a transcript reflecting what occurred when potential jurors werе stricken, Laster contends we must reverse her conviction and remand for a new trial. In support, she reasons that we cannot know whether her rights were violated under Batson and, as a result, that we cannot exclude the possibility of prejudicial error.

{¶ 6} Upon review, we find Laster‘s argument to be unpersuasivе. As an initial matter, we cannot consider her affidavit, which was created after her appeal and was not part of the record below. State v. Brown, 2d Dist. Clark No. 2009 CA 96, 2010-Ohio-4391, ¶ 9 fn.1; State v. Mathers, 2d Dist. Clark No. 2000 CA 92, 2002-Ohio-4117, ¶ 8. Absеnt that affidavit, Laster admits the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍record contains no evidence to support a Batson argument. The voir dire transcript simply reflects the trial court excusing certain prospective jurors after counsel completed questioning. (See Supplemental Tr. at 44-45). Any discussion about excusing the prospеctive jurors apparently occurred at two unrecorded sidebars. (Id.).²

{¶ 7} Contrary to Laster‘s argument, failure to record the two sidebars does not rеquire reversal. Although non-production of a complete record can require reversal of a conviction, all reasonable solutiоns first must be exhausted without success. State v. Lewis, 2d Dist. Montgomery No. 23850, 2011-Ohio-1411, ¶ 26. This includes resort to App.R. 9, which “provides a process by which a statement of the evidence may be created to cure the defect of the lack of an entire transcript, let alone individual defects.” Id. at ¶ 28. In particular, App.R. 9(E) contains procedures to correct the record if anything material is оmitted. Moreover, under App.R. 9(C), Laster‘s counsel could have prepared a statement of the unrecorded sidebars “from the best available means” and submitted it to the trial court to settle any objections. Id. Counsel also could have sought an agreed statement ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍regarding what occurred at the sidеbars. Id. Input could have been acquired from trial counsel for the defendant and for the state, and most importantly, from the trial court itself. Because Laster made no effort to reconstruct the record under App.R. 9 to identify what occurred during the two sidebars, their failure to be recorded does not constitute reversible error. State v. Goodwin, 84 Ohio St.3d 331, 340, 703 N.E.2d 1251 (1999) (recognizing “that reversal will not occur because of unrecorded * * * sidebars where the defendant has failed to demоnstrate that a request was made at trial or objections were made, that an effort under App.R. 9 was made to reconstruct what occurred, and that mаterial prejudice resulted“).

{¶ 8} Finally, we note that absent evidence showing whether the venire contained any black potential jurors, whether the State excused any black potential jurors, whether defense counsel objected, or whether the State proffered a race-neutral rеason for any strikes, Laster cannot possibly prevail on a Batson argument on appeal—a fact she appears to concede.

{¶ 9} Based on the reasoning set forth above, we overrule Laster‘s assignment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of error and affirm the judgment of the Dayton Municipal Court.

DONOVAN and WELBAUM, JJ., concur.

Notes

A review of the trial court‘s on-line docket suggests that Laster‘s community control may have been terminated early. The trial court‘s docket also reflects, however, that she never paid her court costs, which, with additional fees, now total $903.46. Because the court costs remain unpaid, Laster‘s misdemeanor appeal is not moot despite her completion of community control and the absence of any other apparent collateral consequences stemming from her conviction. Cf. (recognizing that a misdemeanor apрeal is moot after the judgment has been voluntarily satisfied unless some collateral legal disability or loss of civil rights exists).

The better practice would bе for the trial court to record the sidebars, or, at some time and manner out of the jury‘s hearing, at least the court and counsel should reiterate on the record what had occurred during unrecorded sidebars.

Read the detailed case summary