Opinion
Case No. 20070446-CA.
Filed April 16, 2009. Not For Official Publication
Appeal from the Sixth District, Kanab Department, 991600062 The Honorable David L. Mower.
Randall C. Allen, Cedar City, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Bench, Orme, and Davis.
MEMORANDUM DECISION
Defendant Troy Evans appeals his conviction for manslaughter, claiming that because the transcript of the jury voir dire and preliminary instructions is missing, his rights are violated and he is entitled to a new trial. We affirm.
Whether an incomplete record entitles a defendant to a new trial is a question of law, which we review for correctness. See West Valley City v. Roberts, 1999 UT App 358, ¶ 6, 993 P.2d 252. "[A] defendant is [not] entitled to a new trial whenever there is a gap in the record, just in case the missing record might reveal some error." State v. Russell, 917 P.2d 557, 559 (Utah Ct.App. 1996). Utah law "only requires that there be a record adequate to review specific claims of error already raised," but it "does not require a complete record so appellate counsel can go fishing for error." Id. (emphasis added).
Here, Defendant concedes that he has not raised any specific claims of error on appeal that would require the two missing hours of transcription to resolve. In fact, Defendant has not even identified any general recollection on his or his prior counsel's part that there were any problems associated with those two hours of the five-day trial. Defendant nonetheless argues that we should essentially presume error because the voir dire and jury instructions are a critical phase of trial and because the length of time between trial and appeal have resulted in faded memories by Defendant and his prior counsel. However, such a presumption is not justified under Utah law. See State v. Morello, 927 P.2d 646, 648-49 (Utah Ct.App. 1996) ("[W]e do not presume error simply because the record is unavailable."); Russell, 917 P.2d at 559-60 (refusing to grant a new trial to a defendant who did not raise any claims of error, despite the fact that the entire jury voir dire — lasting almost two hours — was missing from the record).
Accordingly, we affirm.
I CONCUR: James Z. Davis, Judge.
I readily concur in the court's decision. In so doing, I am heavily influenced by the fact that only a tiny portion of the overall record is missing. I am not certain that the rationale articulated in the lead opinion, which is set forth without qualification, would necessarily apply if all — or even most — of the record were missing. See generally Utah Const. art. VIII, § 1 ("The Supreme Court, the district court, and such other courts designated by statute shall be courts of record."); Utah R. Jud. Admin. 4-201(1) ("The verbatim record of court proceedings shall be maintained in accordance with the following guidelines. . . ."). State v. Russell, 917 P.2d 557, 558 (Utah Ct.App. 1996) ("Defendant contends he is entitled to a complete record of his trial court proceedings for the purpose of discovering any appealable error made by the court or counsel. The contention is not inherently unreasonable. There are at least three situations when error, otherwise appealable, may not be uncovered without the aid of a complete record. These situations are plain error; when an error is overlooked or forgotten by trial counsel despite his or her best efforts to advise appellate counsel of possible errors; and when trial counsel was ineffective and does not realize it. In any of these instances, and perhaps others, the lack of a complete record will seriously undercut a defendant's ability to meaningfully prosecute his or her appeal.") (citation omitted).