Decided August 31, 2001.
Appeal from Jefferson Circuit Court (CC-99-2314).
Douglas H. Scofield, Bessemer, for appellant.
Bill Pryor, atty. gen., and Kristi L. Deason, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMillan, P.J., and Baschab and Wise, JJ., concur; Shaw, J., concurs in part and dissents in part.
I concur as to Part I of the unpublished memorandum in this case. However, I dissent as to Part II. After reading Ex parte Godbolt, 546 So.2d 991 (Ala. 1987), and Ex parte Harris, 632 So.2d (Ala. 1993), aff'd, 513 U.S. 504 (1995), I remain concerned that a substantial and significant portion of the record could be missing and that the appellant's substantial rights could be adversely affected by that omission. I have no way of knowing whether the State's introduction of rebuttal evidence and its closing argument were free from error that, under our caselaw, would have an adverse impact on the appellant's substantial rights. It appears to me that had the court reporter been present, the rebuttal testimony and, at least, any objections made to the State's closing argument would have been transcribed. With the case in this posture and because counsel on appeal is different from trial counsel, instead of affirming at this point, I would remand the case and afford the trial judge the opportunity to reconstruct the missing part of the record, if possible, so that we could have a better insight into whether the missing portions of this record are substantial and significant. See Rule 10(g), Ala.R.App.P.