Lost Voir Dire Transcript and the Appellant's Record Burden
Appellant was convicted of aggravated battery after a jury trial. The only disputed issue was whether the victim was struck with a deadly weapon. During voir dire, a juror stated that she had been a victim of a violent crime but could be fair. Defense counsel did not challenge her, and she served on the jury. After conviction, appellate counsel wants to argue that the trial court erred in denying a for-cause challenge to the juror. However, the court reporter's notes for voir dire were destroyed in a fire, and no transcript exists. The trial court's docket sheet shows the jury was sworn, but it does not include the voir dire. The appellant timely filed a notice of appeal and designated the record. The clerk transmitted the record without voir dire. The state argues the issue cannot be reviewed because the appellant failed to provide a complete record. Appellate counsel is considering a motion to reconstruct the record or a statement of evidence under Florida Rule of Appellate Procedure 9.200(b)(4).
1. What is the appellant's burden regarding the record on appeal, and how should counsel proceed when the transcript is unavailable through no fault of the appellant?
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The appellant bears the burden of providing an appellate record sufficient to demonstrate reversible error. Under Florida Rule of Appellate Procedure 9.200(e), the appellant must ensure that the transcript or a proper substitute is included. When a transcript is unavailable through no fault of the appellant, rule 9.200(b)(4) provides a procedure for a statement of the evidence or proceedings. The parties may prepare an agreed statement; if they cannot agree, the trial court settles the statement after notice and an opportunity to be heard. The statement then becomes part of the record. Appellate counsel should promptly file a motion in the trial court, or seek a remand from the appellate court, to reconstruct the voir dire using the judge's notes, counsel's notes, juror questionnaires, and any audio recording. If reconstruction is impossible, counsel must explain why and should not simply argue the issue on an incomplete record. Without a record, the appellate court will presume the trial court's rulings were correct and may affirm.
2. Assume the trial court settles a statement of evidence that is disputed by the state. How does the appellate court treat the statement, and what standard applies to the juror issue?
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Once settled, the statement of evidence is part of the record and is treated as the authoritative account of what occurred, subject to the trial court's factual determinations. The appellate court will not reweigh the evidence or substitute its judgment on credibility; it reviews the trial court's settlement of the statement for abuse of discretion. On the underlying juror issue, a trial court's decision on a challenge for cause is reviewed for abuse of discretion. The appellant must show that the juror's stated bias was such that she could not be fair and impartial, and that the error was preserved. If the reconstructed record shows only that the juror had been a crime victim but said she could be fair, the appellate court is likely to affirm. Counsel should focus on whether the trial court failed to conduct further inquiry after a juror expressed actual bias, not merely on the juror's background.