Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] John Russell Reynolds was convicted of felony driving while under the influence. He asserts he is entitled to a new trial because a computer malfunction resulted in part of the transcript of his jury trial being unavailable for appeal. We conclude that the record was properly settled pursuant to W.R.A.P. 3.03 and 3.04, and Mr. Reynolds has failed to demonstrate the settled record is insufficient or the settlement process could not have been used to collect the information he claims is still missing.
[¶3] Mr. Reynolds presents the following issue on appeal:
Is the record too incomplete to provide appellant a meaningful appeal?
The State provides a more detailed statement of the issue:
After Reynolds filed his notice of appeal, the court reporter discovered that a computer malfunction had destroyed her electronic notes covering jury selection, opening statements, and the first trial witness. The court and parties settled the record by reconstructing the missing portions as prescribed by Wyo. R. App. P. 3.03 and 3.04. In his brief, Reynolds identifies four substantive issues that he contends are outside the purview of meaningful appellate review because of the state of the record. Would the settled record allow a meaningful review of Reynolds' conviction on each of these issues if he had chosen to present their merits to this Court with cogent argument and supporting authority?
[¶4] At 4:24 p.m. on October 24, 2010, the Campbell County Sheriff's Department received a REDDI (Report Every Drunk Driver Immediately) report from Arrow Langston. She reported a green Ford Ranger pickup was traveling at varying speeds and weaving across the road on Highway 59 near Wright, Wyoming. Ms. Langston did not feel comfortable getting close enough to the vehicle to read the license plate, but she continued to follow it and reported to the 911 operator that the vehicle had parked at Hank's Bar and Lounge.
[¶5] Deputy Mark Raymond was dispatched to Hank's Bar and Lounge but could not locate the vehicle. A few minutes later an anonymous caller made a second REDDI report. Responding to that call, the deputy located a green Ford Ranger pickup parked off the road at milepost 79 on Highway 59 and Mr. Reynolds sitting in the driver's seat talking on his cell phone. The truck was running, but when the deputy approached, Mr. Reynolds turned it off, removed the key and threw it onto the passenger side floor board.
[¶6] The deputy smelled alcohol on Mr. Reynolds' breath and there was a twelve pack container of beer on the passenger seat and a spilled beer on the floor. Mr. Reynolds told the deputy that he had consumed only one beer, but he refused to perform field sobriety maneuvers or take a portable breath test. Deputy Raymond arrested him for driving while under the influence of alcohol.
[¶7] At the jail, Mr. Reynolds refused to take a breath test in accordance with the Wyoming implied consent law*fn1 but later he requested and was given a portable breath test, which showed the presence of alcohol in his system. Mr. Reynolds was charged with driving while under the influence and, because it was his fourth offense in ten years, the charge was a felony under Wyo. Stat. Ann. § 31-5-233(b)(iii)(A) and (e) (LexisNexis 2010). He pleaded not guilty and the matter was tried to a jury. The jury returned a guilty verdict, and the district court sentenced Mr. Reynolds to twenty to twenty-four months incarceration.
[¶8] Mr. Reynolds filed a notice of appeal and requested the trial transcript be prepared for appeal. The court reporter stated that she had experienced computer problems and the record of the morning session of the trial was lost and could not be transcribed. The missing session included voir dire, opening statements and the testimony of the first witness, Ms. Langston.
[¶9] Mr. Reynolds' trial counsel filed a "Supplemental to Transcript," in which he stated that he could not reconstruct the voir dire and asked that the following information about Ms. Langston's testimony be used to "complete" the transcript:
The First witness was Arrow Langston who observed a green pickup truck being [driven] erratically on Highway 59 until it pulled off and parked at Hanks Bar. She did not get close enough to see the license plate and could not identify the driver. She did call in a Reddi report.
The State responded with objections and proposed amendments pursuant to W.R.A.P. 3.03 and 3.04. The State's response was compiled from notes taken by the State's paralegal during the trial, the recollection of the district judge's law clerk who attended the entire trial and the prosecutor's recollection and notes. It included summaries of the parties' opening ...