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Hearing-Impaired Juror; Record Reconstruction

State v. Precious M. Ward, 2009AP2085-CR, District 1, 10/5/10

court of appeals decision (3-judge, not recommended for publication); for Ward: Lew A. Wasserman; BiC; Resp.; Reply

Hearing-Impaired Juror

Juror who was hearing impaired, but not completely so; who could lip read; and for whom the trial judge took precautions to make sure he could hear everything, was qualified to sit.

The court rejects the idea that Strook v. Kedinger, 2009 WI App 31 disqualifies a juror who must rely on lipreading.

¶9        Furthermore, we, like the trial court, are not convinced that Kedinger “stands for the proposition that anyone with a hearing impairment who lipreads could never qualify as a juror,” which is what Ward seems to imply.  Additionally, we are unpersuaded by Ward’s argument that Juror Johnson was objectively biased simply because he engaged in lipreading.

Record Reconstruction

Lack of record of trial court in limine ruling barring “3rd-party defense” didn’t deny Ward his right to meaningful appeal.

¶13      It is Ward’s burden to show a “‘colorable need’” for the missing ruling on the motion in limine.  See id., ¶40 (explaining that “when challenging the sufficiency of a record, the appellant has the burden to demonstrate that there is a ‘colorable need’ for the missing portion of the record”) (citation omitted).  In this regard, Ward “is not required to show prejudice, but the error cannot be so trivial that it is clearly harmless.”  See id. The decision as to whether the defendant’s right to a fair and meaningful review is frustrated by transcript errors or omissions is a discretionary one, which we “will support if due consideration is given to the facts then apparent, including the nature of the claimed error and the colorable need for the missing portion—and to the underlying right under our constitution to an appeal.”  State v. Perry, 136 Wis. 2d 92, 109, 401 N.W.2d 748 (1987).

The court rejects the idea that the mere fact of a missing transcript of a ruling supports relief; instead, something more than conclusory allegations related to the substance underlying the ruling was necessary.

¶16     … We are not persuaded that Ward presented the trial court with a claim of “error which, were there evidence of it revealed in the transcript, might lend color to a claim of prejudicial error.”[6] See Perry, 136 Wis. 2d at 101; see generally State v. Bentley, 201 Wis. 2d 303, 309-11, 548 N.W.2d 50 (1996) (explaining that if the defendant fails to allege sufficient facts or presents only conclusory allegations in a postconviction motion, the trial court may deny the motion without a hearing).

¶17      Ward argues that this conclusion, in essence, requires him to demonstrate prejudice when Perry instructs that he need only convince the court that the missing portion of the transcript would demonstrate reviewable error.  See id., 136 Wis. 2d at 101.  We disagree with his assessment that we are somehow changing the burden that was imposed upon him.  It would have been an easy thing for Ward to present more than conclusory allegations by, for example, including a copy of the discovery his postconviction counsel claimed Ward had a copy of (i.e., “10.  Mr. Ward had a copy of the discovery, and knew that there were witnesses who would say that it was the guy (Mr. Maggett) with the braids and the orange golf shorts [who] shot Mr. McCollum.”).  Without more, we hold fast to our determination that trial court did not err when it denied Ward’s motion.

The court pronounces itself “troubled” by the trial judge’s seemingly casual attitude toward a missing and possibly crucial ruling, fn. 6; and gently pleads with “the trial court to do more in the future to ensure that its rulings are placed on the record and to carefully consider whether reconstruction is warranted,” id.

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