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COA: Circuit court didn’t err in deciding record had been reconstructed

State v. Morris Rash, 2016AP2494-CR, District 1, 1/30/18 (not recommended for publication); case activity (including briefs)

Morris Rash was convicted of substantial battery and being a felon in possession of a firearm after a jury trial. When it came time for postconviction proceedings and/or an appeal, it turned out that some photographs used as exhibits at the trial were not in the court record.

Rash moved for a new trial on the basis that the record for appeal was deficient. The opinion lays out the law around this issue nicely:

“As a matter of Wisconsin constitutional law, the right to an appeal is absolute.” State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987); see also WIS. CONST. art. I, § 21(1). Furthermore, the appeal must be “meaningful,” that is, the record provided to the appellate court must “portray[] in a way that is meaningful to the particular appeal exactly what happened in the course of trial.” Perry, 136 Wis. 2d at 99. If there cannot be a meaningful appeal due to a deficiency in the record, the usual remedy is to grant a new trial. Id.

However, not all deficiencies in the record require a new trial. Id. at 100. Accordingly, the defendant must first demonstrate a ‘“colorable need,”’ that is, “an error which, were there evidence of it revealed in the [record], might lend color to a claim of prejudicial error.” Id. at 101 (citation and one set of quotation marks omitted). If such a need is demonstrated by the defendant, the trial court must then determine whether the missing portion of the record can be reconstructed. State v. Raflik, 2001 WI 129, ¶35, 248 Wis. 2d 593, 636 N.W.2d 690. If the trial court determines that reconstruction should be attempted, the appellant should provide an affidavit that includes statements relating to the missing evidence as presented at trial. State v. DeLeon, 127 Wis. 2d 74, 81, 377 N.W.2d 635 (Ct. App. 1985). The respondent may then approve the appellant’s submission, propose amendments, or file an objection. Id.

Any remaining disputes between the parties regarding the substitutions to the record are to be determined by the trial court. Raflik, 248 Wis. 2d 593, ¶36. The court may “rely on its own recollection and notes or materials from the parties as an aid to reconstruction” as well as “conduct hearings or consult with counsel” in making its determination. Id. It may not, however, “speculate about what the testimony probably was or might have been.” DeLeon, 127 Wis. 2d at 81. Rather, the court’s “duty is to establish what the testimony was.” Id.


Both parties agree that Rash demonstrated a colorable need for the photographs as he intends to argue that they were unfairly prejudicial and his trial lawyer was ineffective for introducing them. However, the court of appeals holds that the circuit court did a sufficient job of reconstructing the record with photographs provided by the district attorney’s office. Between the prosecutor’s affidavit of her recollections, the judge’s own recollection, and descriptions of the photographs at trial, the court rejects Rash’s argument that the circuit court engaged in “speculation” when it determined these were the same photos. (¶18).

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