☢ test - Í
incomplete because it “does not contain (1) her motion to suppress, (2) the trial court's order denying her motion to suppress, or (3) a transcript of the motion-to-suppress hearing.” “But here, we are precluded from considering this enumeration of error because, as demonstrated by the record that is before this Court, Chernowski failed to raise this issue below and may not raise it for the first time on appeal. See Bynum v. State, [315 Ga.App. 392, 395-96(3) (726 S.E.2d 428) (2012)] (‘Absent an abuse of discretion, the decision of the trial court must be affirmed. Significantly, there is no ruling of the trial court to review for abuse of discretion, as [appellant] failed to raise this issue below. As a result, he may not raise this issue for the first time on appeal.’); Butler v. State, [277 Ga.App. 57, 63(5) (625 S.E.2d 458) (2005)] (same).” Defendant should have moved the trial court to complete the record. “Indeed, OCGA § 5–6–41 provides that when ‘any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.’ OCGA § 5–6–41(f); see DeToma v. State, 296 Ga. 90, 94(2) n.3 (765 S.E.2d 596) (2014) (noting that appellant had not attempted to supplement the transcript on appeal using the procedures set forth in OCGA § 5–6–41(f)).” If original court records were missing, as appears from the clerk’s effort to “reconstruct” the record here, “we note that OCGA § 24–11–2(a) provides that when ‘any original public records have been lost, mutilated, stolen, or destroyed, the custodian may establish duplicates in accordance with the provisions of this article’ and that, when ‘such public records are established by duplicates, they shall have all of the effect in evidence as the original records would have had.’ See also Magnolia State Bank v. VNS Corp., 327 Ga.App. 180, 182 (755 S.E.2d 553) (2014) (physical precedent only) (noting that OCGA § 24–11–2 logically includes court records).” Brittain v. State, 329 Ga.App. 689, 766 S.E.2d 106 (November 17, 2014). Aggravated assault and related convictions affirmed; trial court wasn’t required to order transcription of DVD’s in the record to ‘complete the record.” “[T]he relevant DVDs were admitted as exhibits into the record. Accordingly, the lack of transcription of the DVDs does not constitute reversible error because the DVDs are available for review. See Graham v. Wood, 171 Ga.App. 242, 249(6), 319 S.E.2d 484 (1984) (holding that failure to transcribe tape played for jury and properly entered into evidence as an exhibit was not reversible error); Ellis v. State, 164 Ga.App. 366, 373(16), 296 S.E.2d 726 (1982) (holding that claim of an incomplete record was without merit when record and transcript included tape as an exhibit). And the fact that the DVDs were stopped and interrupted by live questions and testimony, which were transcribed, does not alter our conclusion.[fn]” Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (March 4, 2013). Felony murder and related convictions, and death penalty, affirmed. 1. No due process violation despite four-year delay in filing trial transcript, due in part to death of original court reporter. “Brockman … contends that his appeal has been delayed as a result of the delayed filing of the trial transcript. However, he filed his amendment to his motion for new trial detailing errors beyond the general grounds eleven years after receiving the complete transcript, and he has failed to show how the delay in the filing of the trial transcript has harmed him. Compare Wade v. State, 231 Ga. 131, 133(I) (200 S.E.2d 271) (1973) (holding that a defendant was denied his right to appeal and was thus entitled to a new trial where the State was unable to file a transcript because notes from which the transcript was to be prepared had been destroyed). While, as Brockman contends, the late filing of the transcript was not in compliance with the Unified Appeal Procedure, see UAP IV(A)(1) (generally requiring that a complete transcript of a death penalty case be filed within 45 days from the jury's sentencing phase verdict), Brockman has failed to show how he was prejudiced. See Thomason v. State, 268 Ga. 298, 305(4) (486 S.E.2d 861) (1997) (finding no reversible error where the defendant was not harmed as a result of the trial court's non-compliance with the UAP).” 2. Contrary to defendant’s argument, court reporter’s death didn’t require defendant “ to unconstitutionally bear the burden of determining the accuracy of the transcript and that it is impossible to do so because a court reporter other than the reporter who was present at trial prepared the transcript using the deceased court reporter's notes. … [T]he trial court acted properly in appointing a successor court reporter to transcribe the trial tapes after the death of the original court reporter. See Wilson v. State, 246 Ga. 672, 675–676 (273 S.E.2d 9) (1980). The successor court reporter certified that the trial transcript ‘constitute[s] a true, accurate and complete transcript of the notes of [the original reporter],’ and the trial transcript as certified by the court reporter is presumed to be true, complete, and correct. See id. at 675; OCGA § 15– 14–5. Thus, Brockman does not bear the burden of proving that the transcript is accurate.” While some trial exhibits were missing from the record, “Brockman does not rely on any of the missing exhibits in his enumerations of error and thus has not shown that they are material to his appeal.”
Made with FlippingBook Ebook Creator