☢ test - Í
omitted.) Id. ‘Because [Bagley] stood trial for a misdemeanor and did not elect to have the proceedings taken down, whether the proceedings were reported was a matter within the trial court's discretion.’ Johnson v. State, 280 Ga.App. 882, 883 (635 S.E.2d 267) (2006). See also Parker v. State, 154 Ga.App. 668, 669(1) (269 S.E.2d 518) (1980) (‘where the trial court, sua sponte, has not ordered [transcription], the indigent defendant, on trial on a misdemeanor charge, must make a request or motion to the trial court that the evidence and proceedings be reported and transcribed’).” Even if defendant were indigent, the trial court was not required to provide a free transcript where “Bagley's right to appeal would be preserved by the statutory substitute for a transcript. See OCGA § 5-6-41(f).” Damani v. State, 284 Ga. 372, 667 S.E.2d 372 (September 22, 2008). Court of Appeals erred in deciding appeal without granting [defendants’] motion to supplement record with critical evidence omitted by trial court clerk. “[D]espite the State's notice of appeal and the [defendants'] motions for supplementation, each requesting that the entire record be transmitted to the appellate court, the Court of Appeals did not have all of the record materials before it to ascertain the true and complete facts that occurred in the trial court. … [I]t was erroneous for the Court of Appeals to have failed to grant the motion to supplement as requested, particularly where, as here, it considered the State's expert report to the exclusion of the [defendants']expert report which had also been relied upon by the trial court. Insofar as the Court of Appeals' decision was based on a record that did not reflect the true and complete facts as they occurred in the trial court and did not give the parties a fair and equal opportunity to present key trial evidence on appeal, the judgment is vacated and remanded with direction .” Mitchell v. State, 289 Ga.App. 55, 656 S.E.2d 145 (November 28, 2007). Defendant was not entitled to new trial despite incomplete appeal record resulting from lost videotapes, as contents of videotapes was stipulated. “Mitchell … argues that he is entitled to a new trial because the two videotapes admitted into evidence at his bench trial cannot be located and thus cannot be reviewed on appeal. It is true that the loss of transcripts and/or exhibits violates the recording requirements of OCGA §§ 5-6-41(a) and 17-8-5(a) and can result in the grant of a new trial. Cf. In re: LG., 230 Ga.App. 153, 154- 155(1) (495 S.E.2d 628) (1998) (granting a new deprivation hearing when, in contravention of a mandatory recording statute, the tape recording of the hearing had been destroyed). Before a new trial is mandated, however, the defendant must show that the incomplete trial record is harmful in some way or otherwise prevents this Court from carrying out its review function. See Smith v. State, 251 Ga. 229, 230(2) (304 S.E.2d 716) (1983); Johnson v. State, 283 Ga.App. 524, 525-526(1) (642 S.E.2d 170) (2007); Robinson v. State, 221 Ga.App. 865, 867(2) (473 S.E.2d 519) (1996). Mitchell has failed to demonstrate that the loss of the videotapes has harmed him or precludes us from reviewing any of the issues he has raised on appeal. Significantly, although the videotapes themselves are missing, the parties stipulated to the contents of the tapes at the bench trial and to the proffered testimony of the minor female victims, as discussed in Division 1. Thus, while the fact that the two videotapes are missing is troubling, it does not prevent us from carrying out our essential review function. Consequently, the trial court did not err in declining to grant Mitchell a new trial on this ground. [Cits.]” Johnson v. State, 283 Ga.App. 524, 642 S.E.2d 170 (February 9, 2007). No reversible error for failure to record conferences in chambers or where some voir dire responses were “inaudible.” Record was perfected after chambers conferences; defendant here fails to allege any salient voir dire responses. “‘Georgia law clearly requires that in all felony cases there be prepared a transcript of evidence and proceedings. OCGA § 5-6-41.’ Smith v. State, 251 Ga. 229, 230(2) (304 S.E.2d 716) (1983). But, the failure to transcribe limited portions of the trial proceedings does not constitute reversible error, if the defendant ‘fails to show how he was harmed or to raise any issue which this Court is unable to adequately review because of skips in the record.’ (Citation and punctuation omitted .) Smalls v. State, 174 Ga.App. 698, 699(2) (331 S.E.2d 40) (1985).” Accord, Ruffin v. State , 289 Ga. 87, 656 S.E.2d 140 (January 8, 2008). Johnson v. State, 280 Ga.App. 882, 635 S.E.2d 276 (August 2, 2006). No error where trial court did not sua sponte require that defendant’s trial on misdemeanor charge be taken down, where defendant and his appointed counsel elected not to have it recorded. “ In felony cases, a transcript of the proceedings must be taken down. OCGA § § 17-8-5(b); 5-6-41(a). Because Johnson stood trial for a misdemeanor and did not elect to have the proceedings taken down, whether the proceedings were reported was a matter within the trial court’s discretion. OCGA § 5-6-41(b); Ward v. State, 188 Ga.App. 372, 374(3) (373 S.E.2d 65) (1988); Sheriff v. State, 184 Ga.App. 180 (361 S.E.2d 53) (1987). Johnson also failed to avail himself of the remedy provided under OCGA § 5-6-41(g), which provides a means of using the parties’ recollection to reconstruct the proceedings. Ward, supra at 374(3). This court decided this issue adversely to Johnson in Williams v. State, 140 Ga.App. 87 (230 S.E.2d 94) (1976). We stated in Williams: ‘ Absent a demand for a transcript prepared at the expense of the requesting party, the reporting of such a case is not demanded by law. There being no demand by [defendant], we will not conclude that he has been denied a transcript of his misdemeanor conviction. He has sat on his right to furnish a recollected record. In the absence of a violation of a substantive constitutional right, we
Made with FlippingBook Ebook Creator