15 NICS App. 23, DIXON v. QUILEUTE NATION (June 2017)

IN THE QUILEUTE TRIBAL COURT OF APPEALS

QUILEUTE INDIAN RESERVATION

LA PUSH, WASHINGTON

Leonard David Dixon, Defendant/Appellant,

v.

Quileute Nation, Plaintiff/Appellee.

NO.    16-C-0028 (June 12, 2017)

SYLLABUS^*

Trial court found appellant guilty of intimidation of a witness and official misconduct. A substantial portion of the trial record was not properly recorded and therefore, cannot be transcribed. Court of Appeals found that since record of sufficient completeness not available, the appellant’s right to a meaningful and fair appeal is substantially compromised. Court of Appeals reversed conviction without prejudice and remanded to trial court.

Before:	Lisa L. Atkinson, Chief Judge; John E. Gibson, Judge; Gregory M. Silverman, Judge.
Appearances:	Desmond Kolke, Law Offices of Desmond D. Kolke, for appellant; Tim Rybka, Northwest Intertribal Court System, for appellee.

OPINION

Gibson, J.:

This matter is Mr. Dixon’s appeal from a finding of guilt following a bench trial on the charges of Intimidation of a Witness and Official Misconduct. For the reasons set forth below, we REVERSE the conviction, WITHOUT PREJUDICE.

On April 13, 2016, Appellant Dixon was arrested by
Quileute police, on an allegation of Intimidating a Witness. Mr. Dixon was released from

15 NICS App. 23, DIXON v. QUILEUTE NATION (June 2017) p. 24

custody April 14, 2016, after posting bail. On April 22, 2016, Mr. Dixon was charged by criminal complaint of Intimidating a Witness and Official Misconduct, both described as felony offenses, with a maximum penalty of three hundred and sixty-five (365) days in jail and a $5,000 fine.

On October 25, 2016, following a bench trial, Mr. Dixon was found guilty of both counts. On November 14, 2016, Mr. Dixon was sentenced to 180 days in jail and fined $2500. At this hearing, his attorney filed a Notice of Appeal of both the conviction and sentence, and the sentence was stayed, pending this appeal.

Following a Court of Appeals status hearing on April 14, 2017, both parties agreed, and the appeals court so found, that a significant portion of the bench trial had not been properly recorded and could not therefore be transcribed. Following the April 15, 2017 hearing, this court ordered the parties to submit written briefs, advising the Court of Appeals as to what the proper remedy was given the inability to transcribe the trial record below.¹

Under both the Quileute Tribal Code and Quileute Constitution it is undisputed that Mr. Dixon has a fundamental right to seek appellate review of the verdict of guilt following his bench trial. Both parties agree that in making that appeal, Mr. Dixon and his attorney have a right to ask the appellate court to review the proceedings that occurred in the trial itself, to make that appeal meaningful. Both parties agree that a substantial portion of the trial record was not properly recorded, and is therefore unavailable to transcribe. This appeal centers on what is the proper remedy for the incomplete record. ²

The Nation, citing to both federal and state case law, argues that “To obtain reversal, a defendant must show the missing part of the transcript specifically prejudices the appeal.” United States v. Malady, 960 F.2d 57, 59 (8th Cir. 1992); State v. Sage, 641 A.2d 115, 116 (Vt. 1994). Respondent Brief at 11). We find that the defendant has done so here.

While a “complete verbatim transcript” is not required, a criminal defendant must have a record of “sufficient completeness” for appellate review of potential errors. State v. Tilton, 149 Wash.2d 775, 781, 72 P.3d 735 (2003); State v. Larson, 62 Wash.2d 64, 66, 381 P.2d 120 (1963) (citing Draper v. Washington, 372 U.S. 487, 495-96, 83 S.Ct. 774, 9 L.Ed.2d 899(1963).

Where, as here, a complete transcript cannot be produced, automatic reversal is not necessarily required. United States v. Carrillo, 902 F.2d 1405, 1409 9th Cir. 1990). Where the parties or the court, are able to reconstruct the missing transcript, in order to provide an adequate record on appeal, reversal is not warranted on this basis alone. Carrillo, 902 F.2d at 1410.

15 NICS App. 23, DIXON v. QUILEUTE NATION (June 2017) p. 25

Here however, out of a bench trial that totaled 3 hours and 51 minutes, the last one hour and 47 minutes cannot be transcribed. Moreover, one of Mr. Dixon’s assignments of error is that there was insufficient evidence presented to allow the trial judge to reach the conclusion that the two charges had been proven beyond a reasonable doubt. Where a defendant makes allegations of error which, if true, would be prejudicial, the unavailability of a transcript may make it impossible for the appellate court to determine whether the defendant’s substantive rights were affected. United States v. Workcuff, 422 F.2d 700, 702 (D.C. Cir.1970); Parrot v. United States, 314 F.2d 46, 47 (10th Cir.1963). In such a situation, the unavailability of the transcript itself becomes the problem because it deprives the defendant of the opportunity to make a fair showing on appeal of the gravity of the claimed error. At a minimum, a court “must be able to say affirmatively that no substantial rights of the appellant were adversely affected by the omissions from the transcript; that is, it must exclude the possibility of any error other than harmless error” in order to hold that the absence of a transcript does not warrant reversal. United States v. Upshaw, 448 F.2d 1218, 1224 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972).

Here we cannot, based on the record before us, exclude the possibility that a substantive error occurred during the second half of the bench trial, which was not transcribed. We find that the appellant’s right to a meaningful and fair appeal is substantially compromised because a ‘record of sufficient completeness” is not available to either the parties or the court. Accordingly, Mr. Dixon’s convictions are REVERSED WITHOUT PREJUDICE. This matter is REMANDED to the trial court for further proceedings consistent with this opinion.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

The concluding 1 hour and 46 minutes, of the 3 hour and 51-minute trial, was not available for transcription.

This is an issue of first-impression for The Quileute Tribal Court. Therefore, in the absence of controlling Quileute Tribal Court decisions both the parties and this Court have relied on federal and state court appellate decisions as persuasive authority.