State v. Holt

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,532

STATE OF KANSAS,
Appellee,

v.

DEREK JOHN HOLT,
Appellant.


SYLLABUS BY THE COURT


1.
Supreme Court Rule 3.04(a) (2013 Kan. Ct. R. Annot. 23) sets out the procedures
to be followed when the transcript of a hearing or trial is unavailable.

2.
Due process requires a reasonably accurate and complete record of the trial
proceeding in order to allow meaningful and effective appellate review. The findings
below must be preserved in such a way that adequate appellate review is possible.

3.
When legitimate claims that have a substantial foundation based on the available
record are not susceptible to appellate review because the transcript is manifestly
incomplete or inaccurate, the proper remedy is to reverse and remand for a new trial.

4.
A defendant does not have a constitutionally protected right to a totally accurate
transcript of the criminal proceedings.
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5.
When the district court record is incomplete but there are no substantial or
significant omissions, reversal on appeal is not required due to minor omissions.
Appellants seeking reversal on the grounds that they are denied due process because of an
inaccurate or incomplete transcript must make the best feasible showing possible that a
complete and accurate transcript might have changed the outcome of the appeal.

6.
A defendant may waive statutory speedy trial requirements.

Appeal from Bourbon District Court; MARK A. WARD, judge. Opinion filed December 20, 2013.
Reversed and remanded.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant.

Terri L. Johnson, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with her on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Derek John Holt appeals from his conviction and sentence for
aggravated indecent liberties with a child. Because the record on appeal is incomplete and
cannot be reconstructed effectively, this court is unable to provide the meaningful review
that due process requires. We reverse the conviction and remand for a new trial.

L.F. was born in June 2003. Her natural parents are Jason F. and Nicole C. After
Jason and Nicole separated, L.F. and her older brother Z.F. resided with Nicole.

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Jason began living with Sheena Reed in November, 2005. In April 2006, L.F. and
Z.F. started residing with Jason and Sheena on a temporary basis until Nicole could find
employment.

In 2006, Nicole began to date Holt, and, starting in July of that year, the two
resided together. L.F. and Z.F. would spend every other weekend, from Friday through
Sunday, with Nicole and Holt.

One Saturday in August 2006, Jason and Sheena went to Nicole and Holt's house
to check on the children. While there, according to Sheena, L.F. reported that someone
had touched her "pee-pee" and that it hurt. Sheena and Nicole took L.F. to a bathroom,
where they observed that L.F.'s pubic area looked "a little red." Sheena suspected that
L.F. had a little rash and left her with Nicole and Holt.

On August 25, 2006, Jason filed a motion seeking primary residential custody of
the children and modification of the child support plan so that he would receive support
payments from Nicole. Nicole's mother, Janet C., described the relationship between
Jason and Nicole as degenerating into a "head on battle."

On September 17, 2006, Jason and Sheena observed L.F. with her hands in her
pants, and L.F. said she had a secret. Sheena offered L.F. a sucker if she would tell her
secret. L.F. cried for a while, and "finally out of nowhere" L.F. said "someone touched
my pee-pee." L.F. initially refused to say who had touched her. When Sheena started
asking her specific names of male family members, L.F. replied that each of them was
not the person. Finally, Sheena asked her again who did it, and L.F. said it was Holt.

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The next day, Jason and Sheena took L.F. to a physician, who apparently said that
he could see no sign of anything unusual, and L.F. made no reference to anyone touching
her. Within a couple of days, Jason's mother, Mary Pillon, took L.F. for a car ride and
asked L.F. to talk to her about her secret. L.F. reportedly responded, "I can't tell you
because Derek would be mad." Pillon told L.F. that she was sure Derek wouldn't mind,
and L.F. allegedly said, "[H]e played with my tu-tu." When Pillon asked what her "tu-tu"
was, L.F. pointed to her vagina.

On September 20, 2006, Jason contacted SRS and reported L.F.'s allegations.
During an interview at Jason and Sheena's house, L.F. told an SRS caseworker, "Derek
stuck his finger in my pee-pee." Upon further inquiry, L.F. recounted that she had been
sleeping, woke up, and told Derek to stop, but he said no. L.F. then said that if he didn't
stop, she would tell her mother. On the caseworker's question of where her "pee-pee"
was, L.F. pointed to her vagina.

The caseworker reported the results of her interview to the Fort Scott police
department. At a subsequent forensic interview, L.F. reported that Holt had "stabbed her
with a knife in the pee-pee." She also reported that Nicole was present during the incident
and told Holt to "stop it."

A subsequent medical examination by a nurse revealed what the nurse interpreted
to be a healed laceration on L.F.'s vagina. Another examination was conducted 5 days
later, and the nurse again saw signs of a laceration. The nurse considered the results of
the examination to be abnormal and consistent with a history of "highly suspected"
sexual abuse. The nurse opined that the lacerations were between 3 days and more than a
year old. At trial, a forensic nurse testified that the photographs from the second
examination did not indicate abuse and showed notching, which is a normal variant in the
appearance of a child's vagina. This nurse testified that there was no evidence of
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lacerations, bruising, or other trauma, and questioned the thoroughness of the examining
nurse's procedures and photographic records.

L.F. began participating in counseling sessions with Kay Spaniol, a clinical social
worker who specializes in child sexual abuse. Over the course of 22 counseling sessions,
L.F. told Spaniol that Holt had touched her vagina with a knife and had threatened to kill
her if she told anyone about what was going on. L.F. also reported that "Derek made her
touch him in the wiener with a knife." She said this happened twice, and she also reported
that it happened 10 times; Spaniol interpreted a child's understanding of "ten" to refer to
something happening more than once and a lot. L.F. also stated during one session that
Holt cut her pee-pee with a knife and tried to put his pee-pee in her mouth. L.F. reported
other incidents, with occasional inconsistencies about where and when certain things had
taken place.

On January 5, 2007, the State filed a complaint alleging that Holt had committed
rape and aggravated indecent liberties with a child. The State later amended the
complaint to make the charges off-grid felonies: one count of rape under K.S.A. 21-
3502(a)(2) and one count of aggravated indecent liberties with a child under K.S.A. 21-
3504(a)(3)(A).

At trial, L.F. testified that Holt had touched her on parts of her body that people
are not supposed to touch. She testified that Holt had touched her with his hand but not
with anything else and that Holt had told Nicole to hold her down or he would hurt
Nicole bad with a knife. L.F. told the jury that when Holt touched her it hurt and it "feels
like a knife." She reported that Holt had touched her with his hand two different times
and Nicole was present both times. She later testified that Nicole was only present at one
of the incidents. She also reported that Holt made her touch him in "his private spot" with
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her hand. L.F. did not remember telling anyone that Holt had ever stabbed her with a
knife.

The jury was unable to reach a verdict on Count I, rape, but found Holt guilty of
Count II, aggravated indecent liberties with a child. The trial court denied Holt's motion
for a guidelines sentence and sentenced him to life imprisonment with a mandatory
minimum of 25 years.

Holt raises seven issues on appeal. Because we find dispositive two issues
involving the adequacy of the appellate record, we initially turn to those.

On October 29, 2008, the trial court held a hearing on several pretrial motions
filed by both the State and Holt. Holt's sister, Misty Bronson, testified in support of at
least one of the motions. Shortly after direct examination began, the following annotation
appears in the record:

"(I HAVE NO RECORD OF PART OF THIS TESTIMONY OF MISTY BRONSON.
INADVERTENTLY THERE WAS A MALFUNCTION WITH THE RECORDING
EQUIPMENT DUE TO MECHANICAL AND/OR PERSONAL CAUSES AND [THAT
PART OF THE RECORD] IS NOT AVAILBLE FOR TRANSCRIPTION PURPOSES,
THEREFORE, I AM UNABLE TO PRODUCE THAT PORTION OF THE
TESTIMONY.) (Below is where I was able to pick up some questions and answers of
Misty Bronson.)"

The transcript then contained an additional 11/2 pages of direct examination,
followed by cross-examination and redirect examination. The transcript then set out the
court's ruling on a motion by the State and showed that the court took a brief recess. The
transcript concluded with this annotation:

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"(I HAVE NO RECORD OF THE COURT'S ORDERS FOR THE MOTIONS THAT
WERE FILED BY STATE AND DEFENSE [AND] WHAT THE COURT GRANTED
OTHER THAN MY PERSONAL HANDWRITTEN NOTES. INADVERTENTLY
THERE WAS A MALFUNCTION, AGAIN, WITH THE RECORDING EQUIPMENT
DUE TO MECHANICAL AND/OR PERSONAL CAUSES AND [THAT PART OF
THE RECORD] IS NOT AVAILABLE FOR TRANSCRIPTION PURPOSES,
THEREFORE I AM UNABLE TO PRODUCE THAT PORTION OF THE RECORD.)"

After appellate proceedings began, the problems with the hearing transcript came
to light. On Holt's motion, this court stayed briefing and remanded the case to the trial
court for the purpose of reconstructing the record under Supreme Court Rule 3.04(a)
(2013 Kan. Ct. R. Annot. 23). This court also issued an order directing the court reporter,
Sandra McLeod, to appear and show cause why she should not be held in indirect
contempt of court. There is no indication that McLeod ever appeared or responded to the
order of this court, and it appears that McLeod is no longer employed by the State of
Kansas as a court reporter and may have left the state.

The trial court held a hearing on Holt's motion to reconstruct the record, with the
prosecuting attorney, Holt's trial attorney, and Holt's appellate attorney participating. The
reconstruction hearing took place more than 4 years after the motions hearing in question,
and neither the parties nor the trial judge had clear memories or extensive notes about
what transpired at the hearing. Trial counsel for both parties were in general agreement
that no additional witnesses were called and also agreed on the general nature of their
arguments to the trial court at the motions hearing.

The parties agreed that one of the topics considered at the October 29, 2008,
hearing was a detailed motion filed by Holt seeking an independent psychological
evaluation of L.F. Not only were the arguments by the parties and the decision by the
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court not transcribed, but the memories of the hearing participants were vague and
incomplete. No written order was filed, and the trial judge could not recall whether he
ruled on the motion that day; notes by Holt's attorney suggested that the matter was taken
under advisement. The trial attorneys explained what they would typically argue with
such a motion, but they had little in the way of specific memories of what they argued in
this particular case. The prosecutor was able to recall the general nature of the arguments,
which she set out in an affidavit.

Although all the participants at the hearing agreed that the motion was denied at
some point in time, the trial judge conceded that there was no record of the basis for his
decision. The prosecutor's affidavit concluded by stating: "I do not have notes of the
Court's ruling but believe that the Court found that the Defendant did not present a
compelling reason for an independent psychological evaluation and denied the motion."

A trial court's decision on a motion requesting that the victim undergo an
independent psychological evaluation is reviewed for abuse of judicial discretion. State v.
Rojas-Marceleno, 295 Kan. 525, 530, 285 P.3d 361 (2012). In determining whether the
trial court abused its discretion, this court considers the totality of the circumstances,
including these nonexclusive factors:

"(1) whether there was corroborating evidence of the complaining witness' version of the
facts, (2) whether the complaining witness demonstrates mental instability, (3) whether
the complaining witness demonstrates a lack of veracity, (4) whether similar charges by
the complaining witness against others are proven to be false, (5) whether the defendant's
motion for a psychological evaluation of the complaining witness appears to be a fishing
expedition, and (6) whether the complaining witness provides an unusual response when
questioned about his or her understanding of what it means to tell the truth." Rojas-
Marceleno, 295 Kan. at 531.

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In moving for an independent evaluation, Holt pointed out inconsistencies in L.F.'s
statements to various people about what Holt had allegedly done, who was present when
he committed the transgressions, and how many times the abuse had occurred. Holt
suggested that L.F.'s reports might have been the product of coaching or of reconstructed
dreams or fantasies.

These arguments created a credible basis for the motion. It then falls on this court
to determine whether the trial court abused its discretion in denying the motion, focusing
on how the trial court applied the various nonexclusive factors set out in Rojas-
Marceleno.

Unfortunately, the record on appeal does not allow us to make such a
determination. We simply cannot ascertain what the basis of the trial court's ruling was,
and we therefore cannot ascertain whether the trial court abused its discretion. This is not
the fault of the trial court or the parties; it is the consequence of a rare breakdown in the
transcription process coupled with the absence of any meaningful recollection of the
motion arguments and, more importantly, the basis of the motion's resolution.

Adequate and effective appellate review is impossible without a trial transcript or
an "adequate substitute." Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed.
2d 72 (1977). In the context of a criminal prosecution, due process requires a reasonably
accurate and complete record of the trial proceeding in order to allow meaningful and
effective appellate review. See Entsminger v. Iowa, 386 U.S. 748, 752, 87 S. Ct. 1402, 18
L. Ed. 2d 501 (1967); Kheireddine v. Gonzales, 427 F.3d 80, 84 (1st Cir. 2005). The
findings below must be preserved in such a way that adequate appellate review is
possible. See Specht v. Patterson, 386 U.S. 605, 610, 87 S. Ct. 1209, 18 L. Ed. 2d 326
(1967). "Because effective appellate review would be substantially hampered if the trial
transcript were materially in error, it stands to reason, therefore, that this substantive due
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process right would be meaningless unless it also embraced the right to a reasonably
accurate transcript . . . ." Curro v. Watson, 884 F. Supp. 708, 719 (E.D. N.Y. 1995).

When legitimate claims that have a substantial foundation based on the available
record are not susceptible to appellate review because the transcript is manifestly
incomplete or inaccurate, the proper remedy is to reverse and remand for a new trial. See,
e.g., United States v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994).

We are aware of the challenges and burdens of retrying any case, and we
acknowledge the stress that a second trial can place on a young victim and the difficulty
in bringing witnesses back so long after the events in question. As demonstrated by the
content of Holt's motion, however, his request for an independent psychological
evaluation of L.F. was potentially critical to his defense. The constitutional right to due
process and its vital protections, especially in a case involving serious allegations and
severe penalties, dictate this result. We accordingly reverse and remand for a new trial at
the discretion of the State.

We caution that the mere fact that a portion of a proceeding has been reconstructed
is not grounds in itself for reversal. A defendant does not have a constitutionally
protected right to a totally accurate transcript of the criminal proceedings. See, e.g.,
Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir.), cert. denied 510 U.S. 920 (1993);
Robinson v. Smyth, 258 Fed. Appx. 469, 471 (3d Cir. 2007) (unpublished opinion). A
record that is incomplete but that involves no substantial or significant omissions does
not require reversal. See, e.g., United States v. Cashwell, 950 F.2d 699, 703 (11th Cir.
1992); United States v. Selva, 559 F.2d 1303, 1306 n.5 (5th Cir. 1977). Appellants
seeking reversal on the grounds that they are denied due process because of an inaccurate
or incomplete transcript must make the best feasible showing possible that a complete
and accurate transcript might have changed the outcome of the appeal. Ortiz-Salas v.
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I.N.S., 992 F.2d 105, 106 (7th Cir. 1993); see Al-Ghorbani v. Holder, 585 F.3d 980, 992
(6th Cir. 2009).

Because the issues revolving around the incomplete transcript are dispositive, we
will address only briefly other issues raised in the appeal. The question of whether the
trial court made adequate findings relating to the qualifications of appointed counsel is
moot. The issue of compliance with statutory speedy trial requirements is also moot,
because Holt and his trial counsel expressly waived the argument. By waiving the issue
below, Holt generated no record for this court to review on appeal. Speedy trial
requirements, like some other statutory and constitutional rights, may be waived. See
State v. Rodriguez, 254 Kan. 768, Syl. ¶ 2, 869 P.2d 631 (1994) (guilty plea waives right
to speedy trial); see also State v. Thomas, 291 Kan. 676, 691, 246 P.3d 678 (2011) ("close
call" whether defendant waived speedy trial right by changing theory of how days were
calculated).

Holt also challenges the adequacy of the reasonable doubt instruction. This issue
was resolved in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), where we
concluded that, while the older PIK instruction was not preferred, it was legally
appropriate. Although the issue is moot, we recommend that courts apply PIK Crim. 3d
52.02.

Holt's remaining two issues are also moot. There is no reason for this court to
review for error whether testimony violated an order in limine, and we have no reason to
address at this time whether a court may disregard written statements supporting a
downward sentencing departure while considering written statements opposing departure.

Reversed and remanded.

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MORITZ, J., not participating.

DANIEL D. CREITZ, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Creitz was appointed to hear case No. 103,532
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.