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COURT OF APPEALS DECISION DATED AND RELEASED September 6, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2439-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RONNELL WALLACE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Ronnell Wallace appeals from a judgment of
conviction for attempted first-degree intentional homicide while armed with a
dangerous weapon, following a jury trial.
He argues that the trial court's failure to have the voir dire and
opening statements reported denied him the right to bring a “writ of error” and
thus requires a new trial. Wallace also
claims he was denied his right to appeal because the record contains a note
from the jury to the trial judge, but neither the docket sheet nor the trial
transcript indicates whether the trial judge saw the note or showed the note to
counsel, or whether the trial judge responded to the jury's question. We reject Wallace's arguments and affirm.
Wallace was found guilty
of attempted first-degree intentional homicide while armed with a dangerous
weapon, for the shooting of Tracey Jackson.
When jury selection was about to begin, defense counsel requested that
the voir dire and opening and closing statements be recorded by the court
reporter. The following exchange
occurred:
[Defense Counsel]: I'm asking that voir dire, openings, and
closings be reported, Your Honor.
THE COURT: That may be a problem.
Anything on voir dire that becomes a problem can be subsequently
reconstructed and put back on the record.
[Defense Counsel]: Okay.
THE COURT: I don't think it's necessary for my court reporter to go through—
[Defense Counsel]: I have no problem with that qualification,
Your Honor.
THE COURT: And I don't really—as to the openings, I don't know if it's
necessary either. If it becomes—if it
becomes a problem, or if there is a problem, we can always reconstruct it,
also.
Is there a problem with that?
[Defense
Counsel]: I prefer that it be recorded,
Your Honor, but I—I'm not going to give the court—if the Court so chooses, and
that's its policy, I will live with it.
Voir
dire and opening statements were not reported.
Wallace argues on appeal
that SCR 71.01(2)(a) required the trial court to record the voir dire. SCR 71.01(2)(a) states that “[a]ll
testimony” “shall be reported.” Wallace
claims that voir dire falls under this rule by virtue of the oath taken by
jurors. See § 805.08(1), Stats.
We disagree.
Contrary to Wallace's
assertions, SCR 71.01(2)(a) does not require the trial court to record the voir
dire. Jury selection proceedings are
not “testimony” within the meaning of the rule. An oath does not automatically make any and all statements, oral
or written, testimony. “Testimony” is “[e]vidence
given by a competent witness under oath or affirmation.” Black's
Law Dictionary 1746 (6th ed. 1980) (emphasis added). Clearly, potential jurors are not witnesses
and do not present evidence while under oath.
See § 906.06(1), Stats.
(a juror “may not testify as a witness” in the same trial).
Wallace alternatively
argues that voir dire should have been recorded under SCR 71.01(2)(f), which
states that “[a]ny part or all of any court activity or proceeding” shall be
reported “as is necessary in the discretion of the trial court to ensure an
adequate record.” As the exchange
between counsel and the trial court indicates, however, counsel agreed to voir
dire not being recorded by his statements “Okay,” and “I have no problem with
that qualification, Your Honor.”
Therefore, this issue was waived.
Wallace also argues that
the trial court improperly refused to record opening statements and that the
trial judge failed to make a complete record regarding a note the jury sent to
the trial judge during deliberations.
The note states: “We're having
difficulty w/ the 3rd element for a 1st degree guilty verdict & need some
explanation on parts 1 & 2.” No
record exists of whether the judge saw the note or responded to the note if he
did receive it.
A defendant claiming
that inadequacy of the record denies the opportunity for meaningful appellate
review must bring a motion before the trial court alleging “an error which,
were there evidence of it revealed in the transcript, might lend color to a
claim of prejudicial error.” State
v. Perry, 136 Wis.2d 92, 101, 401 N.W.2d at 748, 753 (1987). If “there is some likelihood that the
missing portion would have shown an error that was arguably prejudicial,” the
trial court then must determine whether the missing portion of the transcripts
can be reconstructed. Id.
at 103, 401 N.W.2d at 753. Only if the
record cannot be reconstructed is the trial court obligated to order a new
trial. Id. at 101, 401
N.W.2d at 752. Wallace, however, failed
to file postconviction motions in the trial court regarding these issues, and,
therefore, we will not address them. See
§ 974.20, Stats.; State
v. Monje, 109 Wis.2d 138, 151, 325 N.W.2d 695, 702 (1982)
(postconviction motions to the trial court required except in challenges to the
sufficiency of the evidence for issues to be considered as a matter of right).[1]
Therefore, we affirm
Wallace's judgment of conviction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.