IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Deschutes County Circuit
Court No. 87CR0373TM
Plaintiff-Respondent,
v.
Supreme Court No. S058677
RANDY LEE GUZEK,
RESPONDENT'S RESPONSE TO
APPELLANT'S MOET — SUBMIT
ADDITIONAL CORRECTIONS/ADDITIONS
TO TRANSCRIPT – RECONSIDERATION
OF PARTIAL DENIAL
Defendant-Appellant.
Defendant previously filed a motion asking this court for an order
allowing him additional time within which to file a motion in the trial court to
correct or supplement the transcript. In support of that motion, he represented
that during the trial a witness made a non-verbal response to a question from the
prosecutor but that his response does not appear in the transcript. In essence,
defendant wants to supplement the transcript with the response that he asserts
the witness made. The state opposed that motion, and this court issued an order
on June 28, 2013, that denied that motion. Defendant has now filed a motion
asking this court to reconsider that ruling. For the reasons set forth below, the
state still opposes defendant’s motion.
Once again, defendant’s motion misses the point. He does not dispute
that the transcript as filed contains an accurate and complete recording of what
actually was said aloud in the courtroom. Although defendant asserts that what
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1162 Court Street NE
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(503) 378-4402
he “seeks is a complete and accurate transcript,” he does not identify any error
in the transcript that must be corrected in order for the transcript to accurately
speak the truth. Rather, what he seeks is to supplement the transcript with
additional information that was not said aloud in court but that he asserts his
counsel actually had intended to say aloud, and should have said aloud, but did
not.1
Nothing in either ORS 19.370(5) or ORAP 3.40 allows a party to
supplement the record on appeal with additional information that the party
neglected to put in the record during the proceedings but wants to add after the
fact, while the case is on appeal. What ORS 19.370(5) provides is that a party
may ask the trial court “for an order to correct any errors appearing in the
transcript.” (Italics added.) It does not allow a party to ask the court to
supplement an otherwise complete and accurate transcript with additional
information that was omitted, whether by accident, inadvertence, or choice.
Defendant does not cite any rule, statute, or case law that provides a basis for
1
Of course, the standard method for a trial lawyer to ensure that the
record contains a witness’s non-verbal response to a question is for him to say
something like, “Let the record reflect that the witness responded to the
question by nodding in the affirmative.” Defendant’s trial counsel did not do
that, nor did he do anything else that would have ensured that the record
contained the non-verbal response that he now alleges the witness made.
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this court to grant his request.2 Because there is no authority for the trial court
to allow a defendant to “correct” the transcript for that purpose, this court
should deny defendant’s motion.
In any event, there is no basis for this court to grant defendant the relief
he requests. What he seeks to do is to supplement the record by including what
he contends was a witness’s non-verbal response to a question. In support of
that request, he offers a declaration from Mr. Wolf, his trial counsel, in which
he asserts that when Mark Wilson, a state’s witness at trial, was asked by the
prosecutor whether his plea agreement required him “to testify truthfully,”
Mr. Wolf objected but that Mr. Wilson nonetheless answered the prosecutor’s
question by nodding in the “affirmative.”
As the state noted in its previous response, the transcript shows that after
the prosecutor asked Mr. Wilson that question and before he verbally
responded, Mr. Wolf objected, the jury was sent out, the parties argued the
point, and the trial court overruled the objection. At that point, the jury was
brought back in and the prosecutor then resumed his questioning of Mr. Wilson
without ever re-asking him the question that drew the objection. (Tr 5169-71).
2
The only authority that defendant cites in his motion for reconsideration
is a bare string cite of constitutional provisions.
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In short, the transcript does not disclose that Mr. Wilson, in fact, ever answered
the question. Moreover, nothing in the transcript even suggests that he
answered the question in any form. During the recorded colloquy outside the
presence of the jury that occurred immediately after the objection, Mr. Wolf did
not ask the court to strike any answer from Mr. Wilson. Rather, when the trial
court asked Mr. Wolf: “Did you * * * object to the question? Would you be
asking me to strike it, or you are also going beyond that to move for a
mistrial?,” Mr. Wolf responded: “Well, I, our first request, obviously, is we
move to strike. And, the, if you’re not inclined to do that, we move for a
mistrial.” (Tr 5170-71; italics added). That is, all Mr. Wolf asked the trial
court to do was to strike the prosecutor’s question; he did not assert that the
witness had answered the question and then ask to have the answer stricken.3
The fundamental difficulty with defendant’s motion is that the state does
not concede that Mr. Wilson, in fact, answered the prosecutor’s question in any
form, either verbally or non-verbally. Moreover, even if this court accepts as
true Mr. Wolf’s declaration that he personally recalls that he saw Mr. Wilson
respond in some non-verbal manner to the question, the state does not concede
3
Mr. Wolf did not represent during the colloquy on his motion that he
had seen Mr. Wilson nod in the affirmative to the prosecutor’s question.
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that anyone else in the courtroom—in particular, the jurors—also saw him
respond in some non-verbal form to the question such that they likely would
have interpreted his conduct as an “affirmative” response. In short, defendant’s
motion is based solely on a self-serving assertion of fact that is not corroborated
by anything in this record and that the state does not concede is true. In order to
resolve that factual dispute fairly and completely, it would be necessary to
cross-examine Mr. Wolf under oath about his recollection, and also perhaps to
examine under oath his co-counsel, the prosecutor, the trial judge, Mr. Wilson,
and maybe some of the trial jurors, too. An appellate court is in no position, of
course, to preside over a contested hearing to resolve such a factual dispute.
Fortunately, there is a readily available procedural mechanism for
resolving such disputes after entry of a final judgment: a post-conviction
proceeding under ORS 138.510 et seq. If this court affirms the judgment on
direct review, defendant then can file a petition for post-conviction relief and
allege that Mr. Wolf failed to provide constitutionally adequate assistance by
neglecting to ensure that the record contained what he now alleges was
Mr. Wilson’s “affirmative” response to the prosecutor’s question.4 In order to
4
If this court reverses the judgment on some other ground and remands
for a new penalty-phase trial, this issue would become moot.
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prevail on such a claim, defendant would be required to prove: (1) that, in fact,
Mr. Wilson did respond to the question in some non-verbal manner that was
visible to the jurors; (2) that the jurors, in fact, would have interpreted his
response as being an “affirmative” answer to the prosecutor’s question; (3) that,
as a matter of law, such an answer would not have been admissible evidence;
(4) that, as a matter of law, Mr. Wolf’s failure to ensure that the record
contained Mr. Wilson’s response was constitutionally deficient performance in
the context of the case; and (5) that defendant, in fact, suffered prejudice as a
result that would provide, as a matter of law, a basis for granting postconviction relief in the form of setting aside the judgment. In order to resolve
all of those issues, the parties in that proceeding will have various procedural
means available to them to question under oath all of the potential witnesses
and to generate other evidence relevant to that issue, and the post-conviction
court will thus be in a position to make the necessary credibility determinations
and to resolve the factual and legal issues fairly and completely.
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Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
This court should not grant defendant’s motion based only on his
self-serving factual assertion but rather should relegate him to the normal
procedural processes that are readily available to him for the fair resolution of
such factual disputes.
Respectfully submitted,
ELLEN F. ROSENBLUM #753239
Attorney General
ANNA M. JOYCE #013112
Solicitor General
/s/ Timothy A. Sylwester
_________________________________
TIMOTHY A. SYLWESTER #813914
Assistant Attorney General
Timothy.Sylwester@doj.state.or.us
Attorneys for Plaintiff-Respondent
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Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
NOTICE OF FILING AND PROOF OF SERVICE
I certify that on August 14, 2013, I directed the original Respondent's
Response To Appellant's MOET — Submit Additional Corrections/Additions
To transcript – Reconsideration Of Partial Denial to be electronically filed with
the Appellate Court Administrator, Appellate Records Section, and
electronically served upon J. Kevin Hunt and Jeffrey E. Ellis, attorneys for
appellant, by using the court's electronic filing system.
/s/ Timothy A. Sylwester
_________________________________
TIMOTHY A. SYLWESTER #813914
Assistant Attorney General
Timothy.Sylwester@doj.state.or.us
Attorney for Plaintiff-Respondent
Page 1 - NOTICE OF FILING AND PROOF OF SERVICE
TAS:mxg\4385721
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402