State v. Robert A. Washington

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 25, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP13-CR Cir. Ct. No. 2013CF335

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT A. WASHINGTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: RHONDA L. LANFORD, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP13-CR

¶1 PER CURIAM. Robert Washington appeals a judgment of
conviction for one felony count of pandering or pimping and an order denying his
motion for postconviction relief. The basis for Washington’s postconviction motion
is that the court reporter failed to transcribe the circuit court’s reading of the jury
instructions; Washington asserts that his right to appellate review has been frustrated
by the absence of the transcript. The dispositive issue is whether the record was
sufficiently reconstructed by the circuit court. We conclude that it was, and
therefore we affirm.

¶2 The parties agree that the operative test is set forth in State v. Perry,
136 Wis. 2d. 92, 401 N.W.2d 748 (1987). The first part of the test is whether
Washington showed a “colorable need” for the transcript, id. at 108, and we assume,
without deciding, that he has. The next steps are whether the record can be
reconstructed and, if an attempt is made to do that, whether it was reconstructed
beyond a reasonable doubt. Id. at 101-02. If it has not been reconstructed, the
defendant is entitled to a new trial. Id. at 102.

¶3 In this case, the parties agreed on the jury instructions that would be
read to the jury, and a copy of the written jury instructions was entered into the trial
record. In the proceedings on Washington's postconviction motion, the parties
submitted affidavits by the prosecutor and defense attorney who tried the case. Both
attorneys stated that it was their normal practice to read the instructions along with
the court, but they did not have a specific recollection of doing so in this case, and
defense counsel acknowledged that he may have been preparing his closing
argument. The circuit court did not hold an evidentiary hearing. Based on the
affidavits and the court’s own usual practice of reading the jury instructions
verbatim, the court concluded that the instructions were read correctly.

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No. 2019AP13-CR

¶4 On appeal, Washington argues that the record was not reconstructed
beyond a reasonable doubt. However, his argument is not well developed. He does
not specify any particular flaw in the circuit court’s method of reconstruction.

¶5 We are satisfied that the record was reconstructed beyond a
reasonable doubt. The court relied on its own regular practice of reading directly
from the written instructions, which are preserved in the record, and on the affidavits
of the attorneys who averred that their regular practice was to read those along with
the court’s oral reading. Neither attorney recalled the court’s reading as differing
from the written instruction.

¶6 Our confidence in this method of reconstruction is particularly high
under these circumstances, due to the nature of the act of reading instructions to the
jury. In so doing, the circuit court is essentially reading from a script, and here the
script has been preserved. This is not a situation like witness testimony or argument
where the speakers are often improvising and no written record has been preserved
other than brief descriptions in the court minutes. Accordingly, we conclude that
the court properly accepted the written jury instructions as a reconstruction of the
court’s oral reading of the instructions.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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