Bearpaw v. State
In Bearpaw v. State, 803 P.2d 70 (Wyo. 1990), the Court reversed a defendant's conviction because of a failure to transcribe the impaneling and voir dire of the jury, failure to report the preparation of instructions, failure to transcribe the instructions read to the jury, and failure to transcribe opening and closing argument.
It was later determined that the source material for such transcripts (reporter's notes) had been destroyed, so the record could not be recreated.
The final result in Bearpaw was recognition that where, through no fault of defendant, the record cannot be prepared or certified by the court reporter, a new trial will be granted. Bearpaw, 803 P.2d at 79.
The Court held that without transcripts of opening statements, jury voir dire and selection, the reading from a transcript of an in-custody interview, the instruction conference, and closing arguments, we could not review a claim of ineffective assistance of counsel. Id. at 78.
The Court incorporated in our ruling language from the United States Court of Appeals for the Fifth Circuit:
See, likewise, the rule that a mandatory requirement for the court reporter to record all proceedings in a criminal case establishes a principle which cannot be overridden by any local practice, United States v. Brumley, 560 F.2d 1268 (5th Cir. 1977). That court, in quoting United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977), emphasized that "'when . . . a criminal defendant is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion . . . of the record' will result in a presumption of prejudice sufficient to mandate reversal." Brumley, 560 F.2d at 1281.
(Bearpaw, 803 P.2d at 79.)