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IN THE SUPREME COURT OF THE STATE OF OREGONSTATE OF OREGON,Plaintiff-Respondent,v.RANDY LEE GUZEK,Defendant-Appellant. DOCPROPERTY "mmCountyName" \* MERGEFORMAT Deschutes County CircuitCourt No. DOCPROPERTY "mmLowerCourtNbr" \* MERGEFORMAT 87CR0373TMSupreme Court No. DOCPROPERTY "mmSupremeCourtNbr" \* MERGEFORMAT S058677 DOCPROPERTY cdpPleadingTitle \* MERGEFORMAT RESPONDENT'S RESPONSE TO APPELLANT'S MOET — SUBMIT ADDITIONAL CORRECTIONS/ADDITIONS TO TRANSCRIPT – RECONSIDERATION OF PARTIAL DENIALDefendant 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 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.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 this court to grant his request. 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 reasking him the question that drew the objection. (Tr?5169-71). 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.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 nonverbal manner to the question, the state does not concede 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 selfserving 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 cocounsel, 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. In order to 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 post-conviction 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. / / / / // / / / // / / / // / / / /This court should not grant defendant’s motion based only on his selfserving 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 #753239Attorney GeneralANNA M. JOYCE #013112Solicitor General/s/ Timothy A. SylwesterTIMOTHY A. SYLWESTER #813914Assistant Attorney GeneralTimothy.Sylwester@doj.state.or.usAttorneys for Plaintiff-RespondentNOTICE OF FILING AND PROOF OF SERVICEI certify that on August 14, 2013, I directed the original DOCPROPERTY cdpPleadingTitle \* MERGEFORMAT 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. SylwesterTIMOTHY A. SYLWESTER #813914Assistant Attorney GeneralTimothy.Sylwester@doj.state.or.usAttorney for Plaintiff-Respondent ................
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