Bryan Gadson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 22 2016, 9:27 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Gadson, March 22, 2016
Appellant-Defendant, Court of Appeals Case No.
34A04-1509-CR-1533
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff Hopkins, Judge
Trial Court Cause No.
34D04-1412-F6-170
Crone, Judge.
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[1] Bryan Gadson appeals his conviction for level 6 felony battery against a public
safety official. Specifically, Gadson states that he wishes to challenge the racial
makeup of his jury venire, the State’s “strikes” of potential jurors during voir
dire, and the juror questionnaires. Appellant’s Br. at 4. Although his argument
is difficult to discern, it appears that he essentially wants to make a Batson claim
on appeal. See Addison v. State, 962 N.E.2d 1202, 1208 (Ind. 2012) (“Purposeful
racial discrimination in selection of the venire violates a defendant’s right to
equal protection because it denies him the protection that a trial by jury is
intended to secure.”) (quoting Batson v. Kentucky, 476 U.S. 79, 86 (1986)).
Gadson asserts, however, that due to the fault of the trial court, he is unable to
submit an adequate record on appeal and therefore has been effectively denied
his right to an appeal and must be given a new trial. We disagree, conclude that
he has waived any claims of error, and affirm his conviction.
[2] It has long been recognized that it is the appellant’s burden to provide us an
adequate record to permit meaningful appellate review. Wilhoite v. State, 7
N.E.3d 350, 354-55 (Ind. Ct. App. 2014). Although the record indicates that
voir dire was recorded in this case, see Appellant’s App. at 44, Gadson has not
provided us with a transcript of voir dire, which would be necessary for any
appellate review of challenges to the selection of his jury. Gadson blames his
failure on the trial court clerk, stating that while his notice of appeal requested
the transcript of his jury trial, the transcript he received did not include the voir
dire. See Ind. Appellate Rule 2(K) (“Transcript shall mean the transcript or
transcripts of all or part of the proceedings in the trial court … that any party
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has designated for inclusion in the Record on Appeal and any exhibits
associated therewith.”). Be that as it may, if Gadson received what he believed
to be an incomplete record of proceedings, it was his obligation to request the
trial court clerk to supplement the record. At that point, if a transcript of voir
dire was still unavailable for some reason, Indiana Appellate Rule 31 provides,
in part, that “[i]f no Transcript of all or part of the evidence is available, a party
or the party’s attorney may prepare a verified statement of the evidence from
the best available sources, which may include the party’s or the attorney’s
recollection.” It does not appear from the record submitted to us that either
approach was attempted.
[3] Gadson next baldly asserts that the trial court “intentionally destroy[ed]” part
of the record that he needs for this appeal, namely the actual “strike sheets”
used by the parties during voir dire. Appellant’s Br. at 3. Assuming that the
trial court did in fact dispose of these sheets, Gadson cites no authority that the
court was required to maintain them as part of its record. Moreover, it would
have been trial counsel’s obligation to request preservation of those sheets
and/or to make a contemporaneous objection to the State’s juror challenges to
make a record for our review and preserve a Batson claim of error. See Addison,
962 N.E.2d at 1211 (citing Chambers v. State, 551 N.E.2d 1154, 1158) (Ind. Ct.
App. 1990)). Finally, Gadson does not include the challenged juror
questionnaires in his appendix, claiming that they “are unavailable because the
Bailiff is on vacation and no one in the Trial Court will unlock his office so that
copies can be made.” Appellant’s App. at 59. Again, trial counsel would have
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had both the opportunity and obligation to make a record and preserve error on
this issue. The trial court is not so obliged.
[4] We are unpersuaded by Gadson’s counsel’s bald accusations and attempts to
shift his responsibility to provide an adequate record to others. We have little
choice but to conclude that Gadson has wholly failed to meet his burden to
present us with an adequate record for review and has therefore waived his
claims of error on appeal. See Weekly v. State, 496 N.E.2d 29, 31 (Ind. 1986)
(defendant waived Batson challenge on appeal by failing to present adequate
record). His conviction is affirmed.
[5] Affirmed.
Najam, J., and Robb, J., concur.
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