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State v. Rucker12/26/2003
MEMORANDUM DECISION
Not For Official Publication
This case is before us on Appellant's motion to supplement the record and on the State's motion for summary affirmance.
Following a jury trial in May of 1992, Jaren Rucker was convicted of aggravated assault, a third degree felony; failure to respond to an officer, a class A misdemeanor; and driving under the influence , a class B misdemeanor. Before sentencing, Rucker fled to Guam, where he remained for nine years. He was sentenced on March 31, 2003, over eleven years after his trial. He filed an appeal; however, the district court notified him that trial transcripts were not available because the audio tapes were destroyed after expiration of the nine-year retention period. Rucker seeks a remand "to re-create a record through testimony as well as alternative sources in order to pursue his issues on appeal." He challenges the sufficiency of the evidence supporting his conviction, and also claims that trial counsel was ineffective in failing to assert self-defense.
Although a defendant who absconds after conviction does not forfeit the right to an appeal, that right may be lost if "the State can show that it has been prejudiced by the defendant's absence and the consequent lapse of time." State v. Tuttle, 713 P.2d 703, 705 (Utah 1985). Accordingly, where a defendant's seven-year absence following conviction "greatly increased the risk and . . . the likelihood that records would be lost or destroyed" and "indirectly resulted in the impossibility of appellate review," the Utah Supreme Court denied a new trial and affirmed the conviction. State v. Verikokides, 925 P.2d 1255, 1256 (Utah 1996); see also State v. Morello, 927 P.2d 646, 648 (Utah Ct. App. 1996) (concluding defendant bore risk of loss where delay resulted in destruction of transcript). In addition, the Utah Supreme Court rejected reconstruction as an adequate remedy where a major portion of the record was missing. See State v. Tunzi, 2000 UT 38, , 998 P.2d 816 (rejecting reconstruction where transcript of second day of jury trial was missing).
The destruction of records necessary to allow appellate review occurred during Rucker's absence. But for that absence, it appears that an appeal could have been pursued before the records were destroyed. His motion provides no details about the proposed means to reconstruct the record; however, the State notes that while both the prosecutor and original defense attorney still practice in Salt Lake County, it is unlikely that they would have an independent recollection of the case. Rucker's counsel conceded at sentencing that both the prosecutor's file and the police reports have been destroyed. The judge who presided over the trial left the State bench several years ago and is unlikely to have an independent recollection of the case. Even assuming witnesses could be located, "the long delay would compromise their ability to remember critical events." Verikokides, 925 P.2d at 1257. Most importantly, the issues raised on appeal are fact-sensitive issues that are least susceptible to determination based on a reconstructed record. "Attempts to reconstruct major portions of records often prove futile," particularly "where the issue on appeal concerns sufficiency of the evidence supporting a conviction." Tunzi, 2000 UT 38 at . Under these facts, Rucker must bear the consequences of his act, including loss of appellate review of his conviction.
We grant the State's motion and affirm the conviction.
Judith M. Billings, Associate Presiding Judge
Russell W. Bench, Judge
James Z. Davis, Judge
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