March 15, 2012
Colorado Court of Appeals - 3-1-12 - People v. Ray
People v. Ray Supplementing the Record on Appeal
Issues: Mr. Ray sought to supplement the record on appeal with off-the-record happenings – bench conferences, interactions of court staff with the jury, etc. Why the Court of Appeals chose to publish this decision at all cannot be discerned. It reads more like directions for appellate lawyers; a how-to or something like “Here’s How You Properly Supplement The Record – 101.” Given how the Court of Appeals buries reversals of convictions by not publishing those decisions, why now choose to publish this five-page how-to on amending the record on appeal?
Court of Appeals tip: No matter how annoyed the Court, the prosecutor, or the reporter get, do everything on the record – including the instructions conference, all bench conferences, and all directions given to the jury by the trial court. According to the opinion, defense counsel did not request that bench conferences be on the record. The trial court with the help of the defense and prosecution recreated the bench conferences. Mr. Ray then sought clarification of the recreated record. The Court of Appeals declined the request, “Ray now seeks clarification of the trial court's order. We deny that request and further decline to supplement the record with any reconstructed bench conference. The transcripts show that trial counsel could have had any bench conference recorded upon request. Under these circumstances, we cannot conclude that the unrecorded conferences were “omitted from the record by error or accident,” within the meaning of C.A.R. 10(e).”