NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANNY P. SHADLE, )
) Court of Appeals No. A-6127
Appellant, ) Trial Court No. 3AN-94-4667 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1540 - July 11, 1997]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Sigurd E. Murphy, Judge.
Appearances: Richard D. Kibby, Anchorage, for
Appellant. Pamela Dale, Assistant Municipal Prosecutor, Carmen E.
ClarkWeeks, Municipal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Danny P. Shadle was arrested for driving while intoxicated
(DWI), Anchorage Municipal Code 9.28.020(A), and was given a breath
test; his blood-alcohol level was .227 percent, more than twice the
legal limit. Shadle signed a form indicating that he did not wish
an independent chemical test. The question in this appeal is
whether Shadle's waiver of the independent test was knowing.
A defendant who is arrested for DWI and submits to a
police-initiated breath test is entitled to demand an independent
breath or blood test. See Gundersen v. Anchorage, 792 P.2d 673
(Alaska 1990); Ahtuangaruak v. State, 820 P.2d 310 (Alaska App.
1991). Shadle suffers from a severe hearing impairment. He
contends that, because of this hearing impairment, he never acquired
a basic understanding of his right to an independent chemical test,
and therefore his purported waiver of a second test was invalid.
See Ahtuangaruak, 820 P.2d at 311-12. Because of this, Shadle
asserts, the district court should have suppressed the results of
the breath test.
District Judge Sigurd E. Murphy held a hearing at which
the Municipality and Shadle introduced evidence concerning Shadle's
general ability to hear and communicate, as well as audio recordings
of Shadle's conversation with the police during his DWI processing
and Shadle's conversation with the magistrate during his arraign-
ment. Based on this evidence, Judge Murphy found that Shadle had
possessed a basic understanding of his right to an independent test
when he signed the waiver of a second test. Concluding that Shadle
had knowingly waived the independent test, Judge Murphy denied
Shadle's suppression motion.
On appeal, Shadle disputes Judge Murphy's conclusion that
he knowingly waived an independent test. Normally, our task on
appeal would be to review the trial court record and decide whether
Judge Murphy was or was not clearly erroneous in finding that Shadle
understood his right to an independent test. Wilburn v. State, 816
P.2d 907, 911 (Alaska App. 1991). In Shadle's case, however, our
task is complicated by the fact that we are unable to review the
tape recording of Shadle's DWI processing.
The tape disappeared sometime after Judge Murphy reviewed
it when deciding Shadle's suppression motion. The parties and the
trial court clerk's office have undertaken extensive efforts to find
the tape, but without success. It appears that the Municipality
either lost or inadvertently destroyed the tape after Judge Murphy
issued his ruling on Shadle's suppression motion.
Having ascertained that the tape could not be found, Judge
Murphy held a hearing to see if it was possible to reconstruct the
evidence on the missing tape. At the conclusion of that hearing,
the Municipality conceded that it would be impossible to reconstruct
the tape.
Judge Murphy declared that his decision to deny Shadle's
suppression motion was based "almost entirely" on the evidence
contained in the missing tape. We thus view the tape as crucial to
any meaningful review of Judge Murphy's ruling.
Shadle is entitled to appellate review of the district
court's ruling. That can not occur unless this court possesses a
sufficiently complete record of the lower court's proceedings to
allow meaningful review.
When there is no electronic record of the pertinent lower
court proceedings, or when that record is missing or destroyed, the
Alaska appellate rules provide various mechanisms for reconstructing
the record. See Appellate Rules 210(b)(8), 210(i), and 211.
However, when the missing record can not be adequately reconstructed
to allow meaningful appellate review of the defendant's claims of
error, the lower court's decision must be reversed and the defendant
must receive a new hearing or trial. Blasco v. State, 680 So.2d
1052 (Fla. App. 1996); State v. Taylor, 664 P.2d 439, 447 (Utah
1983); State v. McFarland, 287 N.W.2d 162, 164 (Iowa 1980);
Commonwealth v. Harris, 379 N.E.2d 1073, 1075-76 (Mass. 1978). [Fn.
1]
The Municipality's negligent loss of the tape has denied
Shadle meaningful appellate review of the district court's
suppression ruling. We therefore must reverse that ruling.
The Municipality does not argue that the district court's
ruling, if erroneous, was harmless error. Accordingly, the
judgement of the district court is REVERSED.
FOOTNOTES
Footnote 1:
But see State v. Verikokides, 925 P.2d 1255 (Utah 1996);
State v. Brown, 866 P.2d 1172, 1174 (N.M. App. 1993); People v.
Valdez, 187 Cal.Rptr. 65, 69 (Cal. App. 1982) (denying relief when
the absence of an adequate record is attributable to the defendant's
misconduct).
For example, the defendant in Verikokides was convicted of rape
and sodomy, but he fled the jurisdiction before sentencing; he was
not recaptured for seven years. During the intervening seven years,
the trial court record and exhibits were lost or destroyed, and
reconstruction of the record was rendered close to impossible
because the defendant's trial counsel died. The Utah Supreme Court
held that, even though the record was not adequate to allow
meaningful review of the defendant's trial, the defendant was not
entitled to relief, since the inadequacy of the record was the
"consequence of his illegal acts". 925 P.2d at 1258.
