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State v. Izaguirre

March 25, 1994

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL IZAGUIRRE, DEFENDANT-APPELLANT.



Judges Skillman, Kestin and Wefing.

The opinion of the court was delivered by: Kestin, J.A.D.

Submitted March 8, 1994

Defendant was charged with and convicted of murder and possession of a weapon for unlawful purpose. The convictions were merged and defendant was sentenced to a term of life imprisonment with a thirty-year period of parole ineligibility. A $30 VCCB penalty was also imposed.

On appeal, defendant raises the following issues:

POINT I DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE OF THE DESTRUCTION OF THE COURT REPORTER'S STENOGRAPHIC NOTES OF THE TRIAL WAS ERRONEOUSLY DENIED. DEFENDANT'S CONVICTIONS SHOULD BE VACATED AND A NEW TRIAL SHOULD BE ORDERED BECAUSE OF THE LACK OF A FULL TRANSCRIPT OF THE TRIAL.

POINT II DEFENDANT'S CONVICTION FOR MURDER MUST BE VACATED AND REMANDED FOR A NEW TRIAL BECAUSE THE TRIAL JUDGE REFUSED TO GIVE THE JURY A GUIDO CHARGE WITH RESPECT TO THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER.

POINT III THE TRIAL COURT IMPROPERLY ADMITTED INTO EVIDENCE TESTIMONY PERTAINING TO PRIOR BAD ACTS OF THE DEFENDANT UNDER EVIDENCE R. 55.

POINT IV THE TRIAL JUDGE FAILED TO GIVE THE JURY A PROPER LIMITING INSTRUCTION WITH RESPECT TO TESTIMONY PERTAINING TO PRIOR INCIDENTS OF PHYSICAL CONFRONTATION BETWEEN THE DEFENDANT AND HIS WIFE. (NOT RAISED BELOW).

POINT V DEFENDANT'S CONVICTIONS SHOULD BE VACATED BECAUSE THE STATE USED AN INTERPRETER EMPLOYED BY THE DEFENDANT TO INTERPRET A PSYCHIATRIC INTERVIEW OF DEFENDANT CONDUCTED BY A PSYCHIATRIST EMPLOYED BY THE STATE. USE OF THIS INTERPRETER DEPRIVED DEFENDANT OF MEANINGFUL ENJOYMENT OF HIS RIGHT TO EFFECTIVE REPRESENTATION AND ASSISTANCE OF COUNSEL.

[1] On October 26, 1990, less than two weeks after trial was concluded, the trial court was informed that the court reporter's stenographic notes of the trial could not be located. Based on information available to her, Judge Wecker concluded that these notes had been inadvertently destroyed. Promptly, and with the cooperation of trial counsel, she embarked upon developing a plan for reconstructing the record.

On November 1, after short notice, Judge Wecker convened an on-the-record conference with the attorneys who had tried the case, Assistant Prosecutor Ann Rubin and Assistant Deputy Public Defender Vernon Clash. The procedures to be used in reconstructing the record were established at that conference. Each participant's notes of the trial proceedings were marked for identification and returned to the author.

The sentencing proceeding, initially scheduled for November 30, was held on December 14. Defendant's motion for a new trial based, inter alia, on the absence of a verbatim record of the trial, was denied and sentence was imposed. In ruling upon that aspect of the motion for a new trial which was based upon asserted limitations imposed on the defense by the absence of a verbatim record, Judge Wecker noted that motions for new trials are typically made and resolved before a verbatim transcript has been produced.

During a period of time following the first reconstruction conference, each attorney prepared a reconstruction of the trial proceedings from her or his notes and memory.*fn1 After this phase of the project was completed, Judge Wecker gave each attorney a copy of her trial notes, including jury charges, amounting to 283 pages. Ms. Rubin then annotated her copy of the judge's notes by making additions or corrections based upon her own notes and reconstruction. These annotated notes were separately marked for identification. The annotated copy of the judge's notes was then given to Mr. Clash who made further annotations by way of additions or corrections based upon his own notes and reconstruction. The respectively annotated notes were then marked for identification.

On four days in February 1991, the judge and both counsel, *fn2 went through all of the notes and annotations in further on-the-record proceedings. Corrections and additions were made, and Judge Wecker dictated what was agreed to have occurred. Opportunity was afforded for counsel's disagreements to be noted on the record. The judge then edited the transcript of the February conferences in order to produce a certified record of the trial "in readable form," totaling some 240 pages. Twelve appendices were added including jury questionnaires, the judge's text of various rulings, charges and instructions which she had used, additional notes from Ms. Rubin on the respective openings of counsel, case citations used by the judge in making a ...


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