1. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD 223 Kan. 62, 573 P.2d 970 (Kan. 1977) Case Brief

2. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD PURPOSE: Although serious felony cases are scrutinized carefully for error, the Stafford case illustrates that even the loss of part of the trial transcript may be deemed nonprejudicial.

3. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD CAUSE OF ACTION: Second degree murder.

4. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD FACTS: The State’s case came from twelve witnesses. Defendant was the only person to testify on his own behalf. Thirty pages of defendant’s testimony were transcribed, but another 50 were lost. On order of the district court an attempt was made to reconstruct the missing transcript through testimony of defendant’s trial attorney. The defendant was convicted of second degree murder and seeks a new trial based on the lost transcript.

5. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD ISSUES: 1. Whether missing a portion of trial transcript precluded effective appellate review. 2. Whether trial court’s failure to define “heat of passion” was prejudicial error warranting a new trial.

6. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD HOLDING: 1. No. 2. No. Judgment of conviction affirmed.

7. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD REASONING: 1. The inability of the state to provide a full transcript of the trial proceedings does not entitle a defendant to a new trial per se. Defendant failed to demonstrate that despite a good faith effort it was impossible to reconstruct the missing portion of the record, precluding effective appellate review of the issues.

8. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. STATE v. STAFFORD REASONING: 2. None of the objections to instructions raised on appeal were presented to the trial court. Therefore, the scope of review is limited to a determination of whether the instructions are “clearly erroneous.” An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict, not apparent in the instant case.