Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A21A0730. BURSE v. THE STATE.

On November 30, 2012, after a jury trial, appellant Nicholas Burse was

convicted of armed robbery and other charges. On September 30, 2014, the trial court

denied Burse’s motion for a court-ordered transcript, which was nonetheless filed

shortly afterward. Burse amended his motion for new trial for the last time in June

2017. On February 7, 2019, the trial court deniedBurse’s motion for new trial without

explanation. Burse’s notice of appeal asked that the appellate record include “[c]opies

of all exhibits, including video and audio recordings.” His amended notice of appeal

asked that “[c]opies of all exhibits submitted to the court during the proceedings” be

included. This appeal was docketed on December 8, 2020.

Shortly afterward, our Clerk noted the absence of Exhibit S-4, a surveillance

video admitted into evidence at trial, and asked the clerk of Walker County Superior

Court for help. The clerk responded that his office “has not now nor has it ever been

in possession” of the exhibit, and that in their circuit, “the Court Reporter is the

custodian of evidence.” On January 5, 2021, Burse moved this Court to supplement

the appellate record with the missing exhibit. In the alternative, Burse moved to

remand the case to the trial court for completion of the record. In his motions, Burse

represents that he has repeatedly contacted the clerks and the court reporter in his

effort to complete the record. 

OCGA § 5-6-41 (d) provides that “[w]here a trial in any civil or criminal case

is reported by a court reporter, all motions, colloquies, objections, rulings, evidence,

January 13, 2021
whether admitted or stricken on objection or otherwise, copies or summaries of all

documentary evidence, the charge of the court, and all other proceedings which may

be called in question on appeal or other post-trial procedure shall be reported; and,

where the report is transcribed, all such matters shall be included in the written

transcript, it being the intention of this article that all these matters appear in the

record.” (Emphasissupplied.) Subsection (f) of the same statute further providesthat

“[w]here any party contends that the transcript or record does not truly or fully

disclose what transpired in the trial court and the parties are unable to agree thereon,

the trial court shall set the matter down for a hearing with notice to both parties and

resolve the difference so as to make the record conform to the truth.” (Emphasis

supplied.) 

More than eight years have passed since Burse’s conviction, and more than

three since the filing of his amended motion for new trial. In the absence of any

findings of fact by the trial court as to the exhibit at issue or any response from the

State, we GRANT Burse’s motion for remand. Immediately upon remand, the trial

courtshall hold a hearing on the status of the missing exhibit, with the court clerk and

the court reporter among the witnesses, and make findings of fact as to its

whereabouts. Burse shall have 30 daysfrom the entry of the trial court’s order on this

matter to file a new notice of appeal. In light of this disposition, Burse’s motion to

supplement the appellate record is DENIED AS MOOT. 

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

01/13/2021