GA Code § 17-8-5 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 8 - Trial|Article 1 - General Provisions|§ 17-8-5. Recordation of Testimony in Felony Cases; Entering Testimony on Minutes of Court Where Guilty Verdict Found; Preparation of Transcript Where Death Sentence Imposed; Preparation of Transcript Where Mistrial Results in Felony Case

  On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel. In the event of a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. In the event that a sentence of death is imposed, the transcript of the case shall be prepared within 90 days after the sentence is imposed by the trial court. Upon petition by the court reporter, the Chief Justice of the Supreme Court of Georgia may grant an additional period of time for preparation of the transcript, such period not to exceed 60 days. The requirement that a transcript be prepared within a certain period in cases in which a sentence of death is imposed shall not inure to the benefit of a defendant.   In the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or state's counsel, order that a brief or transcript of the testimony in the case be duly filed by the court reporter in the office of the clerk of the superior court in which the mistrial occurred. If the brief or transcript is ordered, it shall be the duty of the judge, in the order, to provide for the compensation of the reporter and for the transcript to be paid for as is provided by law for payment of transcripts in cases in which the law requires the testimony to be transcribed, at a rate not to exceed that provided in felony cases.    (Laws 1833, Cobb's 1851 Digest, p. 841; Code 1863, § 4578; Code 1868, § 4599; Code 1873, § 4696; Ga. L. 1876, p. 133, § 1; Code 1882, § 4696; Penal Code 1895, § 981; Penal Code 1910, § 1007; Ga. L. 1925, p. 101, § 1; Code 1933, § 27-2401; Ga. L. 1973, p. 159, § 6; Ga. L. 1976, p. 991, § 1.)   Cross references.   - Powers and duties of Judicial Council with regard to reporting of judicial proceedings, § 15-5-20 et seq.   Law reviews.   - For article surveying Georgia criminal law cases from June 1979 through May 1980, see 32 Mercer L. Rev. 35 (1980). For article surveying developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981).   JUDICIAL DECISIONS   "Proceedings" defined.    - Intent of the term "proceedings" in former Code 1933, § 27-2401 (see O.C.G.A. § 17-8-5) was to refer to objections, rulings, and other matters which occur during the course of the evidence as well as any post-trial procedures. State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980).    This section related only to the testimony so taken down by the court reporter. Hughes v. State, 59 Ga. App. 885, 2 S.E.2d 513 (1939).    This section did not apply to guilty pleas. Jones v. Lee, 244 Ga. 837, 262 S.E.2d 130 (1979).   Transcript of habeas corpus hearing.    - There is no clear legal duty to file the transcript of a habeas corpus hearing within a particular period of time, but the court should exercise sound discretion in inquiring into the cause for the delay in transcription and so base the court's decision for or against dismissal of complaint seeking mandamus. Everett v. Rewis, 244 Ga. 427, 260 S.E.2d 336 (1979).   All proceedings except argument must be reported.    - Construing Ga. L. 1965, p. 18, § 10 (see O.C.G.A. § 5-6-41) with former Code 1933, § 27-2401 (see O.C.G.A. § 17-8-5), it would appear that in a felony case all testimony and proceedings in the case must be reported, except the argument of counsel. Graham v. State, 153 Ga. App. 658, 266 S.E.2d 316, rev'd on other grounds, 246 Ga. 341, 271 S.E.2d 627 (1980).   Completion of record.    - When the transcript does not fully disclose what transpired at trial, it is the duty of the complaining party to have the record completed pursuant to O.C.G.A. § 5-6-41. Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992).    Supreme court could not review the defendant's claim that the trial court set pretrial bond in an excessive and unreasonable amount because the defendant failed to have the record completed pursuant to O.C.G.A. § 5-6-41; testimony at the hearing on the motion for new trial was not a sufficient substitute for a transcript, and without a transcript of the bond hearing or a statutorily authorized substitute, the supreme court had to assume that the trial court's judgment was correct. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).   Unrecorded voir dire.    - Defendant's contention that possible error occurred during voir dire or defense counsel may have been ineffective and that because of the lack of a record the defendant will never know if there was error was not sufficient basis to require a new trial. Primas v. State, 231 Ga. App. 861, 501 S.E.2d 28 (1998).    Trial court did not abuse the court's discretion in denying the defendant's motion for a change of venue because although the court reporter transcribed the motion for change of venue and the trial court's ruling, the actual questions and answers of the prospective jurors were not reported, and defense counsel made no motion at that time to include the responses in the record or to have the responses reconstructed for the record; since voir dire was not transcribed, it was assumed that the jurors who were not excused for cause did not have such fixed opinions that the jurors could not be impartial judges of the defendant's guilt. Walden v. State, 289 Ga. 845, 717 S.E.2d 159 (2011).   Failure to record voir dire in capital case.    - Failure to record the voir dire examination of prospective jurors as to the jurors' feelings about imposing the death penalty in a case in which the sentence of death is imposed is reversible error. Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975).   Counsel's duty to request recording of final arguments.    - If counsel wants the final arguments recorded, it is the counsel's duty to see that it is done, inasmuch as it is not required. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), sentence vacated, 243 Ga. 244, 253 S.E.2d 707 (1979).   Counsel not ineffective for failing to transcribe opening and closing statements and voir dire.    - Trial counsel was not ineffective for failing to have the opening and closing statements and voir dire transcribed because the arguments of counsel at trial are not required to be transcribed; and although objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a nondeath penalty felony case. Curtis v. State, 330 Ga. App. 839, 769 S.E.2d 580 (2015).   Absent request, reporter is not required to record argument.    - In the absence of a timely request that the argument of counsel be recorded, the court reporter is not required to do so. Montgomery v. State, 140 Ga. App. 286, 231 S.E.2d 108 (1976).    When the record shows no timely request that the argument of counsel be recorded and, in the absence of such a request, a court reporter is not required to record the argument of counsel. Franklin v. State, 146 Ga. App. 429, 246 S.E.2d 442 (1978).   Closing arguments should be recorded when state seeks death penalty.    - Even though not required by statute, closing arguments of counsel should be taken down in a case in which the state is seeking the death penalty. However, the failure to transcribe the closing argument of counsel does not, without a showing of prejudice and harm, require the death penalty automatically be set aside. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).   State has duty to have proceedings reported and transcribed.    - Under Ga. L. 1965, p. 18, § 10 and former Code 1933, § 27-2401 (see O.C.G.A. §§ 5-6-41 and17-8-5), it was the duty of the state in all felony cases to have the transcript of evidence and proceedings reported and prepared and, after a guilty verdict had been returned, to file the transcript. Parrott v. State, 134 Ga. App. 160, 214 S.E.2d 3 (1975), overruled on other grounds, Mathis v. State, 147 Ga. App. 148, 248 S.E.2d 212 (1978).   State has duty to request that proceedings be transcribed and to bear costs.    - This section clearly stated that, in the event of a felony conviction, it was the duty of the state, at the state's own expense and through the agency of the presiding judge, to request the court reporter to transcribe the reported testimony. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980); Ivory v. State, 199 Ga. App. 283, 405 S.E.2d 90 (1991), cert. denied, 199 Ga. App. 906, 405 S.E.2d 90 (1991); Whitt v. State, 215 Ga. App. 704, 452 S.E.2d 125 (1994).   No time limit on state's duty to have transcript prepared.    - Under this section, the state had the duty to see that the transcript was prepared and filed, though there was no time limit on this duty. State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980).    While the defendant alleged prejudice in the delay of the production of the trial transcript, the defendant pointed to none, and failed to identify the witnesses the defendant claims were lost by the delay; and O.C.G.A. § 17-8-5, governing the recordation of testimony in felony cases, provided no timeline for the preparation of the transcript. Morrison v. State, 303 Ga. 120, 810 S.E.2d 508 (2018).   Defendant has duty under    § 5-6-42 to request transcript on appeal. - Appellant who appeals a felony conviction and states in the notice of appeal that a transcript is to be transmitted as part of the appellate record has a continuing duty under Ga. L. 1965, p. 18, § 11 (see O.C.G.A. § 5-6-42) to request the court reporter to transcribe the reported testimony at the same time that the appellant files the notice of appeal. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).   Duty not relieved by state's duty to request transcript.    - It is the duty of the state to request the court reporter to transcribe the reported testimony and then file the transcript after a guilty verdict has been returned in a felony case. However, the state's duty to request the court reporter to transcribe the reported testimony in a felony conviction has no time limit and thus cannot relieve an appellant in a felony conviction of the appellant's duty under Ga. L. 1965, p. 18, § 11 (see O.C.G.A. § 5-6-42) to request the court reporter to transcribe the reported testimony at the same time that the appellant files a notice of appeal. State v. Hart, 246 Ga. 212, 271 S.E.2d 133 (1980).   State's failure to file transcript denies appellant the right of appeal.    - Appellant is effectively denied the right to appeal if a transcript of the trial is not available to the appellant. Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973).    Failure of the state to file the transcript, or a correct transcript, even when caused by the state's inability to file the transcript, and not by the appellant's fault, effectively denies the appellant the right to appeal because a complete and correct transcript of the appellant's trial is not available to the appellant. Parrott v. State, 134 Ga. App. 160, 214 S.E.2d 3 (1975), overruled on other grounds, Mathis v. State, 147 Ga. App. 148, 248 S.E.2d 212 (1978).   Indigent entitled on appeal to free copy of transcript.    - Indigent, on appeal, is entitled as a matter of right to a free copy of the transcript of the trial court proceedings in which the indigent has been a party. Stalling v. State, 231 Ga. 37, 200 S.E.2d 121 (1973).   Transcript of trial ending in mistrial.    - Trial court erred in denying the defendant's motion for a free transcript since the defendant inquired about a transcript after the defendant's first trial ended in a mistrial and the motion was made after defense counsel was made aware that the state had ordered a limited transcript of defense witnesses only. Miller v. State, 231 Ga. App. 869, 501 S.E.2d 42 (1998).   Indigent rights when proceedings adequately reviewed in habeas corpus.    - Duty to provide on appeal a free copy of the transcript of the trial proceeding does not arise when the original criminal trial proceedings have been adequately reviewed in habeas corpus proceedings brought by the appellant and affirmed by the Supreme Court. Stalling v. State, 231 Ga. 37, 200 S.E.2d 121 (1973).   Reading of stenographer's notes when court and counsel differ as to testimony.    - When court and counsel differ as to what a witness testifies to, it is not error for the court to require the stenographer to read from the stenographer's notes the exact words of the witness. Vann v. State, 83 Ga. 44, 9 S.E. 945 (1889).    Failure to transcribe counsel's arguments is not a constitutional violation requiring vacation of a death sentence absent showing of harm by the defendant. Corn v. Zant, 708 F.2d 549 (11th Cir. 1983), cert. denied, 467 U.S. 1220, 104 S. Ct. 2670, 81 L. Ed. 2d 375 (1984), vacated in part on other grounds sub nom., Corn v. Kemp, 772 F.2d 681 (11th Cir. 1985), judgment vacated, 478 U.S. 1016, 106 S. Ct. 3326, 92 L. Ed. 2d 732 (1986), remanded for further consideration in light of Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), aff'd, 837 F.2d 1474 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).    Failure to transcribe closing arguments at the sentencing phase of a death penalty case is not a per se violation of constitutional due process. Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff'd in part, rev'd in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988).    Trial court did not err by refusing the defendant's request to have the closing arguments of counsel recorded and transcribed. Brooks v. State, 171 Ga. App. 55, 318 S.E.2d 785 (1984).    In absence of request, trial court does not err in failing to order recordation of voir dire, opening statements, and closing arguments. Simmons v. State, 160 Ga. App. 391, 287 S.E.2d 338 (1981).    Appellant's claim that the lack of a transcript of the appellant's juror voir dire, opening statements, and closing arguments violated the appellant's due process rights because the appellant could not supplement the transcript to support the appellant's claims of ineffective assistance of trial counsel was rejected. Trial counsel could assist in the re-creation of the transcript without suggesting counsel's own ineffectiveness. Pearson v. State, 311 Ga. 26, 855 S.E.2d 606 (2021).    Motion for new trial is part of "proceedings" as contemplated by O.C.G.A. § 17-8-5. Hall v. State, 162 Ga. App. 713, 293 S.E.2d 862 (1982), overruled in part by Worthen v. State, 304 Ga. 862, 823 S.E.2d 291 (2019).   Denial of complete trial transcript to indigent defendant for use upon retrial.    - Trial court did not err in refusing to furnish the defendant, an indigent, with a copy of the transcript of the defendant's first trial, to be used at retrial for the purposes of impeaching and pointing out discrepancies in the testimony of witnesses, since the defendant failed to show harm attributable to such decision. Gann v. State, 190 Ga. App. 82, 378 S.E.2d 369 (1989).   If no harm from lost transcript, no new trial.    - Loss of transcripts and tapes from certain pretrial proceedings did not entitle the defendants to a new trial as the defendants did not prove harm resulting from the loss. Robinson v. State, 221 Ga. App. 865, 473 S.E.2d 519 (1996).   Providing portions of transcript with objections or rulings sufficient compliance.    - Court did not err in providing appellant a transcript not including the complete voir dire and argument of counsel; provision of those portions of the voir dire in which objections were made or rulings were made by the trial court was a sufficient compliance with the requirements of O.C.G.A. § 17-8-5, as was limiting transcription of counsel's argument to those matters to which objection was made. Gardner v. State, 172 Ga. App. 677, 324 S.E.2d 535 (1984).    Absence of a complete trial transcript in a collateral post-conviction proceeding does not automatically require a new trial. Montgomery v. Tremblay, 249 Ga. 483, 292 S.E.2d 64 (1982).    Before a habeas court may grant a new trial on grounds of absence of a complete trial transcript, the court must find that a complete transcript is necessary to reach the merits of the habeas petition and that the necessary portions cannot be reconstructed pursuant to O.C.G.A. § 5-6-41(g), relating to reporting, preparing, and disposing of transcripts generally. Montgomery v. Tremblay, 249 Ga. 483, 292 S.E.2d 64 (1982).   Prejudicial closing arguments.    - O.C.G.A. § 17-8-5 does not require that a transcript of the district attorney's alleged prejudicial closing argument be made. Ford v. State, 160 Ga. App. 707, 288 S.E.2d 39 (1981).   Harmless statements to jurors in defendant's absence.    - When, after a lunch break during the guilt phase of the trial, the trial court made a few remarks to the jury while awaiting the return of the defendant, and the trial judge later restated the judge's comments as well as the judge could remember the comments, into the record, relating that the judge had told the jury that the trial would be slightly delayed because the defendant had eaten late, and had congratulated one of the jurors for having been elected to the board of education, there was no violation of O.C.G.A. § 5-6-41, regarding reporting of proceedings generally, or O.C.G.A. § 17-8-5, and any possible constitutional error relating to a defendant's right to be present during all stages of defendant's trial was clearly harmless beyond a reasonable doubt. Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987).   Delay in entering mistrial order on minutes.    - When the first trial ended with the grant of the defendant's motion for mistrial and the order declaring the mistrial was not reduced to writing and entered on the minutes of the court until after the second trial, and when the court's written order merely perfected the record in this regard and the delay in no way affected the defendant's rights, no double jeopardy defense is established. Swafford v. State, 161 Ga. App. 139, 291 S.E.2d 3 (1982).   No right to transcript when no testimony given.    - Provision to indigent appellant of transcript of continuance hearing was unnecessary for appeal from denial of motion for continuance when no testimony had been given at hearing. Miller v. State, 165 Ga. App. 487, 299 S.E.2d 174 (1983).    Probation revocation proceeding is not a felony proceeding under O.C.G.A. § 17-8-5. Smith v. State, 167 Ga. App. 94, 306 S.E.2d 73 (1983).    Charge conference is not a matter which occurs during the presentation of evidence and is not considered part of the "proceedings." Ricarte v. State, 249 Ga. App. 50, 547 S.E.2d 703 (2001).   Defendant failed to show prejudice.    - Defendant failed to demonstrate that the loss of two videotapes had harmed the defendant or precluded the appellate court from reviewing any of the issues raised on appeal with regard to the defendant's convictions for multiple offenses relating to the sexual molestation and exploitation of two minors. Significantly, although the videotapes were missing, the parties had stipulated to the contents of the tapes at the bench trial and to the proffered testimony of the minor victims. Mitchell v. State, 289 Ga. App. 55, 656 S.E.2d 145 (2007), cert. dismissed, No. S08C0770, 2008 Ga. LEXIS 499 (Ga. 2008).   Reconstruction of lost transcript proper.    - In a mother and son trial for the murder of the son's wife, after the first day's transcript was lost, the trial court properly complied with O.C.G.A. § 5-6-41(f) and (g) in reconstructing the transcript with testimony from all five original witnesses, the Clerk of Court, and the only living prosecutor. Defendants could not refuse to participate in the reconstruction and then complain that the reconstruction was inadequate. Bamberg v. State, 308 Ga. 340, 839 S.E.2d 640 (2020).    Cited in Burnett v. State, 87 Ga. 622, 13 S.E. 552 (1891); Walden v. Nichols, 201 Ga. 568, 40 S.E.2d 644 (1946); Sawyer v. State, 112 Ga. App. 885, 147 S.E.2d 60 (1966); Aiken v. State, 226 Ga. 840, 178 S.E.2d 202 (1970); Clay v. State, 122 Ga. App. 677, 178 S.E.2d 331 (1970); Robinson v. J.C. Penney Co., 124 Ga. App. 221, 183 S.E.2d 782 (1971); Munsford v. State, 129 Ga. App. 547, 199 S.E.2d 843 (1973); Jackson v. State, 130 Ga. App. 581, 203 S.E.2d 923 (1974); Lyle v. State, 131 Ga. App. 8, 205 S.E.2d 126 (1974); M.K.H. v. State, 135 Ga. App. 565, 218 S.E.2d 284 (1975); Allen v. State, 235 Ga. 709, 221 S.E.2d 405 (1975); Ellis v. State, 137 Ga. App. 834, 224 S.E.2d 799 (1976); Godwin v. State, 138 Ga. App. 131, 225 S.E.2d 723 (1976); Newell v. State, 237 Ga. 488, 228 S.E.2d 873 (1976); Newman v. State, 239 Ga. 329, 236 S.E.2d 673 (1977); Lynch v. State, 143 Ga. App. 188, 238 S.E.2d 122 (1977); Brown v. State, 242 Ga. 602, 250 S.E.2d 491 (1978); Jackson v. State, 155 Ga. App. 386, 271 S.E.2d 32 (1980); Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980); Williams v. State, 217 Ga. App. 636, 458 S.E.2d 671 (1995); Hampton v. State, 272 Ga. 284, 527 S.E.2d 872 (2000); Woolums v. State, 247 Ga. App. 306, 540 S.E.2d 655 (2000); Countryman v. State, 355 Ga. App. 573, 845 S.E.2d 312 (2020).   OPINIONS OF THE ATTORNEY GENERAL   Duties and compensation of court reporter.    - Based upon a reading of Ga. L. 1965, p. 18, § 10 and former Code 1933, § 27-2401 (see O.C.G.A. §§ 5-6-41 and17-8-5), in a felony trial resulting in conviction the court reporter was under a duty to transcribe the testimony and proceedings, except for the argument of counsel, and to file the original and one copy with the clerk of the convicting trial court. The compensation of the court reporter for the filing of this original and one copy was either a charge against the public funds or included within the reporter's salary, as the individual case may be. 1968 Op. Att'y Gen. No. 68-513.   Custody of notes and recordings taken by court reporter.   - Since this section imposed on the judge presiding at a felony trial an absolute duty to have the testimony taken down, notes and recordings taken by a court reporter in felony cases remain in the judge's custody, but subject to control by the court. 1978 Op. Att'y Gen. No. U78-1.   Appellant requesting that transcript be filed on appeal responsible for court reporter fees.   - When appellant requests that a transcript be filed as part of the record on appeal in a nonindigent criminal case, appellant is responsible for payment of court reporter fees for preparation of the transcript. 1981 Op. Att'y Gen. No. U81-22.   When county must pay for transcripts.    - O.C.G.A. § 17-8-5 makes it the duty of the court, or county officials, to require that testimony be taken down and that a written record be filed with the clerk, but does not require that all transcripts be paid for by the county. If no appeal was filed by the defendant, then the county would be the requesting party responsible for preparation of transcript and for payment of court reporter fees under that section. 1981 Op. Att'y Gen. No. U81-22.   RESEARCH REFERENCES   ALR.   - Use in state court by counsel or party of tape recorder or other electronic device to make transcript of criminal trial proceedings, 67 A.L.R.3d 1013.   Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049.   Failure or refusal of state court judge to have record made of bench conference with counsel in criminal proceeding, 31 A.L.R.5th 704.