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People v. Ray

March 1, 2012

THE PEOPLE OF THE STATE OF COLORADO, PLAINTIFF-APPELLEE,
v.
ROBERT KEITH RAY, DEFENDANT-APPELLANT.



Arapahoe County District Court No. 04CR1805 Honorable Michael J. Spear, Judge

The opinion of the court was delivered by: Judge Russel

MOTION GRANTED IN PART AND DENIED IN PART

Taubman and Hawthorne, JJ., concur

¶1 Five years ago, Robert Keith Ray was sentenced to prison for attempted murder, first degree assault, and accessory to murder.*fn1 He promptly appealed, but he has yet to file his opening brief.

¶2 After lodging his appeal, Ray obtained eight extensions of time to file the record. Then, after the record was transmitted, he filed five separate motions to supplement or complete the record. Those motions were all granted (thus delaying the briefing schedule).

¶3 In 2011, Ray requested a limited remand to settle and supplement the record. That motion too was granted, and the case was returned to the trial court. The court ably discharged its duties: it defined the scope of the remand order; it received evidence and argument about the items that Ray proposed to include in the record; and it issued written findings and conclusions.

¶4 Ray then filed a motion in this court seeking clarification and further direction in the remand proceedings. After reviewing Ray's motion, the People's response, and the trial court's findings, we ordered the parties to appear for oral argument.

¶5 We now rule on Ray's motion. We first provide guidance about the process of supplementing and correcting the record. We then address a list of items that Ray would like to include in the record. We decide that some of these items should be included, while others should not. We conclude by discharging the limited remand and recertifying this appeal.

I. Supplementing and Correcting the Record

¶6 If a party believes that the appellate record is incomplete or inaccurate, it must correct the deficiency under C.A.R. 10.*fn2 Two subsections govern the process.

A. C.A.R. 10(e)

¶7 Rule 10(e) allows the parties to supplement the record with "anything material" (i.e., anything relevant to the issues on appeal) that was omitted by error or accident. It also allows the parties to correct material misstatements:

Correction or Modification of the Record.

If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

C.A.R. 10(e).

ΒΆ8 The rule contemplates quick, direct action to cure omissions and misstatements. Under the rule, the parties and the trial court may act without first obtaining a limited remand. See C.A.R. 10(e) ("[T]he trial court, either before or after the record is transmitted to the appellate court . . . may direct that the omission or misstatement be corrected . . . ."); see also Molitor v. Anderson, 795 P.2d 266, 268 (Colo. 1990) ("[T]rial courts by necessity retain ...


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