01-2721 State v. Parker

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“A defendant may not sit back while evidence is available and then argue for a new trial on the grounds that evidence is no longer available to him or her.”

Further, according to trial defense counsel’s recollection, the contents of the tape were consistent with the testimony presented at trial and the tape was not “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

Although defendant argues that the principles enunciated in State v. Perry, 136 Wis.2d 92 (1987), a missing transcript case, apply to this case, we disagree.

“Perry’s concern is the protection of a defendant’s right to a meaningful appeal by assuring a defendant’s access to a full and complete transcript of the trial. Id. Here, however, we address the destruction of an audiotape that was provided to the defendant prior to but never utilized at trial. The import of such a tape and the import of a trial transcript cannot be equated.”

Judgment affirmed.

Dist II, Kenosha County, Kluka, J., Snyder, J.

Attorneys:

For Appellant: Christopher William Rose, Kenosha

For Respondent: David J. Becker, Madison; Robert J. Jambois, Kenosha