# State v. Koenig > Missouri Court of Appeals · September 29, 2003 · 115 S.W.3d 408 URL: https://www.frixlaw.com/law-library/cases/9691463 ## Case - **Full name:** STATE of Missouri, Plaintiff-Respondent, v. S.D. Phillip KOENIG, Defendant-Appellant - **Court:** Missouri Court of Appeals - **Decided:** September 29, 2003 - **Citations:** 115 S.W.3d 408; 2003 Mo. App. LEXIS 1541; 2003 WL 22228664 - **Precedential status:** Published - **Opinion:** Concurrence by Parrish - **Judges:** Kenneth W. Shrum - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9691463 ## How later opinions describe it (automated extraction) - noting that “ ‘the issue comes down to whether the trial court finds the prosecutor’s [gender]-neutral explanations to be credible.’ ” ## Opinion text JOHN E. PARRISH, J., concurring. I concur in the result reached with respect to Point I. I concur in all other parts of the opinion but write separately with respect to an issue related to Point IV that, in my opinion, warrants comment. State v. Parker, 836 S.W.2d 930, 937 (Mo. banc), cert. denied, 506 U.S. 1014 , 113 S.Ct. 636 , 121 L.Ed.2d 566 (1992), observed that the release of unselected members of the venire, together with problems and difficulties created thereby, governs the timeliness of a Batson-type motion. Parker explained that if the state is denied a peremptory strike by reason of a Bat-son-type motion, it may still exercise fully peremptory strikes it would otherwise be denied by properly applying them to other venirepersons so long as the venire has not yet been discharged. 836 S.W.2d at 936-37 . The majority opinion explains the procedure required to exercise a Batson-type motion — a three-part procedure. It suggests that this procedure was not completed until after the trial of this case, the completion of the process occurring at defendant’s argument of his motion for new trial. In my opinion, the trial court abused its discretion in permitting defendant to take further steps to comply with the three-part procedure he failed to complete before the venire had been discharged. 1 I would hold that defendant *418 failed to follow the procedure required to sustain a Batson-type motion by not completing the required procedure prior to when the venire was discharged; that defendant, therefore, waived the objection he posed to the state’s exercise of its peremptory challenges. For that reason, I concur in the result reached as to Point I. I concur in the majority opinion in all other respects. I write separately, however, with respect to Point IV out of a concern peripheral to the denial of that claim of error. The transcript on appeal was prepared from a magnetic tape recording. As this case was tried by an associate circuit judge who, unlike circuit judges, are not provided official court reporters, the record of trial proceedings was made by means other than by court reporter. Although 141 “inaudibles” were noted in the trial transcript, fortunately they did not dispel the accuracy of the record with respect to issues that would require a new trial. Nevertheless, transcripts that omit that amount of the record are not acceptable. Magnetic tape recording devices cannot make known an inability to record sounds they do not register. Court reporters can make known an inability to hear testimony and other matters so that statements that would otherwise be “inaudible” may be restated. The 141 “inaudibles” in this record suggest that there are types of cases in which magnetic tape recording devices should not be used. Many jury trials, due to the number of participants and the manner in which testimony may be presented, do not lend themselves to a record made by machine that cannot make known the shortcomings of lawyers or witnesses (or even judges) who may not speak in a manner that can be recorded. Fortunately, the shortcomings identified in the majority opinion do not require a new trial in this case. Future cases with such omissions may not be so fortunate. The type of record used at trials should be adequate for the circumstances of the case being tried. . Absent a need to present testimony directed to issues raised in a motion for new trial, verbatim record of that hearing is not required. The procedure approved by the majority opinion would encourage trial courts to make records of arguments presented at hear-mgs on motions for new trial. This should not be necessary. Issues of law are what are decided in addressing motions for new trial. Any fact basis necessary to resolve those issues should be gleaned from the trial record, *418 not a further transcription of arguments made days and weeks after it was completed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9691463. Public record. Not legal advice.