State v. Shepley

We are not confronted with reconstructing a day’s testimony such as in Dupris, cited in the majority opinion.

We are reviewing the reconstruction of closing argument.1 And more specifically, a highly damaging and improper statement of the prosecutor in closing argument.

The statement is as follows: “Even defendant’s attorney doesn’t believe the defendant.” An affidavit, to reconstruct the record, to establish that this statement was made was prepared by defendant’s trial counsel. Under Dupris, this was an alternative. Said affidavit was not refuted. Under Sioux Falls v. Johnson, cited in the…