Rule 3.11 Supplementation of Record

A. After the Petition in Error has been timely filed in this Court, and upon notice from either party or upon this Court's own motion, the majority of the Court may, within its discretion, direct a supplementation of the record, when necessary, for a determination of any issue; or, when necessary, may direct the trial court to conduct an evidentiary hearing on the issue.

B. Supplementation of the record upon request of a party will be allowed only in the following instances:

(1) When it appears from the record that an item admitted during proceedings in the trial court and timely designated to be included in the record has been excluded, supplementation of the record will be allowed on motion of either party; or

(2) When a party files a motion to either amend the designation of record or counter designate a part of the record to include a transcript of any proceeding conducted by the trial court during the course of the trial court proceedings in this case or any item admitted as evidence by the trial court but not included in the original designation of record, the court may allow the amendment and direct the supplementation of the record with the item designated; or when the following special requirements are met; See also Rule 2.5(B).

(3) The Record on appeal is formulated only by matters which have been admitted during proceedings in the trial court. A request to supplement the record on appeal with matters not presented to and included as a part of the trial court record is only available under the following two circumstances:

(a) Matters timely and properly admitted as a part of a motion for a new trial as set out in Sections 952 and 953 of Title 22 and Rule 2.1 of the Rules of the Court of Criminal Appeals; or

(b) When an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial, and a proposition of error alleging ineffective assistance of trial counsel is raised in the brief-in-chief of appellant, appellate counsel may submit an application for an evidentiary hearing, together with affidavits setting out those items alleged to constitute ineffective assistance of trial counsel. The proposition of error relating to ineffective assistance of trial counsel can be predicated on either allegations arising from the record or outside the record or a combination thereof. See Dewberry v. State, 1998 OK CR 10, 954 P.2d 774 . This Court will utilize the following procedure in adjudicating applications regarding ineffective assistance of trial counsel based on evidence not in the record:

(i) In order to rebut the strong presumptions of regularity of trial proceedings and competency of trial counsel, the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.

(ii) If this Court determines such a strong possibility exists, it shall remand the matter to the trial court for an evidentiary hearing, utilizing the adversarial process, and direct the trial court to make findings of fact and conclusions of law solely on the issues and evidence raised in the application. The order directing an evidentiary hearing shall set out the scope of the hearing. The trial court shall have discretion as to the number of witnesses who can be called in support or opposition to the issues and evidence identified by this Court as being within the scope of the evidentiary hearing. The order shall also set out the time requirements for the completion of the record, to inclue the court's findings and supplemental briefing, if different from the time requests set out in this Rule.

(iii) Upon remand, the trial court shall conduct an evidentiary hearing within thirty (30) days from the date of remand. The court reporter shall complete and file an original and two (2) certified copies of the transcripts with exhibits attached (original and three (3) certified copies in capital cases) within twenty (20) days of the completion of the evidentiary hearing. The trial court shall then make written findings of fact and conclusions of law to be submitted to this Court within twenty (20) days of the filing of the transcripts in the District Court. The findings of fact and conclusions of law shall determine the availability of the evidence or witness, the effect of the evidence or witness on the trial court proceedings; whether the failure to use a witness or item of evidence was trial strategy, and if the evidence or witness was cumulative or would have impacted the verdict rendered.

(iv) The findings of fact and conclusions of law of the trial court shall be given strong deference by this Court in determining the proposition raised by appellate counsel; however, this Court shall determine the ultimate issue whether trial counsel was ineffective.

(v) The clerk of the District Court shall transmit the record to the Clerk of this Court, and Appellant's attorney, within five (5) days of the filing to the trial court's written findings of fact and conclusions of law. The Clerk of this Court shall upon receipt, then deliver the copies of the record and transcripts to the Attorney General or attorney representing the State.

(vi) A supplemental brief may be filed by either party within twenty (20) days after the trial court's written findings and conclusions are filed in this Court. A supplemental brief shall be limited to ten (10) pages and shall address only issues concerning the record supplementation. A request to exceed the page limitation must be filed in writing setting forth a specific basis for need.

(4) A request to supplement under this rule will not be granted after the filing of the requesting party's brief-in-chief.

C. A motion to supplement, tendered for filing, does not constitute acceptance for consideration as a proper part of the record of the pending appeal. Approval to supplement shall only be granted upon a written order approved by a majority of the members of the Court.

D. Any request to supplement the record must be filed by counsel in accordance with Rule 3.4(E).

E. A copy of the Motion to Supplement shall be served on the opposing party, or counsel, who shall have fifteen (15) days to file an objection.