                  Cite as: 586 U. S. ____ (2018)            1

                  Statement of SOTOMAYOR, J.

SUPREME COURT OF THE UNITED STATES
            TAWUAN TOWNES v. ALABAMA

  ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

             CRIMINAL APPEALS OF ALABAMA


             No. 17–7894. Decided October 29, 2018


   The petition for a writ of certiorari is denied.
   Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
   Today the Court denies review of Tawuan Townes’
capital murder conviction, the constitutionality of which
hinges on whether the trial court instructed jurors that
they “may” infer his intent to kill a victim or that they
“must” do so. The former instruction is constitutional; the
latter is not. There is no way to know for sure which
instruction the trial court gave. Two court reporters certi-
fied two conflicting transcripts, and the trial court no
longer has the original recording. Because Townes has not
shown that the procedures below amount to constitutional
error, I must vote to deny his petition for certiorari. I
write separately because the trial court’s failure to pre-
serve the original recording gives cause for deep concern.
   Petitioner Tawuan Townes was convicted of capital
murder committed in the course of a burglary and sen-
tenced to death. At trial, the crucial question for the jury
was whether Townes possessed the requisite intent for a
capital murder conviction. According to the trial tran-
script prepared and certified by the court reporter after
trial, the trial court instructed the jury on how to make
that decision as follows:
    “ ‘A specific intent to kill is an essential ingredient of
    capital murder as charged in this indictment, and
    may be inferred from the character of an assault, the
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                  Statement of SOTOMAYOR, J.

    use of a deadly weapon, or other attendant circum-
    stances. Such intent must be inferred if the act was
    done deliberately and death was reasonably to be ap-
    prehended or expected as a natural and probable con-
    sequence of the act.’ ” No. CR–10–1892 (Ala. Crim.
    App., June 13, 2014), App. to Pet. for Cert. A–5 (em-
    phasis added), withdrawn, 2015 WL 9263802, ___ So.
    3d ___ (Ala. Crim. App., Dec. 18, 2015).
  Townes appealed, arguing that the trial court’s jury
instructions violated his constitutional right to due pro-
cess. The Alabama Court of Criminal Appeals agreed that
the jury instruction, as reproduced above, plainly violated
his due process rights. Instructing the jury that it “must”
infer Townes’ specific intent removed the issue of intent
from the jury’s consideration and relieved the State of its
burden to prove each element of the crime beyond a rea-
sonable doubt. See Sandstrom v. Montana, 442 U. S. 510,
523 (1979). Such presumptions, this Court has held,
violate the Due Process Clause. Francis v. Franklin, 471
U. S. 307, 325 (1985).
  Indeed, Townes’ intent was the only issue for the jury to
resolve at trial. He was charged with shooting and killing
Christopher Woods during a burglary. Townes admitted
that he and an acquaintance had planned to rob Woods.
But Townes adamantly disclaimed any intent to kill
Woods, insisting that he shot at Woods only to scare him.
At trial, Townes’ counsel focused the defense on this dis-
tinction. Under state law, if the jury found that Townes
lacked specific intent to kill Woods, it could find Townes
guilty of only felony murder. But if the jury found that
Townes intended to kill Woods, it could convict Townes of
capital murder, making him eligible to receive a death
sentence. Because the trial court’s instructions took that
pivotal question away from the jury, the Court of Criminal
Appeals reversed Townes’ conviction.
                     Cite as: 586 U. S. ____ (2018)                    3

                      Statement of SOTOMAYOR, J.

  After the reversal, however, the trial court judge filed a
“supplemental record” with the appellate court asserting
that the certified trial transcript—or rather, a single word
of that transcript—had been mistranscribed. The trial
court judge insisted that he had properly instructed the
jury that it “may,” rather than “must,” infer specific intent
and that the audio recording of Townes’ trial confirmed as
much. (The government, notably, had not contested the
accuracy of the transcript.)
  Upon receiving the trial court’s sua sponte filing, the
Court of Criminal Appeals, citing Alabama law, remanded
the case and directed the trial court to appoint a new court
reporter to listen to the audio recording and retranscribe
the trial court proceedings.1 The second court reporter
submitted a new 56-page transcript. It differed from the
original transcript by exactly one word: The new tran-
script said “may” where the original had said “must.”2
  On the basis of the new transcript, the Court of Crimi-
nal Appeals withdrew its reversal and affirmed Townes’
conviction and death sentence. The court explained that,
according to the new transcript—which was now the offi-
cial record—the trial judge properly instructed the jury.
——————
  1 Alabama Rule of Appellate Procedure 10(g) (1991) provides: “The

appellate court may, on motion of a party or on its own initiative,
order that a supplemental or corrected record be certified and trans-
mitted to the appellate court if necessary to correct an omission or
misstatement.”
  2 This was not the first time that the same trial court judge sought to

correct a transcript while a case was pending review. In Hammonds v.
Commissioner, Ala. Dept. of Corrections, 712 Fed. Appx. 841, 847–848
(2017), the Eleventh Circuit rejected the State’s attempt to amend the
habeas record with a corrected transcript filed by a court reporter at
the request of the same trial judge who presided over Townes’ trial.
The court reporter—the same one who prepared the second transcript
in Townes’ case—stated that she had reviewed her notes and the
recording of the defendant’s trial and concluded that the judge had said
“inference” instead of “innocence,” curing an allegedly erroneous in-
struction that the defendant challenged on collateral review. Ibid.
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                  Statement of SOTOMAYOR, J.

There is no indication that the Court of Criminal Appeals
itself reviewed the audio recording of the instructions.
   Townes filed a petition for writ of certiorari. This Court
called for the record and specifically requested that the
trial court provide a copy of the audio recording. The trial
court informed this Court’s Clerk’s Office that the record-
ing no longer exists.
   Without the recording, we cannot know what the judge
actually said at trial. The second transcript is now the
official record of the trial court proceedings, on which this
Court must rely in evaluating Townes’ challenge to his
conviction. On that record, I am unable to conclude that
Townes’ conviction is unconstitutional.
   But the absence of demonstrable constitutional error
makes the doubts raised by the trial court’s unusual han-
dling of this matter no less troubling. In a matter of life
and death, hinging on a single disputed word, all should
take great care to protect the reviewing courts’ opportu-
nity to learn what was said to the jury before Townes was
convicted of capital murder and sentenced to death. Yet
the trial court, after its unilateral intervention in Townes’
appeal resulted in dueling transcripts, failed to preserve
the recording at issue—despite the fact that Townes’ case
was still pending direct review, and, consequently, his
conviction was not yet final. As a result, the potential for
this Court’s full review of Townes’ conviction has been
frustrated.
   The Constitution guarantees certain procedural protec-
tions when the government seeks to prove that a person
should pay irreparably for a crime. A reliable, credible
record is essential to ensure that a reviewing court—not to
mention the defendant and the public at large—can say
with confidence whether those fundamental rights have
been respected. Parker v. Dugger, 498 U. S. 308, 321
(1991) (“It cannot be gainsaid that meaningful appellate
review requires that the appellate court consider the
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                  Statement of SOTOMAYOR, J.

defendant’s actual record”). By fostering uncertainty
about the result here, the trial court’s actions in this case
erode that confidence. That gives me—and should give us
all—great pause.
