Defendant-appellant Marvin Brown charged with burglary appeals seven year sentence as a prior offender after guilt was determined by a jury.
The evidence supports a jury finding that the defendant acting with George Jackson and Joe Morris removed stolen goods from a burglarized store. Both Jackson and Morris were prior felons and testified that they offered a ride to appellant who was waiting for a bus to take him to his mother’s home. Appellant got into the back of a camper section of the vehicle. According to their testimony while defendant was in the camper the truck was stopped in order to remove an acetylene tank that was in the pathway of the vehicle. A man entered the alleyway firing a gun and appellant was shot in the head when he exited the camper.
Defendant’s sole point on appeal is that in closing rebuttal argument the prosecutor alluded to defendant and his witnesses as professional criminals and the court erred in failing to grant defendant’s motion for a mistrial.
By reason of the incapacity of the original court reporter the defendant-appellant, the state and this court have been handicapped in reviewing the point on appeal. Another court reporter was found who was able to transcribe the original court reporter’s notes except that the notes for the closing portion of the prosecuting attorney’s summation to the jury were lost.
At the request of this court trial counsel for both parties submitted affidavits in an attempt to reconstruct at least the substance of the state’s closing argument. See Rule 30.04(h). The parties stipulated that affidavits of trial counsel, together with the trial transcript that was available and the legal file would constitute the record for purposes of this appeal. Unfortunately, the affidavits are contradictory and do not serve to solve the dispute as to the content of the prosecuting attorney’s closing argument. The affidavit for the trial attorney for the state was, in relevant part as follows,
Having reviewed the partial transcript of the closing arguments of counsel and my notes, I have a very limited recollection of the rebuttal portion of my closing argument and for the most part I am unable to make a detailed reconstruction thereof. However, concerning appellant’s point on appeal wherein he alleges error in the fact that I argued the prior convictions of his witnesses who testified at trial, I would like to refer the court to pages 233 and 234 of the trial transcript. I am sure that my rebuttal arguments was limited to the context in which these witnesses prior’s are referred to on those pages.
The affidavit of defendant’s trial counsel in relevant part states,
Since the trial took place almost two years ago, I cannot give you a verbatim account of [name of state’s attorney] closing arguments. I do, however, recall the following: she made numerous references in her closing argument about Brown being a ‘professional criminal’; she indicated, that while Brown did not take the stand, that he had prior felony convictions for burglary and stealing, and implied that that fact might be adequate to convict him. I do not recall whether her statements were inferential or whether they were outright statements.
I remember that throughout the latter portion of her argument, she emphasized that the defendant was a professional criminal and that he may have burglarized them (the jury) or their neighbors. I recall that there were many other statements that I considered objectionable.
Because we do not have the rebuttal portion of the state’s closing argument we do not have a record of objections nor of defendant’s request for mistrial. However, defendant’s motion for new trial indicates a request for a mistrial and its denial. It also indicates that we are reviewing for preserved error. The motion for new trial contends in separate paragraphs that the prosecutor made reference to prior convictions of two co-defendants who took the *163stand and referred to defendant as a professional killer.
On appeal defendant urges that the state’s closing argument, including that part which cannot be reproduced, “... in that it urged conviction because appellant and his witnesses were bad characters and more than likely guilty on account of their bad character and past records.” In the alternative defendant requests a new trial, “because the issue preserved for review cannot be decided on the available record, the court reporter’s notes being lost through no fault of appellant and the affidavits of the trial attorneys being insufficiently specific to apprise the court of the essential facts.”
Our Supreme Court said in Jackson v. State, 514 S.W.2d 532 (Mo.1974) that “A losing party is entitled to appellate review based upon a full, fair and complete transcript on appeal.” Id. at 533. If the transcript prepared is defective or omits material matters it is appellant’s duty to take steps to supply the omission or cure the defect. Appellants are required to exercise due diligence in this regard, and an appellant will not be granted a new trial on account of the absence of a transcript (or failure to file a full and complete transcript) if guilty of laches or negligence, or if appellant fails to establish prejudice as a result of inability to present a complete record. Id. at 533. We have followed that statement of the law. State v. Stewart, 636 S.W.2d 345, 347 (Mo.App.1982). In the present case the missing portion of the transcript is unavailable through no fault of appellant. The sole cause is that the original court reporter’s notes are lost and there is no adequate way to reproduce the argument. There is no contention that appellant has failed to exercise due diligence nor that he is guilty of either laches or negligence.
Our Supreme Court dealt with a case involving the death of a court reporter before preparation of a full transcript. Richeson v. Hunziker, 349 S.W.2d 50 (Mo.1961). The court there attempted to construct an adequate transcript by an alternative method, permitting counsel to file a narrative statement in lieu of transcript. This counsel attempted to do from trial notes. The court concluded that it was utterly impossible to fairly or accurately evaluate appellant’s points on appeal on their merits because of the confused state of the record upon which the cause had been submitted. Richeson, 349 S.W.2d 55-56. We are prepared to apply the same reasoning to this appeal but must first determine whether the point on appeal, if supported by an adequate record, would constitute a sufficient basis to support the grant of a mistrial on the contention of preserved error.
Tragically we are confronted with an issue of reversible error in closing argument if the prosecuting attorney argued that Brown had prior felony convictions for burglary and stealing. Defendant’s trial counsel, by affidavit, affirms such argument. The trial attorney for the state with an understandable “limited recollection” has not denied such argument. The argument if made would warrant a new trial as preserved error. State v. Mobley, 369 S.W.2d 576, 580 (Mo.1963); State v. Stockbridge, 549 S.W.2d 648, 651 (Mo.App.1977).
We reverse and remand for a new trial.
KELLY, J., concurs. CLEMENS, Senior Judge, dissents in separate opinion.