Smith v. State

Decision Date26 August 1981
Docket NumberNo. 95,95
Citation433 A.2d 1143,291 Md. 125
PartiesJack James SMITH v. STATE of Maryland.
CourtMaryland Court of Appeals

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.


COLE, Judge.

We granted review in this case to decide whether appellant was effectively denied his right of appeal because portions of two state's witnesses' testimony were not preserved due to technical problems with the trial court's tape recording system. The appellant, Jack James Smith, was convicted of first degree murder and two related handgun offenses in the Circuit Court for Anne Arundel County. The Court of Special Appeals thereafter affirmed his conviction in an unreported per curiam opinion, Jack James Smith v. State of Maryland, No. 1603, September Term, 1979, filed July 18, 1980, which held the existent record sufficient, under the facts of the case, to permit adequate appellate review. For the reasons set forth herein, we affirm.

The parties have submitted an agreed statement of facts, from which we quote:

The body of Ralph C. Verrette, a friend of Appellant, was found on a private road with two gunshot wounds to the head. In the course of the police investigation Appellant consented to searches of his car and his apartment. Blood stains were found in his automobile and on his clothes. There were no witnesses to the incident and the gun was never recovered.

While testifying at trial and in a statement to police, Appellant revealed that on the evening of Verrette's death he was looking for his friend to tell him that Appellant's landlord was forbidding Verrette to share Appellant's apartment. The two were inebriated when they met. They began driving around in Appellant's car and ended up on the private road where Verrette surprised Appellant by removing a gun from his waistband and waving it about. Being familiar with Verrette's erratic and often violent behavior, Appellant tried to take the gun away and in the course of the struggle Verrette was shot.

During presentation of the State's case the tape machine used to record the trial malfunctioned on two occasions. As a result there is no record of some of the direct examination and a portion of the cross-examination of Tony Guinta, who was Appellant's landlord and a former employer of Verrette. Also missing are the entire direct examination and a portion of the cross-examination of Dennis Fratantuono, the owner of a bar frequented by both men. Fratantuono had seen and spoken with Appellant on the day of Verrette's death. What is known of their testimony comes from the portions that were transcribed and affidavits of the prosecutor and the trial judge. Appellant's trial counsel had no independent recollection of their testimony. No one offered any recollection of objections and rulings made.

Guinta testified as to his instructions to Appellant forbidding him to share the apartment with Verrette. Appellant told him he would find Verrette and inform him accordingly. Based on the defense objection that the State was attempting to impeach its own witness, the court would not allow the State to elicit a prior inconsistent statement uttered by Guinta. The record of how defense counsel was able to use this statement does not exist. Guinta also testified as to three threatening statements Appellant made on the day of Verrette's death. Appellant had no recollection of these threats. On cross-examination Guinta was discussing Verrette's frequently strange and violent conduct when the tape machine ceased operating again.

It resumed operation at the close of Fratantuono's cross-examination. On re-direct he indicated that he believed Appellant was going to kill Verrette. He also saw Appellant remove a lug wrench from his car. When Appellant testified, he explained that the wrench was for his own protection. Fratantuono had told him that Verrette might be in some woods drinking but that Appellant should be careful about going into them to find Verrette since people had been mugged there. Appellant did not deny saying he would kill Verrette but indicated that if he said it, it was just barroom talk typical of someone who was intoxicated.

In the closing arguments presented by the prosecution and the defense, both attorneys commented upon the testimony of Tony Guinta and Dennis Fratantuono. Each mentioned portions of the testimony of those witnesses concerning the threats by Appellant against the victim's life, uttered on the day of the killing, and prior instances of strange and violent behavior of the victim.

At the outset we emphasize that appellant has never made application to the trial judge to correct the record under Maryland Rules 826(c) or 1026(c), which are substantially similar. Rule 826(c) provides:

It shall not be necessary for the record on appeal to be approved by the lower court except as provided in sections c2 or g of this Rule, but if any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by the lower court and the record made to conform to the truth.

Our inquiry focuses upon whether the result in the instant case should parallel that of Kennedy v. State, 289 Md. 54, 421 A.2d 1376 (1980). In Kennedy, we held, inter alia, that where a court reporter had destroyed stenographic notes of the hearing at which the defendant waived the right to a jury trial, but where no attempt to reconstruct the record was made by his attorney, either by proffer or by application to the trial judge per Rule 826(c) or 1026(c), a reversal was not warranted on the ground that there may have been a violation of Rule 735(d) (requiring that it be determined on the record that a defendant's waiver of jury trial is knowingly and intelligently made). Cf. In re: Dewayne H., 290 Md. ---, 430 A.2d 76 (1981); Michigan Nat. Bank v. Racine, 234 Md. 250, 198 A.2d 898 (1964). The instant case, however, differs in several respects.

First, we are not confronted here with pre-trial proceedings governed by Rule 735(d) but with portions of testimony not recorded at trial as required by Rule 1224. This Rule, which became effective July 1, 1974, requires that a verbatim recordation be made, "(i)n criminal cases, other than appeals to the District Court, (of) the entire trial on the merits held in open court, including open statements and closing arguments of counsel." Md. Rule 1224(d)(1)(a). Secondly, in the instant case, appellant's argument is not based upon the assertion of specific error; rather he argues broadly that the unavailability of a complete transcript of proceedings, coupled with the assertedly incomplete memory of his trial counsel, in and of themselves are such as to deprive appellant of meaningful appellate review. Cf. Michigan Nat. Bank v. Racine, supra.

Thirdly, we must consider the effect of certain affidavits prepared by the prosecutor, the trial judge and the defendant's trial counsel, a public defender, all of which were made part of the record on appeal to the Court of Special Appeals pursuant to uncontested motions made under Rule 1027(d). Two affidavits, one for each witness, were prepared by the State prosecutor at the request of the State and were replete with testimonial detail, but made no mention of any objections or rulings which may or may not have been made. The affidavit filed by the trial judge, also at the state's request, was consistent with those signed by the prosecutor and consisted of the following statement:

At the request of the State, I have reviewed my notes which I took during the trial of State v. Jack Smith.

Tony Guinta, a witness called by the State, testified that the accused was looking for Verrette, the victim, and that the accused would "... blow him away."

Dennis Fratantuono, a witness called by the State, testified he heard the accused say that he was going to kill Verrette.

I do not recall if objections were made by the defense to the admissibility of these statements. However, the presence of these statements in my notes indicates that any objections would have been overruled.

The affidavit prepared by the public defender neither substantiated nor conflicted with the information contained in the others, as it stated that he had "no independent recollection" of what should have been contained in the missing portions of the transcript.

We turn first to the impact of Rule 1224. Although it was included in our Rules without an official comment or committee note, we find little difficulty in enunciating what is obviously the purpose of provisions such as that contained in Rule 1224(d)(1)(a): to preserve a correct and precise account of the evidence and rulings at trial, and to assure the ability of courts and of counsel to perform their duties efficiently and completely. Instructive are the findings of United States v. Taylor, 303 F.2d 165, 169 (4th Cir. 1962), with respect to a similar federal rule contained in the Court Reporter Act:

The provisions of (28 U.S.C.A.) § 753(b) are designed to preserve a correct and authentic record of criminal proceedings free from the infirmities of human error and they provide a safeguard to which not only the court but also the defendant is entitled in the preservation of his rights. See Stephens v. United States, 5 Cir., 289 F.2d 308.

Much of the federal law dealing with the availability of transcripts has arisen in cases involving the rights of indigent defendants. E. g., Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963); Draper v. Washington, 372 U.S. 487...

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