State v. Heald

• Decision Date: 10 July 1974
• Citation: 322 A.2d 68
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Augustus F. HEALD.

Page 68

322 A.2d 68

STATE of Maine v. Augustus F. HEALD.

Supreme Judicial Court of Maine.

July 10, 1974.

Foahd J. Saliem, Asst. Atty. Gen., Augusta, for State.

Logan & Kurr, by John F. Logan, Bangor, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

On October 22, 1970 a Penobscot County jury found defendant, Augustus F. Heald, guilty of having been an accessory before the fact to a robbery. Pending imposition of sentence, defendant was committed to the Penobscot County Jail from which on October 23, or 24, 1970 he 'escaped.' ¹ Defendant was subsequently apprehended and in January of 1971 was indicted by the Penobscot County Grand Jury for the crime of 'escape from the Penobscot County Jail' in violation of 17 M.R.S.A. § 1405. ² The indictment read:

'That on or about the 24th day of October, 1970, in the County of Penobscot, and State of Maine, AUGUSTUS F. HEALD, then and there lawfully detained in the Penobscot County Jail, the said AUGUSTUS F. HEALD having been found guilty of the crime of being an accessory before the fact to robbery by a jury at the September Term of the Penobscot County Superior Court on October 22, 1970, and Harold Rubin, Presiding Justice of the September Term of the Penobscot County Superior Court, having continued the matter day to day for sentencing and having set bail at Ten Thousand Dollars ($10,000) with two sureties, and AUGUSTUS F. HEALD having been committed on October 22, 1970, to the Penobscot County Jail for failure to provide bail as established by the said Harold Rubin, did then and there willfully, unlawfully and feloniously from and out of said jail escape and go.'

Defendant pleaded not guilty and waived trial by jury. In July of 1971, after a hearing before a Justice of the Superior Court, defendant was adjudicated 'guilty' and sentenced to one and one-half to five years in the Maine State Prison. Defendant appealed from the judgment of conviction.

While defendant's appeal was in process Richard W. Cox, the Official Court Reporter who had 'taken' defendant's trial, died before he had made a transcript of the proceedings. The prosecutor learned that another Official Court Reporter, Preston B. Rand, was able to read a set of papers purporting to be Mr. Cox's stenographic notes of defendant's trial. Accordingly, pursuant to 4 M.R.S.A. § 654, ³ the State moved before the Justice of the Superior Court who had tried defendant that said Justice order Mr. Rand to prepare the transcript of the 'evidence' to be utilized in the preparation of the appeal record. Defendant opposed the State's motion and, himself relying on 4 M.R.S.A. § 654, moved for a new trial.

At the hearing on the motions it was disclosed that Mr. Rand had already completed a transcript of the stenographic notes in question. No direct evidence was produced to identify the stenographic notes as the notes made by Mr. Cox of defendant's trial. However, the presiding Justice had made some notes of his own while he was presiding over the trial. Comparing his notes, and his recollection as refreshed by them, with the cover sheet and contents of the transcript prepared by Mr. Rand, the presiding Justice found that he was able to authenticate Mr. Rand's transcript. He, therefore, made findings of fact that:

(1)

'the tapes purport(ing) to be the stenotape notes of the Court Reporter present at the hearing, (Mr. Cox) . . . are . . . the stenotapes prepared during the course of trial';

and (2)

'. . . the transcript (made by Mr. Rand is) . . . an accurate record . . ..'

Having made these findings, the presiding Justice then ordered that the transcript prepared by Mr. Rand serve as the transcript of the proceedings to be utilized to prepare the record for defendant's appeal; and he denied defendant's motion for a new trial.

I.

Defendant's first contention on appeal attacks the ruling made by the presiding Justice concerning the transcript prepared by Mr. Rand and the Justice's denial to defendant of a new trial.

Defendant contends: (1) since it is beyond dispute that Mr. Cox had died before he could append his personal certificate that

'the report furnished by him is a correct transcript of his stenographic notes of the testimony and proceedings . . .' (emphasis supplied)

of defendant's trial for 'escape', as this subject is dealt with in 4 M.R.S.A. § 653, ⁴ the presiding justice lacked authority under 4 M.R.S.A. § 654 to order that the transcript prepared by Mr. Rand be utilized in the preparation of the record on appeal (2), therefore, the presiding Justice should have decided that under 4 M.R.S.A. § 654

'. . . a transcript of the evidence taken by the Official Court Reporter cannot be obtained because of his death . . .';

and (3) since it is here beyond question that defendant would be prejudiced on appeal by lack of a transcript of the proceedings of his trial, the presiding Justice erroneously denied defendant's motion for a new trial.

Defendant's position is untenable. It misreads the import of 4 M.R.S.A. § 653 and, hence, wrongly interprets 4 M.R.S.A. § 654 to signify that if the Official Court Reporter who made the original stenographic notes of defendant's trial is not alive to append his personal authenticating certificate, ipso facto

'. . . a transcript of the evidence taken by the Official Court Reporter cannot be obtained . . ..'

The text of 4 M.R.S.A. § 653 concerns only that which may be

'. . . a sufficient authentication . . . without the signature of the presiding justice.' (emphasis supplied)

Defendant commits a non-sequitur insofar as he seeks to assign to the authorization in 4 M.R.S.A. § 653 of a sufficient authenticating condition the legal effect of a mandate of an exclusively necessary condition of authenticity.

Defendant is also in error when he suggests that Hills v. Paul, 116 Me. 12, 99 A. 719 (1917) indicates that this Court had interpreted the then counterpart of 4 M.R.S.A. § 653 (P.L.1913, Chapter 103) to make indispensable the personal certification of the Official Court Reporter who had 'taken' the proceeding. In Hills v. Paul this Court was concerned with a particular certificate which happened to be a personal certificate of the Official Court Reporter who had 'taken' the cause at issue. The Court's pronouncement of the inadequacy of the language of the particular certificate then before it, as claimed in the individual instance to constitute a 'sufficient' authentication under the statute, was neither a decision, nor intimation, that the personal certificate of the Official Court Reporter who had 'taken' a given proceeding is a universally required authenticating condition.

As to the text of 4 M.R.S.A. § 654 itself, one of its stated prerequisites of defendant's entitlement to a new trial-that '. . . a transcript . . . cannot be obtained . . .'-is inoperative in the present context. Here, the pragmatic reality is that a transcript can be obtained since it is fully established that another Official Court Reporter is able to read the stenographic notes of the Official Court Reporter who had 'taken' the proceedings at defendant's trial.

We find support for this conclusion in the interpretation officially suggested concerning the scope of Rule 59(f) M.R.C.P. which became effective on September 18, 1961 as an amendment to the Maine Rules of Civil Procedure. Relative to the matter now under discussion, the language of Rule 59(f) is identical to the wording of 4 M.R.S.A. § 654. In the 'Explanation of Amendments' the following statement to Rule 59(f) appears:

'If another court reporter can transcribe the stenographic notes of the deceased or disabled court reporter, a new trial under Rule 59(f) is not available.' 2 F. McK. & W., Maine Civil Practice 2d 57.

We now decide that this correctly states the law for criminal cases under 4 M.R.S.A. § 654.

The presiding Justice was, therefore, correct in conducting an evidentiary proceeding to ascertain whether, notwithstanding the death of Mr. Cox before he had prepared a transcript of his own stenographic notes of defendant's trial, another Official Court Reporter was able to read Mr. Cox's notes and produce from them an unprejudicially accurate transcript of the proceedings in said cause.

The evidence presented amply supported the conclusions of the presiding Justice that (1) the stenographic notes which had been delivered to Mr. Rand were the stenographic notes made by Mr. Cox of defendant's trial; (2) Mr. Rand's transcript from his reading of those...