State v. Long

• Decision Date: 29 May 1964
• Docket Number: No. 337,337
• Parties: STATE of Maryland v. Horace W. LONG.
• Court: Maryland Court of Appeals

Page 125

235 Md. 125

200 A.2d 641

STATE of Maryland v. Horace W. LONG.

No. 337.

Court of Appeals of Maryland.

May 29, 1964.

John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy, State's Atty. for Montgomery County, Rockville, on the brief), for appellant.

William D. Paton, Bethesda, for appellee.

Before HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ., and THOMAS J. KEATING, Jr., Special Judge.

HENDERSON, Judge.

Long was tried in January, 1957, before Judge Reeves and a jury on a charge of the rape of his fourteen year old daughter. He was found guilty and after a motion for new trial had been heard and denied he was sentenced to life imprisonment. He took no appeal. He was represented throughout by two counsel of his own selection.

On March 14, 1963, Long brought this post-conviction proceeding, his chief complaint being the ineptness of his counsel. Upon his claim of indigency the court appointed his present counsel, who filed a petition seeking a copy of the transcript of the original trial. Judge Shook ordered the State to produce a copy, but it appeared that the court stenographer was suffering from a 'crippling illness' and was unable to transcribe his notes. Counsel for the appellee then filed a motion for a new trial, and after a hearing at which it was shown that the notes could not be read or transcribed by anyone, the court ordered a new trial over the State's protest that its chief witness had become incompetent and that it might be forced to nol. pros. the case. We granted the State's application for leave to appeal and heard argument on the appeal in due course.

In Truesdale v. Warden, 221 Md. 617, 620, 157 A.2d 281, 283, we pointed out that the Post Conviction Procedure Act, which is mandatory as to the appointment of counsel, is silent as to the furnishing of a transcript of the testimony at the original trial, and that sec. 645G, of Art. 27 (now replaced by Rule BK44 d) provides that the court may 'receive proof by affidavits, depositions, oral testimony, or other evidence, and may order the petitioner brought before it for the hearing.' The chief complaint was that the State had knowingly used perjured testimony of a co-defendant. We held that the trial court did not abuse its discretion in denying the applicant a copy of the transcript. To the same effect, see Johnson v. Warden, 222 Md. 587, 158 A.2d 119, Gamble v. Warden, 223 Md. 633, 161 A.2d 450, and White v. Warden, 229 Md. 645, 184 A.2d 840. In Klein v. Warden, 233 Md. 603, 604, 195 A.2d 608, where the complaint was the ineptness of counsel we held that a copy of the transcript was properly denied, pointing out that the trial court was at liberty to receive proof by affidavit, deposition, oral testimony or other evidence.

It is unfortunate that the judge who presided at the original trial in the instant case is dead, and that the court stenographer's notes cannot be transcribed. We think, however, that these facts do not, in and of themselves, require or justify the award of a new trial. Cf. Michigan Nat. Bank v. Racine, 234 Md. 250, 253, 198 A.2d 898, and cases cited. In the late case of Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, the Supreme Court held that no constitutional issue was presented by the denial of a delayed review of the original trial where a transcript could not be procured by reason of the death of a court reporter and through no fault of the State authorities, and where the applicant had been represented by counsel and did not take a direct appeal. The majority opinion concluded with these words: '* * * where transcripts are no longer available, Illinois may rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.' See also the later Illinois case of People v. McKee, 25 Ill.2d 553, 185 N.E.2d 682, cert. den., 374 U.S. 810, 83 S.Ct. 1698, 10 L.Ed.2d 1033, reh. den., 375 U.S. 872, 84 S.Ct. 31, 11 L.Ed.2d 102 applying the rule laid down in Norvell. In the instant case there is no showing that Long's decision not to appeal was based in any degree upon his...