Wilson v. State
|14 November 1980
|273 S.E.2d 9,246 Ga. 672
|WILSON v. The STATE.
|Georgia Supreme Court
August F. Siemon, Derek H. Jones, Waycross, for appellant.
Dewey Hayes, Dist. Atty., M. C. Pritchard, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.
On April 4, 1978, Shirley Ann Johnson, an employee of a Waycross Zippy Mart, was found at the entrance to the store. She had been stabbed over 50 times and died a few hours later. On July 3, 1978, according to Lonnie and Daisy Clark they were awakened by an intruder in their home. Lonnie Clark testified that he was attacked and knocked unconscious, and that when he came to, he called police from a house nearby. The police arrived and found the defendant, David Wilson, with his genitals exposed lying on top of Daisy Clark, who was nude. Wilson was indicted for the April 4 murder of Shirley Ann Johnson and for the July 3 rape of Daisy Clark, aggravated assault upon Lonnie Clark, and burglary of the Clark's residence. He was tried by a jury January 8-16, 1979, and found guilty on all four counts after a 7 day trial. He was sentenced to death for the murder. 1
Wilson argues that his convictions must be reversed because he was denied, inter alia, due process and meaningful access to the courts by the trial court's employment of a court reporter who was incompetent in that his severe hearing disability rendered him incapable of transcribing the trial. After reviewing the trial transcript, the defendant moved for correction of errors and omissions in the transcript. At a July 6, 1979, hearing on the motion, defendant's counsel stated that: The evidence shows that the court reporter had been a reporter for over 60 years, and that he had worn a hearing aid for the past 10 or 15 years. During this July 6 hearing, the tapes of the trial were played and defendant's attorney pointed out errors and omissions in the transcript. The hearing was continued to July 7, at which time the court stated that although the defendant had requested that another court reporter retranscribe the tapes, the court's reporter wanted another opportunity to correct the transcript himself.
At a hearing on October 4, 1979, defendant stated that although "several hundred" pages had been corrected the transcript was still not satisfactory, and renewed his motion for a true and correct transcript. 2 Counsel again pointed out that it was extremely time consuming for him to check the transcript against the tapes. He stated that he had compiled a list of no less than 205 errors in the corrected transcript. He also noted that at the first hearing, the court reporter gave him 11 nonrepetitive tapes of the trial. In conjunction with this hearing, he had again given him 11 tapes, but 2 were duplicates of others and 1 was a tape of an unrelated civil case. Defendant's counsel went on to point out that the reporter had served the court well for years, but his severe hearing disability must have been apparent to the court. After defendant's counsel had pointed out several errors and omissions in the "corrected" transcript, the court again denied defendant's motion to appoint a new court reporter to transcribe the tapes. 3 The trial court then instructed defendant's counsel to take the tapes and make a complete list of alleged errors and omissions, to seek stipulations to the corrections from the state, and to advise the court as to any points as to which the parties could not agree. Defendant's motion for funds to hire a court reporter to reconstitute the record was overruled. Defendant's motion that copies of the tapes be made so that the originals could be introduced into evidence also was overruled.
At a December 5 hearing, the defendant's attorney stated that 21 of the 34 tapes were missing. He stated in his place that they had been kept in a locked cabinet but the key was kept in his desk drawer so that they could have been, and he believed they had been, stolen during a burglary at his office. He pointed out, however, that his offices had been rearranged in his absence and it was possible that the tapes were misplaced during the moving process. He had available the list locating 205 errors which he had previously prepared, but the district attorney responded that in some instances the list merely located the alleged omissions without specifying what was omitted and without the tapes he was unable to stipulate corrections. 4
At the next hearing, on December 27, 1979, the district attorney stipulated to making some corrections and additions to the corrected transcript but was unable to stipulate as to others without the tapes. The corrections agreed to have not been made in the transcript filed in this court. (It was announced at this hearing that the court reporter had resigned.)
At a hearing on January 14, 1980, the court reporter testified that he had worked in the trial judge's court approximately 15 years, that he had worn a hearing aid for the past 10 or 15 years, and that his hearing disability had gradually gotten worse. He stated that although he normally wore his hearing aid, he did not wear one in court during this trial and he had not worn one when he made the original transcript of the trial. He did, however, use his hearing aid to make the corrections. 5 He also stated that he had used 4 tape recorders and that gaps in the original transcript occurred because he had worked from tapes made by the recorder connected to the public address system and that recorder had accidentally been turned off. He acknowledged that several bench conferences had not been transcribed but said they were not material. 6 Finally, he explained that he had brought in another court reporter to take down and transcribe the voir dire because he had trouble hearing some jurors. Although he had certified the original transcript, upon checking the voir dire after defendant moved to correct it, he found it necessary to correct one out of every 2 or 3 pages of the voir dire, and to add 35 minutes relating to post voir dire motions which had been omitted. 7
A transcript which has been certified as true, complete and correct by the court reporter is presumed so. Code Ann. § 24-3105; Ross v. State, 245 Ga. 173(4), 263 S.E.2d 913 (1980). In this case, that presumption was overcome as to the original transcript, as reflected by the trial court's referring the transcript back to the court reporter in order that the transcript could be corrected and by the court reporter's correction of over a third of the 1400-1500 page transcript. Those corrections show that the inaccuracies which plagued the original transcript were caused, directly or indirectly, by the reporter's hearing disability. Prior to the loss of the tapes, the defendant had shown that the corrected transcript suffered from the same problem although the number of errors had been reduced. The district attorney agreed to many corrections to the corrected transcript (which have not been made), but was unable to agree to others. Hence the recertified corrected transcript is not entitled to the presumption of correctness. The defendant having satisfactorily shown that due to the reporter's hearing disability, the corrected...
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