Wilson v. State

• Decision Date: 01 September 1993
• Docket Number: No. 68,68
• Citation: 639 A.2d 696,334 Md. 469
• Parties: Robert WILSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 469

334 Md. 469

639 A.2d 696

Robert WILSON v. STATE of Maryland.

No. 68, Sept. Term, 1993.

Court of Appeals of Maryland.

April 15, 1994.

Gary S. Offutt, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief) Baltimore, for petitioner.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for respondent.

Argued before MURPHY, C.J., RODOWSKY, McAULIFFE ^*, CHASANOW, KARWACKI, BELL, JJ. and

CHARLES E. ORTH, ^** Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

BELL, Judge.

The issue we granted certiorari to resolve involves determining when, after a diligent, but unsuccessful, effort to reconstruct the trial record, a new trial is necessary. The Court of Special Appeals, in an unreported opinion, held that, given the facts and circumstances of this case, reversal of the petitioner's conviction and remand for new trial is inappropriate. Contrary to the intermediate appellate court, we conclude that the matter as to which reconstruction of the transcript was unsuccessful goes to the heart of the appeal. Accordingly, we shall reverse and remand for a new trial.

I.

Robert Wilson, the petitioner, owned and conducted an automobile repair shop at 5070 Wabash Avenue in Baltimore City. These premises were searched pursuant to a search and seizure warrant. Seized as a result of the search were cocaine, a razor blade, and a material used as a "cutting agent" for the mixing of cocaine. These items were found in an office, described by the officer who executed the search and seizure warrant as a second "office to the side," on the top of a 4 1/2 to 5 foot high file cabinet, and in a topless cardboard box, 7 to 8 inches tall. Also found in that office, on top of the desk, was a box of baggies of the same type in which the cocaine was packaged. Neither the petitioner, who was outside on the front parking lot, nor the six employees who were also in or around the premises when the search was conducted, was in the office when the cocaine was seized.

The issue at the petitioner's trial was whether the petitioner possessed the cocaine or possessed it with the intent to distribute. The State having produced evidence of the foregoing, the petitioner adduced testimony that the office in which the cocaine was found was accessible to all of his employees and, indeed, also to customers who were paying their bills. His office manager testified that the employees were free to use the desk in that office as well as the file cabinet. In fact, she asserted that the top of the file cabinet was "a catch all" where anyone could put anything.

Testifying on direct examination, the petitioner denied being aware that cocaine and the related paraphernalia were on the premises. At the end of the direct examination, the trial court called a recess and, when proceedings resumed, apparently the video tape recorder was not turned. Thus, the petitioner's cross-examination and redirect examination were not recorded. According to the parties' reconstruction of the record, during his cross-examination, among other things, the petitioner "acknowledged he had 'control to a certain extent' and does make final decisions," and described his daily routine and the file cabinet location.

His motion for judgment of acquittal, made at the end of all the evidence, having been denied, the matter was submitted to the jury. The jury returned a verdict finding the petitioner guilty of possession of cocaine and possession of paraphernalia. ¹ The petitioner's timely motion for new trial was denied. ² He was subsequently sentenced to consecutive three-year terms of imprisonment, all but one year of each was suspended in lieu of three years probation.

The petitioner's attorney discovered that the petitioner's cross and redirect examination had not been recorded while preparing the petitioner's appeal to the Court of Special Appeals. Thereupon, the petitioner, joined by the State, filed a Motion To Correct Omission In The Record. ³ In support of the motion and, as required by Maryland Rule 8-414(b), ⁴ counsel for the parties attached a Reconstruction of the Cross-examination and Re-direct Examination Of Mr. Robert Wilson, which was a summarization of the recollections and notes of the trial judge and trial counsel for both the State and the defense. Item 14 of that reconstruction stated:

During the State's cross-examination defense counsel voiced several objections to questions propounded by the Sate's [sic] attorney. His recollection is that these objections went to what others would do and his client's control of them. The Bases [sic] of the objections were the fact that he was being asked to testify as to what others did or thought. he [sic] recalls his client testifying that since he was the owner, the premises were "under his control." It was the questions dealing with "control" to which objections were made.

Also attached to the motion were affidavits by the trial judge and trial counsel, affirming that the reconstruction reflected their best recollection of the information missing from the transcript. An affidavit by the petitioner also reflected his recollection of what happened.

II.

On appeal to the Court of Special Appeals, the petitioner acknowledged the efforts made to reconstruct the record, but stated his belief that those efforts were unsuccessful, or at least, not sufficiently successful as to permit meaningful appellate review of his conviction. That being the case, he argued in the intermediate appellate court, as he does here, that his entitlement to a new trial is patent since even the unsuccessful reconstruction of the record "shows that something occurred during the course of the proceeding that may have entitled [him] to relief, [and] it is impossible to determine whether or not [he] is in fact entitled to relief and the record cannot be reconstructed further." Petitioner's brief at 11-12.

The State does not expressly challenge the petitioner's contention that the efforts at reconstruction were unsuccessful. But neither does it agree that the petitioner has, on that account and in any event, been deprived of meaningful appellate review. As the State sees it, whatever the success, or lack of success, of the reconstruction effort, there is no per se rule of reversal. Instead, the State argues that the burden is on the petitioner to demonstrate specific prejudice. The petitioner did not carry that burden in this case, it asserts. In rejecting the petitioner's argument that appellate review was inadequate based on the record before it, even as reconstructed, the Court of Special Appeals applied the same reasoning. After noting the diligence with which the parties attempted to reconstruct the record, the intermediate appellate court opined:

[A]ppellant has been afforded a meaningful appeal. The substitute record acknowledges that the questions solicited went to the issue of control. Moreover, appellant fails to argue both that the rulings were improper and what damage was sustained; instead, appellant argues that, given the circumstances, they may have been improper. This is insufficient to justify reversal.

Slip op. at 7-8.

III.

The issue in Smith v. State, 291 Md. 125, 433 A.2d 1143 (1981) was the adequacy of the record for appellate review where portions of the testimony of two of the State's witnesses had been omitted due to a technical problem with the court's tape recording system. Id. at 126, 433 A.2d at 1144. The parties submitted on an agreed statement of facts, which itself acknowledged that the reconstruction of the missing testimony of those State's witnesses was made from affidavits supplied by the State and the trial judge. Neither the affidavit of the trial judge nor of the State's attorney offered any recollection as to objections made by the defense or the court's evidentiary rulings. The affidavit filed by the defendant's counsel "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.' " Id. at 130, 433 A.2d at 1146. Rather than being "based upon the assertions of specific error," the defendant "argue[d] broadly that the unavailability of a complete transcript of proceedings, coupled with the assertedly incomplete memory of his trial counsel, in and of themselves were such as to deprive appellant of meaningful appellate review." Id. at 129, 433 A.2d at 1145.

The Court rejected that argument, reasoning:

Here, it is the failure of appellant to demonstrate that he has been diligent in his attempt to reconstruct the missing testimony which delivers a crucial blow to his argument that a new trial is required; for, as in Kennedy [v. State, 289 Md. 54, 421 A.2d 1376 (1980) ], no application was made to the trial judge per Rule 826(c) or 1026(c). No effort whatsoever was made on appeal to supplement the record by motion to the appellate court or to demonstrate the manner, if any, in which the affidavits supplied by the State and the trial court are insufficient to provide appellant with adequate appellate review. The appellant has the responsibility to make a sincere effort to perfect the record. Here he has done nothing.

Id. at 138, 433 A.2d at 1150. The Court's analysis started with the premise that not every inadvertent omission in the record requires reversal and a new trial. When the error or omission is insignificant, "[i]t would wreck havoc on the administration of justice to require reversal in each and every case in which it is alleged by the appellant that portions of trial testimony have not been preserved verbatim for review." Id. at 133, 433 A.2d at 1147. Id. The Court concluded, therefore, that each case must be determined on its own facts and circumstances. Id. at 134, 433 A.2d at 1147. Citing cases from other states, it stated "that the inability to prepare a...