Harshaw v. State

Gilbert, C. J., delivered the opinion of the Court. The sole issue raised in this appeal is whether we should "accept a reconstructed transcript” of a criminal trial "in lieu of a full transcript.” Gerald Pinkard Harshaw was convicted by a jury (Mathias, J.) of child abuse and related offenses. After the trial, it was discovered that the court reporter had failed to perform her duties in a proper manner. Not only could she not prepare a transcript of the proceeding, but she indicated that if she did prepare one, it would be unreliable because of the emotional and physical condition she was in at the time of the trial.

As a result of the lack of a transcript, counsel for the State and for the defendant met with the defendant and the trial judge in an attempt to construct a transcript of the trial based upon the notes of the counsel, the defendant, and the judge. At the conclusion of that meeting, the judge placed an affidavit in the record reading as follows: "I hereby certify that I have carefully examined the hearing before me on February 24,1981, for the purpose of reconstructing the record of this trial. I further certify that Mrs. Kiebler’s employment as an official reporter for this court has been terminated, but although she left what appear to be stenotyped notes of the trial, she has refused repeated requests to transcribe them and five other court reporters have tried unsuccessfully to do so.” The question as put to us by the appellant must be answered with a resounding, "Maybe, it all depends on what the issue is on appeal.” Smith v. State, 291 Md. 125 , 433 A.2d 1143 (1981). ¹²⁶ In Smith , Judge Cole, writing for the Court, noted that "requiring the defendant to do his part in attempting to reconstruct portions of the record which are missing through no fault of the prosecution does not offend notions of criminal due process.” 291 Md. at 137 . Smith holds that the absence of a transcript, occasioned through no fault of the prosecution, does not translate, by that fact alone, into a new trial.

The fortuitous loss of the transcript or loss of ability to transcribe verbatim the dialogue of a trial is not to be considered as an automatic right to a new trial. A defendant must cooperate in reconstructing the events of trial. It is not enough for him or her to sit by, refuse to assist, and then claim prejudice for lack of a transcript. The case before us, however, is of a different type.

Here, Harshaw and his counsel participated fully in the effort to reconstruct the transcript, and there is not the slightest hint that artificial road blocks were erected in order to impede the reconstruction. The disability Harshaw claims to suffer is that given the reconstructed record, the appellate court lacks sufficient clairvoyance to pass upon the appeal intelligently. He asserts, and the record supports, that objections were made, but we are not informed as to the rulings on those objections. We may infer, however, that the rulings were adverse to Harshaw else he would not advance them