State v. Johnson

BARHAM, Justice

(dissenting).

I cannot agree with the majority’s reasoning or conclusions, for I find reversible error shown by two of the bills of exceptions presented for this court’s review.

Bill of Exceptions No. 5 was reserved to the trial court’s denial of defendant’s motion for a transcript of the proceedings of the previous trial which had resulted in a mistrial. The per curiam of the trial judge simply states that the defendant had no right to this transcribed record for use in a subsequent trial. In this the judge erred, and the majority has endorsed his error.

A long line of United States Supreme Court cases has delineated the federal constitutional rights of an indigent defendant to the necessary instruments and services for adequate defense, appellate review, and post-conviction remedies. In Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956), it was held that all people, poor and rich, must stand on an equality before the bar of justice, and that if adequate state appellate review requires a transcript of the trial proceedings, a denial of such a record to an indigent free of cost was a violation of the Due Process and Equal Protection clauses. The court there said: “Destitute defendants must be afforded as adequate appellate review as de *648 fendants who have money enough to buy transcripts.”

Thereafter in Eskridge v. Washington State Board, 357 U.S. 214 , 78 S.Ct. 1061 , 2 L.Ed.2d 1269 (1958), the Supreme Court, although holding that there could be acceptable alternatives to a full transcript, reiterated its holding that unless the alternative was a full and complete instrument for securing equal legal rights, a transcript would be required. In Long v. District Court of Iowa, 385 U.S. 192 , 87 S.Ct. 362 , 17 L.Ed.2d 290 (1966), in a per curiam the Supreme Court cited Smith v. Bennett, 365 U.S. 708 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961), and Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 (1963), for the proposition that no financial consideration could be interposed between an indigent and his exercise of his legal rights. Eskridge and Long recognized the indigent’s right to a transcript in his exercise of a post-conviction remedy.

In Gardner v. California, 393 U.S. 367 , 89 S.Ct. 580 , 21 L.Ed.2d 601 (1969), the Supreme Court repeated that where there is no adequate substitute, as announced in Griffin, for a full stenographic transcript, denial of a transcript to an indigent is invidious discrimination impermissible under the Constitution.

Williams v. Oklahoma City, 395 U.S. 458 , 89 S.Ct. 1818 , 23 L.Ed.2d 440 (1969), held that even in the absence of statutory authority to provide transcripts to indigents at public expense, an indigent defendant was entitled to a free transcript of municipal court trial proceedings which was necessary in order to perfect an appeal from a judgment of that court.

This, then, is the general background of the federal constitutional requirements for transcripts for appellate review and post-conviction remedies. Tied in with this general line of cases are decisions specifically holding that the same tools, including a transcript, which must be made available to an indigent defendant on appeal must also be provided for his defense at trial.

In Roberts v. LaVallee, 389 U.S. 40 , 88 S.Ct. 194 , 19 L.Ed.2d 41 (1967), an indigent defendant had been denied a free transcript of his preliminary hearing under a New York statute providing that transcripts of such proceedings were to be furnished at a specified fee. While the case was pending on the United States Supreme Court docket, the New York Court of Appeals declared that the statutory requirement of payment for a transcript was unconstitutional as applied to an indigent. People v. Montgomery, 18 N.Y.2d 993 , 278 N.Y.S.2d 226 , 224 N.E.2d 730 (1966). The United States Supreme Court chose to meet the federal constitutional issue when the case was heard rather than rely upon the new state jurisprudence, and declared that transcripts of preliminary *650 hearings must be furnished free to indigents before trial. It said:

“Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. * * * Only last Term, in Long v. District Court of Iowa, * * * we reiterated the statement first made in Smith v. Bennett, * * * that ‘to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.’ i}i ‡

On March 14, 1969, different panels of the United States Court of Appeals, Second Circuit, handed down two decisions, each of which involved an indigent defendant’s right to a free transcript of a previous mistrial in order to prepare for the new trial. Both cases arose in New York, where a defendant could procure that transcript if he paid for it, just as he can in Louisiana. 1

In one of those decisions, United States v. Carella, 411 F.2d 729 (2nd Cir. 1969), an indigent defendant was denied a full transcript of a lengthy former trial. That court justified the denial on the basis that there was an adequate alternative for the defendant since he had statements and grand jury testimony of many witnesses and, “most important, the direct testimony at the first trial of Calabrese whose evidence Erhart’s [the indigent’s] brief characterized as the basis of the entire prosecution case against him”.

In United States ex rel. Wilson v. McMann, 408 F.2d 896 (2nd Cir. 1969), the other panel met headon the same issue, and in unequivocal language held that a transcript of a previous trial was necessary for impeachment and also for assistance in effective preparation for the new trial. In Wilson the Court of Appeals called attention to the minority opinion of Mr. Justice Harlan as well as the majority opinion in Roberts v. LaVallee, supra, and said:

“We think it is not a sufficient answer that Wilson’s counsel was permitted to see Russo’s testimony before the Grand Jury. A similar argument was rejected in Roberts . Nor, in our view, are Wilson’s rights defeated by the fact that the same assigned counsel rather than a different one defended him on the two trials. In several of the cases involving applications for transcripts of a former trial, or parts thereof, courts have implied that, if the lawyer were the same, he might be expected to remember what testimony was given at the *652 first trial' or perhaps he might have notes to refresh ' his recollection. We think constitutiorfal rights should not be implemented in any such niggardly fashion.

“In other cases various suggestions are made to the general effect that a trial judge in the exercise of his discretion can avoid any violation of an indigent defendant’s right to equal protection of the laws by permitting .some sort of limited access, during the second trial, to the reporter at the first trial, to check any specific alleged contradiction. This is not only a case of too. little and too late; it is also a breeder of delay and confusion. Worst of all, despite. the good intentions of the trial judge, such a ruling is apt to lead the defendant into a trap and gravely prejudice his defense. . That is precisely what happened in this case.”

.Both the Carella panel and the Wilson panel apparently believed the two opinions could, be differentiated although some of the language in Carella indicated non-compliance with the decision of the United States Supreme Court in Roberts v. LaVallee, supra.

In Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (December 13, 1971), 2 the United States Supreme Court reviewed a trial court’s denial of an indigent-defendant’s motion to be afforded a free transcript of a mistrial before his retrial. The court said: “Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.”

The court then recognized that “particularized need” is not a necessary showing to entitle an indigent to a transcript. In footnote 3 the majority in Britt rejected again the dissent of Mr. Justice Harlan in Roberts v. LaVallee, supra, which called for an examination for need and prejudice to determine whether the denial was “harmless beyond a reasonable doubt”. The court stated:

“But the court below did not use the language of ‘particularized need.’ It rested the decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a *654 transcript. The second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. In these circumstances, the court suggested that petitioner’s memory and that of his counsel should have furnished an adequate substitute for a transcript. In addition, the court pointed to the fact that petitioner could have called the court reporter to read to the jury the testimony given at the mistrial, in the event that inconsistent testimony was offered at the second trial.

“We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as ‘too little and too late’ in United States ex rel. Wilson v. McMann, 408 F.2d 896, 897 (CA2 1969). * * *”

It is apparent that the United States Supreme Court has endorsed and in fact incorporated the rationale of United States ex rel. Wilson v. McMann, supra, and that if Carella is in conflict with Wilson, it is disapproved by that court.

The Supreme Court in Britt held that an unusual combination of circumstances there provided an adequate alternative to a transcript of the proceedings. Its basic. conclusion is this: “A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript. * * * ” (Emphasis supplied.)

The State acknowledges the distinctions between this case and the Britt case which are favorable to the defendant’s contentions: Here there was a longer delay between the first and second trials, and the presiding judge and the court reporter were not the same in each trial. The State argues that notwithstanding these distinctions this defendant had an adequate alternative to a full transcript of the previous trial, saying in brief: “ * * * In St.' Landry Parish, the court reporters are on á first name basis with all of the attorneys, and they will assist the attorneys in'every way possible. If counsel for Johnson had requested of Mrs. Ruth Pressburg, the' court reporter of the first trial, to' read back the record or portions thereof to him or permit him to listen to the tapes, she would have done so. This would have afforded him with an adequate alternative to a transcript.”

The defendant argues that the record would not be available to him on any basis *656 through Mrs. Pressburg, and contends strenuously that there was no informal alternative method which would prepare him for trial and provide him with the necessary information for purposes of impeachment.

On the trial of the motion, the court reporter, Mrs. Pressburg, testified that she could not transcribe the record unless she had 12 to 15 days, and then only if the court would close and let her work full time on the transcript. Moreover, she testified that because she was not feeling well at that time, she did not think she could work as fast as she usually could. It is apparent from the tenor of her testimony that she could not and would not afford defense counsel the time necessary for a review of her untranscribed record.

Here the defendant has failed to concede that there was an adequate alternative to a full transcript, the record fails to show an adequate alternative, and I find that the record actually negates the existence of an alternative which would suffice. Under the reporter’s testimony on the trial of the motion it would be futile to remand for exploration of a possible alternative, as was done in Wade v. Wilson, 396 U.S. 282 , 90 S.Ct. 501 , 24 L.Ed.2d 470 (1970). 3 This case is on all fours with United States ex rel. Wilson v. McMann, supra, and this court is required to conclude under the holding of Britt v. North Carolina, supra, that the defendant was entitled to a free transcript of the previous mistrial before being required to proceed in the new trial.

The majority has concluded that the refusal of the defendant’s request for a transcript of his first trial was based not on his inability to pay but on a finding that the requested transcript could not be prepared in time, and on this basis it has upheld the ruling of the trial court. The majority’s finding accords with the argument of the State that the motion for transcript filed on April 2 came too late because the defendant had the whole period between his mistrial in November of the preceding year and the trial date of April 21 in which to ask for a transcript. It is important to examine the relevant dates in the light of the circumstances of this case.

Since it was the State’s choice to retry the defendant or not, he had no need to move for a transcript until March 16, when he was rearraigned and trial was set for April 21. Indeed, such a motion filed earlier might well have been dismissed as premature. As I view the matter, he had only the period from March 16 to April 21 *658 in which to seek the transcript, or a little over a month. Meanwhile, time was consumed in the filing and hearing of other defense motions; and when the defendant moved for a transcript on April 2, approximately three weeks before trial, the judge, who controlled the court calendar, set the motion down for hearing on April 13, only about a week before the trial date. Here the determination that the defendant did not timely request the transcript of the previous trial is obviously made by the majority without a consideration that the motion was filed three weeks before trial. Its own factual conclusion is that the transcript could have been prepared in two weeks. It is the delay of the trial court and/or the State in reacting to the motion for the transcript that led to the limitation of time.

Moreover, I am of the opinion the majority and the trial court have moved to a side issue in order to avoid the important constitutional question presented: Was this defendant entitled to the transcript before retrial? If he was and if additional time was necessary, the court should have afforded that time in order to accord the defendant his constitutional right. The short time remaining before trial when the motion was actually heard, which the majority uses to work a denial of a constitutional right, was not the result of delaying tactics or schemes by the defense to deprive the State of its right to prosecute; it was in point of fact, the result of a combination of circumstances not within the control of the defendant but rather within the control of the State. Had more time been allowed between arraignment and date for retrial, had more timely hearings been held on the motions, had the State and the court properly exercised that degree of control within their power, the brevity of time relied upon by the majority would have disappeared from the case.

This imputation to the defendant of laches in order to distinguish the instant case from what is commonly called a “goose case” (Britt v. North Carolina, supra), especially in the consideration of constitutional rights, is error, and the denial of the motion for free transcript of the previous mistrial on this or any other basis under these circumstances is clearly reversible.

Bill of Exceptions No. 6 was reserved to the trial judge’s denial of defendant’s motion to transcribe the testimony of certain witnesses who were alleged to have testified at the previous trial, under an allegation and proof made on the hearing that the witnesses could not be located to testify at the second trial. I cannot agree with the majority that the showing made by the defendant was insufficient.

The majority appears to admit that the testimony sought to be transcribed and preserved in this case would have been admissible on the trial if the witness had been *660 unavailable at the trial. The majority is Correct that under the common law a defendant may use the testimony of a witness in a former trial in the new trial for the same offense when the witness cannot be located and presented to testify. 4 Moreover, that right is recognized both jurisprudentially and statutorily in Louisiana, and it would seem the majority would have resorted to this source of law. 5

*662 But admissibility is not the issue before us. The right to have testimony transcribed and preserved is the issue. Where the majority errs in its consideration of the motion to transcribe and preserve testimony is in assuming that under all circumstances this witness will be available at the trial weeks later, and therefore the transcription of the former testimony is unnecessary for it would then be inadmissible. The ruling upon admissibility of the transcribed testimony is to be reserved to the trial judge, if the testimony is offered, after he has an opportunity to weigh the totality of the circumstances in the light of the right of confrontation, 6 use and purpose of the testimony, the similarity of issues, and other factors.

The majority’s entire discussion here applies to the question of admissibility of the evidence at the time of trial instead of to the question of the right to obtain a transcription of previous testimony for possible use at the trial. The showing made at the hearing on the motion to transcribe need not be that strong showing which is required when such transcribed testimony is offered in evidence at trial. The preliminary determination should weigh only whether a probability exists for need of the transcribed testimony for later use in lieu of personal testimony. 7 The more restrictive requirements set forth by the majority in affirming the judge’s denial, of the motion should be reserved for determination on the trial.

In summation, admissibility is not the criterion to be applied in considering this motion, and it was error for the majority to reason from that position.

I respectfully dissent.

. See State v. Chaney, 153 La. 371 , 95 So. 866 ; see also State v. Eubanks. 240 La. 552 , 124 So.2d 543 . See also C.Cr.P. Art. 844, Official Revision Comment (d); R.S. 15:291 and 13:961(E).

. Mayer v. City of Chicago, 404 U.S. 189 , 92 S.Ct. 410 , 30 L.Ed.2d 372 , handed down on the same date, held that the right to a transcript of trial proceedings for the purpose of appeal applied in misdemeanors as well as in felonies.

. In Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (1971), the court said in footnote 6: “Cf. Wade v. Wilson, 396 U.S. 282 , 90 S.Ct. 501 , 24 L.Ed.2d 470 (1970), in which no such concession was made. In that case it simply appeared from the record that petitioner might have been able to borrow a transcript from the prosecutor, in light of the fact that he had done so in an earlier proceeding. We remanded the case to permit exploration of that possibility.”

. The general rule prevailing at common law is that the testimony of a witness given at a former trial or in any other court proceeding may be used in a trial when certain prerequisites are met. 2 Wharton’s Criminal Evidence §§ 470-92 (12th Ed. 1955); 2 Underhill’s Criminal Evidence §§ 420-27 (5th Ed. 1956); 23 C.J.S. Criminal Law §§ 892-899, and cases cited; 21 Am.Jur.2d Criminal Law § 343, and cases cited; Anno., 15 A.L.R. 495 , supplemented in 79 A.L.R. 1392 , 122 A.L.R: 425, and 159 A.L.R. 1240 . Among . these prerequisites are : The unavailability of the witness to testify in person, the full exercise of the right of confrontation of the witness at the former proceeding by the opposing party, and a substantial identity of the charge and the issues in the former proceeding and the pending trial.

. Even the early Louisiana jurisprudence recognized the right to use the testimony from a former trial of a witness since deceased. In State v. Cook, 23 La.Ann. 347 (1871), the court allowed one who had heard the deceased witness testify to recount that testimony as remembered, although it was admitted that the recall was imperfect and the account of that testimony imprecise. Cf. State v. Oliver, 43 La.Ann. 1003 , 10 So. 201 (1891), which refused to allow “parol proof of the purport and subslanee of the testimony of certain absent witnesses”. The court emphasized again in conclusion that the opinion was “limited to the sole question of the reproduction, by this means, of the parol evidence of absentees”. In State v. Thompson, 109 La. 296 , 33 So. 320 (1903), the court admitted testimony of a deceased witness from a former trial against the defendant even though the jury was thereby given notice that there had been a previous trial. We have provided in Code of Criminal Procedure Article 295 that the transcript of the testimony of any witness at a preliminary examination is admissible for any purpose in any subsequent proceeding in the case “if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found". (Emphasis supplied.) The defendant in brief and argument sought to assert the right of repi'oduction of testimony of a previous trial by analogizing the use at trial of testimony taken at a preliminary examination. The State in argument met this contention urging that this is provided statutorily and therefore in the absence of a statute the analogy should fail. Revised Statutes of 1870, Section 1010, provided that the committing magistrate hold a preliminary hearing and required him to reduce to writing the testimony of a witness under oath. It was also his duty to receive the voluntary declaration of the accused and to reduce it to writing, and when this declaration of the accused was properly certified, it was evidence before the grand jury and the petit jury. Without any specific statutory authority for the use of the written deposition of other witnesses, this court uniformly hold that the testimony of witnesses in the earlier proceeding was also admissible upon trial. State v. Harvey, 28 La.Ann. 105 (1876); State v. Alphonse, 34 La.Ann. 9 (1882); State v. Stewart, 34 La.Ann. 1037 (1882); State v. Jordan, 34 La.Ann. 1219 (1882); State v. Allen and Carter, 37 La.Ann. 685 (1885); State v. Madison, 50 La.Ann. 079 , 23 So. 622 (1898); State v. Kline, 109 La. 603 , 33 So. 618 (1903); State v. Banks, 111 La. 22 , 35 So. 370 (1903); State v. Bollero, 112 La. 850 , 36 So. 754 (1904); State v. Scarbrough, 107 La. 484 , 119 So. 523 (1929). *662 Our present Code of Criminal Procedure Article 295 and its immediate source provision (Article 155 of the 1928 Code of Criminal Procedure, former R.S. 15:155) changed their source provision, Section 1010 of the 1870 Revised Statutes, by providing specifically that the deposition of a witness who is dead, is absent from the state, cannot be found, or is too ill to testify can be received in evidence upon the trial. Express statutory authority is not necessary for a determination of admissibility of this kind of evidence. Most evidentiary rules are jurisprudential, and jurisprudence, common law, and our own law were the wellspring for the statutory law above. Even before the statutory provision expressly authorizing the use in a subsequent trial of witnesses’ testimony taken at a preliminary examination, under Louisiana jurisprudence it was allowed when the witness was dead, State v. Alphonse, supra, when it was shown that the witness was absent from the state or could not be found, State v. Harvey, supra; State v. Stewart, supra; State v. Jordan, supra; State v. Allen and Carter, supra; State v. Madison, supra; State v. Kline, supra; State v. Banks, supra; State v. Bollero, supra; State v. Scarbrough, supra, or was too ill to testify, see dictum in State v. Harvey, supra.

. When the defense, as here, intends to offer the testimony, the constitutional right of confrontation is not at issue,' but the lack of an opportunity to confront the witness by the State would be a pertinent consideration for a ruling on admissibility.

. Code of Criminal Procedure Article 741 does not, standing alone, under the circumstances of this case negate that probability.