Britt v. North Carolina 8212 5041

• Citation: 404 U.S. 226,30 L.Ed.2d 400,92 S.Ct. 431
• Decision Date: 13 December 1971
• Docket Number: No. 70,70
• Parties: Charles W. BRITT, Jr., Petitioner, v. State of NORTH CAROLINA. —5041
• Court: United States Supreme Court

404 U.S. 226

92 S.Ct. 431

30 L.Ed.2d 400

Charles W. BRITT, Jr., Petitioner,

v State of NORTH CAROLINA.

No. 70—5041.

Argued Oct. 14, 1971.

Decided Dec. 13, 1971.

Syllabus

Petitioner was convicted of murder a month after his previous trial had ended with a hung jury. Both trials took place in a small town before the same judge and with the same counsel and court reporter, who (as was conceded) was well known to defense counsel and other local lawyers and would have read back his notes to defense counsel before the second trial had he been asked to do so. Between the two trials petitioner, alleging indigency, filed a motion for a free transcript, which the trial court denied. The appellate court affirmed the conviction, holding that an adequate alternative to the transcript was available. Held: In the narrow circumstances of this case, a transcript was not needed for petitioner's defense. Pp. 227—230.

8 N.C.App. 262, 174 S.E.2d 69, affirmed.

Robert G. Bowers, New Bern, N.C., for petitioner.

Christine Y. Denson, Raleigh, N.C., for respondent.

Mr. Justice MARSHALL, delivered the opinion of the Court.

Petitioner's three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim, petitioner filed a motion alleging that he was indigent, and asking for a free transcript of the first trial. The trial court denied his motion, and the North Carolina Court of Appeals affirmed, stating that the record of the case did not reveal a sufficient need for the transcript. 8 N.C.App. 262, 174 S.E.2d 69 (1970). The North Carolina Supreme Court denied certiorari. We granted certiorari to determine whether the rule of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), applies in this context. 401 U.S. 973, 91 S.Ct. 1204, 28 L.Ed.2d 322 (1971). We conclude that it does, but that in the narrow circumstances of this case, no violation of that rule has been shown, and therefore we affirm.

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.¹ The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.

In prior cases involving an indigent defendant's claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.² Mr. Justice DOUGLAS suggests that the North Carolina courts refused to order a transcript in this case both because petitioner failed to make a particularized showing of need, and because there were adequate alternative devices available to him.

We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.³ As Mr. Justice DOUGLAS makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.

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 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.⁴ 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). At oral argument in this case, however, it emerged that petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant, or to the defendant in Wilson. The trials of this case took place in a small town where, according to petitioner's counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial. It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.⁵ 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.⁶ Accordingly, we cannot conclude that the court below was in error in rejecting his claim.

For these reasons the judgment is affirmed.

Affirmed.

Mr. Justice BLACKMUN concurs in the result, but he would dismiss the petition for certiorari as having been improvidently granted.

Mr. Justice DOUGLAS with whom Mr. Justice BRENNAN concurs, dissenting.

After the State's first murder prosecution of the petitioner ended in a hung jury in November 1969, Britt was retried, convicted, and sentenced to 30 years' imprisonment. During the interim between the two trials, the petitioner made a showing of indigency and asked that the State provide him with a free transcript of the mistrial. The trial court denied his motion despite Britt's contention that because a more affluent defendant could purchase such a transcript as a matter of right a denial of his request would offend the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, (1956). On appeal, the North Carolina Court of Appeals was likewise unconvinced by Britt's equal protection claim and affirmed the trial court's refusal to order a free transcript, stating that (a) the petitioner had not made a particularized showing of need, (b) he had been represented by the same lawyer at both trials, and therefore (c) any suspected inconsistencies in prosecution evidence could have been developed by counsel's putting on the court reporter to read earlier testimony of the first trial. Because I am persuaded by Britt's argument I would reverse the decision of the North Carolina Court of Appeals.

I

Griffin v. Illinois, supra, 351 U.S., at 19, 76 S.Ct., at 591, established the now familiar principle that '(t)here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.' While Griffin involved only the provision of a free transcript to an indigent on direct appeal, its underlying principle has achieved broader usage. We have witnessed a steady growth of its applications to other transcript cases,¹ to docketing fees,² and to right to counsel.³ Of these applications, Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), is most analogous to the instant circumstances. In Roberts, an indigent defendant before trial asked a state court to provide him with a free transcript of a preliminary hearing at which a key state witness had testified. In Roberts, as here, no special showing of need was made, the defendant was represented by the same counsel at all times, and the court reporter could have been called to read back previous testimony. Id., at 43, 88 S.Ct., at 196. Nonetheless, over the dissent of Mr. Justice Harlan that no prejudice had been shown id., at 44, 88 S.Ct., at 197, we held that withholding the requested transcript was an invalid interposition of a financial consideration between an indigent prisoner and his right to sue for his liberty. Id., at 42, 88 S.Ct., at 196.

Here the request was for a mistrial transcript, whereas in Roberts a motion had been made for a preliminary hearing transcript. In the ways in which either might be used I can perceive no differences. In both sets of circumstances it would seem that defendants would be interested in better trial preparation and in better positions from which to challenge discrepancies in government witnesses' stories.⁴ For both of these purposes a mistrial transcript would be more valuable than a preliminary hearing recording because the former is a virtual dry run of the entire prosecution's case, information which normally is clothed in top secrecy under the prevailing and restrictive rules against a criminal defendant's discovery.

Perhaps for these considerations the Second Circuit has squarely held that indigent state defendants have an absolute right to free transcripts of previous prosecutions...