Asfaw v. Commonwealth Of Va.

• Decision Date: 27 April 2010
• Docket Number: Record No. 2496-08-4.
• Citation: Asfaw v. Commonwealth, 56 Va.App. 158, 692 S.E.2d 261 (Va. App. 2010)
• Parties: Michael Kidus ASFAWv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 158

692 S.E.2d 261

Michael Kidus ASFAWv.COMMONWEALTH of Virginia.

Record No. 2496-08-4.

Court of Appeals of Virginia Alexandria.

April 27, 2010.

COPYRIGHT MATERIAL OMITTED

From the Circuit Court of Fairfax County, Bruce D. White, Judge. ¹

Crystal A. Meleen, Fairfax (Keats & Meleen, PLC, on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY and PETTY, JJ.

KELSEY, Judge.

A jury convicted Michael Kidus Asfaw of four counts of robbery and one count of use of a firearm during a robbery. On appeal, Asfaw contends the trial court erroneously denied his pretrial request for a transcript of his preliminary hearing. We agree with Asfaw, reverse his convictions, and remand for retrial after the transcript has been made available to him.

I.

Just over two weeks before trial, Asfaw's counsel filed a motion seeking the preparation of a transcript of his preliminary hearing. The court had previously found Asfaw to be indigent and appointed counsel to represent him. At a hearing ten days before trial, counsel explained to the court that Asfaw's charges had been previously nolle prosequied and reinstated after his acquittal on unrelated robbery and firearm charges. In that unrelated case, counsel stated, the court granted Asfaw's request for a transcript of the preliminary hearing. Counsel said the transcript proved “very useful” because “some of the testimony changed, especially the testimony of the primary witnesses who were actually alleged co-defendants in the matters....” For similar impeachment purposes, counsel reasoned, he needed the preliminary hearing transcript of the present case “so that we can have at least the preliminary testimony of the witnesses who will be testifying at trial to make sure that their testimony is consistent with what they said at the preliminary hearing.” The witnesses in the unrelated case were among those who testified at Asfaw's preliminary hearing in the present case.

In response, the prosecutor did not dispute counsel's proffer of the impeachment value of the transcript. Instead, the prosecutor merely stated the cost of preparing the transcript on such short notice would be very expensive. Asfaw's counsel, the prosecutor added, could instead rely on his notes from the preliminary hearing. Asfaw's counsel replied that he had “no reason to believe” the reporter could not prepare the transcript within several days because the court reporter retained for the preliminary hearing was not the one typically used by the court. As for the potential extra cost to expedite the transcript, Asfaw's counsel said he did not expect there to be any, but if there were, he would ask Asfaw or his parents to pay the extra cost directly. Believing there was no need for a continuance, Asfaw's counsel did not ask for one.

The trial court denied without comment Asfaw's motion for a transcript. Ten days later, the case proceeded to a jury trial on the robbery and firearm charges. In its case in chief, the Commonwealth relied heavily on the testimony of witnesses who had testified at Asfaw's preliminary hearing-some of the same witnesses who had testified unsuccessfully against Asfaw in the earlier unrelated case. The jury accepted the testimony of these witnesses and convicted Asfaw of four counts of robbery and one count of use of a firearm in the commission of a robbery.

II.

Under equal protection principles, an indigent defendant must be provided with the basic tools of an adequate defense. This obligation includes “a transcript of prior proceedings when that transcript is needed for an effective defense.” Anderson v. Commonwealth, 19 Va.App. 208, 211, 450 S.E.2d 394, 395-96 (1994) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971)). ² In determining need, two factors predominate: the strategic “value” the transcript provides to the defense, and the “availability of alternative devices that would fulfill the same functions as a transcript.” Britt, 404 U.S. at 227, 92 S.Ct. at 434; White v. Commonwealth, 21 Va.App. 710, 714, 467 S.E.2d 297, 299 (1996); Anderson, 19 Va.App. at 211-12, 450 S.E.2d at 396.

As a general rule, the strategic “value of a transcript from a prior proceeding ‘can ordinarily be assumed,’ ” Britt, 404 U.S. at 228, 92 S.Ct. at 434, because “[i]n cases whose outcome turns on witness credibility, the potential value of a transcript for impeachment purposes is obvious.” Anderson, 19 Va.App. at 212, 450 S.E.2d at 396 (citation omitted). An indigent does not have to show a particularized need “tailored to the facts of the particular case.” Britt, 404 U.S. at 228, 92 S.Ct. at 434. Nor does an indigent “bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a Court in hindsight.” Anderson, 19 Va.App. at 212-13, 450 S.E.2d at 396 (citation omitted).³ It is enough that he merely asserts a reasonable basis for believing the transcript would serve as a valuable “discovery device in preparation for trial” or as a “tool at trial itself for the impeachment of prosecution witnesses.” Britt, 404 U.S. at 228, 92 S.Ct. at 434.

An indigent, however, cannot wait until the eve of trial to insist upon his right to a transcript. The right is waived if he does not make a “timely request ... so as to avoid disruption of the subsequently scheduled trial.” White, 21 Va.App. at 713, 467 S.E.2d at 299 (quoting United States v. Talbert, 706 F.2d 464, 470 (4th Cir.1983)). The equal protection doctrine, after all, seeks to place the indigent in rough parity with the prudent, prepared non-indigent-not the imprudent, procrastinating non-indigent.

In this case, Asfaw's counsel filed the motion more than two weeks before trial and obtained a hearing on the motion ten days before trial. Asfaw's counsel suggested he could likely obtain the transcript within a few days without incurring an expedited reporter fee and, if any extra fee was incurred, he would ask either Asfaw or his parents to pay it. By making this proffer, Asfaw's counsel successfully avoided placing the trial court in the untenable position of either continuing the trial or authorizing an expedited fee solely because of a belated request.

Asfaw's counsel also demonstrated a persuasive need for the transcript. The witnesses at Asfaw's preliminary hearing testified in a prior case involving unrelated charges against Asfaw. The preliminary hearing transcript for the unrelated case, counsel proffered, was used to impeach these witnesses and ultimately resulted in an acquittal. With this proffer, Asfaw's counsel showed the requested transcript could likewise be used as a “tool at trial itself for the impeachment of prosecution witnesses,” Britt, 404 U.S. at 228, 92 S.Ct. at 434, thus confirming that “the potential value of a transcript for impeachment purposes is obvious,” Anderson, 19 Va.App. at 212, 450 S.E.2d at 396 (citation omitted). For these reasons, the trial court erred by denying Asfaw's pretrial request for a transcript of his preliminary hearing.⁴

Finally, we see no basis for characterizing the error as harmless.⁵ The failure to provide an indigent with a transcript implicates the constitutional harmless-error standard which requires a reviewing court to be “able to declare a belief that it was harmless beyond a reasonable doubt.” White, 21 Va.App. at 716, 467 S.E.2d at 300 (citation omitted). In this case, the prosecution relied heavily on witnesses who had earlier testified at Asfaw's preliminary hearing. The probability that Asfaw's counsel could have challenged their testimony with inconsistent statements (particularly given his claimed success at doing so in the earlier, unrelated case) precludes the trial court's error from being declared harmless...