Blazo v. Superior Court

• Decision Date: 05 August 1974
• Citation: 366 Mass. 141,315 N.E.2d 857
• Parties: . Raphael LOPEZ v. COMMONWEALTH. Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 857

315 N.E.2d 857

366 Mass. 141

Joseph A. BLAZO v. SUPERIOR COURT.

Raphael LOPEZ v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 8, 1974.

Decided Aug. 5, 1974.

Lucien Wulsin, Jr., Boston Legal Assistance Project, East Boston (Michael Feldman, Boston, with him), for Joseph A. Blazo.

Harvey M. Pullman, Boston (Paul S. Waickowski, Boston, with him), for Raphael Lopez.

Robert V. Greco, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and REARDON, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

The first above entitled case is a petition by Joseph A. Blazo for certiorari, lodged in the county court, to correct alleged errors committed at a misdemeanor session of the Superior Court. A single justice of our court reserved and reported the matter to the full bench, the basic facts having been reduced by the parties to a statement of agreed facts.

Blazo had been found guilty in the Municipal Court of the City of Boston of begetting and nonsupport (G.L. c. 273, §§ 11, 15). He took his appeal under G.L. c. 278, § 18, for trial de novo by a jury of twelve at a misdemeanor session of the Superior Court, usually presided over by a judge of a District Court sitting by special assignment. Before trial, Blazo applied on the ground of his indigence to the assigned judge for an order providing for blood grouping tests under G.L. c. 273, § 12A, without cost to himself. The motion was granted. Blazo applied also (1) to have summonses served and other steps taken to secure the attendance at trial of persons alleged to be needed as witnesses on his behalf, and (2) to have a stenographer appointed to record the proceedings in the misdemeanor session, both to be without cost to him. The judge denied the two motions and declined to report the questions involved under the procedure of G.L. c. 278, § 30A. Blazo has therefore proceeded on these points by petition for certiorari (G.L. c. 249, § 4, prior to amendment by St.1973, c. 1114, § 289, effective July 1, 1974).

The second above entitled case raises only question (2), that of stenographic recording. Raphael Lopez, convicted in the Municipal Court of the Roxbury District of unlawful possession of heroin (G.L. c. 94C, §§ 31, 34) and of a hypodermic needle and syringe (§§ 27, 38), took his appeal to the misdemeanor session of the Superior Court for a trial de novo and as an indigent moved for a stenographer. The motion was denied by a District Court judge sitting by special assignment. Thereupon Lopez brought a petition in the county court under the 'superintendency' statute (G.L. c. 211, § 3), and this matter also was reserved and reported by the single justice on a statement of agreed facts. ¹

Pertinent to both questions presented here, and discussed in the briefs, are the 'Transcript Cases' commencing with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). ² These have to do for the most part with the provision of free transcripts (or reasonable substitutes) to indigents appealing from criminal convictions. They are a working out of the general constitutional principle that '(i)n criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color' (id. at 17, 76 S.Ct. at 590, plurality opinion of Black, J.), so 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.' Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). As more recently stated, while the Constitution does not require a State to equalize economic conditions, '(i)t does require that the state appellate system be 'free of unreasoned distinctions,' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversarial system.' Ross v. Moffitt, --- U.S. ---, 94 S.Ct. 2437, 2444, --- L.Ed.2d --- (1974). ³

1. Attendance of witnesses. To turn to the first issue, the expenses involved in securing the attendance of a witness on the part of a defendant in a criminal proceeding consist of the fees of the officer serving the process and fees to the witness for travel and attendance. G.L. c. 233, §§ 2--3; c. 262, §§ 8(B)(3), 29. ⁴ There is no statute relieving a defendant of these costs in case of his inability to pay them except G.L. c. 277, § 66, a statute of venerable origin ⁵ stating that a prisoner indicted for a crime punishable by death or imprisonment for life shall on demand have process at the expense of the Commonwealth to summon witnesses necessary to his defence. ⁶ This, indeed, is apparently without regard to proof of indigence. ⁷

Despite the lack of statutory authority for casting the costs of necessary witnesses in the lesser prosecutions on the public when the defendants are without resources, the Commonwealth does not argue that that relief is unavailable when necessity and indigence are shown. Such a position would be hard to maintain because it has been settled since Commonwealth v. Posehl, 355 Mass. 575, 246 N.E.2d 677 (1969), which invoked the Transcript Cases, that an indigent defendant can secure blood grouping tests at public expense--the judge below recognized the proposition in granting Blazo's motion for that purpose--and it would hardly be possible to distinguish the demand for attendance of witnesses from a demand for blood testing. General Laws c. 273, § 12A, states that in paternity matters the court on defendant's demand shall order blood grouping tests of the mother, child, and defendant. In the Possehl case we thought that, if this blanket command was not in itself to be read as requiring the public to defray these expenses where the defendant making the demand could not meet them, the Constitutions of the Commonwealth and the United States--the concepts of due process and equal protection underlying the Transcript Cases--would require that result. See 355 Mass. at 577, 246 N.E.2d 667. The present cases are not less compelling: while the right to blood testing was conferred by statute, it is the Sixth Amendment itself that in terms guarantees 'compulsory process for obtaining witnesses in (the accused's) favor,' and this is paralleled in substance by art. 12 of our Declaration of Rights.

An affluent defendant prepared to pay the fees may summon witnesses nearly ad lib. There is no constitutional command that an indigent shall be provided with the same unbounded liberty. It is right that an indigent should have to establish need for his witnesses who are to be summoned at public cost; he may not demand excesive and therefore pointless expenditure. Cf. Commonwealth v. Dirring, 354 Mass. 523, 238 N.E.2d 508 (1968); Draper v. Washington, 372 U.S. 487, 495--496, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). There should be no serious difficulty in the defendant's coming forward with his reasons justifying the particular summonses, or in the judge's reaching an objective decision on the matter.

The Rules of Criminal Procedure that are now being formulated by an Advisory Committee may be expected to prescribe a procedure for impecunious defendants who seek process for needed witnesses. Pending adoption of an appropriate rule, a defendant believing himself entitled will apply to the competent judge--ex parte if the defendant should so desire ⁸--supporting his application by affidavit showing his inability to pay the fees involved, setting out the names and addresses (if known) of the persons to be summoned, and stating why their attendance is necessary to an adequate defence. The judge may require the submission of further data. Authority for payment by the county on the court's order appears from G.L. c. 213, § 8. ⁹ The outlined procedure is similar to Rule 17(b) of the Federal Rules of Criminal Procedure, to which the Commonwealth has referred as a model. ¹⁰

The judge below may have thought that the affidavit supporting Blazo's motion was not sufficiently informing--he sought the sttendance of seven witnesses on the basis of brief averments--but Blazo did offer to supply further data if desired. In all events Blazo will be required to satisfy the procedure just described when the case is resumed in the misdemeanor session.

2. Stenographic recording. Blazo and Lopez ask to have stenographic notes made of the proceedings in the misdemeanor session of the Superior Court. This claim looks ahead to the possibility that the defendants will be convicted on the trials de novo and will pursue review of the convictions upon exceptions under G.L. c. 278, § 31, in which case they may require, and therefore make a claim for, free transcripts. Otherwise stated, the attendance of a stenographer is claimed in order to effectuate such rights as the defendants may have to secure access to verbatim records under the Transcript Cases.

The position in the Commonwealth is this. Under G.L. c. 278, §§ 33A, 33B, an official stenographer is routinely provided to record the Superior Court proceedings in prosecutions for felony and for any misdemeanor tried with a felony. Where review is by 'appeal' (the method employed following trial for murder or manslaughter, and used if ordered by the court in the other cases mentioned) there is express provision under which indigents may obtain transcripts at county expense. § 33B. ¹¹ For misdemeanors, not felony-connected, tried in the Superior Court, there is no provision for stenographic recording. ¹² But by G.L. c. 221, § 91B, inserted by St. 1965, c. 585, a defendant having the wherewithal may provide at his own expense for attendance of a stenographer and later for a transcription. Commonwealth v. Shea, 356 Mass. 358, 252 N.E.2d 336 (1969). Under the reasoning of the Transcript Cases, the defendants here are entitled to some comparable facilities at public expense so far as...