Com. v. Britt

• Decision Date: 14 July 1972
• Parties: COMMONWEALTH v. Samuel BRITT. (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 780

285 N.E.2d 780

362 Mass. 325

COMMONWEALTH v. Samuel BRITT. (and five companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 1, 1972.

Decided July 14, 1972.

Wallace W. Sherwood, for defendants.

Alvan Brody, Boston, for Commonwealth.

Richard K. Donahue, Lowell, and Lloyd L. Weinreb, for the Massachusetts Bar Association, amicus curiae, submitted a brief.

L. Scott Harshbarger, Boston, for Lawyers' Committee for Civil Rights Under Law; Melvyn H. Zarr, Boston, for Massachusetts Law Reform Institute; Reuben Goodman, Boston, for Massachusetts Defenders Committee; Matthew H. Feinberg, Boston, for Civil Liberties Union; and Robert L. Spangenberg, Boston, for Boston Legal Assistance Project, amici curiae, submitted a brief.

John M. Mullen, Boston, Amicus curiae, submitted a memorandum.

Edward T. Crossen and Louis M. Nordlinger, Asst. Dist. Attys., submitted a memorandum.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

BRAUCHER, Justice.

These cases are before us on an interlocutory report under the provisions of G.L. c. 278, § 30A, inserted by St.1954, c. 528. There was a hearing below on the defendants' motions to dismiss the indictments. The judge reported the following two questions: '(a) Is the Commonwealth required by the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, and, Articles XI and XII of the Declaration of Rights of the Constitution of Massachusetts to provide free typewritten transcript of the proceedings to an indigent who is brought before the district court charged with a felony, and, (b) if an indigent defendant has not been given such a transcript, may the Superior Court, upon the defendant's application to the Superior Court, order the district court to conduct a de novo hearing and provide a stenographer and a type-written transcript of the proceedings?'

For the purposes of this report, the parties have submitted two statements of agreed facts, which we summarize in relevant part.

Both defendants were arraigned in the Municipal Court of the Roxbury District on felony charges. Both were found to be indigent, and counsel from the Roxbury defenders committee was appointed for each. In Commonwealth vs. Taylor, the defendant, at the inception of his probable cause hearing, moved for a transcript of the proceedings. The motion was denied. He then orally moved the Municipal Court 'to proceed under Chapter 276, Sections 21 and 40 of M.G.L.A. and direct that the testimony of the witnesses be reduced to writing and signed.' This motion was denied. The defendant at the same time moved for permission to record electronically the testimony of witnesses. This motion was also denied. The hearing proceeded and probable cause was found to hold the defendant for the grand jury.

In Commonwealth vs. Britt, the defendant, at the inception of his probable cause hearing, moved 'to have the proceedings transcribed at the expense of the Commonwealth or Suffolk County.' This motion was denied. The hearing proceeded and probable cause was found to hold the defendant for the grand jury.

The grand jury indicted the defendant Taylor on a charge of assault with intent to commit armed robbery and on two charges of armed robbery, and the defendant Britt on charges of larceny and rape. The motions to dismiss filed by both defendants are pending in the Superior Court.

1. The defendants and the amicus curiae briefs in arguing that the Commonwealth is constitutionally required to furnish a free transcript of a probable cause hearing to an indigent defendant upon his request, rely generally on the line of cases beginning with Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (where the Supreme Court stated that '(t) here can be no equal justice where the kind of trial a man gets depends on the amount of money he has'), and particularly on the case of Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41. In the Roberts case, a New York defendant was charged with robbery, larceny, and assault. At trial, his request for a free transcript of a prior preliminary hearing was denied. A New York statute (N.Y.Code Crim.Proc. § 206) provided that the State would furnish a transcript of the hearing on payment of a certain fee. The Supreme Court held that the statute denied indigent defendants the equal protection of the laws. ²

The Roberts case has produced varied interpretations. In Gardner v. United States, 132 U.S.App.D.C. 331, 407 F.2d 1266, 1268, it was said, '(I)n view of the constitutional status accorded an indigent's right to a transcript by Roberts v. LaValle . . . it now appears essential that every preliminary hearing be transcribed, whether by court reporter or by tape recording, regardless of whether any request for transcription is made.' By contrast, in People v. Hubbard, 107 Ill.App.2d 79, 246 N.E.2d 44 (1969), the Illinois Court held the Roberts case inapplicable to an indigent defendant's claim to a free transcript of a preliminary hearing because there 'is no such statute in Illinois which provides for the furnishing of a preliminary hearing transcript for a fee or otherwise.' Accord, People v. Patterson, Ill.App., 268 N.E.2d 514, 517; People v. Williams, Ill.App., 268 N.E.2d 730, 733. The same view was taken by the Alabama Supreme Court in Williams v. Jasper, 287 Ala. 237, 238, 239, 250 So.2d 701, where the court noted that the Alabama Legislature had in 1969 repealed a statutory requirement that transcripts of preliminary hearings be made. See United States ex rel. Cadogan v. LaVallee, 428 F.2d 165 (2d Cir.); Sharbor v. Gathright, 295 F.Supp. 386, 388 (W.D.Va.).

Like Alabama and Illinois, this Commonwealth has no statute requiring the recording of testimony in the District Courts and furnishing of transcripts for a fee or otherwise. But G.L. c. 221, § 91B, inserted by St.1965, c. 585, does permit a defendant to hire a stenographer and record the proceedings 'at his own expense' when a court appointed stenographer is not present. Commonwealth v. Shea, 356 Mass. 358, 360--361, 252 N.E.2d 336. If we were to hold that that statute denies to the indigent the equal protection of the laws, we should then have to consider whether the legislative intention would be to save part of the statute or to deprive it of all effect. Compare DALLI V. BOARD OF EDUC., MASS., 267 N.E.2D 219.^A In none of the present cases, however, does the record show that the defendant had a stenographer present in the court room, like the defendant in the Shea case, or that his indigence prevented him from securing the presence of a stenographer. The poor are not entitled to better protection of the laws than the rich. Hence no question is presented as to denial of equal protection of the laws by reason of the statute.

2. The contentions made in these cases raise issues with potential impact not limited to probable cause hearings but affecting almost all criminal proceedings in the District Courts. We all agree that stenographers and transcripts are highly desirable at all criminal trials and proceedings in all courts. Unfortunately, however, stenographers cost money, and the Legislature has not appropriated funds for stenographers in the District Courts. 'The district courts . . . are only authorized to employ stenographers in trials by juries of six, and although parties may retain stenographers at their own expense, they are not commonly used. . . . An attempt to remedy this obvious deficiency is long overdue.' Interim Report of the Joint Special Committee Established to Investigate and Study Reform of the Judicial System, 1972 House Doc. No. 5685, at 23.

Moreover, 'stenographers are not available in sufficient numbers at the present time, to staff the 72 district courts and the Boston Municipal Court.' Id. at 23--24. As the Solicitor General recently informed the Supreme Court of the United States, 'Court reporters . . . are one of our worst bottlenecks.' Argersinger v. Hamlin, 407 U.S. 25, ---, 92 S.Ct. 2006, 2021, 32 L.Ed.2d 530 (concurring opinion of Powell, J.). The Joint Special Committee therefore suggested that 'electronic recording devices would seem to offer the most practical alternative.' Interim Report, supra, at 24.

One of the important functions of the District Courts is in our 'two-tier system for adjudicating less serious criminal cases.' Colten v. Kentucky, 407 U.S. 104, ---, 92 S.Ct. 1953, 1958, 32 L.Ed.2d 584. Compare MANN V. COMMONWEALTH, MASS. , 271 N.E.2D 331.^B In the Colten case, the Supreme Court pointed out that we, like some other States, 'do not provide for trial by jury' and 'do not record proceedings' in the lower tier of trial courts. 'Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the inferior courts.'

The present cases do not involve the 'two-tier system' but probable cause hearings in felony cases of which the District Courts do not have final jurisdiction. The district attorney may or may not participate in such hearings; in many cases the Commonwealth is represented by a police officer who is not an attorney. A decision that there is probable cause does not assure further prosecution; a decision that there is no probable cause does not preclude further prosecution. Commonwealth v. Mahoney, 331 Mass. 510, 511--512, 120 N.E.2d 645; Burhoe v. Byrne, 289 F.Supp. 408, 410--411 (D.Mass.). See Arsenault v. Commonwealth, 353 Mass. 575, 582,...