Draper v. State of Washington

Citation372 U.S. 487,83 S.Ct. 774,9 L.Ed.2d 899
Decision Date18 March 1963
Docket NumberNo. 201,201
PartiesRobert DRAPER and Raymond Lorentzen, Petitioners, v. STATE OF WASHINGTON et al
CourtUnited States Supreme Court

Charles F. Luce, Portland, Or., for petitioners.

John J. Lally, Spokane, Wash., for respondents.

Mr. Justice GOLDBERG delivered the opinion of the Court.

Certiorari was granted in this case, 370 U.S. 935, 82 S.Ct. 1589, 8 L.Ed.2d 806, in order that the Court might consider whether the State of Washington's rules governing the provision of transcripts to indigent criminal defendants for purposes of appeal were applied in this case so as to deprive petitioners of rights guaranteed them by the Fourteenth Amendment.

This Court has dealt recently with the constitutional rights of indigents to free transcripts on appeal in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269. The principle of Griffin is that '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts,' 351 U.S., at 19, 76 S.Ct., at 591, a holding restated in Eskridge to be 'that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials,' 357 U.S., at 216, 78 S.Ct., at 1062. In Eskridge the question was the validity of Washington's long-standing procedure whereby an indigent defendant would receive a stenographic transcript at public expense only if, in the opinion of the trial judge, 'justice will thereby be promoted.' Id., at 215, 78 S.Ct., at 1062. This Court held per curiam that, given Washington's guarantee of the right to appeal to the accused in all criminal prosecutions, Wash.Const. Art. I, § 22 and Amend. 10, '(t)he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript,' id., at 216, 78 S.Ct., at 1062, and remanded the cause for further proceedings not inconsistent with the opinion. In response, in Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332 (1959), a case which was remanded by this Court for reconsideration in light of Eskridge two weeks after that case was decided, 357 U.S. 575, 78 S.Ct. 1387, 2 L.Ed.2d 1547, the Supreme Court of Washington formulated a new set of rules to govern trial judges in passing upon indigents' requests for free stenographic transcripts:

'1. An indigent defendant in his motion for a free statement of facts must set forth:

'a. The fact of his indigency

'b. The errors which he claims were committed; and if it is claimed that the evidence is insufficient to justify the verdict, he shall specify with particularity in what respect he believes the evidence is lacking. (The allegations of error need not be expressed in any technical form but must clearly indicate what is intended).

'2. If the state is of the opinion that the errors alleged can properly be presented on appeal without a transcript of all the testimony,

'a. it may make a showing of what portion of the transcript will be adequate, or

'b. if it believes that a narrative statement will be adequate, it must show that such a statement is or will be available to the defendant.

'3. The trial court in disposing of an indigent's motion for a statement of facts at county expense shall enter findings of fact upon the following matters:

'a. The defendant's indigency

'b. Which of the errors, if any, are frivolous and the reasons why they are frivolous

'c. Whether a narrative form of statement of facts will be adequate to present the claimed errors for review and will be available to the defendant; and, if not

'd. What portion of the stenographic transcript will be necessary to effectuate the indigent's appeal.

'4. The trial court's disposition of the motion shall be by definitive order.' 54 Wash.2d, at 44—45, 338 P.2d, at 337.

It is the application of these rules which is asserted by petitioners in the present case to be inconsistent with their constitutional rights as declared in the Griffin and Eskridge cases. Petitioners, who are concededly indigent, were each convicted of two counts of robbery by a jury and sentenced to two consecutive 20-year terms after a three-day trial ending on September 14, 1960, during which they were represented by court-appointed counsel. Their motions for new trials were denied. On October 20, acting pro se, they filed timely notices of appeal from the judgments of conviction, and then filed identical motions requesting the trial judge to order preparation of a free transcript of the record and statement of facts.1 Drawn inartistically, these requests asserted petitioners' indigency and then set forth 12 allegations of error in the trial, relating to admission of testimony and exhibits, perjured and self-contradictory testimony, prejudice of the trial judge in the conduct of the trial, failure to enforce the rule as to exclusion of witnesses, and failure of the evidence to establish the elements of the crime charged. Each concluded that '(u)nless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal.'

Petitioners' motions were heard on November 28 by the judge who had presided at the jury trial. Petitioners were present at the hearing, having been brought from the State Penitentiary where they were and still are incarcerated. Although they no longer wished the aid of counsel, the judge, in accordance with a statement in Woods v. Rhay,2 directed trial counsel to speak in petitioners' behalf. Counsel attempted, as best he could from his recollection of a trial which had occurred two and one-half months earlier, to elaborate upon the specifications of error in petitioners' motions. The objections to exhibits, he stated, related to a gun introduced against petitioner Draper, and a jacket, claimed to have been found with money in it, introduced as belonging to petitioner Lorentzen. Counsel explained at length that he regarded the foundation laid for introducing these items to have been extremely weak, and that receipt of the evidence on such a slim foundation was prejudicial. He suggested that petitioner Draper had been identified only by an alleged accomplice, Jennings, whose testimony was also contradictory and perjurious. Counsel also argued that the prosecution had failed to prove both the existence of the corporation which the indictment described as owning one of the robbed motels, and the possessory right of its agent to the money taken. 'In my opinion,' he said, 'those two omissions are very important, if not fatal in this case.' Further, counsel referred to petitioners' contention that two witnesses were improperly allowed to sit in the courtroom prior to testifying, and said that he had no personal knowledge of the facts supporting the contention but that since defendants had invoked the exclusion-of-witnesses rule at trial there was perhaps something to the contention. Finally, counsel argued that petitioners' contention that the evidence was insufficient to sustain the conviction was, under Woods v. Rhay and analogous decisions of this Court governing the rights of federal prisoners, enough in itself to entitle them to a transcript.

Since petitioners had not desired counsel's assistance, petitioner Draper was allowed to argue when counsel finished. He stated in a layman's way what he believed were the trial errors, but when interrogated by the trial judge for supporting details he asserted his inability to give any without a transcript.

The prosecutor opposed the motion both by affidavit and by argument at the hearing. His affidavit summarized in several paragraphs his contrary interpretation of the evidence, which according to him plainly established the defendants' guilt. In his argument he undertook to refute each of petitioners' assignments of error. He contended, therefore, that petitioners' motions for free transcripts and statements of facts should be denied because 'there is nothing here to support any substantial claim of error whatsoever.'

The trial judge, upon conclusion of the prosecutor's argument, reviewed petitioners' assignments of error and indicated orally that he would deny their motions. On December 12 he entered an order, coupled with formal findings of fact and conclusions of law, in which he concluded

'That the assignments of error as set out by each defendant are patently frivolous; that the guilt of each defendant as to each count of Robbery was established by overwhelming evidence, and that accordingly the furnishing of a statement of facts would result in a waste of public funds.'

His findings summarized in six paragraphs the facts which he thought had been proven at the three-day trial. This summary constituted only the trial judge's conclusions about the operative facts, without any description whatsoever of the evidence upon which those conclusions were based. After stating these factual conclusions, the judge specifically rejected each of petitioners' 12 assignments of error with a summary statement—almost wholly conclusory—concerning each.

Petitioners sought review by certiorari of the trial court's order in the Supreme Court of Washington. Department One of that court quashed the writ, holding that the trial court had properly applied the principles of Woods v. Rhay and had correctly found the appeal to be frivolous. 58 Wash.2d 830, 365 P.2d 31. By the very nature of the procedure, the Supreme Court's ruling was made without benefit of reference to any portion of a stenographic transcript of the jury trial. Solely on the basis of the stenographic record of the hearing on the motion, the Supreme Court stated that '(i...

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