Fisher v. Hargett

• Decision Date: 26 July 1993
• Docket Number: No. 92-7691,92-7691
• Citation: 997 F.2d 1095
• Parties: Larry FISHER, Petitioner-Appellee, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1095

997 F.2d 1095

Larry FISHER, Petitioner-Appellee, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellant.

No. 92-7691.

United States Court of Appeals Fifth Circuit.

July 26, 1993.

Marvin L. White, Jr., Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for respondent-appellant.

George Lucas, Jackson, MS (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before EMILIO M. GARZA, DeMOSS, Circuit Judges, and ZAGEL ^*, District Judge.

DeMOSS, Circuit Judge:

Petitioner Larry Fisher is currently in the custody of the Mississippi Department of Corrections. Convicted of rape on January 31, 1986, Fisher received a life sentence which he appealed to the Mississippi Supreme Court. When the Mississippi Supreme Court affirmed his conviction on September 14, 1988, Fisher instituted the present federal habeas corpus proceeding. The district court agreed with Fisher that Mississippi's failure to provide him with a free full transcript of his second trial for the capital murder of an earlier victim violated his constitutional right of equal protection. Though the district court rejected Fisher's second claim that his constitutional right to a speedy trial had been violated, it granted Fisher's Petition for Habeas Corpus. The State of Mississippi filed this appeal from that order. We reverse the grant of habeas corpus.

I. FACTS AND PROCEDURAL HISTORY

On February 11, 1983, Patsy Jo Rivers was raped in Lauderdale County, Mississippi. On June 4, 1983, Meridian Police set up a decoy operation in which they caught and arrested Fisher. On the next day, Ms. Rivers identified Fisher in a line-up. On December 1, 1983, Fisher was formally indicted for the rape, in addition to two separate capital murder charges for the deaths of Melinda Gail Weathers and Carol Formby. On December 5, 1983, the state trial court arraigned Fisher on all three indictments.

On April 16-21, 1984, Fisher was tried, convicted, and sentenced to die for the capital murder of Ms. Weathers. Fisher appealed and on October 16, 1985, the Mississippi Supreme Court reversed the murder conviction and remanded the case for a new trial with directions for a change of venue. On December 9, 1985, Fisher's remanded trial commenced. On December 13, 1985, the jury acquitted Fisher of the charge of murder.

On January 30, 1986, the Rivers rape trial commenced. Fisher, as an indigent, was represented by appointed counsel, just as he had been on each of the two earlier occasions. The state used three witnesses that had testified in both previous murder trials. The testimony of these witnesses in the prior murder trials was minimal and limited to Fisher's modus operandi in such murder. Though Rivers was one of these three common witnesses, her testimony in the two earlier trials never mentioned the rape. However, as the rape victim, Rivers was the state's main witness in the present case.

Fisher requested a full free transcript of the second trial, which the State refused. He had been given a transcript of the first capital murder trial; and the State also gave him all discovery materials within its possession, including written statements by all of the state's witnesses. Moreover, his counsel obtained a full transcript of the rape trial's preliminary hearing in which Rivers had testified. The state judge permitted him to use this transcript during the rape trial for impeachment purposes. At the close of the trial, the jury convicted Fisher of rape and sentenced him to life imprisonment. Fisher appealed and the Mississippi Supreme Court affirmed his conviction on September 14, 1988.

This habeas corpus petition is based on Fisher's claim that the State's denial of a free transcript of the second trial violated his constitutional right to equal protection. In the alternative, Fisher argues that his constitutional right to a speedy trial was violated by the length of time between his arrest on the rape charge and his trial.

II. DISCUSSION

A. Constitutional Right to a Free Transcript

Fisher claims that a full free transcript of the second capital murder trial was necessary for his defense in the rape trial. He argues that the state's use of witnesses common to all three trials made this transcript a necessity to his new counsel as both a discovery tool and as a means of impeaching those witnesses. The district court accepted this argument and found that the state trial court's refusal to furnish Fisher, an indigent, with the requested transcript violated the holding of the Supreme Court's opinion in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).

In Britt, an indigent defendant requested a transcript from an earlier mistrial to prepare for a subsequent retrial one month later on the same charge, with the same judge, counsel, and court reporter. The Supreme Court established a two-prong test to determine a defendant's need for the transcripts of a prior mistrial proceedings: (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. Id. at 227, 92 S.Ct. at 433. Though the defendant in Britt failed to satisfy this second element, the Court's opinion stands for the rule that indigent defendants have a constitutional right under the equal protection clause to receive a free transcript of prior mistrial proceedings unless they are provided an adequate alternative. Id.

The question of first impression before us today is whether the state is constitutionally required to provide an indigent defendant with a full free transcript of a prior trial on a different charge.

Fisher answers the question affirmatively, relying heavily on the district court's analysis and interpretation of Britt. In Britt, the Supreme Court declared that "[o]ur 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." Britt, 404 U.S. at 227, 92 S.Ct. at 433. As a result, the district court found that Fisher had demonstrated sufficient need for the trial transcript from his second capital murder trial. According to the district court, the transcript could be used to familiarize the new attorney with the prior proceedings and to impeach witnesses who testified in both the murder retrial and the River's rape trial. As to Britt 's second requirement, the district court relied on the Supreme Court's statement that "[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." Britt, 404 U.S. at 230, 92 S.Ct. at 435. Therefore, the district court held that Fisher was not required to prove that he attempted to take advantage of all possible substitutes for the trial transcript to be entitled to relief.

This Court has held that "[a]n indigent defendant has both a constitutional and a statutory right to a free transcript of prior proceedings if it is reasonably necessary to present an effective defense at a subsequent proceeding." United States v. Pulido, 879 F.2d 1255, 1256 (5th Cir.1989) (citing United States v. Johnson, 584 F.2d 148, 157 (6th 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979)); see also, Tague v. Puckett, 874 F.2d 1013, 1014 (5th Cir.1989) (interpreting Britt to require a state furnished transcript when needed for an effective defense). Furthermore, we have interpreted Britt to mean that "a court must assume that a transcript of a prior mistrial is valuable to the defense. Thus, ... [a] case turns on the availability of adequate alternatives to a transcript." Pulido, 879 F.2d at 1257 (citations omitted).

The authorities cited by both the district court and Fisher in support of their position all address a request by a defendant for a transcript of a prior mistrial for use in a subsequent retrial for the same offense. The State argues that Britt does not extend to this case, which involves a request of a transcript of a prior case (not a mistrial) for use in a subsequent case for an offense involving a different victim of a different crime that occurred in a different place and at a different time.

The State emphasizes that Britt and its progeny (Pulido and Tague ), addressed the limited question of whether a free transcript of a prior mistrial was constitutionally required for use in a subsequent retrial for the same offense. We are referred to our statement in Pulido that "[t]his right extends to the case of a mistrial followed by a subsequent prosecution but has been limited by the Supreme Court according to criteria with somewhat hazy parameters." Pulido, 879 F.2d at 1256 (emphasis added). The State adds that the cases that the Supreme Court cites in footnote 1 of Britt all involve a request for a free transcript for use in an appeal or some other type of review of the same case. According to the State, Britt is therefore limited to a specific context, which is not applicable to this case. Lastly, the State argues that even if the Britt test has been met, then any error which may have occurred is harmless.

1. Value of Transcript

If we apply Britt 's requirements to the facts of the present case, the logic underlying the Britt test breaks down. For example, in the case of a mistrial and subsequent trial on the same charge, the Supreme Court held that the first Britt requirement concerning the value of the transcript to a defendant should be assumed. Britt, 404 U.S. at 228, 92 S.Ct. at 434. Their rationale was that a mistrial becomes, essentially, a dry run of the second prosecution. In that context, the transcript is invaluable in preparing for the second trial. When we review the facts...