Harris v. State

• Decision Date: 27 January 1987
• Docket Number: 1 Div. 695
• Citation: 552 So.2d 857
• Parties: Johnny HARRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 857

552 So.2d 857

Johnny HARRIS v. STATE.

1 Div. 695.

Court of Criminal Appeals of Alabama.

Jan. 27, 1987.

Rehearing Denied Feb. 24, 1987.

Certiorari Denied May 29, 1987

Alabama Supreme Court 86-763.

On Return to Remand Dec. 8, 1987.

Rehearing Denied Jan. 26, 1988.

Death Sentence Vacated and Reduced to

Life Sentence June 16, 1989.

Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, and Ruth A. Bourquin and Gary S. Guzy of Kaye, Scholer, Fierman, Hays & Handler, Washington, D.C., for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This matter comes before this Court on a "motion for remedy for unavailability of transcripts," under Rule 10, Alabama Rules of Appellate Procedure, filed by Johnny Harris pursuant to Rule 27, A.R.A.P. We remand this cause to the trial court for further proceedings.

I

In 1975, Harris, who was serving life sentences for rape and four robberies, was convicted for the murder of a prison guard during a 1974 riot at Atmore Prison. Death was the mandatory punishment. Title 14, § 319, Alabama Code 1940. That conviction was affirmed on appeal, Harris v. State, 352 So.2d 460 (Ala.Cr.App.1976), affirmed, Ex parte Harris, 352 So.2d 479 (Ala.1977), but set aside in June of 1981 when the trial court granted Harris' petition for writ of error coram nobis and ordered a new trial on the ground that Harris had been denied constitutional due process in that the State had failed to disclose evidence impeaching one of its principal witnesses at Harris' trial and because exculpatory defense witness Jessie Jett was unavailable at the time of Harris' trial.

Harris was retried and reconvicted in July of 1983 on the original indictment. In October of 1983, after a hearing on a motion for new trial, the trial court ordered the transcription of the trial proceedings. The trial transcript was completed and filed with the circuit court in April of 1984.

In June of 1984, Harris, represented by new counsel, requested, and the trial court ordered that the record on appeal be supplemented with the transcripts of the pretrial proceedings. Those proceedings consist of: hearings in (1) February (12th and 26th) of 1982, (2) October of 1982, and (3) January of 1983; (4) the arraignment and hearing of June 20, 1983; and (5) the evidentiary hearing in June of 1978 conducted in connection with the coram nobis petition and concerning the composition of the grand jury which indicted Harris in 1975. In ordering that the record on appeal be supplemented with these five proceedings, the trial court specifically stated the coram nobis hearing in June of 1978 had been "incorporated into the record for the instant appeal and formed the basis for this Court's denial of Mr. Harris' repeated motions to quash the indictment and this Court's October 24, 1983, ruling on the Opinion and Judgment of the Court on motion for judgment of acquittal and/or motion for new trial." In that same order, the trial court noted "that the State of Alabama has no opposition to the granting of said motions of defendant-appellant Johnny Harris and consents to the granting of the same."

In July of 1985, transcripts of the proceedings we have labeled above as (2) and (3) were filed with the circuit court. Subsequently, it was discovered that the court reporter's notes for proceedings numbered (1), (4), and (5) could not be located.

In June of 1986, Harris, through counsel, filed, pursuant to Rule 10, A.R.A.P., a motion for a new trial or, in the alternative, a motion for acceptance of substitutes for unavailable transcripts. Counsel submitted affidavits as substitutes for the missing portions of the record and argued that any remedy for the unavailability of the transcripts other than quashing the indictment would be inadequate, in part because of the search the record rule and plain error doctrine standards of appellate review in death cases.

On the 12th of August of 1986, a hearing was held on this motion. The trial court denied Harris' requests for a new trial or to quash the indictment. The trial court accepted the affidavits of Harris' former counsel (William Allison and Donald Bolton, Jr.) as substitutes for the missing records of hearings (1) and (4). The Attorney General objected to accepting the affidavit of another former attorney for Harris, W. Clinton Brown, Jr., as a substitute for the missing record of hearing (5) on the grand jury issue. The Attorney General objected to Brown's affidavit as "merely an incomplete, hearsay recollection of the testimony of other witnesses" and because it was not a "complete recitation of the facts." The trial court refused to accept Brown's affidavit. The effect of his ruling leaves Harris without any relief from the fact that he has no record or alternative evidence of the coram nobis proceedings described as number (5).

On November 7, 1986, Harris filed a "motion for remedy for unavailability of transcripts" before this Court. The Attorney General filed his response on December 12, 1986. Harris replied on December 17, 1986. The Attorney General filed a second response on December 23, 1986. In their pleadings before this Court, both Harris and the Attorney General have filed affidavits which were not presented to the trial court.

II

Because Harris was convicted and sentenced to death, he had a right to appeal and the review of his conviction and sentence was "automatic." Evans v. Britton, 472 F.Supp. 707 (S.D.Ala.1979), reversed on other grounds, 628 F.2d 400 (5th Cir.1980), rehearing denied, 639 F.2d 221 (5th Cir.1981), reversed, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), cert. denied, Evans v. Alabama, 462 U.S. 1110, 103 S.Ct. 2461, 77 L.Ed.2d 1339 (1983); Alabama Code 1975, § 12-22-150.

"In death cases this court has a standard of review stricter than that for other criminal convictions." Cox v. State, 50 Ala.App. 339, 340, 279 So.2d 143 (1973); Echols v. State, 47 Ala.App. 23, 26, 249 So.2d 639 (1971); Gore v. State, 45 Ala.App. 146, 148, 227 So.2d 432, cert. denied, 284 Ala. 729, 227 So.2d 435 (1969), cert. denied, Gore v. Alabama, 397 U.S. 966, 90 S.Ct. 1002, 25 L.Ed.2d 258 (1970). Our review in death cases is governed by the plain error doctrine which imposes on this Court "the duty to examine the entire record to determine whether any error exists prejudicial to the defendant." Watters v. State, 369 So.2d 1272, 1273 (Ala.1979), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980); Alabama Code 1975, § 12-22-241; A.R.A.P., Rule 45A. Furthermore, in this particular case, it must be noted that "discrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review." Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986). A conviction does not "cure the taint attributable to a charging body selected on the basis of race." Hillery, 474 U.S. at 264, 106 S.Ct. at 624. Once it is determined that there was discrimination in the selection of a grand jury, it is "mandatory" and "imperative" that the indictment be quashed and any conviction reversed. Id. Furthermore, racial discrimination in the selection of jurors is not a novel allegation. Compare Preston v. Mandeville, 479 F.2d 127 (5th Cir.1973).

Because Harris has a right to appeal and because he is indigent, the State must afford a " 'record of sufficient completeness' to permit proper consideration of [his] claims." Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899, cert. denied, 374 U.S. 850, 83 S.Ct. 1914, 10 L.Ed.2d 1070, cert. denied, 374 U.S. 852, 83 S.Ct. 1919, 10 L.Ed.2d 1073 (1963). However, "[i]t is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided." Harris v. Estelle, 583 F.2d 775, 777 (5th Cir.1978), citing among other cases Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971). "Alternative methods of reporting trial proceedings are appropriate particularly where state appellate rules provide a procedure for reconstruction of the trial record, and indigents and nonindigents are treated the same." Harris, 583 F.2d at 777.

It is undisputed that the trial court relied on the evidence and proceedings in the coram nobis hearing in denying certain motions at Harris' second trial, and, further, that the trial court ordered those proceedings included in the record on appeal without objection or protest from the Attorney General. It is also undisputed that the court reporter's notes of the coram nobis proceedings have either been lost or destroyed. Although the Attorney General argues before this Court that Harris did not make a timely request for a transcription of the coram nobis proceedings, an alternative argument has not been advanced that Harris is not entitled to a record of the coram nobis proceedings even if his request for transcription was timely. From the arguments presented to this Court, it appears undisputed that Harris is entitled to some reasonable and sufficient alternative to a transcript of the evidence and proceedings of the 1978 coram nobis hearing, providing he was not at fault in requesting a transcription of those proceedings. Ex parte Steen, 431 So.2d 1385 (Ala.1983); Pope v. State, 345 So.2d 1385 (Ala.), on remand, 345 So.2d 1388 (Ala.Cr.App.1976), cert. dismissed, 345 So.2d 1390 (Ala.1977).

The issue of whether Harris made a timely request for a transcription of the coram nobis hearing has not been fully litigated in the trial court. Even Harris recognizes that his request for a transcription of the 1978 coram nobis proceedings was only made "[a]s early as February 12, 1982." See Harris' "Reply to the State's Response to Defendant's Motion for Remedy for Unavailability of Transcripts," p. 3 (filed in the Alabama Court of Criminal Appeals on ...