McKibbon v. State, 878-86

• Decision Date: 27 April 1988
• Docket Number: No. 878-86,878-86
• Parties: Leonard McKIBBON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 83

749 S.W.2d 83

Leonard McKIBBON, Appellant, v. The STATE of Texas, Appellee.

No. 878-86.

Court of Criminal Appeals of Texas,

En Banc.

April 27, 1988.

Mark Stevens (court appointed on appeal only), San Antonio, for appellant.

Fred G. Rodriguez, Dist. Atty., and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of aggravated robbery and the court assessed punishment at ninety-nine years' confinement in the Texas Department of Corrections. The Fourth Court of Appeals affirmed the conviction upon finding that appellant was not entitled to have a copy of the transcription of his co-defendant's trial provided free of cost. McKibbon v. State, 714 S.W.2d 70 (Tex.App. San Antonio--1986). We granted appellant's petition for discretionary review to determine whether the Court of Appeals correctly decided this question of first impression in this state.

The record reflects that two people robbed a clerk at a convenience store in San Antonio. The appellant was identified by the manager of the store as one of the robbers. James Woerner, the co-defendant, was convicted at a previous trial. Appellant asserted the defense of alibi, maintaining the robbery was actually committed by Woerner and one Randy Woodall.

Prior to commencement of trial, appellant's counsel filed "Defendant's Motion for a Transcript of the Record of a Co-Defendant" which avered as follows:

LEONARD McKIBBON, petitions the Court to order the Official Court Reporter of the 227th Judicial District Court, Bexar County, Texas, to provide this Defendant with a transcript of the testimony of the trial proceedings in Cause No. 84-CR-2745, styled the State of Texas v. James Woerner, 227th Judicial District Court, Bexar County, Texas, without cost to the said Defendant. In support of this petition Defendant would respectfully show unto the Court the following:

I.

James Woerner, a Co-Defendant of the same alleged criminal episode was tried and convicted in the 227th Judicial District Court on the 19th day of October, 1984.

II.

Physical evidence and testimony adduced in the above-described trial bears directly upon the credibility of identification witnesses to be called by the State to testify in the instant case against Defendant.

III.

The above-described transcript will show that identity testimony to be used in the instant case against Defendant has been tainted by the previous above-described jury trial, and Defendant has no means of demonstrating said defect to this Court except by transcript of the former trial.

IV.

This Defendant is indigent and unable to pay for the services of the Court Reporter.

WHEREFORE, Defendant prays that the Court grant this Motion requiring the Official Court Reporter to transcribe the testimony of the evidence adduced at the above described trial without cost to the defendant.

The trial court denied appellant's motion.

In his sole ground for review, appellant asserts the trial court erred in denying his motion for a cost-free transcription of his co-defendant's trial. It is well settled that an indigent defendant is entitled upon timely request to be furnished without cost, for use at a subsequent trial, a transcription of his earlier mistrial, if it is needed for an effective defense. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). We expressly adopted the holding of Britt, supra, in the case of Billie v. State, 605 S.W.2d 558 (Tex.Cr.App.1980), wherein as follows:

Fundamental fairness requires that these indigent appellants be furnished a transcription of the court reporter's notes of their mistrial, a commodity which they surely would have purchased as a matter of course had they been financially able.

* * *

* * *

Restated, our holding today is simply that appellants were, and upon a retrial are, entitled to a copy of the transcription of the court reporter's notes from their initial trial and that the trial court's denial of their requests were, under the aegis of Britt v. North Carolina and our interpretation there, reversible error. (footnote omitted)

Shortly thereafter, in Armour v. State, 606 S.W.2d 891 (Tex.Cr.App.1980), we held the accused is presumed to have a need for a transcription of the court reporter's notes from his first trial. Furthermore, the accused does not bear the burden of showing a particularized need for the transcript, nor of showing that the alternatives are inadequate. If the State decides to oppose the request, it bears the burden of proof to show lack of need. Armour, supra, at 894.

However, in the case at bar, appellant now seeks to extend this ruling to hold that he is entitled to a transcription of the court reporter's notes from his co-defendant's trial. Therefore, the instant case is distinguishable from the facts in Billie, supra, and Armour, supra, which permit the indigent appellant to be provided with a copy of the transcription of his own trial, not that of a third party.

As noted by the Court of Appeals:

The defendant concedes that this case is distinguishable from the cited authorities. Here he is requesting that the proceedings in a third party's trial be transcribed while in the cases cited the appellants sought transcription of their own prior mistrial. The defendant contends this is a distinction without a difference, even though we do not know if the defendant was even mentioned in the testimony at the co-defendant's trial. We do not know if the testimony in that trial was consistent or inconsistent with the defendant's present position.

Additionally, we note that the request in our present case is much broader than that approved in the modified opinion in Billie. Here the defendant requests a transcription of the entire trial proceedings, whereas in Billie the court held that the Defendant need only be furnished with a transcription of the testimony of the State's witnesses.

Rather than extend and broaden the Billie rule as requested by the defendant, we feel that each request should be treated on a case by case basis. The defendant should set out with specificity that portion of the testimony he desires from any prior proceeding, whether from his own trial or that of a third party, and demonstrate a particular need for a transcription of that evidence. Much weight should be given to the trial judge's exercise or discretion after conducting a hearing on the particular request.

In the instant case, the appellant wholly failed to demonstrate a "particularized specific" need for the transcription of his co-defendant's trial. The sum total of appellant's showing of need was his request for an entire transcription of Woerner's trial. Appellant merely alleged the copy of the third party's transcription was necessary to enable him to prove his defense of alibi. However, his "need" failed to meet the test of a "particularied, specific need." Britt, supra; Billie, supra. Appellant failed to explain the manner in which he would use the transcription to assist him in his alibi defense. Moreover, appellant failed to request specific passages of testimony, but requested the entire transcription of Woerner's trial. As appellant failed to demonstrate a "particularized, specific need" for the transcription of his co-defendant's trial, we refuse to extend the presumption of need noted in Armour, supra. ¹

Due to the absence of any Texas law on the subject, we will adopt the rationale employed by appellate courts in our sister states. In the absence of a showing of some particularized need, the presumption of need as set forth in Britt, supra, should not be applied to transcriptions of third party trials. Rather, the accused shall be required to demonstrate a specific need for the transcript. A majority of other jurisdictions have employed this rationale when addressing the issue. In People v. Brown, 126 Mich.App. 763, 337 N.W.2d 915 (1983), the Michigan Court of Appeals held an indigent appellant must show the transcription of the separate trial of his co-defendant will be valuable to him. The court further held no error was committed in denying the appellant's motion for production where he did not prove in the trial or appellate court how the transcription of the co-defendant's trial would have assisted in his trial preparation or in his attempt to impeach the State's witnesses. In State v. Cox, 101 N.J.Super. 470, 244 A.2d 693 (App.Div.1968), cert. denied 53 N.J. 510, 251 A.2d 449 (1969), the court held the defendant's attorney failed to state how the transcription would aid him in preparing for trial. The court needs to be convinced the attorney's desire for the transcript will materially aid the client. Mere hope that a transcript may assist an attorney in preparing a case will not suffice. Furthermore, in State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977), the court held an indigent appellant in a criminal proceeding had no right to be supplied with a transcription of the separate trial of his co-defendant. However, upon proper showing of need, an indigent appellant is entitled to have a transcription of his preliminary hearing or portions of previous trial proceedings prepared at the State's expense if the transcription is necessary for the appellant to present his defense and adequate alternatives do not exist. See State v. Robinson, 83 N.C.App. 146, 349 S.E.2d 317 (1986); Mardia v. State, 423 So.2d 331 (Ala.Crim.App.1982); State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. den., Tison v. Arizona, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982), reh. den., Tison v. Arizona, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982); State v. Rollie, 585 S.W.2d 78 (Mo.Ct.App.1979); State v. Peterson, 46 Ohio St.2d 425, 349 N.E.2d 308 (1976); State v. Elliott, 524 S.W.2d 473, (Tenn.1975). In the instant case, the appellant failed to...