Riggins v. Rees

• Decision Date: 08 February 1996
• Docket Number: No. 95-5711,95-5711
• Citation: 74 F.3d 732
• Parties: Leonard David RIGGINS, Petitioner-Appellee, v. John REES, Warden, South Central Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 732

74 F.3d 732

Leonard David RIGGINS, Petitioner-Appellee, v. John REES, Warden, South Central Correctional Facility,

Respondent-Appellant.

No. 95-5711.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 25, 1996.

Decided Feb. 8, 1996.

Mariah A. Wooten, Caryll S. Alpert (argued and briefed), Federal Public Defender's Office, Nashville, TN, for petitioner-appellee.

Sharon S. Selby, Asst. Atty. Gen., Glenn R. Pruden, Criminal Justice Div., William D. Bridgers (argued and briefed), Office of Atty. Gen., Nashville, TN, for respondent-appellant.

Before: MARTIN, GUY, and RYAN, Circuit Judges.

BOYCE F. MARTIN, Jr., J., delivered the opinion of the court, in which RYAN, J., joined. RALPH B. GUY, Jr., J. (pp. 738-40), delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Circuit Judge.

The State of Tennessee appeals the district court's grant of a writ of habeas corpus in connection with Leonard Riggins' conviction for second degree murder in a Tennessee state court. The district court held that Riggins was denied his right to equal protection under the law because, prior to Riggins' third trial, the State refused to provide defense counsel with transcripts of Riggins' two prior trials, each of which ended in a mistrial. In doing so, the district court rejected the State's claim that providing defense counsel with access to tapes of Riggins' two prior trials was a constitutionally adequate, substantially equivalent substitute to a transcript, as required by Britt v. North Carolina, 404 U.S. 226, 227-28, 92 S.Ct. 431, 433-34, 30 L.Ed.2d 400 (1971). In this appeal, the State argues that the district court's holding is in conflict with Britt, and that allowing defense counsel access to tapes of Riggins' two prior trials in advance of his third trial was in fact an adequate alternative to a transcript. After a careful review of the record, we agree with the district court that the State's failure to provide Riggins with transcripts from his two previous mistrials violated Riggins' equal protection rights.

Riggins was indicted in March of 1980 on a charge of second degree murder in connection with the shooting death of Harvey Lee Chapman. Riggins is indigent, and counsel was appointed by the Tennessee state court. The case proceeded to trial in June of 1980, and on the second day of trial the court declared a mistrial due to prejudicial remarks made by a prosecution witness before the jury. Riggins was tried again in August of 1980, and, after a three day trial, the court declared a mistrial due a hung jury. Finally, in November of 1980 Riggins was tried a third time and was convicted of second degree murder after a three day trial. During the course of that trial, the State presented the testimony of eleven witnesses, six of whom testified at all three trials.

Prior to the third trial, Riggins' counsel requested transcripts of the previous two trials. The State denied counsel's requests, reasoning that counsel had heard all of the testimony from the prior trials and that the court reporter's tapes were a sufficient alternative to a written transcript. In compliance with the state court's ruling, and prior to the third trial, Riggins' counsel listened to the court reporter's tapes on three occasions, twice at the courthouse, and once at the court reporter's home, for at least sixteen hours.

After Riggins' conviction, transcripts of all three trials were made available to defense counsel for purposes of appeal. Counsel then sought a reversal of Riggins' conviction on direct appeal and subsequent collateral proceedings in state court, arguing in part that the state court's denial of transcripts from the two mistrials violated Riggins' equal protection rights. Riggins' equal protection claim was denied by every state court that addressed the issue.

Riggins then sought habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, filing an amended petition for a writ of habeas corpus on December 10, 1993, in the United States District Court for the Middle District of Tennessee. The State of Tennessee answered the amended petition, and the district court referred the case to a magistrate judge for an evidentiary hearing on the merits of Riggins' equal protection claim, dismissing all other claims in Riggins' habeas petition. After conducting an evidentiary hearing, the magistrate recommended that a writ should issue in Riggins' favor, finding that the State's failure to provide Riggins with transcripts of his two prior trials before Riggins' third trial violated his equal protection rights.

The district court conducted a de novo review and, after agreeing with the magistrate's decision, entered an order on April 17, 1995, vacating Riggins' conviction and directing that a writ of habeas corpus issue unless the State retried Riggins within ninety days. The district court grounded its decision in the belief that providing Riggins' counsel with free access to the court reporter's tapes of the two previous trials was not a substantially equivalent alternative to a transcript as required under the Supreme Court's decision in Britt. The district court subsequently granted the State's motion for a stay of its order and this appeal followed.

The facts of this case are essentially undisputed. Riggins' counsel listened to tapes of the two prior trials at least twice in the courthouse for a few hours and once at the court reporter's home for twelve hours. Riggins' counsel did not remember being denied access to the tapes at any time prior to the third trial. However, Riggins' counsel did state that he would have been able to cross-examine several of the witnesses more effectively if he had had access to the transcript of the first two trials during Riggins' third trial. Riggins' third trial was somewhat complicated and took three days to complete, with the State introducing testimony from eleven witnesses.

After receiving transcripts of all three trials for the purposes of appeal, Riggins' counsel identified discrepancies in the testimony of six different witnesses that he would have been able to pursue during cross-examination if he had had transcripts from the first two trials. Some of these discrepancies are minor, some perhaps more important.

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held that, to satisfy the commands of the Equal Protection Clause, states may not condition the exercise of basic trial and appeal rights on a defendant's ability to pay for such rights. Id. at 19, 76 S.Ct. at 590. Griffin and its progeny command that a State must "provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt, 404 U.S. at 227, 92 S.Ct. at 433. In the context of providing transcripts to indigent defendants, the Supreme Court explained in Britt:

In prior cases involving an indigent defendant's claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (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. (footnote omitted). As to the first factor, the Court explained further 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." Id. at 228, 92 S.Ct. at 434. The Court then focused its attention on whether, under the circumstances of case before it, the defendant had a "substantially equivalent" alternative to a transcript available to him. The defendant's first trial took three days to complete, and ended with a hung jury. The defendant's second trial began just one month later. The Court noted that the "petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant...." Id. at 228-29, 92 S.Ct. at 434. In addition, the Court recognized that the trials occurred in a small town, and the court reporter was good friends with all the local lawyers. Id. In fact, Britt's counsel conceded that he could have called the court reporter at any time prior to Britt's second trial to listen to the court reporter's tapes of Britt's first trial. On these facts, the Supreme Court held that a substantially equivalent alternative had been available to the defendant, and no constitutional violation occurred. ¹ Id. at 230, 92 S.Ct. at 435.

This Circuit has interpreted Britt as creating a "narrow exception" to the requirement that a State provide a free transcript of a prior mistrial to indigent criminal defendants. United States v. Young, 472 F.2d 628, 629 (6th Cir.1972); see also Martin v. Rose, 525 F.2d 111, 112-13 (6th Cir.1975). Several other circuits also have interpreted Britt as generally requiring a transcript unless the state shows that its alternative procedure was substantially equivalent. See United States v. Devlin, 13 F.3d 1361, 1363-64 (9th Cir.1994) (requiring a transcript where the state showed that no "practicable alternative" to a transcript existed); United States v. Jonas, 540 F.2d 566, 573 (7th Cir.1976) (noting that under Britt "in the overwhelming majority of cases" tape recordings or judicial notes are not adequate substitutes for a transcript); United States v. Baker, 523 F.2d 741, 742-43 (5th Cir.1975) (holding that no functional alternative to a transcript existed where defendant's two trials were separated by a period of six months and the defendant did not have the same counsel at the second trial). The Britt opinion itself indicated that access to a court reporter's tapes would not always be a sufficient substitute to a transcript, stating "[w]e have repeatedly rejected the suggestion that in order to render effective assistance, counsel...