State ex rel. Marshall v. Eighth Judicial Dist. Court, In and For Clark County

• Decision Date: 16 November 1964
• Docket Number: No. 4749,4749
• Parties: The STATE of Nevada upon the relation of Edward G. MARSHALL, District Attorney of Clark County, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent.
• Court: Nevada Supreme Court

Page 680

396 P.2d 680

80 Nev. 478

The STATE of Nevada upon the relation of Edward G. MARSHALL, District Attorney of Clark County, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent.

No. 4749.

Supreme Court of Nevada.

Nov. 16, 1964.

Edward G. Marshall, Dist. Atty., Las Vegas, for petitioner.

Foley Brothers, Las Vegas, for respondent.

THOMPSON, Justice.

Warren Lonnell Harris, an indigent, is charged with murder. He was tried once but the jury could not agree upon a verdict. He is scheduled to be tried again. The court-appointed attorney who represented him at the first trial was relieved of his responsibility to proceed further and another attorney was appointed to carry on. The newly-appointed counsel moved for an order requiring the state to furnish him with a copy of the transcript of the first trial. He needs it for information, preparation. and for possible impeachment use during the retrial should a witness alter his testimony in a material respect. Were Harris financially responsible, he could purchase a copy of the transcript; unfortunately he is without money. The district court granted his motion. The transcript was ordered to be prepared at county expense and a copy thereof delivered to counsel for Harris. By this proceeding in certiorari the district attorney challenges the validity of that order, contending that the court lacked power to make it. His argument is based upon the absence of any statute authorizing such a charge against the county. The argument has no merit.

NRS 3.320(3) relating to the duties of court reporters in criminal cases provides, in part, that the reporter 'if directed by the court * * * must, within such reasonable time after the trial of such case as may be designated by law or, in the absence of any law relating thereto, by the court, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter or other printing machine, and certify to the same as being correctly reported and transcribed, and, when directed by the law or court, file the same with the clerk of the court.' NRS 3.370(2) reads, in part, that '[i]n criminal cases the fees for reportion and for transcripts ordered by the court to be made must be paid out of the county treasury upon the order of the court.' These provisions embrace the order of which the district attorney complains.

However, we wish to mention that in this case the judicial power to make the order in question does not rest primarily upon the statutory provisions which we have related. The demands of the due process and equal protection clauses of the fourteenth amendment to the federal constitution compel that a copy of the transcript of the first trial be furnished Harris. The mentioned statutes merely implement the constitutional mandate. Griffin v Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, involved an indigent's right to a transcript for the purpose of appellate review. Illinois had not, by statute, authorized an indigent appellant to obtain the transcript at state expense. The United States Supreme Court held that the due process and equal protection clauses of the fourteenth amendment prevent a state from denying appellate review to an indigent because of his poverty. Justice Black wrote: 'There can be no equal justice where the kind of a trial a man gets depends upon the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts. * * * Plainly the ability to pay costs in advance bears no rational relationship to the defendant's guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial.' The Griffin principle has been subsequently applied by the high court to closely related situations. In Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, it was held that Griffin applied to state collateral proceedings even where a criminal appeal was discretionary and not a matter of right. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, the court held that a state may not require a payment of statutory filing fees by an indigent before his appeal would be docketed. In Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, the Griffin principle was given retrospective application. See also Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892.

As already stated the Griffin doctrine involved fundamental fairness to one seeking appellate review of...