State v. Arrington

• Citation: 71 O.O.2d 81,42 Ohio St.2d 114,326 N.E.2d 667
• Decision Date: 16 April 1975
• Docket Number: No. 74-332,74-332
• Parties: , 71 O.O.2d 81 The STATE of Ohio, Appellee, v. ARRINGTON, Appellant.
• Court: United States State Supreme Court of Ohio

Page 114

42 Ohio St.2d 114

326 N.E.2d 667, 71 O.O.2d 81

The STATE of Ohio, Appellee, v. ARRINGTON, Appellant.

No. 74-332.

Supreme Court of Ohio.

April 16, 1975.

Syllabus by the Court

1. In a criminal case, the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. (Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400, followed.)

2. The burden is on the state to show that a transcript of prior proceedings requested by an indigent defendant is not needed for an effective defense or appeal.

3. The state's burden of showing that a transcript of prior proceedings requested by an indigent defendant is not needed for an effective defense or appeal may be met by the state by a showing that the transcript is not valuable to the defendant in connection with the trial or appeal for which it is sought, or that there are alternative devices available to the defendant that would fulfill the same functions as a transcript. (Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400, and Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, followed.)

4. Ordinarily it is assumed that a transcript of a preliminary hearing would be valuable to a defendant without requiring a showing of need tailored to facts of the particular case.

On December 10, 1972, the defendant, Phillip Arrington, a. k. a. Phillip A. Moller, and two other men were given a ride from a Hamilton County cafe to another location in that county by Robert Bell. The defendant was in the front seat on the passenger side, and the other two men occupied the rear seat. The four had travelled about five blocks when one of the men occupying the rear seat placed a knife to Bell's neck and ordered him to stop the car. One of the men in the rear seat ordered Bell out of the car, whereupon the defendant said, 'You heard what the man said, get out of the car.' The defendant remained in the car while the other two men began searching Bell. After they found no money, Bell escaped by running away. The defendant returned to the cafe, where he was arrested. Later that afternoon, the car was found damaged.

On May 4, 1973, the defendant was found guilty in the Court of Common Pleas of assault with intent to rob and not guilty of robbery. Prior to that trial, a preliminary hearing was held on December 27, 1972. A record was made of the testimony presented at the preliminary hearing. The defendant was indicted in February 2, 1973, and arraignment was on February 6th. The next day, on February 7th, counsel was appointed for the defendant. Defense counsel filed a motion on Friday, April 27th for a copy of the transcript of the preliminary hearing at the state's expense. The motion was rejected. The motion was made again orally at trial, together with a motion to delay the trial until the transcript could be obtained. The Court of Common Pleas rejected both motions.

The defendant appealed from the judgment of conviction to the Court of Appeals, which affirmed.

The cause is presently before this court pursuant to the allowance of a motion for leave to appeal.

Simon L. Leis, Jr., Cincinnati, pros. atty., and Joseph G. Carr, Cincinnati, for appellee.

D. N. Bodley, Cincinnati, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

The primary question presented in this appeal is whether the denial of defendant's motion for the transcript of the preliminary hearing was prejudicial error. This court finds that the motion should have been granted, and accordingly reverses the decision of the Court of Appeals.

I.

The new Ohio Rules of Criminal Procedure are inapplicable to this appeal since the proceedings before the trial court were completed prior to the effective date of those rules, July 1, 1973.

The record does not contain an affidavit of indigency or entry declaring the defendant to be an indigent prior to the motion for the transcript. However, it does appear from the transcript of the docket that the trial court appointed counsel for the defendant on February 7, 1973. This court agrees with the Court of Appeals that the totality of the record indicates that the trial court determined that the defendant was indigent prior to the motion.

Britt v. North Carolina (1971), 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, states the general principle of law which this court follows today in this decision:

'Griffin v. Illinois ((1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891) and its progeny established the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. * * *'

Two factors relevant to the determination of 'need' are identified in Britt, 404 U.S., at page 227, 92 S.Ct. at page 434:

'* * * (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. * * *'

Those factors are independent of each other. The denial of a transcript at state expense may be justified either by a showing that the transcript is not valuable to the trial or appeal, or that there are alternative devices available to the defendant that would fulfill the same functions as a transcript. In State v. Scott (1972), 31 Ohio St.2d 1, 285 N.E.2d 344, this court relied upon the second factor in upholding the denial of a transcript of an earlier trial when counsel conceded that there was available an alternative device which would fulfill the same functions as the transcript. There is no such concession in the instant case.

The burden of showing either lack of value or availability of alternative devices is upon the state, not the defendant. Britt v. North Carolina, supra; Mayer v. Chicago (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372.

With respect to the value of the transcript to the defendant, the court said in Britt, 404 U.S. at page 228, 92 S.Ct. at page 434:

'We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our 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. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.'

With respect to the availability of alternative devices, the court said, at page 230, 92 S.Ct. at page 435:

'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. * * *'

In Mayer v. Chicago, supra, decided the same day as Britt, the court said (404 U.S., at page 199, 92 S.Ct. at page 417):

'* * * The order of the (Illinois) Supreme Court * * * may * * * have been based * * * on the ground that appellant had the burden of showing that the alternatives of a 'Settled' or 'Agreed' statement were inadequate. We hold today that a denial of appellant's motion * * * on the basis that he did not meet the burden of showing the inadequacy of the alternatives, would constitute constitutional error.' (Emphasis added.)

The state argues that the denial of the pretrial transcript was not error because: (1) The defendant did not establish that the transcript of the preliminary hearing was valuable to his defense, (2) the defendant did not allege any discrepancies between the testimony at trial and the testimony at the preliminary hearing, and (3) the defendant did not suggest that there were no alternative devices that would fulfill the same function as the transcript. This court disagrees. The burden is on the state, not the defendant, to show these things. A preliminary hearing, although much more limited in scope than a prior mistrial, is a formal proceeding in which testimony is taken in a judicial atmosphere. If a record is made of a preliminary hearing, its value to the defendant is similar to that of the record of a prior trial. '* * * (E) ven in the absence of specific allegations,' the value of a transcript of that record to the defense 'can ordinarily be assumed.' Britt v. North Carolina, supra, at page 228, 92 S.Ct. at page 434.

The state also has failed to show that there are alternative devices available to the defendant which would fulfill the function of the transcript. The state suggests that:

'* * * (T)here were alternative devices available to the defendant in the form of defense counsel's and the defendant's recollections of what was said at the preliminary hearing. If any discrepancies were recalled the court reporter and her notes could have been brought into the courtroom.'

Clearly, defense counsel has no recollection of the preliminary hearing, for he was appointed over a month later. That leaves only the defendant's own recollections of the preliminary hearing, which is an inadequate alternative to the transcript, in view of the fact that a record was made of the preliminary hearing.

With regard to bringing the court reporter into...