State v. Elliott

• Decision Date: 27 May 1975
• Parties: STATE of Tennessee, Petitioner, v. Otis ELLIOTT and Wayne Mitchum, Respondents.
• Court: Tennessee Supreme Court

Page 473

524 S.W.2d 473

STATE of Tennessee, Petitioner, v. Otis ELLIOTT and Wayne Mitchum, Respondents.

Supreme Court of Tennessee.

May 27, 1975.

Milton P. Rice, Atty. Gen. and Reporter, William C. Koch, Jr., Asst. Atty. Gen., Nashville, for petitioner.

James G. Cate, Jr., Cleveland, George M. Derryberry, Chattanooga, for Elliott.

Carl E. Colloms, Cleveland, for Mitchum.

OPINION

COOPER, Justice.

Otis Elliott and Jerry Wayne Mitchum were convicted 'of murder in the first degree committed while engaged in the crime of robbery,' and were sentenced to ninety-nine years in the penitentiary. A divided Court of Criminal Appeals reversed the convictions and remanded for a new trial. This court granted certiorari to review the holding of the Court of Criminal Appeals that (1) the failure of the State to provide defendants with a transcript of a pretrial hearing for the suppression of defendants' oral confessions was reversible error, and (2) that defendants' right to a transcript of prior proceedings did not include the right to a transcript of a previous trial of co-indicted defendants; and also to consider (3) whether the admission in evidence of oral statements by Mitchum implicating Elliott was a violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Cornelius C. McClary, the owner and operator of the Oakdale Superette in Cleveland Tennessee, was shot to death and robbed at about 6:30 a.m. on July 19, 1973. Acting on information previously received by a detective in the Bradley County Sheriff's office, an all-points bulletin was issued for a 1966 T--Bird and a late model Continental Mark III. Later that morning, officers found the Continental parked at the trailer home of William Johnson in Charleston, Tennessee. Fresh tracks in the dewwet grass led from the car to a nearby house. On searching the house, the officers found Elliott, Mitchum, and a third negro, identified as Robert T. Arnold, hiding under the house. A search of the area where the men were found produced more than $2700.00 in currency, some of which was blood-stained, three rings, a wallet containing registration papers belonging to the deceased, and a check for $50.00 which the deceased had cashed for the payee the night of July 18, 1972. Subsequently, the defendants were identified and placed at the Oakdale Superette at the time McClary was killed. According to the identifying witness, Mitchum and another negro were inside the store near the counter and Elliott was just outside the door of the store.

An indictment was returned charging Elliott, Mitchum, Arnold, and William E. Johnson and John W. Sharp with first degree murder and murder in the perpetration of a robbery. In response to a motion for a severance, the latter three defendants were tried together in a separate trial.

While in custody and after the indictment had been returned, Elliott and Mitchum made separate oral statements which were related at trial by Detective Wayne Neeley. Each of the defendants acknowledged their participation in the robbery. Mitchum confessed to his presence at the store with two other men and to his actual participation in the killing of Mr. McClary. Elliott on the other hand denied his presence at the scene of the crime and admitted only that he, as the driver of a second car, waited for the others at a Chevron station more than one mile from the Oakdale Superette. The statements of both defendants reveal that two cars were in fact used in the get-away; one was abandoned and the other, the Continental, was used to transport the defendants to Charleston, Tennessee, where they were found and arrested.

The defendants in separate motions moved to suppress the statements given to police officers on the ground the statements resulted from violence and threats and were not freely and voluntarily made. The trial court conducted hearings on the motions on October 24 and November 8, 1972, and concluded that the defendants had confessed freely, voluntarily, and with a knowledge of their constitutional rights.

Thereafter and prior to the trial on the murder indictment, the defendants moved to have the state give them a free verbatim transcript of the hearings on the motion to suppress and of the earlier trial of the co-indicted defendants. These motions were overruled by order entered on March 6, 1973.

The trial of the defendants was March 20 and 21, 1973. On the day before trial, Mitchum moved for a continuance because he had not been furnished with the transcripts requested in his earlier motion, averring that he 'ha(d) thereby been deprived by state action of a material aid in his defense.' In overruling the continuance motion, the court made no reference to the transcript of the suppression hearing, but said with reference to the transcript of the prior trial of the other defendants: 'Transcripts of the prior, very lengthy trial have not as yet been prepared and the Court, having heard the prior trial, is of the opinion that the transcript when prepared will be of little benefit to the defendants in this trial.'

There is no question but that an indigent defendant in a criminal prosecution must be provided with the tools of an adequate defense or appeal when those tools are available for a price to other defendants. Britt v. North Carolina, 404 U.S 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955). Generally, included in the basic tools has been a free transcript of prior proceedings in the indigent defendant's own case, where the transcript was needed to vindicate a legal right. Britt v. North Carolina, Supra; Roberts v. LaVallee, Supra; United States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir. 1969); Gardner v. United States, 132 U.S.App.D.C. 331, 407 F.2d 1266 (1969), Cert. denied, 395 U.S. 911, 89 S.Ct. 1757, 23 L.Ed.2d 225; Boney v. United States, 128 U.S.App.D.C. 279, 387 F.2d 237 (1967), Cert. denied, 390 U.S. 967, 88 S.Ct. 1077, 19 L.Ed.2d 1170 (1968). But so far as we have been able to ascertain through a search of the authorities, no federal appellate court has extended the free transcript doctrine so as to make available to an indigent defendant the transcript of testimony in a third party's trial of witnesses who are expected to testify against the indigent defendant, ¹ and this court sees no need or justification for doing so.

In this state, in the wake of Griffin and subsequent cases, the legislature established a system to provide for court reporters and official transcripts in felony and habeas corpus cases. T.C.A. Sections 40--2029--40--2043. T.C.A. Section 40--2037 empowers the trial court to direct the official court reporter to furnish an indigent defendant an official trial transcript if requested. And T.C.A. Section 40--2040 enjoins trial judges to provide indigent defendants with a free transcript for appeal. While these statutes expressly apply only to transcripts for the purpose of appeal, the courts of this state have recognized that a trial judge has the authority to require a transcript of prior proceedings in the indigent defendant's own case be furnished him if it appears that it is necessary in the interest of justice. See Bowers v. State, 512 S.W.2d 592, 594 (Tenn.Cr.App.1974).

In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed. 400 (1971), the trial court overruled the motion by an indigent defendant for a transcript of his first trial for use in his re-trial. The Supreme Court of the United States found no prejudicial error in the trial court's action, as there was evidence of the availability of an alternative device that would fulfill the same functions as a transcript. The Court did emphasize, however, that the state must provide the indigent defendant with a transcript of prior proceedings in his case when the transcript is needed for an effective defense or appeal, stating:

'Griffin v. Illinois and its progeny establish the principle that ...