State v. Keel, 6910SC329
| Citation | 5 N.C.App. 330,168 S.E.2d 465 |
| Decision Date | 23 July 1969 |
| Docket Number | No. 6910SC329,6910SC329 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Horace KEEL. |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Bernard A. Harrell, for the state.
Charles R. Hassell, Jr., Raleigh, for the defendant.
Defendant was tried first on this charge at the December 1968 Session of Superior Court of Wake County. This trial resulted in a mistrial due to the inability of the jurors to agree upon a verdict. After this mistrial the defendant, an indigent, on 17 January 1969, filed a motion requesting that he be provided, at public expense, with a transcript of the evidence presented at the December 1968 trial which ended in a mistrial. The reason stated in the motion is 'that he deems it necessary to have a transcript of the evidence presented at his first trial in order that he may properly prepare his defense for a second trial; that he is indigent and unable to pay the costs of preparation of said transcript.' No other reason is set forth in the motion requesting the transcript which was signed by his attorney Charles R. Hassell, Jr., who represented the defendant at both his trial in December 1968 which resulted in a mistrial, and his trial the following February which resulted in his conviction. The court, after considering the motion found, Inter alia, that the motion 'is not founded upon a showing of necessity' and denied the motion. The defendant assigns this denial as error.
The question may be stated thus: Is the failure to provide the defendant with a transcript of the evidence taken by the court reporter at his first trial, nothing else appearing, a denial of a basic essential of his defense at a second trial and therefore a violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States? In this case we hold that it does not.
The cases of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969), are distinguishable from this case. There it was held that the due process and equal protection clauses of the Fourteenth Amendment were violated by the State's denial of an appellate review solely because of a defendant's inability to pay for a transcript. Here, the same lawyer who represented the defendant at the first trial which resulted in the mistrial, signed the motion requesting the transcript of the evidence and the reason given was to assist him in the preparation of the defense for the second trial. No appellate review was involved here. The judge, based upon the motion filed, found that no necessity was shown for the transcript of the evidence and denied the motion.
A transcript of the evidence taken at a trial is only the court reporter's version of what the evidence was. It does not become the official record of the transcript of the evidence of a trial until the opposing parties agree thereto or it is settled by the trial judge. No doubt the judge, in finding that such was not necessary, recognized the fact that most lawyers take their own notes during the trial of what a witness says, and also that if a question arises as to a conflict in what a witness said, the court reporter is ordinarily available to testify from his notes. There is nothing in this record to indicate that the court reporter was not available to testify if necessary to impeach the State's witnesses.
In the case of Peterson v. United States, 351 F.2d 606 (9th Cir.1965), new counsel was substituted for the defendant after the conclusion of the first trial and he promptly moved that he be supplied, at public expense, with a transcript of the first trial. The court held:
'The Government need not then provide an indigent defendant with every advantage which money could buy for a litigant. The question is whether denial of access to this material in the circumstances of this case amounted, on the one hand, to a loss of mere advantage, or, on the other hand, to the deprivation of a basic essential of defense. * * *
In our judgment, where new counsel is involved and the testimony subject to impeachment is crucial to the Government's case, a transcript of the earlier testimony is the only adequate means for providing this material. The holding of this court in Forsberg v. United States, 351 F.2d 242 (9th Cir.1965) is thus distinguishable.
Where access to such essential material can be had for a fee, this 'money hurdle' must, under Griffin, be met for the indigent at Government expense. In this case means for meeting it is provided by Title 28, § 753(f), U.S.C.'
In the case of Forsberg v. United States, Supra, the same court upheld the denial of a transcript where a defendant was represented by the same counsel at the first and second trials and the trial court ruled that it would permit the reporter during the second trial to privately read the testimony of any witness used on the first trial to defendant's lawyer.
In the case of Williams v. United States, 358 F.2d 325 (9th Cir.1966), the defendant, who was also represented by new counsel, and was denied a complete transcript of the first trial for the first time in his brief contended that the primary use of the transcript of the evidence given at the first trial would have been for the impeachment of the State's witness.
The court held that such an assertion under the circumstances of that case was too conjectural and speculative to base a holding that the District Court had abused its discretion in entering the order complained of.
In the case before us, the first trial was held in December 1968. The second trial was held in February 1969. The defendant was represented by the same attorney at both trials as well as in this court. Defendant does not say that his attorney failed to take notes at the first trial of what the witnesses said. The first trial ended in a mistrial in 10 December 1968. The second trial began on 10 February 1969. It thus does not appear that sufficient time had elapsed between the two trials to cause one's memory of what the witnesses said to grow dim. Although not stated in his request for the transcript of the evidence, the defendant now contends that the primary use of the transcript of the testimony would have been for the purpose of impeaching the State's witness. Whether defendant's counsel could have actually impeached the State's witness with a transcript of what the court reporter said the evidence was is not shown. The defendant made no contention that the court reporter was not available and, in the absence of such a contention, we assume that he was available to the defendant, if desired, as a witness for the purpose of testifying to what his notes show the witnesses testified on the first trial. The only way, other than on cross-examination, the evidence in a reporter's transcript could be utilized to show conflicts in the testimony of the State's witnesses would be to have the reporter sworn and testify with respect thereto. There has been no showing here that defendant was restricted in his cross-examination of the State's witnesses. There is nothing on this record to reveal that the prosecution had a copy of the court reporter's transcript of the testimony. Both the defendant and the State had the right to use the court reporter's testimony if there was a conflict in the testimony of the witnesses.
The circumstances of this case do not reveal such a need for the transcript of the evidence that the failure of the court to require that defendant be supplied with a copy of the reporter's transcript of the evidence, at public expense, was a deprivation of a basis essential of his defense.
Defendant contends that his constitutional rights to counsel and due process of law were violated by the refusal of the trial court to suppress all identification evidence. This contention is without merit.
Defendant cites the now familiar case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) relating to a line-up. In the case...
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