State v. Peterson

• Decision Date: 23 June 1976
• Docket Number: No. 75-350,75-350
• Parties: , 75 O.O.2d 488 The STATE of Ohio, appellee, v. PETERSON, Appellant.
• Court: Ohio Supreme Court

Page 425

46 Ohio St.2d 425

349 N.E.2d 308, 75 O.O.2d 488

The STATE of Ohio, appellee, v. PETERSON, Appellant.

No. 75-350.

Supreme Court of Ohio.

June 23, 1976.

Syllabus by the Court

A pretrial motion by an indigent criminal defendant for a free transcript of a codefendant's prior trial is properly overruled, where the defendant has made no showing that such transcript is necessary to an adequate defense, or where available alternative devices will provide substantially the same information, and serve substantially the same function, as the requested transcript.

In the early morning hours of January 11, 1973, Walter Peterson was driving to his Cleveland home after spending the evening at the residence of his brother. While stopped at a traffic light at East 30th Street and Cedar Avenue, he was approached by three men, one of whom poked a pistol through the open window of Peterson's automobile. Peterson was dragged from his auto, and forced into the back seat.

The men drove Peterson's car to a Shell gasoline station near the Carnegie Bridge, where they robbed the station attendant at gunpoint. They proceeded across the Carnegie Bridge, and, while on the bridge, robbed Walter Peterson. After stopping for approximately five minutes at a house on Cleveland's west side, the men dropped Peterson off on West 125th Street. One of the men struck Peterson in the face with the butt of a pistol, breaking his jaw.

Five days later, Walter Peterson's automobile was observed in the parking lot at Cleveland East Tech High School. Peterson was notified, and he and two police officers staked out the parking area in an unmarked vehicle. Presently, a man approached the Peterson auto and raised the hood. Peterson identified the man as one of the three who had kidnapped and robbed him. The police officers arrested the man, Carlton Waddy, and found the keys to Peterson's automobile in Waddy's pocket. The next day, Walter Peterson and the Shell service attendant identified two other men, Robert Turner and the appellant, Raymond Peterson, from police mug shots.

On March 13, 1973, Waddy, Turner and Raymond Peterson were each indicted by the Cuyahoga County grand jury, on two counts of armed robbery, and single counts of kidnapping, aggravated assault, auto theft, and operating an automobile without the consent of the owner. Turner was arrested in Cleveland, and, on August 23, 1973, convicted on all counts.

On August 28, 1973, Waddy, who was free on bond, and the appellant were arrested in New Kensington, Pennsylvania, and extradited to Ohio to stand trial. On October 31, appellant's appointed counsel filed a motion with the trial court requesting a free transcript of co-defendant Turner's prior trial. The motion was denied.

Appellant and Waddy were tried together. On November 23, they were convicted on all counts. Both Walter Peterson and the Shell service attendant testified for the state, identifying the appellant as the driver of the stolen automobile. Neither defendant testified.

Appellant filed an appeal from his conviction to the Court of Appeals, assigning as error the trial court's denial of his motion for a free transcript of the Turner trial. The Court of Appeals affirmed appellant's conviction.

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

John T. Corrigan, Pros. Atty., and Howard B. Maniker, Asst. Pros. Atty., for appellee.

Henkin & Seewald and J. Gary Seewald, Cleveland, for appellant.

PAUL W. BROWN, Justice.

The question presented is whether an indigent criminal defendant is entitled to a free transcript of a co-defendant's prior trial, to aid in the conduct of his own defense to an identical indictment.

In Griffin v. Illinois (1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, ¹ the United States Supreme Court held that an indigent defendant is constitutionally entitled to a free transcript of his trial, or an adequate alternative thereto, when that transcript or alternative is essential to an effective appeal from his conviction. The court in Griffin was faced with an Illinois rule which allowed a convicted criminal defendant to present claims of trial error on appeal only if a transcript of the testimony adduced at trial was procured. Justice Black, writing for four members of the court, stated:

'Counsel for Illinois concedes that these petitioners needed a transcript in order to get adequate appellate review of their alleged trial errors. (Id. at page 16, 76 S.Ct. at 589.)

'* * *

'* * * (T)o deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Many States have recognized this and provided aid for convicted defendants who have a right to appeal and need a transcript but are unable to pay for it. A few have not. Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in its administration of its criminal law. * * * (Id., at page 19, 76 S.Ct. at 590.)

'* * * We do not hold, however, that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court (of Illinois) may find other means of affording adequate and effective appellate review to indigent defendants.' Id., at page 20, 76 S.Ct. at 591.

Subsequently, in Williams v. Oklahoma City (1969), 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (and Mayer v. Chicago, infra), the Supreme Court reversed state court decisions which made free transcripts available to indigents upon appeal from felony convictions, but denied those transcripts upon appeal from misdemeanor convictions. In Lane v. Brown (1963), 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892, and Long v. District Court of Iowa (1966), 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290, the court applied the Griffin principle to transcripts of habeas corpus proceedings, where those transcripts were deemed essential to effective direct appeals from initial proceedings in habeas corpus. In Roberts v. LaVallee (1967), 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41, the court found meritorious an indigent's claim to a transcript of his own preliminary hearing. See State v. Arrington (1975), 42 Ohio St.2d 114, 326 N.E.2d 667. ²

More recently, the Supreme Court has placed emphasis upon judicial and extrajudicial alternatives to the free transcript. In Wade v. Wilson (1970), 396 U.S. 282, 286, 90 S.Ct. 501, 504, 24 L.Ed.2d 470, the court refused to decide whether 'a State (must) furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief,' requiring instead that petitioner seek to borrow a copy of the requested transcript from state authorities, his co-defendant, or some other custodian of a copy. (Emphasis added.) In Mayer v. Chicago (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, the court rejected, upon a motion by an indigent for a transcript of his trial for use on direct appeal, a statutory distinction between felonies and nonfelonies, but remanded the cause to the Supreme Court of Illinois for consideration of alternatives to a complete transcript. In Britt v. North Carolina (1971), 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400, the court accepted petitioner's assertion that a transcript of a prior mistrial would be of value upon retrial, but affirmed, nevertheless, a state court decision which denied that claim. The court stated, at pages 229-230, 92 S.Ct. at page 434:

'* * * The trials of this case took place in a small town where, according to petitioner's counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial. It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.

'* * * (P)etitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript.'

Mayer and Britt delineate two factors relevant to a determination of an indigent's need for a transcript of a prior proceeding: '(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.' Britt, 404 U.S., at page 227, 92 S.Ct. at page 434. Once an indigent defendant has '(made) out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an 'alternative' will suffice * * *.' Mayer, 404 U.S., at page 195, 92 S.Ct. at page 412. '* * * 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 a particular case. * * * (E)ven 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 * * *.' Britt, 404 U.S., at page 228, 92 S.Ct. at page 434.

Mayer and Britt stand for the proposition that once an indigent defendant has made a colorable, as opposed to a particularized, showing that a complete or partial transcript of a prior proceeding is of value, the state must demonstrate that an available alternative device will provide substantially the same information, and serve substantially the same function, as a transcript. As we have indicated, the Supreme Court has applied this principle to a request for a trial transcript to be used upon appeal as of right from a criminal conviction; to a request for a transcript of a habeas corpus proceeding, to be used upon appeal as of right from that proceeding; and to requests for transcripts of preliminary hearings and mistrials.

The Supreme Court has not, however, applied the requirements of Mayer and Britt to a motion by an indigent for a...