State v. Tomlinson

• Decision Date: 12 December 1978
• Docket Number: No. 2,CA-CR,2
• Citation: 589 P.2d 1345,121 Ariz. 313
• Parties: The STATE of Arizona, Appellee, v. Charles Ellie TOMLINSON, Jr., Appellant. 1422.
• Court: Arizona Court of Appeals

Page 1345

589 P.2d 1345

121 Ariz. 313

The STATE of Arizona, Appellee, v. Charles Ellie TOMLINSON, Jr., Appellant.

No. 2 CA-CR 1422.

Court of Appeals of Arizona, Division 2.

Dec. 12, 1978.

Rehearing Denied Jan. 10, 1979.

Review Denied Jan. 30, 1979.

John A. LaSota, Jr., Atty. Gen., by William J. Schafer, III, and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

David P. Tiers, Tucson, for appellant.

OPINION

HOWARD, Judge.

At a second trial appellant was found guilty by a jury of forcible rape and sentenced to not less than ten nor more than 15 years in the Arizona State Prison. He presents two questions for review. Did the trial court err when it denied his request for a free transcript of the prior trial? Did the trial court err when it allowed the state to introduce into evidence a written transcript of a tape-recorded interview with the appellant? We believe the trial court erred in denying the transcript and reverse.

The first trial, which commenced on December 8, 1977, ended the next day when the trial judge declared a mistrial after the jury was unable to reach a verdict. The only witnesses who testified were the victim, Detective Middleton and the appellant. At the most, the victim's testimony under direct and cross-examination consumed a period of one and one-half hours. Prior to the first trial the state, pursuant to Rule 15.1, 17 A.R.C.P., had provided appellant's counsel with, inter alia, reports of the incident made by the victim to Officer Steve Ritchie and Det. Middleton, pictures of the victim's torn underpants and the victim's signed statement concerning the incident.

On December 19, 1977, appellant's court-appointed attorney, who had represented him at the first trial, made a motion for a free copy of the trial transcript on the grounds that he needed it to properly review the testimony of all the witnesses and to have it available for impeachment purposes. No authority in support of the motion was cited to the court.

On December 29, 1977, the trial court set the case for trial on January 10, 1978. On January 3, 1978, appellant's motion for the free transcript was heard by the trial court. While observing that the trial was only a week away and that there might be some problem in transcribing the testimony from the first trial, the trial court denied the motion for two reasons: (1) There was no legal authority for furnishing the transcript and (2) appellant had not shown any specific reasons why he needed it at that time. However, the court did state in its order denying the motion:

". . . if there is some phase of the testimony that Defense counsel may feel to be contradictory, the Motion for trial transcript may be given consideration at that time."

At the second trial appellant was represented by the same counsel who represented him at the first trial and the official court reporter who was reporting the trial was the same one who reported the first trial. During cross-examination of the victim a discussion ensued as to what the victim meant when she testified that appellant "ripped off" her jeans and her panties and whether she had given the same testimony at the first trial. Appellant, in the middle of cross-examination, moved for a copy of the transcript of the first trial for impeachment purposes. The court made no ruling. Defense counsel resumed the cross-examination. From the questions asked by defense counsel it appears there was some question as to whether the victim had changed her testimony from the first trial concerning who had turned off the interior lights or the headlights of appellant's automobile after the rape and whether her parents cared when she got home. Defense counsel then renewed his request for the transcript. The court denied it. When counsel was permitted to make a record on his request for the transcript, he stated he needed it because of "gross inconsistencies" between the victim's testimony at the first trial and her present testimony. He did not particularize as to the nature of these "gross inconsistencies". The trial court again stated that it knew of no legal authority for providing the transcript and that it would unduly delay the trial to have the transcript or some portion of it prepared. Again, neither counsel offered any legal authority to the court to aid it in its ruling.

The right of an indigent to a free transcript of his prior trial was decided in the case of Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In Britt, the petitioner's three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim the petitioner filed a motion alleging he was an indigent and asked for a free transcript of the first trial. The trial court denied his motion. The issue was whether this denial violated petitioner's rights to equal protection under the Fourteenth Amendment to the United States Constitution. The Court held that under the narrow circumstances of the case a transcript was not needed for the petitioner's defense. However, in so ruling, the Court set down certain principles:

"Griffin v. Illinois (351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)) and its progeny establish 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." 92 S.Ct. at 433.

The Court identified two factors as relevant in determining the need for a transcript: (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 the transcript.

The Court also discussed the failure of the petitioner to make a particularized showing of need:

"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." (Footnote omitted) 92 S.Ct. at 434.

The trial court in Britt had rested its decision on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript. It appeared that the second trial was before the same judge with the same counsel and same court reporter and that the two trials were only a month apart. The trial court suggested that the petitioner's memory and that of his counsel should have furnished an adequate substitute for a transcript. Furthermore, the court pointed to the fact that the petitioner could have called the court reporter to read to the jury the testimony given at the mistrial, in the event that inconsistent testimony was offered at the second trial. The Court in Britt rejected this as an inadequate alternative.

"We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as 'too little and too late' in United States ex rel. Wilson v. McMann, 408 F.2d 896, 897 (CA2 1969)." (Footnote omitted) 92 S.Ct. at 434.

The reason the Court affirmed the conviction in Britt was because at oral argument it was shown that the trial took place in a small town where, according to petitioner's counsel, the court reporter was a good friend of the local lawyers and was reporting the second trial. It further appeared 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. The court stated:

"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 this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript."

In Britt the court concluded that under the "narrow circumstances" of the case there was no violation of equal protection. The federal courts which have had occasion to rule on the subject have pointed out the importance of the petitioner's concession in Britt. Thus, in United States v. Young, 472 F.2d 628 (6th Cir. 1972) the court held that there was error in denying appellant a transcript of the prior trial. There, appellant's first trial ended on December 8, 1971. On December 15, 1971, he moved for a transcript of his first trial. The motion was not ruled on until the start of the second trial, at which time his motion was denied. Three months later the trial court, in granting a motion for a transcript on appeal, commented on its denial of the transcript at the outset of the second trial. It stated that the two trials were just two weeks apart, defense counsel was the same and the court reporter was available to read back at any time any portion of the first trial that might have been...