United States v. Arthur Bell Talbott

454 F.2d 1111, 1972 U.S. App. LEXIS 11569

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 31, 1972
• Docket: 71-1169
• Status: Published

Opinions

MATTHES, Chief Judge.

Defendant has appealed from the judgment finding him guilty of armed robbery of a bank in Council Bluffs, Iowa, in 1970. In the first trial on March 4, 1971, the jury was unable to agree upon a verdict. On March 5, the court declared a mistrial and immediately thereafter set the case for another trial on March 11, 1971.¹ The second trial resulted in the guilty verdict upon which the judgment under attack was entered.

The basic question we are required to resolve is whether defendant, an indigent, was denied equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution, because the district court denied his request for a free transcript of the first trial.

We hold, in light of the narrow circumstances of this case, consistent with the decision of Britt v. State of North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), that the denial of the request for transcript did not deprive defendant of equal protection.

It is settled doctrine that the state must, as a matter of equal protection, provide indigents with the basic tools of an adequate defense. In Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), the issue was centered on the right of an indigent defendant to a free transcript of a preliminary hearing at which the key government witness had testified. In reversing the lower court’s denial of a transcript, the Court stated:

“Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.”

389 U.S. at 42, 88 S.Ct. at 196.

In Britt, the Court again took notice of the equal protection rule enunciated in its prior decisions, including Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), Roberts v. La-Vallee, supra, and other cases. See Britt v. State of North Carolina, 404 U.S. 227, n. 1, 92 S.Ct. 433. The Britt Court, however, held on the basis of the narrow, relevant circumstances presented in that case that the rule of Griffin v. Illinois and its progeny had not been violated by reason of the failure to provide petitioner Britt with a free transcript of the first trial. The factors relied upon to reach that result persuade us that the district court’s denial of the transcript of the first trial must be sustained.

A comparison of the circumstances in Britt with those present here is in order. In Britt, the first trial for murder required three days. Here, the first trial was completed in one day. In Britt, the second trial took place a month after the first trial. In this case, the second trial was scheduled for and began six days after the first trial had ended in a deadlocked jury. In Britt, it became clear during oral argument in the Supreme Court that petitioner could have obtained from the court reporter

“far more assistance than that available to the ordinary defendant. . The trial 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.”

404 U.S. at 229, 92 S.Ct. at 434, 435.

Here, the court, in denying the request for the transcript, stated:

“First of all, the Court does not deem it necessary, in the first instance, to have a transcript. This is by reason of the fact this is a one-day trial. That in addition thereto, it’s immediately thereafter, and there is no forgetting on the part of the witnesses so far as the Court understands, and neither has the Court reached that stage in these proceedings where there is any indication that any impeachment by reason of some perjury of the Government’s witnesses might ensue as it relates to the disposition of this cause.

“This Court now says, and now finds, that in the event that he feels there is something indicated to this Court during the interim of this trial which would indicate an inconsistency or a possibility of impeachment of some witness, before cross-examination of that particular witness ensues, counsel for the defendant will be proffered an opportunity to have the Reporter read back to him any testimony that he deems necessary for his pursuit of cross-examination.”

There are additional circumstances in this case which are of significance. Mr. Robert L. Bray, attorney for the defendant at the first and second trials and on appeal, had been retained and paid a fee of $1,500 for services in connection with the first trial. On March 9, two days before the second trial, Mr. Bray was appointed to represent defendant under the Criminal Justice Act. On the same day, the application for a free transcript was filed. The statement above set out in the nature of an order was made in chambers on the morning of March 11, and before the trial commenced.

From the briefs, but not the record, we learn that after the first trial the prosecutor had obtained from the court reporter the transcript of the three identifying witnesses. A copy of this transcript was furnished to defendant’s attorney some time before the second trial commenced. The record is silent as to whether defendant’s attorney was required to pay for this copy, or whether it was furnished without cost. The briefs are in disagreement on this matter. In any event, the parties agree that counsel for defendant resorted to the transcript during the cross-examination of the three witnesses. Moreover, at no time during the second trial did defense counsel indicate to the court that he believed there was any inconsistency in the testimony of any of the witnesses, and at no time did he avail himself of the opportunity to have the court reporter read back the testimony of any witness, as he was at liberty to do under the court’s order.

We are convinced from a careful study of the full record that this case is the exceptional one falling within the rationale of Britt, where the Court took note of petitioner’s concession “that he had available an informal alternative which appears to be substantially equivalent to a transcript.” Here, the defendant had available by order of the court the equivalent of a transcript; indeed, he had for use a copy of the transcript of the three key government witnesses.

As a subsidiary issue the defendant asserts that he was denied effective assistance of counsel because he was not furnished a free copy of the transcript of all of the proceedings of the first trial. We find this contention without merit. The transcript of the second trial demonstrates that defendant’s counsel was fully cognizant of all the relevant facts and that he was in no respect hampered in his cross-examination or in protecting his client’s rights by reason of his failure to have a full transcript.

The judgment of conviction is affirmed.

1 . The defendant had been incarcerated from October 17, 1970 because of his inability to post a $15,000 appearance bond. The fact that he was not at liberty obviously motivated the district court in giving the case an early setting for retrial.