United States v. Edward Mullen

550 F.2d 373, 1977 U.S. App. LEXIS 10068

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 11, 1977
• Docket: 76-1679
• Status: Published

Opinions

PER CURIAM.

Edward Mullen appeals from jury convictions on two charges of bank robbery. Though the robberies involved different banks and occurred 19 days apart the two charges were tried together over the objection of Mullen who had moved for a severance pursuant to Rule 14, Fed.R.Crim.P. We find no abuse of discretion in the district court’s denial of the motion for a severance.

Following a trial at which the jury was unable to agree the court declared a mistrial and set the case for retrial within two weeks. Mullen made a motion that he be furnished a transcript of the first trial at government expense. Mullen also made a motion for a continuance until a transcript could be prepared. At a hearing on these motions counsel for Mullen stated that he desired the transcript “primarily for impeachment purposes and also to do whatever preparation for the new trial was necessary in view of what might have been in those transcripts.”

The distriot court denied both motions, noting that Mullen was in jail for inability to make bond and that the case had been set for immediate retrial because of this fact. The district court stated that since the second trial was scheduled to begin so soon after the mistrial occurred, counsel should rely on his trial notes and his recollection. The court also advised that the reporter at the first trial would be available and that “[i]f there is an impeachment situation that arises the witness can be confronted through the reporter’s notes with what he said at the earlier trial.”

The second trial began the next day and resulted in convictions on both charges. During the second trial government counsel had at least a partial transcript of Mullen’s testimony at the first trial and used it in cross-examination. The prosecution may not enjoy such an advantage. As an indigent defendant Mullen was entitled to a transcript of the first trial if it was needed for an effective defense upon retrial, and he was not required to make a particularized showing of need. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). The Supreme Court affirmed in Britt on a finding that there was “. available an informal alternative which appears to be substantially equivalent to a transcript.” Id. at 230, 92 S.Ct. at 435. We do not believe that Mullen had available any resource which was substantially equivalent to the partial transcript of the first trial which the prosecution had in its possession. Though the two trials took place within a few weeks, there were at least 12 government witnesses at the first trial and 11 who testified at the second trial. At best counsel for the defendant Mullen had “limited access to the court reporter during the course of the second trial,” Britt, supra, 404 U.S. at 229, 92 S.Ct. at 434; and no opportunity to use a transcript in preparation for the later trial.

In Martin v. Rose, 525 F.2d 111, 113 (6th Cir. 1975), this court stated that “. we can think of no more valuable document for defense counsel approaching a contested trial than the record of the previous trial of his client for the same exact crime with which he is charged again . . . .” We fully appreciate the desire of the District Judge to avoid unnecessary delay in retrial of a jailed defendant. However, the motion for a continuance indicated that Mullen was willing to endure this hardship in order to obtain the transcript. Since Mullen had no equivalent substitute, it was prejudicial error to require him to undergo the second trial without the requested transcript.

The judgment of the district court is reversed, and the case is remanded for a new trial.