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Electronically Filed
Supreme Court
SCWC-10-0000037
16-OCT-2013
10:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
KEVIN ALEXANDER SCOTT, Petitioner/Defendant-Appellant.
SCWC-10-0000037
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000037; CR. NO. 10-1-0030K)
October 16, 2013
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, AND POLLACK, JJ., WITH
ACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY POLLACK, J.
Petitioner/Defendant-Appellant Kevin Alexander Scott
(Scott) seeks review of the January 15, 2013 Judgment on Appeal
of the Intermediate Court of Appeals (ICA), filed pursuant to its
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December 17, 2012 Summary Disposition Order, affirming the
Judgment of Conviction and Sentence (Judgment) entered by the
Circuit Court of the Third Circuit (circuit court) on August 30,
2010.
Scott’s appeal arises from the circuit court’s denial
of his request for the written transcripts or the DVD video
recordings of his codefendant’s trial. For the reasons set forth
herein, we hold that Scott demonstrated that the requested
transcripts or DVD video recordings were necessary for an
effective defense, where the charges against Scott and his
codefendant arose from the same incident and involved identical
facts, and the same key witness testified against both Scott and
his codefendant at their respective trials. Thus, the circuit
court erred by denying Scott’s request. Accordingly, we vacate
the ICA’s Judgment on Appeal and the circuit court’s Judgment,
and remand for a new trial consistent with this opinion.
I.
A.
The charges against Scott arose out of an incident that
occurred on October 18, 2009 and involved Scott, his brother
Jefferson Scott (Jefferson), and the complainants Leif Martin
(Leif) and Kerry Martin (Kerry). Scott and Jefferson were
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indicted separately by the State of Hawai#i (State) upon multiple
charges related to the incident.
Jefferson was indicted first, upon charges of assault
in the second degree,1 assault in the third degree,2 and
terroristic threatening in the second degree.3 State v. Scott,
No. 30499, 2011 WL 1878851 (Haw. App. May 12, 2011) (SDO).
Following a jury trial, on April 14, 2010, Jefferson was
convicted of two counts of assault in the third degree and one
count of terroristic threatening in the second degree.4 Id. at
*1.
1
Hawai#i Revised Statutes (HRS) § 707-711(1)(a) (Supp. 2009)
provides in relevant part:
(1) A person commits the offense of assault in the second
degree if:
(a) The person intentionally or knowingly causes
substantial bodily injury to another[.]
2
HRS § 707-712 (1993) provides in relevant part:
(1) A person commits the offense of assault in the third
degree if the person:
(a) Intentionally, knowingly, or recklessly causes
bodily injury to another person[.]
3
HRS § 707-715 (1993) provides in relevant part:
A person commits the offense of terroristic threatening if
the person threatens, by word or conduct, to cause bodily
injury to another person or serious damage to property of
another or to commit a felony:
(1) With the intent to terrorize, or in reckless
disregard of the risk of terrorizing, another person[.]
HRS § 707-717(1) (1993) provides that “[a] person commits the
offense of terroristic threatening in the second degree if the person commits
terroristic threatening other than as provided in section 707-716.”
4
The Honorable Ronald Ibarra presided. Id. at *1 n. 1.
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On January 25, 2010, Scott was indicted by a grand jury
upon one count of assault in the second degree for intentionally
or knowingly causing substantial bodily injury to Leif5; two
counts of terroristic threatening in the first degree, for
threatening to cause bodily injury to Leif and Kerry with the use
of a dangerous instrument; and one count of terroristic
threatening in the first degree by common scheme.6 A jury trial
was scheduled for June 29, 2010.7
On February 17, 2010, the State filed a “Notice of
Liability for Conduct of Another” (Notice of Liability), stating
that it intended to use evidence that Scott “aided his brother,
Jefferson Scott, in committing the crimes charged in this case,”
pursuant to HRS §§ 702-221(1) and (2)(c)8, 702-222(1)(b)9, and
5
HRS § 707-711(1)(a).
6
HRS § 707-716(1) (Supp. 2009) provides in relevant part:
(1) A person commits the offense of terroristic threatening
in the first degree if the person commits terroristic
threatening:
. . . .
(b) By threats made in a common scheme against
different persons;
. . . .
(e) With the use of a dangerous instrument.
7
The Honorable Elizabeth A. Strance presided.
8
HRS § 702-221 (1993) provides in relevant part:
(1) A person is guilty of an offense if it is committed by
his own conduct or by the conduct of another person for
which he is legally accountable, or both.
(2) A person is legally accountable for the conduct of
another person when:
. . . .
(c) He is an accomplice of such other person in the
(continued...)
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702-22310. The Notice provided that the State intended to
introduce evidence that Jefferson “assisted” Scott after Scott
“got into a dispute with” Leif and Kerry:
Specifically, the State will introduce evidence that
JEFFERSON SCOTT assisted the defendant after the defendant
got into a dispute with the defendant’s neighbors, LEIF
MARTIN and KERRY MARTIN. During what started as a verbal
argument between defendant and the Martins, JEFFERSON JOSEPH
SCOTT became angry and decided to assist his brother.
Defendant’s brother, JEFFERSON SCOTT, then punched LEIF
MARTIN, who fell to the ground unconscious . . . .
[T]he defendant’s brother then kicked LEIF MARTIN in
the head while he was on the ground, unconscious, as the
defendant, KEVIN SCOTT, continued to threaten.
(Emphases added).
On June 15, 2010, Scott filed a Motion to Continue
Trial with the circuit court, pursuant to Rule 12 of the Hawai#i
Rules of Penal Procedure (HRPP) and Rule 7 of the Hawai#i Circuit
Court Rules.11 The motion provided that defense counsel needed
8
(...continued)
commission of the offense.
9
HRS § 702-222 (1993) provides in relevant part:
A person is an accomplice of another person in the
commission of an offense if:
(1) With the intention of promoting or facilitating
the commission of the offense, the person:
. . . .
(b) Aids or agrees or attempts to aid the other
person in planning or committing it[.]
10
HRS § 702-223 (1993) provides:
When causing a particular result is an element of an
offense, an accomplice in the conduct causing the result is
an accomplice in the commission of that offense, if the
accomplice acts, with respect to that result, with the state
of mind that is sufficient for the commission of the
offense.
11
The record indicates that this was Scott’s first request for a
continuance of trial in this case.
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additional time to “obtain copies of the recent trial of the co-
defendant brother in order to adequately prepare a defense in the
instant case.” In defense counsel’s declaration in support of
the motion, counsel explained that the transcripts had not been
previously ordered because Scott had authorized him to enter into
plea negotiations with the State. Defense counsel believed “the
case was headed in the direction of a plea agreement” based on
the State’s plea offer in April 2010. Defense counsel therefore
did not order Jefferson’s trial transcripts in an effort to avoid
incurring unnecessary expenses. However, “the plea agreement
reached by the parties . . . fell out of orbit based on . . .
newly discovered information[.]” Counsel additionally stated
that he had mistakenly assumed another trial scheduled at
approximately the same time as Scott’s trial was “first up and
was certain to go[.]” Finally, defense counsel represented to
the court that he had explained the need for the transcripts to
Scott and Scott had agreed “to waive his Rule 48 and
constitutional speedy trial rights” in order for the court to
consider continuing the trial.
At about the same time that the Motion to Continue
Trial was filed, defense counsel also submitted a “Request Form
for Non Appeal Cases” (Request Form I) to the administrative
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judge for the Third Circuit (administrative judge).12 Defense
counsel requested the written transcripts of Jefferson’s jury
trial proceedings, a pretrial motion hearing, and sentencing
hearing.
On June 21, 2010, the State filed a “Supplement to
Response to Motion to Continue Trial”13 (Supplemental Response)
with the circuit court, contending that Scott had “made no
showing that he requested the transcripts of his brother’s trial,
or that they are necessary for his defense.” The State also
argued that Scott had access to the transcripts of the grand jury
proceedings and a protective order hearing at which Scott and
Jefferson testified. The State further asserted that Jefferson’s
“entire trial was recorded on DVD, which will require less than a
day for the defendant to copy” and which fulfilled the “same
function as a transcript.”
Apparently in response to the Supplemental Response,
defense counsel submitted a second “Request Form for Non Appeal
Cases” (Request Form II) to the administrative judge. Defense
counsel requested the video recordings of the same proceedings
12
Request Form I was submitted to the Honorable Ronald Ibarra for
approval. Although there was no time stamp to indicate when the document was
received by the administrative judge, defense counsel’s signature on the form
is dated June 15, 2010.
13
Although the State’s Supplemental Response suggests that an
initial response to Scott’s Motion to Continue Trial had been previously
filed, such a response was not included in the record on appeal.
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related to Jefferson’s trial that he had requested written
transcripts for in Request Form I.
A hearing on the Motion to Continue Trial was held on
June 23, 2010. Following the hearing, the circuit court denied
the motion.14 The record does not include a transcript of the
hearing or an order from the circuit court regarding its
disposition of the motion. The June 23, 2010 court minutes
indicate that the circuit court denied Scott’s Motion to Continue
Trial because “the information being sought could have been more
specific and not be a vague allegation of what might be out
there.” The court also reasoned that it had summoned a jury and
the parties had indicated they were ready to proceed with trial.
Finally, the court stated that “if there was a need for expedited
transcripts, motions could have been filed,” and Scott had not
demonstrated prejudice.
On June 24, 2010, consistent with the circuit court’s
decision to deny Scott’s Motion to Continue Trial, the
administrative judge denied Request Form I and Request Form II.
Both forms were stamped “Disapproved and So Ordered.” On Request
Form I, the judge initialed the following handwritten statement
next to his signature: “Counsel is appointed in another case.
Defendant does NOT HAVE a constitutional right to a ‘free’ audio
14
Judge Strance presided over the Motion to Continue Trial hearing.
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in this case.” (Underline emphasis added). Similarly on Request
Form II, the judge initialed the following handwritten statement:
“Counsel is appointed in another case. Defendant does not have a
constitutional right to a ‘free’ video in this case.” (Emphasis
added). Both Request Forms I and II were filed on June 29, 2010.
B.
Scott’s jury trial commenced on June 29, 2010 and
adduced the following evidence.
On October 18, 2009, Scott went to visit Jefferson at
the latter’s home. Jefferson’s home was located in a cul-de-sac,
next door to Kerry’s home. Scott parked his van on the street.
That night, Leif was visiting Kerry and their children
at Kerry’s home. Leif and Kerry were married but separated.
Leif was employed as a federal security officer for the
Transportation Security Administration at the airport. When Leif
arrived at Kerry’s home, he double-parked his car next to Scott’s
van, so that his car was closer than three feet from the van.
There was apparently a history of problems between the Martins
and the Scotts regarding the van being parked in the cul-de-sac.
Later that night, Leif and Kerry came outside to the
driveway area of Kerry’s home and began “venting” to one another
about the van being parked in the cul-de-sac. According to
Scott, he and Jefferson were sitting on the porch when he heard
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Leif yelling about the van being parked, prompting him to walk
out to where Leif and Kerry were standing. Kerry and Leif
testified that as Scott approached them, Scott stated, “If you
wanted me to move it, why didn’t you just say so.” Kerry
responded that she was “really over this drama” and Leif
commented that Scott had previously dented Kerry’s father’s car.
Scott approached Kerry and responded, “I talked to that old man
about that.” While Kerry took a step back, Leif took a step
towards Scott. Scott and Leif then stood “face-to-face,” arguing
about the van being parked in the cul-de-sac.
While Scott and Leif were arguing, Jefferson came
outside and asked what was happening. Leif and Jefferson had an
exchange regarding the van. Scott testified that Leif walked
towards Jefferson aggressively “with his fists clenched,” and
when Leif got to within arm’s reach of Jefferson, Jefferson hit
Leif on his chin and “knocked him out,” causing Leif to fall
backwards and hit the ground. Kerry similarly testified that
while Scott and Leif were arguing, Jefferson “came from behind
[Scott] and punched Leif in the side of the head.” According to
Kerry, Leif then fell unconscious for one and a half to three
minutes.
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Leif could not recall much of the incident after
Jefferson came outside. Leif only remembered Jefferson coming
around the car towards him, and then being in the ambulance.
Scott testified that after Jefferson punched Leif, he
went to his van to retrieve his cell phone so that he could call
an ambulance. Kerry testified that as she tried to wake Leif,
Jefferson was “being really erratic,” “bouncing around” near
Leif’s feet while yelling threats at her and Leif. She heard a
car door slam, and when she looked over she saw Scott “coming
from around the far side of his van” while putting “something
shiny” into his waistband. Kerry turned back and saw Jefferson
kick Leif in his upper body. Scott testified that as he was
returning from his van, he saw Jefferson kick the left side of
Leif’s face. Scott ran over and told Jefferson to stop hitting
Leif, and told Kerry that she and Leif needed to leave. However,
Kerry was unable to lift Leif on her own.
At this point, Scott and Kerry’s version of the events
substantially diverge.
According to Kerry, Scott helped her lift Leif, leaned
Leif against her, and then stepped back. Jefferson was “still
jumping around a lot,” “just acting . . . really kinda crazy.”
Leif was “just barely conscious” and Kerry tried unsuccessfully
to “drag him.” As she was telling Leif, “We need to go,” Scott
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came up along her right side, pulled out a “small pistol-style
gun” from his waistband, and placed it “flat against the side of
Leif’s face.” Scott told them to get into their house, then
pointed the barrel of the gun at the side of Leif’s temple and
threatened him. Then as Kerry continued to hold Leif up, Scott
“hit Leif in the side of the head with the butt of the gun.”
Leif went unconscious again, and Kerry lowered him to the ground.
When she looked back up, Scott was standing over her, pointing
the gun at her while threatening her and yelling at her to get in
the house. After trying unsuccessfully to get Leif into his car,
Kerry ran into the house and called 911. Kerry testified that
the entire altercation lasted about fifteen minutes.
According to Scott, he put his cell phone in his
pocket, raised Leif to his feet, and then helped Kerry move Leif
towards the driveway. As they were walking, Scott could feel
Leif “beginning to get some feet underneath him again,” and tried
to get Kerry to take Leif. However, Kerry pushed Leif back onto
Scott and “had words” with Jefferson while Scott continued to
hold Leif from behind and attempt to walk him towards his
driveway. Leif “began to come to” and tried to turn to see who
was helping him; when he realized that it was Scott, he broke
free and appeared to regain his composure. Scott took his cell
phone out of his pocket and told Leif to get back into the car.
When Leif approached Scott aggressively and got to “about half an
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arm’s length” from Scott, Scott testified, “I gave him a right
hook and I hit him in his eye, and he fell down.” Scott’s cell
phone, which he was holding in his left hand, flew onto the
ground. Scott then got into his van and locked the door.
C.
Scott was convicted of assault in the second degree
(Count I), the lesser included offense of terroristic threatening
in the second degree as to Leif (Count II), and terroristic
threatening in the first degree as to both Leif and Kerry (Count
IV).15
On August 30, 2010, the circuit court sentenced Scott
to an indeterminate term of imprisonment of five years in Count
I, one year of imprisonment in Count II, and an indeterminate
term of five years imprisonment in Count IV, with all terms to
run concurrently.16
II.
On appeal to the ICA, Scott argued in relevant part
that the “trial court erred when it refused to provide” his
court-appointed counsel with the requested “transcripts of
testimony of the complaining witness and another state witness,”
thereby depriving him of his right to a fair trial and his right
15
The jury did not return a verdict upon the charge of terroristic
threatening in the first degree as to Kerry (Count III) due to a merger of
this offense with the charge in Count IV.
16
Scott was also required to pay restitution jointly and severally
with Jefferson, in addition to paying court fees.
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to mount an effective defense. Scott argued in support of this
point that Jefferson’s trial involved the same victims, Leif and
Kerry, and the same primary witness, Kerry. Without the
transcripts of Jefferson’s trial proceedings, defense counsel was
unable to adequately prepare to cross-examine these witnesses
during Scott’s trial. Furthermore, Scott contended that he was
not provided an adequate substitute for the requested
transcripts, as even his request for a DVD video recording of the
relevant proceedings was denied.
The State responded that the administrative judge did
not err in denying Scott’s request for transcripts because Scott
did not make the requisite showing of necessity. The State also
argued that Scott did not adequately preserve this point of error
on appeal because the administrative judge’s denial of Scott’s
Request Form was a denial of a pro forma transcript request form
and not a denial of a formal motion explaining the necessity of
having the transcripts, and Scott further failed to file a motion
to reconsider the judge’s decision. Additionally, the State
contended that Scott did not file a motion to obtain the
transcripts of Jefferson’s trial proceedings with the circuit
court judge.
The ICA affirmed Scott’s conviction. State v. Scott,
No. CAAP-10-0000037, 2012 WL 6568233 (Haw. App. Dec. 17, 2012)
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(SDO). The ICA reasoned that Scott’s Request Form I17 did not
provide any reason for the request or indicate, on its face, any
reason that the transcripts were “necessary for an adequate
defense” in Scott’s case. Id. at *1. The ICA further found that
Scott had not claimed that “all of the seven transcripts
requested contain the testimony of witnesses he anticipated would
testify in his trial.” Id.
The ICA stated that Scott had failed to cite any
authority to support his contention that he was entitled to
transcripts of proceedings in another case. Id. The ICA
differentiated this case factually from State v. Mundon, 121
Hawai#i 339, 219 P.3d 1126 (2009) and Britt v. North Carolina,
404 U.S. 226 (1971), in which the courts held that an indigent
criminal defendant is entitled to transcripts of prior
proceedings in the defendant’s own case when such transcripts are
necessary for an effective defense or appeal. 2012 WL 6568233,
at *1.
Finally, the ICA faulted Scott for not submitting his
request for transcripts until, at the earliest, June 15, 2010,
when trial was scheduled for June 23, 2010. Id. at *2. Thus,
the ICA concluded that Scott had failed to establish that the
circuit court erred in denying his request for transcripts. Id.
17
The ICA did not address Scott’s June 22, 2010 Request Form II
requesting the video recording of Jefferson’s trial proceedings.
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III.
In his application for writ of certiorari, Scott
maintains that the ICA erred in finding that the circuit court
properly denied his transcript requests. Scott argues that the
testimonies of Kerry and Leif were essential for trial
preparation and effective cross-examination of these witnesses at
his trial. Additionally, Scott contends that he should not have
been required to allege any specific reasons for requesting the
transcripts of Jefferson’s trial proceedings because such
transcripts are innately valuable for trial preparation and
impeachment purposes. Scott further notes that the court’s
request forms did not require him to state a reason or an
argument for requesting the transcripts.
Scott also argues that the ICA erred by not addressing
his contention that the requested transcripts related to a trial
involving the “exact” same incident and witnesses as his own
case. Scott clarifies that his contention is not that he is
entitled to “transcripts for any proceeding ever held in any
case,” but only that he is entitled to “transcripts from a case
dealing with the identical facts and witnesses as his case.”
Scott argues that “his court appointed counsel is best suited to
know” why certain transcripts would be “vital” to his defense.
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IV.
A.
It is well-settled that an indigent “criminal defendant
has a right to transcripts of prior proceedings.” State v.
Mundon, 121 Hawai#i 339, 357, 219 P.3d 1126, 1144 (2009) (citing
Britt v. North Carolina, 404 U.S. 226, 227 (1971)). In Mundon,
this court held that the indigent defendant was entitled to the
written transcripts of his prior proceedings. 121 Hawai#i at
358, 219 P.3d at 1145. The defendant had filed several pretrial
motions seeking the written transcripts of the preliminary
hearing and grand jury proceeding in his case. Id. at 345, 219
P.3d at 1125. The trial court rejected the defendant’s motions
because of “non-conformities with the rules of court.” Id. at
355, 219 P.3d at 1142. The court provided the defendant with
compact disks (CDs) of the relevant proceedings, but the
defendant “was unable to review the electronic transcripts until
the first day of trial because” neither he nor his standby
counsel “ha[d] the requisite equipment available[.]” Id. at 358,
219 P.3d at 1145.
The ICA in Mundon had held that the trial court’s error
in failing to provide the defendant with the written transcripts
was “harmless inasmuch as [the defendant] failed to show that he
was prejudiced by proceeding at trial without written
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transcripts.” Id. at 357, 219 P.3d at 1144. Although the
defendant “claim[ed] that he was entitled to a transcript of the
preliminary hearing so he could cross-examine the complaining
witness, who allegedly was unable to identify him at the
preliminary hearing[,]” the ICA found that he failed to
“substantiate[] this claim by including the transcript of the
preliminary hearing in the record on appeal.” Id. (quotation
marks omitted). In regard to the transcript of the grand-jury
proceeding, the ICA explained that “all that transpired before
the grand jury was the playing of the tape recording of the
complaining witness’s interview with a police officer, which
recording had previously been provided to [the defendant].” Id.
(quotation marks omitted).
On review, this court held that the ICA erred in
concluding that the trial court’s failure to provide the
defendant with the written transcripts was harmless error. Id.
at 358, 219 P.3d at 1145. In making this determination, the
court relied on the United States Supreme Court’s decision in
Britt, 404 U.S. 226. 121 Hawai#i at 357, 219 P.3d at 1125. In
Britt, the Court held 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.” 404
U.S. at 227 (footnote omitted).
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The Britt Court “identified two factors that are
relevant to the determination” of whether a transcript is
“needed” for an effective defense: “(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.” Id. at 227-28. In regard to the first factor, the
Court held that because it had “consistently recognized the value
to a defendant of a transcript of prior proceedings,” the
defendant was not required to make “a showing of need tailored to
the facts of the particular case.” Id. at 228.
In Mundon, the court applied the two-part Britt test.
In addressing the first factor, the court quoted from the Britt
decision in describing the value of the transcripts of prior
proceedings to the defendant:
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 and, 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.
121 Hawai#i at 357, 219 P.3d at 1144 (quoting Britt, 404 U.S. at
228) (brackets and ellipses omitted). The Mundon court concluded
that “there is innate value to a criminal defendant in being able
to review transcripts for trial preparation and impeachment
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purposes such that a defendant need not show a particularized
need for such transcripts[.]” Id. at 358, 219 P.3d at 1145
(emphases added). Thus, the defendant was not required to have
included the transcripts of the preliminary hearing or grand jury
proceeding in the record on appeal or to “otherwise identify
specific examples of prejudice.” Id. at 357, 219 P.3d at 1144.
Second, the court found that no adequate alternatives
to the written transcripts existed. Id. at 358, 219 P.3d at
1145. The court explained that although the defendant was
provided with CDs of the relevant proceedings, he “was unable to
review the electronic transcripts until the first day of trial”
due to the lack of equipment, and the trial court only permitted
the defendant to review the CDs during the breaks in trial. Id.
Thus, the court concluded that “[b]ecause [the defendant] was
essentially provided the transcript for the first time at trial,
the electronic transcripts were not an adequate alternative to
the written transcripts[.]” Id. Additionally, the record did
not reveal any other available alternative to the written
transcripts. Id.
The Mundon court concluded that the defendant satisfied
the two-part Britt test and consequently, “[the defendant] was
not required to show that he was prejudiced by proceeding to
trial without the written transcripts[.]” Id.
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In the instant case, the two-part Britt test is
similarly applicable in determining whether the ICA erred in
affirming the circuit court’s denial of Scott’s request for the
written transcripts or a video recording of Jefferson’s trial
proceedings.
In regard to the first Britt factor, Scott argues that
based upon Britt and Mundon, he was not required to demonstrate a
particularized need for the transcripts of Jefferson’s trial
proceedings. Scott contends that the holdings in Britt and
Mundon suggest a broader application of an indigent defendant’s
right to transcripts that is not necessarily limited to
transcripts of prior proceedings in the defendant’s own case.
Scott notes that the first Britt factor states that the defendant
must demonstrate the “value of the transcript to the defendant in
connection with the appeal or trial for which it is sought,” and
argues that this language “implies that defendants may in fact
seek transcripts that would help them in their own case,
regardless of whether it was from a proceeding in their case
alone.”
As Scott argues, the Mundon court recognized that
transcripts of a prior proceeding are innately valuable for trial
preparation and impeachment purposes. 121 Hawai#i at 358, 219
P.3d at 1145. The Ninth Circuit has also recognized the critical
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importance of prior trial transcripts, holding that the trial
court’s failure to provide the defendant with the transcript of
the State’s opening and closing arguments in the defendant’s
prior mistrial was prejudicial to the defendant because those
portions of the trial were “crucial to the development of an
effective defense.” Kennedy v. Lockyer, 379 F.3d 1041, 1057 (9th
Cir. 2004). The court explained:
Various tactical and strategic decisions made by Kennedy’s
new counsel might have been affected had he been provided
with a copy of the prosecutor’s opening statement and
closing argument; he might, for example, have been able to
anticipate some of the prosecution’s key arguments, identify
potential weaknesses in its case, assess the relative weight
that the prosecution would place on various items of
evidence, and better determine what would be needed to
refute them.
Id. (emphases added).
Similarly, a codefendant’s transcript is essential to
the “development of an effective defense” in cases where the
defendant and codefendant’s charges arise from the same event and
involve the same issues and witnesses.18 The defendant’s ability
to reference the codefendant’s trial transcript would affect
“various tactical and strategic decisions” made by the defense,
such as enabling the defense to identify potential weaknesses in
the State’s case as well as inconsistencies in witness
statements.
18
“Codefendant” is defined as “one of two or more defendants sued in
the same litigation or charged with the same crime.” Black’s Law Dictionary
293 (9th ed. 2009) (emphasis added).
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Indeed, a codefendant’s trial transcript is arguably of
greater value to a defendant for trial preparation purposes than
a transcript of a defendant’s own prior trial proceeding. A
defendant is presumably familiar with the prior proceedings of
his or her own case. See McKibbon v. State, 749 S.W.2d 83, 87
(Tex. Crim. App. 1988) (en banc) (Clinton, J., dissenting) (“a
transcription of testimony and evidence admitted against a
confederate in an earlier trial of the same transaction is likely
to be more valuable than transcripts of a mistrial . . . for the
very practical reason that appellant was not present at the
former and, therefore, not familiar with the evidence adduced as
he would be at his own prior trial”). Absent a change of
counsel, defense counsel would have been present during the
defendant’s prior trial proceedings and therefore would have been
aware of the strategies employed by the State and any
inconsistencies in the witness’s statements.
In contrast, in a situation involving the codefendant’s
trial transcripts, the defendant and defense counsel may not have
been present at the codefendant’s trial and may consequently lack
the same level of knowledge regarding the State’s approach in
presenting its case. However, the State prosecutor (or a deputy
from the same office) would have participated in the
codefendant’s trial and examined the witnesses. Thus, the
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State’s prosecutor would be informed of what areas of testimony
to avoid and what areas to pursue, whereas defense counsel would
be without the benefit of such knowledge. This considerable
strategic advantage is gained by the State even if the State
forgoes ordering the transcript for its own purposes.
In People v. Russell, the Illinois Appellate Court
recognized this strategic importance of codefendant trial
transcripts, and thus held that an indigent defendant was
entitled to the transcripts of his codefendants’ trial. 289
N.E.2d 106, 108 (Ill. App. Ct. 1972). In that case, prior to the
defendant’s trial on a burglary charge, his two codefendants were
tried and convicted of the same crime. Id. at 107. The
defendant filed a motion requesting the transcripts of his
codefendants’ trial, explaining only that the transcripts were
“essential to the preparation of his defense” in his trial. Id.
In determining that the trial court erred in denying
the defendant’s requests, the court noted that a key witness
against the defendant had “also testified extensively at the
trial of the co-defendants.” Id. at 108. The court reasoned
that “[w]ithout a copy of the transcript, . . . [the] defendant
was unable to cross-examine” the witness “with respect to the
[witness’s] previous testimony or to search for any
inconsistencies which might exist.” Id. The court further noted
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that the fact that the State “made no use of the transcript in
preparation of its case” was irrelevant, as “a defendant [is] not
prejudiced only where he is denied access to transcripts which
were employed by the State at the prosecution of the trial,” and
“a transcript which is of little value to the State in
preparation of its case might be of great value to the defense in
preparation of its case.” Id. The court reversed the
defendant’s conviction and remanded for a new trial with
instructions that the State provide the defendant with a copy of
the requested transcript. Id.
Here, the charges against Scott and Jefferson were
intricately related, as they involved the same underlying
incident and complainants, and were based on similar allegations
of wrongful conduct. The State’s Notice of Liability in Scott’s
case asserted that the State would present evidence that Scott
and Jefferson aided one another in committing the crimes charged.
The State, having prosecuted Jefferson prior to Scott’s
trial, had the benefit of having examined the witnesses and being
informed of any areas of testimony that were subject to
impeachment. The jury in Jefferson’s trial rejected at least
part of the State’s case in regard to the most serious charge
against Jefferson, as he was convicted of the included offense of
assault in the third degree. Only the State would have gained
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knowledge of the possible explanation for the trial result in
Jefferson’s case. The defense, without the transcripts or DVD of
Jefferson’s trial, would lack any knowledge, for example,
regarding issues that had arisen pertaining to witness
credibility or contradictory evidence. Although it is not clear
from the record whether Jefferson testified at his trial, if he
had, then it would certainly be of significant value to Scott’s
defense strategy to know whether Jefferson made any admissions
regarding where he kicked Leif (in the face or body), and whether
Jefferson attempted to place more or less blame on Scott.
Finally, similar to the situation in People v. Russell,
supra, Kerry was the key witness testifying on behalf of the
State in both Jefferson’s and Scott’s trials. She was the only
witness to the altercation other than the Scotts and Leif, who
was unconscious for much of the incident. Her testimony was
critical to both cases. Kerry’s version of the events as given
at Scott’s trial diverged significantly from Scott’s recounting
of the incident. Thus Kerry’s credibility was clearly important
to the State’s case. Because Scott’s requests for the written
transcripts and DVD of Jefferson’s trial were denied, defense
counsel was unable to become informed of Kerry’s testimony in
Jefferson’s trial and was prevented from comparing her former
testimony with the testimony she gave in Scott’s trial.
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Thus, there was a clear interrelationship and overlap
between the two cases, such that Jefferson’s trial transcript was
innately valuable to Scott’s ability to prepare an effective
defense. The innate value of transcripts for trial preparation
and impeachment purposes is the same or substantively equivalent
for a defendant with respect to the transcripts of a
codefendant’s trial and the transcripts of the defendant’s prior
proceedings, when the offense(s) charged against the codefendants
arise out of the same incident, have the same key witnesses, and
involve the same underlying facts.
The ICA did not recognize that Jefferson’s trial
transcript was innately valuable to Scott’s defense. Rather, the
ICA emphasized that Scott’s request for the transcripts did not
“provide any reason for the request” or “indicate, on its face,
any reason that the transcripts are ‘necessary for an adequate
defense’.”19 Scott, 2012 WL 6568233, at *1. However, requiring
19
The ICA also cited the fact that Scott “did not submit his request
for these transcripts until, at the earliest, June 15, 2010, when trial was
scheduled for June 23, 2010,” as support for its conclusion that the circuit
court did not err in denying the transcript requests. Scott, 2012 WL 6568233,
at *2. However, the record indicates that trial was set for June 29, 2010.
Additionally, the Motion to Continue Trial was Scott’s first request for a
continuance, and defense counsel explained in his attached declaration that he
had not ordered the transcripts of Jefferson’s trial at an earlier date
because he had anticipated that “the case was headed in the direction of a
plea agreement” and wanted to avoid unnecessary costs. This is not
necessarily an insubstantial reason for court-appointed counsel to defer the
ordering of transcripts in appropriate circumstances. Defense counsel had
also represented that Scott was willing to waive his “[HRPP] Rule 48 and
speedy trial rights” for the period of time necessary to obtain the requested
transcripts.
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the defendant to show a “particularized need” for a codefendant’s
trial transcripts by identifying specific portions of the
transcript that the defendant will require for impeachment
purposes imposes the “practically impossible burden of showing
detailed information contained within a document that he can not
possess.” Melendez v. State, 942 S.W.2d 76, 80 (Tex. Ct. App.
1997) (Chavez, J., dissenting).
In light of the innate value of the written transcripts
or the DVD of Jefferson’s trial proceedings for Scott’s trial
preparation and impeachment purposes, Scott was not required to
show a particularized need for the transcripts or DVD, and the
circuit court and the ICA erred in holding otherwise.
B.
The second factor relevant to the determination of an
indigent defendant’s claim of right to a transcript is “the
availability of alternative devices that would fulfill the same
functions as a transcript.” Britt, 404 U.S. at 227. “A
defendant who claims the right to a free transcript does not . .
. bear the burden of proving inadequate such alternatives as may
be suggested by the State or conjured up by a court in
hindsight.” Id. at 230. Thus, the State has the burden of
proving that a defendant has been provided adequate alternatives
to a written transcript.
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In Britt, the Court found that the defendant had an
adequate alternative to a transcript of his prior mistrial, where
the defendant conceded that the court reporter “would at any time
have read back to [defense] counsel his notes of the mistrial,
well in advance of the second trial, if counsel had simply made
an informal request.” Id. at 229.
In Mundon, this court held that an adequate alternative
to the written transcripts was not made available to the
defendant. 121 Hawai#i at 357-58, 219 P.3d at 1144-45. In
reaching this determination, the court noted that “the transcript
must be available to defense counsel prior to the trial if it is
to be useful as an impeachment and trial preparation tool.” Id.
at 358, 219 P.3d at 1145 (citing Gonzales v. Dist. Court In and
For Weld Cnty., 602 P.2d 855, 858 (Colo. 1979) (en banc))
(quotation marks omitted). Thus where the Mundon defendant was
essentially provided electronic transcripts for the first time at
trial, the transcripts were not an adequate alternative to the
written transcripts.
In this case, not only did the circuit court deny
Scott’s requests for written transcripts of Jefferson’s trial,
but the court also denied Scott’s requests for the DVD video
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recordings of the proceedings.20 In addition, the record does
not reveal that any other available alternative to the written
transcripts or the DVD was provided to Scott.21
The State contends that the transcript of Scott’s grand
jury proceeding, “a written statement from the only eyewitnesses,
and the 911 tape” were alternative devices that fulfilled the
same function as the written transcripts of Jefferson’s trial
proceedings. Although these materials are valuable for trial
preparation and impeachment purposes, the State’s argument that
they are adequate alternatives to a written transcript or DVD of
Jefferson’s trial proceedings is without merit. “A grand jury
proceeding is not adversar[ial] in nature and is only a
preliminary determination of whether a criminal proceeding should
be instituted.” State v. Rodrigues, 63 Haw. 412, 417, 629 P.2d
20
The State argues that Scott “did nothing to request an order from
the assigned Judge Strance by filing a Motion to allow him the transcripts.”
The record indicates, however, that the basis of Scott’s Motion to Continue
Trial was to obtain the transcripts of Jefferson’s trial proceedings, which
was denied by the circuit court.
At the time of Scott’s trial, the HRPP did not require court-
appointed counsel to file a formal motion to request transcripts for purposes
other than appeal. HRPP Rule 44(b)(ii), which came into effect on July 1,
2011, now requires court-appointed counsel to make a request for transcripts
for purposes other than appeal by submitting a “motion, with proof of
service,” prior to ordering the transcript. The rule further provides that
“[t]he motion shall be supported by declaration or affidavit that show cause
as to why the motion should be granted.”
21
The Mundon court did not hold that CDs of the relevant transcripts
would constitute an adequate alternative to the written transcripts of the
proceedings. Similarly, we do not reach the question of whether a video or
audio recording of the relevant proceedings would constitute an adequate
alternative to the written transcripts. Such a determination would be fact-
specific.
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1111, 1115 (1981). The defendant and defense counsel are not
entitled to be present at a grand jury proceeding. Id. (citing
HRPP Rule 6(d)). Thus, testimony given at Scott’s grand jury
proceeding is not comparable to testimony given during
Jefferson’s trial, as during the trial the witnesses would have
been required to give a more exhaustive, detailed rendition of
the events and would have been subject to cross-examination.
Similarly, a prior written statement and recorded 911 call are
not adequate substitutes for testimony given during a trial
proceeding.
Thus, Scott was not provided with any alternative to
the written transcripts or to the video recording of Jefferson’s
trial. Based on the foregoing, it is clear that Scott has
demonstrated that the written transcripts or DVD of Jefferson’s
trial were necessary for an effective defense, as 1) the
transcripts and DVD were innately valuable to Scott in connection
with his trial, and 2) no adequate alternative was provided to
Scott prior to the trial. Thus, the circuit court erred in
denying Scott’s requested transcripts and DVD video recordings.
C.
Our decision is consistent with the well-established
“principle that the State must, as a matter of equal protection,
provide indigent prisoners with the basic tools of an adequate
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defense or appeal, when those tools are available for a price to
other prisoners.” Britt, 404 U.S. at 227. The Britt court
applied this principle to require the State to “provide an
indigent defendant with a transcript of prior proceedings when
that transcript is needed for an effective defense or appeal.”
Id.
The transcripts of Jefferson’s trial proceedings were
essential to Scott’s ability to mount an effective and adequate
defense due to the integrated and overlapping nature of Scott’s
and Jefferson’s cases. If Scott had been able to afford the
transcripts on his own, then he would have had the “basic tools
of an adequate defense or appeal.” Id. The only reason Scott
was denied a basic tool for his defense was that he was unable to
pay for the transcripts or DVD of Jefferson’s trial proceedings.
In addition, had Scott been represented by the Office
of the Public Defender, that office would have been required to
obtain the transcripts upon determining that they were “necessary
for an adequate defense” and that Scott was unable to pay for
them:
The court may, upon a satisfactory showing that a criminal
defendant is unable to pay for transcripts . . . , and upon
a finding that the same are necessary for an adequate
defense, direct that such expenses be paid from available
court funds or waived, as the case may be; provided that
where the defendant is represented by the state public
defender or by other counsel appointed by the court except
for such other counsel appointed by the court for reasons of
conflict of interest on the part of the public defender, the
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public defender shall pay for or authorize payment for the
same, if the public defender determines that the defendant
is unable to pay for the same and that the same are
necessary for an adequate defense[.]
HRS § 802-7 (1993) (emphases added). Thus, the public defender’s
office obtains and pays for transcripts without having to first
receive the court’s approval.22 Id.
However, because Scott was represented by court-
appointed counsel as a result of a conflict of interest, the
circuit court, rather than counsel, determined whether the
requested transcripts were necessary for an adequate defense and
whether Scott had the ability to pay for the transcripts:
In cases where other counsel have been appointed by the
court for reasons of conflict of interest, the court may,
upon the requisite showing of inability to pay and a finding
that such expenses are necessary for an adequate defense as
set forth above, direct that such expenses be paid from
available court funds or waived, as the case may be.
Id. (emphasis added).
Although the language of HRS § 802-7 suggests that the
court has discretion to direct that transcript expenses are paid
(“The court may, upon the requisite showing . . . .”), the
balance of the pertinent statutory language indicates that once a
satisfactory showing of need for the transcripts and inability to
pay has been made, the court should direct that such expenses be
paid, unless alternative means for timely obtaining the
22
This is also true when counsel is appointed for a defendant for
reasons other than a conflict of interest with the public defender’s office.
HRS § 802-7.
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transcripts are available.23 This is evident as the statute
mandates that the public defender’s office is required to furnish
the relevant transcripts upon making the same findings as the
court (“the public defender shall pay for or authorize payment”).
Cf. State v. Castro, 93 Hawai#i 454, 461-62, 5 P.3d 444, 451-52
(App. 2000) (Acoba, J., concurring) (“While the term ‘may’ [used
in HRS § 704-404 governing defendants’ fitness to proceed with
trial] suggests that discretion inheres in the trial court as to
whether to appoint examiners, the balance of the pertinent
statutory language suggests that only some rational basis for
convening a panel is necessary to trigger the court’s appointive
power.”), vacated in part and affirmed in part by 93 Hawai#i 424,
5 P.3d 414 (2000) (adopting Justice Acoba’s concurring opinion in
its entirety).
Permitting the court to make a discretionary
determination as to whether to furnish the necessary transcripts,
in the identical situation where the public defender’s office
would be required to furnish the transcripts, could also raise
equal protection concerns.24 Thus, whether an indigent defendant
23
Where a request for transcripts is made in an untimely manner
without adequate reason and results in a motion for continuance of trial, the
court maintains its discretionary authority to determine the appropriate
disposition of the motion.
24
Equal protection concerns would appear to favor requiring the
court to furnish transcripts in a situation where the public defender’s office
is obligated to furnish transcripts, without conditioning such furnishing upon
financial considerations. Cf. Mayer v. City of Chicago, 404 U.S. 189, 195
(continued...)
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is represented by the public defender’s office or by court-
appointed counsel, once it is determined that transcripts are
“necessary for an adequate defense” and the defendant is unable
to pay, the transcripts are required to be furnished.
In making the determination as to whether requested
transcripts are necessary for an adequate defense, the court
should give due consideration to the recommendations of defense
counsel, who may be in the best position to determine whether
transcripts are necessary for an adequate defense.25 See HRPP
Rule 44(b)(ii) (2011) (requiring court-appointed counsel to
submit motion requesting transcripts and declaration or affidavit
showing cause as to why the motion should be granted).26 Cf.
Russell, 289 N.E.2d at 108 (“a transcript which is of little
24
(...continued)
(1971) (“the State must provide a full verbatim record where that is necessary
to ensure the indigent as effective an appeal as would be available to the
defendant with resources to pay his own way”); Roberts v. LaVallee, 389 U.S.
40, 42 (1967) (per curiam) (“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.”); Douglas v. California, 372 U.S. 353, 355
(1963) (“For there can be no equal justice where the kind of an appeal a man
enjoys depends on the amount of money he has.”) (quotation marks omitted);
Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“Destitute defendants must be
afforded as adequate appellate review as defendants who have money enough to
buy transcripts.”).
25
In the analogous situation where a defendant is represented by the
public defender’s office or by private counsel, counsel has the sole authority
to determine that the transcripts are necessary for an adequate defense and to
furnish the transcripts under HRS § 802-7.
26
Counsel has a duty to make a good faith evaluation as to whether
the transcripts are necessary for an adequate defense.
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value to the State in preparation of its case might be of great
value to the defense in preparation of its case”).
D.
Having determined that the circuit court erred by
failing to provide Scott with the written transcript or DVD of
his codefendant’s trial, it remains to be decided whether this
error mandates vacating Scott’s conviction and remanding for a
new trial or whether a harmless beyond a reasonable doubt
standard should be applied.
In Mundon, the court held that the ICA erred in
concluding that the trial court’s failure to provide Mundon with
the written transcripts of his prior proceedings was harmless
error, as “Mundon was not required to show that he was prejudiced
by proceeding to trial without the written transcripts[.]” 121
Hawai#i at 358, 219 P.3d at 1145. Thus, Mundon appears to
require automatic reversal when an indigent defendant is
wrongfully denied the transcript of his or her prior proceeding.
Other courts have similarly held that “the erroneous
denial of an indigent defendant’s motion for a free transcript of
a prior trial requires automatic reversal.” People v. Hosner,
538 P.2d 1141, 1148 (Cal. 1975) (in bank). See Kennedy v.
Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004) (“Where the state
completely fails to provide an indigent defendant with a
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transcript of a mistrial for use in connection with a second
trial, we would likely find a structural error, requiring
automatic reversal.”); Turner v. Malley, 613 F.2d 264, 266-67
(10th Cir. 1979) (holding that Britt requires automatic reversal
where the state fails to provide defendant with transcript of
first trial for use at second trial and fails to show alternative
device); United States v. Pulido, 879 F.2d 1255, 1259 (5th Cir.
1989) (“On balance, we conclude that a harmless error analysis
would not be appropriate in this case . . . . [W]e note that it
would be an unjustifiable waste of appellate resources to require
an exhaustive comparison of trial transcripts in every case in
which a transcript has been denied.”); United States v. Talbert,
706 F.2d 464, 471 (4th Cir. 1983) (reversing defendants’
convictions “because the government did not provide the
defendants with a copy of the transcript of their first trial”).
The California Supreme Court in Hosner explained that
this per se standard was preferable because of the difficulty of
assessing the prejudicial effect of the denial of a transcript of
the defendant’s prior proceedings. 538 P.2d at 1148-49. In that
case, the court found that the trial court erred by denying the
defendant’s motion for a transcript of his first trial, which
ended in a mistrial. Id. at 1143. In deciding whether this
error mandated reversal of the defendant’s conviction, the court
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first explained that the denial of a transcript from a prior
trial “infects all the evidence offered at the latter trial”:
The denial of the transcript does not merely taint some
specific items of evidence, leaving other items which might
of their own force provide overwhelming evidence of guilt
beyond a reasonable doubt. Rather, in the manner of the
denial of the assistance of counsel, the denial of a
transcript of a former trial infects all the evidence
offered at the latter trial, for there is no way of knowing
to what extent adroit counsel[,] assisted by the transcript
to which the defendant was entitled[,] might have been able
to impeach or rebut any given item of evidence.
Id. at 1148 (emphasis added).
The court then observed that assessing the prejudicial
effect of an erroneous denial of a prior trial transcript would
require the appellate court to speculate to an unacceptable
degree:
Even if an appellate court were to undertake the
extraordinary burden of reviewing the records of both
trials, the court would be able only to hypothesize what use
at the latter trial could have been made of the transcript
of the former trial. While the assessment of the
prejudicial effect of error always requires some speculation
by the reviewing court as to how an average jury would have
decided the case in the absence of the error, an entirely
new level of compound conjecture would be entailed in a
court's first speculating what evidence might have been
impeached, and how, and only then speculating how the trier
of fact would have reacted to the speculated efforts at
impeachment.
Id. (emphasis added). Based on this analysis, the court reversed
the defendant’s judgment.27 Id. at 1149.
In the context of an indigent defendant’s right to the
transcripts of a codefendant’s trial, the Illinois Appellate
27
The Hosner court expressly “reserve[d] decision [on] whether the
per se rule of prejudice . . . should also be applied to an erroneous denial
of a transcript of some other prior proceeding.” Id. at 1149 n.7.
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Court in People v. Russell held that the trial court erred in
denying the indigent defendant’s request for the transcript of
his codefendants’ trial, and consequently vacated the defendant’s
conviction and remanded for a new trial with instructions that
the State provide the defendant with the required transcript.
289 N.E.2d 106, 108 (Ill. App. Ct. 1972). On the other hand, a
harmless error standard has also been applied in a case involving
the trial court’s denial of an indigent defendant’s request for a
codefendant’s trial transcripts. State v. Razinha, 599 P.2d 808,
811-12 (Ariz. Ct. App. 1979) (trial court’s denial of
codefendant’s transcript was harmless beyond a reasonable doubt
where key witness’s testimony at defendant’s trial supported
defendant’s theory of case); see United States v. Bamberger, 482
F.2d 166, 168-69 (9th Cir. 1973) (any error in denial of
transcript of codefendant’s second trial was harmless, where
defendant was provided transcript of codefendant’s first trial,
defense counsel cross-examined eyewitness on inconsistencies with
statements made at first trial and in investigative reports, and
defendant “could neither reasonably hope for, nor realistically
gain, more telling or damaging impeachment tools from the
transcript he was denied”).
In this case, we need not decide whether the applicable
standard upon finding that the trial court erroneously denied an
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indigent defendant’s request for the transcripts of a
codefendant’s trial is a per se standard resulting in vacating
and remanding for new trial, or a harmless beyond a reasonable
doubt standard. Under either standard, remand for a new trial is
required in this case. Although Jefferson’s trial transcripts
are not available in the record on appeal, the denial of the
requested transcripts was clearly not harmless beyond a
reasonable doubt, as Jefferson and Scott were codefendants whose
charges arose out of the same incident and involved identical
facts and the same critical witnesses.
As noted, Kerry was the State’s primary witness against
Scott, and her version of the events substantially diverged from
Scott’s testimony. Under these circumstances, where the
credibility of a key witness is of critical importance, providing
defense counsel with a transcript of the witness’s prior trial
testimony assumes even greater significance. Cf. Riggins v.
Rees, 74 F.3d 732, 738 (6th Cir. 1996) (transcripts of
defendant’s prior trials “assumes even greater importance in
close cases”). The probability that having the transcripts of
Jefferson’s trial would have affected defense counsel’s strategy
and facilitated effective cross-examination precludes the circuit
court’s error from being declared harmless beyond a reasonable
doubt. Cf. Asfaw v. Commonwealth, 692 S.E.2d 261, 265 (Va. Ct.
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App. 2010) (probability that defense counsel could have
challenged witnesses’ testimony with inconsistent statements made
at preliminary hearing “precludes the trial court’s error from
being declared harmless beyond a reasonable doubt”).
Therefore, under either a per se standard or a harmless
beyond a reasonable standard, the circuit court’s erroneous
denial of Scott’s requested transcripts requires the case to be
remanded for a new trial.
V.
Accordingly, we vacate the ICA’s January 15, 2013
Judgment on Appeal and the circuit court’s August 30, 2010
Judgment and remand the case for a new trial consistent with this
opinion.
Kevin O’Grady, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Linda L. Walton,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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