UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-7691
LARRY FISHER,
PETITIONER-APPELLEE,
VERSUS
EDWARD HARGETT,
Superintendent,
Mississippi State Penitentiary
RESPONDENT-APPELLANT.
Appeal from the United States District Court
for the Southern District of Mississippi
( July 26, 1993 )
Before EMILIO M. GARZA, DeMOSS, Circuit Judges, and ZAGEL*,
District Judge.
DeMOSS, Circuit Judge:
Petitioner Larry Fisher is currently in the custody of the
Mississippi Department of Corrections. Convicted of rape on January
31, 1986, Fisher received a life sentence which he appealed to the
Mississippi Supreme Court. When the Mississippi Supreme Court
affirmed his conviction on September 14, 1988, Fisher instituted
*
District Judge of the Northern District of Illinois, sitting
by designation.
the present federal habeas corpus proceeding. The district court
agreed with Fisher that Mississippi's failure to provide him with
a free full transcript of his second trial for the capital murder
of an earlier victim violated his constitutional right of equal
protection. Though the district court rejected Fisher's second
claim that his constitutional right to a speedy trial had been
violated, it granted Fisher's Petition for Habeas Corpus. The State
of Mississippi filed this appeal from that order. We reverse the
grant of habeas corpus.
I. FACTS AND PROCEDURAL HISTORY
On February 11, 1983, Patsy Jo Rivers was raped in Lauderdale
County, Mississippi. On June 4, 1983, Meridian Police set up a
decoy operation in which they caught and arrested Fisher. On the
next day, Ms. Rivers identified Fisher in a line-up. On December 1,
1983, Fisher was formally indicted for the rape, in addition to two
separate capital murder charges for the deaths of Melinda Gail
Weathers and Carol Formby. On December 5, 1983, the state trial
court arraigned Fisher on all three indictments.
On April 16-21, 1984, Fisher was tried, convicted, and
sentenced to die for the capital murder of Ms. Weathers. Fisher
appealed and on October 16, 1985, the Mississippi Supreme Court
reversed the murder conviction and remanded the case for a new
trial with directions for a change of venue. On December 9, 1985,
Fisher's remanded trial commenced. On December 13, 1985, the jury
acquitted Fisher of the charge of murder.
2
On January 30, 1986, the Rivers rape trial commenced. Fisher,
as an indigent, was represented by appointed counsel, just as he
had been on each of the two earlier occasions. The state used three
witnesses that had testified in both previous murder trials. The
testimony of these witnesses in the prior murder trials was minimal
and limited to Fisher's modus operandi in such murder. Though
Rivers was one of these three common witnesses, her testimony in
the two earlier trials never mentioned the rape. However, as the
rape victim, Rivers was the state's main witness in the present
case.
Fisher requested a full free transcript of the second trial,
which the State refused. He had been given a transcript of the
first capital murder trial; and the State also gave him all
discovery materials within its possession, including written
statements by all of the state's witnesses. Moreover, his counsel
obtained a full transcript of the rape trial's preliminary hearing
in which Rivers had testified. The state judge permitted him to use
this transcript during the rape trial for impeachment purposes. At
the close of the trial, the jury convicted Fisher of rape and
sentenced him to life imprisonment. Fisher appealed and the
Mississippi Supreme Court affirmed his conviction on September 14,
1988.
This habeas corpus petition is based on Fisher's claim that
the State's denial of a free transcript of the second trial
violated his constitutional right to equal protection. In the
alternative, Fisher argues that his constitutional right to a
3
speedy trial was violated by the length of time between his arrest
on the rape charge and his trial.
II. DISCUSSION
A. Constitutional Right to a Free Transcript
Fisher claims that a full free transcript of the second
capital murder trial was necessary for his defense in the rape
trial. He argues that the state's use of witnesses common to all
three trials made this transcript a necessity to his new counsel as
both a discovery tool and as a means of impeaching those witnesses.
The district court accepted this argument and found that the state
trial court's refusal to furnish Fisher, an indigent, with the
requested transcript violated the holding of the Supreme Court's
opinion in Britt v. North Carolina, 404 U.S. 226 (1971).
In Britt, an indigent defendant requested a transcript from an
earlier mistrial to prepare for a subsequent retrial one month
later on the same charge, with the same judge, counsel, and court
reporter. The Supreme Court established a two-prong test to
determine a defendant's need for the transcripts of a prior
mistrial proceedings: (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. Though the
defendant in Britt failed to satisfy this second element, the
Court's opinion stands for the rule that indigent defendants have
a constitutional right under the equal protection clause to receive
4
a free transcript of prior mistrial proceedings unless they are
provided an adequate alternative. Id.
The question of first impression before us today is whether
the state is constitutionally required to provide an indigent
defendant with a full free transcript of a prior trial on a
different charge.
Fisher answers the question affirmatively, relying heavily on
the district court's analysis and interpretation of Britt. In
Britt, the Supreme Court declared that "[o]ur 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." Britt, 404 U.S. at 227. As a
result, the district court found that Fisher had demonstrated
sufficient need for the trial transcript from his second capital
murder trial. According to the district court, the transcript could
be used to familiarize the new attorney with the prior proceedings
and to impeach witnesses who testified in both the murder retrial
and the River's rape trial. As to Britt's second requirement, the
district court relied on the Supreme Court's statement that "[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." Britt 404 U.S. at 230. Therefore, the district court
held that Fisher was not required to prove that he attempted to
take advantage of all possible substitutes for the trial transcript
to be entitled to relief.
5
This Court has held that "[a]n indigent defendant has both a
constitutional and a statutory right to a free transcript of prior
proceedings if it is reasonably necessary to present an effective
defense at a subsequent proceeding." United States v. Pulido, 879
F.2d 1255, 1256 (5th Cir. 1989)(citing United States v. Johnson,
584 F.2d 148, 157 (6th), cert. denied, 440 U.S. 918 (1978)); see
also, Tague v. Puckett, 874 F.2d 1013, 1014 (5th Cir.
1989)(interpreting Britt to require a state furnished transcript
when needed for an effective defense). Furthermore, we have
interpreted Britt to mean that "a court must assume that a
transcript of a prior mistrial is valuable to the defense. Thus, .
. . [a] case turns on the availability of adequate alternatives to
a transcript." Pulido at 1257 (citations omitted).
The authorities cited by both the district court and Fisher in
support of their position all address a request by a defendant for
a transcript of a prior mistrial for use in a subsequent retrial
for the same offense. The State argues that Britt does not extend
to this case, which involves a request of a transcript of a prior
case (not a mistrial) for use in a subsequent case for an offense
involving a different victim of a different crime that occurred in
a different place and at a different time.
The State emphasizes that Britt and its progeny (Pulido and
Tague), addressed the limited question of whether a free transcript
of a prior mistrial was constitutionally required for use in a
subsequent retrial for the same offense. We are referred to our
statement in Pulido that "[t]his right extends to the case of a
6
mistrial followed by a subsequent prosecution but has been limited
by the Supreme Court according to criteria with somewhat hazy
parameters." Pulido, 879 F.2d at 1256 (emphasis added). The State
adds that the cases that the Supreme Court cites in footnote 1 of
Britt all involve a request for a free transcript for use in an
appeal or some other type of review of the same case. According to
the State, Britt is therefore limited to a specific context, which
is not applicable to this case. Lastly, the State argues that even
if the Britt test has been met, then any error which may have
occurred is harmless.
1. Value of Transcript
If we apply Britt's requirements to the facts of the present
case, the logic underlying the Britt test breaks down. For example,
in the case of a mistrial and subsequent trial on the same charge,
the Supreme Court held that the first Britt requirement concerning
the value of the transcript to a defendant should be assumed.
Britt, 404 U.S. at 228. Their rationale was that a mistrial
becomes, essentially, a dry run of the second prosecution. In that
context, the transcript is invaluable in preparing for the second
trial. When we review the facts of a case where the subsequent
proceedings involve a different charge, this automatic assumption
is no longer sound.
In the present case, only three of the 29 witnesses that
testified for the State in the Weather's capital murder case also
testified in the rape trial. Pat Rivers, the victim in the rape
case, gave only limited testimony in the murder trial.
7
Specifically, her testimony was limited to her description of being
pulled over by Fisher flashing his headlights from his automobile.
Rivers did not testify to having been raped by Fisher. At the rape
trial, however, Rivers testified unequivocally that Fisher raped
her. This difference in testimony is significant in that the
requested transcript would not have enabled Fisher to impeach
Rivers in the rape trial regarding the rape itself because her
testimony regarding the rape was being offered for the first time.
There is little doubt that River's testimony in the murder
trials was of minor importance. Fisher's own attorneys admitted at
the state court hearing on the request for the transcript that they
knew little about the rape. These attorneys, who had represented
Fisher at the murder trials, further testified that no evidence of
the rape was introduced in either of Fisher's murder trials. Thus,
the transcript of Rivers' testimony would have been of little value
to Fisher in the rape trial, despite the fact that River was now
the State's main witness.
The second common witness, Detective House, testified at the
murder trial about his participation in a decoy operation, which
resulted in the arrest of Fisher four months after the rape of
Rivers. Even if Fisher had been able to test House's testimony in
the rape trial using the requested transcript, it would have only
been as to a minor point surrounding the arrest and not the rape
itself.
The third common witness, Marsha Pigott, testified that Fisher
had pulled her over by flashing his headlights and told her that
8
her license plate tag was falling off. She admitted to giving
inconsistent prior testimony as to Fisher's description; therefore,
"impeachment would have added little since [Pigott] admitted that
[her] earlier testimony may have differed." United States v. Smith,
605 F.2d 839, 845 (5th Cir. 1979). Indeed, Pigott was in fact
impeached not only in both murder trials but also in the rape
trial.
In our view, the importance of a prior trial transcript on a
different charge is likely to be minimal. The limited testimony of
the three common witnesses in this case played a minor role in the
murder trials and did not vary much from trial to trial. As a
result, we cannot infer that the requested transcript was
constitutionally indispensable to Fisher's defense, especially in
light of the fact that the State furnished him with a transcript of
the first murder trial. Consequently, we conclude that the
assumption that a requested transcript of a prior proceeding is
automatically valuable does not extend beyond the narrow confines
of Britt. We do not claim that a free transcript of the prior
proceeding could not have been helpful to Fisher in some way.
Nonetheless, we do not feel it is constitutionally required when
the preceding trial was for a different offense involving a
different victim at a different time.
2. Availability of Adequate Alternatives
The second requirement of Britt is whether adequate
alternatives to the transcript existed. We hold that Fisher had
adequate alternatives.
9
In Pulido, we stated that it is infrequently determined that
available alternatives are adequate. Pulido, 879 F.2d at 1257.
However, it must be remembered that in Pulido we were referring to
a transcript of a prior mistrial of the same offense. In the
present case, the adequacy of alternatives requirement is easy to
satisfy. In Britt, the Supreme Court's emphasis upon the
availability of adequate alternatives before a free transcript
could be withheld, 404 U.S. at 228-29, does not appear to require
an equally valuable substitute. All that is constitutionally
required is an adequate alternative. And a bare minimum appears to
fulfill this requirement. In Britt, the Court held a court
reporter's notes, which the court reporter would have read back to
the defendant if requested, satisfied the requirement of adequacy.
We interpret this holding to mean that an adequate alternative need
not be a virtual substitute for a transcript's role in preparing a
defense.
In determining what constitutes an adequate alternative, the
availability of discovery, or the lack thereof, is an important
factor. In the present case, the State voluntarily made discovery
available to Fisher. And it was the preliminary hearing record, not
the requested transcript, which was the "virtual dry run of the
entire prosecution's [rape] case." Britt 404 U.S. at 232.
Accordingly, in the present case, an adequate alternative to a
transcript existed when full discovery was made available to the
defendant, and the defendant had a copy of the transcript of the
preliminary hearing.
10
Therefore, we agree with the state court that there were
adequate alternatives to the requested transcript. The state court
found that the following alternatives available to Fisher were
adequate and sufficient for an effective defense: (i) the
transcript of the first capital murder trial, and (ii) the ability
of Fisher's new attorney to consult with his prior attorneys and
other persons present at the second capital murder trial.
There was a strong basis for the state court's finding.
Fisher's counsel conceded that the transcript of the first murder
trial contained "essentially identical" testimony as that contained
in the requested transcript. Additionally, Fisher's counsel
admitted that he had discussed the second murder trial with other
persons present at that trial. Another source of information was
the previously discussed discovery which the State made available
to Fisher under court order.
Finally, at no stage of the post-conviction proceedings has
Fisher offered proof of telling discrepancies between the trial
testimony here and the testimony in the second murder trial. Fisher
could have offered the evidence of his prior counsel, or a court
reporter or a bystander at the second murder trial to prove his
point. Nor did Fisher request, as he could have, that the district
court exercise its discretion and order that the prior trial
transcripts of the three witnesses be provided under the terms of
the Criminal Justice Act. See 18 U.S.C. §§ 3006A(e)(1) and
3006A(a)(2)(B). Fisher's case might be stronger if he had attempted
to make it less theoretical.
11
In summary, it appears that the requested transcript would not
have substantially aided Fisher in connection with his trial on the
rape charge, and that there were sufficiently available
alternatives, which Fisher utilized, that fulfilled the same
function as the requested transcript. Accordingly, we hold that the
state court did not err in refusing to require the State to furnish
Fisher with a free full transcript of the second murder trial.
B. Speedy Trial
Fisher also alleges that his constitutional right to a speedy
trial was violated and therefore that the district court erred in
denying his claim. The State responds that Fisher has waived his
right to raise this argument on appeal because he failed to file a
timely appeal of the district court's decision. Nonetheless, we
shall address Fisher's claim.
The leading case on the speedy trial issue is Barker v. Wingo,
407 U.S. 514 (1972). In Barker, the Supreme Court applied a
balancing test which enumerated four considerations: (1) length of
the delay, (2) reason for the delay, (3) defendant's assertion of
his right to a speedy trial, and (4) prejudice resulting to the
defendant. Barker, 404 U.S. at 530.
1. Length of Delay
The speedy trial clock begins to tick when the defendant is
arrested and held to answer for a criminal charge. United States v.
Marion, 404 U.S. 307, 320-21 (1971). In the present case,
approximately 32 months elapsed between Fisher's arrest for the
River's rape and the beginning of the trial.
12
2. Reason for the Delay
The trial court entered an order of continuance pending the
outcome of Fisher's appeal of his death sentence after his murder
conviction in the original murder trial. As Fisher concedes, the
majority of the delay--approximately 19 1/2 months--consisted of
the time between the entry of the court's continuance order and the
beginning of the trial. This Court held, in an analogous situation,
that a state was justified in choosing "not to expend scarce
judicial and prosecutorial resources in trying a defendant facing
a death sentence, the execution of which would have eliminated the
need for any trial at all." Jamerson v. Estelle, 666 F.2d 241, 244
(5th Cir. 1982)(quoting Turner v. Estelle, 515 F.2d 853, 856 (5th
Cir. 1975), cert. denied, 424 U.S. 955 (1976)). Applying Jamerson
to the present case, we find that the delay was justified.
3. Fisher's Assertion of the Right
In Barker, the Supreme Court held that the failure to assert
the right to a speedy trial "will make it difficult for a defendant
to prove he was denied a speedy trial." Barker, 407 U.S. at 532.
The trial court's Continuance Order stated that the rape case was
continued "until further motions or requests of either the
defendant or the state." Fisher filed no motion asking to go to
trial on the rape case. Fisher claims he knew nothing of the
continuance, did not agree to one and was not served with a copy of
the order. We are unpersuaded by his argument and find that this
prong of the Barker test weighs in favor of the State.
13
4. Prejudice to Fisher
There are three interests to consider in determining whether
Fisher was prejudiced by the delay: (a) preventing oppressive pre-
trial incarceration, (b) minimizing the anxiety and concern of the
accused, and (c) limiting the possibility that the defense will be
impaired. Barker, 407 U.S. at 532.
In our view, Fisher was not prejudiced by the delay. Fisher
was incarcerated pursuant to his murder conviction, not because he
was awaiting trial on the rape charge. His anxiety over the
upcoming rape trial was probably minimal given that he was facing
the death penalty. And Fisher does not point out any way in which
the delay impaired his defense. Fisher contends, however, that the
delay in the trial was so great that prejudice is presumed.
In Doggett v. United States, U.S. , 112 S. Ct. 2686,
120 L. Ed. 2d 520 (1992), the Supreme Court spoke on this issue. In
Doggett, which involved a delay of eight-and-one-half years, the
Court held that the defendant's right to a speedy trial had been
violated even though he could not point to any particular prejudice
he had suffered as a result of the delay. In reaching its
conclusion, the Court relied on the fact that six years of the
delay was attributable to the Government's negligence. In the
present case, there is a much shorter delay and the majority of the
delay was caused by the trial court's interest in preserving
judicial resources, not negligence on the part of the State.
Consequently, we agree with the district court's conclusion
that Fisher's speedy trial claim must fail.
14
III. CONCLUSION
We hold that the district court erred in finding that the
State was constitutionally required to provide Fisher with a free
full transcript of his second murder trial. Accordingly, we REVERSE
the district court's grant of habeas relief.
c:br:opin:92-7691p.mm2 15