Opinion
Docket No. 26847.
Decided March 24, 1977. Lv den, 400 Mich. 861 (1977), cert den, 435 U.S. 932 (1978).
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.
Raymond E. Willis, for defendant.
Defendant appeals from a verdict by a jury in Wayne County Circuit Court convicting him of felonious assault, in violation of MCLA 750.82; MSA 28.277. Counsel for the defendant have strongly contended in this appeal that the case has numerous errors entitling defendant to reversal. We are of the view that one issue is dispositive and, therefore, reverse.
Though we reverse, our disposition herein cannot be satisfactorily understood without reference to the posture of events below. Defendant has now faced trial on this same charge on four occasions. All four trials occurred during a three-month period. The first three trials resulted in hung juries. In the instant trial, the jury deliberated four days before rendering its verdict.
Throughout the course of these proceedings, defendant has been represented by the Legal Defenders Office. At the time of the fourth trial, the attorney who had represented defendant in the first three trials was unable to participate. An adjournment was requested to allow time for the original attorney to handle the fourth trial. The motion was denied. As a result, new counsel from the defender's office was brought in to handle the trial.
Prior to the fourth trial, defendant's new counsel requested the trial transcripts of the first and third trials. This was sought despite the fact that the defendant had been previously provided with copies of the preliminary examination and second trial transcript. His request was premised upon People v Glass, 38 Mich. App. 735; 197 N.W.2d 140 (1972). At the time of this request he stated:
"I would submit to the Court that perhaps discovery is not the main thrust in this motion, it is impeachment. You have a situation where you have two eye witnesses, and at the time of the trial they decide to bring in the second eye witness, considering the witness was going to testify to the modus operandi of my client. I submit the impeachment is of the utmost importance. That is what the case is all about, eye witness testimony. If ever there was a situation where impeachment possibility is available, it should be made available. You have a long trial, and you get mixed up with a secondary issue, and in this case eye witness identification. That is what we need it for."
The trial judge reached a result contrary to defendant's position on the basis of essentially the following facts:
"This case was a short trial. It was a comparatively simple trial. We have the examination testimony, you have the complete transcript of the second trial, requested by the defendant, and adjournment was granted for that purpose. The third trial again repeated that which was in the second trial."
Again, as in the court below, defendant contends that the trial judge's denial of the transcripts was error. We agree.
In Glass, the Court held that an indigent criminal defendant was entitled to a transcript of his first trial at state expense prior to a new trial, even though he was represented by the same lawyer at both trials. In reaching this result, Judge, now Justice, LEVIN quoted approvingly the following language from Britt v North Carolina, 404 U.S. 226, 228; 92 S Ct 431; 30 L Ed 2d 400 (1971):
"`We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.' * * * (Emphasis supplied.)" 38 Mich App at 738.
We think Glass governs our result here. It is, of course, true that the instant case differs from Glass in that all of the trials occurred within a three-month period. Moreover, defendant was given copies of the second trial and the preliminary examination transcripts prior to the third trial. But, by the same token, there are dissimilarities which suggest that the need was even greater than in Glass.
In the instant case, defendant was now being represented by different counsel. We do not overlook or minimize the consideration that he was from the same office as original counsel. But this hardly suffices to let him delve into the inconsistencies in a witness's prior testimony. He was not dealing with a faulty memory of earlier trials but, rather, he was dealing without the benefit of any recollection.
The transcripts provided did not rectify this deficiency. This attorney employed a strategy quite different from that of his predecessor. For example, this was the first time defendant testified in his own behalf. Thus, based upon this alteration of trial tactics, various aspects of earlier testimony on the part of the witnesses could become crucial to defendant's defense. Obviously, without the benefit of the other transcripts, the defendant would be unable to discern the inconsistencies in the prior testimony of the witnesses.
We note that the defendant testified because the trial judge suppressed any references to his prior criminal record. See People v Jackson, 390 Mich. 621; 212 N.W.2d 918 (1973).
Finally, it is also urged by the prosecutor that this was a relatively simple case and the transcript was unnecessary to defendant's defense. The record belies this assertion. We have a voluminous transcript in the instant case. As was noted previously, there were three prior hung juries. The fourth jury deliberated four days before reaching a verdict. As the trial judge stated in rejecting defendant's assertion that four days of deliberation amounted to coercion to reach a verdict:
"It has been a very lengthy trial, the evidence is voluminous, extensive cross examination; and in actuality the time used by the jury to this point, relatively speaking, has not been a long time to deliberate on everything that has gone into this record."
For the above-stated reasons, we reverse and remand.