Opinion
Civ. No. 99-1219, Section "I" (6).
January 14, 2000.
ORDER AND REASONS
Before the Court are the State's objections to the Report and Recommendation of the United States Magistrate Judge that Clifford Doleman's petition for writ of habeas corpus be granted. The Magistrate Judge found that the state court's decision to deny Doleman a free copy of a transcript of his first trial, which ended in a mistrial, rested on a legal determination which was contrary to the clearly established United States Supreme Court precedent in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), applied to the facts of the case.
The State filed timely objections to the Report and Recommendation. The court has made the required de novo review of the records in this case and in state court, the Report and Recommendation of the Magistrate Judge, the parties' pleadings, and the applicable law. Having done so, the Court agrees fully with and adopts in whole the reasons as stated by the Magistrate Judge, which together with the court's discussion herein of the State's objections constitute the opinion of this court.
As well as the Magistrate Judge's Errata filed on November 4, 1999 at Rec. Doc. 21.
The State does not challenge the Magistrate Judge's reliance on the Britt two-factor test for determining whether denial of a free transcript to an indigent defendant violates the Fourteenth Amendment. In Britt, the United States Supreme Court held that a free transcript must be provided when it is "needed for an effective defense or appeal." Britt, 404 U.S. at 227, 92 S.Ct at 433. The two factors bearing on the determination of "need" are: (1) the value of the transcript to the defendant in connection with the proceeding for which it is sought; and (2) the availability of alternative devices that would fulfill the same functions as a transcript. Id., 404 U.S. at 227, 92 S.Ct. at 433;
Nor does the State challenge the Magistrate's determination that the state court erred in applying a "substantial prejudice" standard. See State v. Doleman, 96-KA-1946 (La.App. 4th Cir. 1997). Under Britt, the value of a transcript of a prior mistrial is assumed without requiring a petitioner to demonstrate need. See Britt, 404 U.S. at 228, 92 S.Ct. at 433 ("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"); Tague v. Puckett, 874 F.2d 1013, 1014 (5th Cir. 1989) (a petitioner "is not required to demonstrate that the denial of a transcript of the mistrial prejudiced him"). Thus, the value of the transcript is not at issue here.
At issue in the State's objections is whether the State has shown the availability of an adequate alternative to the trial transcript. The State argues that it has done so by virtue of the following combined facts: (1) the availability of transcripts from Doleman's preliminary hearing and pre-trial motion hearings; (2) the availability of the crime scene technician's report; (3) the availability of the police report; and (4) the presence of the same counsel at Doleman's first and second trials.
Three witnesses who testified at Doleman's first trial did not testify at either the preliminary hearing or the pre-trial motion hearings: Officers Neville Payne, Millard Green, and Richard Hunter. Officer Payne was one of the officers called to the scene of the crime. He found the weapon and broadcast a description of the perpetrator. He also is the officer who completed the police report. Officer Green is the crime scene technician who recovered a weapon and baseball cap from the crime scene. Officer Hunter responded to assist another officer who had stopped Doleman in his car, and who recovered evidence from a search of Doleman.
The Magistrate Judge's Errata, entered November 4, 1999 (Rec. Doc. 21) corrects his Report and Recommendation to find that the pre-trial hearing transcripts include the testimony of eyewitness Glenda Gusman, but not Payne, Green, or Hunter.
The court has reviewed the testimony of these witnesses at both trials and agrees with the Magistrate Judge that these are significant witnesses. In addition, there is an inconsistency between Officer Green's testimony at the first trial to the effect that his test of the weapon for fingerprints was negative, and his testimony at the second trial to the effect that he did not test for fingerprints. Regardless of whether this is viewed as a minor or major discrepancy, a transcript would have provided an avenue for impeachment, and even minor discrepancies in a witness's testimony can provide an effective defense. Green's report is not an adequate alternative to his trial testimony because it does not mention the results of the weapon test, and thus would not enable impeachment. Without the transcript from the first trial, Doleman had no means other than memory of the trial to impeach Green on this point.
The second trial was held four months after the first trial. In both trials, eight witnesses testified for the State. Doleman represented himself pro se at both trials. Review of the transcripts from the trials shows that Doleman conducted most of the questioning himself, even though the court appointed an indigent defender counsel to assist him. There is no evidence that the appointed counsel took notes which were available to Doleman for his second trial. The Supreme Court has rejected, as a general rule, reliance upon counsel's memory as an alternative to a transcript. See Britt, 404 U.S. at 229, 92 S.Ct. at 434-35 (citing Gardner v. California, 393 U.S. 367, 369-70, 89 S.Ct. 580, 582-83, 21 L.Ed.2d 601 (1969); Williams v. Oklahoma City, 395 U.S. 458, 459, 89 S.Ct. 1818, 1819, 23 L.Ed.2d 440 (1969)). Likewise, Doleman's "lay" memory would be even more inadequate as an alternative to a transcript, especially in light of the number of witnesses at trial and the time interval between the two trials. See Gardner, 393 U.S. at 582, 89 S.Ct. at 369-70.
Considering all of these circumstances, the court finds that the state has failed to show that the presence of the same counsel at both trials and the pre-trial hearing transcripts of less than all of the trial witnesses provided an adequate alternative to a trial transcript. Thus, the state court decision to deny Doleman a free transcript of his first trial rested on a legal determination which was contrary to clearly established federal law, as adjudicated by the Supreme Court, applied to the facts of the case. Therefore, under Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997), Doleman is entitled to habeas relief.
Accordingly,
IT IS ORDERED that the petition of Clifford Doleman for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED unless the State affords him a full and complete transcript of Doleman's first and second trials for use in trial preparation and retries Doleman within 120 days.
cc: Magistrate Judge Moore