Opinion
No. 33, 1999.
Submitted: February 4, 1999.
Decided: February 17, 1999.
MANDAMUS DISMISSED.
Before HOLLAND, HARTNETT, and BERGER, Justices.
ORDER
This 17th day of February 1999, upon consideration of the petition for a writ of mandamus filed by the petitioner, Franklin Fennell ("Fennell"), and the answer and motion to dismiss filed by the State of Delaware, it appears to the Court that:
(1) In August 1995, a Superior Court jury convicted Fennell of drug and drug-related offenses. On direct appeal, this Court affirmed Fennell's conviction. Fennell v. State, Del. Supr., 691 A.2d 624 (1997).
(2) Fennell has filed a petition for a writ of mandamus complaining that the Superior Court has denied his requests for specified portions of the trial transcript, at State expense. Fennell requests free transcript of the "closing arguments, jury instructions; and acquittal discussion prior to jury's return." Fennell represents that he is indigent, and that he needs the transcript to pursue habeas corpus relief in the federal court. Fennell requests that this Court issue a writ of mandamus directing that the Superior Court trial judge and the court reporter who reported his trial, provide him with the specified transcript.
(3) The Court will issue a writ of mandamus to a trial court only when the petitioner can show that there is the clear right to the performance of the duty at the time of the petition, no other adequate remedy is available, and the trial court has failed or refused to perform its duty. In re Bordley, Del. Supr., 545 A.2d 619, 620 (1988). The Court is without jurisdiction to issue a writ of mandamus directly to the court reporter. Del. Const. art. IV, § 11( 6); In re Hitchens, Del. Supr., 600 A.2d 37, 38 (1991); In re Brawley, Del. Supr., No. 61, 1996, Hartnett, J., 1996 WL 145797 (Mar. 5, 1996) (ORDER).
(4) The Supreme Court record reflects that, for the direct appeal, Fennell's trial counsel directed the preparation of transcript of "all testimony" and "all motions before and during trial." According to Fennell, Fennell's former counsel has provided him with that transcript. It does not appear that counsel directed the preparation of transcript of the "closing arguments, jury instructions; and acquittal discussion prior to jury's return," which is the transcript that Fennell demands in his petition for a writ of mandamus.
(5) By order dated August 18, 1997, the Superior Court denied Fennell's request for free transcript of the closing arguments and jury instructions. The Superior Court determined that Fennell had not stated any specific reasons why he needed the transcript and had not demonstrated that he was indigent. Similar orders were entered by the Superior Court on March 31, 1998, and January 20, 1999.
(6) Fennell's petition for a writ of mandamus manifestly fails on its face to invoke the Court's original jurisdiction. Fennell has not established that he has a right to a free copy of the specified portions of the transcript, nor has he demonstrated that the Superior Court has arbitrarily refused to perform a duty owed to him. In re Bordley, 545 A.2d at 620. Accordingly, Fennell's petition must be dismissed.
NOW, THEREFORE IT IS ORDERED that the petition for a writ of mandamus is DISMISSED.
BY THE COURT:
/s/ Maurice A. Hartnett, III, Justice