The Raw Materials of a Defense

State v. Scott (HSC October 16, 2013)
Background. Kevin Scott and his brother Jefferson Scott were indicted separately out of the same incident involving Leif Martin and Kerry Martin. Jefferson Scott was indicted first and convicted of some of the offenses. Months later, Kevin was indicted for committing assault in the second degree upon Leif, two counts of terroristic threatening in the first upon Leif and Kerry and one count of terroristic threatening in the first degree by a common scheme. Kevin demanded a jury trial.

Scott Requests Transcripts, Audio, and Video Records from his Brother’s Trial . . . Before trial, the prosecution filed notice of its intention to use evidence that Jefferson assisted Kevin after Kevin got into a dispute with the Martins. Kevin filed a motion to continue the trial on the grounds that he needed more time to get transcripts from Jefferson’s trial. The transcripts would assist him in his defense. Kevin’s counsel explained that the reason for not getting the transcripts sooner was caused by plea negotiations that fell through. In addition to the motion to continue, Kevin submitted a request for transcripts of Jefferson’s jury trial proceedings, a pretrial motion hearing, and the sentencing hearing. He later requested an audio disc of the same proceedings.

The prosecution objected to the motion and argued that Kevin failed to show that the requested transcripts were necessary to the defense. The circuit court denied the motion to continue on the grounds that Kevin failed to show a need for the transcripts. The request for the transcripts and audio discs were also denied. The administrative judge wrote that Kevin had no constitutional right to free audio or video in this case.

At trial, Kevin was found guilty of assault in the second degree, terroristic threatening in the second degree, and terroristic threatening in the first degree. The circuit court sentenced him to five years prison. The ICA affirmed the conviction.

The Right to a Transcript in Your Prior Proceedings . . . A criminal defendant has the “right to transcripts of prior proceedings.” State v. Mundon, 121 Hawaii 339, 357, 219 P.3d 1126, 1144 (2009). The government “must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.” Britt v. North Carolina, 404 U.S. 226, 227 (1971). The SCOTUS identified two factors in determining this need: (1) the value of the transcript to the defendant; and (2) the availability of alternatives that would fulfill the same function. Id. at 227-28. Then, with regard to the first factor, the SCOTUS held that there is a great value in transcripts of prior proceedings and the defense is not required to establish “need tailoring to the facts of the particular case.” Id. at 228. The HSC applied this test in Mundon and elaborated on the first factor. It held that “there is innate value to a criminal defendant in being able to review transcripts for trial preparation and impeachment purposes such that a defendant need not show a particularized need for such transcripts.” Mundon, 121 Hawaii at 358, 219 P.3d at 1145.

Once Britten . . . Here, the HSC applied this two-part Britt test to his brother’s trial. The HSC specified that the issue pertained to the transcript of the “co-defendant,” which is defined as the “defendants sued in the same litigation or charged with the same crime.” Black’s Law Dictionary 293 (9th ed. 2009). The HSC first explained that the need for these transcripts is worthy and of great value. The same witnesses testified, the charges were similar, and the underlying incident was the same. Moreover, the prosecution had the advantage of prosecuting Jefferson and had the benefit of examining the witnesses and knew about which areas in the testimony were open for impeachment. In light of this innate value, Kevin did not have to show a particularized need for the transcripts or the DVDs from his brother’s trial.

As for the second prong—availability of alternatives—the burden switches to the prosecution. “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.” Britt, 404 U.S. at 230. In other words, the prosecution has to prove that the defendant has adequate alternatives to a written transcript. In Britt, the SCOTUS held that there was an adequate alternative because the defense conceded that the court reporter “would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.” Id. at 229. The HSC in Mundon, however, found a different result because “the transcript must be available to defense counsel prior to trial if it is to be useful as an impeachment and trial preparation tool.” 121 Hawaii at 358, 219 P.3d at 1145. Here, the HSC held that no alternatives were presented to the defense.

An Open Question on the Remedy. The HSC next examined what to do now that it held that the court erred in precluding transcripts for Kevin. In Mundon the HSC stated that the defendant “was not required to show that he was prejudiced by proceeding to trial without the written transcripts.” 121 Hawaii at 358, 219 P.3d at 1145. Curiously, the HSC noted that this “appears to require automatic reversal when an indigent defendant is wrongfully denied the transcript of his or her prior proceeding.” It then noted that courts of other jurisdictions have held that the wrongful denial of an indigent defendant’s motion for a free transcript requires automatic reversal. See People v. Hosner, 538 P.2d 1141, 1148 (Cal. 1975) (en banc); Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004); Turner v. Malley, 613 F.2d 264, 266-67 (10th Cir. 1979); United States v. Pulido, 879 F.2d 1255, 1259 (5th Cir. 1989); United States v. Talbert, 706 F.2d 464, 471 (4th Cir. 1983).

Then again, when it comes to the co-defendant’s transcript, some courts have applied the harmless error standard. State v. Razinha, 599 P.2d 808, 811-12 (Ariz. Ct. App. 1979); United States v. Bamberger, 482 F.2d 166, 168-69 (9th Cir. 1973).

The HSC dodged this question and held that under either standard, the case will be remanded for a new trial—be it automatic reversal or harmless error. The HSC noted that denying the requested transcripts was not harmless beyond a reasonable doubt because the Scott brothers were codefendants with charges arising from the identical incident that involved the same witnesses. This was enough to contribute to Kevin’s conviction.

Justice Acoba’s Concurrence. Justice Acoba wrote separately clearly rejected the harmless error approach for co-defendants’ transcripts and would have adopted the automatic reversal standard that “appears” to be in effect for requests for the defendant’s own transcripts.


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