In a trial in a State Court in which they were represented by
court-appointed counsel, petitioners were convicted of robbery and
sentenced to imprisonment. Their motions for a new trial were
denied. Being indigents and acting
pro se, they filed
notices of appeal and motions for a free transcript of the record.
After a hearing before the trial judge, at which petitioners
represented themselves and also had the benefit of court-directed
argument by their trial counsel, the trial judge entered findings
of fact and conclusions of law respecting each error claimed by
petitioners. He then denied their request for a transcript on the
ground that their assignments of error were patently frivolous,
their guilt had been established by overwhelming evidence, and the
furnishing of a transcript would waste public funds. Solely on the
basis of a record of the hearing on this motion, the State Supreme
Court sustained the trial judge's ruling on the motion.
Held: The rules of the State of Washington governing
the provision of transcripts to indigent criminal defendants for
purposes of appeal were applied in this case so as to deprive
petitioners of rights guaranteed to them by the Fourteenth
Amendment. Pp.
372 U. S.
488-500.
(a) A State need not purchase a stenographer's transcript in
every case where a defendant cannot buy it. Alternative methods of
reporting trial proceedings are permissible if they place before
the appellate court an equivalent report of the events at trial
from which the appellant's contentions arise. Pp.
372 U. S.
495-496.
(b) In this case, the materials before the State Supreme Court
when it reviewed the trial judge's denial of a free transcript did
not constitute a record of sufficient completeness for adequate
consideration of the errors assigned by petitioners on their
appeal. Pp.
372 U. S.
496-497.
(c) By allowing the trial judge to prevent petitioners from
having stenographic support or its equivalent for presentation of
each of their separate contentions to the appellate tribunal, the
State denied them rights assured them under the Fourteenth
Amendment. Pp.
372 U. S.
497-499.
Page 372 U. S. 488
(d) The conclusion of the trial judge that an indigent's appeal
is frivolous is an inadequate substitute for the full appellate
review available to nonindigents in Washington when the effect of
that finding is to prevent an appellate examination based upon a
sufficiently complete record of the trial proceedings themselves.
Pp.
372 U. S.
499-500.
58 Wash. 2d
830,
365 P.2d
31, reversed and cause remanded.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
Certiorari was granted in this case, 370 U.S. 935, in order that
the Court might consider whether the State of Washington's rules
governing the provision of transcripts to indigent criminal
defendants for purposes of appeal were applied in this case so as
to deprive petitioners of rights guaranteed them by the Fourteenth
Amendment.
This Court has dealt recently with the constitutional rights of
indigents to free transcripts on appeal in
Griffin v.
Illinois, 351 U. S. 12, and
Eskridge v. Washington State Board of Prison Terms and
Paroles, 357 U. S. 214. The
principle of
Griffin is that "[d]estitute defendants must
be afforded as adequate appellate review as defendants who have
money enough to buy transcripts," 351 U.S. at
351 U. S. 19, a
holding restated in
Eskridge to be
"that a State denies a constitutional right guaranteed by the
Fourteenth Amendment if it allows all convicted defendants to have
appellate review except those who cannot afford to pay for the
records of their trials,"
357 U.S. at
357 U. S. 216.
In
Eskridge, the question was the validity of Washington's
longstanding procedure whereby an indigent defendant would receive
a stenographic transcript at
Page 372 U. S. 489
public expense only if, in the opinion of the trial judge,
"justice will thereby be promoted."
Id. at
357 U. S. 215.
This Court held per curiam that, given Washington's guarantee of
the right to appeal to the accused in all criminal prosecutions,
Wash.Const. Art. I, ยง 22 and Amend. 10,
"[t]he conclusion of the trial judge that there was no
reversible error in the trial cannot be an adequate substitute for
the right to full appellate review available to all defendants in
Washington who can afford the expense of a transcript,"
id. at
357 U. S. 216,
and remanded the cause for further proceedings not inconsistent
with the opinion. In response, in
Woods v.
Rhay, 54 Wash. 2d
36,
338 P.2d
332 (1959), a case which was remanded by this Court for
reconsideration in light of
Eskridge two weeks after that
case was decided,
357 U. S. 575, the
Supreme Court of Washington formulated a new set of rules to govern
trial judges in passing upon indigents' requests for free
stenographic transcripts:
"1. An indigent defendant in his motion for a free statement of
facts must set forth:"
"a. The fact of his indigency"
"b. The errors which he claims were committed, and, if it is
claimed that the evidence is insufficient to justify the verdict,
he shall specify with particularity in what respect he believes the
evidence is lacking. (The allegations of error need not be
expressed in any technical form, but must clearly indicate what is
intended)."
"2. If the state is of the opinion that the errors alleged can
properly be presented on appeal without a transcript of all the
testimony,"
"a. it may make a showing of what portion of the transcript will
be adequate, or"
"b. if it believes that a narrative statement will be adequate,
it must show that such a statement is or will be available to the
defendant. "
Page 372 U. S. 490
"3. The trial court in disposing of an indigent's motion for a
statement of facts at county expense shall enter findings of fact
upon the following matters:"
"a. The defendant's indigency"
"b. Which of the errors, if any, are frivolous and the reasons
why they are frivolous"
"c. Whether a narrative form of statement of facts will be
adequate to present the claimed errors for review and will be
available to the defendant, and, if not"
"d. What portion of the stenographic transcript will be
necessary to effectuate the indigent's appeal."
"4. The trial court's disposition of the motion shall be by
definitive order."
54 Wash. 2d at 44-45, 338 P.2d at 337.
It is the application of these rules which is asserted by
petitioners in the present case to be inconsistent with their
constitutional rights as declared in the
Griffin and
Eskridge cases. Petitioners, who are concededly indigent,
were each convicted of two counts of robbery by a jury and
sentenced to two consecutive 20-year terms after a three-day trial
ending on September 14, 1960, during which they were represented by
court-appointed counsel. Their motions for new trials were denied.
On October 20, acting
pro se, they filed timely notices of
appeal from the judgments of conviction, and then filed identical
motions requesting the trial judge to order preparation of a free
transcript of the record and statement of facts. [
Footnote 1] Drawn
Page 372 U. S. 491
inartistically, these requests asserted petitioners' indigency
and then set forth 12 allegations of error in the trial, relating
to admission of testimony and exhibits, perjured and
self-contradictory testimony, prejudice of the trial judge in the
conduct of the trial, failure to enforce the rule as to exclusion
of witnesses, and failure of the evidence to establish the elements
of the crime charged. Each concluded that, "[u]nless Defendant is
provided with a transcript and statement of facts at the county
expense, he will be unable to prosecute this appeal."
Petitioners' motions were heard on November 28 by the judge who
had presided at the jury trial. Petitioners were present at the
hearing, having been brought from the State Penitentiary where they
were and still are incarcerated. Although they no longer wished the
aid of counsel, the judge, in accordance with a statement in
Woods v. Rhay, [
Footnote
2] directed trial counsel to speak in petitioners' behalf.
Counsel attempted, as best he could from his recollection of a
trial which had occurred two and one-half months earlier, to
elaborate upon the specifications of error in petitioners' motions.
The objections to exhibits, he stated, related to a gun introduced
against petitioner Draper, and a jacket, claimed to have been found
with money in it, introduced as belonging to petitioner Lorentzen.
Counsel explained at length that he regarded the foundation laid
for introducing these items to have been extremely weak, and that
receipt of the evidence on such a slim foundation was prejudicial.
He suggested that petitioner Draper had been identified only by an
alleged accomplice, Jennings, whose testimony was also
contradictory and perjurious. Counsel also argued that
Page 372 U. S. 492
the prosecution had failed to prove both the existence of the
corporation which the indictment described as owning one of the
robbed motels, and the possessory right of its agent to the money
taken. "In my opinion," he said, "those two omissions are very
important, if not fatal, in this case." Further, counsel referred
to petitioners' contention that two witnesses were improperly
allowed to sit in the courtroom prior to testifying, and said that
he had no personal knowledge of the facts supporting the
contention, but that, since defendants had invoked the "exclusion
of witnesses" rule at trial, there was perhaps something to the
contention. Finally, counsel argued that petitioners' contention
that the evidence was insufficient to sustain the conviction was,
under
Woods v. Rhay and analogous decisions of this Court
governing the rights of federal prisoners, enough in itself to
entitle them to a transcript.
Since petitioners had not desired counsel's assistance,
petitioner Draper was allowed to argue when counsel finished. He
stated in a layman's way what he believed were the trial errors,
but, when interrogated by the trial judge for supporting details,
he asserted his inability to give any without a transcript.
The prosecutor opposed the motion both by affidavit and by
argument at the hearing. His affidavit summarized in several
paragraphs his contrary interpretation of the evidence, which,
according to him, plainly established the defendants' guilt. In his
argument, he undertook to refute each of petitioners' assignments
of error. He contended, therefore, that petitioners' motions for
free transcripts and statements of facts should be denied, because
"there is nothing here to support any substantial claim of error
whatsoever."
The trial judge, upon conclusion of the prosecutor's argument,
reviewed petitioners' assignments of error and indicated orally
that he would deny their motions. On
Page 372 U. S. 493
December 12, he entered an order, coupled with formal findings
of fact and conclusions of law, in which he concluded
"[t]hat the assignments of error as set out by each defendant
are patently frivolous; that the guilt of each defendant as to each
count of Robbery was established by overwhelming evidence, and
that, accordingly, the furnishing of a statement of facts would
result in a waste of public funds."
His findings summarized in six paragraphs the facts which he
thought had been proven at the three-day trial. This summary
constituted only the trial judge's conclusions about the operative
facts, without any description whatsoever of the evidence upon
which those conclusions were based. After stating these factual
conclusions, the judge specifically rejected each of petitioners'
12 assignments of error with a summary statement -- almost wholly
conclusory -- concerning each.
Petitioners sought review by certiorari of the trial court's
order in the Supreme Court of Washington. Department One of that
court quashed the writ, holding that the trial court had properly
applied the principles of
Woods v. Rhay and had correctly
found the appeal to be frivolous.
58 Wash. 2d
830,
365 P.2d
31. By the very nature of the procedure, the Supreme Court's
ruling was made without benefit of reference to any portion of a
stenographic transcript of the jury trial. Solely on the basis of
the stenographic record of the hearing on the motion, the Supreme
Court stated that "[i]t would serve no useful purpose to set forth
[the] evidence in detail," 58 Wash. 2d at 832, 365 P.2d at 33, and
instead purported to summarize the operative facts briefly, based
entirely and uncritically on the trial judge's conclusions as to
what had occurred. These conclusory statements, arrived at
Page 372 U. S. 494
without any examination of the underlying evidence, were then
(inevitably, given the nature of the trial judge's conclusions)
characterized as sufficient to show that all of the elements of the
crime of robbery were established by the evidence. [
Footnote 3] The court concluded by briefly
dealing with and rejecting petitioners' specific assignments of
error, just as the trial judge had done.
Petitioners contend that the present Washington procedure for
indigent appeals has not cured the constitutional defects
disapproved in
Eskridge. They argue that a standard which
conditions effective appeal on a trial judge's finding, even though
it be one of nonfrivolity instead of promotion of justice, denies
them adequate appellate review. Under the present standard, just as
under the disapproved one, they must convince the trial judge that
their contentions of error have merit before they can obtain the
free transcript necessary to prosecute their appeal. Failing to
convince the trial judge, they continue, they are denied adequate
appellate review because the Supreme Court then passes upon their
assignments of error without consideration of the record of the
trial proceedings, whereas defendants with money to buy a
transcript
Page 372 U. S. 495
are allowed a direct appeal to the Supreme Court, which affords
them full review of their contentions. The State argues that this
difference in procedure is justifiable because it safeguards
against frivolous appeals by indigents while guaranteeing them
appellate review in cases where such review is even of potential
utility. [
Footnote 4]
In considering whether petitioners here received an adequate
appellate review, we reaffirm the principle, declared by the Court
in
Griffin, that a State need not purchase a
stenographer's transcript in every case where a defendant cannot
buy it. 351 U.S. at
351 U. S. 20.
Alternative methods of reporting trial proceedings are permissible
if they place before the appellate court an equivalent report of
the events at trial from which the appellant's contentions arise. A
statement of facts agreed to by both sides, a full narrative
statement based perhaps on the trial judge's minutes taken during
trial or on the court reporter's untranscribed notes, or a
bystander's bill of exceptions might all be adequate substitutes,
equally as good as a transcript. Moreover, part or all of the
stenographic transcript in certain cases will not be germane to
consideration of the appeal, and a State will not be required to
expend its funds unnecessarily in such circumstances. If, for
instance, the points urged relate only to the validity of the
statute or the sufficiency of the indictment
Page 372 U. S. 496
upon which conviction was predicated, the transcript is
irrelevant, and need not be provided. If the assignments of error
go only to rulings on evidence or to its sufficiency, the
transcript provided might well be limited to the portions relevant
to such issues. Even as to this kind of issue, however, it is
unnecessary to afford a record of the proceedings pertaining to an
alleged failure of proof on a point which is irrelevant as a matter
of law to the elements of the crime for which the defendant has
been convicted. [
Footnote 5] In
the examples given, the fact that an appellant with funds may
choose to waste his money by unnecessarily including in the record
all of the transcript does not mean that the State must waste its
funds by providing what is unnecessary for adequate appellate
review. In all cases, the duty of the State is to provide the
indigent as adequate and effective an appellate review as that
given appellants with funds-the State must provide the indigent
defendant with means of presenting his contention to the appellate
court which are as good as those available to a nonindigent
defendant with similar contentions.
Petitioners' contentions in the present case were such that they
could not be adequately considered by the State Supreme Court on
the limited record before it. The arguments about improper
foundation for introduction of the gun and coat, for example, could
not be determined on their merits -- as they would have been on a
nonindigent's appeal -- without recourse, at a minimum, to the
portions of the record of the trial proceedings relating to this
point. [
Footnote 6] Again, the
asserted failure of proof with
Page 372 U. S. 497
respect to identification of the defendants and the allegations
of perjury and inconsistent testimony were similarly impossible to
pass upon without direct study of the relevant portions of the
trial record. Finally, the alleged failure of the evidence to
sustain the conviction could not be determined on the inadequate
information before the Washington Supreme Court.
The materials before the State Supreme Court in this case did
not constitute a "record of sufficient completeness,"
see
Coppedge v. United States, 369 U. S. 438,
369 U. S. 446,
and p.
372 U. S. 498
infra, for adequate consideration of the errors assigned.
No relevant portions of the stenographic transcript were before it.
The only available description of what occurred at the trial was
the summary findings of the trial court and the counter-affidavit
filed by the prosecutor. The former was not in any sense like a
full narrative statement based upon the detailed minutes of a judge
kept during trial. It was, so far as we know, premised upon
recollections as of a time nearly three months after trial and, far
from being a narrative or summary of the actual testimony at the
trial, was merely a set of conclusions. The prosecutor's affidavit
can by no stretch of the imagination be analogized to a bystander's
bill of exceptions. The fact recitals in it were in most summary
form, were prepared by an advocate seeking denial of a motion for
free transcript, and were contested by petitioners and their
counsel at the hearing on that motion.
By allowing the trial court to prevent petitioners from having
stenographic support or its equivalent for presentation of each of
their separate contentions to the
Page 372 U. S. 498
appellate tribunal, the State of Washington has denied them the
rights assured them by this Court's decisions in
Griffin
and
Eskridge. The rules set out in
Woods v. Rhay
contemplate a procedure which could have been followed here to
afford the petitioners what the Constitution requires. Thus, in
accordance with those rules, the State could have endeavored to
show that a narrative statement or only a portion of the transcript
would be adequate and available for appellate consideration of
petitioners' contentions. The trial judge would have complied with
both the constitutional mandate and the rules in limiting the grant
accordingly on the basis of such a showing by the State. What was
impermissible was the total denial to petitioners of any means of
getting adequate review on the merits in the State Supreme Court,
when no such clog on the process of getting contentions before the
State Supreme Court attends the appeals of defendants with
money.
The Washington rules as applied here come to this: an indigent
defendant wishing to appeal and needing a transcript to do so may
only obtain it if the judge who has presided at his trial and has
already overruled his motion for a new trial as well as his
objections to evidence and to conduct of the trial finds that these
contentions, upon which he has already ruled, are not frivolous.
The predictable finding of frivolity is subject to review without
any direct scrutiny of the relevant aspects of what actually
occurred at the trial, but rather with examination only of what the
parties argued at the hearing on the transcript motion and what the
judge recalled and thereafter summarily found as to what went on at
the trial.
This Court, in
Coppedge v. United States, 369 U.
S. 438,
369 U. S. 446,
dealt with similar vices in the federal courts by requiring that
when a defendant denied leave to appeal
in forma pauperis
by the District Court applies to
Page 372 U. S. 499
the Court of Appeals for leave to appeal, that court, when the
substance of the applicant's claims cannot be adequately
ascertained from the face of his application (as in the present
case), must provide a
"record of sufficient completeness to enable him to attempt to
make a showing that the District Court's certificate of lack of
'good faith' is in error and that leave to proceed . . .
in
forma pauperis should be allowed."
Here, similarly, the Washington Supreme Court could not deny
petitioners' request for review of the denial of the transcript
motion without first granting them a "record of sufficient
completeness" to permit proper consideration of their claims. Such
a grant would have ensured petitioners a right to review of their
convictions as adequate and effective as that which Washington
guarantees to nonindigents. Moreover, since nothing we say today
militates against a State's formulation and application of
operatively nondiscriminatory rules to both indigents and
nonindigents in order to guard against frivolous appeals, the
affording of a "record of sufficient completeness" to indigents
would ensure that, if the appeals of both indigents and
nonindigents are to be tested for frivolity, they will be tested on
the same basis by the reviewing court.
Compare Ellis v. United
States, 356 U. S. 674;
Coppedge v. United States, supra, 369 U.S. at
369 U. S.
447-448.
In
Eskridge, this Court held that
"[t]he conclusion of the trial judge that there was no
reversible error in the trial cannot be an adequate substitute for
the right to full appellate review available to all defendants in
Washington who can afford the expense of a transcript."
357 U.S. at
357 U. S. 216.
We hold today that the conclusion of the trial judge that an
indigent's appeal is frivolous is a similarly inadequate substitute
for the full appellate review available to nonindigents in
Washington, when the effect of that finding is to prevent an
appellate examination based upon
Page 372 U. S. 500
a sufficiently complete record of the trial proceedings
themselves.
The judgment of the Washington Supreme Court is reversed, and
the cause is remanded for further proceedings not inconsistent with
this opinion.
Reversed and remanded.
[
Footnote 1]
Washington practice refers to copies of the various documents
filed with the clerk of the trial court as the "transcript of the
record," Rule 44 of the Rules on Appeal, and to the court
reporter's transcription of trial proceedings as the "statement of
facts," Rule 35 of the Rules on Appeal. In accordance with common
usage, the latter will often be referred to herein as the
"transcript" and the "stenographic transcript."
[
Footnote 2]
"Where court-appointed counsel has represented the defendant at
the trial, his services should be made available to the defendant
for the purpose of presenting the motion."
54 Wash. 2d at 44, n. 3, 338 P.2d at 337, n. 2.
[
Footnote 3]
The State Supreme Court twice declared that the defendants had
not challenged the trial court's recollection of the evidence,
apparently implying that defendants had abandoned any claims
resting on insufficiency of or inconsistencies in the evidence.
However, the record, including the briefs filed in the State
Supreme Court, does not support this conclusion. Petitioners'
pro se brief in the State Supreme Court, such as it was,
was based on the broad proposition that, under
Griffin and
Eskridge, they were entitled to a transcript in order to
appeal, a pointless contention if, by so stating the argument, they
meant to waive the right to have the State Supreme Court consider
some or possibly all of the underlying allegations of error. Their
vigorous arguments at the hearing on the transcript motion were
meaningless if they were willing to accept the prosecution's
version of the facts. It should be noted, however, that the State
Supreme Court did, notwithstanding its comments, consider
petitioners' assignments of error.
[
Footnote 4]
The State also argues that, in practical effect, there is no
difference at all between the rights it affords indigents and
nonindigents, because a moneyed defendant, motivated by a "sense of
thrift," will choose not to appeal in exactly the same
circumstances that an indigent will be denied a transcript. We
reject this contention as untenable. It defies common sense to
think that a moneyed defendant faced with long-term imprisonment
and advised by counsel that he has substantial grounds for appeal,
as petitioners were here, will choose not to appeal merely to save
the cost of a transcript. The State's procedure for indigents,
therefore, cannot be justified as an attempt to equalize the
incidence of appeal as between indigents and nonindigents.
[
Footnote 5]
For example, the State Supreme Court here held that, under
Washington law, proof of the existence of the corporation robbed is
unnecessary to a conviction for robbery, thus obviating the need
for a record of the testimony relevant to this point.
[
Footnote 6]
The Washington courts stated that the asserted lack of
foundation went to the weight of the evidence, and not to its
admissibility. This conclusion, however, in contrast to the holding
that the existence of the robbed corporation was irrelevant as a
matter of law, necessarily depended upon an examination -- never
made -- of the appropriate portions of the record to test whether
the evidence claimed to establish the foundation was in fact
sufficient to meet the threshold standard of admissibility.
MR. JUSTICE WHITE, whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN
and MR. JUSTICE STEWART join, dissenting.
The Supreme Court of Washington in this case determined that the
issues raised by petitioners in that court were without merit and
frivolous. In my judgment, petitioners were afforded an adequate
appellate review upon a satisfactory record. Consequently, with all
due deference, I dissent.
I
The Court, as it should,
Griffin v. Illinois,
351 U. S. 12,
351 U. S. 20;
Eskridge v. Washington State Board of Prison Terms and
Paroles, 357 U. S. 214,
357 U. S. 216;
cf. Johnson v. United States, 352 U.
S. 565;
Coppedge v. United States, 369 U.
S. 438,
369 U. S. 446,
carefully avoids requiring the State to supply an indigent with a
stenographic transcript of proceedings in every case. It would
permit the State to furnish an adequate record substantially
equivalent to the transcript which could be purchased by an
appellant with resources, and would accept a narrative statement
based upon the judge's notes or a bystander's bill of exceptions.
By any of these standards articulated by the Court, however, I am
quite unable to fathom why and in what respects the record placed
before the Washington Supreme Court was not wholly satisfactory,
just as the Washington Supreme Court determined that it was.
Following petitioners' conviction and the denial of the motion
for a new trial, petitioners filed a motion before
Page 372 U. S. 501
the trial court setting forth their claimed errors and
requesting a transcript for purposes of appeal. The State, opposing
the request for a transcript, responded by presenting the evidence
at the trial in a narrative form by affidavit of the prosecuting
attorney. A hearing was held at which both the attorney who
represented the petitioners at the trial and the petitioners
themselves were free to challenge the accuracy of the State's
narrative of the facts or to supplement it in any way. The
statements and arguments of petitioners and their attorney at the
hearing were included in the material before the Supreme Court, and
added considerably to the State's summary, as did the court's oral
opinion and the colloquies between the court and petitioner Draper.
Finally, the court, as it was required to do, entered findings of
fact setting forth the evidence at the trial and ruling upon each
error claimed by petitioners. The findings, as well as the court's
statements during the conduct of the hearing, went substantially
beyond the summary presented by the State, and were expressly
intended by the trial judge to set forth the "substance of the
testimony," so that the matters relied upon by petitioners could be
presented to the Washington Supreme Court.
We thus have a situation where the court, in good faith,
utilizing its own knowledge and information about the trial and
with the help of the State, the defendants and their counsel, in
effect prepared and settled a narrative statement of the evidence
for the use of the appellate court in passing upon the merits of
the alleged errors. The record before the Washington Supreme Court
contained not only the findings made by the trial judge after a
hearing, but also everything said at the hearing by the defendants,
by their attorney and by the prosecutor. Furthermore, briefs were
filed in the Supreme Court of Washington and the court heard oral
argument by appointed counsel.
Page 372 U. S. 502
If the Court would accept a narrative statement based upon the
judge's notes, I am at a loss to understand why the above procedure
does not satisfy the Court's own requirements, particularly when,
throughout this entire proceeding, neither the petitioners nor
their attorney challenged the accuracy of any statement in the
summary prepared by the trial court, and when every opportunity was
given them to add to this record. While claiming generally that a
transcript was required, and in effect insisting that the jury
should not have believed the evidence, not once did the petitioners
or their attorney in the trial court or in this Court indicate in
what particulars the record made by the judge with the
participation of the parties was inaccurate or inadequate for the
purposes of appeal.
The Court also says that a bystander's bill of exceptions would
suffice. But a bystander's bill is nothing more than a bill of
exceptions prepared by the party appealing and certified by a
bystander where the judge refuses or is unable so to certify.
See, e.g., Cartwright v. Barnett, 192 Ark. 206, 90 S.W.2d
485;
McKee v. Elwell, 67 Colo. 149, 186 P. 714. And, as
said by a unanimous Court:
"Historically a bill of exceptions does not embody a verbatim
transcript of the evidence, but, on the contrary, a statement with
respect to the evidence adequate to present the contentions made in
the appellate court. Such a bill may be prepared from notes kept by
counsel, from the judge's notes, from the recollection of witnesses
as to what occurred at the trial, and, in short, from any and all
sources which will contribute to a veracious account of the trial
judge's action and the basis on which his ruling was invoked."
Miller v. United States, 317 U.
S. 192,
317 U. S.
198
Page 372 U. S. 503
Furthermore, in the
Miller case, the Court expressly
observed that
"[c]ounsel [for petitioners] could, therefore, have prepared and
presented to the trial judge,
as was his duty, a bill of
exceptions so prepared, and it would then have become the duty of
the trial judge to approve it, if accurate, or, if not, to assist
in making it accurately reflect the trial proceedings."
Id. at
317 U. S. 199
(emphasis supplied). The State of Washington here did not leave it
solely to the defendant or his counsel to prepare the appellate
record in the first instance. Upon motion by the defendants, the
court proceeded, giving every opportunity to the parties to
participate, to prepare a "statement with respect to the evidence
adequate to present the contentions made in the appellate court."
Id. at
317 U. S.
198.
Under any standard enunciated by this Court, then, the materials
before the Supreme Court afforded ample basis for passing upon
petitioners' claims. The conclusion of the Supreme Court of
Washington, likewise, was that the record before it was adequate
for review. Its judgment was that the appeal was frivolous, and
that no stenographic transcript was required to dispose of it. I
think the court was correct -- as an examination of the alleged
errors in the light of the record supplied will demonstrate.
II
The errors alleged by petitioners were as follows:
"(1) Testimony of witnesses contradict each other on the
identification of the defendants."
"(2) Identification of clothes and weapons in error, no
continuency of possession shown, nor ownership established, nor was
ownership of these articles by the Defendants proven."
"(3) Testimony of many witnesses in direct conflict with each
other and at times contradict each
Page 372 U. S. 504
other, as to what happened and how it happened and by whom it
was done."
"(4) That one witness perjured himself repeatedly, and that his
testimony was not stricken or thrown out."
"(5) That the presumption of innocence was never afforded the
Defendants."
"(6) That the trial Judge was prejudiced against the Defendants
throughout the entire trial."
"(7) That the trial Judge should have dismissed the case, as the
Defendants are not guilty as charged."
"(8) That exhibits were entered over objections that should not
have been allowed to be entered."
"(9) That testimony was allowed over objections that should not
have been allowed."
"(10) That Defendant was charged with robbing two specific
companies that in fact were never proven to have been robbed."
"(11) That the Defendant was forced to sit at the same table
with the two prosecutors and a policeman that was subpoenaed as a
witness."
"(12) That after an order excluding witnesses from the
courtroom, the two main witnesses sat in the courtroom prior to
testifying, which had a substantial bearing on their
testimony."
"(13) Unless Defendant is provided with a transcript and
statement of facts at the county expense, he will be unable to
prosecute this appeal."
The Court places special emphasis on points 1, 2, 3, 4 and 7 as
requiring considerably more than the Washington Supreme Court had
before it if a constitutionally adequate review was to be afforded
the petitioners.
However, point 1 merely asserts contradictions in the testimony
about the identification of the petitioners. Inconsistency in the
evidence is no stranger to criminal trials, and it is the task of
the jury to sort out the testimony
Page 372 U. S. 505
and determine the facts and the guilt or innocence of the
defendants. A conflict of testimony
"presents but a mere question of fact, upon which the verdict of
the jury is conclusive. It is enough to sustain the verdict that
there was positive, direct testimony to the existence of the facts
as found."
Corinne Mill, Canal & Stock Co. v. Toponce,
152 U. S. 405,
152 U. S. 408.
See generally Galloway v. United States, 319 U.
S. 372;
Gunning v. Cooley, 281 U. S.
90. Accordingly, if a complete transcript of the trial
had been placed before the Washington Supreme Court, the bare fact
of inconsistency between witnesses would be quite beside the point.
The governing question would be whether there was adequate evidence
to support the jury's conclusion that the petitioners had indeed
been identified and were guilty as charged. Here, the record
supplied shows that the accomplice Jennings identified the
petitioners, and this was even confirmed by his mother. Thus,
neither point 1 nor point 3 would raise any problem for an
appellate review of the finding of guilt by the jury.
Point 2 questions the admissibility of a gun and a jacket
because of insufficient identification. But, as petitioners' own
attorney pointed out, the gun was identified by the accomplice
Jennings, and petitioner Lorentzen's jacket was found in the
get-away car which belonged to Lorentzen, and was identified as
looking like the one which Lorentzen wore during the commission of
the crimes. The trial court ruled that the items had been
adequately identified and were admissible under Washington law, and
that the objections of the defendants, as to the positiveness of
the identification, went to the weight, rather than to the
admissibility, of the evidence. The Supreme Court of Washington
agreed. I doubt seriously the propriety and wisdom of questioning
the judgment of the Washington Supreme Court as to what evidence is
necessary to support the admissibility of an exhibit under
Washington law.
Page 372 U. S. 506
The Court apparently makes much of point 4, a general allegation
of perjury, as not being intelligently reviewable upon the record
made. This appears wholly untenable in the circumstances of this
case. Here, the trial was over, the evidence was concluded, and the
record closed. The jury had heard any attack the petitioners had to
offer upon the credibility of the State's witnesses, and had
weighed the evidence and convicted the petitioners. A motion for a
new trial had been denied. On the record made at the trial, it was
the jury's task to determine whether any witness was telling the
truth, and to accept or discard his testimony. The petitioners
raised no issue of perjury at the trial or in their motion for a
new trial. In these circumstances, it would take evidence outside
the normal reporter's transcript to prove perjury, evidence which
the trial court found they did not have,
see United States v.
Johnson, 327 U. S. 106, and
evidence which could not be presented for the first time on direct
appeal upon the record of a trial already made.
"[N]ew evidence which is 'merely cumulative or impeaching' is
not, according to the often-repeated statement of the courts, an
adequate basis for the grant of a new trial."
Mesarosh v. United States, 352 U. S.
1,
352 U. S. 9;
State v. Brooks, 89 Wash. 427, 154 P. 795. A reporter's
transcript might help petitioners prove that perjury had been
committed at their trial, but such proof would have to be made, if
at all, not on direct appeal, but in some other proceeding.
Point 4 also shares the difficulties inherent in points 3, 8 and
9, all of which are blanket allegations lacking any specificity. It
would seem that, in order to make these general assertions at all,
it was necessary for petitioners to have at least some specific
instances in mind, but neither the petitioners nor their attorney
in any way (except as point 2 illuminates point 8) brought to the
court's attention any particular instances of the kind generally
alleged in these points. These contentions placed nothing
before
Page 372 U. S. 507
the appellate court for review,
see, e.g., Seaboard Air Line
R. Co. v. Watson, 287 U. S. 86;
Erdmann v. Henderson, 50 Wash. 2d
296,
311 P.2d
423;
Nordlund v. Pearson, 91 Wash. 358, 157 P. 875,
and, if they are not to be disregarded, the net effect would be to
require a complete transcript in every case, contrary to the
Court's own standards and contrary to the rules of
Woods v.
Rhay, 54 Wash. 2d
36,
338 P.2d
332, which the Court in general approves.
As for point 7, which essentially challenges the sufficiency of
the evidence to support a conviction, the trial court found the
evidence overwhelming, and the Washington Supreme Court considered
the evidence in the record placed before it as wholly adequate. The
findings of the trial court are attached as an Appendix, p.
372 U. S. 509,
and it is incredible to me that the Court would hold this statement
of the evidence at the trial to be an insufficient record upon
which to affirm a jury's conclusion that the petitioners were
guilty of robbing two motels.
The Washington Supreme Court determined as a matter of law that
point 10 was without merit, since, to prove the crime in this case,
it was unnecessary to prove the existence of the corporation and
the ownership of the money.
See note 5 of the Court's opinion p. 496. Similarly, point
6 was untenable, since the only ground for the assertion of
prejudice was that the trial judge made rulings adverse to them at
the trial, and since the challenge for prejudice was neither within
the time nor in the form required by Washington law. As to point 5,
the trial court found that the jury was specifically instructed in
two different instructions as to the presumption of innocence and
the burden of proof, the jury also being further reminded by
counsel of the presumption of innocence in the selection of the
jury. The Supreme Court of Washington held that this was enough
under Washington law.
It is also readily apparent that the transcript demanded by
petitioners would be of no aid at all in disposing of
Page 372 U. S. 508
points 11 and 12, since a transcript would not show who was or
was not in the courtroom or what prejudice, if any, was suffered by
the defendants by being seated at the same table with the
prosecutor, which physical arrangement is normal in the trial court
which tried petitioners.
Finally, it was found by the trial court that points 1, 3, 4, 5,
6, 11 and 12 were never presented to the trial court at any stage
of the trial or judgment and sentence in any form or fashion and,
therefore, as the Supreme Court of Washington ruled, "even if these
assignments were meritorious, our rules would preclude a
consideration of them."
I think the record was adequate in this case. If it could have
been better, it should not pass without comment that it is normally
the lot of the appellant to take the initiative in preparing and
presenting a record for appeal. If petitioners' counsel could have
been a more help in preparing this record -- and this does not
appear to have been true here -- the petitioners themselves must
shoulder the blame, since they repeatedly stated that they did not
want the help of appointed counsel, giving no reason whatsoever
other than that they desired to represent themselves. Petitioners
were notified prior to the hearing on their motion for a transcript
that trial counsel was available. Their immediate response to the
judge was that they did not desire counsel's help, and that they
would represent themselves. Petitioner Draper repeated these
assertions at the hearing. While the court gave Draper every
opportunity to represent himself and the other petitioners in
connection with making this record, he also required petitioners'
trial counsel to be present to support the petitioners' position.
This, counsel did, and it appears that both at the hearing and upon
appeal, where he orally argued, he placed his resources and
abilities at the disposal of petitioners.
Page 372 U. S. 509
III
I am satisfied therefore that there has been no constitutional
infirmity in the review afforded these petitioners by the State of
Washington. The contrary ruling of the Court severely limits the
power of the States to avoid undue expense in dealing with criminal
appeals. It places their appellate process in an inflexible
procedural straitjacket. No greater harm could befall the
principles of the
Griffin and
Eskridge cases than
to require their indiscriminate application to situations where
they are inapposite. The principles of these cases will not be
served by an inquisitorial approach in this Court to their
administration by state courts. To me, the case before us amply
demonstrates that the Washington courts have been faithful to the
mandate of
Griffin and
Eskridge, and I would
affirm.
|
372
U.S. 487app|
APPENDIX TO OPINION OF MR. JUSTICE WHITE.
I
n the Superior Court of the State of Washington
in and for the County of Spokane
No. 16603
STATE OF WASHINGTON, PLAINTIFF
v.
RAYMOND L. LORENTZEN, ROBERT DRAPER AND
JAMES D. LONG, DEFENDANTS
Findings of fact and conclusions of law
December 12, 1960
The above entitled cause came regularly on for hearing on the
28th day of November, 1960, on the motion of each defendant
in
forma pauperis for a free transcript and
Page 372 U. S. 510
statement of facts, each defendant being personally present in
Court and Thomas F. Lynch appearing as Court-appointed counsel for
each defendant, and Frank H. Johnson, Deputy Prosecuting Attorney
appearing as counsel for the plaintiff, and the Court having
examined the files and affidavits and having heard and argument of
counsel and the individual argument of the defendant, Robert A.
Draper, the Court being fully advised in the premises, now, makes
findings of fact as follows:
FINDINGS OF FACT
I
That each defendant was jointly charged by information filed in
the Superior Court of Spokane County, with two counts of Robbery
and said defendants were jointly tried before jury in the above
entitled Court on September 12th, 13th and 14th, 1960.
II
That, on September 14, 1960, the jury rendered verdicts of
guilty as to each defendant on both counts of the information; that
each of said defendants were thereafter on September 30, 1960,
sentenced to serve not more than 20 years in the Washington State
Penitentiary on each count, said sentences to run
consecutively.
III
That the evidence established that the TravelLodge Motel is
owned and operated as a motel business in Spokane, Washington, by a
partnership consisting of H. E. Swanson, Dr. C. M. Anderson, and
the TraveLodge Corporation, Inc., a corporation, who do business as
a co-partnership under the name of the TravelLodge Motel; that, at
approximately 1:50 a.m., of July 5, 1960, Robert Deurbrouck was the
employee of the TraveLodge Motel
Page 372 U. S. 511
and the night clerk in charge of the property and business of
the TraveLodge Motel; that, at that time and place, the defendants,
Raymond Lorentzen and James D. Long, entered the TraveLodge Motel,
each armed with a loaded gun, and, at gunpoint, took from Robert
Deurbrouck the approximate sum of $500.00 in lawful money of the
United States which was the property of and belonged to the
TraveLodge Motel; that the defendant, James D. Long, then struck
Robert Deurbrouck on the back of the head with the gun held by the
said James D. Long, and inflicted upon the said Robert Deurbrouck,
a scalp wound which required four stitches to close.
IV
That the defendants, Raymond Lorentzen and James D. Long, then
ran to an automobile waiting outside the TraveLodge Motel in which,
by prearrangement, the defendant, Robert Draper, was driving said
automobile, which belonged to the defendant, Raymond Lorentzen, and
in which the accomplice Robert Jennings, also waited; that the
defendant Robert Draper, by prearrangement, then drove said
automobile to the Down Towner Motel, which is a corporation engaged
in the motel business; that the defendant James Long and the
accomplice Robert Jennings, then entered the DownTowner Motel, each
armed with a loaded gun, and the accomplice held up the night clerk
and employee of the DownTowner Motel, one Barry Roff, who was then
in charge of, the business and property of the DownTowner Motel,
and took by force and violence the approximate sum of $1,800.00 in
lawful money of the United States, the property of the DownTowner
Motel, Inc., a corporation; that the accomplice, Robert Jennings,
then struck the said Barry Roff over the back of the head with the
gun held and used by the said Robert Jennings; that the defendant,
James Long, and the said accomplice, Robert Jennings, thereupon ran
to
Page 372 U. S. 512
the waiting automobile, which the defendant Robert Draper was
driving and in which the defendant Raymond Lorentzen was
waiting.
V
That, as Raymond Lorentzen and Robert Jennings ran from the
DownTowner Motel to the aforementioned waiting automobile, they
were observed by police officer Donald Rafferty, who was on duty as
a police officer in the downtown area of Spokane at that time; that
officer Rafferty then followed said defendants for a few blocks
until he was advised by the police radio on his vehicle of the
above described robbery of the DownTowner Motel; that he thereupon
attempted to stop the vehicle in which the above three defendants
and the accomplice Robert Jennings were riding, but the defendant,
Robert Draper, accelerated his vehicle and attempted to flee; that
officer Rafferty then gave chase to this vehicle through downtown
streets of Spokane at speeds up to 60 miles per hour, and was
joined in this pursuit by another police car driven by officer
Robert Bailor; that, in the course of this pursuit, the defendants
fired an unknown number of shots at the pursuing police vehicles;
that, at the intersection of Third and Wall Streets in Spokane, the
vehicle occupied by the defendants was rammed from behind by the
police car driven by officer Bailor, which caused the defendants'
vehicle to go out of control and stop in a parking lot on the
northeast corner of Third and Wall Streets in Spokane.
VI
That the defendants, James Long and Raymond Lorentzen, were each
apprehended in this vehicle with the proceeds of the aforementioned
robberies including envelopes, receipts, and papers identified as
belonging to and
Page 372 U. S. 513
coming from the said motels recovered in said vehicle. The
defendant James D. Long immediately thereafter admitted his
participation in the above described robberies.
VII
That the defendant, Robert Draper, and the accomplice, Robert
Jennings, fled from said vehicle and returned to the Davenport
Hotel in Spokane, Washington, in which Robert Draper had rented a
room under the name "J. Radde;" that, at approximately noon of July
5, 1960, the defendant, Robert Draper, left the Davenport Hotel and
flew to Seattle on a Northwest Air Lines, commercial plane, where
he was apprehended several days later with the passenger's flight
coupon still in his possession; that said passenger's flight coupon
is in evidence as exhibit 26 and 26a, and that the Davenport Hotel
registration of the defendants, Raymond Lorentzen, James Long, and
Robert Draper, the latter using the name of "J. Radde," is in
evidence as exhibits 23, 24 and 25.
VIII
That the accomplice, Robert Jennings, entered a plea of guilty
to the aforementioned two counts of Robbery in the Superior Court
of Spokane County, on July 19, 1960, and was sentenced by the
Honorable Louis F. Bunge, Judge of the above entitled Court, to not
more than 20 years confinement in the Washington State Penitentiary
on each count, said sentence to run consecutively; that the said
Robert Jennings testified as a witness for the State at the trial
of the three co-defendants, and testified that the three defendants
had driven to Robert Jennings' home near Addy, Washington,
approximately 60 miles north of Spokane, in the later afternoon of
July 4, 1960, and that the defendants persuaded him to return to
Spokane with said defendants; that said testimony was
Page 372 U. S. 514
confirmed by testimony of Mrs. Gladys Allen, the mother of the
said Robert Jennings; that said Robert Jennings further testified
that the robberies of the TravelLodge Motel and the DownTowner
Motel were jointly planned by the three defendants and himself in
the Davenport Hotel room occupied by the defendant, Robert Draper,
approximately several hours before the robberies; that the four men
then traveled the route later taken in the actual robberies for the
purpose of planning and timing said robberies.
IX
That when the State rested its case in chief, the defendants
rested their case without taking the witness stand or offering any
evidence.
X
That the motions of each defendant for free transcript and
statement of fact are identical in substance and the Court finds
each assignment of error by each defendant without merit as
follows:
"A. That, as to assignments of error one and three, no showing
whatever has been made of any conflict or contradiction in the
testimony of any witness and the Court finds that no such material
conflict or contradiction was present in the trial."
"B. As to assignments of error two and eight, relating to
identification and admission of exhibits, each exhibit was properly
identified at the trial and was material and relevant to the issues
and that the objection to exhibit two, the gun identified by the
accomplice Robert Jennings, as one used in the holdup, as well as
the objections to remaining exhibits offered, goes to the weight
the jury should place upon the exhibits rather than their
admissibility."
"C. As to assignment of error number four, no showing of any
perjury has been made beyond the bare assertion
Page 372 U. S. 515
by the defendants of perjury, and the Court finds there is no
basis in fact that has been presented to establish such claim."
"D. As to assignment of error five, the Court finds that the
jury was specifically instructed in instructions number two and
four, as to the presumption of innocence and the burden of proof,
and the jury was further reminded by counsel in the selection of
the jury of said matters."
"E. As to assignment of error number six, no showing whatever
has been made of any prejudice against the defendants, and no such
prejudice existed."
"F. As to assignment of error number seven, the Court finds the
evidence offered by the State against these defendants overwhelming
as to their guilt of the crimes charged."
"G. As to assignment of error number nine, no showing has been
made by these defendants as to any testimony that was improperly
admitted, and the Court finds that no such testimony was
admitted."
"H. As to assignment of error number ten, the Court finds that
the uncontradicted evidence of the State has established the legal
nature of each motel business and the ownership of the property
that was taken in the robberies, by the employees of said business,
and one of the owners, and co-partners of the TraveLodge Motel, Mr.
H. E. Swanson."
"I. As to assignment of error number eleven, that all counsel
and defendants at this trial participated therein from one counsel
table adequate to provide all parties with necessary working room,
and that no conceivable prejudices resulted to these defendants
from such fact, and that no demonstration by any participant in the
trial was evident to the Court or ever brought to the attention of
the Court during any time of the trial."
"J. As to assignment of error number twelve, the Court finds
that its attention was never called to the presence
Page 372 U. S. 516
of any witnesses in the courtroom after the rule of exclusion
had been invoked, and to the Court's knowledge, no such witnesses
were present in Court except when they testified and that, if such
presence were established, no showing of prejudice to the
defendants has been made."
XI
The Court further finds that assignments of error, one, three,
four, five, six, eleven and twelve were never presented to the
Court at any stage of the trial or judgment and sentence in any
form or fashion.
From the foregoing Findings of Fact, the Court makes the
following
CONCLUSIONS OF LAW
I
That the claims of error of each defendant are frivolous,
groundless and without any basis in fact or law.
II
That the defendants do not allege or substantiate any factual
basis for their assignments of error beyond the bare assertion of
such claims.
III
That the assignments of error as set out by each defendant are
patently frivolous; that the guilt of each defendant as to each
count of Robbery was established by overwhelming evidence, and that
accordingly the furnishing of a statement of facts would result in
a waste of public funds.
Done in open court this 12th day of December, 1960.
HUGH H. EVANS,
Judge