A motion for a continuance is addressed to the sound discretion of
the trial court, and the trial court’s ruling will not be disturbed
absent an abuse of discretion. People v. Hampton, 758 P.2d 1344,
1353 (Colo. 1988); see People v. Bakari, 780 P.2d 1089, 1092 (Colo.
1989). A trial court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair. People v. Ellis, 148
P.3d 205, 211 (Colo. App. 2006). “‘To say that a court has
discretion in resolving [an] issue means that it has the power to
choose between two or more courses of action and is therefore not
bound in all cases to select one over the other.’” People v. Crow, 789
P.2d 1104, 1106 (Colo. 1990)(quoting People v. Milton, 732 P.2d
1199, 1207 (Colo. 1987)). “There are no mechanical tests for
determining whether the denial of a continuance constitutes an
abuse of discretion. ‘The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.’”
Hampton, 758 P.2d at 1353-54 (quoting Ungar v. Sarafite, 376 U.S.
575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964)). In addition to
an abuse of discretion, a defendant must also demonstrate actual
prejudice arising from denial of the continuance. People v. Denton,
757 P.2d 637, 638 (Colo. App. 1988).
In United States v. Fountain, 642 F.2d 1083, 1087 (7th Cir.), cert.
denied, 451 U.S. 993, 101 S.Ct. 2335, 68 L.Ed.2d 854 (1981), the
court noted that "advance planning is in the best interest of the
parties and of the judicial system.... Trial by ambush may produce
good anecdotes for lawyers to exchange at bar conventions, but
tends to be counterproductive in terms of judicial economy."
(Citations omitted.)
The Fourteenth Amendment imposes upon the state the obligation
to provide an indigent defendant with those basic instruments and
services essential to his or her right to adequately defend against a
criminal charge. See Britt v. North Carolina, 404 U.S. 226, 92 S.Ct.
431, 30 L.Ed.2d 400 (1971) (plurality opinion) (state must provide
indigent defendant with a free transcript of former trial that ended
in mistrial when defendant makes claim of need for transcript for
second trial and no adequate substitute will meet defendant's trial
preparation needs); Gardner v. California, 393 U.S. 367, 89 S.Ct.
580, 21 L.Ed.2d 601 (1967) (indigent prisoner entitled to free
transcript of evidentiary hearing at habeas corpus proceeding in
order to present new petition before higher state court when there
was no adequate substitute for the transcript); Roberts, 389 U.S.
40, 88 S.Ct. 194 (indigent defendant entitled to free transcript of
preliminary hearing for use at trial); Long v. Dist. Court of Iowa, 385
U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (per curiam)
(indigent defendant must be furnished free transcript of state
habeas corpus proceeding for use on appeal).
Eskridge v. Washington Prison Bd., 357 U.S. 214, 78 S.Ct. 1061, 2
L.Ed.2d 1269 (1958) (provision of trial transcript may not be
conditioned on approval of judge); Draper v. Washington, 372 U.S.
487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (same); Lane v. Brown, 372
U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (public defender's
approval may not be required to obtain coram nobis
transcript); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16
L.Ed.2d 577 (1966) (unconstitutional to require reimbursement for
cost of trial transcript only from unsuccessful imprisoned
defendants); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct.
362, 17 L.Ed.2d 290 (1966) (State must provide transcript of postconviction proceeding);Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct.
194, 19 L.Ed.2d 41 (1967) (State must provide preliminary hearing
transcript); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21
L.Ed.2d 601 (1969) (State must provide habeas corpus
transcript); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct.
1818, 23 L.Ed.2d 440 (1969) (State must provide transcript of
petty-offense trial); Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410,
30 L.Ed.2d 372 (1971) (State must provide transcript of nonfelony
trial).
The only cases that have rejected indigent defendants' claims to
transcripts have done so either because an adequate alternative
was available but not used, Britt v. North Carolina, 404 U.S. 226,
92 S.Ct. 431, 30 L.Ed.2d 400 (1971), or because the request was
plainly frivolous and a prior opportunity to obtain a transcript was
waived, United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086,
48 L.Ed.2d 666 (1976).
IN THE CONTEXT OF PRETRIAL MOTIONS TO SUPPRESS
TRANSCRIPTS PRIOR TO TRIAL
Pretrial hearings to suppress evidence are scheduled prior to the
jury trial date in order to allow for a transcript to be prepared for
use in the jury trial. This is a normal and customary procedure that
has been allowed in virtually every courtroom, and is critical for
effective impeachment purposes.
Colorado Courts, and the
Colorado Rules of Criminal Procedure, both indicate that motions
should be heard before trial to allow both the defense and the
prosecution an opportunity to understand the evidence that will be
utilized in the trial. CRCP 41(e), (g); People v. Hastings, 983 P.2d 78,
83 (Colo. App. 1998); People v. Tyler, 874 P.2d 1037, 1039 (Colo.
1994).
People v. Barela, 826 P.2d 1249, 1252-54 (Colo. 1992).
Before considering whether the defendant's constitutional
rights were violated by the county court's dismissal of the unsworn
jury and the rescheduling of the trial, we address the propriety of
the county court's practice of setting suppression motions for
hearing after a jury has been impaneled but has not yet been
sworn. We conclude that this practice, when adopted and followed
as a routine scheduling device, undermines the general procedural
scheme contemplated by the Colorado Rules of Criminal Procedure
for resolving suppression motions and interlocutory appeals from
suppression rulings.
Crim.P. 41(e) provides that a motion to suppress evidence
based on an alleged unconstitutional search and seizure "shall be
made and heard before trial unless opportunity therefor did not
exist or the defendant was not aware of the grounds for the motion,
but the court, in its discretion, may entertain the motion at the
trial." Crim.P. 41(g) contains a similar requirement with respect to a
motion to suppress an alleged involuntary confession or admission
made by the defendant. We have emphasized on more than one
occasion the importance of filing and resolving suppression motions
in advance of trial. E.g., People v. Voss, 191 Colo. 338, 340-41, 552
P.2d 1012, 1014 (1976); Morgan v. People, 166 Colo. 451, 45354, 444 P.2d 386, 387 (1968).
The general requirement that suppression motions be made
and heard prior to trial serves several purposes. The expeditious
resolution of such motions in advance of jury selection provides
both the prosecution and the defense an opportunity to resolve the
constitutional admissibility of prosecutorial evidence that often will
have a direct effect on trial strategy. In addition, pretrial
suppression rulings permit the prosecution and the defense to give
adequate consideration to the feasibility of pursuing a plea
agreement prior to trial. The seasonable disposition of a case by
plea agreement results in more effective use of court time and cuts
down on the inconvenience and expense occasioned by last-minute
dispositions after a jury panel has been assembled and witnesses
have been subpoenaed. Finally, the timely pretrial resolution of
suppression motions allows the prosecution a meaningful
opportunity to assess the correctness of the suppression ruling and
to file an interlocutory appeal from the ruling prior to the
attachment of jeopardy.
In a trial to a jury, jeopardy attaches when the jury is
impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 37-38, 98 S.Ct.
2156, 2161-62, 57 L.Ed.2d 24 (1978); Jeffrey v. District Court, 626
P.2d 631, 636 (Colo.1981). In a trial to the court, jeopardy attaches
when the first witness is sworn. Serfass v. United States, 420 U.S.
377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975); Jeffrey, 626
P.2d at 636. Because the United States and Colorado Constitutions
prohibit placing an accused twice in jeopardy for the same offense,
U.S. Const.Amend. V; Colo. Const. art. II, § 18, it necessarily
follows that the prosecution's "only meaningful avenue of appeal"
from a suppression ruling must occur prior to the attachment of
jeopardy. People v. Traubert, 199 Colo. 322, 330, 608 P.2d 342, 348
(1980). Crim.P. 41.2 is designed to provide the prosecution a
"meaningful avenue of appeal" from a county court's suppression
ruling by authorizing the prosecution to file a notice of appeal with
the clerk of the county court and with the clerk of the district court
"within five days after the adverse ruling in the county court."
Crim.P. 41.2(b). [4]
While the issue before us is whether the county court's
practice of routinely hearing suppression motions after a jury is
impaneled but not yet sworn for trial created the potential for abuse
of the interlocutory appeal process, we are convinced from a review
of the record that there was no prosecutorial abuse of the
interlocutory appeal process in this case. The prosecution, as the
district court determined, did no more than assert its right to take
an interlocutory appeal from the county court's suppression ruling
within the time frame established by Crim.P. 41.2. The dismissal of
the unsworn jury and the rescheduling of the trial was not the
product of prosecutorial bad faith but, rather, was the direct result
of the county court's scheduling practice. The practice at issue was
developed by the county court, and, even though instituted for the
convenience of prosecution witnesses, it was utilized as a routine
scheduling device for setting the county court's docket--a matter for
which the county court, and not the prosecution, is ultimately
responsible.
To say that there was no prosecutorial abuse of the
interlocutory appeal process in this case is not to imply that the
county court's scheduling practice is without the potential for
serious damage to the parties. On the contrary, we are of the view
that the scheduling practice at issue here creates the potential for
unnecessary postponements and delays that are inimical to the
orderly procedural scheme contemplated by Crim.P. 41.2 for
resolving suppression motions. When, for example, a trial court
grants a suppression motion after jury selection but prior to
swearing the jury, it places the prosecution in the awkward position
of proceeding to trial with a much weaker case, requesting a
continuance in order to file an interlocutory appeal, or attempting
to settle the case by a weak plea-offer that might not otherwise be
in the interest of justice. On the other hand, when a court denies a
suppression motion after a jury has been impaneled but has not yet
been sworn to try the case, it might well place the defendant in the
position of either requesting a continuance in order to re-evaluate
the case or hastily accepting a last minute plea offer which, had the
suppression motion been resolved earlier, would have been more
thoroughly considered. We accordingly disapprove the county
court's practice of routinely scheduling suppression motions
subsequent to jury selection but prior to the swearing of the jury for
trial.
While we disapprove of the practice employed by the county
court, we point out that there may be exceptional circumstances
that justify a trial court's scheduling of a suppression motion
immediately prior to the attachment of jeopardy or even during the
trial itself. The text of Crim.P. 41(e), which states that "the court, in
its discretion, may entertain the motion at trial," contemplates that
there may be special circumstances which warrant the departure
from the general requirement of Crim.P. 41(e) that "[t]he motion
shall be made and heard before trial unless opportunity therefor did
not exist or the defendant was not aware of the grounds for the
motion." These exceptional circumstances, for example, might
include an extremely burdensome docket preclusive of a more
timely hearing and resolution of the motion, the justifiable
unavailability of witnesses or counsel for an earlier hearing date,
the unavoidable continuance of a previously scheduled motion to
the trial date, or other unforeseen circumstances.
IN THE CONTEXT OF PRELIMINARY HEARING TRANSCRIPTS
PRIOR TO TRIAL
Gonzales v. District Court In and For Weld County, 198 Colo.
505, 602 P.2d 857, 858-59 (Colo. 1979) (footnotes omitted)
A preliminary hearing transcript can be of great value to a
defendant at trial. It is a "vital impeachment tool for use in crossexamination of the State's witnesses" and for trial preparation in
general. [198 Colo. 507] Coleman v. Alabama, 399 U.S. 1, 9, 90
S.Ct. 1999, 2003, 26 L.Ed.2d 387, 397 (1969). See also Conley v.
Dauer, 321 F.Supp. 723 (W.D.Pa.1970), remanded, 463 F.2d 63 (3d
Cir.), Cert. denied, 409 U.S. 1049, 93 S.Ct. 521, 34 L.Ed.2d 501
(1972); Brooks v. Edwards, 396 F.Supp.
662 (W.D.N.C.1974); United States v. Acosta, 495 F.2d 60(10th Cir.
1974). As a practical matter, the transcript must be available to
defense counsel prior to the trial if it is to be useful as an
impeachment and trial preparation tool. Conley, supra ; United
States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir. 1969). The
defendant's lawyer should not be forced to rely on his memory of
the preliminary hearing, or notes prepared at the hearing, to
establish inconsistencies between testimony at the hearing and at
trial. United States ex rel. Wilson, supra ; Gardner v. California, 393
U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1968); Hardy v. United
States, 375 U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331, 339
(1964) (Goldberg, J., concurring). Providing the preliminary hearing
transcript for the first time at trial is thus not an adequate
alternative to providing the transcript before the trial. Acosta, supra
; Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400
(1971).
In the case before us, the respondent did not consider the value of
the preliminary hearing transcript to the petitioner as a tool for trial
preparation and impeachment of testimony at trial. The court also
erred in determining that providing a transcript of the hearing at
trial, should testimonial inconsistencies surface at that time, would
be an adequate alternative to providing the transcript before the
trial. These errors constituted an abuse of the court's discretion.
The state must provide a transcript of a preliminary hearing at the
request of an indigent defendant in a criminal case when the
transcript is necessary for an effective defense. Britt, supra
; Roberts v. LaVallee, Warden, 389 U.S. 40, 88 S.Ct. 194, 19
L.Ed.2d 41 (1967).
Recognizing the possible abuses that could result from our
decision, our holding is limited to cases in which the defendant,
because of his plea of not guilty, will actually proceed to trial and in
which there is a reasonable assurance that testimony presented by
prosecution witnesses at the preliminary hearing will also be
presented at trial.
People v. Nord, 790 P.2d 311, 316 (Colo. 1990)
The value of a preliminary hearing transcript to the defense of a
criminal case is self-evident. After remarking in Gonzales v. Dist.
Court,198 Colo. 505, 602 P.2d 857 (1979), that the transcript not
only enhances the defendant's ability to prepare an adequate
defense but also may serve as a "vital impeachment tool for use in
cross-examination of the State's witnesses," we went on to
emphasize the importance of making the transcript available
sufficiently in advance of the trial itself:
As a practical matter, the transcript must be available to defense
counsel prior to trial if it is to be useful as an impeachment and
trial preparation tool.... The defendant's lawyer should not be forced
to rely on his memory of the preliminary hearing, or notes prepared
at the hearing, to establish inconsistencies between testimony at
the hearing and at trial.... Providing the preliminary hearing
transcript for the first time at trial is thus not an adequate
alternative to providing the transcript before the trial.
198 Colo. at 507, 602 P.2d at 858. (Citations omitted). The
same observations apply even more cogently to a pro se defendant.
A trial court, therefore, should not require a defendant to make a
showing of a particularized need for the transcript. Britt, 404 U.S.
at 228, 92 S.Ct. at 434. [6] Unless the record irrefutably shows the
contrary, the need for a preliminary hearing transcript, or some
adequate alternative, is to be presumed.
…
At 318-19
Although some constitutional rights are so basic to a
fair trial that their violation can never be considered harmless,
e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963) (denial of counsel to indigent defendant charged with
felony); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d
975 (1958) (admission of coerced confession in criminal
trial); Tumey v. Ohio, 273 U.S. 510,47 S.Ct. 437, 71 L.Ed.
749 (1927) (trial before judge having financial interest in result), the
unconstitutional denial of an indigent defendant's request for a
preliminary hearing transcript is not one of them. See, e.g., United
States v. Rosales-Lopez, 617 F.2d 1349 (9th Cir.1980) (failure of
trial court to provide indigent defendant with transcript of
suppression hearing, although an error of constitutional dimension,
was harmless where there were only two minor discrepancies
between testimony at suppression hearing and trial
testimony); United States ex rel. Moore v. Illinois, 577 F.2d 411 (7th
Cir.1978) (although trial court erred in failing to provide indigent
defendant with transcript of preliminary hearing at which an
allegedly suggestive confrontation took place between defendant
and rape victim, error was harmless), cert. denied, 440 U.S. 919, 99
S.Ct. 1242, 59 L.Ed.2d 471 (1979); see also United States ex rel.
Cadogan v. LaVallee, 428 F.2d 165 (2nd Cir.1970) (failure to provide
indigent defendant with transcript of suppression hearing not
prejudicial where alleged discrepancies between suppression
testimony and trial testimony were trivial and transcript would not
have provided defendant with any significant assistance in defense
of charge), cert. denied, 401 U.S. 914, 91 S.Ct. 887, 27 L.Ed.2d 813
(1971). A reviewing court, however, cannot characterize a
constitutional error as harmless unless it is satisfied after a careful
scrutiny of the entire record that the error was harmless beyond a
reasonable doubt. E.g., Satterwhite v. Texas, 486 U.S. 249, 108
S.Ct. 1792, 100 L.Ed.2d 284 (1988); Harrington v. California, 395
U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1966); LeMasters v. People, 678 P.2d 538(Colo.1984); People v.
Myrick, 638 P.2d 34 (Colo.1981). If there is a reasonable possibility
that the constitutional error might have contributed to the
conviction, the error cannot be viewed as harmless. E.g.,
Chapman, 386 U.S. 18, 87 S.Ct. 824. If, on the other hand, a review
of the entire record discloses no such reasonable possibility, then
the error properly may be deemed harmless beyond a reasonable
doubt. E.g., Harrington, 395 U.S. 250, 89 S.Ct. 1726;
LeMasters, 678 P.2d 538.
Our review of the record, including the transcript of the
preliminary hearing, satisfies us that the constitutional error in this
case was harmless beyond a reasonable doubt
FOOTNOTE 6 The defendants concede in their brief that when the
request for a free transcript of former testimony is made as a
delaying tactic, the request may properly be denied. E.g.,United
States v. Smith, 605 F.2d 839 (5th Cir.1979).
Harris v. District Court of City and County of Denver, 843 P.2d
1316, 1319-20 (Colo. 1993)
In addition to providing judicially enforced safeguards to prevent
unlawful detentions and unwarranted trials, a preliminary hearing
provides a defendant several benefits which may be helpful at trial.
In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387
(1970), the Supreme Court recognized that the preliminary hearing
provided by an Alabama statute afforded a defendant with
opportunities to acquire a vital impeachment tool for subsequent
use in cross-examining prosecution witnesses at trial, to preserve
favorable testimony of witnesses who do not appear at the
subsequent trial, and to discover the prosecution's case and thus to
make possible the preparation of a proper defense. Id. at 9, 90 S.Ct.
at 2003. These benefits are useless, however, in the absence of an
accurate and complete transcript of essential portions of a
preliminary hearing.
We have previously emphasized the trial preparation benefits
arising from preliminary hearings. In Gonzales v. District Court, 198
Colo. 505, 602 P.2d 857 (1979), we held that the state must provide
a transcript of a preliminary hearing at the request of an indigent
defendant in a case where the transcript is necessary for an
effective defense. In Gonzales, the defendant, who was indigent and
was charged with first degree murder, filed a motion requesting a
transcript of the preliminary hearing at no cost. The district court
granted the motion in part but denied the motion with respect to
the testimony of three witnesses who had testified at the
preliminary hearing. In an original proceeding we concluded that
the district court abused its discretion in denying the defendant's
request for a complete transcript of the preliminary hearing.
Gonzales, 198 Colo. at 507, 602 P.2d at 858.
In reaching that conclusion, we observed that a preliminary
hearing transcript can be of great value to a defendant at trial for
impeachment and other general trial preparation purposes. Id. at
506, 602 P.2d at 858. We also observed that a defense attorney
should not at trial be forced to rely on the attorney's "memory of the
preliminary hearing, or notes prepared at the hearing, to establish
inconsistencies between testimony at the hearing and at trial." Id.
at 507, 602 P.2d at 858. We limited our holding to cases in which
the defendant would proceed to trial and in which there was a
reasonable assurance that the prosecution witnesses who testified
at the preliminary hearing would testify at trial. Id., 602 P.2d at
858-59.
In People v. Nord, 790 P.2d 311 (Colo.1990), we again
emphasized the importance of a transcript of a preliminary hearing
for trial preparation purposes. We held in an appeal of a Colorado
Court of Appeals judgment that in the circumstances of that case
the district court's order denying the defendant's request for a free
transcript of the preliminary hearing constituted harmless error. Id.
at 319. In so doing, we compared the testimony presented at the
preliminary hearing to the testimony presented at trial. Id. at 31819. We also noted that unless the record irrefutably demonstrates
to the contrary, the need for a preliminary hearing transcript or
some adequate alternative is to be presumed. Id. at 316.
Gonzales and Nord emphasized the significance of the
availability of a transcript of preliminary hearing proceedings for
purposes of preparing for trial. Such hearings may not be converted
into discovery proceedings simply because they assume importance
for trial preparation purposes. However, because defendants in
criminal cases are not able to take discovery depositions of
prosecution witnesses, [3]and prosecution witnesses need not
discuss their testimony in advance with defense counsel, the
preliminary hearing takes on added significance in the total
spectrum of criminal adjudication.
Gonzales and Nord were decided in the context of cases
wherein preliminary hearing transcripts were available. The
unavailability of such a transcript due to technical transcription
difficulties prevents a defendant from relying on the trial
preparation benefits we recognized in those decisions. While
additional expense and time will be consumed whenever a second
preliminary hearing is required for any reason, the occasions on
which such second hearings should be required as the result of
technical transcription difficulties will no doubt be relatively few in
number.
In this case, the defendant asserts that the testimony
presented at the preliminary hearing is directly relevant and of
significance to his trial preparation, both for purposes of
establishing his defense of self-defense and for purposes of
impeaching or refuting the testimony of two eyewitnesses to the
events that resulted in the victim's death. There is no suggestion in
the record that the People will not rely at trial on testimony by those
eyewitnesses or that the defendant will not proceed to trial.
Furthermore, the record does not indicate that there is some
alternative mode of reconstructing that testimony from the notes of
the participating attorneys or the county court judge. See Medina v.
District Court, 189 Colo. 516, 517, 543 P.2d 62, 63 (1975). In view of
the totality of the circumstances here presented, we conclude that
the district court's denial of the petitioner's motion for a second
preliminary hearing constitutes an abuse of discretion.
IN THE CONTEXT OF FIRST TRIAL TRANSCRIPTS BEFORE RETRIAL
People v. Wells, 754 P.2d 420 (Colo.App. 1987)
A transcript of a prior mistrial is not only a useful impeachment
tool, but it is also a valuable aid in preparation for trial. See Britt v.
North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).
However, in order to be a useful tool, the transcript must be
available to defense counsel prior to trial. See Gonzales v. District
Court, 198 Colo. 505, 602 P.2d 857 (1979). Counsel should not be
forced to rely upon his memory of the prior mistrial or notes
prepared during the proceeding. See Gonzales v. District Court,
supra. Thus, the importance of a transcript is without question.
See People v. St. John, 668 P.2d 988 (Colo.App.1983).
Here, the trial court's failure to grant the continuance denied
defendant the opportunity to prepare properly for trial. Identity was
the sole issue at trial, and the People's case relied heavily upon the
victim's identification testimony. Her recall of the encounter and her
testimony regarding the People's evidence provided the basis of the
prosecution. Therefore, under these circumstances, a transcript of
the prior mistrial would have been a valuable preparation tool for
the defendant. See Gonzales v. District Court, supra.
The only reason for denying the continuance was the resulting
delay necessary to prepare a transcript. But any delay was
outweighed by the defendant's need for the transcript. See Britt v.
North Carolina, supra; People v. St. John, supra.
People v. Wells, 776 P.2d 386 (Colo. 1989) reversed, not
because the logic was wrong but because the Supreme Court
felt the record was inadequate to support the conclusion.
At p. 389
The record on appeal contains neither the defendant's motion nor
any transcript of any trial proceedings directed to consideration of
the motion. The record contains no other evidence to support a
conclusion that delay caused by the time necessary to prepare a
transcript was the sole reason for the trial court's denial of the
defendant's motion. The only reference in the record to the motion
for continuance and for a transcript, other than a reference in the
defendant's motion for judgment of acquittal or new trial filed July
18, 1985, after the conclusion of the second trial, is the trial court's
minute order of July 5, 1985, which states, "DEF MOTN FOR
TRANSCRIPT/AND CONT--DENIED."
In this state of the record, an appellate court can only
speculate as to the reasons for the trial court's decision.
People v. St. John, 668 P.2d 988, 988-89 (Colo.App. 1983)
Defendant principally contends the trial court erred when it refused
to grant him a transcript of the trial testimony given by witness
Magnall, a key prosecution witness during the first trial. The
testimony of Magnall established many of the basic facts which led
to the conviction of defendant, and tended to negate defendant's
alibi defense.
Defendant alleges that record would reveal five different
instances in which this witness changed her story regarding these
vital incidents as compared with her testimony during the second
trial. With the transcript of the first trial, therefore, defendant could
have impeached this witness at the second trial and the verdict of
the jury might have been different.
In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30
L.Ed.2d 400 (1971) the Supreme Court stated:
"[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."
The court further held that a state should provide indigent
persons with the basic tools of an adequate defense when they are
readily available.
Here, the transcript could have been provided to defendant for
a minimal cost and was vital to his defense. As a matter of equal
protection, it should have been provided to him. Britt v. North
Carolina, supra; see Gonzales v. District Court, 198 Colo. 505, 602
P.2d 857(1979).
The State admits error in the refusal to provide the transcript,
but it avers such error was harmless. Considering the critical
nature of Magnall's testimony, and the alleged inconsistencies
therein, we do not agree.
This error was of such magnitude that it requires a new trial of
this action, and we therefore reverse the judgment of the district
court. Crim.P. 52(b); People v. Barker, 180 Colo. 28, 501 P.2d
1041 (1972); see also People v. Matthews, 662 P.2d
1108 (Colo.App.1983).
On appeal, we review a trial court’s denial of a defendant’s request for free transcripts for an abuse of
discretion. See Jurgevich v. Dist. Court, 907 P.2d 565, 568 (Colo. 1995). A trial court abuses its
discretion only when its decision is manifestly arbitrary, unreasonable, or unfair. Id.
Defendants who request free trial transcripts to prepare motions for collateral attack must demonstrate
that they may be entitled to postconviction relief and that the record might contain specific facts that
would substantiate alleged errors. Id. at 567.