Opinion
No. 77-805
Decided April 12, 1978.
Criminal law — Transcript of prior proceedings — Improperly denied defendant, when.
APPEAL from the Court of Appeals for Sandusky County.
Following his arraignment on a charge of aggravated murder, defendant entered a plea of not guilty. Trial began on June 17, 1976, and, on June 23, after submission of the case to the jury, they advised the judge that they could not reach a verdict. The date of August 23, 1976, was then set for the second trial of defendant.
On July 26, 1976, defendant, by motion, requested "the court to provide him" with transcripts of the testimony of 11 witnesses from the first trial. He claimed that such transcripts were necessary in order to adequately prepare for the second trial. The state did not oppose defendant's request, and no hearing was held. The next day, July 27, the trial judge declared defendant indigent and appointed counsel for him. Defendant's request for transcripts was, subsequently, overruled by the trial judge. He renewed his request for transcripts when the second trial began and, again, his motion was overruled.
Counsel retained by defendant to represent him in the first trial was appointed by the Court of Common Pleas to represent defendant in his second trial.
Defendant's second trial proceeded, and he was found guilty of the lesser-included offense of felonious assault, and was sentenced accordingly.
On appeal, the Court of Appeals, with one judge dissenting, found that defendant was not prejudiced by the refusal of the trial court to allow him his requested transcripts, and affirmed the judgment of the trial court.
The allowance of defendant's motion for leave to appeal brings the cause to this court for review.
Mr. John D. Shimp, prosecuting attorney, and Mr. Stephen E. Hagerman, for appellee.
Messrs. Dewey Dewey and Mr. Thomas F. Dewey, Jr., for appellant.
Defendant's sole claim before this court is that the denial of his "unopposed request for transcripts of the testimony of eleven witnesses from the defendant's prior trial was prejudicial error and the judgment of the trial court should be reversed."
It is defendant's contention that some of the testimony of witnesses at his first trial was inconsistent with prior statements of such witnesses, and that transcripts of such testimony from the first trial are necessary for an effective defense in his second trial for the purpose of impeaching those witnesses.
In State v. Arrington (1975), 42 Ohio St.2d 114, this court held, in paragraphs one and two of the syllabus, that:
"1. In a criminal case, the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal."
"2. The burden is on the state to show that a transcript of prior proceedings requested by an indigent defendant is not needed for an effective defense or appeal." (Emphasis added.)
The prosecution maintains that there are alternatives to the furnishing of the transcripts sought by defendant and, for that reason, the denial of his request was not prejudicial.
Defendant's request for transcripts was not opposed by the prosecution and was overruled without a hearing. Therefore, the record before this court does not demonstrate that, as this court stated in Arrington, paragraph three of the syllabus, there are adequate "alternative devices available to the defendant that would fulfill the same functions as a transcript."
Accordingly, the defendant's request for transcripts of testimony from his first trial was improperly overruled and, on authority of State v. Arrington, supra, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.