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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000037
                                                              16-OCT-2013
                                                              10:58 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

     KEVIN ALEXANDER SCOTT, Petitioner/Defendant-Appellant.


                            SCWC-10-0000037

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-10-0000037; CR. NO. 10-1-0030K)

                            October 16, 2013

  RECKTENWALD, C.J., NAKAYAMA, MCKENNA, AND POLLACK, JJ., WITH
                ACOBA, J., CONCURRING SEPARATELY

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner/Defendant-Appellant Kevin Alexander Scott

(Scott) seeks review of the January 15, 2013 Judgment on Appeal

of the Intermediate Court of Appeals (ICA), filed pursuant to its
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December 17, 2012 Summary Disposition Order, affirming the

Judgment of Conviction and Sentence (Judgment) entered by the

Circuit Court of the Third Circuit (circuit court) on August 30,

2010.

          Scott’s appeal arises from the circuit court’s denial

of his request for the written transcripts or the DVD video

recordings of his codefendant’s trial.         For the reasons set forth

herein, we hold that Scott demonstrated that the requested

transcripts or DVD video recordings were necessary for an

effective defense, where the charges against Scott and his

codefendant arose from the same incident and involved identical

facts, and the same key witness testified against both Scott and

his codefendant at their respective trials.          Thus, the circuit

court erred by denying Scott’s request.         Accordingly, we vacate

the ICA’s Judgment on Appeal and the circuit court’s Judgment,

and remand for a new trial consistent with this opinion.

                                    I.

                                    A.

          The charges against Scott arose out of an incident that

occurred on October 18, 2009 and involved Scott, his brother

Jefferson Scott (Jefferson), and the complainants Leif Martin

(Leif) and Kerry Martin (Kerry).         Scott and Jefferson were




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indicted separately by the State of Hawai#i (State) upon multiple

charges related to the incident.

             Jefferson was indicted first, upon charges of assault

in the second degree,1 assault in the third degree,2 and

terroristic threatening in the second degree.3             State v. Scott,

No. 30499, 2011 WL 1878851 (Haw. App. May 12, 2011) (SDO).

Following a jury trial, on April 14, 2010, Jefferson was

convicted of two counts of assault in the third degree and one

count of terroristic threatening in the second degree.4                Id. at

*1.




      1
            Hawai#i Revised Statutes (HRS) § 707-711(1)(a) (Supp. 2009)
provides in relevant part:

             (1) A person commits the offense of assault in the second
             degree if:
                   (a) The person intentionally or knowingly causes
             substantial bodily injury to another[.]

       2
             HRS § 707-712 (1993) provides in relevant part:

             (1) A person commits the offense of assault in the third
             degree if the person:
                   (a) Intentionally, knowingly, or recklessly causes
                   bodily injury to another person[.]
       3
             HRS § 707-715 (1993) provides in relevant part:

             A person commits the offense of terroristic threatening if
             the person threatens, by word or conduct, to cause bodily
             injury to another person or serious damage to property of
             another or to commit a felony:
                   (1) With the intent to terrorize, or in reckless
             disregard of the risk of terrorizing, another person[.]

            HRS § 707-717(1) (1993) provides that “[a] person commits the
offense of terroristic threatening in the second degree if the person commits
terroristic threatening other than as provided in section 707-716.”
       4
             The Honorable Ronald Ibarra presided.   Id. at *1 n. 1.

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          On January 25, 2010, Scott was indicted by a grand jury

upon one count of assault in the second degree for intentionally

or knowingly causing substantial bodily injury to Leif5; two

counts of terroristic threatening in the first degree, for

threatening to cause bodily injury to Leif and Kerry with the use

of a dangerous instrument; and one count of terroristic

threatening in the first degree by common scheme.6           A jury trial

was scheduled for June 29, 2010.7

          On February 17, 2010, the State filed a “Notice of

Liability for Conduct of Another” (Notice of Liability), stating

that it intended to use evidence that Scott “aided his brother,

Jefferson Scott, in committing the crimes charged in this case,”

pursuant to HRS §§ 702-221(1) and (2)(c)8, 702-222(1)(b)9, and


     5
          HRS § 707-711(1)(a).
     6
          HRS § 707-716(1) (Supp. 2009) provides in relevant part:

          (1) A person commits the offense of terroristic threatening
          in the first degree if the person commits terroristic
          threatening:
                . . . .
                (b) By threats made in a common scheme against
                different persons;
                . . . .
                (e) With the use of a dangerous instrument.
     7
          The Honorable Elizabeth A. Strance presided.
     8
          HRS § 702-221 (1993) provides in relevant part:
          (1) A person is guilty of an offense if it is committed by
          his own conduct or by the conduct of another person for
          which he is legally accountable, or both.
          (2) A person is legally accountable for the conduct of
          another person when:
          . . . .
                (c) He is an accomplice of such other person in the
                                                             (continued...)

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702-22310.    The Notice provided that the State intended to

introduce evidence that Jefferson “assisted” Scott after Scott

“got into a dispute with” Leif and Kerry:

                   Specifically, the State will introduce evidence that
             JEFFERSON SCOTT assisted the defendant after the defendant
             got into a dispute with the defendant’s neighbors, LEIF
             MARTIN and KERRY MARTIN. During what started as a verbal
             argument between defendant and the Martins, JEFFERSON JOSEPH
             SCOTT became angry and decided to assist his brother.
             Defendant’s brother, JEFFERSON SCOTT, then punched LEIF
             MARTIN, who fell to the ground unconscious . . . .
                   [T]he defendant’s brother then kicked LEIF MARTIN in
             the head while he was on the ground, unconscious, as the
             defendant, KEVIN SCOTT, continued to threaten.

(Emphases added).

             On June 15, 2010, Scott filed a Motion to Continue

Trial with the circuit court, pursuant to Rule 12 of the Hawai#i

Rules of Penal Procedure (HRPP) and Rule 7 of the Hawai#i Circuit

Court Rules.11     The motion provided that defense counsel needed


      8
       (...continued)
                  commission of the offense.
      9
             HRS § 702-222 (1993) provides in relevant part:
             A person is an accomplice of another person in the
             commission of an offense if:
                   (1) With the intention of promoting or facilitating
                   the commission of the offense, the person:
                         . . . .
                         (b) Aids or agrees or attempts to aid the other
                         person in planning or committing it[.]
      10
             HRS § 702-223 (1993) provides:
             When causing a particular result is an element of an
             offense, an accomplice in the conduct causing the result is
             an accomplice in the commission of that offense, if the
             accomplice acts, with respect to that result, with the state
             of mind that is sufficient for the commission of the
             offense.
      11
            The record indicates that this was Scott’s first request for a
continuance of trial in this case.

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additional time to “obtain copies of the recent trial of the co-

defendant brother in order to adequately prepare a defense in the

instant case.”    In defense counsel’s declaration in support of

the motion, counsel explained that the transcripts had not been

previously ordered because Scott had authorized him to enter into

plea negotiations with the State.         Defense counsel believed “the

case was headed in the direction of a plea agreement” based on

the State’s plea offer in April 2010.        Defense counsel therefore

did not order Jefferson’s trial transcripts in an effort to avoid

incurring unnecessary expenses.       However, “the plea agreement

reached by the parties . . . fell out of orbit based on . . .

newly discovered information[.]”       Counsel additionally stated

that he had mistakenly assumed another trial scheduled at

approximately the same time as Scott’s trial was “first up and

was certain to go[.]”     Finally, defense counsel represented to

the court that he had explained the need for the transcripts to

Scott and Scott had agreed “to waive his Rule 48 and

constitutional speedy trial rights” in order for the court to

consider continuing the trial.

          At about the same time that the Motion to Continue

Trial was filed, defense counsel also submitted a “Request Form

for Non Appeal Cases” (Request Form I) to the administrative




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judge for the Third Circuit (administrative judge).12            Defense

counsel requested the written transcripts of Jefferson’s jury

trial proceedings, a pretrial motion hearing, and sentencing

hearing.

            On June 21, 2010, the State filed a “Supplement to

Response to Motion to Continue Trial”13 (Supplemental Response)

with the circuit court, contending that Scott had “made no

showing that he requested the transcripts of his brother’s trial,

or that they are necessary for his defense.”           The State also

argued that Scott had access to the transcripts of the grand jury

proceedings and a protective order hearing at which Scott and

Jefferson testified.      The State further asserted that Jefferson’s

“entire trial was recorded on DVD, which will require less than a

day for the defendant to copy” and which fulfilled the “same

function as a transcript.”

            Apparently in response to the Supplemental Response,

defense counsel submitted a second “Request Form for Non Appeal

Cases” (Request Form II) to the administrative judge.             Defense

counsel requested the video recordings of the same proceedings



      12
            Request Form I was submitted to the Honorable Ronald Ibarra for
approval. Although there was no time stamp to indicate when the document was
received by the administrative judge, defense counsel’s signature on the form
is dated June 15, 2010.
      13
            Although the State’s Supplemental Response suggests that an
initial response to Scott’s Motion to Continue Trial had been previously
filed, such a response was not included in the record on appeal.

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related to Jefferson’s trial that he had requested written

transcripts for in Request Form I.

          A hearing on the Motion to Continue Trial was held on

June 23, 2010.    Following the hearing, the circuit court denied

the motion.14    The record does not include a transcript of the

hearing or an order from the circuit court regarding its

disposition of the motion.      The June 23, 2010 court minutes

indicate that the circuit court denied Scott’s Motion to Continue

Trial because “the information being sought could have been more

specific and not be a vague allegation of what might be out

there.”   The court also reasoned that it had summoned a jury and

the parties had indicated they were ready to proceed with trial.

Finally, the court stated that “if there was a need for expedited

transcripts, motions could have been filed,” and Scott had not

demonstrated prejudice.

          On June 24, 2010, consistent with the circuit court’s

decision to deny Scott’s Motion to Continue Trial, the

administrative judge denied Request Form I and Request Form II.

Both forms were stamped “Disapproved and So Ordered.”            On Request

Form I, the judge initialed the following handwritten statement

next to his signature:     “Counsel is appointed in another case.

Defendant does NOT HAVE a constitutional right to a ‘free’ audio


     14
          Judge Strance presided over the Motion to Continue Trial hearing.

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in this case.”    (Underline emphasis added).        Similarly on Request

Form II, the judge initialed the following handwritten statement:

“Counsel is appointed in another case.         Defendant does not have a

constitutional right to a ‘free’ video in this case.”            (Emphasis

added).   Both Request Forms I and II were filed on June 29, 2010.

                                    B.

          Scott’s jury trial commenced on June 29, 2010 and

adduced the following evidence.

          On October 18, 2009, Scott went to visit Jefferson at

the latter’s home.    Jefferson’s home was located in a cul-de-sac,

next door to Kerry’s home.      Scott parked his van on the street.

          That night, Leif was visiting Kerry and their children

at Kerry’s home.    Leif and Kerry were married but separated.

Leif was employed as a federal security officer for the

Transportation Security Administration at the airport.            When Leif

arrived at Kerry’s home, he double-parked his car next to Scott’s

van, so that his car was closer than three feet from the van.

There was apparently a history of problems between the Martins

and the Scotts regarding the van being parked in the cul-de-sac.

          Later that night, Leif and Kerry came outside to the

driveway area of Kerry’s home and began “venting” to one another

about the van being parked in the cul-de-sac.          According to

Scott, he and Jefferson were sitting on the porch when he heard


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Leif yelling about the van being parked, prompting him to walk

out to where Leif and Kerry were standing.         Kerry and Leif

testified that as Scott approached them, Scott stated, “If you

wanted me to move it, why didn’t you just say so.”           Kerry

responded that she was “really over this drama” and Leif

commented that Scott had previously dented Kerry’s father’s car.

Scott approached Kerry and responded, “I talked to that old man

about that.”   While Kerry took a step back, Leif took a step

towards Scott.    Scott and Leif then stood “face-to-face,” arguing

about the van being parked in the cul-de-sac.

           While Scott and Leif were arguing, Jefferson came

outside and asked what was happening.        Leif and Jefferson had an

exchange regarding the van.      Scott testified that Leif walked

towards Jefferson aggressively “with his fists clenched,” and

when Leif got to within arm’s reach of Jefferson, Jefferson hit

Leif on his chin and “knocked him out,” causing Leif to fall

backwards and hit the ground.       Kerry similarly testified that

while Scott and Leif were arguing, Jefferson “came from behind

[Scott] and punched Leif in the side of the head.”           According to

Kerry, Leif then fell unconscious for one and a half to three

minutes.




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          Leif could not recall much of the incident after

Jefferson came outside.     Leif only remembered Jefferson coming

around the car towards him, and then being in the ambulance.

          Scott testified that after Jefferson punched Leif, he

went to his van to retrieve his cell phone so that he could call

an ambulance.    Kerry testified that as she tried to wake Leif,

Jefferson was “being really erratic,” “bouncing around” near

Leif’s feet while yelling threats at her and Leif.           She heard a

car door slam, and when she looked over she saw Scott “coming

from around the far side of his van” while putting “something

shiny” into his waistband.      Kerry turned back and saw Jefferson

kick Leif in his upper body.      Scott testified that as he was

returning from his van, he saw Jefferson kick the left side of

Leif’s face.    Scott ran over and told Jefferson to stop hitting

Leif, and told Kerry that she and Leif needed to leave.            However,

Kerry was unable to lift Leif on her own.

          At this point, Scott and Kerry’s version of the events

substantially diverge.

          According to Kerry, Scott helped her lift Leif, leaned

Leif against her, and then stepped back.         Jefferson was “still

jumping around a lot,” “just acting . . . really kinda crazy.”

Leif was “just barely conscious” and Kerry tried unsuccessfully

to “drag him.”    As she was telling Leif, “We need to go,” Scott


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came up along her right side, pulled out a “small pistol-style

gun” from his waistband, and placed it “flat against the side of

Leif’s face.”    Scott told them to get into their house, then

pointed the barrel of the gun at the side of Leif’s temple and

threatened him.    Then as Kerry continued to hold Leif up, Scott

“hit Leif in the side of the head with the butt of the gun.”

Leif went unconscious again, and Kerry lowered him to the ground.

When she looked back up, Scott was standing over her, pointing

the gun at her while threatening her and yelling at her to get in

the house.    After trying unsuccessfully to get Leif into his car,

Kerry ran into the house and called 911.         Kerry testified that

the entire altercation lasted about fifteen minutes.

            According to Scott, he put his cell phone in his

pocket, raised Leif to his feet, and then helped Kerry move Leif

towards the driveway.     As they were walking, Scott could feel

Leif “beginning to get some feet underneath him again,” and tried

to get Kerry to take Leif.      However, Kerry pushed Leif back onto

Scott and “had words” with Jefferson while Scott continued to

hold Leif from behind and attempt to walk him towards his

driveway.    Leif “began to come to” and tried to turn to see who

was helping him; when he realized that it was Scott, he broke

free and appeared to regain his composure.         Scott took his cell

phone out of his pocket and told Leif to get back into the car.

When Leif approached Scott aggressively and got to “about half an

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arm’s length” from Scott, Scott testified, “I gave him a right

hook and I hit him in his eye, and he fell down.”            Scott’s cell

phone, which he was holding in his left hand, flew onto the

ground.    Scott then got into his van and locked the door.

                                     C.

            Scott was convicted of assault in the second degree

(Count I), the lesser included offense of terroristic threatening

in the second degree as to Leif (Count II), and terroristic

threatening in the first degree as to both Leif and Kerry (Count

IV).15

            On August 30, 2010, the circuit court sentenced Scott

to an indeterminate term of imprisonment of five years in Count

I, one year of imprisonment in Count II, and an indeterminate

term of five years imprisonment in Count IV, with all terms to

run concurrently.16

                                     II.

            On appeal to the ICA, Scott argued in relevant part

that the “trial court erred when it refused to provide” his

court-appointed counsel with the requested “transcripts of

testimony of the complaining witness and another state witness,”

thereby depriving him of his right to a fair trial and his right
      15
            The jury did not return a verdict upon the charge of terroristic
threatening in the first degree as to Kerry (Count III) due to a merger of
this offense with the charge in Count IV.
      16
            Scott was also required to pay restitution jointly and severally
with Jefferson, in addition to paying court fees.

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to mount an effective defense.       Scott argued in support of this

point that Jefferson’s trial involved the same victims, Leif and

Kerry, and the same primary witness, Kerry.          Without the

transcripts of Jefferson’s trial proceedings, defense counsel was

unable to adequately prepare to cross-examine these witnesses

during Scott’s trial.     Furthermore, Scott contended that he was

not provided an adequate substitute for the requested

transcripts, as even his request for a DVD video recording of the

relevant proceedings was denied.

          The State responded that the administrative judge did

not err in denying Scott’s request for transcripts because Scott

did not make the requisite showing of necessity.           The State also

argued that Scott did not adequately preserve this point of error

on appeal because the administrative judge’s denial of Scott’s

Request Form was a denial of a pro forma transcript request form

and not a denial of a formal motion explaining the necessity of

having the transcripts, and Scott further failed to file a motion

to reconsider the judge’s decision.        Additionally, the State

contended that Scott did not file a motion to obtain the

transcripts of Jefferson’s trial proceedings with the circuit

court judge.

          The ICA affirmed Scott’s conviction.          State v. Scott,

No. CAAP-10-0000037, 2012 WL 6568233 (Haw. App. Dec. 17, 2012)


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(SDO).     The ICA reasoned that Scott’s Request Form I17 did not

provide any reason for the request or indicate, on its face, any

reason that the transcripts were “necessary for an adequate

defense” in Scott’s case.       Id. at *1.    The ICA further found that

Scott had not claimed that “all of the seven transcripts

requested contain the testimony of witnesses he anticipated would

testify in his trial.”      Id.

             The ICA stated that Scott had failed to cite any

authority to support his contention that he was entitled to

transcripts of proceedings in another case.           Id.   The ICA

differentiated this case factually from State v. Mundon, 121

Hawai#i 339, 219 P.3d 1126 (2009) and Britt v. North Carolina,

404 U.S. 226 (1971), in which the courts held that an indigent

criminal defendant is entitled to transcripts of prior

proceedings in the defendant’s own case when such transcripts are

necessary for an effective defense or appeal.           2012 WL 6568233,

at *1.

             Finally, the ICA faulted Scott for not submitting his

request for transcripts until, at the earliest, June 15, 2010,

when trial was scheduled for June 23, 2010.           Id. at *2.      Thus,

the ICA concluded that Scott had failed to establish that the

circuit court erred in denying his request for transcripts.                 Id.

      17
            The ICA did not address Scott’s June 22, 2010 Request Form II
requesting the video recording of Jefferson’s trial proceedings.

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                                   III.

           In his application for writ of certiorari, Scott

maintains that the ICA erred in finding that the circuit court

properly denied his transcript requests.         Scott argues that the

testimonies of Kerry and Leif were essential for trial

preparation and effective cross-examination of these witnesses at

his trial.   Additionally, Scott contends that he should not have

been required to allege any specific reasons for requesting the

transcripts of Jefferson’s trial proceedings because such

transcripts are innately valuable for trial preparation and

impeachment purposes.     Scott further notes that the court’s

request forms did not require him to state a reason or an

argument for requesting the transcripts.

           Scott also argues that the ICA erred by not addressing

his contention that the requested transcripts related to a trial

involving the “exact” same incident and witnesses as his own

case.   Scott clarifies that his contention is not that he is

entitled to “transcripts for any proceeding ever held in any

case,” but only that he is entitled to “transcripts from a case

dealing with the identical facts and witnesses as his case.”

Scott argues that “his court appointed counsel is best suited to

know” why certain transcripts would be “vital” to his defense.




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                                   IV.

                                    A.

          It is well-settled that an indigent “criminal defendant

has a right to transcripts of prior proceedings.”           State v.

Mundon, 121 Hawai#i 339, 357, 219 P.3d 1126, 1144 (2009) (citing

Britt v. North Carolina, 404 U.S. 226, 227 (1971)).           In Mundon,

this court held that the indigent defendant was entitled to the

written transcripts of his prior proceedings.          121 Hawai#i at

358, 219 P.3d at 1145.     The defendant had filed several pretrial

motions seeking the written transcripts of the preliminary

hearing and grand jury proceeding in his case.          Id. at 345, 219

P.3d at 1125.   The trial court rejected the defendant’s motions

because of “non-conformities with the rules of court.”            Id. at

355, 219 P.3d at 1142.     The court provided the defendant with

compact disks (CDs) of the relevant proceedings, but the

defendant “was unable to review the electronic transcripts until

the first day of trial because” neither he nor his standby

counsel “ha[d] the requisite equipment available[.]”            Id. at 358,

219 P.3d at 1145.

          The ICA in Mundon had held that the trial court’s error

in failing to provide the defendant with the written transcripts

was “harmless inasmuch as [the defendant] failed to show that he

was prejudiced by proceeding at trial without written


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transcripts.”   Id. at 357, 219 P.3d at 1144.         Although the

defendant “claim[ed] that he was entitled to a transcript of the

preliminary hearing so he could cross-examine the complaining

witness, who allegedly was unable to identify him at the

preliminary hearing[,]” the ICA found that he failed to

“substantiate[] this claim by including the transcript of the

preliminary hearing in the record on appeal.”          Id. (quotation

marks omitted).    In regard to the transcript of the grand-jury

proceeding, the ICA explained that “all that transpired before

the grand jury was the playing of the tape recording of the

complaining witness’s interview with a police officer, which

recording had previously been provided to [the defendant].”             Id.

(quotation marks omitted).

          On review, this court held that the ICA erred in

concluding that the trial court’s failure to provide the

defendant with the written transcripts was harmless error.             Id.

at 358, 219 P.3d at 1145.      In making this determination, the

court relied on the United States Supreme Court’s decision in

Britt, 404 U.S. 226.     121 Hawai#i at 357, 219 P.3d at 1125.         In

Britt, the Court held that “the State must provide an indigent

defendant with a transcript of prior proceedings when that

transcript is needed for an effective defense or appeal.”             404

U.S. at 227 (footnote omitted).



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          The Britt Court “identified two factors that are

relevant to the determination” of whether a transcript is

“needed” for an effective defense: “(1) the value of the

transcript to the defendant in connection with the appeal or

trial for which it is sought, and (2) the availability of

alternative devices that would fulfill the same functions as a

transcript.”   Id. at 227-28.     In regard to the first factor, the

Court held that because it had “consistently recognized the value

to a defendant of a transcript of prior proceedings,” the

defendant was not required to make “a showing of need tailored to

the facts of the particular case.”        Id. at 228.

          In Mundon, the court applied the two-part Britt test.

In addressing the first factor, the court quoted from the Britt

decision in describing the value of the transcripts of prior

proceedings to the defendant:

          Our cases have consistently recognized the value to a
          defendant of a transcript of prior proceedings, without
          requiring a showing of need tailored to the facts of a
          particular case and, even in the absence of specific
          allegations, 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.

121 Hawai#i at 357, 219 P.3d at 1144 (quoting Britt, 404 U.S. at

228) (brackets and ellipses omitted).        The Mundon court concluded

that “there is innate value to a criminal defendant in being able

to review transcripts for trial preparation and impeachment


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purposes such that a defendant need not show a particularized

need for such transcripts[.]”       Id. at 358, 219 P.3d at 1145

(emphases added).    Thus, the defendant was not required to have

included the transcripts of the preliminary hearing or grand jury

proceeding in the record on appeal or to “otherwise identify

specific examples of prejudice.”       Id. at 357, 219 P.3d at 1144.

           Second, the court found that no adequate alternatives

to the written transcripts existed.        Id. at 358, 219 P.3d at

1145.   The court explained that although the defendant was

provided with CDs of the relevant proceedings, he “was unable to

review the electronic transcripts until the first day of trial”

due to the lack of equipment, and the trial court only permitted

the defendant to review the CDs during the breaks in trial.             Id.

Thus, the court concluded that “[b]ecause [the defendant] was

essentially provided the transcript for the first time at trial,

the electronic transcripts were not an adequate alternative to

the written transcripts[.]”      Id.   Additionally, the record did

not reveal any other available alternative to the written

transcripts.   Id.

           The Mundon court concluded that the defendant satisfied

the two-part Britt test and consequently, “[the defendant] was

not required to show that he was prejudiced by proceeding to

trial without the written transcripts[.]”         Id.



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          In the instant case, the two-part Britt test is

similarly applicable in determining whether the ICA erred in

affirming the circuit court’s denial of Scott’s request for the

written transcripts or a video recording of Jefferson’s trial

proceedings.

          In regard to the first Britt factor, Scott argues that

based upon Britt and Mundon, he was not required to demonstrate a

particularized need for the transcripts of Jefferson’s trial

proceedings.    Scott contends that the holdings in Britt and

Mundon suggest a broader application of an indigent defendant’s

right to transcripts that is not necessarily limited to

transcripts of prior proceedings in the defendant’s own case.

Scott notes that the first Britt factor states that the defendant

must demonstrate the “value of the transcript to the defendant in

connection with the appeal or trial for which it is sought,” and

argues that this language “implies that defendants may in fact

seek transcripts that would help them in their own case,

regardless of whether it was from a proceeding in their case

alone.”

           As Scott argues, the Mundon court recognized that

transcripts of a prior proceeding are innately valuable for trial

preparation and impeachment purposes.        121 Hawai#i at 358, 219

P.3d at 1145.    The Ninth Circuit has also recognized the critical


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importance of prior trial transcripts, holding that the trial

court’s failure to provide the defendant with the transcript of

the State’s opening and closing arguments in the defendant’s

prior mistrial was prejudicial to the defendant because those

portions of the trial were “crucial to the development of an

effective defense.”      Kennedy v. Lockyer, 379 F.3d 1041, 1057 (9th

Cir. 2004).    The court explained:

            Various tactical and strategic decisions made by Kennedy’s
            new counsel might have been affected had he been provided
            with a copy of the prosecutor’s opening statement and
            closing argument; he might, for example, have been able to
            anticipate some of the prosecution’s key arguments, identify
            potential weaknesses in its case, assess the relative weight
            that the prosecution would place on various items of
            evidence, and better determine what would be needed to
            refute them.

Id. (emphases added).

            Similarly, a codefendant’s transcript is essential to

the “development of an effective defense” in cases where the

defendant and codefendant’s charges arise from the same event and

involve the same issues and witnesses.18         The defendant’s ability

to reference the codefendant’s trial transcript would affect

“various tactical and strategic decisions” made by the defense,

such as enabling the defense to identify potential weaknesses in

the State’s case as well as inconsistencies in witness

statements.


      18
            “Codefendant” is defined as “one of two or more defendants sued in
the same litigation or charged with the same crime.” Black’s Law Dictionary
293 (9th ed. 2009) (emphasis added).

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          Indeed, a codefendant’s trial transcript is arguably of

greater value to a defendant for trial preparation purposes than

a transcript of a defendant’s own prior trial proceeding.             A

defendant is presumably familiar with the prior proceedings of

his or her own case.     See McKibbon v. State, 749 S.W.2d 83, 87

(Tex. Crim. App. 1988) (en banc) (Clinton, J., dissenting) (“a

transcription of testimony and evidence admitted against a

confederate in an earlier trial of the same transaction is likely

to be more valuable than transcripts of a mistrial . . . for the

very practical reason that appellant was not present at the

former and, therefore, not familiar with the evidence adduced as

he would be at his own prior trial”).        Absent a change of

counsel, defense counsel would have been present during the

defendant’s prior trial proceedings and therefore would have been

aware of the strategies employed by the State and any

inconsistencies in the witness’s statements.

          In contrast, in a situation involving the codefendant’s

trial transcripts, the defendant and defense counsel may not have

been present at the codefendant’s trial and may consequently lack

the same level of knowledge regarding the State’s approach in

presenting its case.     However, the State prosecutor (or a deputy

from the same office) would have participated in the

codefendant’s trial and examined the witnesses.          Thus, the



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State’s prosecutor would be informed of what areas of testimony

to avoid and what areas to pursue, whereas defense counsel would

be without the benefit of such knowledge.         This considerable

strategic advantage is gained by the State even if the State

forgoes ordering the transcript for its own purposes.

          In People v. Russell, the Illinois Appellate Court

recognized this strategic importance of codefendant trial

transcripts, and thus held that an indigent defendant was

entitled to the transcripts of his codefendants’ trial.             289

N.E.2d 106, 108 (Ill. App. Ct. 1972).        In that case, prior to the

defendant’s trial on a burglary charge, his two codefendants were

tried and convicted of the same crime.         Id. at 107.    The

defendant filed a motion requesting the transcripts of his

codefendants’ trial, explaining only that the transcripts were

“essential to the preparation of his defense” in his trial.               Id.

          In determining that the trial court erred in denying

the defendant’s requests, the court noted that a key witness

against the defendant had “also testified extensively at the

trial of the co-defendants.”      Id. at 108.     The court reasoned

that “[w]ithout a copy of the transcript, . . . [the] defendant

was unable to cross-examine” the witness “with respect to the

[witness’s] previous testimony or to search for any

inconsistencies which might exist.”        Id.   The court further noted


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that the fact that the State “made no use of the transcript in

preparation of its case” was irrelevant, as “a defendant [is] not

prejudiced only where he is denied access to transcripts which

were employed by the State at the prosecution of the trial,” and

“a transcript which is of little value to the State in

preparation of its case might be of great value to the defense in

preparation of its case.”      Id.    The court reversed the

defendant’s conviction and remanded for a new trial with

instructions that the State provide the defendant with a copy of

the requested transcript.      Id.

          Here, the charges against Scott and Jefferson were

intricately related, as they involved the same underlying

incident and complainants, and were based on similar allegations

of wrongful conduct.     The State’s Notice of Liability in Scott’s

case asserted that the State would present evidence that Scott

and Jefferson aided one another in committing the crimes charged.

          The State, having prosecuted Jefferson prior to Scott’s

trial, had the benefit of having examined the witnesses and being

informed of any areas of testimony that were subject to

impeachment.   The jury in Jefferson’s trial rejected at least

part of the State’s case in regard to the most serious charge

against Jefferson, as he was convicted of the included offense of

assault in the third degree.      Only the State would have gained



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knowledge of the possible explanation for the trial result in

Jefferson’s case.    The defense, without the transcripts or DVD of

Jefferson’s trial, would lack any knowledge, for example,

regarding issues that had arisen pertaining to witness

credibility or contradictory evidence.         Although it is not clear

from the record whether Jefferson testified at his trial, if he

had, then it would certainly be of significant value to Scott’s

defense strategy to know whether Jefferson made any admissions

regarding where he kicked Leif (in the face or body), and whether

Jefferson attempted to place more or less blame on Scott.

          Finally, similar to the situation in People v. Russell,

supra, Kerry was the key witness testifying on behalf of the

State in both Jefferson’s and Scott’s trials.          She was the only

witness to the altercation other than the Scotts and Leif, who

was unconscious for much of the incident.         Her testimony was

critical to both cases.     Kerry’s version of the events as given

at Scott’s trial diverged significantly from Scott’s recounting

of the incident.    Thus Kerry’s credibility was clearly important

to the State’s case.     Because Scott’s requests for the written

transcripts and DVD of Jefferson’s trial were denied, defense

counsel was unable to become informed of Kerry’s testimony in

Jefferson’s trial and was prevented from comparing her former

testimony with the testimony she gave in Scott’s trial.



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            Thus, there was a clear interrelationship and overlap

between the two cases, such that Jefferson’s trial transcript was

innately valuable to Scott’s ability to prepare an effective

defense.    The innate value of transcripts for trial preparation

and impeachment purposes is the same or substantively equivalent

for a defendant with respect to the transcripts of a

codefendant’s trial and the transcripts of the defendant’s prior

proceedings, when the offense(s) charged against the codefendants

arise out of the same incident, have the same key witnesses, and

involve the same underlying facts.

            The ICA did not recognize that Jefferson’s trial

transcript was innately valuable to Scott’s defense.             Rather, the

ICA emphasized that Scott’s request for the transcripts did not

“provide any reason for the request” or “indicate, on its face,

any reason that the transcripts are ‘necessary for an adequate

defense’.”19    Scott, 2012 WL 6568233, at *1.        However, requiring


      19
             The ICA also cited the fact that Scott “did not submit his request
for these transcripts until, at the earliest, June 15, 2010, when trial was
scheduled for June 23, 2010,” as support for its conclusion that the circuit
court did not err in denying the transcript requests. Scott, 2012 WL 6568233,
at *2. However, the record indicates that trial was set for June 29, 2010.
Additionally, the Motion to Continue Trial was Scott’s first request for a
continuance, and defense counsel explained in his attached declaration that he
had not ordered the transcripts of Jefferson’s trial at an earlier date
because he had anticipated that “the case was headed in the direction of a
plea agreement” and wanted to avoid unnecessary costs. This is not
necessarily an insubstantial reason for court-appointed counsel to defer the
ordering of transcripts in appropriate circumstances. Defense counsel had
also represented that Scott was willing to waive his “[HRPP] Rule 48 and
speedy trial rights” for the period of time necessary to obtain the requested
transcripts.


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the defendant to show a “particularized need” for a codefendant’s

trial transcripts by identifying specific portions of the

transcript that the defendant will require for impeachment

purposes imposes the “practically impossible burden of showing

detailed information contained within a document that he can not

possess.”   Melendez v. State, 942 S.W.2d 76, 80 (Tex. Ct. App.

1997) (Chavez, J., dissenting).

            In light of the innate value of the written transcripts

or the DVD of Jefferson’s trial proceedings for Scott’s trial

preparation and impeachment purposes, Scott was not required to

show a particularized need for the transcripts or DVD, and the

circuit court and the ICA erred in holding otherwise.

                                    B.

            The second factor relevant to the determination of an

indigent defendant’s claim of right to a transcript is “the

availability of alternative devices that would fulfill the same

functions as a transcript.”      Britt, 404 U.S. at 227.        “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.”   Id. at 230.     Thus, the State has the burden of

proving that a defendant has been provided adequate alternatives

to a written transcript.


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          In Britt, the Court found that the defendant had an

adequate alternative to a transcript of his prior mistrial, where

the defendant conceded that the court reporter “would at any time

have read back to [defense] counsel his notes of the mistrial,

well in advance of the second trial, if counsel had simply made

an informal request.”     Id. at 229.

          In Mundon, this court held that an adequate alternative

to the written transcripts was not made available to the

defendant.   121 Hawai#i at 357-58, 219 P.3d at 1144-45.          In

reaching this determination, the court noted that “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.”             Id.

at 358, 219 P.3d at 1145 (citing Gonzales v. Dist. Court In and

For Weld Cnty., 602 P.2d 855, 858 (Colo. 1979) (en banc))

(quotation marks omitted).      Thus where the Mundon defendant was

essentially provided electronic transcripts for the first time at

trial, the transcripts were not an adequate alternative to the

written transcripts.

          In this case, not only did the circuit court deny

Scott’s requests for written transcripts of Jefferson’s trial,

but the court also denied Scott’s requests for the DVD video




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recordings of the proceedings.20       In addition, the record does

not reveal that any other available alternative to the written

transcripts or the DVD was provided to Scott.21

            The State contends that the transcript of Scott’s grand

jury proceeding, “a written statement from the only eyewitnesses,

and the 911 tape” were alternative devices that fulfilled the

same function as the written transcripts of Jefferson’s trial

proceedings.    Although these materials are valuable for trial

preparation and impeachment purposes, the State’s argument that

they are adequate alternatives to a written transcript or DVD of

Jefferson’s trial proceedings is without merit.           “A grand jury

proceeding is not adversar[ial] in nature and is only a

preliminary determination of whether a criminal proceeding should

be instituted.”     State v. Rodrigues, 63 Haw. 412, 417, 629 P.2d


      20
            The State argues that Scott “did nothing to request an order from
the assigned Judge Strance by filing a Motion to allow him the transcripts.”
The record indicates, however, that the basis of Scott’s Motion to Continue
Trial was to obtain the transcripts of Jefferson’s trial proceedings, which
was denied by the circuit court.
            At the time of Scott’s trial, the HRPP did not require court-
appointed counsel to file a formal motion to request transcripts for purposes
other than appeal. HRPP Rule 44(b)(ii), which came into effect on July 1,
2011, now requires court-appointed counsel to make a request for transcripts
for purposes other than appeal by submitting a “motion, with proof of
service,” prior to ordering the transcript. The rule further provides that
“[t]he motion shall be supported by declaration or affidavit that show cause
as to why the motion should be granted.”
      21
            The Mundon court did not hold that CDs of the relevant transcripts
would constitute an adequate alternative to the written transcripts of the
proceedings. Similarly, we do not reach the question of whether a video or
audio recording of the relevant proceedings would constitute an adequate
alternative to the written transcripts. Such a determination would be fact-
specific.


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1111, 1115 (1981).    The defendant and defense counsel are not

entitled to be present at a grand jury proceeding.           Id. (citing

HRPP Rule 6(d)).    Thus, testimony given at Scott’s grand jury

proceeding is not comparable to testimony given during

Jefferson’s trial, as during the trial the witnesses would have

been required to give a more exhaustive, detailed rendition of

the events and would have been subject to cross-examination.

Similarly, a prior written statement and recorded 911 call are

not adequate substitutes for testimony given during a trial

proceeding.

           Thus, Scott was not provided with any alternative to

the written transcripts or to the video recording of Jefferson’s

trial.   Based on the foregoing, it is clear that Scott has

demonstrated that the written transcripts or DVD of Jefferson’s

trial were necessary for an effective defense, as 1) the

transcripts and DVD were innately valuable to Scott in connection

with his trial, and 2) no adequate alternative was provided to

Scott prior to the trial.      Thus, the circuit court erred in

denying Scott’s requested transcripts and DVD video recordings.

                                    C.

           Our decision is consistent with the well-established

“principle that the State must, as a matter of equal protection,

provide indigent prisoners with the basic tools of an adequate


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defense or appeal, when those tools are available for a price to

other prisoners.”       Britt, 404 U.S. at 227.       The Britt court

applied this principle to require the State to “provide an

indigent defendant with a transcript of prior proceedings when

that transcript is needed for an effective defense or appeal.”

Id.

             The transcripts of Jefferson’s trial proceedings were

essential to Scott’s ability to mount an effective and adequate

defense due to the integrated and overlapping nature of Scott’s

and Jefferson’s cases.        If Scott had been able to afford the

transcripts on his own, then he would have had the “basic tools

of an adequate defense or appeal.”           Id.   The only reason Scott

was denied a basic tool for his defense was that he was unable to

pay for the transcripts or DVD of Jefferson’s trial proceedings.

             In addition, had Scott been represented by the Office

of the Public Defender, that office would have been required to

obtain the transcripts upon determining that they were “necessary

for an adequate defense” and that Scott was unable to pay for

them:

             The court may, upon a satisfactory showing that a criminal
             defendant is unable to pay for transcripts . . . , and upon
             a finding that the same are necessary for an adequate
             defense, direct that such expenses be paid from available
             court funds or waived, as the case may be; provided that
             where the defendant is represented by the state public
             defender or by other counsel appointed by the court except
             for such other counsel appointed by the court for reasons of
             conflict of interest on the part of the public defender, the



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            public defender shall pay for or authorize payment for the
            same, if the public defender determines that the defendant
            is unable to pay for the same and that the same are
            necessary for an adequate defense[.]

HRS § 802-7 (1993) (emphases added).         Thus, the public defender’s

office obtains and pays for transcripts without having to first

receive the court’s approval.22       Id.

            However, because Scott was represented by court-

appointed counsel as a result of a conflict of interest, the

circuit court, rather than counsel, determined whether the

requested transcripts were necessary for an adequate defense and

whether Scott had the ability to pay for the transcripts:

            In cases where other counsel have been appointed by the
            court for reasons of conflict of interest, the court may,
            upon the requisite showing of inability to pay and a finding
            that such expenses are necessary for an adequate defense as
            set forth above, direct that such expenses be paid from
            available court funds or waived, as the case may be.

Id. (emphasis added).

            Although the language of HRS § 802-7 suggests that the

court has discretion to direct that transcript expenses are paid

(“The court may, upon the requisite showing . . . .”), the

balance of the pertinent statutory language indicates that once a

satisfactory showing of need for the transcripts and inability to

pay has been made, the court should direct that such expenses be

paid, unless alternative means for timely obtaining the


      22
             This is also true when counsel is appointed for a defendant for
reasons other than a conflict of interest with the public defender’s office.
HRS § 802-7.


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transcripts are available.23       This is evident as the statute

mandates that the public defender’s office is required to furnish

the relevant transcripts upon making the same findings as the

court (“the public defender shall pay for or authorize payment”).

Cf. State v. Castro, 93 Hawai#i 454, 461-62, 5 P.3d 444, 451-52

(App. 2000) (Acoba, J., concurring) (“While the term ‘may’ [used

in HRS § 704-404 governing defendants’ fitness to proceed with

trial] suggests that discretion inheres in the trial court as to

whether to appoint examiners, the balance of the pertinent

statutory language suggests that only some rational basis for

convening a panel is necessary to trigger the court’s appointive

power.”), vacated in part and affirmed in part by 93 Hawai#i 424,

5 P.3d 414 (2000) (adopting Justice Acoba’s concurring opinion in

its entirety).

            Permitting the court to make a discretionary

determination as to whether to furnish the necessary transcripts,

in the identical situation where the public defender’s office

would be required to furnish the transcripts, could also raise

equal protection concerns.24       Thus, whether an indigent defendant
      23
            Where a request for transcripts is made in an untimely manner
without adequate reason and results in a motion for continuance of trial, the
court maintains its discretionary authority to determine the appropriate
disposition of the motion.
      24
            Equal protection concerns would appear to favor requiring the
court to furnish transcripts in a situation where the public defender’s office
is obligated to furnish transcripts, without conditioning such furnishing upon
financial considerations. Cf. Mayer v. City of Chicago, 404 U.S. 189, 195
                                                                (continued...)


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is represented by the public defender’s office or by court-

appointed counsel, once it is determined that transcripts are

“necessary for an adequate defense” and the defendant is unable

to pay, the transcripts are required to be furnished.

            In making the determination as to whether requested

transcripts are necessary for an adequate defense, the court

should give due consideration to the recommendations of defense

counsel, who may be in the best position to determine whether

transcripts are necessary for an adequate defense.25            See HRPP

Rule 44(b)(ii) (2011) (requiring court-appointed counsel to

submit motion requesting transcripts and declaration or affidavit

showing cause as to why the motion should be granted).26            Cf.

Russell, 289 N.E.2d at 108 (“a transcript which is of little



      24
       (...continued)
(1971) (“the State must provide a full verbatim record where that is necessary
to ensure the indigent as effective an appeal as would be available to the
defendant with resources to pay his own way”); Roberts v. LaVallee, 389 U.S.
40, 42 (1967) (per curiam) (“Our decisions for more than a decade now have
made clear that differences in access to the instruments needed to vindicate
legal rights, when based upon the financial situation of the defendant, are
repugnant to the Constitution.”); Douglas v. California, 372 U.S. 353, 355
(1963) (“For there can be no equal justice where the kind of an appeal a man
enjoys depends on the amount of money he has.”) (quotation marks omitted);
Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“Destitute defendants must be
afforded as adequate appellate review as defendants who have money enough to
buy transcripts.”).
      25
            In the analogous situation where a defendant is represented by the
public defender’s office or by private counsel, counsel has the sole authority
to determine that the transcripts are necessary for an adequate defense and to
furnish the transcripts under HRS § 802-7.
      26
            Counsel has a duty to make a good faith evaluation as to whether
the transcripts are necessary for an adequate defense.


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value to the State in preparation of its case might be of great

value to the defense in preparation of its case”).

                                    D.

          Having determined that the circuit court erred by

failing to provide Scott with the written transcript or DVD of

his codefendant’s trial, it remains to be decided whether this

error mandates vacating Scott’s conviction and remanding for a

new trial or whether a harmless beyond a reasonable doubt

standard should be applied.

          In Mundon, the court held that the ICA erred in

concluding that the trial court’s failure to provide Mundon with

the written transcripts of his prior proceedings was harmless

error, as “Mundon was not required to show that he was prejudiced

by proceeding to trial without the written transcripts[.]”             121

Hawai#i at 358, 219 P.3d at 1145.        Thus, Mundon appears to

require automatic reversal when an indigent defendant is

wrongfully denied the transcript of his or her prior proceeding.

          Other courts have similarly held that “the erroneous

denial of an indigent defendant’s motion for a free transcript of

a prior trial requires automatic reversal.”          People v. Hosner,

538 P.2d 1141, 1148 (Cal. 1975) (in bank).         See Kennedy v.

Lockyer, 379 F.3d 1041, 1053 (9th Cir. 2004) (“Where the state

completely fails to provide an indigent defendant with a



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transcript of a mistrial for use in connection with a second

trial, we would likely find a structural error, requiring

automatic reversal.”); Turner v. Malley, 613 F.2d 264, 266-67

(10th Cir. 1979) (holding that Britt requires automatic reversal

where the state fails to provide defendant with transcript of

first trial for use at second trial and fails to show alternative

device); United States v. Pulido, 879 F.2d 1255, 1259 (5th Cir.

1989) (“On balance, we conclude that a harmless error analysis

would not be appropriate in this case . . . . [W]e note that it

would be an unjustifiable waste of appellate resources to require

an exhaustive comparison of trial transcripts in every case in

which a transcript has been denied.”); United States v. Talbert,

706 F.2d 464, 471 (4th Cir. 1983) (reversing defendants’

convictions “because the government did not provide the

defendants with a copy of the transcript of their first trial”).

          The California Supreme Court in Hosner explained that

this per se standard was preferable because of the difficulty of

assessing the prejudicial effect of the denial of a transcript of

the defendant’s prior proceedings.        538 P.2d at 1148-49.      In that

case, the court found that the trial court erred by denying the

defendant’s motion for a transcript of his first trial, which

ended in a mistrial.     Id. at 1143.     In deciding whether this

error mandated reversal of the defendant’s conviction, the court



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first explained that the denial of a transcript from a prior

trial “infects all the evidence offered at the latter trial”:
            The denial of the transcript does not merely taint some
            specific items of evidence, leaving other items which might
            of their own force provide overwhelming evidence of guilt
            beyond a reasonable doubt. Rather, in the manner of the
            denial of the assistance of counsel, the denial of a
            transcript of a former trial infects all the evidence
            offered at the latter trial, for there is no way of knowing
            to what extent adroit counsel[,] assisted by the transcript
            to which the defendant was entitled[,] might have been able
            to impeach or rebut any given item of evidence.

Id. at 1148 (emphasis added).

            The court then observed that assessing the prejudicial

effect of an erroneous denial of a prior trial transcript would

require the appellate court to speculate to an unacceptable

degree:
            Even if an appellate court were to undertake the
            extraordinary burden of reviewing the records of both
            trials, the court would be able only to hypothesize what use
            at the latter trial could have been made of the transcript
            of the former trial. While the assessment of the
            prejudicial effect of error always requires some speculation
            by the reviewing court as to how an average jury would have
            decided the case in the absence of the error, an entirely
            new level of compound conjecture would be entailed in a
            court's first speculating what evidence might have been
            impeached, and how, and only then speculating how the trier
            of fact would have reacted to the speculated efforts at
            impeachment.

Id. (emphasis added).      Based on this analysis, the court reversed

the defendant’s judgment.27      Id. at 1149.

            In the context of an indigent defendant’s right to the

transcripts of a codefendant’s trial, the Illinois Appellate

      27
            The Hosner court expressly “reserve[d] decision [on] whether the
per se rule of prejudice . . . should also be applied to an erroneous denial
of a transcript of some other prior proceeding.” Id. at 1149 n.7.


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Court in People v. Russell held that the trial court erred in

denying the indigent defendant’s request for the transcript of

his codefendants’ trial, and consequently vacated the defendant’s

conviction and remanded for a new trial with instructions that

the State provide the defendant with the required transcript.

289 N.E.2d 106, 108 (Ill. App. Ct. 1972).         On the other hand, a

harmless error standard has also been applied in a case involving

the trial court’s denial of an indigent defendant’s request for a

codefendant’s trial transcripts.       State v. Razinha, 599 P.2d 808,

811-12 (Ariz. Ct. App. 1979) (trial court’s denial of

codefendant’s transcript was harmless beyond a reasonable doubt

where key witness’s testimony at defendant’s trial supported

defendant’s theory of case); see United States v. Bamberger, 482

F.2d 166, 168-69 (9th Cir. 1973) (any error in denial of

transcript of codefendant’s second trial was harmless, where

defendant was provided transcript of codefendant’s first trial,

defense counsel cross-examined eyewitness on inconsistencies with

statements made at first trial and in investigative reports, and

defendant “could neither reasonably hope for, nor realistically

gain, more telling or damaging impeachment tools from the

transcript he was denied”).

          In this case, we need not decide whether the applicable

standard upon finding that the trial court erroneously denied an



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indigent defendant’s request for the transcripts of a

codefendant’s trial is a per se standard resulting in vacating

and remanding for new trial, or a harmless beyond a reasonable

doubt standard.    Under either standard, remand for a new trial is

required in this case.     Although Jefferson’s trial transcripts

are not available in the record on appeal, the denial of the

requested transcripts was clearly not harmless beyond a

reasonable doubt, as Jefferson and Scott were codefendants whose

charges arose out of the same incident and involved identical

facts and the same critical witnesses.

           As noted, Kerry was the State’s primary witness against

Scott, and her version of the events substantially diverged from

Scott’s testimony.    Under these circumstances, where the

credibility of a key witness is of critical importance, providing

defense counsel with a transcript of the witness’s prior trial

testimony assumes even greater significance.          Cf. Riggins v.

Rees, 74 F.3d 732, 738 (6th Cir. 1996) (transcripts of

defendant’s prior trials “assumes even greater importance in

close cases”).    The probability that having the transcripts of

Jefferson’s trial would have affected defense counsel’s strategy

and facilitated effective cross-examination precludes the circuit

court’s error from being declared harmless beyond a reasonable

doubt.   Cf. Asfaw v. Commonwealth, 692 S.E.2d 261, 265 (Va. Ct.



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App. 2010) (probability that defense counsel could have

challenged witnesses’ testimony with inconsistent statements made

at preliminary hearing “precludes the trial court’s error from

being declared harmless beyond a reasonable doubt”).

           Therefore, under either a per se standard or a harmless

beyond a reasonable standard, the circuit court’s erroneous

denial of Scott’s requested transcripts requires the case to be

remanded for a new trial.

                                    V.

           Accordingly, we vacate the ICA’s January 15, 2013

Judgment on Appeal and the circuit court’s August 30, 2010

Judgment and remand the case for a new trial consistent with this

opinion.



Kevin O’Grady,                            /s/ Mark E. Recktenwald
for petitioner
                                          /s/ Paula A. Nakayama
Linda L. Walton,
for respondent                            /s/ Sabrina S. McKenna

                                          /s/ Richard W. Pollack




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