* District Judge of the Northern District of Illinois, sitting

by designation.

 

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-7691

LARRY FISHER,

PETITIONER-APPELLEE,

VERSUS

EDWARD HARGETT,

 Superintendent, 

Mississippi State Penitentiary

RESPONDENT-APPELLANT.

Appeal from the United States District Court

for the Southern District of Mississippi

( July 26, 1993 )

Before EMILIO M. GARZA, DeMOSS, Circuit Judges, and ZAGEL*,

District Judge.

DeMOSS, Circuit Judge:

Petitioner Larry Fisher is currently in the custody of the

Mississippi Department of Corrections. Convicted of rape on January

31, 1986, Fisher received a life sentence which he appealed to the

Mississippi Supreme Court. When the Mississippi Supreme Court

affirmed his conviction on September 14, 1988, Fisher instituted
2

the present federal habeas corpus proceeding. The district court

agreed with Fisher that Mississippi's failure to provide him with

a free full transcript of his second trial for the capital murder

of an earlier victim violated his constitutional right of equal

protection. Though the district court rejected Fisher's second

claim that his constitutional right to a speedy trial had been

violated, it granted Fisher's Petition for Habeas Corpus. The State

of Mississippi filed this appeal from that order. We reverse the

grant of habeas corpus. 

I. FACTS AND PROCEDURAL HISTORY

On February 11, 1983, Patsy Jo Rivers was raped in Lauderdale

County, Mississippi. On June 4, 1983, Meridian Police set up a

decoy operation in which they caught and arrested Fisher. On the

next day, Ms. Rivers identified Fisher in a line-up. On December 1,

1983, Fisher was formally indicted for the rape, in addition to two

separate capital murder charges for the deaths of Melinda Gail

Weathers and Carol Formby. On December 5, 1983, the state trial

court arraigned Fisher on all three indictments.

On April 16-21, 1984, Fisher was tried, convicted, and

sentenced to die for the capital murder of Ms. Weathers. Fisher

appealed and on October 16, 1985, the Mississippi Supreme Court

reversed the murder conviction and remanded the case for a new

trial with directions for a change of venue. On December 9, 1985,

Fisher's remanded trial commenced. On December 13, 1985, the jury

acquitted Fisher of the charge of murder.
3

On January 30, 1986, the Rivers rape trial commenced. Fisher,

as an indigent, was represented by appointed counsel, just as he

had been on each of the two earlier occasions. The state used three

witnesses that had testified in both previous murder trials. The

testimony of these witnesses in the prior murder trials was minimal

and limited to Fisher's modus operandi in such murder. Though

Rivers was one of these three common witnesses, her testimony in

the two earlier trials never mentioned the rape. However, as the

rape victim, Rivers was the state's main witness in the present

case. 

Fisher requested a full free transcript of the second trial,

which the State refused. He had been given a transcript of the

first capital murder trial; and the State also gave him all

discovery materials within its possession, including written

statements by all of the state's witnesses. Moreover, his counsel

obtained a full transcript of the rape trial's preliminary hearing

in which Rivers had testified. The state judge permitted him to use

this transcript during the rape trial for impeachment purposes. At

the close of the trial, the jury convicted Fisher of rape and

sentenced him to life imprisonment. Fisher appealed and the

Mississippi Supreme Court affirmed his conviction on September 14,

1988.

This habeas corpus petition is based on Fisher's claim that

the State's denial of a free transcript of the second trial

violated his constitutional right to equal protection. In the

alternative, Fisher argues that his constitutional right to a
4

speedy trial was violated by the length of time between his arrest

on the rape charge and his trial. 

II. DISCUSSION

A. Constitutional Right to a Free Transcript

Fisher claims that a full free transcript of the second

capital murder trial was necessary for his defense in the rape

trial. He argues that the state's use of witnesses common to all

three trials made this transcript a necessity to his new counsel as

both a discovery tool and as a means of impeaching those witnesses.

The district court accepted this argument and found that the state

trial court's refusal to furnish Fisher, an indigent, with the

requested transcript violated the holding of the Supreme Court's

opinion in Britt v. North Carolina, 404 U.S. 226 (1971).

In Britt, an indigent defendant requested a transcript from an

earlier mistrial to prepare for a subsequent retrial one month

later on the same charge, with the same judge, counsel, and court

reporter. The Supreme Court established a two-prong test to

determine a defendant's need for the transcripts of a prior

mistrial proceedings: (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. Though the

defendant in Britt failed to satisfy this second element, the

Court's opinion stands for the rule that indigent defendants have

a constitutional right under the equal protection clause to receive
5

a free transcript of prior mistrial proceedings unless they are

provided an adequate alternative. Id. 

The question of first impression before us today is whether

the state is constitutionally required to provide an indigent

defendant with a full free transcript of a prior trial on a

different charge. 

Fisher answers the question affirmatively, relying heavily on

the district court's analysis and interpretation of Britt. In

Britt, the Supreme Court declared that "[o]ur 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 the particular case." Britt, 404 U.S. at 227. As a

result, the district court found that Fisher had demonstrated

sufficient need for the trial transcript from his second capital

murder trial. According to the district court, the transcript could

be used to familiarize the new attorney with the prior proceedings

and to impeach witnesses who testified in both the murder retrial

and the River's rape trial. As to Britt's second requirement, the

district court relied on the Supreme Court's statement that "[a]

defendant who claims the right to a free transcript does not, under

our cases, bear the burden of proving inadequate such alternatives

as may be suggested by the State or conjured up by a Court in

hindsight." Britt 404 U.S. at 230. Therefore, the district court

held that Fisher was not required to prove that he attempted to

take advantage of all possible substitutes for the trial transcript

to be entitled to relief.
6

This Court has held that "[a]n indigent defendant has both a

constitutional and a statutory right to a free transcript of prior

proceedings if it is reasonably necessary to present an effective

defense at a subsequent proceeding." United States v. Pulido, 879

F.2d 1255, 1256 (5th Cir. 1989)(citing United States v. Johnson,

584 F.2d 148, 157 (6th), cert. denied, 440 U.S. 918 (1978)); see

also, Tague v. Puckett, 874 F.2d 1013, 1014 (5th Cir.

1989)(interpreting Britt to require a state furnished transcript

when needed for an effective defense). Furthermore, we have

interpreted Britt to mean that "a court must assume that a

transcript of a prior mistrial is valuable to the defense. Thus, .

. . [a] case turns on the availability of adequate alternatives to

a transcript." Pulido at 1257 (citations omitted).

The authorities cited by both the district court and Fisher in

support of their position all address a request by a defendant for

a transcript of a prior mistrial for use in a subsequent retrial

for the same offense. The State argues that Britt does not extend

to this case, which involves a request of a transcript of a prior

case (not a mistrial) for use in a subsequent case for an offense

involving a different victim of a different crime that occurred in

a different place and at a different time. 

The State emphasizes that Britt and its progeny (Pulido and

Tague), addressed the limited question of whether a free transcript

of a prior mistrial was constitutionally required for use in a

subsequent retrial for the same offense. We are referred to our

statement in Pulido that "[t]his right extends to the case of a
7

mistrial followed by a subsequent prosecution but has been limited

by the Supreme Court according to criteria with somewhat hazy

parameters." Pulido, 879 F.2d at 1256 (emphasis added). The State

adds that the cases that the Supreme Court cites in footnote 1 of

Britt all involve a request for a free transcript for use in an

appeal or some other type of review of the same case. According to

the State, Britt is therefore limited to a specific context, which

is not applicable to this case. Lastly, the State argues that even

if the Britt test has been met, then any error which may have

occurred is harmless.

1. Value of Transcript

If we apply Britt's requirements to the facts of the present

case, the logic underlying the Britt test breaks down. For example,

in the case of a mistrial and subsequent trial on the same charge,

the Supreme Court held that the first Britt requirement concerning

the value of the transcript to a defendant should be assumed.

Britt, 404 U.S. at 228. Their rationale was that a mistrial

becomes, essentially, a dry run of the second prosecution. In that

context, the transcript is invaluable in preparing for the second

trial. When we review the facts of a case where the subsequent

proceedings involve a different charge, this automatic assumption

is no longer sound.

In the present case, only three of the 29 witnesses that

testified for the State in the Weather's capital murder case also

testified in the rape trial. Pat Rivers, the victim in the rape

case, gave only limited testimony in the murder trial.
8

Specifically, her testimony was limited to her description of being

pulled over by Fisher flashing his headlights from his automobile.

Rivers did not testify to having been raped by Fisher. At the rape

trial, however, Rivers testified unequivocally that Fisher raped

her. This difference in testimony is significant in that the

requested transcript would not have enabled Fisher to impeach

Rivers in the rape trial regarding the rape itself because her

testimony regarding the rape was being offered for the first time.

There is little doubt that River's testimony in the murder

trials was of minor importance. Fisher's own attorneys admitted at

the state court hearing on the request for the transcript that they

knew little about the rape. These attorneys, who had represented

Fisher at the murder trials, further testified that no evidence of

the rape was introduced in either of Fisher's murder trials. Thus,

the transcript of Rivers' testimony would have been of little value

to Fisher in the rape trial, despite the fact that River was now

the State's main witness.

The second common witness, Detective House, testified at the

murder trial about his participation in a decoy operation, which

resulted in the arrest of Fisher four months after the rape of

Rivers. Even if Fisher had been able to test House's testimony in

the rape trial using the requested transcript, it would have only

been as to a minor point surrounding the arrest and not the rape

itself.

The third common witness, Marsha Pigott, testified that Fisher

had pulled her over by flashing his headlights and told her that
9

her license plate tag was falling off. She admitted to giving

inconsistent prior testimony as to Fisher's description; therefore,

"impeachment would have added little since [Pigott] admitted that

[her] earlier testimony may have differed." United States v. Smith,

605 F.2d 839, 845 (5th Cir. 1979). Indeed, Pigott was in fact

impeached not only in both murder trials but also in the rape

trial.

In our view, the importance of a prior trial transcript on a

different charge is likely to be minimal. The limited testimony of

the three common witnesses in this case played a minor role in the

murder trials and did not vary much from trial to trial. As a

result, we cannot infer that the requested transcript was

constitutionally indispensable to Fisher's defense, especially in

light of the fact that the State furnished him with a transcript of

the first murder trial. Consequently, we conclude that the

assumption that a requested transcript of a prior proceeding is

automatically valuable does not extend beyond the narrow confines

of Britt. We do not claim that a free transcript of the prior

proceeding could not have been helpful to Fisher in some way.

Nonetheless, we do not feel it is constitutionally required when

the preceding trial was for a different offense involving a

different victim at a different time.

2. Availability of Adequate Alternatives

The second requirement of Britt is whether adequate

alternatives to the transcript existed. We hold that Fisher had

adequate alternatives.
10

In Pulido, we stated that it is infrequently determined that

available alternatives are adequate. Pulido, 879 F.2d at 1257.

However, it must be remembered that in Pulido we were referring to

a transcript of a prior mistrial of the same offense. In the

present case, the adequacy of alternatives requirement is easy to

satisfy. In Britt, the Supreme Court's emphasis upon the

availability of adequate alternatives before a free transcript

could be withheld, 404 U.S. at 228-29, does not appear to require

an equally valuable substitute. All that is constitutionally

required is an adequate alternative. And a bare minimum appears to

fulfill this requirement. In Britt, the Court held a court

reporter's notes, which the court reporter would have read back to

the defendant if requested, satisfied the requirement of adequacy.

We interpret this holding to mean that an adequate alternative need

not be a virtual substitute for a transcript's role in preparing a

defense.

In determining what constitutes an adequate alternative, the

availability of discovery, or the lack thereof, is an important

factor. In the present case, the State voluntarily made discovery

available to Fisher. And it was the preliminary hearing record, not

the requested transcript, which was the "virtual dry run of the

entire prosecution's [rape] case." Britt 404 U.S. at 232.

Accordingly, in the present case, an adequate alternative to a

transcript existed when full discovery was made available to the

defendant, and the defendant had a copy of the transcript of the

preliminary hearing. 
11

Therefore, we agree with the state court that there were

adequate alternatives to the requested transcript. The state court

found that the following alternatives available to Fisher were

adequate and sufficient for an effective defense: (i) the

transcript of the first capital murder trial, and (ii) the ability

of Fisher's new attorney to consult with his prior attorneys and

other persons present at the second capital murder trial.

There was a strong basis for the state court's finding.

Fisher's counsel conceded that the transcript of the first murder

trial contained "essentially identical" testimony as that contained

in the requested transcript. Additionally, Fisher's counsel

admitted that he had discussed the second murder trial with other

persons present at that trial. Another source of information was

the previously discussed discovery which the State made available

to Fisher under court order. 

Finally, at no stage of the post-conviction proceedings has

Fisher offered proof of telling discrepancies between the trial

testimony here and the testimony in the second murder trial. Fisher

could have offered the evidence of his prior counsel, or a court

reporter or a bystander at the second murder trial to prove his

point. Nor did Fisher request, as he could have, that the district

court exercise its discretion and order that the prior trial

transcripts of the three witnesses be provided under the terms of

the Criminal Justice Act. See 18 U.S.C. §§ 3006A(e)(1) and

3006A(a)(2)(B). Fisher's case might be stronger if he had attempted

to make it less theoretical.
12

In summary, it appears that the requested transcript would not

have substantially aided Fisher in connection with his trial on the

rape charge, and that there were sufficiently available

alternatives, which Fisher utilized, that fulfilled the same

function as the requested transcript. Accordingly, we hold that the

state court did not err in refusing to require the State to furnish

Fisher with a free full transcript of the second murder trial.

 B. Speedy Trial

Fisher also alleges that his constitutional right to a speedy

trial was violated and therefore that the district court erred in

denying his claim. The State responds that Fisher has waived his

right to raise this argument on appeal because he failed to file a

timely appeal of the district court's decision. Nonetheless, we

shall address Fisher's claim. 

The leading case on the speedy trial issue is Barker v. Wingo,

407 U.S. 514 (1972). In Barker, the Supreme Court applied a

balancing test which enumerated four considerations: (1) length of

the delay, (2) reason for the delay, (3) defendant's assertion of

his right to a speedy trial, and (4) prejudice resulting to the

defendant. Barker, 404 U.S. at 530.

1. Length of Delay

The speedy trial clock begins to tick when the defendant is

arrested and held to answer for a criminal charge. United States v.

Marion, 404 U.S. 307, 320-21 (1971). In the present case,

approximately 32 months elapsed between Fisher's arrest for the

River's rape and the beginning of the trial.
13

2. Reason for the Delay

The trial court entered an order of continuance pending the

outcome of Fisher's appeal of his death sentence after his murder

conviction in the original murder trial. As Fisher concedes, the

majority of the delay--approximately 19 1/2 months--consisted of

the time between the entry of the court's continuance order and the

beginning of the trial. This Court held, in an analogous situation,

that a state was justified in choosing "not to expend scarce

judicial and prosecutorial resources in trying a defendant facing

a death sentence, the execution of which would have eliminated the

need for any trial at all." Jamerson v. Estelle, 666 F.2d 241, 244

(5th Cir. 1982)(quoting Turner v. Estelle, 515 F.2d 853, 856 (5th

Cir. 1975), cert. denied, 424 U.S. 955 (1976)). Applying Jamerson

to the present case, we find that the delay was justified.

3. Fisher's Assertion of the Right

In Barker, the Supreme Court held that the failure to assert

the right to a speedy trial "will make it difficult for a defendant

to prove he was denied a speedy trial." Barker, 407 U.S. at 532.

The trial court's Continuance Order stated that the rape case was

continued "until further motions or requests of either the

defendant or the state." Fisher filed no motion asking to go to

trial on the rape case. Fisher claims he knew nothing of the

continuance, did not agree to one and was not served with a copy of

the order. We are unpersuaded by his argument and find that this

prong of the Barker test weighs in favor of the State.
14

4. Prejudice to Fisher

There are three interests to consider in determining whether

Fisher was prejudiced by the delay: (a) preventing oppressive pretrial incarceration, (b) minimizing the anxiety and concern of the

accused, and (c) limiting the possibility that the defense will be

impaired. Barker, 407 U.S. at 532. 

In our view, Fisher was not prejudiced by the delay. Fisher

was incarcerated pursuant to his murder conviction, not because he

was awaiting trial on the rape charge. His anxiety over the

upcoming rape trial was probably minimal given that he was facing

the death penalty. And Fisher does not point out any way in which

the delay impaired his defense. Fisher contends, however, that the

delay in the trial was so great that prejudice is presumed. 

In Doggett v. United States, U.S. , 112 S. Ct. 2686,

120 L. Ed. 2d 520 (1992), the Supreme Court spoke on this issue. In

Doggett, which involved a delay of eight-and-one-half years, the

Court held that the defendant's right to a speedy trial had been

violated even though he could not point to any particular prejudice

he had suffered as a result of the delay. In reaching its

conclusion, the Court relied on the fact that six years of the

delay was attributable to the Government's negligence. In the

present case, there is a much shorter delay and the majority of the

delay was caused by the trial court's interest in preserving

judicial resources, not negligence on the part of the State.

Consequently, we agree with the district court's conclusion

that Fisher's speedy trial claim must fail.
c:br:opin:92-7691p.mm2 15

III. CONCLUSION

We hold that the district court erred in finding that the

State was constitutionally required to provide Fisher with a free

full transcript of his second murder trial. Accordingly, we REVERSE

the district court's grant of habeas relief.