*1 Commonwealth Britt. vs. Samuel cases1).
(аnd five companion May 1, July 14, 1972. Suffolk. Tauro, C.J., Reardon, Quirico, Braucher,
Present: & Hennessey, JJ. Practice, Criminal, Recording proceedings, cause hear- of Probable Court, ing. hearing. Recording proceedings, cause Probable District of protec- Law, law, Equal process Constitutional Due tion of laws. hearing A has been com- in a District Court as to crime whether guilty mitted and there is to believe the defendant felony stage” process of a chusetts. in Massa- is a “critical the criminal [330-331] appropriated Inasmuch funds for as the Commonwealth has not stenographers proceedings Courts record criminal before District transcripts price, and to have for a the Com- thereof available required by monwealth was not Unitеd the Fourteenth Amendment to provide typewritten States Constitution free indigent brought of Court and senting. before a District who was felony. J., [329-331] with a dis- Reardon, In the absence constitute an abuse of discretion. of a valid reason for the denial of a motion witnesses present, at a permission denial of the motion would criminal [332] to record proceeding electronically at which ordinarily no Complaint received Municipal and sworn to Court City April 26, Boston on Indictments found and returned in the Superior Court on September 15, 1971, and September 22, 1971.
Following motions of the defendants dismiss indictments, cases were reported by Smith, J.
Wallace W. Sherwood for the defendants.
Alvan for the Brody Commonwealth. companion against One of the cases Samuel and four Britt against Taylor. Taylоr of against appealed Joel ofOne the cases was Superior Municipal City to the Court from the of Boston finding guilty, why after a and the record does not show that case report. was included in the Lloyd
Richard K. Donahue & L. Weinreb, for the Mas- sachusetts Bar Association, amicus curiae, submitted a *2 brief. Harshbarger,
L. Scott for Lawyers’ Committee MelvynH. Zarr, for Massachu- Civil Under Rights Law; setts Law Reform Institute; Rеuben Goodman, for Mas- Feinberg, Matthew H. sachusetts Defenders Committee; for Civil Liberties Union of Massachusetts; and Robert Spangenberg, L. for Boston Legal Assistance Project, curiae, joined in a brief. amici
John M. Mullen, amicus curiae, submitted a memo- randum. Nordlinger,
Edward T. Crossen & Louis M. Assistant District Attorneys, submitted a memorandum. J. These cases are before us an inter-
Braucher, locutory rеport under § L. provisions 278, 30A, G. c. inserted by St. 1954, c. 528. There a hearing was below on the defendants’ motions to dismiss the indictments. “(a) The judge reported the two Is following questions: the Commonwealth by the Due required Process and Equal Protection clauses the Fourteenth Amendment to the United Constitution, States XI and, Articles and XII of the Declaration of of the Rights Constitution of Massachusetts to provide free typewritten transcript indigent who is brought before the (b) district court with a felony, if an in- and, digent defendant has not been such given a transcript, may the Superior Court, upon the defendant’s applica- tion to the Superior Court, order the district court to con- de nova duct a and provide and a type-written of the proceedings?”
For the of this purposes report, the parties have sub- mitted two statements of facts, which we agreed summar- ize in relevant part.
Both defendants were arraigned the Municipal Court Roxbury District on felony Both charges. were th§ found to be indigent, and counsel from the de- Roxbury fenders committee was appointed for each. In Common- wealth vs. of his Taylor, defendant, inception probable hearing, cause moved for a The He proceedings. orally motion was denied. then moved under Municipal Chapter Court “to proceed 276, Sections and 40 of M. A. and G. L. direct that testimony the witnesses be reduced to and writing This motion was The at the signed.” denied. defendant permission electronically same time moved for record This denied. witnesses. motion was also cause hearing proceeded probable was found hold the for the grand jury. vs.
In the in- Britt, defendant, at of his ception hearing, moved “to have *3 the proceedings transcribed expense the Com- or County.” monwealth Suffolk This motion was denied. The proceeded and hearing probable cause was found to hold the defendant for the grand jury.
The indicted the on grand jury a Taylor of assault charge with intent to commit robbery armed and on charges robbery, two of armed and the defendant on Britt charges larceny rape. motions dismiss filed both by defendants in the Su- pending perior Court.
1. The defendants and the amicus curiae in ar- briefs that guing Commonwealth is re- constitutionally to furnish free quired a a transcript prоbable cause his hearing indigent defendant upon rely request, on generally the line cases with v. beginning Griffin (where Illinois, 351 U. S. the Supreme Court “[tjhere stated that can be no justice where the equal kind of trial a man depends on gets money amount of Roberts v. has”), he and particularly on case LaVallee, the Roberts In York case, a New defendant was robbery, as- larceny, and trial, sault. At his for free of a request a transcript prior preliminary was A hearing denied. New York (N. 206) § statute Y. Code Grim. Proc. provided that State furnish would a transcript pay- hearing ment of certain fee. The Court held Supreme that protection statute denied defendants of the laws.2
The Roberts
interpretations.
case has
varied
produced
Statеs,
(D.
Gardner United
In
407 F. 2d
C.
Cir.),
said,
it was
view of the constitutional
status
“[I]n
Roberts by
accorded an
to a
indigent’s right
transcript
every
LaVallee
...
it now
essential
that
appears
pre
re
transcribed,
be
whether
court
liminary hearing
any
or
of whether
porter
by tape recording,
regardless
contrast,
is made.”
transcription
By
for
request
People
Hubbard,
(1969),
the Il
107 Ill.
2d 79
App.
linois Court held thе Roberts case
to an in
inapplicable
of a
pre
defendant’s claim to a free
digent
no such statute in
because there “is
liminary hearing
prelimi
Illinois
provides
furnishing
which
for a fee or otherwise.” Ac
nary
People
Peo
Patterson,
342, 347;
131 Ill.
2d
cord,
App.
ple
Williams,
285. The same
Ill.
2d
App.
in Williams
Supreme
view was taken
the Alabama
Jasper,
v
.
the court
237, 238, 239,
287 Ala.
where
in 1969 repealed
noted that the Alabama
had
Legislature
statutory
preliminary
requirement
Cadogan
ex rel.
United States
be made. See
hearings
Gathright,
(2d Cir.) ; Sharbor v.
LaVallee,
Like Alabama and this Commonwealth in the Dis- statute the of recording requiring or for a fee transcripts trict Courts and of furnishing § 9IB, 1965, c. inserted St. 221, otherwise. But G. L. a defendant to hire a 585, stenographer c. doеs permit “at his own when a proceedings expense” and record the Common- stenographer present. court appointed wealth Shea, 356 If 358, Mass. 360-361. we were to pro- hold that statute denies to the equal that to consider laws, we should then have tection Ap Supreme decision, York to the New Court Prior Court statute, stating, peals tutionally consti “When thе State had struck down this statutorily right, the exercise a defendant or affords ability pay.” upon defendant’s thereof cannot be conditioned Montgomery, (1966). People 18 N. Y. 2d part would be save whether the intention legislative Dalli effect. Compare the statute or to it of all deprive Board Educ. pres- In none of the defend- ent record show that the cases, does the however, like room, in ant had a the court present Shea his case, indigence pre- in or that vented him from securing presence stenographer. The are not entitled of the laws poor protection to better than the rich. Hence no as to de- presented question nial of reason of the protection of the laws statute.
2. The contentions made in cases raise issues these hear- potential impact not limited to but in ings almost all criminal affecting proceedings and District Courts. We all agree stenographers are desirable all criminal trials highly at and however, all courts. Unfortunately, cost stenographers money, and the has not Legislature appropriated funds District stenographers Courts. “The district courts . . . are authorized only to employ in trials stenographers by juries six, and although parties may retain their stenographers at own expense, they are not . . An commonly used. . attempt to remedy this obvious In- deficiency long overdue.” terim Report of the Joint Special Committee Established Investigate Study Reform of the System, Judicial 1972 Hоuse Doc. No. 5685, at 23.
Moreover, “stenographers not available in suffi- cient numbers at the present time, to staff the 72 district courts and the Boston Id. at Municipal Court.” As the Solicitor General recently informed the Supreme the United States, “Court . . . are reporters one of our worst bottlenecks.” Argersinger Hamlin, J.). Powell, (concurring opinion Special Joint Committeе therefore suggested that “elec- tronic devices recording would seem to offer the most Report, supra, practical alternative.” Interim *5 One of important the functions the District Courts is in system our “two-tier for adjudicating less serious v.
Commonwealth Kentucky, cases.” Colten 112- 104, criminal v. U. S. Commonwealth, Mann v. 661. 113. 359 Mass. Compare the Colten In out that pointed the case, Supreme by some “do trial we, States, provide like other not in tier of and “do not record the lower jury” proceedings” for such courts. “Two are asserted justifications trial in this burdens state first, day increasing tribunals: in interest of designed, these courts are the judiciaries, State, provide speedier both the defendant and the in the crim- costly may less than be adjudicatiоns possible range where the full inal courts of general jurisdiction if available; second, the constitutional guarantees his first satisfied with the results of not new in a he has unconditional to a trial right trial the or the' superior court, unprejudiced courts.” in the inferior outcome system” cases do not involve the “two-tier present in cases which the felony
but cause prоbable hearings The dis do not final jurisdiction. District Courts have in such hear or not attorney may may participate trict ; many represented cases Commonwealth ings A decision that attorney. officer who is not an police a prosecu there is cause does not assure further probable there is no cause does tion; probable decision that Ma Commonwealth preclude prosecution. further Byrne, honey, Burhoe v. 510, 331 Mass. (D. Mass.). Arsenault 410-411 F. See Supp. 408, Commonwealth, nom. reversed sub 575, 582, Massachusetts, Arsenault In cir 5. most probable defendant has no to a right cumstances seek an indictment may hearing; prosecutor cause has been even after the defendant hearing without such Nason, Commonwealth Mass. arrested. Compare probable Traditionally, irregularities no for dismissal ground furnished hearing cause Tinkham, Gray indictment. Harvey, 13-14. is a “critical Nevertheless, because of in- partly criminal process, stage” *6 331 Commonwealth opportunity discovery
cidental
for
of the Commonwealth’s
case and for
preparation
impeach
Commonwealth’s
witnesses if
at trial
is
testimony
their
inconsistent
Coleman v.
their
preliminary hearing.
v.
Alabama, 399 U.
Arsenault
S.
9-10.
Compare
Commonwealth, 353
575, 578, 582,
Mass.
reversed sub
nom. Arsenault Massachusetts,
5. A
U.
reli-
S.
able record of what
is of
an impor-
discovered
course
Common-
tant
aspect
that
opportunity.
Compare
wealth v. A
Juvenile, If
Mass.
a court
appointed
made
had
such a record there
would be no
made
that it should now be
available
question
Roberts LaVallee,
Possehl, 575, 577; King, Mass. 495, 498-499. But we think is a valid there dis- tinction between the situation where a records State in the first proceedings instance and makes tran- scripts available the defendants who can afford them, and the situation where the State allows a de- merely fendant to record the for himself. Once a State has appropriated to pay funds has stenographers, committed itself to record the has proceedings, and made for price, available there obvious denial of protection if distribution of transcripts is restricted to defendants with sufficient means. But where no such been commitment has made, all defendants are treated alike and is no there denial of equal рrotec- tion. We do not understand the Supreme Court to have said that every preliminary hearing must be transcribed. If we were hold that these defendants are entitled to stenographic transcripts, not, we could in view of the existing shortage trained court reporters, assure equal those treatment to all similarly situated. think We principle applicable “the Fourteenth Amendment does not a State require to furnish an indigent with that a every luxury wealthy litigant might conceivably purchase.” Gardner choose to California, J.). 367, 372 (dissenting opinion Harlan, 3. In the Roxbury Municipal the defendant Taylor permission electronically moved to record testimony of the witnesses. This motion was denied. Both the defendants and seem the Commonweаlth to sug that electronic devices gest recording may provide *7 Gardner viable alternative to stenographic recording. See v (D. . United States, Cir.). 407 2d 1268 F. C. The Joint Special report Committee the above quoted made a similar suggestion. Allowance of such a motion seems to be within of clearly power Com judge. Rule the Rules of the District as pare Courts аdopted motion, think denial We of such a made an indigent defendant at a proceeding which no is stenographer present, ordinarily abuse discretion unless some valid reason is No given. ques tion with respect electronic has been re recording ported us, and at least at this we cannot point tell whether is any there possibility resulting prejudice. therеfore do We further pursue whether question availability this alternative would affect a claim that denial of funds pay a denial of Mayer Chicago, protection of the laws. See Britt North Carolina, 404 U.S. 189,194-195; 226, 227, 229; Commonwealth DeSimone, Pa. note We that District Court Rule 46 was amended, effective June 1972, to electronic encourage recording.
4. We answer both of the us questions reported to “No,” and remand the cases to the Superior Court for trial.
So ordered.
J.
There is no
(dissenting)
from the
escape
Reardon,
practical difficulty
providing stenographers
and free
“at all criminal
indigents
trials and pro-
in all courts” as
ceedings
emphasized by the majority.
However,
majority opinion
seems to me a misreading
of Robеrts LaVallee,
U.
S.
One cannot dis-
miss
unavailability
its effect on
of cost or
ground
recently
As Mr.
Powell has
stenographers.
Justice
rule . . . the
stated,
the Constitution
requires
“[I]f
Argersinger
Hamlin,
immaterial.”
consequences
In the Roberts case a New York defendant charged his robbery, and assault was denied at trial larceny, for a request free hear prior preliminary ing. majority opinion refers to the New York stat ute under which a made could be by the State procured upon payment of a fee. The Roberts case holds the statute constituted a denial de fendant of the equal protection of the laws. The ma People Montgomery, jority opinion likewise refers to 18 N. Y. 2d 993, which emphasized that the exercise of a right afforded to a defendant by the State cannot be conditioned his upon ability to pay. That precisely *8 situation before us. Under the New York statute the State transcribed and furnished transcript to the defendants for a fee. Under our stat (G. ute § L. c. 221, 91B, by inserted St. 1965, c. 585), “may have the proceedings taken a sten by *1 ographer provided at his own expense.” Under both statutes the end result is the same. Under both statutes a defendant may be of a deprived needed simply because of his indigency status. Since the Com monwealth has seen fit to an grant important right defendants in criminal cases, it cannot interpose a finan cial obstacle to the exercise of that right.
It is possible, as however, the majority opinion sug- gests, that electrоnic recording devices be may a viable alternative to stenographic recording. See Reynolds, Alaska’s Ten Years of Electronic Reporting, Am. Bar Assn. J. 1080. Compare Boyko, The Case Against Elec- 1 It a fair indigence prevented inference that each defendant’s securing presence him from of a in the court room. I protection question hаve no doubt that properly before us. Reilly.
School Committee Boston Bar Assn. J. 1008. tronic Courtroom 57 Am. Reporting, difficulties foreseen practical This would obviate the Carolina, Britt v. North majority. Under steno- provided a defendant need not be with a if graphic transcript prior proceeding adequate exists. has the bur- alternative But the Commonwealth North Carоlina, Britt on this proof den issue. supra, can sustain Until the Commonwealth this I who is brought burden would hold that felony before a District Court with a entitled under clause of the Federal Consti- equal protection I to a free would proceedings. tution to us reported answer both “Yes.” questions Reilly Boston vs. P. Committee John School others. & July 14, May 4, 1972. Suffolk. Braucher, C.J., Reardon, Quirico, Tauro, &
Prеsent: Hennessey, JJ. Municipal Corporations, Equity Jurisdiction, Specific performance. Pleading Equity bargaining. and Prac- Board. Public Collective tice, Parties, Decree, Answer. bargaining dealing 178G-178N, collective G. L. c. §§ provisions municipal employees, specific mak- 178M and the § providing by municipal employees ing unlawful § strikes injunctive preclude penalty relief a criminal for strikes did not *9 agreed, against striking union had teachers who “engage members of a in, agreement, bargaining insti- not in their collective any gate, [337-339] strike.” or condone committee, Naming municipal rather than its individual a school seeking injunctive members, equity plaintiff relief in a bill as deprive striking against not of a teachers union did members proper party plaintiff. jurisdiction trial for want court [339-340] striking a union who failed to file a teachers Defendant members of against equity seeking injunctive timely relief answer to a bill a of the bill on the merits the strike were entitled guilty of crim- the trial court found the defendants time when preliminary injunction against contempt violating for inal strike, the trial court to enter a final decree it was error but