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July 24, 1978


Bristol. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 13, 1977. The case was heard by Braucher, J.

Hennessey, C.j., Kaplan, Wilkins, & Liacos, JJ.


Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Appeal, Transcript of evidence, Expenses in criminal proceedings.

The opinion of the court was delivered by: Liacos

Discussion of statutory procedures available for review of a criminal case. [83-88]

An indigent defendant whose case was subject to the provisions of G. L. c. 278, §§ 33A-33G, was entitled to a complete transcript on appeal. [88-89]

The question before us involves the right of an indigent defendant to a transcript, at public expense, in order to pursue an appeal under G. L. c. 278, §§ 33A-33H. The plaintiff here (hereinafter called the defendant), was convicted in the Superior Court of armed robbery and assault with a dangerous weapon and sentenced to a term of from six to ten years at Massachusetts Correctional Institution at Walpole. Following the defendant's claim of appeal from his convictions pursuant to G. L. c. 278, §§ 33A-33H, the trial Judge appointed the Massachusetts Defenders Committee (committee) as appellate counsel to represent the defendant, who was then indigent. The Judge informed the committee that he wanted to know the issues involved in the appeal in order to "narrow the transcript to those issues and avoid the necessity of providing a complete transcript."

An attorney of the committee, in a letter to the Judge, replied that he had consulted with the defendant's privately retained trial counsel to ascertain what errors might have occurred at trial and concluded that a transcript of the suppression hearing and the prosecutor's closing argument would be needed. The attorney also wrote that he would need the transcript, excluding jury empanelment, to support the defendant's claim of ineffective assistance of counsel. The attorney stated in another letter that he was unable to comply with the Judge's further request for a particularization of the alleged errors at trial. He noted that he had neither tried the case nor seen a transcript and was reluctant to rely on his client's memory for a detailed specification of the trial counsel's alleged errors.

After a hearing on the request for a free transcript, the Judge found that the bare allegation of ineffective assistance of counsel did not establish "a colorable need for a complete transcript." He further found that "he alleged assignment of errors is patently frivolous and the identification and guilt of the defendant clearly established beyond a reasonable doubt and a furnishing of a full transcript would result in a waste of public funds." The Judge then ordered that the defendant receive only those portions of the trial transcript containing the evidence presented at the voir dire on the motion to suppress, so much of the Judge's jury charge as was given after the jury reported that they were unable to agree on a verdict, and the prosecutor's closing argument.

The defendant sought relief pursuant to G. L. c. 211, § 3, from the denial of his request for a transcript of the trial by filing the present petition in the Supreme Judicial Court for the county of Suffolk. The petition was denied by a single Justice, as was a petition for reconsideration. The defendant appeals from that denial. *fn1

The defendant bases his claim for relief on several grounds. He contends that the denial of his request for a free trial transcript violates the provisions of G. L. c. 278, §§ 33A-33H. He also raises an equal protection argument based on his indigency, claiming that the trial Judge unconstitutionally conditioned the granting of a free transcript on a showing of merit of the points of appeal and that this procedure deprived him of a fair opportunity to appeal plain error. Finally, he asserts that appellate courts and appellate counsel cannot perform their constitutional obligations without full transcripts. The Commonwealth responds that the partial transcript provided was a "record of sufficient completeness" to satisfy the statutory and constitutional requirements. We need not reach the constitutional issues raised here since we conclude on statutory grounds that the defendant is entitled to the trial transcript. See Commonwealth v. Bartlett, 374 Mass. 744, 748-749 (1978).

1. The defendant's claim of a right to a free copy of the trial transcript must be viewed in the context of the statutory procedures available for review of a criminal case. Various avenues of appeal are open to a criminal defendant seeking to overturn his conviction. See generally K.B. Smith, Criminal Practice and Procedure §§ 1181-1259 (1970). Under G. L. c. 278, § 28, for example, a criminal defendant may appeal from a judgment of the Superior Court based on a matter of law apparent on the record. This method of review does not bring to the appellate court the evidence heard at trial, even if recorded by a stenographer. See Commonwealth v. Berney, 353 Mass. 571, 572 (1968); Guerin v. Commonwealth, 337 Mass. 264, 266 (1958). Another limited method of appellate review is by writ of error, G. L. c. 250, §§ 1, 2, 9-13. The writ of error ordinarily does not lie to review errors as to findings of fact made at trial or errors of law committed during trial. Since many trial errors are not open to review on a writ of error, an indigent is not entitled to a free transcript unless he shows that a reasonable need for the trial transcript exists. See Commonwealth v. Gilday, 357 Mass. 775 (1970); Guerin v. Commonwealth, supra at 267-270. Thirdly, the bill of exceptions under G. L. c. 278, § 31, is a common appellate procedure for review of criminal cases. The transcript of the proceeding, if there is one, is not part of the record when a case is reviewed on a bill of exceptions. Commonwealth v. Fiore, 364 Mass. 819, 827-828 (1974). Commonwealth v. McGrath, 361 Mass. 431, 433 (1972).

Important to our decision is the fact the defendant did not seek appellate review by any of these methods in which the transcript plays a limited role in the appellate process. Instead, he filed a direct appeal pursuant to G. L. c. 278, §§ 33A-33H. General Laws c. 278, § 33A, as amended by St. 1974, c. 540, § 2, states at the outset that "n any proceedings or trials upon an indictment or complaint for any felony and for any misdemeanor tried with a felony the evidence shall be taken by an official stenographer or by a stenographer appointed by the court." The provisions of §§ 33A-33H, establishing procedures for the filing of the appeal, the preparation of the record, the assignment of errors, and the transmission of the record are mandatory in all murder and manslaughter cases and in witness immunity contempt proceedings brought under G. L. c. 233, §§ 20C-20H. This statutory method of appeal also governs any other felony or misdemeanor tried with such felony, at the timely request of either party. G. L. c. 278, § 33A. A defendant in a case subject to G. L. c. 278, §§ 33A-33H, may appeal if "aggrieved by an opinion, ruling, direction or judgment of the superior court, rendered upon any question of law arising out of such case or upon a motion for a new trial." G. L. c. 278, § 33B, as appearing in St. 1955, c. 352, § 1. Review by an appellate court is on the typewritten transcript of the proceedings. *fn2

In § 33B is found the provision for indigent defendants whose trial is subject to §§ 33A-33H. See Commonwealth v. King, 356 Mass. 495, 496 (1969). Section 33B provides that when a defendant files a claim of appeal, "ne copy [of the transcript] shall be furnished to the defendant, who shall pay for the expense of his transcript unless the court otherwise directs." The phrase "unless the court otherwise directs" does not refer to whether the transcript shall be given to the defendant, but rather refers to whether the transcript shall be provided at the defendant's own expense. Thus, the trial Judge's role in the furnishing of transcripts is to determine if the defendant is indigent. The statutory language contains no ...

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