People v. Vaughn

Opinion

POTTER, Acting P. J.

Defendant Eddie Vaughn, Jr., appeals from the judgment of conviction of lewd and lascivious conduct with a seven-year-old child (Pen. Code, § 288). Defendant’s first trial on this charge resulted in a hung jury and mistrial. Because a timely defense request for a transcript of the complaining witness’ testimony at the first trial was denied, we must reverse the conviction.

On June 7, 1979, at defendant’s arraignment, the superior court appointed the public defender to represent defendant.

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On March 11, 1980, the jury trial began. On March 21, after four days of jury deliberation, the superior court declared a mistrial because the jury was “hopelessly deadlocked.” A new trial date was set for April 24.

On March 28, the deputy public defender requested a transcript of the trial testimony of the complaining witness. The People objected solely on the grounds that (1) the transcript was unnecessary because “[h]er testimony was recorded at the preliminary hearing,” and (2) preparation of the transcript “may amount to cause for delay of the trial”; defendant’s continued indigency status was not questioned. The court summarily denied the motion. The deputy public defender argued that a transcript of the child’s testimony was essential for proper preparation and for the trier of fact to assess the complaining witness’ credibility, particularly in a “case of this nature,” where her credibility was “extremely important.” Counsel pointed out her trial testimony had been “inconsistent” with her preliminary hearing testimony and she might make further statements at the second trial which would be inconsistent with her previous trial testimony. He further stated that since he was seeking only a partial transcript, he did not believe its preparation would interfere with the April retrial date and the cost was

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minimal. Following the defense argument, the court reiterated its denial of the motion without stating any reasons.

Subsequently, defendant waived jury trial and was tried by the court. During the court trial, the child testified that defendant, her pastor, had inserted his penis halfway into her vagina on four separate days, but she was impeached by her prior preliminary hearing testimony that he never put his penis inside of her. Moreover, her second trial testimony that her mother and defendant’s wife had discovered her in bed with defendant was inconsistent with her preliminary hearing testimony that no one entered the room. After a two-day court trial, defendant was found guilty. This appeal followed.