*1 ILLINOIS, Plaintiff-Appellee, v. THE OF THE STATE OF PEOPLE DAVID, Defendant-Appellant. GREGG Third District No. 79-357 22, 1981. Opinion May 13, Rehearing filed denied June 1981. Agostinelli Robert Filipovic, Appellate and Michael both of Defender’s State Office, Ottawa, appellant. Homer, Thomas Attorney, (John State’s of Lewistown X. Breslin and J. Wilhelm, Commission,
Kenneth A. Attorneys both of Appellate State’s Service counsel), People. Mr. HEIPLE delivered the of the court: JUSTICE trial,
After jury defendant, David, Gregg was convicted of two counts of criminal damage property par. 1(a)). The defendant was 2M-year imprison sentenced to a term of 21 — ment on the first count 364-day imprisonment and a concurrent term of the second count.
The defendant seeks that cause be his conviction be reversed and the (1) trial court following remanded for new trial for the reasons: erred de- refusing suppress the tire iron found on the floor of the arrest; fendant’s car following (2) reporter’s his failure to record closing arguments transcribe the to an denied the defendant appeal; (3) alternatively, closing effective transcribe the the failure to arguments was representation, due to defense counsel’s ineffective deny appeal. served to the defendant an effective *2 At trial following early morning facts During were revealed. 9,1978, glass October adjacent windows two stores at Route Illinois, in Farmington, damages $115.75 at were broken. Cost of the (count one II), I). $463 store (count at the second store An employee Farmington Company, of The Pizza an establishment stores, located across time be- the street from the testified that at some 1978, 9, tween 1 and 1:30 a.m. on she observed a dark-colored October slowly past late model the store and stripe Oldsmobile with a white drive go around behind the store. 9, 1978,
Thomas at about Edward Nelson testified that on October a.m., 1:30 As driving Farmington, he was east 116 in Illinois. he on Route crime, parking reached lot and the site of the Nelson turned into the parked building. parked car on the At that time the side of the car high speed, through took off at a rate a ditch and headed drove west on 116. blue Route Nelson that the car was a late model dark testified or black 442 that car con- stripe. Oldsmobile with a white He testified single tained a male. 78, leads
Nelson it turned onto Route followed the vehicle until on, Canton, Nelson lights to car with its seeing police Illinois. After car as the departed. the defendant’s About an hour later Nelson identified damage auto he had seen in where the was discovered. parking lot city police At 1:56 Canton officer Darel a.m. on October Farmington Rose Police De- message received a over his radio that the partment put Cutlass stop had out a a dark-colored Oldsmobile damage with stripe subject a white it. was wanted for criminal The matching At property. 2:10 a.m. observed a vehicle Officer Rose Canton, Illinois. description traveling broadcast on Locust Street east Rose Officer stopped Gregg He David. the vehicle. The driver was property damage informed of criminal David he had received David the car involved. description David’s vehicle matched the Officer Rose station. police it at the stated he would like to talk about station. police Canton agreed and the defendant to the followed informing route, message En radio Officer Rose received another they arrived at the until him the wished David held Farmington police station, Gregg police police arrival at the Canton Upon Canton station. only David’s rights. David was of his Miranda arrested and advised response was “no contest.” arrived,
When the Farmington police them out to Officer Rose took David’s car. Sod and dirt sticking out underneath the left rear from bumper. Officer Rose shined his flashlight into the auto and observed tire lying iron on the Farmington police rear floor. officer Curt Morgan removed the tire iron from the car.
Officer Morgan glass testified the tire iron was scratched and had particles embedded it. The tire iron was allowed into evidence over defendant’s objection that a search warrant should have been obtained prior to its seizure. Homer, The State’s Attorney, defendant Thomas testified that the J.
voluntarily presented Attorney’s himself at the State’s office on October day incident, following the because the defendant wanted to talk to the State’s Attorney. being fully legal rights, After advised of his defendant amade full statement to the State’s Attorney presence another employee statement, of the office. In this the defendant admitted fully his guilt and accurately described the events evening, circumstances, factual and his in breaking conduct the windows as charged. His statement completely complements and corroborates other evidence in the even to the extent admission that he used the tire iron to break the apologized windows. The defendant for his conduct, saying that he was sorry, offering as an excuse that he was drunk. He wanted to know if pay he could damages.
As his reversal, first ground for argues defendant that the tire iron *3 should not have been admitted into evidence. He claims that at the time of the iron, seizure of the tire the officers did not have sufficient facts to give rise to a reasonable belief that the tire iron constituted evidence of criminal activity. argument Such is inane.
To recap the preceding circumstances the seizure of the tire iron: The police had a report of broken store Within that windows. 15 minutes of report, they car, observed the description defendant’s which matched the of the car that had been reported leaving the scene of the crime. Having car, stopped they the in plain lying view the tire iron right the rear floor. It was reasonable to conclude that this a probable was tool in used breaking. window is police The law clear that a officer may lawfully seize an in plain item view without a warrant he views the object from place where he has to be and if the facts and circumstances known himto at the give time he acts rise to a reasonable belief that the item activity. seized constitutes More- evidence of criminal over, merit, even it argument regard defendant’s in this had is totally merit, devoid of was admission of the tire iron into evidence not crucial to the case. guilt, quite Evidence of the aside from defendant’s iron, the tire was overwhelming.
Defendant next alleges in vio claiming error that the court lated an alleged statutory duty closing arguments. There to record the Neither closing arguments. requires
no law which matters sua there some for a court affirmative give direction to sponte. request Someone must make the argu- that final request something. to do The defendant made not recorded. objection they ments be that recorded. He made no recording. recognize We simply arguments go He let the final on without ignoring attorneys often practice common of trial courts and indulged seasoned transcription arguments. practice of final This It is neither an judges. trial by experienced counsel and and able carelessness. judicial indication nor of incompetence of of Rather, it manpower. is done to cost and save argu-
Having any point during this matter failed to make of ments, his conviction appellate court to reverse defendant now asks the do. This we will not arguments. because there is no into the deliberately building error practice To do so would invite the of “sandbagging.” This is commonly record. called Moreover, has, rule, furnished a method supreme our report. bystander’s reconstructing by preparation an absent record 110A, appel 323(c).) requires The rule par. days within prepare proposed report lant and file a if a extended days may after the The 14 appeal notice of was filed. In the instant request 14-day period. for extension is made within that submitted and was bystander’s report prepared by was defendant the trial year the date of passage to the trial court after the of one from certify The trial court refused and without an authorized extension. from the date of bystander’s passage year of one report because the impossible made bystander’s report trial and the submission of that neither pointed out arguments. The trial court reconstruct the recollection judge Attorney independent had an nor the State’s judge ruling the trial lapse. The one-year after the time Timeliness proper. denying bystander’s report the certification of the because case of a compellingly necessary necessary order frailty memory. Completeness of human may be out matters that undue on isolated emphasis placed not be be re Thus, his conviction reject context. we defendant’s transcription versed for lack of a reviewable is affirmed. the trial court given, judgment For the reasons *4 Affirmed.
ALLOY, J., concurs. STOUDER, concurring: specially Mr. JUSTICE agree not but I do my colleagues, agree by with the result reached My disagreement with such reasoning supports all of the result. which regarding with its majority relates to observations arguments. believe of the final transcription absence of recordation and result a of counsel absence of of the final of error but not reversible error. is under no
According (1), reporter majority: the recordation statutory duty to record or and transcribe by attorney; (2), must an recordation requested waived; arguments is not specifically requested it is waiver of hence waiver frequently competent attorneys and by waived skilled and counsel, and not incompetence evidence of or ineffectiveness transcript. for satisfactory substitute a verbatim review present pro- Probably one of basic elements our more of the trial necessity complete cedure is the for written a full and develop- proceeding requirement court under In aid of review. testimony and ment and evolution of verbatim methods of quality greatly other have enhanced portions proceeding oral of a trial adequate an Without the written record which we are asked review. litigants poor position, in a acceptable record or without an alternative are one, impossible through not an review to avail themselves redress process. Fundamentally then, at trial transpires of all and recordation starting point of so much that is relevant on is our review considering the fairness of appellate procedure. our statutory
With majority reference to the there no claim the arguments of part of a reporter court to record describes and majority any has referred to statute not there consequently reporter, sets forth duties a court statutory duties court support any what the conclusion as to Reporter’s 5 of Court Act are or are not. section 37, par. 655) states: * ° stenographic hand or make a full means of reporting notes, thereof, and such machine of the evidence a combination which he is proceedings judicial proceedings other trials and may an use assigned by judge, chief supplementary electronic instrument device.
[*] [*] [*] transcript of the one The court furnish forthwith shall proceeding in a trial or other evidence upon the proceeding correctly party made to to the trial or attorney.” party of such or his *5 424
Since the final arguments part (People of counsel are of the (1967), 161, 23), v. a Ring App. support 89 Ill. 2d I 232 N.E.2d find no for statutory conclusion that reporter the duties of the court do not include recording the the arguments the letter intent of of counsel. Both and trial, statute that reporter nothing are the the is record entire and there the it suggests rule which is that the incumbent on counsel to portion take this portion of the trial or that of trial. No case the attention, none, has been called to our I interprets and have found which or applies the foregoing requiring request by statute as a counsel before arguments the final People need be recorded In v. Smith reporter. 68, 42 Ill. 2d recording 248 N.E.2d that final arguments However, requested. of counsel was not Smith neither discussed, nor any statutory statute duty nor waiver are and since portion prosecutor’s of the argument was it recorded and transcribed well may be only partially inferred the entire argument was recorded but transcribed necessary. because counsel all that was believed was People v. partial Edwards 74 Ill. 2d 383 N.E.2d is another initially stenographic recording case where and was waived only part of the recording machine I find no transcribed. Thus support the majority’s major premise duty for is no under to arguments record the final As only requested unless and unless to do so. is, will know, be noted later I absolutely there so far as benefit to the defendant not to arguments consequently have the final and recorded there is recording arguments no reason for not the final as matter of course rather only upon than request.
According it majority, requested to the not is recordation is waived. As I have indicated earlier I is believe the court under an duty affirmative to of than the record the final counsel rather contrary opinion only requested. of majority arises when demonstrate, Even a request necessary, I should believe not, as affirmatively this parties one does that counsel both waived the recording ought implied of final to be from a Waiver not silent trial, record. Final arguments important jury an and are element errors may portion may this well during occur con- tribute proceeding fairness of the the extent that at a bare minimum the record should decision trial counsel reflect deliberate on such important subject. an In an effort absence of a justify to minimize the effect of or “8
transcript arguments, suggests of the final the majority there common practice attorneys ignoring of trial courts in often the tran and scription Although practice of final is attributed arguments.” “8 8 8 8 8 8,” judges only seasoned trial counsel able trial * cost save 'to explanation justification practice manpower.” an intimation even majority there Nowhere recording transcription how the absence of defendant, any tactical how there or can be of benefit to the not, it or, may why practice advantage practice, finally, to such a we While disadvantage has in this to the defendant. result serious can practice where a manpower, are all interested in efficient use People, advantage to the only disadvantageous to the defendant and of attorneys. competent practice doubt that is a utilized seasoned or purposes an practical Since the is for all argu- proper essential element for are based on the appeal errors ments, unprofes- believe that waiver of would be evidence I fail to find sionalism of trial as a law. since counsel matter of *6 tactical, waiving any justification, legal, practical either think it would behoove recording arguments in a criminal counsel, reporters defense trial see that judges and court judge trial “sandbagging” are recorded. This involves no rights or the system plain recognition but is rather a that the limited or particularly appeal ought defendant and his not to be impaired by unjustified conduct of trial counsel.
Finally, bystander’s majority suggests that the alternative of a and, report adequate transcript, furnishes an a verbatim alternative to indeed, 1, 383 People v. make Edwards 74 Ill. 2d N.E.2d does bystander’s report assertion. life-saving potential of a real, apparent saving more device unlikely than and it is that as a judge much more than could hope. lawyers I doubt that two agree bystander’s on a within after the final report made several hours delivered, after prospective agreement let alone days, the remote elapsed. weeks or months had Thus I conclude that possibility satisfactorily procedure is not a takes place transcribing
People v. to hold Edwards 74 Ill. 2d 383 N.E.2d seems negligence preservation of defense counsel of the record of is not and for that reason ineffective assistance of error. conclude the absence a written is not reversible