People v. Luke

625 N.E.2d 352, 253 Ill. App. 3d 136, 192 Ill. Dec. 392
CourtAppellate Court of Illinois
DecidedNovember 18, 1993
Docket1-89-2972
StatusPublished
Cited by12 cases

This text of 625 N.E.2d 352 (People v. Luke) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Luke, 625 N.E.2d 352, 253 Ill. App. 3d 136, 192 Ill. Dec. 392 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE CAHILL

delivered the opinion of the court:

After a bench trial, the judge convicted Daniel Luke of one count of battery and sentenced him to one year’s probation with the first 120 days to be served in the Cook County Department of Corrections. The defendant appeals, making four arguments: (1) the State denied him due process and the effective assistance of counsel by failing to provide a complete transcript on appeal; (2) the State failed to prove he did not act in self-defense beyond a reasonable doubt; (3) the State failed to prove venue; and (4) the judge applied an improper standard in finding the defendant guilty. We affirm.

Our review of the conviction is circumscribed by the record before us. One of the court reporters at the trial quit the office of the court reporter and refused to transcribe her trial notes. The record lacks a transcript of the State’s case against defendant, including the testimony of complaining witnesses. In the absence of a transcript, the parties filed an agreed statement of facts which incorporated the State’s case.

The State and defendant agree to the following facts: On April 25, 1989, defendant went to a bar at 3327 South Archer Avenue and drank 10 to 15 beers. Defendant then approached a woman, Lynn Aderman, and asked her to dance. She refused, and defendant called her a “bitch.” Miss Aderman’s boyfriend, Ronald Knor, approached defendant and asked him to leave. Defendant refused, and Knor and the defendant began to push and shove each other. Before a fight could break out, the owner of the bar intervened and asked defendant to leave.

At first defendant refused, but then he walked out a back door of the bar. He crossed the street and began walking up Archer Avenue. After defendant left the bar, the bouncer from the bar, Mike Couthran, left and followed defendant up Archer Avenue. Couthran pushed or hit the defendant from behind, and defendant’s glasses flew off. A fight ensued between Couthran and defendant. Knor also left the bar, and seeing the fight, joined in on the side of Couthran. During the struggle, defendant pulled out a knife with a two-inch blade. Defendant slashed in the direction of Couthran and Knor. Couthran suffered a slash wound to his chest and a puncture wound to his stomach.

Eventually, defendant was held down and the knife taken from him. Police arrived and arrested him. The police took the defendant to the hospital where he was treated for a broken nose, cuts, bruises, and bumps about his head suffered in the incident.

The State charged defendant with two counts of battery, one against Knor, and one against Couthran. Defendant waived his right to a jury trial.

From this point on a transcript is available. Defendant testified that after he left the bar he walked up the street, and “the next thing he knew” he was attacked from behind and beaten. He did not know how many people attacked him; he knew only that he was being beaten about the head and face. He testified that after losing his glasses he was unable to see more than five feet from his face. Although he was not sure who was attacking him, defendant saw the arms as they swung and struck him in the head. He testified that he feared for his life and believed someone was trying to beat him to death. He crouched down, pulled his knife, and began swinging it to ward off the attackers.

The trial judge found defendant not guilty of the battery count against Knor, the boyfriend, but guilty of the count against Couthran, the bouncer. The judge subsequently denied defendant’s motions for a reduction of sentence and for a new trial.

Defendant first contends that the failure of the State to provide him with a complete, verbatim transcript of the proceedings deprived him of due process. (Ill. Const. 1970, art. I, §2; U.S. Const., amend. XIV.) Defendant’s argument relies on Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 890, 76 S. Ct. 585, where the Supreme Court held that a State must afford an indigent defendant “as adequate appellate review as defendants who have money enough to buy transcripts.” (Griffin, 351 U.S. at 19, 100 L. Ed. at 899, 76 S. Ct. at 591.) Illinois Supreme Court Rule 605 concurs with this requirement: “In all cases in which the defendant is found guilty and sentenced to imprisonment, probation or conditional discharge *** the trial court shall, at the time of imposing sentence *** advise the defendant *** of his right, if indigent, to be furnished, without cost to him, with a transcript of the proceedings at his trial or hearing.” (134 Ill. 2d R. 605.) Rule 607 sets out the steps to be followed to insure that an indigent defendant receives a report of proceedings at no cost. 134 Ill. 2d R. 607.

Since Griffin, the Supreme Court has clarified an indigent’s right to a transcript. The State must furnish a record of sufficient completeness to permit proper consideration of his claims. (Draper v. Washington (1963), 372 U.S. 487, 499, 9 L. Ed. 2d 899, 907, 83 S. Ct. 774, 780-81.) Alternative methods, such as a bystander’s report or agreed statement of facts, may be adequate to remedy a gap in the trial transcript. (Draper, 372 U.S. at 495, 9 L. Ed. 2d at 905, 83 S. Ct. at 779.) “A ‘record of sufficient completeness’ does not translate automatically into a complete verbatim transcript.” (Mayer v. Chicago (1971), 404 U.S. 189, 194, 30 L. Ed. 2d 372, 378, 92 S. Ct. 410, 414.) Where the grounds of an appeal make out a colorable need for a complete transcript, however, the burden is on the State to show that only a portion of the transcript or an alternative is adequate for an effective appeal. Mayer, 404 U.S. at 195, 30 L. Ed. 2d at 378-79, 92 S. Ct. at 415.

Defendant contends that a full transcript is necessary to adequately consider his arguments on appeal. Because the missing portions of the transcript contain only the two complaining witnesses’ testimony, we find no colorable need for a complete transcript to fully consider defendant’s venue argument or the standard employed by the trial judge to convict him.

We recognize a need for the complaining witnesses’ testimony to adequately consider defendant’s self-defense argument, however. The State responds that the agreed statement of facts is sufficient to consider the issue on appeal, and that defendant failed to obtain a bystander’s report and therefore cannot complain that the record is inadequate on appeal.

We hold that a defendant in a criminal case, whether indigent or not, cannot agree to a statement of facts, fail to obtain a more detailed alternative to a transcript such as a bystander’s report, and then argue on appeal that the record is insufficient. It is the defendant’s duty to preserve the record on appeal. (People v. Malley (1982), 103 Ill. App. 3d 534, 431 N.E.2d 708.) Supreme Court Rule 323(c) provides: “If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection.” (Emphasis added.) 134 Ill. 2d R. 323(c).

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Cite This Page — Counsel Stack

Bluebook (online)
625 N.E.2d 352, 253 Ill. App. 3d 136, 192 Ill. Dec. 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-luke-illappct-1993.