People v. McKee

• Decision Date: 28 September 1962
• Docket Number: No. 37052,37052
• Citation: 25 Ill.2d 553,185 N.E.2d 682
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. L. T. McKEE, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 682

185 N.E.2d 682

25 Ill.2d 553

The PEOPLE of the State of Illinois, Defendant in Error, v. L. T. McKEE, Plaintiff in Error.

No. 37052.

Supreme Court of Illinois.

Sept. 28, 1962.

Frank M. Covey, Jr., Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Attys., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and John T. Gallagher and M. Robert Ostrow, Asst. State's Attys., of counsel), for defendant in error.

SOLFISBURG, Chief Justice.

In 1946 the defendant, L. T. McKee, was tried by jury in the criminal court of Cook County and found guilty of the crime of murder for which he was sentenced to the penitentiary for a term of life imprisonment. After the adoption by this court of Rule 65-1, Ill.Rev.Stat.1961, c. 110, § 101.65-1, the defendant filed a petition seeking a free transcript of the proceedings at his trial and the trial court entered an order directing the official shorthand reporter to furnish the defendant with a transcript. One of the official reporters advised the defendant that it was impossible to prepare a stenographic transcript because the court reporter at the original trial, E. M. Allen, had died in 1949 and no one was able to transcribe his notes. The defendant then filed a motion again requesting the preparation of a stenographic transcript, or, in the alternative, the preparation of a satisfactory narrative transcript or a bystander's bill of exceptions. The motion requested that the judgment of conviction be vacated and a new trial granted in the event that neither a stenographic transcript or a satisfactory bystander's bill of exceptions could be provided. The court entered an order again directing the official reporter to transcribe the notes taken by Allen and providing that if it was impossible to furnish such a stenographic transcript that the State's Attorney should take the initiative in preparing an adequate bystander's bill of exceptions. The alternative motion for a new trial was taken under advisement. Some months later the defendant filed a supplemental motion for a new trial in which he stated that he had been advised that the official reporter was unable to transcribe Allen's notes and that the State's Attorney was unable to prepare a satisfactory bystander's bill of exceptions. In this supplemental motion the defendant requested that a new trial be granted on the ground that the State was unable to provide a stenographic transcript or a satisfactory bystander's bill of exceptions. In the alternative, the defendant requested that the court certify a narrative transcript prepared by the defendant or to correct that transcript and certify it as corrected, and requested that if the court failed to certify or to correct and certify the defendant's narrative transcript that a new trial be granted. In support of this motion defendant filed a lengthy affidavit purporting to set out in narrative form the defendant's arrest, the events leading up to his trial and the evidence at the trial. Defendant's counsel filed an affidavit in support of this motion in which he set forth his unsuccessful efforts to secure witnesses to assist him in constructing a bystander's bill of exceptions. The State filed affidavits by Richard B. Austin and Joseph A. Pope, who were assistant State's Attorneys at the time of the defendant's conviction and were judges of the criminal court of Cook County at the time their affidavits were submitted, and also filed an affidavit of Howard Savage, the attorney who had represented the defendant at the time of his conviction. These persons all stated that they had made no record of the testimony at the defendant's trial and had no recollection of the exact nature of the testimony. The judge who had presided at the defendnat's trial was deceased at the time defendant's motion for a new trial was presented. The supplemental motion for a new trial was heard by Judge Austin, who was at that time Chief Justice of the criminal court of Cook County, and he entered an order denying the defendant's supplemental motion for a new trial and denying his request for certification of the narrative transcript submitted by the defendant. The trial judge did not rule on that portion of the defendant's motion asking for a correction and a certification as corrected of the defendant's narrative transcript in view of the fact that no evidence had been submitted to justify any correction of that transcript. A writ of error had been issued by this court to review the judgment of the trial court denying the defendant's supplemental motion for a new trial.

On this writ of error the defendant relies upon the decisions of the United States Supreme Court in Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, which hold that a State cannot constitutionally deny a defendant the right to effective appellate review because he is financially unable to purchase a stenographic transcript of the proceedings at his trial. Practically identical contentions were made in the recent case of People v. Norvell, Ill., 182 N.E.2d 719. In that case the defendant was convicted in 1941. A portion of the testimony at his trial had been reported by E. M. Allen....