People v. Norvell

• Decision Date: 25 May 1962
• Docket Number: No. 36830,36830
• Citation: 25 Ill.2d 169,182 N.E.2d 719
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Willie NORVELL, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 719

182 N.E.2d 719

25 Ill.2d 169

The PEOPLE of the State of Illinois, Defendant in Error, v. Willie NORVELL, Plaintiff in Error.

No. 36830.

Supreme Court of Illinois.

May 25, 1962.

Thomas P. Sullivan and Robert E. Pfaff, Chicago, for plaintiff in error.

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

HOUSE, Justice.

On November 3, 1941, after a three-day bench trial, the criminal court of Cook County found defendant guilty of murder and sentenced him to the penitentiary for a term of 199 years. The People have stipulated that defendant would testify that immediately after his conviction he made efforts to obtain a stenographic transcript of the trial proceedings for the purpose of having his conviction reviewed and that a transcript was not furnished because he could not pay for it. In 1956, after Rule 65-1(2) had been adopted, the criminal court ordered the official court reporter to furnish defendant, without cost, a complete stenographic transcript of the entire trial proceedings because such a transcript was necessary to fully present for review alleged errors in his trial. Only a portion of the transcript has been furnished to defendant.

The defendant's trial was conducted on October 29, 30 and November 3, of 1941 E. M. Allen was the court reporter of the trial on October 30 and the morning of November 3. Gerald J. Healy was the court reporter of the trial on October 30 and the afternoon of November 3. Healy transcribed his stenographic notes and a copy of that transcript has been furnished to defendant. The stenographic notes made by E. M. Allen, who died on August 26, 1949, have never been transcribed. A hearing was conducted to determine whether Allen's notes could be transcribed or a bystanders report of proceedings constructed

After it was determined that the stenographic notes of E. M. Allen could not be transcribed and that a bystanders report of proceedings could not be constructed for the portions of the trial attended by Allen, defendant moved for a new trial. This motion was denied and defendant sued out this writ of error.

Defendant asserts that in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the Supreme Court held that where a State provides for review of alleged errors in a criminal trial which can be reviewed only by a transcript of proceedings at the trial, the State denies a constitutional right of an indigent defendant when it fails to furnish him with a free transcript or other suitable means for such review; that the court in Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, held that the ruling of the Griffin case was applicable even though an indigent defendant now seeking a transcript had been convicted and sentenced long before the Griffin case; that he was indigent when sentenced and requested a free transcript; that this request was denied; that his constitutional right to now have his conviction fully reviewed has been denied; and that his conviction must therefore be set aside and a new trial granted, which if it results in conviction, can be fully reviewed.

A similar assertion was made in People v. Berman, 19 Ill.2d 579, 169 N.E.2d 108, where it was impossible to furnish defendant with a transcript of his trial because no stenographic notes of the proceedings had been made. We held that since it was not defendant's indigency which now prevented us from reviewing his conviction, the constitutional right announced in the Griffin case had not been denied. The Supreme Court of the United States thereafter denied Berman's petition for writ of certiorari. (365 U.S. 804, 81 S.Ct. 472, 5 L.Ed.2d. 462.) The defendant points out, however, that the United States Supreme Court subsequently denied a petition for writ of certiorari (368 U.S. 839, 82 S.Ct. 59, 7 L.Ed.2d 39,) in the case of Patterson v. Medberry, 290 F.2d 275, where the United States Court of Appeals for the Tenth Circuit held that because an indigent defendant's 1939 trial could not be reviewed, a transcript of that trial being unavailable, the defendant must be given a new trial within six months or released from prison. Because the Court of Appeals for the Tenth Circuit, and probably the Seventh Circuit, (See United States ex rel. Westbrook v. Randolph, 259 F.2d 215) have given the Griffin and Eskridge cases an interpretation different from our interpretation (see People v. Berman, 19 Ill.2d 579, 169 N.E.2d 108,) we give the question further consideration.

On April 23, 1956, the United States Supreme Court held that a State denies a constitutional right guaranteed by the fourteenth amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials. (Griffin v. Illinois, 351 U.S. 12, 76 S.E.t. 585, 100 L.Ed. 891.) The effect of this decision was to invalidate any financial barriers imposed by the State which restrict the availability of appellate review for indigent defendants. (See Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed. 2d 1209; Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed 2d 39.) In the Eskridge case the court did not hold that the failure to furnish defendant with a free transcript in 1935 denied him a right guaranteed by the fourteenth amendment, but held that the...