APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ Following a jury trial in the circuit court of St. Clair County, defendant, Douglas Gregorich, was found guilty of burglary and sentenced to a five-year period of probation.
The defendant appeals this judgment, raising three issues for our consideration: (1) whether the failure to make a verbatim transcript of the supplemental remarks of the court to the jury denies him effective appellate review of their propriety; (2) whether the supplemental remarks of the court coerced the verdict or interfered with the deliberations of the jury to the prejudice of the defendant; and (3) whether the trial court erred in refusing to give a tendered instruction on criminal trespass to land.
The instant conviction was obtained as a result of a second trial, the first trial having ended in a mistrial due to a "hung" jury. The evidence revealed that at approximately 3:45 a.m. on August 2, 1975, several police officers converged on an auto parts store in Belleville, Illinois, in response to its burglar alarm. They discovered a recently made hole, measuring approximately 1 1/2 feet by 1 1/2 feet, in a fiberglass garage door on the north side of the building. The defendant was immediately observed crouching behind a workbench and was subsequently arrested for burglary. Inside the building, several cabinets and tool drawers were found open, and some mechanic's hand tools were discovered in a cardboard box near the hole in the garage door.
The defendant's explanation for his presence in the premises was that he entered the building merely to investigate a break-in which had just occurred. He testified that after having an argument with his girlfriend, he wandered about the streets of Belleville. While "window-shopping" for some tires at the parts store, he heard some noise from the side of the building. He saw someone walking away about a half block from the building. Upon discovering the hole in the garage door, he crawled inside and went towards the tool cabinets. He then saw the police shining a flashlight on the door and ducked down to avoid being shot at.
The defendant introduced into evidence a written statement which he gave to a police detective on August 2. The statement relates that while walking down the street the defendant decided to break into the auto parts store, that he did so after making a hole in the garage door with a wooden 2X4, and that his purpose in breaking in was to steal some tools. The defendant explained that after the detective refused to believe the truth, he gave him the written statement so that he would have "something to believe."
Detective William Miller testified that the defendant did begin to give him an oral story inconsistent with that contained in the written statement but that after defendant was admonished to tell the truth, he agreed to do so and wrote out the statement, after being advised of his Miranda rights.
The jury commenced its deliberations at 3:10 p.m. At some time after 10 p.m. the State's Attorney and defense attorney met with the trial judge in chambers to inform him that they would be amenable to the declaring of a mistrial. In fact, the State's Attorney apparently asked the court to call the jury in and declare a mistrial. The judge then called the jury in at approximately 10:30 p.m. After some communication was had between the judge and the jury, the jury resumed its deliberations and brought back a verdict within 20 minutes. No court reporter was present when the jury was called in, and, consequently, no verbatim transcript is available of the exchange which occurred between the judge and jury.
After the jury had reached its verdict but before it was announced, the opposing counsel and the trial judge made several remarks in an effort to clarify the record. The judge stated that the jury had been called in, and being of the opinion that despite the counsels' agreement he had the discretion to decide whether to declare a mistrial, he had asked each juror, without seeking any indication of where the jury stood, whether they could reach a verdict if given additional time. They each indicated they could, and within 20 minutes of returning to deliberate, the jury brought back a verdict. The defense attorney then made a showing that he was objecting to the fact that the court reporter had not been present when the jury was initially brought in. He further stated that he felt the statements of the court had not been proper. The jury subsequently announced its guilty verdict.
On April 1, 1977, defendant filed a post-trial motion, the third paragraph of which read as follows:
"The Court erred when it communicated with the jury by stating to the jury that [sic], in substance, that a verdict must be reached by 11:00 p.m., or everybody is going home."
The truth of this factual allegation was subsequently asserted in affidavits of the defense attorney and his law partner. The post-trial motion was apparently denied without comment at the sentencing hearing and defendant commenced this appeal.
On July 14, 1978, the State filed a motion in the circuit court to amend and supplement the record on appeal, asserting that the judge did not communicate with the jury as alleged in paragraph 3 of the post-trial motion. After conducting an evidentiary hearing, the circuit court on November 1, 1978, made certain findings of fact which it ordered added to the record pursuant to Supreme Court Rule 329 (Ill. Rev. Stat. 1977, ch. 110A, par. 329). The following were among the findings: that the defense attorney objected to the absence of the court reporter after the relevant proceedings rather than prior to them; that the judge's communications with the jury had been basically as represented by him at trial; and that the judge did not communicate with the jury in the manner alleged in paragraph 3 of defendant's post-trial motion.
The defendant's first contention is that he has been denied effective appellate review of the propriety of the judge's supplementary remarks to the jury because no verbatim transcript of them is available. In connection with this contention, defendant argues that the means employed by the State to amend the record was improper in that the State should have prepared a bystander's ...