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September 22, 1980


The opinion of the court was delivered by: J. Waldo Ackerman, District Judge.


In 1974, petitioner was convicted of murdering a two-year-old child and sentenced to fifty to one-hundred years in the penitentiary. Petitioner was also found guilty of involuntary manslaughter and endangering the life and health of a child. The verdicts for these two offenses were set aside. His conviction was affirmed and all available state remedies have been exhausted. Petitioner now seeks habeas corpus relief on the grounds that (1) the evidence produced at the trial failed to establish petitioner's guilt of the offense of murder; (2) the jury returned inconsistent verdicts, finding petitioner guilty of both involuntary manslaughter and murder; (3) the sentence of fifty to one-hundred years was so excessive as to deny petitioner due process and equal protection; and, (4) the trial court's failure to appoint a court reporter to record the testimony at the preliminary hearing deprived petitioner of due process and equal protection.

Pursuant to 28 U.S.C. § 2254(a), this Court may entertain an application for a writ of habeas corpus only on the ground that petitioner is in custody in violation of the Constitution or laws or treaties of the United States. His contention that his sentence was so excessive as to deny him due process and equal protection does not meet this standard. The sentence was within the range prescribed by statute and does not deprive petitioner of any constitutionally protected right. The severity of a sentence is not sufficient grounds for habeas corpus relief. United States ex rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th Cir. 1972). See also, Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). Accordingly, this claim for relief is denied.

Petitioner also contends that his convictions for both murder and involuntary manslaughter are inconsistent and therefore he is entitled to a new trial. This claim does not entitle petitioner to relief, again because no constitutional right has been infringed. Furthermore, in Illinois, the crimes of murder and involuntary manslaughter do not require proof of different mental states. The only distinction between the crimes is the degree to which a defendant's acts risk death or great bodily harm. See People v. Johnson, 33 Ill. App.3d 168, 337 N.E.2d 240 (1975). Consequently, as the Illinois Appellate Court for the Fourth District noted, there is nothing in the nature or elements of either crime to render a verdict finding defendant guilty of both murder and involuntary manslaughter inconsistent.

Petitioner next challenges his conviction on the ground that the evidence failed to establish beyond a reasonable doubt that he was guilty of murder. The United States Supreme Court recently set forth the applicable standard of review for such a claim. In Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the Court stated that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

In Illinois, a person who kills an individual without lawful justification commits murder if, in performing the acts which cause death "[h]e knows that such acts create a strong probability of death or great bodily harm . . ." Ill.Rev.Stat. ch. 38 § 9-1. The testimony at trial showed that petitioner was a six foot, three inch, twenty-one year old who weighed between 220 and 230 pounds. Record of Proceedings (hereinafter R.) at 265. The victim was a two-and-one-half year old child. Petitioner forced food down the child's throat, struck him and shook him, causing his head to snap back and forth. R. at 41-45. The child died three days later from a blood clot on the brain.

Upon reviewing the entire record, I find that there was sufficient evidence from which a jury could conclude the petitioner knew his conduct created a strong probability of death or great bodily harm. Accordingly, this claim for relief must be denied.

Petitioner's final contention relates to his request for the presence of a court reporter, at State expense, for the purpose of recording testimony at the preliminary hearing. Petitioner, an indigent, made a timely request for the appointment of a court reporter so that the preliminary hearing could be transcribed. See Common Law Record (hereinafter C.) at 15. The basis for the request was that the preliminary hearing was a "critical stage" in the criminal process and that "privately retained counsel would desire a copy of the transcript of this critical stage and would be able to hire a Court Reporter to transcribe the proceedings." C. at 15. In the alternative, petitioner requested that the preliminary hearing be transferred from the Associate Judge to a Circuit Judge who would have a court reporter available.

The request was denied on the ground that a court reporter would not be present for any defendant, indigent or not, because no appropriations are made for such services. C. at 17. The Illinois Appellate Court for the Fourth District affirmed the denial of petitioner's request for a court reporter, noting that although defendants who can afford to hire a private reporter may do so, "Macon County uniformly does not provide court reporters at preliminary hearings." Respondents' Exhibit C at 2. The Appellate Court held that since petitioner failed to demonstrate any prejudice resulting from the absence of a court reporter at his preliminary hearing, no violation of due process or equal protection occurred.

In order to put petitioner's claim in the proper context, it should be noted that the 1970 Illinois Constitution provides that defendants are entitled to a preliminary hearing to establish probable cause unless the initial charge is brought by grand jury indictment. Ill.Const. art. 1, § 7 (1970). The preliminary hearing in Illinois is a "critical stage" in the prosecution to which the right to counsel attaches. People v. Adams, 46 Ill.2d 200, 205-206, 263 N.E.2d 490 (1970), aff'd, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Petitioner's argument regarding the right to have the preliminary hearing recorded is two-pronged. First, he contends that the refusal to record the testimony violated his due process rights by denying him access to tools necessary to conduct his trial effectively. He relies on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), where the Supreme Court delineated its reasons for requiring the presence of counsel at preliminary hearings. "[T]he skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial." 399 U.S. at 9, 90 S.Ct. at 2003. Petitioner contends that the court's failure to record the testimony denied him the ability to impeach witnesses at trial and thus deprived him of the effective assistance of counsel.

Second, petitioner claims that to refuse to appoint a court reporter for an indigent defendant denies him equal protection of the laws. For this proposition, plaintiff relies primarily upon Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), where the United States Supreme Court held that an indigent defendant may not be denied a transcript of his preliminary hearing because he is unable to pay for it.

Unfortunately, respondents in their legal memoranda did not sufficiently develop these issues, according only one paragraph of their motion to dismiss to these points. Petitioner's contentions raise substantial problems with Macon County's practice of failing to record the testimony elicited at preliminary hearings. After exhaustive research, however, I conclude that petitioner's request for habeas corpus relief must be denied.

In Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), the Supreme Court held that the denial of a preliminary hearing transcript to an indigent defendant violated the Equal Protection Clause. There, a record of the preliminary hearing existed and the petitioner had made a timely request for a free transcript. However, a New York statute provided that a transcript would be furnished upon payment of a certain fee. In reaching its conclusion, the Court stated, "Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." Id., at 42, 88 S.Ct. at 196 citing Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). See also, Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). And, in People v. ...

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