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People v. David





APPEAL from the Circuit Court of Fulton County; the Hon. DANIEL J. ROBERTS, Judge, presiding.


Rehearing denied June 22, 1981.

After a jury trial, the defendant, Gregg David, was convicted of two counts of criminal damage to property (Ill. Rev. Stat. 1977, ch. 38, par. 21-1(a)). The defendant was sentenced to a 2 1/2-year term of imprisonment on the first count and a 364-day concurrent term of imprisonment on the second count.

The defendant seeks that his conviction be reversed and the cause be remanded for a new trial for the following reasons: (1) the trial court erred in refusing to suppress the tire iron found on the floor of the defendant's car following his arrest; (2) the court reporter's failure to record and transcribe the closing arguments denied the defendant his right to an effective appeal; (3) alternatively, the failure to transcribe the closing arguments was due to defense counsel's ineffective representation, which served to deny the defendant an effective appeal.

At trial the following facts were revealed. During the early morning of October 9, 1978, the glass windows in two adjacent stores at Route 116 in Farmington, Illinois, were broken. Cost of the damages was $115.75 at one store (count II), and $463 at the second store (count I).

An employee of The Farmington Pizza Company, an establishment located across the street from the stores, testified that at some time between 1 and 1:30 a.m. on October 9, 1978, she observed a dark-colored late model Oldsmobile with a white stripe slowly drive past the store and go around behind the store.

Thomas Edward Nelson testified that on October 9, 1978, at about 1:30 a.m., he was driving east on Route 116 in Farmington, Illinois. As he reached the site of the crime, Nelson turned into the parking lot and observed a car parked on the side of the building. At that time the parked car took off at a high rate of speed, drove through a ditch and headed west on Route 116. Nelson testified that the car was a late model dark blue or black 442 Oldsmobile with a white stripe. He testified that car contained a single male.

Nelson followed the vehicle until it turned onto Route 78, which leads to Canton, Illinois. After seeing a police car with its lights on, Nelson departed. About an hour later Nelson identified the defendant's car as the auto he had seen in the parking lot where the damage was discovered.

At 1:56 a.m. on October 9, 1978, Canton city police officer Darel Rose received a message over his radio that the Farmington Police Department had put out a request to stop a dark-colored Oldsmobile Cutlass with a white stripe on it. The subject was wanted for criminal damage to property. At 2:10 a.m. Officer Rose observed a vehicle matching the broadcast description traveling east on Locust Street in Canton, Illinois. He stopped the vehicle. The driver was Gregg David. Officer Rose informed David he had received a report of criminal damage to property and David's vehicle matched the description of the car involved. David stated he would like to talk about it at the police station. Officer Rose agreed and followed the defendant to the Canton police station.

En route, Officer Rose received another radio message informing him the Farmington police wished David held until they arrived at the Canton police station. Upon arrival at the Canton police station, Gregg David was arrested and advised of his Miranda rights. David's only response was "no contest."

When the Farmington police arrived, Officer Rose took them out to David's car. Sod and dirt were sticking out from underneath the left rear bumper. Officer Rose shined his flashlight into the auto and observed a tire iron lying on the right rear floor. Farmington police officer Curt Morgan removed the tire iron from the car.

Officer Morgan testified the tire iron was scratched and had glass particles embedded in it. The tire iron was allowed into evidence over the defendant's objection that a search warrant should have been obtained prior to its seizure.

The State's Attorney, Thomas J. Homer, testified that the defendant voluntarily presented himself at the State's Attorney's office on October 10, the day following the incident, because the defendant wanted to talk to the State's Attorney. After being fully advised of his legal rights, the defendant made a full statement to the State's Attorney in the presence of another employee of the office. In this statement, the defendant admitted fully his guilt and accurately described the events of the evening, the factual circumstances, and his conduct in breaking the windows as charged. His statement completely complements and corroborates the other evidence in the case, even to the extent of his admission that he used the tire iron to break the windows. The defendant apologized for his conduct, saying that he was sorry, and offering as an excuse that he was drunk. He wanted to know if he could pay for the damages.

• 1, 2 As his first ground for reversal, defendant argues that the tire iron should not have been admitted into evidence. He claims that at the time of the seizure of the tire iron, the officers did not have sufficient facts to give rise to a reasonable belief that the tire ...

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