dissenting.
I dissent. I agree that the competent evidence, which the jury apparently believed, established Steve Robinson’s guilt beyond a reasonable doubt. Inadmissible incompetent evidence, however, was also introduced against the defendant about which I voice my disapproval even though I do not think it affected the jury’s verdictMfs admission was harmless error beyond a reasonable doubt. People v. Curtis (1986), 113 Ill. 2d 136, 151-53, 497 N.E.2d 1004.
A defendant who is separately tried is entitled to have his guilt or innocence determined from evidence of what he did, and he should not be judged on evidence of the acts and conduct of someone else. (People v. Sullivan (1978), 72 Ill. 2d 36, 42, 377 N.E.2d 17.) Of course the evidence that the defendant Robinson was seen with the codefendant Nixon walking away from the burglarized premises carrying objects and that they fled after being seen by Pettis was admissible against Robinson. Evidence that Pettis shortly thereafter identified Robinson and Nixon was likewise admissible against Robinson. Certainly evidence of what was stolen in the burglary was competent evidence against Robinson. But the evidence that Nixon planned to steal the victim’s Atari, coats, television, and hair relaxer was incompetent and inadmissible against Robinson. The victim’s testimony that nine days before the burglary Nixon visited her home and asked her for advice about his hair and Officer Angarone’s testimony that Nixon had straightened hair in his picture was not competent or admissible evidence against Robinson. Evidence that Nixon was present when the burglary victim gave his sister two coats from a closet did not tend to prove Robinson’s participation in the burglary and was also incompetent and inadmissible against Robinson.
The record is devoid of any explanation for the trial court’s admission of the foregoing evidence concerning Nixon as evidence against Robinson, and yet the trial court refused to allow Robinson to present evidence that Nixon had been previously found guilty of misdemeanor theft arising out of his involvement in that transaction.
The majority misconstrues this issue. Of course acts of the codefendant, Dwayne Nixon, which established the commission of the burglary or Robinson’s participation therein were admissible against Robinson during his trial. But evidence regarding Dwayne Nixon was inadmissible because it did not establish Robinson’s commission of the burglary or Robinson’s involvement in the burglary. The admission of this evidence was erroneous, though harmless. Considering the other evidence against Robinson, it is clear beyond a reasonable doubt that Robinson would have been convicted even if the incompetent evidence had not been admitted. People v. Curtis (1986), 113 Ill. 2d 136, 153, 497 N.E.2d 1004.
I agree with the defendant’s contention that the trial court erred when it inadvertently read refused instructions 10 and 11 to the jury. I find the court reporter’s explanation presented at the hearing of the State’s motion to correct the record on appeal to be implausible and unacceptable.
The defendant objected to State’s instructions 10 and 11 and the trial court ruled that the instructions would not be given and wrote on them “not given.” The record indicates that the trial judge wrote “given” on each instruction that was to be given and “not given” on each instruction that was not to be given.
The defendant filed the record on appeal. This record reveals that the trial judge read the State’s refused instructions 10 and 11 to the jury although the court had previously ruled they would not be given. This record was certified by the clerk of the circuit court as follows:
“I, MORGAN M. FINLEY, CLERK of the Circuit Court of Cook County, Illinois and the keeper of the records, files and Seal do hereby certify the above and foregoing to be a true, perfect and complete copy of a one volume record consisting of volume one (1) of one (1) of the Report of Proceedings and the Common Law Record, no designation of record having been filed pursuant to the Notice of Appeal filed herein: Illinois Appellate Court No. 83 — 1180 in a certain cause lately pending in said Court, on the criminal side thereof, wherein the PEOPLE OF THE STATE OF ILLINOIS are Plaintiff and Steve L. Robinson, Impleaded is Defendant.”
The appeal record was also certified by eight official court reporters, including Barbara J. Wright, who was the court reporter on April 20, 1983, the day the trial court instructed the jury. The certification signed by Barbara J. Wright and the other court reporters was as follows:
“We, the undersigned, Official Court Reporters of the Circuit Court of Cook County, County Department, Criminal Division, do hereby certify that we reported in shorthand the proceedings had upon the trial in the above entitled cause; that we thereafter caused to be transcribed into typewriting the above transcript, which we hereby certify is a true and correct transcript of the proceedings had before the Hon. Thomas J. Malo- . ney.”
Based on the certified record of the trial proceedings as the record on appeal, the defendant filed his brief in this court on December 5, 1983. The first issue presented was that the trial court’s “inadvertent submission of two instructions to the jury, which the court had properly refused, denied defendant a fair trial, when the refused instructions injected into the case the highly prejudicial matter of a defendant’s failure to explain his possession of recently stolen property, not otherwise an issue before the jury.”
On July 30, 1984, nearly eight months after the defendant had filed his brief on appeal, a hearing was held in the trial court on the State’s motion to correct the trial record. The State asked the court to delete State’s instructions 10 and 11 from the record, as though they had not been given. The State contended that they were erroneously included in the record as haying been read to the jury by the trial judge. The State urged that State’s refused instructions 10 and 11 had not been read to the jury.
At the hearing on the State’s motion to correct the record, the State examined Barbara J. Wright, who was the official court reporter on April 20, 1983, the day the court instructed the jury. Wright was asked whether State’s instructions 10 and 11 appeared in her notes as having been read by the trial judge to the jury that day. Wright said that they did not. She offered no explanation, however, for the fact that according to her certification she transcribed the trial proceedings for that day from her stenographic notes which included instructions 10 and 11 as having been read to the jury. Wright testified that she had no independent recollection of what specific jury instructions the trial judge read and stated that she included and certified in the record the State’s refused instructions 10 and 11 because they were given to her by the assistant State’s Attorney before the trial judge read the instructions to the jury. No explanation was presented as to why the assistant State’s Attorney gave her these two refused State’s instructions before the trial judge read them to the jury. Nor was any explanation offered for her including them in the record as having been read by the judge to the jury other than they were read to the jury by the trial judge and she stenographically recorded them as the trial judge read them.
The trial court granted the State’s motion to correct the record and ruled:
“[T]he original instruction would have been taken from the original group and the copies would have been marked. And within an hour or two from the time of the — of the instructions, the instructions would have been read to the jury. And so, quite obviously, the court would not have read the instructions.
* * *
Well, I have so found and do so find they were not given. Quite obviously, the court[’s] usual procedure was followed. There’s every evidence of that. According to the transcript, [the] court[’s] own statements, court notes and whatever mistake the court reporter made, including them; I don’t understand, but the instructions were not given.” (Emphasis added.)
The State filed a supplemental record on August 1, 1984. This supplemental record was certified by a court reporter and reflects that instructions 10 and 11 were not read to the jury by the trial judge. Thus, before this court there are two conflicting records on appeal, one of certified court reporter Barbara J. Wright, that instructions 10 and 11 were read by the trial court to the jury and the other certified record which shows that they were not.
The trial judge acknowledged that “I do not understand” how the court reporter could have made an error in transcribing the original transcript. For the error to be attributed to the court reporter one has to believe that she inadvertently added language from her notes that was never spoken by the trial judge. As the trial judge recognized, it is difficult “to understand” how a court reporter could mistakenly add language, as opposed to mistakenly omit language, especially since the court reporter testified that she reported what the trial judge said “as he said it to the jury” and that she had been listening. She certified as “true and correct” the original record on appeal which included instructions 10 and 11. If her notes were unreliable when she prepared the original record on appeal, I see no reason to believe that her notes were more reliable nearly a year later at the hearing on the State’s motion to correct the record. (Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 217 (amendment made four months after an order was held void).) As stated in Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 428, 348 N.E.2d 457:
“Generally, ‘an amendment of the record cannot be made by oral testimony, or from the recollection of the trial judge himself, but must be proved by the production of some note or memorandum from the record or quasi records of the court, or by the judge’s minutes, or by the papers on file in the cause.’ [Citations.] ‘[A]n amendment of a record cannot be made either from the memory of a witness, from the recollection of the judge himself, or by affidavit, but the record must show the basis upon which the amendment of correction is made.’ [Citations.]
Here it is uncontroverted that no documents, minutes, records, or quasi-records existed, and that the judge relied solely on his ‘clear memory’ in making the ‘correction’ of the record.”
The testimony of the court reporter in the instant case about her conflicting transcripts of the trial court’s instructions to the jury and the trial judge’s reliance on the “usual procedure” do not convincingly refute the main record and the certification thereof that instructions 10 and 11 were inadvertently given to the jury. This error demands reversal.
It is reversible error to inject into a case, by way of instruction, issues which are not properly before the jury. (People v. McCauley (1972), 2 Ill. App. 3d 734, 736, 277 N.E.2d 541.) By reading instructions 10 and 11, the jury in this case was erroneously twice told that it could find the defendant guilty of residential burglary if the defendant did not present a reasonable explanation for his possession of the stolen property. The supreme court stated in People v. Housby (1981), 84 Ill. 2d 415, 423, 420 N.E.2d 515, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160:
“To the extent that past Illinois decisions have held that exclusive and unexplained possession of recently stolen property is sufficient, standing alone and without corroborating evidence of guilt, for conviction of burglary, those decisions *** can no longer be applied, even when the inference is regarded as permissive. The presumption standing alone does not prove burglary beyond a reasonable doubt. The person in exclusive possession may be the burglar, to be sure, but he might also be a receiver of stolen property, guilty of theft but not burglary, an innocent purchaser without knowledge that the item is stolen, or even an innocent victim of circumstances.”
The majority’s reliance on People v. Chitwood (1977), 67 Ill. 2d 443, 367 N.E.2d 1331, is misplaced. In Chitwood, the appellate court reversed the defendant’s reckless-driving conviction on the ground that the record on appeal did not show that defendant had waived his right to a jury. Subsequent to the defendant’s appeal the State filed a motion in the appellate court to amend the record. The motion was based on an affidavit, apparently of an assistant State’s Attorney, which was filed in the trial court. The affidavit stated that defendant’s counsel, in the presence of the defendant, informed the trial judge that defendant desired to waive a trial by jury. A hearing was held on the affidavit by the trial court. In the trial court, the defendant did not challenge or deny the accuracy of the affidavit, nor did he do so before the appellate or supreme courts. The appellate court denied the State’s motion to amend the record and allowed its judgment reversing the conviction to stand.
The supreme court pointed out that the transcript of the arraignment proceedings revealed that the defendant was informed of his right to a jury trial and that the defendant did not object to a bench trial which was held a week later. The court further pointed out that it was the State’s position on appeal that the defendant, through his counsel, waived a jury trial in open court but that the waiver was inadvertently omitted from the record on appeal and that the defendant did not deny having waived a jury. The supreme court held that under these ■ circumstances, where there was no contradiction of the facts, the State’s motion to amend the record should have been allowed. The court reversed the judgment of the appellate court.
In the case before us, the court reporter’s certification of the record swears that she transcribed the record which included instructions 10 and 11, from her notes. This sworn certification contradicts her testimony that the two refused instructions were not included in her notes. If her testimony is believed, then she transcribed instructions 10 and 11 into the record from her notes which did not exist, i.e., which did not contain those instructions. This is implausible and unacceptable.
The majority’s reliance on People v. Allen (1985), 109 Ill. 2d 177, 486 N.E.2d 873, is also misplaced. Allen involved an evidentiary hearing pursuant to Supreme Court Rule 329 to correct an erroneous instruction which was included in the record on appeal. At that hearing the court reporter testified that as the trial judge read the jury instructions to the jury, she recorded the proceedings by means of stenographic notes. The court reporter testified further that her stenographic notes of the judge’s reading of the instructions, which were in controversy, did not contain certain language which would have caused the instruction to be improper. She explained that as she transcribed her notes she noticed a discrepancy between her stenographic notes of an instruction and that instruction given her by the assistant State’s Attorney. The court reporter testified that when she noticed the discrepancy she assumed that she had missed something the trial judge had said in instructing the jury and that she added that which was contained in the written instruction given her by the assistant State’s Attorney. It was this additional language in the instruction of which complaint was made and which the State contended was not read to the jury by the trial judge. Again, it is to be noted that the court reporter’s stenographic notes of the trial judge’s reading of the instruction did not contain this additional objectionable language. The trial judge concluded that the court reporter’s stenographic notes were correct and that her explanation for the inclusion of the improper additional language in the instruction was plausible and ordered the record to be corrected by striking the improper language from the instruction.
The case at bar is not analogous. The case at bar does not involve deleting erroneous language from an instruction to conform it to the court reporter’s original stenographic notes. In the case at bar the court reporter certified in the record that she transcribed the refused instructions 10 and 11 from her stenographic notes which were taken as the trial judge read the instructions to the jury. At the hearing of the motion to correct the record, she conversely testified that her stenographic notes of the judge’s reading of the instructions to the jury did not contain the judge’s reading of instructions 10 and 11 to the jury. Her explanation for having included instructions 10 and 11 as part of the trial court’s charge to the jury was that she was given these two refused instructions by the assistant State’s Attorney. If the court reporter stenographically recorded the trial judge’s reading of the instructions as the judge read them, as she testified she did and as her notes originally reflected she did, then there is no plausible explanation for her including refused instructions 10 and 11 in the record as having been read by the judge in his charge to the jury, except the judge in fact read them to the jury.
The case at bar does not involve the correction of an erroneous instruction occasioned, as in Allen, by mistaken stenographic notes. Rather, the instant case involves the original inclusion of two refused instructions and thereafter the exclusion of the two refused instructions from the reporter’s stenographic notes. The case at bar involved stenographic notes which were sworn to have existed but which were later sworn never to have existed. In Allen, the explanation for the erroneous addition to the instruction was plausible and acceptable. In the case at bar, the explanation for the inclusion and subsequent exclusion of instructions 10 and 11 was implausible and unacceptable.
The authenticity and integrity of a record on appeal demands far more than that which was shown in this case. Based on the original record on appeal and the subsequent proceedings in the trial court to correct the record on appeal, no convincing or persuasive conclusion can be reached that refused instructions 10 and 11 were not read to the jury by the trial judge. I therefore dissent. I would reverse the judgment of conviction and remand the cause for a new trial.