also dissenting:
The manner in which this case was heard in the appellate court denied defendant the right to due process and effective assistance of counsel. Therefore, I respectfully dissent.
In a bench trial, the trial judge found defendant guilty of first degree murder based almost entirely on the strength of a post-arrest statement. Defendant’s statement was admitted into evidence and read silently by the trial judge, but erroneously excluded from the record on appeal.
Defendant’s appellate counsel, who was new to the case and who had not seen the statement, discovered that the statement was not part of the record and responsibly sought to supplement the record so he could prepare an appeal. The State objected to turning over the statement, which it held in its files, mysteriously claiming that the record on appeal was complete. The appellate court ultimately denied defendant’s motion to supplement the record.
Without having seen the statement, defendant’s counsel was forced to brief the issue of whether defendant was proven guilty beyond a reasonable doubt without referring to the sole evidence on which the trial judge found a sufficient basis to convict. The State also did not refer to the contents of defendant’s statement in its brief, having argued that the record was complete without the statement.
Despite the fact that the statement was not read into the transcript in the trial court, was not part of the common law record on appeal and had not been argued by the parties, the appellate court relied upon the content of defendant’s statement in finding that the evidence was sufficient to convict him. No. 1 — 95—3666 (unpublished order under Supreme Court Rule 23) ("In his confession, defendant told the police that he held the victim and kicked him during a gang meeting at Sheila’s apartment”). The appellate court apparently gleaned this information from trial testimony, prosecutor arguments or the judge’s comments about the statement made when finding defendant guilty of the murder.
Defendant thereafter filed a petition for rehearing, arguing that the appellate court must have overlooked that the statement was not made part of the record on appeal. The State, apparently sensing it had erred in objecting to defendant’s motion to supplement the record and in arguing that the record was complete, responded to the petition for rehearing by now offering defendant’s statement from its files. The appellate court this time granted the motion to supplement the record. The appellate court then rendered a modified order upon denial of rehearing again basing its affirmance on the content of defendant’s statement. This procedure denied defendant’s counsel any opportunity to brief and argue in the appellate court the evidentiary value of defendant’s statement.
A majority of this court determines that the absence of defendant’s statement from the record on appeal is a circumstance chargeable to the defendant. Although it is certainly true that the party alleging error generally has the responsibility to preserve the record on appeal, here the defendant sought to fulfil that responsibility upon learning the record was incomplete by requesting that the State provide an important exhibit in its possession. I believe that the appellate court erred in refusing this request. The amendment of a record is governed by Supreme Court Rule 329 (134 Ill. 2d R. 329), which is a "broad provision” intended to facilitate the amendment of the record where necessary to supply omissions or correct inaccuracies. People v. Chitwood, 67 Ill. 2d 443, 447 (1977).
The majority determines the appellate court did not err in rejecting defendant’s motion because a defendant cannot compel the State to supply exhibits in its p Dssession. Why not? How else is a defendant going to c btain this document while it is in the State’s files? Ruis 329 provides that the appellant may be forced to pay costs of supplementing the record, but it says nothing about relieving the State from any responsibility to turn over a confession from its files in a murder case.
Unlike the majority, I do not believe that defendant’s duty to insure a complete record on appeal relieves the State from the duty to produce a confession in its files inadvertently omitted from the record on appeal. Constitutional principles of due process and effective assistance of counsel require something more than affirming a murder conviction based upon critical evidence not part of the record on appeal. I would therefore order the appellate court to rehear the case, after giving defendant’s counsel and the State the opportunity to brief and argue the reasonable doubt issue with the benefit of the statement as part of the record.
JUSTICES BILANDIC and McMORROW join in this dissent.