APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1980.
Defendant, Duane Franklin, was charged by indictment with murder, rape and burglary (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1, 11-1, 19-1). His motion to quash the indictment or be granted a post-indictment preliminary hearing was denied. After a jury trial in the circuit court of Cook County, defendant was found guilty of all charges and sentenced to a term of 200 to 600 years for the murder and rape, and a concurrent term of 6 to 20 years for burglary.
On appeal, defendant contends: (1) that the denial of a post-indictment preliminary hearing deprived him of equal protection of the laws as guaranteed by the State and Federal constitutions (Ill. Const. 1970, art. I, § 2; U.S. Const., amend XIV); and (2) that, in imposing sentence, the trial court penalized him for exercising his right to a jury trial.
We affirm defendant's conviction and sentence.
Defendant was first charged with the June 10, 1976, rape and murder of Susan Greer and the burglary of her apartment by complaint for preliminary examination. While the complaint was pending and before a preliminary hearing had been held, defendant was indicted by the Cook County Grand Jury on the same charges. Defendant moved to quash the indictment or be granted a preliminary hearing: his motion was denied.
During plea negotiations prior to trial, defendant was allegedly offered a sentence of 18 to 50 years in exchange for a plea of guilty. The record does not contain a transcript of these negotiations or indicate whether the trial judge participated in them. Nonetheless, defendant persisted in his right to a jury trial and the trial proceeded.
The State's evidence disclosed that the victim, Susan Greer, resided in an apartment building at 2616 North Hampden Court in Chicago. Greer had sublet the apartment from James Cooke, an acquaintance of the defendant, at the beginning of June 1976. In a conversation with the defendant on June 9, 1976, Cooke mentioned that Greer had sublet his apartment. Late in the evening on June 9, other residents of Greer's apartment building were summoned by their door buzzer and admitted a man identified as defendant to the building. Defendant stated that he was looking for James Cooke and was told that Cooke no longer lived in the building. Early the following morning, defendant returned to Greer's building and was again told by one of the residents that Cooke had moved out. Twenty minutes later, defendant was seen outside Greer's door. On the evening of June 10, Greer's body was discovered by one of the tenants.
Defendant was apprehended near his apartment building. Analysis of bloodstained clothes found in defendant's apartment revealed stains of the same blood type as that of the victim. Traces of blood were found in scrapings from defendant's fingernails, and defendant's shorts showed stains from spermatozoa.
Defendant's former wife was called by the defense. She stated that defendant left their apartment around midnight on June 9 and returned an hour or an hour and a half later. On the morning of June 10, defendant drove her to work shortly after 7 a.m. An acquaintance of the defendant testified that he could not recall whether he had seen defendant on June 9 or 10. The defense rested.
The jury returned verdicts of guilty on all counts of the indictment. Following a hearing in aggravation and mitigation, at which defendant's prior rape conviction was revealed, defendant was sentenced to 200 to 600 years for murder and rape and received a concurrent 6- to 20-year sentence for burglary. In his post-trial motion, defendant argued that the failure to grant him a preliminary hearing was a denial of equal protection. His post-trial motion was denied and defendant appeals.
Defendant first contends that the statutory scheme which denies an indicted defendant the right to a subsequent preliminary hearing violates that defendant's right to equal protection of the laws as guaranteed by the State and Federal constitutions. Prior to the effective date of the 1970 Illinois Constitution, there was no constitutional reference to a preliminary hearing. The 1970 Illinois Constitution, article I, section 7, provides, in part:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a ...