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People v. Franklin

OPINION FILED MARCH 9, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN FRANKLIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County, wherein the defendant, John Franklin, was convicted of the crime of rape, after a jury trial. The trial court sentenced the defendant to a term of not less than 10 nor more than 30 years in the custody of the Department of Corrections.

The issues presented to review are: (1) whether the trial court erred in allowing into evidence two statements of the defendant made to police; (2) whether the trial court erred in barring certain items of defendant's testimony; and (3) whether the prosecutor's comments regarding defendant's failure to call certain witnesses denied defendant a fair trial. Defendant has also filed a pro se brief in which he raises numerous additional issues.

The defendant was charged with rape and deviate sexual assault. He was convicted of raping Ms. Vivian Parrow on September 29, 1977, and acquitted of deviate sexual assault.

Prior to his trial the defendant moved to suppress certain statements made by him at the time of his arrest. The defendant admitted making a statement to the police prior to the reading of his rights, when he was informed he was being taken into custody for rape. The trial judge ruled that the voluntary statements made prior to the giving of the warnings were admissible. The court then told the prosecutor that if he intended to introduce any other statements into evidence he should state as such, for purposes of the motion to suppress. His answer was that the only statement he sought to introduce was made prior to the giving of the warnings.

The first witness to testify at trial was the complainant, Ms. Vivian Parrow. Ms. Parrow was a 23-year-old married woman. She testified that on September 29, 1977, she visited her mother's house until about 2:30 a.m. After leaving, she walked to 39th and King Drive, in Chicago. She boarded a bus there and got off on 47th Street. She transferred buses and got off about one and one half blocks from her home, which was located at 4947 South Federal Street.

While she walked toward her home, Ms. Parrow heard footsteps behind her. She described the footsteps as "coming faster and faster." Suddenly, from behind, a man put a knife to her neck, and said if she cried out he would cut her throat. Ms. Parrow, who was six months pregnant at the time, begged her attacker not to harm her or the baby. The man led her away with his left hand. He took the scarf she was wearing and placed it over her eyes.

The man took her through a series of parking lots. While walking on one of the parking lots, Ms. Parrow fell on her back. The man continued to hold the knife to her throat as he unzipped his pants and forced her to engage in fellatio. He then pulled her pants off one leg and started to remove her panties. He then forced her to engage in sexual intercourse. Soon after this occurred, the police arrived. They helped Ms. Parrow to her feet and took her to Billings Hospital. She noticed that she suffered a bruise to the middle part of her back. There was a stipulation that a swab specimen taken from her vagina on the morning of September 29, 1977, revealed spermatozoa indicative of the presence of semen.

The next witness to testify for the State was an officer of the Chicago Police Department. On the morning of September 29, 1977, he was a patrolman. While at 55th and Indiana Avenue, the officer received a radio communique to proceed to the housing project on South Federal Street. The officer entered a parking lot which was about three quarters full. Seeing nothing unusual in the lot, he drove through a second lot. He soon arrived at a lot opposite 4845 South Federal Street, where he observed a head which appeared above the hood of a car. He saw two persons, one kneeling in a crouched position and the other, a woman, on the ground. The officer noticed that the woman's legs were spread and her pants were pulled down over her right leg. The man was kneeling over the woman and had something in his hand, which was pointed at the woman's throat. When the officers announced their office the man dropped the object he was holding. As the officer moved toward the two individuals the man adjusted his pants. After identifying the defendant as the man he saw kneeling over the woman, the officer testified that he found a knife at the spot where he saw the defendant drop the object which he had pointed to the woman's throat. On cross-examination the officer said Ms. Parrow had not told him the defendant forced her to engage in fellatio.

The defendant then testified in his own behalf. He admitted being convicted of murder in 1964. He said that on September 29, 1977, he saw Ms. Parrow while driving southbound on State Street, and she began waving to him. He said that he was returning from a visit with his sister in Chicago Heights. The defendant said he had met Ms. Parrow twice previously. The first time he met her was in June at 47th Street and Indiana Avenue, where he spent the rest of the day with her. He said that his next contact with her was in July when she telephoned him. He asked her to go with him to the "69" Club, but she said that she did not have anything to wear. The defendant then bought her a two-piece suit from Goldblatt's Department Store for about $34. He was then asked what his salary was at the time. The assistant State's Attorney objected to the question's relevancy, but the court overruled the objection. The defendant said he delivered the clothes to her that Saturday when he again met her at 47th Street and Indiana Avenue. He said that he then took her to visit a friend of his named Bernard Vance.

When the defendant saw Ms. Parrow on September 29, 1977, he pulled his car into a lot and came over to speak with her. The defendant said he asked to walk her home. As they were walking, he asked her if she felt like having sex. She replied that she was not in the mood. The defendant then took out a $20 bill and asked her if that would take care of it. He said he then placed the money in her hand. The defendant said that as Ms. Parrow took the money she dropped a knife, which he then picked up and put in his pocket. He testified that Ms. Parrow did not want to go to his car to have sex, so he began to fondle and kiss her while they were in the parking lot.

The defendant denied they engaged in fellatio. He also denied having intercourse with her because he could not get an erection. He denied holding a knife on her or putting a scarf over her eyes. The defendant was then asked where he was working when he got paid that week and what he did for a living. However, the court sustained objections to all of those questions. The defendant then testified that Ms. Parrow called him while he was receiving mental treatment, subsequent to his arrest. She identified herself as Vivian and they talked for about five minutes. The defendant said Ms. Parrow asked him for money, and if paid, she would come to court and "tell the truth."

On cross-examination, the defendant said he did not realize Ms. Parrow was pregnant. He said he did not want to take her to a hotel and that she declined to return to his car to have sex. He denied telling the police that he had done wrong, but rather said he told them, "I had been arrested before." He also denied telling the police that he had been contemplating doing this for three months. The defendant then testified that while at the scene of the occurrence the officer said he was taking the defendant in for rape and he replied that this was not a rape. He said that if anything they could only charge him with attempt rape, but that he didn't even do that. He said he was then pushed into the squad car and advised of his rights.

In rebuttal, the officer was recalled to the witness stand and testified as to two statements made by the defendant. The officer testified that the defendant said, "I've done wrong" when he was arrested. The officer further testified that the defendant said, "I was contemplating doing this for three months." The officer testified that the defendant said nothing to him about knowing Ms. Parrow ...


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