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People v. Johnson

OPINION FILED FEBRUARY 25, 1982.

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

v.

FRANKLIN T. JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD M. FIALA, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant, Franklin T. Johnson, was found guilty of rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1(a)) and deviate sexual assault (Ill. Rev. Stat. 1975, ch. 38, par. 11-3(a)). He was sentenced to 100 to 200 years for rape and 50 to 100 years for deviate sexual assault. From that judgment and the sentences, defendant appeals.

The following issues are raised for review: (1) whether the evidence obtained as a result of defendant's arrest should have been suppressed; (2) whether defendant was prevented from testifying because of the trial court's alleged erroneous ruling that the State could impeach him with his prior convictions; (3) whether the trial court erred in allowing Officer Cannon to testify about a hearsay police radio report which implicated defendant in another rape; (4) whether the lineup and identification procedures used by the police were unnecessarily suggestive; (5) whether defendant was proved guilty beyond a reasonable doubt; (6) whether the prosecutor improperly influenced the grand jury by withholding evidence favorable to the accused; and (7) whether defendant's sentence was excessive and in violation of the Illinois Criminal Code.

We affirm and modify.

The testimony at trial was as follows. The complaining witness testified that on July 6, 1977, she was 15 years old and was baby-sitting for her neighbors. She took the child outdoors for about an hour. En route back to the apartment, they turned the corner and nearly bumped into a man. The witness described the man as a black person, about 6 feet in height, weighing 200 pounds, and having dark close-cropped hair and a slight mustache. He wore white painter's pants and a blue and red striped shirt with a white line running through it. He also wore sunglasses that were tinted darker at the top than at the bottom. A blue and white bandana was tied around his head and he carried an orange hand towel.

When the complaining witness and the child returned to the apartment, the child went into her bedroom and complainant went into the living room to put on some earrings. She turned around and saw a man — the same man she had nearly bumped in to on the street — whom she identified as defendant, standing in the doorway with a towel in his hand. Defendant told her not to say anything. He walked toward her and she backed away. He kept coming toward her as she backed away and asked him to "please go away." Defendant gave her the towel and told her to go into the bedroom. He asked her about the little girl. She told him the child was in another bedroom. He went to look for her and complainant began screaming. Defendant ran through the living room into the bedroom, jumped on complainant and began choking her with his arm, ordering her to "shut up." She stopped screaming and began to whimper. He released her; she rolled over and the towel fell from the bed. Defendant told her to put the towel around her face. He asked her when would her husband arrive; complainant told him that she was only 15 and was not married. He then asked when the child's parents would be arriving. Complainant responded that she expected them in 15 or 20 minutes. Defendant ordered her to remove her pants and she did so. He then had oral sex and sexual intercourse with her. Thereafter, he told her to roll over and to give him the towel; she was not to look at him. He then tied her feet with a scarf and left through the back door.

The victim wiggled out of the scarf, checked the apartment, locked the back door, called her mother, and then called the police. She was taken to the hospital and examined. Later, she gave a report to a police officer.

On July 14, 1977, the victim went to the Evanston Police Department to view a lineup. In the first lineup she viewed, she stated that her attacker resembled one of the men but sounded like another man. She then asked to see the lineup again. The second time, she "had to mentally put glasses on them all." She then chose defendant as her attacker. The victim viewed a photograph of the lineup in court and indicated that defendant, the number three man in the photograph, was her attacker.

Defendant's motion in limine to bar the State from introducing, through Officer Cannon, any data the police had in their July 14, 1977, rape report was denied.

Officer Glen Cannon testified that he is employed by the Evanston Police Department and on July 14, 1977, he was on duty. A few days prior to that date, at roll call, he and other officers had received information concerning a person who was a suspect in the rape in the instant case. The composite described a heavy-set, muscular black male, approximately 5 feet 11 inches to 6 feet in height and weighing 200 pounds, who had close-cropped hair, balding on top. There was also a description of a possible red sports car or a red Volkswagen Beetle.

On July 14, 1977, a radio dispatch indicated that a rape had just occurred at an address near the address of the July 6 rape in Evanston. The description Officer Cannon heard was one of a black male, heavy-set, who had close-cropped hair. Officer Cannon was driving westbound on Lake Street, in Evanston. When he stopped for a red light at Ridge and Lake, he observed a red Volkswagen coming north on Ridge Avenue. As the car passed his vision, he noticed the driver was heavy-set and had close-cropped hair. He followed the car, stopped it, and took the driver (defendant) to the Evanston Police Station.

On cross-examination, Officer Cannon stated that he had stopped one or possibly two other people driving red Volkswagens and had not filed any police reports pertaining to those stops.

Foster Taylor testified that on July 6, 1977, he worked for a car dealer located behind the apartment building where the rape in the instant case occurred. On that day, he stepped outside the door to get some air and noticed a man had put some overalls by the garbage can. The man was wearing painter's overalls and got into a red Volkswagen; he drove very fast down the alley. Taylor thought the man had put the overalls in the red Volkswagen. Taylor stated that police came over later and he told them what he had observed. On July 14, 1977, he went to the Evanston Police Department to view a lineup where he identified defendant as the man he saw driving down the alley on July 6. He described defendant as a black male in his late thirties or early forties who had a bald spot on his head. After this testimony, the State rested. Then the defense rested its case. Subsequently, the jury returned a verdict of guilty of all charges.

Defendant contends the evidence obtained as a result of his arrest should have been suppressed because the police officer lacked probable cause to make the arrest. Further, defendant asserts that Officer Cannon did not observe anything unusual about defendant or his car prior ...


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