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09/27/89 the People of the State of v. Tony Franklin

September 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TONY FRANKLIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

545 N.E.2d 346, 189 Ill. App. 3d 425, 136 Ill. Dec. 822 1989.IL.1521

Appeal from the Circuit Court of Cook County; the Hon. Matthew J. Moran, Judge, presiding.

APPELLATE Judges:

JUSTICE CERDA delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CERDA

The defendant, Tony Franklin, was convicted following a bench trial of involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9-3) for the shooting death of Michael Whitaker. The trial court sentenced the defendant to four years' imprisonment and two years' mandatory supervised release. The defendant contends on appeal that his conviction must be reversed because the shooting was an accident. In the alternative, the defendant requests a new trial, contending that the trial court erred in denying his motion to suppress inculpatory statements he gave to the police and to the assistant State's Attorney on the ground that he did not knowingly, voluntarily, and intelligently waive his Miranda rights because he was intoxicated during interrogation. Finally, the defendant argues that the trial court was authorized to impose only one year of mandatory supervised release as involuntary manslaughter is a Class 3 felony.

The trial testimony revealed that on August 10, 1986, the defendant and the victim, Michael Whitaker, had been drinking in celebration of the defendant's birthday at 7514 South Winchester in Chicago. Also present were the defendant's brother and sister, Raffe Franklin and Erline Franklin, the defendant's girl friend, Charlotte Brown, and Carlton Thompson. Everyone present, including the victim, all lived at the same address. The drinking began the previous day at 6 p.m. and lasted until 4 a.m. or 5:30 a.m. that morning. At 9 a.m., Raffe Franklin and Michael Whitaker left to purchase liquor and cigarettes. Upon their return, the party resumed and more alcohol was consumed. The testimony revealed that around 12 p.m. the defendant and his brother began wrestling. Erline Franklin stated that the two brothers were playing, but Carlton Thompson testified that they were actually arguing. After the argument, everyone except the defendant left to go outside. Carlton Thompson slept in a car parked in front of the residence. At some point, the defendant threw a table and a chair through the front door and asked Michael Whitaker to come inside. A few minutes later, Erline heard a shot, whereupon she woke Thompson from his sleep so he could investigate. Thompson went inside and found the defendant in his bedroom sitting on a couch with his head down and a shotgun on a nearby table. Michael Whitaker was on the floor in the opposite corner with a fatal gunshot would in the head.

The defendant did not testify at trial. However, the testimony from the motion to suppress hearing was stipulated to and incorporated into the trial record. That testimony revealed that when the police arrived, the defendant told them he had shot the victim in his bedroom. The police smelled alcohol on Franklin's breath, and they could tell he had been drinking. Franklin related that he had been sitting on a couch in his bedroom when Whitaker entered and an argument ensued. The defendant told police that Whitaker "came at him" and so he picked up a gun which had been lying on his bed. As he stood up, he stumbled and fell backwards, causing the shotgun to discharge, striking and killing Michael Whitaker. The police read Franklin his Miranda rights, and Franklin answered in the affirmative when asked if he understood those rights. After being advised of his rights, Franklin agreed to talk and repeated his story. When asked for the location of the gun, the defendant informed the police that he had thrown the weapon on the el tracks near his home because he had panicked. After the defendant was handcuffed behind his back, he led police to the area where he stated he threw the gun. A search of the area failed to produce the weapon; however, the police later discovered that the gun had been disassembled and hidden at the home of Carlton Thompson's mother.

Detective Krippel interrogated Franklin at approximately 3:30 p.m. at the station. An assistant State's Attorney again questioned Franklin at 4:30 p.m. On both occasions, Franklin was advised of his Miranda rights and indicated he understood those rights. The detective testified that the defendant had initially described a version of events different from that given to the arresting officers. According to Detective Krippel, Franklin stated that he heard noises in the house and someone "shuffling." Franklin retrieved his shotgun from his bed and the gun accidentally discharged, striking a person in the next room. When Detective Krippel asked for more details, Franklin changed his story, giving an account similar to the one he gave to the arresting officers. The detective stated that he could smell alcohol on the defendant's breath, but that the defendant was responsive to his questions and his answers were intelligible. Detective Krippel was also present when the assistant State's Attorney questioned Franklin.

The assistant State's Attorney testified that the defendant had told him that the argument involved two other individuals and not Whitaker, but that something was said between Whitaker and the defendant when Whitaker entered the defendant's room. The assistant State's Attorney testified that the defendant was responsive to his questions and detailed in his description of the crime scene and the shooting. The assistant State's Attorney terminated the interview but indicated to Krippel that he intended to return the following day to reinterview the defendant. Krippel testified that the assistant State's Attorney discontinued interviewing the defendant and the witnesses because everyone had been drinking and the attorney wanted them to remember the facts as they occurred. The assistant State's Attorney, however, denied making that statement to Krippel. The assistant State's Attorney returned the following day, but the defendant produced a piece of paper with a phone number and requested to speak to a public defender before making any statements.

The assistant State's Attorney dialed the number and talked to a public defender. Thereafter, Franklin spoke to the public defender and invoked his right to remain silent. There was conflicting testimony as to what was said between the assistant State's Attorney and the public defender. The public defender testified that the assistant State's Attorney told him he needed to reinterview the defendant because he did not think that Franklin's statement from the day before would hold up in court. The assistant State's Attorney denied making any such statement.

On appeal, the defendant maintains that the act of picking up the shotgun was a lawful act in self-defense and that the shooting was an accidental outgrowth of that lawful act. The defendant argues that the shooting was an accident because the alcohol in his system caused him to stumble, which in turn caused the shotgun to discharge. Therefore, the defendant asserts that the necessary element of recklessness for involuntary manslaughter is absent as the shooting was caused by an involuntary act. The State contends, however, that the trial court correctly found that the mere handling of the weapon in his intoxicated state was reckless.

Section 9--3 of the Criminal Code of 1961 provides:

"A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he ...


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