People v. Burchette

Decision Date29 December 1993
Docket NumberNo. 1-90-0591,1-90-0591
Parties, 195 Ill.Dec. 550 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Franklin BURCHETTE, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Jack O'Malley, State's Atty., Chicago (Renee Goldfarb, James Fitzgerald, Michelle Katz, of counsel), for defendant-appellant.

Michael J. Pelletier, Deputy Defender, Office of State Appellate Defender, Chicago (Alan D. Goldberg, Charles Hoffman, of counsel), for plaintiff-appellee.

Justice RIZZI delivered the opinion of the court:

Following a jury trial, defendant, Franklin Burchette, was convicted on three counts of murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1), and sentenced to natural life in the Illinois Department of Corrections. Defendant now appeals. We affirm.

The issues for review by this court are (1) whether defendant was afforded effective assistance of counsel on the basis that he did not receive conflict free representation (i) because he filed a disciplinary complaint against defense counsel which created a conflict of interest, and (ii) because defense counsel was employed on a part-time basis as a village prosecutor in non-criminal cases; (2) whether defendant received ineffective assistance of counsel when defense counsel failed to call certain witnesses to testify at the hearing on the motion to quash arrest and suppress evidence; (3) whether the trial court erred in denying defendant's motion to reopen a hearing on his motion to quash arrest and suppress evidence; (4) whether defendant received ineffective assistance of counsel when defense counsel failed to move for reconsideration of the trial court's denial of defendant's motion to quash arrest and suppress evidence; (5) whether defendant was denied a speedy trial under section 103-5(a) of the Speedy Trial Act (Ill.Rev.Stat.1983, ch. 38, par. 103-5(a)); (6) whether defendant received ineffective assistance of counsel when defense counsel failed to file a motion for a discharge under section 103-5(a) of the Speedy Trial Act (Ill.Rev.Stat.1983, ch. 38, par. 103-5(a)); (7) whether defendant was denied his right to be present at a critical stage of the proceedings; (8) whether defendant waived his right to testify; (9) whether defendant received ineffective assistance of counsel when defense counsel (i) stated that he was not sure what the evidence would prove and that he did not know what his witnesses would say, (ii) elicited hearsay testimony and made improper remarks during trial, and (iii) failed to object to hearsay testimony elicited from defendant's father by the State regarding an inculpatory statement allegedly made by defendant to his mother; (10) whether defendant was prejudiced when the State moved for a directed finding in the presence of the jury; (11) whether defendant received ineffective assistance of counsel when defense counsel (i) failed to ask the jury to find defendant "not guilty" during the defense's closing argument, and (ii) failed to tender Illinois Pattern Jury Instructions, Criminal, No. 2.04 (Illinois Pattern Jury Instruction, Criminal, No. 2.04 (2d ed. 1991) (hereinafter I.P.I. Criminal 2d)); and (12) whether the trial court erred in failing to appoint new counsel to represent defendant on his post-trial allegations of ineffective assistance of counsel.

On May 18, 1984, Angela Burchette decided to leave her husband, defendant. Angela called her mother, Matilda Franks, and asked for assistance. Angela's brother, Robert Anthony Franks, and her sister, Delois Daniel, responded. Franks and Daniel helped Angela and her two children move out of her residence with defendant and into her mother's home. Defendant tried to stop Angela from leaving but Robert prevented him from compelling her and the children to stay.

Angela's sisters, Felicia Franks and Delois Daniel, along with Delois' three children Shamar, Robert ("Robbie") and Latoisha ("Toby"), were living at 7701 South Kingston in Chicago, Illinois. On the morning of May 23, 1984, the telephone rang at the Franks-Daniel residence between 8:30 and 9 a.m. Felicia answered the telephone. Defendant was calling and he asked Felicia why she was at home. Felicia and Delois usually left home for work early in the morning between 5 a.m. and 5:45 a.m. Felicia told defendant that she was not at work because she had a doctor's appointment. Defendant then hung up.

Between 10:30 and 11 a.m., on that same day, defendant called Matilda Franks' house. Angela's brother Robert answered the telephone. Defendant asked to speak to Angela, but Robert told him that Angela did not want to speak to him. Between 5 p.m. and 5:30 p.m., defendant arrived at Matilda's home and asked her if Angela would be willing to speak with him. Matilda walked away and talked to Angela and then returned to speak to defendant. Matilda told defendant that Angela was still unwilling to speak with him, however, but that Angela wanted to get a layaway ticket from him and that she wanted to go back to their home and retrieve her children's clothes and her television set. Defendant left.

At approximately 7 p.m. on that same day, defendant called Delois again and told her that he wanted to talk with Angela and convince her to return to him. Delois told defendant that she "didn't have anything to do with it and that it was between them."

On the following morning, May 24, 1984, Delois and Felicia woke up early as usual and left for work. Shamar, Robbie and Toby were still asleep when the women left for work. Shamar owned a small black and white television and Robbie owned a baseball bat which was kept in a corner of a room. Delois returned home at about 5:30 p.m. that evening. When no one answered the doorbell, she walked around to the back door whereupon she noticed that the window had been knocked out. In addition to the broken back door window, the telephone was broken and Shamar's television was gone. Delois called her children's names but received no answer. She then discovered that Shamar, Robbie and Toby were all dead. Robbie was lying face down on a bed with a blanket over him in the children's room. Toby was lying on the floor in the same room next to a second bed with a blanket wrapped around her. Shamar was in Delois' bedroom covered by a blood stained blanket. The headboard on Delois' bed and the wall above it were splattered with blood. A piece of wire and a piece of wood were both recovered from Delois' bed by the police. Dr. Robert Stein, the Cook County Medical Examiner, testified that all of the children died as a result of cerebral injuries sustained from blunt trauma to the brain.

Interviews of family members by the police led them to seek defendant for questioning. Detectives Michael Rowan and James O'Rourke along with Sergeant John Manos went to defendant's apartment at 5112 South May, in Chicago, Illinois. The police officers initially spoke to defendant's sisters. Detective Rowan testified that while he was speaking to defendant's sisters, defendant approached the policemen and asked them if they wished to speak to him. The detectives asked defendant if he would be willing to assist them in their investigation of the childrens' deaths. Defendant replied that he "would be glad to," and he accompanied the police to the Area 2 police headquarters. While at the police station, defendant signed a consent to search form for both his car and his home, and he gave the police his house keys.

The police recovered wire from defendant's car and apartment. The wire from Delois' bed matched the piece of wire found in defendant's apartment, the two pieces having originally been one complete piece. The piece of wood later tested positive for human blood. In addition, blood found on defendant's pants was tested and found to be consistent with Shamar's blood, which was type A, a type common to only 25 in 100,000 people. It was also scientifically determined that the blood could not have come from defendant.

While defendant was at Area 2 headquarters, he made a number of statements to the police. Initially, defendant denied any involvement in the murder, claiming that he was with his cousin, Willie Allen, all day on the date in question and that the red spot on his pants was ketchup and not blood. Defendant then admitted his involvement but refused to relate details unless permitted to speak to Angela first. Angela was then brought to Area 2 headquarters where she spoke with defendant.

After defendant spoke to Angela, Detectives Joseph DiGiacomo and John Solecki interviewed defendant, at which time he told the detectives that he set up what he thought would be "just" a burglary and that he gave a "junkie" the keys to Delois' apartment so that the junkie could steal a television set. Defendant claimed that the junkie was supposed to go to the apartment after 9 a.m. when the children would be in school, get the television and then leave after which he and the junkie would split the proceeds of the sale of the television. Defendant told police that the junkie told him that he had to kill the children and that he exchanged clothes with the junkie which is how the ketchup, now acknowledged to be blood, ended up on his pants. The detectives indicated that they were skeptical of defendant's story, at which time defendant rendered still another version of the events.

This time, defendant claimed that he went to Delois' apartment with "Dwayne" and that when they got there Robbie awakened and saw Dwayne. Defendant maintained that when Robbie awakened he told Dwayne "don't worry," but that Dwayne struck Robbie with the baseball bat while defendant was stealing the television set, and that Dwayne also went into another room where he struck Shamar and Toby with the bat. Defendant claimed that he then drove Dwayne through Washington Park whereupon he saw blood on the bat and he threw the bat away. The bat was never...

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