People v. Franklin, 78-1639

Citation398 N.E.2d 1071,35 Ill.Dec. 121,80 Ill.App.3d 128
Decision Date27 December 1979
Docket NumberNo. 78-1639,78-1639
Parties, 35 Ill.Dec. 121 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Duane FRANKLIN, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois
[35 Ill.Dec. 122] James J. Doherty, Public Defender, Chicago, for defendant-appellant; James H. Reddy, Asst. Public Defender, Chicago, of counsel

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Marcia B. Orr, James S. Veldman, Asst. State's Attys., Chicago, of counsel.

LINN, Justice:

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 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.

[35 Ill.Dec. 123] and defendant's shorts showed stains from spermatozoa.

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.

OPINION
I

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 prompt preliminary hearing to establish probable cause."

The Illinois Supreme Court construed this constitutional provision in People v. Kent (1972), 54 Ill.2d 161, 163, 295 N.E.2d 710, 711, where the court stated:

"The constitutional reference to a right to a preliminary hearing is new. As we read the provision before us, it appears to be designed to insure that the existence of probable cause will be determined promptly by a grand jury or by a judge."

Thus, an accused is entitled to a prompt preliminary hearing unless initially proceeded against by way of grand jury indictment. The critical consideration in either a preliminary hearing or grand jury indictment is that probable cause be determined promptly. See People v. Kent (1972), 54 Ill.2d 161, 295 N.E.2d 710; People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724; People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Moore (1975), 28 Ill.App.3d 1085, 329 N.E.2d 893.

Once a defendant is properly indicted, the necessity for a preliminary hearing to establish probable cause is vitiated. (People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724.) If a defendant is initially charged by criminal complaint, but is indicted for the same crime prior to a prompt preliminary hearing on the complaint, he is not constitutionally entitled to a preliminary hearing. (People v. Hendrix (1973), 54 Ill.2d 165, 295 N.E.2d 724; see People v. Arbogast (1976), 41 Ill.App.3d 187, 353 N.E.2d 434.) Moreover, a finding of no probable cause at a preliminary hearing does not bar a subsequent indictment for the same offense. People v. Kent (1972), 54 Ill.2d 161, 295 N.E.2d 710.

We do not agree with defendant that these alternative methods of instituting criminal proceedings constitute an unreasonable classification in violation of the equal protection clause of the state or federal constitutions. A state may, consistent with due process, dispense with the preliminary hearing procedure and authorize the prosecutor to initiate the criminal proceedings directly. (Lem Woon v. Oregon (1913), 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340; People v. Redmond (1977), 67 Ill.2d 242, 10 Ill.Dec. 250, 367 N.E.2d 703, Cert. denied, 434 U.S. 1078, 98 S.Ct. 1272, 55 L.Ed.2d 785.) Under the state constitution, a defendant is not entitled to a preliminary hearing as a right, but to a probable cause determination made either in a preliminary hearing or by a grand jury with reasonable promptness. (People v. Arbogast (1976), 41 Ill.App.3d 187, 353 N.E.2d 434.) Both procedures serve the function of determining probable cause and to require a repetition of this function by initiating post-indictment preliminary hearings would be an empty formality serving no legitimate purpose. People v. Moore (1975), 28 Ill.App.3d 1085, 329 N.E.2d 893.

Defendant argues that certain benefits adhere to the preliminary hearing proceeding, unfairly discriminating against that group of defendants who are proceeded against by indictment. In support of this contention he cites People v. Duncan (1972), 388 Mich. 489, 502, 201 N.W.2d 629, 635, in which the Michigan Supreme Court held that, "(i)n all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist." However, Duncan was not decided on constitutional grounds, but rather on the basis of the court's inherent supervisory power in the area of criminal procedure.

We also decline to follow the precedent set in Hawkins v. Superior Court (1978), 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, where the California Supreme Court concluded that the denial of a post-indictment preliminary hearing deprived the accused of equal protection of the laws guaranteed by article I, section 7 of the California Constitution. Hawkins was decided solely on the basis of the state constitution, although supporting language in the opinion suggests that the court believed the federal constitutional guarantee of equal protection was also violated. A strong dissent in Hawkins noted that no other federal or state court appears to have held that a post-indictment hearing is required as a matter of constitutional law. In fact, several jurisdictions have rejected the arguments advanced by the defendant in this case. See Seim v. State (Nev.1979), 590 P.2d 1152; State v. Serl (S.D.1978), 269 N.W.2d 785; Lataille v. District Court (1974), 366 Mass. 525, 320 N.E.2d 877; Commonwealth v. McCloskey (1971), 443 Pa. 117, 277 A.2d 764, Cert. denied, 404 U.S. 1000, 92 S.Ct. 560, 30 L.Ed.2d 552.

Although the United States Supreme Court has recognized that the preliminary hearing is a "critical stage" of the state's criminal process (Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387), it has never determined that a preliminary hearing is required. We conclude that the discovery and impeachment functions which are incidental byproducts of the preliminary hearing proceeding are not independent rights to be asserted apart from...

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