People v. Franklin

• Decision Date: 07 June 2012
• Docket Number: No. 3–10–0618.,3–10–0618.
• Citation: 970 N.E.2d 1247,2012 IL App (3d) 100618,361 Ill.Dec. 301
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Leon A. FRANKLIN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (3d) 100618

970 N.E.2d 1247

361 Ill.Dec. 301

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Leon A. FRANKLIN, Defendant–Appellant.

No. 3–10–0618.

Appellate Court of Illinois, Third District.

June 7, 2012.

Bryon M. Reina, State Appellate Defender's Office, Chicago, for appellant.

James Glasgow, State's Attorney, Joliet (Terry A. Mertel, Robert M. Hansen, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

[361 Ill.Dec. 302]¶ 1 Defendant, Leon A. Franklin, was convicted of two counts of aggravated criminal sexual abuse (720 ILCS 5/12–16(d) (West 2006)) and sentenced to two consecutive five-year terms of imprisonment. On appeal, defendant argues that (1) his due process rights were violated when the trial court instructed jurors that it was for them to decide the meaning of reasonable doubt; (2) he was denied a fair trial by the prosecutor's statements during closing argument that the State's evidence was “uncontradicted”; (3) the trial court did not adequately inquire into his pro se posttrial claim of ineffective assistance of counsel; and (4) the trial court abused its discretion in sentencing him to consecutive prison terms. We reverse, finding that the trial court's instruction to the jury regarding reasonable doubt violated defendant's constitutional rights.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with two counts of aggravated criminal sexual abuse against a minor, S.R., for placing his penis in S.R.'s vagina in December 2007 and on February 23, 2008.

¶ 4 During jury selection, the trial judge told the potential jurors:

“Beyond a reasonable doubt means beyond a reasonable doubt. It's what each of you individually and collectively, as 12 of you, believe is beyond a reasonable doubt.”

Thereafter, 12 jurors and 2 alternates were chosen, and defendant's trial began.

¶ 5 S.R. testified that on February 23, 2008, she was 16 years old. She was living in an apartment with Sonya Johnson, Johnson's four-year-old daughter, and defendant. Johnson is S.R.'s father's ex-girlfriend. Defendant is a friend of her father's, whom S.R. has known all her life.

¶ 6 According to S.R., on February 23, 2008, Johnson made plans to go out with her friend, Adrian Brown. Defendant was supposed to take S.R. and Johnson and Brown's children somewhere while Johnson and Brown were gone. After Johnson and Brown left Johnson's apartment, the children fell asleep in S.R.'s bedroom. While the children were resting, S.R. went into Johnson's bedroom to clean it. When S.R. was cleaning the room, defendant came to the doorway with his pants on the floor and a condom on his penis. Defendant walked toward her and put his penis inside her vagina. Defendant had sexual intercourse with S.R. for approximately 10 minutes until Johnson and Brown returned.

¶ 7 When Johnson and Brown came home, defendant got up, and S.R. went into her bedroom. As defendant was putting on his pants, Brown opened the door to Johnson's bedroom. According to S.R., Johnson and Brown then started yelling and screaming, and defendant got his coat and left. Later, the police came, and S.R. told the police what happened. Johnson took S.R. to the hospital.

¶ 8 S.R. testified that defendant also had sexual intercourse with her in December 2007. On that occasion, she was lying on the couch in the living room. Defendant laid down behind her, and, according to S.R., “[h]e just put his penis in my vagina.” The intercourse lasted about five minutes.

¶ 9 About a month earlier, S.R. woke up to find defendant laying behind her in her bed. Defendant said that he wanted to hold her. S.R. said, “no.” Defendant then “took out his penis” and rubbed it on her thigh. She told defendant that she was going to scream if he did not leave. Defendant got up and left.

¶ 10 Sonya Johnson testified that she met S.R.'s father, Lucius R., in 2006, and dated him a little over a year. When they broke up, in December 2007, Lucius asked Johnson to take care of S.R. Johnson agreed, and S.R. began living with Johnson.

¶ 11 On February 23, 2008, Johnson and Brown made plans to have defendant take S.R. and their children on an outing. Brown gave defendant $100 and the keys to her car. Johnson and Brown left first, ran some errands and returned to Johnson's home. When they came back, they were surprised to see that Brown's car was still there. When they entered the apartment, Brown walked past Johnson toward Johnson's bedroom. Johnson then heard Brown say, “Oh, my God; oh, my God; oh, my God.” Johnson walked toward her bedroom and saw defendant standing at the foot of her bed pulling up his underwear. Johnson noticed that the room had a musky odor and that her comforter “was messed up,” like someone had been in her bed.

¶ 12 Johnson asked defendant, “[H]ow could you do this to me; why would you do it; what are you thinking?” Defendant responded, “I don't know; it just happened; I didn't mean for it to happen.” Johnson then went to the back of the apartment to retrieve a baseball bat. When she returned, defendant was leaving. Johnson sat S.R. down and asked her what happened. S.R. “sat there real quiet.” Johnson called Lucius. After Johnson reached Lucius, she called the police. The police escorted Johnson and S.R. to the hospital “[t]o have a rape kit done.” A rape kit was not done because no parent was present at the hospital to consent.

¶ 13 Adrian Brown testified that she and Johnson left Johnson's apartment in the afternoon on February 23, 2008. After being gone for an hour-and-a-half to two hours, they decided to return to the apartment. Brown entered the apartment first and saw S.R. coming out of Johnson's bedroom. Brown pushed open the door to Johnson's bedroom and saw defendant pulling up his underwear. His pants were around his ankles. Johnson then went into her bedroom and started yelling at defendant. Brown told defendant that he needed to leave. Brown and Johnson contacted Lucius and called the police.

¶ 14 The State introduced into evidence a copy of defendant's birth certificate, showing his date of birth to be April 17, 1972, making him 35 years old on February 23, 2008. Defendant did not testify or present any witnesses on his behalf.

¶ 15 In closing argument, the prosecutor stated:

“Factually, its uncontradicted that these—those facts occurred. That he was in Ms. Johnson's bedroom when she wasn't home, when Ms. Brown wasn't there. When the only two in there were [S.R.] in the bedroom with the defendant, Leon Franklin. It's uncontradicted.

It's uncontradicted that he pulled down his pants and he inserted his penis in her vagina. That is uncontradicted evidence. It's uncontradicted that she's 16. It's uncontradicted he's 35. It's uncontradicted that there's a 19–year age difference.”

The prosecutor reminded jurors in rebuttal closing argument:

“Judge Livas gave you the definition of reasonable doubt. Reasonable doubt is what you believe to be reasonable doubt. You decide what reasonable doubt is. Not [defense counsel], not the State, you decide.”

¶ 16 The jury found defendant guilty of both counts of aggravated criminal sexual abuse. Thereafter, defendant filed a pro se motion for a new trial, alleging, in part, that his attorney was ineffective for not presenting certain testimony. The court held a hearing to determine if defendants's pro se claims warranted appointment of counsel. When asked what evidence his attorney failed to present, defendant said that his attorney did not call his cousin, Portia Sturdevant, to testify and never interviewed two other potential witnesses. The court asked defense counsel about Sturdevant. Defense counsel explained that he interviewed her but chose not to call her to testify because he thought her testimony would hurt defendant's case. The trial court did not question defense counsel about the other two witnesses defendant mentioned. The court found no basis to appoint defendant new counsel to argue his motion.

¶ 17 In sentencing defendant, the court considered defendant's criminal history, which included four prior felonies. The court found that the public needed to be protected from defendant because he committed his crimes while holding a position of power over S.R. The court sentenced defendant to two consecutive five-year prison terms.

¶ 18 ANALYSIS

¶ 19 I

¶ 20 Defendant first argues that his due process rights were violated when the trial court instructed the potential jurors that “beyond a reasonable doubt” is “what each of you individually and collectively, as 12 of you, believe is beyond a reasonable doubt.” He contends that the prosecutor compounded the error by reminding jurors in closing argument of the court's statement. The State responds that the trial court's instruction was not error, or, alternatively, that defendant forfeited the error by failing to object and raise the issue in his posttrial motion.

¶ 21 Generally, an issue concerning the propriety of a jury instruction is reviewed under an abuse of discretion standard; however, review is de novo when the issue is whether the applicable law was correctly conveyed in the jury instruction. People v. Turman, 2011 IL App (1st) 091019, ¶ 18, 352 Ill.Dec. 762, 954 N.E.2d 845.

¶ 22 In order to preserve an issue for appeal, a defendant must object to the alleged error at trial and include it in a posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Claims that are not properly preserved may be reviewed only for plain error. People v. McGhee, 2012 IL App (1st) 093404, ¶ 18, 358 Ill.Dec. 46, 964 N.E.2d 715. An error is reversible under the plain error doctrine when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error threatened to tip the scales of justice against the defendant, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the...