People v. Knox, 77-1032

• Citation: 374 N.E.2d 957,58 Ill.App.3d 761,16 Ill.Dec. 182
• Decision Date: 23 March 1978
• Docket Number: No. 77-1032,77-1032
• Parties: , 16 Ill.Dec. 182 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John KNOX, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 957

374 N.E.2d 957

58 Ill.App.3d 761, 16 Ill.Dec. 182

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John KNOX, Defendant-Appellant.

No. 77-1032.

Appellate Court of Illinois, First District, Fifth Division.

March 23, 1978.

[16 Ill.Dec. 183] Ralph Ruebner, Deputy State App. Defender, Chicago (John T. Maher, Asst. State App. Defender, of counsel), for defendant-appellant

Bernard Carey, State's Atty. of Cook County, Chicago (Lee T. Hettinger, Iris E. Sholder and Mark E. Rakoczy, Asst. State's Attys., of counsel), for plaintiff-appellee.

MEJDA, Justice:

Following a bench trial defendant, John Knox, was found guilty of the offenses of rape and deviate sexual assault and was sentenced to serve 8 to 10 years in the penitentiary. On appeal, defendant raises only one issue: that the trial court erred in failing to hold an evidentiary hearing on whether defendant's right to testify had been violated. We affirm.

A full recitation of the facts in evidence in this case is unnecessary since they have little bearing on the sole issue on appeal. However, to summarize, evidence was adduced that the prosecutrix positively identified defendant as the man who, on June 30, 1976, had forced her to drive her car to a secluded area, and then proceeded to have sexual intercourse with her and perform an act of cunnilingus upon her. Defendant had separated the prosecutrix from her escort for that evening, Mr. Wilbur Eugene, by fighting with him and knocking him to the ground. He then had forced the prosecutrix to drive away without Eugene in the car. The prosecutrix further testified that she escaped defendant when, after the rape and deviate sexual assault, but while continuing to drive her car under defendant's direction, she quickly turned into a gas station while blowing the auto horn and screaming. She stated that, at that point, defendant exited the car and ran away.

Robert Loveland, the attendant at the gas station involved in the occurrence, testified that he was working at the station when the car driven by the prosecutrix Loveland also testified that the man he saw that evening had a goatee, a mustache, and was wearing a small hat. He stated that he had no doubt in his mind that defendant was the man he saw get out of the prosecutrix's car. The prosecutrix was called by the defense as a rebuttal witness and stated that defendant was not wearing a hat anytime during this incident. It was stipulated by the parties that tests taken following this occurrence revealed the presence of non-motile sperm in a specimen taken from the prosecutrix.

[16 Ill.Dec. 184] pulled in with its horn sounding continuously. Loveland identified the prosecutrix and defendant as the car's occupants and heard the prosecutrix scream at defendant to get out of her car. Defendant left the car and walked away, while the prosecutrix jumped out screaming that she had just been raped. Loveland noted that the prosecutrix was crying and very scared when he called the police. Subsequently, Loveland picked defendant's picture out of a number of mugshots shown him at the police department as being the man he saw in his gas station.

After finding defendant guilty of the offenses of rape and deviate sexual assault, the court ordered a presentence investigation and set March 29, 1977, as the date for the sentencing hearing.

In a pro se "affidavit in support of motion" dated March 23, 1977, defendant stated that his attorney had prevented him from testifying in his own behalf, even though defendant had desired to do so. The statement read in pertinent part:

"I told Mr. Kampenga that I wanted to testify about Nine time But he said I shouldn't Because the Judge would take my testimony As A Lie. I was patiently sitting there waiting for the Judge to Ask me Did I have anything to say Before I was found Guilty or not Guilty And if I wanted to testify."

At the hearing in aggravation and mitigation, defense counsel rested on the presentence investigation report. In aggravation, the State briefly summarized the facts of the case and introduced evidence of defendant's prior convictions for burglary and contributing to the sexual delinquency of a minor.

Defendant then made a statement to the court in which he denied his guilt and attacked the evidence presented against him at trial. He also stated again that his attorney did not let him testify.

"Mr. Kampenga told me to wait, they had another witness to take the stand. So like I waited. Then he told me not to testify. I said well, I want to testify anyway, I ain't did nothing, I had no deviate sex assault with this lady."

However, after attaching the identification testimony of the State's witnesses defendant admitted that he had fought with Wilbur Eugene and had been riding in the prosecutrix's car that evening. The court then reviewed the basis for its judgment and sentenced defendant to a period of 8 to 16 years imprisonment with a 5-year mandatory parole period.

OPINION

Defendant contends that the trial court erred in failing to hold an evidentiary hearing to determine whether his right to testify was violated by his trial counsel. Defendant urges that since this issue was raised by unrebutted allegations in his post-trial affidavit and statement, it was incumbent upon the trial court to appoint another attorney and hold an evidentiary hearing. We must disagree.

We do recognize, however, that a defendant who wishes may testify in his own behalf, even against the advice of his counsel. At the least, such a right in Illinois is statutorily based:

"No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, * * * (p)rovided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness * * * ." (Ill.Rev.Stat.1975, ch. 38, par. 155-1.)

Moreover, while neither the United States Supreme Court, nor the Illinois Supreme Court have expressly decided the question, we believe the better view to be that a defendant's right to testify is of a constitutional dimension.

While the cases on this latter question differ, we find the recent statement of the United States Court of Appeals for the Third Circuit in this regard logical and persuasive. That court considered the issue in United States ex rel. Wilcox v. Johnson (3rd Cir. 1977), 555 F.2d 115, and its statement is, in our view, worth excerpting at some length:

"As the District Judge reasoned, under the common law, criminal defendants were not competent to give sworn testimony in their own behalf. This disability has been removed by the enactment of federal and state laws granting the privilege of an accused to testify in his own defense. The right to testify is not specifically granted by the Constitution. Thus, if a defendant in a State court has a Federal constitutional right to testify, that guarantee must emanate from the due process requirements of the Fourteenth Amendment. See U.S. v. Ives, 504 F.2d 935 (9th Cir. 1974), vacated 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975).

"A number of cases have specifically held that a criminal defendant has no constitutional right to testify in his own behalf. Sims v. Lane, 411 F.2d 661 (7th Cir. 1969), cert. denied, 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969); Sims v. State, 246 Ind. 660, 208 N.E.2d 469 (1965); Kinder v. Commonwealth of Ky., 269 S.W.2d 212 (Ky.1954); State v. Hutchinson, 458 S.W.2d 553 (Mo.1970) (en banc); cf. U.S. v. Von Roeder, 435 F.2d 1004 (10th Cir. 1970), cert. denied, 403 U.S. 934, 91 S.Ct. 2264, 29 L.Ed.2d 713 (1971). Another line of cases, while avoiding the question of whether the 'right to testify' is of constitutional dimension, have stated that no relief can be granted where competent counsel makes a strategic determination that the defendant not testify. U.S. v. Poe, 122 U.S.App.D.C. 163, 352 F.2d 639 (1964); U.S. v. Gargulio, 324 F.2d 795 (2nd Cir. 1963); Sims v. State, supra; Kinder v. Commonwealth of Ky., supra. However, as the District Judge concluded: '(r) ecent decisions, in both the state and federal courts, have cast considerable doubt on the continued validity of the (above) cases * * * .' (D.C.Op. at 13).

"Numerous federal cases have intimated that a defendant in a criminal trial may have a constitutional right to testify. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971), stated: 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.' In Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), the Supreme Court held that a Tennessee statute which required that a criminal defendant who desires to testify must do so before any other testimony for the defense is presented, violates the defendant's privilege against self-incrimination. The Court noted that 'whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right.' 406 U.S. at 612, 92 S.Ct. at 1895. Winters v. Cook, 489 F.2d 174, 179 (5th Cir. 1973), stated that criminal defendants' right to testify personally is 'such an inherently personal fundamental right that it can be waived only by the defendant and not by his attorney.' U.S. v. Bentvena, 319 F.2d 916 (2nd Cir. 1963), cert. denied sub nom., Ormento v. U.S., 375 U.S. 940, 943, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963), recognized that 'the statutory "privilege" to testify in one's own behalf has come to be recognized as having an importance similar to the right to be present at one's trial and to present a defense.' In Poe v. United States, 233 F.Supp. 173 (D.D.C.1964), aff'd, 122 U.S.App.D.C. 163, 352 F.2d 639, the court granted a new trial where the erroneous advice of trial counsel dissuaded defendant from testifying in his own defense. Judge J. Skelly Wright, sitting by special designation as Trial Judge, remarked that:

'the right to testify is a...