Petition for Writ of Certiorari — Triplett v. Illinois

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Brookhart v. Janie, 38 US. 1.

California v. Green, SUR. 109...

People v. Harris, TM. 24, 963 NE. 24 35

Petitioner Frank Triplett prays that a writ of certio-

Tari issue te review the judgment of Supreme Court

of Umow affirming the trial court of attempt

rape. At the tame of trial the defendant 16 years of

age: at the time of the offense charged the

14 years of age. He was sentenced to a term of ¢ to 10

years in the [ineis State Penitentiary.

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People v. Triptett, . TR, RR NUR. 8 88

(Rept. 1970), is attached as an Appendix.

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STATEMENT CF THE CASE.

The defendant was 14 years of age when charged with

attempt rape on October 18, 1967. The wonian, Mrs.

Bonnie Welker, testified that about 200 pm., an un-

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a few minutes. (A. 5-6)

Two plainclothes police officers patrolling in an un-

marked police car had no knowledge of the above offense

when they observed the defendant walking within a block

or two of Mrs. Walker's apartment. (A. 13) The officers

leoked at the defendant‘and the defendant looked at them. .

Shortly thereafter the defendant started to run with the

officers chasing him. The defendant proceeded across the

street and was struck by a ear. (A. 13) The defendant

testified he ran because the policemen hollered, “Hey,

nigger, stop.” (A. 19)

The defendant was taken to a nearby hospital for first

aid treatment. While at the hospital handeuffed, the com-

plaining witness was brought to this same neighborhood

hospital for sedatives by police. (A. 12,14) At the hos-

pital waiting room she identified the defendant. (A. 14)

The trial of the attempt rape case commenced No-

vember 13, 1968, over a year following the arrest of the

defendant who remained incarcerated. The court ap-

pointed public defender presented the testimony of three

alibi witnesses in addition to the testimony of the de-

fendant. The alibi testimony established that at approxi-

mately the time of the offense charged he was in com-

pany with six neighborhood boys all his own age. (A.

15-22)

fenne poenented ene Suiith Medihons, age 20, whe texti-

fied in the State’s direct rebuttal examination? how the

defendant had raped her. (A. 23)

Mrs. Hochberg resided at 932 North Rush Street, about |

six blecks from 1156. North Dearborn, home of Bonnie

Walker, the complaining witness in the instant litigation.

Both apartments were dwellings in Chicago near north

“Rush Street” entertainment district. Mrs. Hochberg tes-

tified in the direct examination that on October 18, 1967

* she saw the defendant in her apartment at 1:00 pm.,

and that he had remained until 1:30 to 1:40 p.m. (A. 25)

Bonnie Walker had earlier testified the man who entered

her apartment was there about 2:00 p.m. and left about

2:05 p.m. (A. 5, 8) ;

The defendant’s alibi testimony covered the period

from early morning until the moment of his arrest. The

State’s rebuttal witness, Mrs. Hochberg, testified that

the defendant raped her in her apartment during the

period 1:00 p.m. through 1:30 to 1:40 pm. (A. 23, 25)

At trial the prejudice raised by the prosecutor in-

tending to use the rebuttal witness was argued and the

trial court allowed the State to present the rebuttal

witness but not to have her recite the details of the

occurrence. (Facts noted in Illinois Supreme Court opin-

illinois procedure that evidence of other crime can be

introduced to disprove an alibi defense. We urge this

judgment be reviewed on writ of certiorari. |

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Tn the recent Tlineis case of People v. Herris, .. TH.

ae _ 263 N.E. 24 35 (Qcteber 7, 1970), the Minois

Supreme Court in affirming a jury trial conviction from

the very same judge who presided over the instant case,.

reviewed an issue raised at trial concerning the intreduc-_

tion of the other crimes issue. la affirming the Herris

conviction the HMinoix Supreme Court said (263 N.E. 2d

at 37),

may be introduced if it tends to identify the accused

as the person who committed the crime under investi-

gation and to disprove an alibi. People v. Mikka, 7

TH. 2d 454, 461, 131 N.E. 24 79; a So

1. 2d 23, 29, 213 NLE. 2d 552: People v. Tranowski,

20 TH. 2d 11, 169 N.E. 2d 347.” —

Under the facts of the instant case the State prose-

eutor was allowed the hest of heth worlds, for if the

defendant did not testify the jury would he influenced by

the defendant’s absence from the witness stand. When

the defendant did directly challenge the accuser’s testi-

mony before the factfinding jury as encouraged in Wash- ~

ington v. Texas, 388 0.8. 14, the prosecutor under Illinois

law was allowed to introduce a witness to an unrelated

offense. This certainly does not accord the aceused in Tili-

nois the fullest opportunity to present his best defense.

fendants having an alibi defense to avoid taking the wit-

ness stand for fear the prosecutor will introduce other

crimes in an effort to disprove the defense alibi ease,

For either an aceused or his counsel to make‘a choice

between constitutional rights of presenting a defense

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Ch. 38, See. 114-14

This imvestigative tool certainly allowed the State

to establish either the truth of the alibi or imerin:’ sting

rebuttal evidenee: to disprove the alibi testimony . the

albsenee of resorting to yet another criminal ciiense.

Such a dilemma in Illinois of requiring a choice between

complete silence to reduce the probability the State prose-

cutor will find some complaining witness to sufficiently

identify the defendant as her assailant or of presenting

an alibi defense. This pressure generated by the Illinois

law is severe and does vitiate the defendant's choice to

present an alibi defense along with witnesses to prove it

Several hours later three of the boys assembled at a

restaurant several blecks from their home near the “K)”

and the defendant but made no effort to talk to the other

of the group of six boys in company with the defendant

throughout the morning hours and afternoon hours on

the date of the offense charged until moments before the

defendant's arrest about 2:30 p.m.

The lew providing for notice of alibi does accommodate

the interest of the State in making a case, yet by allow-

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the manner in which she gives her testimony whether

she is worthy of belief. Celifornia v. Green, 99 US.

149, 181. ,

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APPENDIX

Opinion Of The Supreme Court Of Illinois

Docket No. 42113—Agenda 12—May, 1970.

Tue Peortx oy tux Srare or Lisnoiw, Appellee, vs.

Frank Trivett, Appellant.

Mr. Cnier Justicy, Unperwoop delivered the opinion of

the court:

Defendant John Triplett was convicted of attempted

rape in a 1968 Cook County cireuit court jury trial, and

was sentenced to a term of four to ten years imprisonment.

* Jn this direct appeal, he questions the admissibility of the

complaining witness’s in-court identification and also claims

that he was not proved guilty beyond a reasonable doubt;

“particularly, that the State failed to prove the essential ele-

ment of intent to commit rape.

The complaining witness first testified in the course of a

pretrial hearing on defendant’s motion to suppress her: in-

court identification, and, following a denial of the motion,

she testified at trial. She stated that a Negro youth appear-

ed at her second floor apartment at about 2:00 P.M. on Oc-

tober 18, 1967, and said he was collecting for her newspaper

subscription: She explained that she did not take the news-

paper, and the young man then left for a short time. He

returned with a phone number for her to call to discuss the

mixup; she made the call but it was not the newspaper of-

fice. The young man left again, ostensibly to check the

number with his supervisor downstairs. He returned to tell

her the supervisor would be up to talk with her shortly, and

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(Supreme Court Opinion)

then he began to leave. The complainant left the door ajar

and had returned to her housework when she heard her in-

fant daughter seream. She turned and saw the young man

holding the baby with a broken bottle at her face. He told

complainant to take off her clothes or he would cut the baby.

When the complainant objected, he threatened “you know I

ean use this baby too.” She moved quickly toward him, and

he fled. She became hysterical, but managed to eall the po-

lice a short time later. When two uniformed officers arrived,

she gave a description of the young man, and was taken to

a nearby hospital. As she entered the hospital waiting room

with the two officers, she saw the intruder and identified

him. He was then in the custody of two plainclothes officers.

She also saw him shortly thereafter at the police station.

Defendant was brought before her in court, and she again

identified him as the intruder. She stated that she would

have recognized defendant in court without having seen

him at the hospital or the police station.

Defendant and three friends testified to an alibi, clain-”

ing they had been riding the elevated trains and eating

lunch at the time in question. In rebuttal, the State present-

ed the testimony of a woman who stated that defendant had

attacked her in her apartment during the time he claimed to

be with his friends. The judge instructed her not to recite

the details of the oceurrenee, but the defense urged the

court to let her proceed, saying the jury ought to hear her

full story. She then revealed that defendant had threatened

her baby with an iron bar and a scissors, and had said that

if she refused to submit to intercourse, he could use the

baby. She submitted, after which defendant removed over

twenty dollars in coins from her piggy bank and fled. When

the State examined the police officer who inventoried de-

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(Supreme Court Opinion)

fendant’s belongings after his arrest, the defense success-

fully objected to questioning about items other than cloth-

ing taken from him. The defense stipulated that defendant's

fingerprints appeared on the piggy bank, but defendant

claimed he had handled the bank at the police station. A

police lab technician rebutted’ this explanation, however,

stating, that he had taken the bank directly from the apart-

ment to the lab, where he discovered the prints.

The arresting officers testified they spotted defendant

while looking for a young Negro male fitting the descrip-

tion given by the rape victim. He fit the description as to

height, weight and clothing, and fled as they approached

_him. They gave chase, and defendant was hit by a car as he

ran across LaSalle Street. They caught him and took him to

the nearby hospital for treatment and examination: He had |

been treated for a cut when the complainant was brought

in for treatment, and the confrontation was entirely coin-

cidental. One of the officers who brought complainant-to the

hospital also stated that the confrontation was unplanned.

The defendent argues on appeal that his alibi, supported

by three witnesses, established reasonable doubt as to his

guilt. However, the credibility of witnesses is a matter for

the trier_of fact; if believed, the positive testimony of the

complainant and the testimony presented to rebut the alibi

are sufficient to remove all reasonable doubt. (People v.

Gray, 33 Ill. 2d 349; People v. Carpenter, 28 Ill. 2d 116;

People v. Solomon, 24 Ill. 2d 586:) Defendant argues

further that there was no proof of an intent to commit rape,

since it was not shown that he explicitly stated such an in-

tention to the complainant. While proof of the specific in-

tent to commit rape is essential, intent may be inferred from

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(Supreme Court Opinion) .

the circumstances of an assault. (People v. Hiller, 7 Ul. 2d

465; People v. Marino, 388 Ul. 203; People v. Garafola, 369

Ii. 232.) The jury could reasonably conclude that defend-

ant’s threat to “use” complainant's infant daughter if eom-

plainant refused to co-operate, was indicative of an inten-

tion to have intercourse. This conelusion was reinforeed by

the testimony of the State’s rebuttal witness, that defendant

raped her following her submission to a similar threat. De-

fendant suggests on appeal that this testimony as to a pre-

vious crime was improper. However, there was no objection

at trial; in-faet, when the court limited her testimony to

rebuttal of defendant's alibi, it was at the urging of the de-

fense that she was permitted to amplify upon the cireum-

stances of the rape. We conclude there was ample evidence

properly before the jury to prove beyond a reasonable doubt

that defendant acted with the intention of committing the

erime of rape.

Defendant contends that the complainant’s in-court

identifieation of defendant was improperly allowed, since

she had previously viewed him at the hospital and at the

police station in unnecessarily suggestive circumstances, at

which times defendant was without counsel. The State re-

plies that the hospital confrontation was entirely ecoinei-

dental, and therefore there was no “show-up” as proseribed

by the Wade, Gilbert and Stovall deeisions, (United States

v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 8. Ct. 1926;

Gilbert v. Califorma, 388 U.S. 263, 18 L. Ed. 2d 1178, 87

S. Ct. 1951; Stovall vy. Denno, 388 U.S. 293, 18, L. Ed. 2d

1199, 87 8S. Ct. 1967.) It is also suggested that the con-

frontation would have been justified even if planned, since

prompt identification was necessary to determine whether

—ta—

(Supreme Court Opinion)

an immediate and exhaustive search for complainant's as-

sailant should be undertaken. (People v. Young, ...... Til. 2d

ai ; People v. McMath, 4 Ill. 2d 33, 36; see also, Bates v.

United States (D.C. eir. 1968), 405 F. 2d 1104.) This ex-

ception to the Stovall doctrine is also urged as a valid ex-

ception to the stricter requirements of Wade-Gilbert. (See,

¢.4-, Russell vy. United States (D.C. eir. 1969), 408 F. 2d

1280, cert. denied 395 U.S. 928, 23 L. Ed. 2d 245, 89 S. Ct.

1786; United States v. Davis (2d eir. 1968), 399 F. 2d 948,

cert, denied 393 U.S. 987.) However, appropriate as these

observations may be, they are no answer for the later con-

frontation at the police station. |

We might well conelude that the hospital identification

was entirely coincidental and spontaneous since all the evi-

dence and testimony points to that conelusion, and only

sheer speculation suggests otherwise. In that event, the

identification would be an ideal one, unquestionably free of

the suggestiveness to whieh the Stovall doctrine is directed.

The subsequent police station confrontation would not

appear to be significant under Stovall, following such a

positive prior identification. And, in any event, the ultimate

question posed by the United States Supreme Court in the

Wade-Gilbert-Stovall decisions, whether the in-court iden-

tification was reliably predicated upon an observation inde-

pendent of the challenged in-custody confrontations, was

resolved by the hearing on defendant’s motion to suppress

the identification. The complainant thére related the cir-

cumstances in which she first encountered the defendant. It

is clear that she had an excellent opportunity to observe him

at her home, and form an accurate, reliable basis for subse-

quent identification. When she next saw defendant at the

hospital, without any expectation that she would confront

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. _ (Supreme Court Opinion)

him there, she identified him unhesitatingly and spontane-

ously. Furthermore, she was confident that she would be

able to identify defendant on the basis of the 15-20 minute

observation at her home, even if she had not seen him

briefly on the two subsequent oeeasions, We note also that

her initial deseription of the intruder to the poliee eonform-

ed in every respect with his appearance when arrested. The

only reasonable conclusion, based upon all these factors, is

that the in-court identifieation stemmed from an origin in-

dependent of the in-custody confrontations, The identifica-

tion clearly satisfies the ultimate constitutional require-

ments for admissibility.

The jndgient of the eireuit court of Cook County is ac-

cordingly affirmed,

| Judgment affirmed.