People v. Franklin

229 N.E.3d 364

2023 IL App (1st) 200996

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

v.Brady FRANKLIN, Defendant-Appellant.

No. 1-20-0996

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed June 9, 2023

Appeal from the Circuit Court of Cook County. No. 14 CR 17402, Honorable Kenneth J. Wadas, Judge Presiding.

James E. Chadd, Douglas R. Hoff, Michael Gentithes, and Daniel H. Regenscheit, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Mary L. Boland, and Sarah L. Simpson, Assistant State’s Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, Brady Franklin was convicted of aggravated criminal sexual assault and aggravated kidnaping and sentenced to a total of 22 years in prison. On appeal, Mr. Franklin argues that the trial court erred in granting' the State’s motion to allow the complaining witness, an adult with documented intellectual disabilities, to testify via closed-circuit television. He asserts that the portion of section 106B-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/106B-5 (West 2018)), permitting the court to authorize such procedures for adult accusers with intellectual disabilities, is facially unconstitutional. Allowing such accusers to testify remotely, he argues, runs afoul of the right of criminal defendants to be confronted with the witnesses against them and goes beyond the limited exception to that right for child victims of sexual abuse established by the United States Supreme Court in Maryland ?. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

¶ 2 Mr. Franklin argues in the alternative that even if section 106B-5 might be constitutional for some adult accusers, it was unconstitutionally applied in this case for two reasons. First, he asserts that the complaining witness "was both more functional in society than most intellectually disabled adults and would not have suffered any long-term emotional trauma from testifying in [his] presence." Second, he contends that the specific procedure employed by the trial court in his case— where he, rather than the complaining witness, was the person segregated from the courtroom—was "the opposite procedure" from the one authorized by section 106B-5 and, thus, violated both the statute itself and his fundamental right to be present at all critical stages of the prosecution. We consider and reject each of these arguments and affirm Mr. Franklin’s conviction.

¶ 3 I. BACKGROUND

¶ 4 Brady Franklin was charged by indictment with multiple counts of aggravated criminal sexual assault, aggravated kidnaping, and aggravated battery. The charges stemmed from events involving Mr. Franklin’s estranged wife, S.R., who alleged that he abducted, beat, and repeatedly raped her over the span of several days in late July 2014.

¶ 5 A. The State’s Pretrial Motion to Permit Testimony by Closed- Circuit Television

¶ 6 On February 20, 2018, the State moved to allow S.R. to testify by closed- circuit television, pursuant to section 106B- 5 of the Code (725 ILCS 5/106B-5 (West 2016)). Section 106B-5 allows for the testimony of "a person with a moderate, severe, or profound intellectual disability," to be taken outside the courtroom and shown via closed-circuit television upon a judicial determination that requiring the witness to testify in the courtroom would result in such "serious emotional distress" that the witness would not be able to reasonably communicate or would cause the witness to suffer "severe adverse effects." Id. § 106B- 5(a)(2). This procedure is only available "in the prosecution of an offense of criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual abuse, aggravated criminal sexual abuse, aggravated battery, or aggravated domestic battery." Id. If the defendant represents himself pro se, the procedure is not available. Id. § 106B-5(g).

¶ 7 The State explained in its motion that S.R. suffered from sickle cell anemia and had been prescribed medication in the past for anxiety, panic disorder, depression, and post-traumatic stress disorder. She had also been sexually abused repeatedly between the ages of 9 and 15 and was physically and mentally abused by her mother, who was a drug addict. S.R. herself had also "battled addiction throughout her life."

¶ 8 According to the State’s motion, S.R. also had a profound intellectual disability. The State attached to its motion a cognitive evaluation of S.R. conducted by Dr. Lori Tall at Rush Neurobehavioral Center in Skokie, Illinois, on January 28, 2018. According to Dr. Tail’s report, on the Wes- chler Adult Intelligence Scale, S.R. obtained a full-scale IQ of 57, which Dr. Tall characterized as "extremely low and consistent with individuals diagnosed with an intellectual impairment." According to the results of the Woodcock Johnson Tests of Achievement, S.R.’s reading, spelling, and basic math skills were at kindergarten level. S.R. also received an overall score of 50 (below the first percentile), which is "in the impaired range of functioning," on the Vineland Adaptive Behavior Scale. This result suggested to Dr. Tall that, overall, S.R. was "functioning at a level typically seen in someone much younger" (8 to 10 years of age) and required "a significant amount of support to function, adapt, and cope with the demands of adulthood."

¶ 9 Dr. Tall noted in her report that S.R. had not been employed and that, prior to dropping out of high school in the ninth grade, she had received special education services for "learning issues and not being able to read." Dr. Tall wrote that S.R. had four children and eight grandchildren, all of whom lived outside of the home. S.R. did not drive and needed assistance navigating public transportation. The doctor further explained that S.R. resided with her boyfriend, who provided "a great deal of care and support for her," including preparing her meals and completing all the household chores.

¶ 10 Dr. Tall described S.R. as friendly and talkative at the outset of her session. She was "generally happy, relaxed and positive." However, when the conversation shifted to the events involving Mr. Franklin, "she became very dysregulated," was "sad and tearful," and "had a difficult time communicating her thoughts and emotions."

¶ 11 In the report’s summary, Dr. Tall wrote that S.R. had "severe cognitive and adaptive difficulties" and that her cognitive profile included "impairments in cognitive functioning, academic abilities, learning and memory, processing speed, and adaptive functioning," all of which were consistent with a moderate intellectual disability. The doctor further explained that while S.R. "does not look any different from other adults her age," it was important for those interacting with her to understand that "developmentally she [was] approximately eight to 10 years old (cognitively and emotionally) and academically, she function[ed] at the level of a typical five to six year old." Dr. Tall opined that S.R. would "require a significant level of support" to participate in Mr. Franklin’s trial, including "someone to assist with translating complex concepts and to ensure she fully understood] questions."

¶ 12 The State asserted in its motion that Dr. Tail’s cognitive report and professional medical opinion established that S.R. was moderately disabled and that she therefore came within the classes of individuals that section 106B-5 of the Code is intended to protect. "Given the diagnosis and fragile condition of [S.R.]," the State summarized, "it is the professional medical opinion of Dr. Tall that the psychosocial stressor of a face to face confrontation with the Defendant will result in serious emotional distress such that she cannot reasonably communicate and severe emotional distress that is likely to cause her to suffer severe adverse effects."

¶ 13 On July 11, 2018, Mr. Franklin filed a motion to exclude testimony by closed-circuit television, arguing that such testimony would violate his right to confrontation as guaranteed by the sixth amendment of the United States Constitution. Mr. Franklin argued that the legislative intent behind section 106B-5 was to protect child victims and that it had "never been used in the case of an adult complaining witness." Broadening the scope of that provision to apply to adults, Mr. Franklin asserted, would impermissibly interfere with his constitutional right to face his accuser. Mr. Franklin described S.R. in his motion as "a mother of four and grandmother of eight and the sole caretaker of her household." He argued that she was a "habitual user of crack cocaine" during the past 15 years, as evidenced by several drug arrests and convictions since 2000. Mr. Franklin also highlighted a 2009 conviction for class 3 felony forgery, and he alluded to statements made by S.R.’s probation officer, who communicated that she did not think S.R. had a mental illness but that she "struggle[d] with anger issues."

¶ 14 B. The Hearing on the State’s Motion

¶ 15 On November 14, 2018, the circuit court conducted a hearing on the State’s motion to allow S.R. to testify under the special procedures outlined in section 106B-5. At oral argument, the State explained that the hearing lasted "the better part of a day." The transcript from the hearing, which is in the record, runs nearly 50 pages.

¶ 16 At the hearing, the State called two witnesses: Dr. Lori Tall, the clinical psy- chologist who had evaluated S.R. and whose report the State had attached to its motion, and Maria Godinez, a victim specialist at the Cook County State’s Attorney’s Office who had met with S.R. several times and could testify to S.R.’s "inability to communicate" when discussing the allegations against Mr. Franklin.

¶ 17 Dr. Tall testified that she was a clinical psychologist...