Published: Wednesday, February 07, 2018 @ 9:54 AM
By: Lauren Pack - Staff Writer
BUTLER COUNTY — After two hours of testimony by police Tuesday, a hearing in Butler County Common Pleas Court on a motion to suppress evidence against a man charged in a fatal Middletown shooting was continued.
Malcolm Franklin, 28, formerly of Louisiana, is charged with aggravated murder as well as three counts of felonious assault for gun violence on May 30 at D&J’s Nite Spot.
Franklin allegedly shot Julian Marquis Johnson, 23, outside the Elliott Drive bar during the early-morning hours. Three others were injured by gunfire, according to police.
Middletown police Detective Jon Rawlins testified during a preliminary hearing in Middletown Municipal Court last spring that Franklin confessed to killing Johnson.
Defense attorneys Frank Schiavone III and Frank Schiavone IV want evidence excluded at trial, arguing that statements Franklin made to police were without an attorney present and the stop of their client after the shooting was improper because there was no probable cause.
A gun believed to be involved in the shooting was later recovered by police in a flower bed where officers say Franklin fell while running from them.
The defense team told Judge Charles Pater that witnesses, including police officers, gave conflicting statements about the incident and the recovery of the gun.
Detective Kristy Hughes was first to testify during Tuesday’s hearing, saying that she learned detectives wanted to talk with Franklin about the fatal shooting when she came into work about 9 a.m. May 30. She printed off a picture of Franklin from an arrest a few months prior, got in her detective vehicle and began looking for him.
Hughes said she saw Franklin and a woman he was dating riding bicycles on Central Avenue not long after the search began, and when she turned to follow the duo, they began peddling faster. At one point, the couple separated, and she followed Franklin in the Sunset Park area while calling for marked police units.
The detective said she saw Franklin reaching in his waistband and, “I believed he was reaching for a gun.”
When marked police units arrived, Franklin got off his bike and ran, Hughes said. She said she saw him slip and fall in a flower garden of a residence. Hughes testified she recalled the gun being at that location.
Schiavone IV pointed out during cross examination that evidence indicated the gun was not found in the yard until about 4 p.m. that day when the homeowner called police.
Rawlins testified that officers did search the flower bed for the gun after Franklin agreed to take them to the location where the gun was tossed, but it was not recovered until the homeowner called.
Rawlins said he questioned Franklin several times, and before each session, Franklin was read his Miranda rights. The sessions were audio recorded, but in one case the equipment malfunctioned for a period of time.
When Franklin asked to speak with his attorney, Rawlins said he told him he was going to be booked into the jail for murder and felonious assault and the questioning ended.
Franklin then wanted to know why they could not continue to talk, and Rawlins asked him if he wanted to continue to talk with detectives.
“He said, ‘I’m talking,’” Rawlins said.
In the days after his arrest, Rawlins said Franklin sent communication from the Middletown City Jail saying he wanted to talk with him.
The hearing was continued until Feb. 27, when Rawlins will be cross examined by the defense team and Detective Steve Winters is expected to testify. Pater will then rule on the motion.
Franklin is being held on a $1 million bond. No trial date has been set.