People v. Johnson, 1–12–2459.

• Decision Date: 31 December 2013
• Docket Number: No. 1–12–2459.,1–12–2459.
• Citation: 3 N.E.3d 477,378 Ill.Dec. 197,2013 IL App (1st) 122459
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Anthony JOHNSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 122459

3 N.E.3d 477

378 Ill.Dec. 197

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

v.Anthony JOHNSON, Defendant–Appellant.

No. 1–12–2459.

Appellate Court of Illinois,

First District, Fifth Division.

Dec. 31, 2013.

Stephen L. Richards, Law Office of Stephen L. Richards, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October 10, 2007, by a separate jury in a simultaneous trial of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). On direct appeal ( People v. Johnson, No. 1–08–0233, 402 Ill.App.3d 1187, 376 Ill.Dec. 786, 1 N.E.3d 119 (2010) (unpublished order under Supreme Court Rule 23)), we found that the trial court erred by failing to clarify the accountability statute's use of the word “during” after the jury requested clarification, and we remanded for a new trial. Defendant was convicted on retrial and sentenced to 47 years. The trial court denied defendant's posttrial motion for a new trial in which defendant argued, among other things, (1) that the State failed to prove him guilty of murder beyond a reasonable doubt; and (2) that the State's remarks at closing argument amounted to prosecutorial misconduct.

¶ 2 Defendant claims on this appeal: (1) that the State's evidence was insufficient to prove defendant accountable beyond a reasonable doubt for Clayton Sims' shooting of Brandon Baity; (2) that the trial court erred by refusing the jury instruction set forth by the appellate court in its prior order concerning the meaning of the word “during” in the accountability statute (720 ILCS 5/5–2(c) (West 2004)); (3) that the trial court erred by overruling the defense's objection to the State's questions of Clayton Sims concerning whether Sims, who did not testify at his own trial, lied by letting his counsel argue that the State failed to prove him guilty beyond a reasonable doubt; (4) that the State committed prosecutorial misconduct with this same line of questioning of Sims; (5) that the prosecutor deprived defendant of a fair trial by arguing in closing that if the jurors acquit, “you might as well legalize drive-by shootings in this town,” and that the jurors should not let Clayton Sims lie to another jury; (6) that the prosecutor committed misconduct in closing by comparing defendant to “the Nazis in Nuremburg” by denying accountability; (7) that the prosecutor committed misconduct in closing when he stated falsely to the jury that there were no “useful” bystanders that the State knew of, although a bystander, Alexander Weatherspoon, had testified at defendant's first trial; (8) that defendant's trial counsel erred by failing to call Weatherspoon, who had testified at defendant's first trial that the shooter did not enter a vehicle after the shooting, which would have corroborated Sims' testimony on this point; and (9) that the increase in defendant's sentence after retrial from 30 years to 47 years was vindictive and we should remand for resentencing or reduce the sentence.

¶ 3 In the prior appeal, we concluded that the State's evidence at the first trial “was far from overwhelming.” People v. Johnson, No. 1–08–0233, 402 Ill.App.3d 1187, 376 Ill.Dec. 786, 1 N.E.3d 119 (2010) (unpublished order under Supreme Court Rule 23). The State's evidence in the second trial was even less, since an eyewitness from the first trial did not testify at the second trial and the actual shooter, who did not testify at the first trial, testified at the second trial, exonerating the defendant. Thus, we cannot find the State proved defendant accountable for murder beyond a reasonable doubt. For these reasons, we conclude that the State failed to prove beyond a reasonable doubt that defendant was accountable for Sims' murder of Baity, and we reverse defendant's conviction and sentence.

¶ 4 BACKGROUND

¶ 5 The State charged 17–year–old Anthony Johnson with first-degree murder for the shooting death of victim Brandon Baity on October 1, 2003. The State's theory was that defendant was accountable for the acts of codefendant Clayton Sims, who shot Baity multiple times. Sims, the shooter, was acquitted by a separate jury while defendant was found guilty by his jury on the theory that he was accountable for Sims' acts.

¶ 6 The State's evidence established that, on the night that Sims shot Baity, defendant was driving around the neighborhood with Nolan Swain, smoking marijuana, drinking liquor and intending to pick up girls. At some point, defendant picked up Sims and they stopped by Baity's vehicle to ask if he had any “weed” for sale. Sims exited the vehicle and shot Baity several times. The detectives who testified at trial to defendant's statements to them admitted that defendant never admitted that he knew Sims was looking for Baity, that Sims had a gun, or that Sims intended to shoot Baity. At the retrial, Sims testified that he told defendant that he wanted to buy some “weed” from Baity and that defendant had no idea what Sims intended to do when he left defendant's vehicle. During the State's closing argument, the prosecutor admitted that the jurors might legitimately ask themselves: “The defendant didn't set out that evening to kill anyone, so what are we doing here?” Although there was some evidence that defendant drove Sims from the scene, Sims testified that he ran away on foot.¹ However, the act of driving someone from the scene is not a ground for finding accountability.²

¶ 7 The State's evidence at the retrial included the testimony of only one event witness, Nolan Swain, an admitted drug user who was a passenger in the vehicle. Swain testified that he smoked so much marijuana at that time that he would sometimes black out and not remember events; that he was stoned and drunk at the time of the shooting; that he did not recall the shooting or recall hearing gunshots; but that he did recall driving around with defendant and that he woke up once and observed Sims, the shooter, in the vehicle.

¶ 8 The State also called Rufus Johnson, the alleged vehicle owner, who is no relation to defendant and who denied previously telling the police that he had loaned his vehicle to defendant. Both Swain and Johnson testified that they had previously made statements concerning defendant in exchange for the dismissal or reduction of subsequent drug charges.

¶ 9 The State's evidence also included testimony by two detectives about their interviews of defendant. Defendant never provided a statement and was never interviewed until December 4, 2003, a couple of months after the shooting, when police officers approached defendant on the street and transported him to a police station at 8 p.m. Their interviews of defendant began after midnight and lasted through the afternoon of December 5, culminating in defendant's release from custody without charges.

¶ 10 The defense called Sims, who testified that he shot and killed Baity, and that defendant did not know that Sims intended to shoot the victim or that Sims was armed that evening. Sims testified that, during the shooting, defendant drove off and left him at the scene. The jury nonetheless found defendant guilty, and the trial court sentenced him to 47 years in the Illinois Department of Corrections.

¶ 11 I. Eyewitness Alexander Weatherspoon's Testimony

¶ 12 Since defendant is claiming on appeal that his attorney was ineffective for failing to call bystander Alexander Weatherspoon, we include here a short summary of Weatherspoon's testimony at the first trial, found in our prior order in this case.

¶ 13 At the first trial, Weatherspoon, who was 17 years old at the time of the offense, testified that he was selling marijuana from 7 a.m. on September 30, 2003, until past midnight on October 1, 2003, from the front porch of a building near the intersection of 69th Street and Emerald Avenue in Chicago. Weatherspoon had been selling marijuana at that location for two years prior to the shooting, and Brandon Baity, the victim, supplied the drugs that Weatherspoon sold, while Weatherspoon gave Baity the money from the sales. On the night of the shooting, Baity sat by himself in his vehicle, parked on Emerald Avenue, while Weatherspoon's cousin stood at the intersection at 69th Street as a lookout.

¶ 14 After midnight, Weatherspoon observed a four-door vehicle drive up and stop in the middle of Emerald Avenue, just in front of Baity's vehicle. Weatherspoon assumed that the vehicle contained “a regular customer” since one of the three occupants motioned to Baity that he intended to purchase marijuana. Although Weatherspoon had a clear view of the vehicle, he never observed the face of the driver or the front-seat passenger.

¶ 15 Although Baity made a motion indicating that the vehicle should park, Clayton Sims, whom Weatherspoon had known for two years and identified at trial, exited the vehicle, said something, and then pointed a gun at Weatherspoon. To evade Sims, Weatherspoon ran inside a nearby building, and heard 10 or 12 gunshots as he ran upstairs. He then looked out the second-floor window and observed Baity lying in the street as someone with a gun stood over him, although Weatherspoon could not make out who the person was. Baity's vehicle had crashed into other vehicles farther down the street, but the vehicle that had previously pulled up with Sims was no longer on the street. Weatherspoon exited the house and walked around the block, and when he returned, Baity was lying in the street alone.

¶ 16 II. Autopsy, Ballistics, and Other Evidence

¶ 17 The...