Johnson v. Washington

• Decision Date: 09 July 1997
• Docket Number: No. 96-1899,96-1899
• Citation: 119 F.3d 513
• Parties: Terrance JOHNSON, Petitioner-Appellant, v. Odie WASHINGTON, or his successor, Director, Department of Corrections of the State of Illinois, and Richard B. Gramley, or his successor, Warden of the Pontiac Correctional Center, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 513

119 F.3d 513

Terrance JOHNSON, Petitioner-Appellant, v. Odie WASHINGTON, or his successor, Director, Department of Corrections of the State of Illinois, and Richard B Gramley, or his successor, Warden of the Pontiac Correctional Center, Respondents-Appellees.

No. 96-1899.

United States Court of Appeals Seventh Circuit.

Argued Nov. 4, 1996.

Decided July 9, 1997.

Alison Edwards, argued, Office of the Cook County Public Defender, Chicago, IL, for Petitioner-Appellant.

Rita M. Novak, Margaret M. O'Connell, argued, Office of the Attorney General, Chicago, IL, for Repondents-Appellees.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Petitioner Terrance Johnson was convicted in Illinois in 1991 for murder and armed robbery, People v. Johnson, 255 Ill.App.3d 547, 193 Ill.Dec. 522, 626 N.E.2d 1073 (1st Dist.1993), appeal denied, 155 Ill.2d 570, 198 Ill.Dec. 548, 633 N.E.2d 10 (1994) (Johnson I ), and in 1992 for attempted murder and armed robbery, People v. Johnson, 264 Ill.App.3d 1000, 202 Ill.Dec. 228, 637 N.E.2d 767 (1st Dist.), appeal denied, 157 Ill.2d 512, 205 Ill.Dec. 176, 642 N.E.2d 1293 (1994) (Johnson II ). He is currently serving consecutive sentences of 80 years on the 1991 conviction and 30 years on the 1992 conviction. After Johnson exhausted his state court remedies, he filed a petition for a writ of habeas corpus in the District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 2254. The district court denied Johnson's petition on March 28, 1996. We affirm.

Background

Johnson does not challenge the statement of facts set forth in either of the Illinois Appellate Court opinions in this case. They are therefore entitled to a presumption of correctness. Early in the morning of March 22, 1989, a Concord Oil gas station at 440 West 87th Street in Chicago was robbed. A brown or tan-colored Bonneville carrying three or four passengers pulled into the station. The front passenger was Johnson, and the driver was Lester Boston. Johnson jumped out of the car brandishing a semiautomatic handgun and told the attendant to give his money to Boston. Johnson then ran to the door of the gas station office, kicked the door in, and demanded more money from the office attendant. Johnson exchanged gunshots with the gas station's security officer, got back into the car, and fled the scene.

Approximately half an hour later on the same morning, Cleotha Adams was shot and killed while working at a Unocal gas station at 8510 South Ashland Avenue in Chicago, which is located about two miles from the Concord Oil station. ¹ Terrance Johnson, Lester Boston, and Demetrius Broadwater ("Demetrius") were all charged with murder and armed robbery in connection with the Unocal incident and attempted murder and armed robbery in connection with the Concord Oil incident. Separate but simultaneous trials were held for the two incidents for each of the three defendants. Johnson was tried before a jury in both cases.

This habeas appeal concerns the appropriateness of the admission of the testimony of Tremmel Broadwater ("Tremmel") as substantive evidence in both Johnson I and Johnson II. Although only a few years younger than Demetrius, Tremmel was Demetrius' nephew and had lived with Demetrius for his entire life. Tremmel was also a friend of both Johnson and Boston. Tremmel was nineteen years old at the time of the trials.

On Friday, April 14, 1989, four police officers looking for Demetrius went to Tremmel's home at 9035 South Racine in Chicago. Tremmel told the officers where they could find Demetrius. Tremmel, however, was arrested on outstanding warrants for burglary and theft, and the officers confiscated a sawed-off shotgun. Tremmel was taken to Area Two Chicago Police Headquarters where he was placed in a small interview room and asked questions about the Unocal shooting. After several hours, Tremmel signed a written statement. In the statement, Tremmel admitted that he was in the car on March 22, 1989 with Johnson, Boston, and Demetrius, and that he witnessed the robbery and shooting at the Unocal station. Tremmel remained at Area Two until Monday, April 17, 1989, when he appeared before a grand jury at 26th and California and gave testimony consistent with his written statement.

At both of Johnson's trials, however, Tremmel testified that he had no knowledge of, or involvement in, the Unocal incident, and he claimed that he was home in bed at the time of the shooting. The State then presented Tremmel with his prior written statement and grand jury testimony. Tremmel acknowledged his signature and admitted that he signed the statement and gave consistent grand jury testimony, but claimed that he had been coerced by the police into doing so. Tremmel then claimed that he had no personal knowledge regarding the shooting, but that he had agreed to sign the statement and testify before the grand jury in order to avoid being arrested for murder or for the federal offense of possessing a sawed-off shotgun. He testified that the police composed the statement and coerced him into signing it by promising not to charge him with murder or with other crimes and by promising to assist him on his other outstanding warrants. He further testified that, in order to insure he would testify before the grand jury, he was kept at Area Two against his will from Friday afternoon, April 15, 1989, until Monday morning, April 17, 1989, at which time the police transported him to testify before the grand jury.

Tremmel testified at trial that only once did he attempt to contact anyone to claim that his written statement and grand jury testimony were untrue. On December 17, 1990, he was served a subpoena by Assistant State's Attorney ("ASA") Cassidy at the Markham courthouse. Tremmel testified that he told ASA Cassidy that his grand jury testimony was untrue, but that ASA Cassidy threatened to charge him with murder if he changed his testimony. At trial, Tremmel's testimony about this occurrence was contradicted by testimony of ASA Cassidy who testified that, on December 17, he did not threaten Tremmel or have any conversation regarding his testimony.

On February 5, 1991, Tremmel was interviewed by Johnson's defense counsel in preparation for trial. At that time, Tremmel told defense counsel that his statement and grand jury testimony were obtained as the result of police coercion. Tremmel then signed a new statement recanting his earlier testimony and claiming that he had no knowledge as to whether any of the defendants were involved in the Unocal incident.

Because Tremmel's trial testimony was inconsistent with his prior written statement and grand jury testimony, the State moved to have the prior statement and the grand jury testimony admitted as substantive evidence pursuant to § 5/115-10.1 of the Illinois Criminal Code. See 725 ILCS 5/115-10.1 (1992) (setting forth criteria for the admissibility of prior inconsistent statements). Three Chicago police detectives testified in support of this motion, describing the events of the April 14, 1989 weekend. Their rendition differed from Tremmel's in that they testified that Tremmel was never placed under arrest, threatened with arrest, or promised leniency in return for cooperation. Rather, as one detective testified, Tremmel voluntarily agreed to assist the police and he stayed at Area Two at his own request and was not kept against his will. This detective stated that Tremmel was free to roam between several different rooms at Area Two, that he was given food and use of a phone, that he called his residence and his mother, and that his mother brought him a change of clothes while he was at the station.

After the officers testified, ASA Wasik, who took Tremmel's statement at Area Two, testified in support of the motion to admit the written statement. ASA Wasik said that Tremmel cooperated with him and that he did not witness any threats being made to Tremmel at Area Two. ASA Wasik also testified that he prepared Tremmel's three-page written statement based upon Tremmel's responses during questioning. ASA Wasik testified that during the early morning of April 15, 1989, Tremmel agreed to testify before the grand jury, and the police discussed how Tremmel would be transported to 26th and California. He testified that Tremmel said that he did not want to go home and that it was agreed that he could stay at Area Two until Monday, April 17, 1989.

After ASA Wasik's testimony and after argument outside the presence of the jury, the trial court made the following conclusions regarding Tremmel's statement:

[T]here is reason which a trier of fact could find that the statement from Broadwater, Tremmel, that is, was not the product of his free will. If that be the case, then their statement probably under McBounds could not come in because it lacks reliability.

Now, I haven't seen any cases directly on point of this area of the law. McBounds is the closest case that comes to it, but I get from McBounds that a statement--this has nothing to do with enforcing that witness' Fourth Amendment right. It has to do with indicia of right around the statement, and if there isn't some reliability around the statement, then it is blatant hearsay.

I have concluded that on that issue, the jury is now fully apprised of the circumstances around giving of the statement, and if they conclude that the statement is, in fact, the product of coercion, I'm sure the lawyers will tell him [sic] what to do with it.

So as to that issue, I'm going to allow the statements to come into evidence.

(R. 1022-23) (emphasis added). After some further discussion, defense counsel asked the judge to clarify his decision:

MR. HILL: Just so the record is clear, was it your statement or it's based on the evidence presented that it is your belief there was some coerciveness at the police station?

THE COURT: I think there's coercion, but the jury may not, and the ultimate determination is...