People v. Johnson, 1-19-0567

CourtUnited States Appellate Court of Illinois
Writing for the CourtPRESIDING JUSTICE WALKER delivered the judgment of the court, with opinion.
Citation2021 IL App (1st) 190567,191 N.E.3d 648,455 Ill.Dec. 341
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David JOHNSON, Defendant-Appellant.
Docket Number1-19-0567
Decision Date23 August 2021

2021 IL App (1st) 190567
191 N.E.3d 648
455 Ill.Dec.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
David JOHNSON, Defendant-Appellant.

No. 1-19-0567

Appellate Court of Illinois, First District, FIRST DIVISION.

August 23, 2021

James E. Chadd, Douglas R. Hoff, and Jonathan Pilsner, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Noah Montague, and Justin Erb, Assistant State's Attorneys, of counsel), for the People.

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

455 Ill.Dec. 343

¶ 1 A jury found David Johnson guilty of first degree murder and aggravated discharge of a firearm. Johnson contends on appeal that the court erred by admitting into evidence a recording of a phone call Johnson made from jail and by failing to instruct the jury properly on the use of other-crimes evidence. We find the call admissible, but we find the trial court committed plain error by failing to instruct the jury on the limited purpose for which the court admitted the call into evidence. Because we find the evidence closely balanced and the erroneous instructions challenged the integrity of the judicial process, we reverse and remand for a new trial.


¶ 3 At approximately 3:30 p.m. on May 24, 2014, police responded to a call and found Kenneth Anthony on the ground near 69th Street and Halsted Street, dead from a gunshot wound. Police arrested Toney Hill at the scene. Based on statements Hill made, police arrested Johnson three months later. A grand jury indicted Johnson for the murder of Anthony, for the attempted murder of Hill, and for aggravated discharge of a firearm.

¶ 4 At the jury trial, Hill testified that on May 24, 2014, he and Johnson were hanging out near 69th Street and Halsted Street with three friends Hill knew only by first name or nickname: Deante, Dave, and Fabo. Deante started fighting with Johnson and landed on top of Johnson before the others broke it up. According to Hill, "nobody really [won], they both fell to the ground and we broke the fight up." Hill walked with Johnson while others walked with Deante in the opposite direction. After

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455 Ill.Dec. 344

Johnson left, Hill and some friends went to a nearby store. Anthony and Rashaun Hollins joined them outside on the street. Hill warned his friends when he saw Johnson and Marlon Kersh walking towards them. Johnson raised a gun and fired. Hill and his friends ran.

¶ 5 The prosecutor played several brief video recordings from store security cameras near the crime scene. One recording showed the backs of two black men as they walked past the store. Hill identified the men as Johnson and Kersh. Hill also identified two side views of the men as they walked past a second store's camera. He testified that a still shot extracted from the video showed Johnson.

¶ 6 Kenneth Bradley testified that he was with the group at 69th Street and Halsted Street when Deante fought with Johnson. Bradley said, "[Johnson] lost. He got beat up." Bradley testified, "[Johnson] mumbled something like he was coming back, you know what I mean. I don't know the exact words that he said, but he mumbled something." Bradley and Deante went to Bradley's home, and both returned to the scene when Bradley got a phone call about the shooting. A firearms expert testified for the prosecution that at least three different guns fired the 19 cartridges police found on the ground at the crime scene. No witness claimed to have seen a third gun or a third shooter at the scene.

¶ 7 Kimberly Hofsteadter, an investigator for the Department of Corrections, identified a compact disc as a collection of recordings of calls Johnson made from the jail. The prosecution asked the court to admit the phone calls into evidence as proof of Johnson's consciousness of guilt. The court overruled Johnson's objection. The court accepted the CD into evidence and permitted the prosecution to play for the jury a recording of a call made on November 4, 2016.1

¶ 8 The record does not include a transcript of the call. The voices on the recording do not enunciate words very clearly. We accept the State's representation in its brief that Johnson, on the recording, said that his attorney wanted to talk to a witness, unnamed in the recording, "just in case they do get snatched." Johnson said, "make sure that on the 27th ... send his a*** away. For real." The court had set the trial to begin on the 28th.

¶ 9 In the instruction conference, Johnson objected to a proposed instruction concerning Johnson's statements. The court overruled the objection and instructed the jury:

"You have before you evidence that the Defendant made a statement relating to the offenses charged in the indictment. It is for you to determine whether the Defendant made the statement and, if so, what weight should be given to the statement. In determining the weight to be given to a statement, you should consider
191 N.E.3d 652
455 Ill.Dec. 345
all of the circumstances under which it was made."

¶ 10 The jury asked the judge for a transcript of the phone call, and the court advised that no transcript was available. Subsequently, the jury found Johnson guilty of murder and aggravated discharge of a firearm during the murder, but not guilty of attempting to murder Hill. The court held a hearing on Johnson's posttrial allegations of ineffective assistance of counsel. The court denied the motion for a new trial and sentenced Johnson to 35 years for murder, plus 20 years for use of a firearm in the course of the murder, to be served consecutively to 6 years for aggravated discharge of a firearm, for a total sentence of 61 years. Johnson now appeals.


¶ 12 On appeal, Johnson contends that the trial court erred by admitting the phone call into evidence and by failing to instruct the jury about the limited use of defendant's statements. He also contends his attorney provided ineffective assistance by failing to offer an instruction on other-crimes evidence.

¶ 13 We note that defense counsel failed to preserve the issues of whether the trial court erred by admitting the phone call into evidence and failing to instruct the jury about the limited use of the statements. Defense counsel made objections at trial, but the objections were not preserved with a posttrial motion. To preserve an alleged trial error for appellate review, a defendant must raise an objection both at trial and in a written posttrial motion. People v. Bush , 214 Ill. 2d 318, 333, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005). In People v. Herron , 215 Ill. 2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005), our supreme court held that "the plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence." Under the first prong, the defendant must prove "prejudicial error," by showing both that there was plain error and that "the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him." Id. at 187, 294 Ill.Dec. 55, 830 N.E.2d 467. Under the second prong, the defendant must prove that there was plain error and that "the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Id. Prejudice to the defendant is presumed because of the importance of the right involved, "regardless of the strength of the evidence.’ " (Emphasis in original.) Id. In both instances, the burden of persuasion remains with the defendant.

¶ 14 A. Phone Call

¶ 15 Generally, we review the trial court's evidentiary rulings for abuse of discretion. People v. Reese , 2017 IL 120011, ¶ 75, 421 Ill.Dec. 845, 102 N.E.3d 126. Because Johnson's motion for a new trial did not preserve his objection to the ruling on the phone call, we review the issue for plain error. Id. ¶ 68. The first step under either prong of the plain-error doctrine is to ascertain whether a clear or obvious error occurred at trial. People v. Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 16 "Evidence of other crimes may *** be admitted *** as evidence to show a consciousness of guilt." People v. Abernathy , 402 Ill. App. 3d 736, 749, 341 Ill.Dec. 737, 931 N.E.2d 345 (2010). "An attempt by a defendant to intimidate a witness, though a separate offense, is properly admissible for this purpose ***."

191 N.E.3d 653
455 Ill.Dec. 346

People v. Woods , 122 Ill. App. 3d 176, 179, 77 Ill.Dec. 576, 460 N.E.2d 880 (1984).

¶ 17 Johnson contends that his unclear remarks about an unidentified person do not prove an intent to intimidate or otherwise prevent a witness from testifying, especially because no evidence shows that the unidentified potential witness ever learned that...

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