People v. Johnson

• Decision Date: 27 March 1992
• Docket Number: No. 1-89-3361,1-89-3361
• Parties: , 169 Ill.Dec. 858 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sammie JOHNSON, Defendant-Appellant. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 345

592 N.E.2d 345

227 Ill.App.3d 800, 169 Ill.Dec. 858

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

No. 1-89-3361.

Appellate Court of Illinois,

First District, Fifth Division.

March 27, 1992.

[227 Ill.App.3d 801] [169 Ill.Dec. 859] Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, Michael Latz, Lisa Ciardelli, of counsel), for plaintiff-appellee.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Karen Daniel, of counsel), for defendant-appellant.

Justice GORDON delivered the opinion of the court:

Following a bench trial, defendant Sammie Johnson was convicted of first degree murder. The trial court sentenced defendant to 28 years' imprisonment. On appeal, defendant contends that he was not proved guilty of first degree murder beyond a reasonable doubt and that the charge should be reduced to second degree murder; that the Illinois murder statute is unconstitutional; that the trial court erred in not appointing new counsel for defendant when he presented his pro se post-conviction motion alleging ineffective assistance of counsel; and that the sentence was improper.

George Nance, a sergeant with the Ford Heights, Illinois police department testified for the State that on April 23, 1989, at about 4 p.m., he responded to a radio call regarding a shooting at 17th and Ellis Avenues in Ford Heights. Nance arrived at the scene and found the body of Leo Armstrong, who had been shot in the back of the head. Nance had seen Armstrong several days earlier, in connection with a police investigation, in the hospital emergency room being treated for an arm injury.

At the scene, Nance spoke with Terry Brooks. Nance then sought out defendant, whom he located the next day around noon. Defendant was arrested, and he gave a statement. Defendant stated that he was walking down the street when:

"Leo and Moon, [Terry Brooks] drove up and Leo said, 'Why you tell Freddie to ask me where Tim was at?' I said, 'Why you call me for Freddie?' That I'm not in that stuff. He said, 'I'll beat your little punk tail.' He jumped out of the car, started walking up on me. I kept walking back. Moon was driving back slowly with the car. So, I said, Go on, Leo.' He said, 'I'll beat your little ass.' With his arm in his jacket. I kept backing back. He kept following me so I pulled out the gun. He said, 'Shoot. Shoot.' So, I shot and he kept coming. So, I shot two more times. Then he fell. I dropped the gun. And ran. When I was running I saw Dunsa, supposed to be his cousin, following me in Moon's car so I just kept running and that's it."

Sergeant Nance asked defendant about any prior encounters between defendant and Armstrong. Defendant replied:

"We used to be friends. That was it. We just say hello, go on, leave. Never hung together. He had told me prior that he was going to beat me up in front of Freddie and Rodney Johnson. When he approached me, he had his hands in his jacket. I thought he was going to shoot me. When [sic] I shot him."

Nance testified further that no weapon was recovered at the scene.

Terry Brooks testified for the State that on April 23, 1989, he was driving with the victim on 17th Avenue. No one else was in the car. As they approached Ellis Avenue, they saw defendant walking and "Leo told me to stop." The victim, who remained in the car, asked defendant "why he was telling lies on him." Defendant told the victim to "get the f--- out of his face." The victim then began to get out of the car, saying: "You think I'm handicapped because my arm is hurt? I'll wipe your ass with one arm." Brooks testified that the victim was referring to the fact that his collar bone was fractured or bruised and his right arm was strapped down to his stomach. The victim had on a sweat jacket with no shirt, with his left arm in the sleeve and the jacket draped over his right arm. Brooks did not see the victim with a weapon.

Brooks testified that he then heard defendant tell the victim to "go on." Defendant "walked away and then he turned around," about seven feet from the car. Defendant "pulled a long black gun out of his back, out of the back of his belt." Defendant aimed the gun, and fired a shot. The victim started running away from defendant. Brooks heard defendant's gun "click three times." Then he heard two more gunshots, and he saw the victim fall. Defendant turned and ran. Brooks walked over to the victim, lying face down on the ground, and saw "a hole in the back of his head."

On cross-examination, defense counsel questioned Brooks about any drug dealings he had with Leo Armstrong:

"Q As a matter of fact, you work for Leo, don't you?

A No.

Q Don't you sell drugs for Leo?

[PROSECUTOR]: Objection.

THE WITNESS: No, I don't sell no drugs.

THE COURT: Sustained.

* * * * * *

[DEFENSE COUNSEL]: How long had you been working for Leo?

[PROSECUTOR]: Objection, Judge.

THE WITNESS: I ain't working for nobody.

THE COURT: Asked and answered."

Paul W. Groah, an assistant State's Attorney, testified for the State that on April 24, 1989, he took this statement from defendant:

"On 4/23/89, I saw Leo Armstrong in a car with Moon [Brooks]. He got out of the car and kept coming on me. We were face to face the whole time. He kept walking up on me. I kept walking backwards. He had his right arm in his jacket. I reached into my back pants and pulled out a gun. I had purchased the gun earlier in the afternoon, because I wanted it for protection and I was scared. I pulled the trigger once, heard a shot, and Leo kept coming on me. I pulled the trigger at least two more times. I don't know how many times, exactly. Leo was still coming toward me. I saw Leo fall. I dropped the gun and ran. When Leo got out of the car, I never saw him with a gun, a knife, a club, or any weapon."

Defendant made three corrections to the written statement, and signed the document.

The parties stipulated that if Dr. Shaku-Teas, a pathologist, were to testify, she would state that an autopsy of the victim revealed that the 26-year-old male weighed 216 pounds and measured 70 1/2 inches tall. One gunshot wound entered behind the left ear, and traversed at a diagonal until it lodged in the right forehead. The direction of the wound track was back to front, left to right.

Terry Brooks testified for the defense, also. He stated that there may have been other eyewitnesses. "Could have. I haven't seen them." A man named "Dunsa" was not with them, and Brooks denied telling Sergeant Nance that Dunsa was present.

Rhonda Clerk testified for defendant that on April 21, 1989, at about 10 p.m., she saw Armstrong and two men on the side of her house. Defendant then arrived. As defendant was walking to the front door, Armstrong asked where Tim was. Defendant replied: "I don't know. You should know." Armstrong then called defendant a "short bastard" and threatened to kill him. Armstrong was walking towards defendant. He had nothing in his hands. Defendant then went into Clerk's house, stayed five minutes, and left by the back door. Clerk soon exited her house through the front door. Armstrong called her a "black bitch" and threatened to "smack" her. At that point, for the first time that evening, Clerk saw Armstrong holding a black gun in his hand. Clerk and her sister went to the police station to report the incident. When they returned to the house with the police, Armstrong was gone.

Alfred Lee Washington, who was subpoenaed, testified for defendant that on April 23, 1989, he saw Armstrong and Moon [Terry Brooks] in a car at 17th and Ellis Avenues. Armstrong exited from the car and walked over to defendant, arguing with him. Washington could not hear what the two men were saying, however he could see that Armstrong "was steady walking [sic]" towards defendant. Defendant was "backing back." Washington testified further: "And then I seen an object appeared to be a gun because Sammie fired one shot." The first shot was fired into the air. At this point, Washington was kneeling down behind a bush, about 45 feet away. Washington heard a second shot fired. He looked up and saw defendant "running on that third shot." Defendant was "running away from the scene." After the third shot was fired, Armstrong fell to the ground. Between the second and third shots, Armstrong had not moved. Armstrong remained facing defendant at all times. Armstrong never tried to run away. Washington never saw a weapon in Armstrong's hands, and never saw Armstrong raise his hand to strike defendant.

Sergeant Nance was also called to testify on behalf of defendant. Nance stated that Brooks had told him Armstrong, Brooks and "Dune" were present at the scene. Nance never spoke with "Dune," although he knew him. Nance testified further that he spoke with Clerk several days before the shooting regarding an alleged assault on Clerk by Armstrong. Clerk told Nance that Armstrong had threatened her with a gun. Nance also testified that he was aware of Armstrong's reputation in the community, and that there had been a number of complaints made against him for threats of violence.

Defendant, who was 19 years old, testified that on April 23, 1989, he saw Armstrong with Moon [Terry Brooks] and Dune. Armstrong asked defendant "why did I go around lying on him." Defendant replied: "Don't bring that to me. I'm not in that stuff." Armstrong said: "You think I'm playing with you. I'll kick your little ass." Defendant kept walking. Moon, who was driving, followed defendant slowly. Armstrong got out of the car and "began to walk towards me." Moon and Dune exited the car, also. Armstrong said, "I'll kill your little ass." Defendant was "scared and then at that time I pulled out a gun."

Defendant testified further: "I told them to 'Leave me alone. I'm not in that stuff.' " Armstrong replied, "Shoot, shoot." Defendant fired over his head into the air, and then saw that Armstrong's hand was in his coat. He did...