People v. Johnson
| Decision Date | 06 September 1991 |
| Docket Number | No. 1-87-2751,1-87-2751 |
| Citation | 161 Ill.Dec. 628,578 N.E.2d 1274,218 Ill.App.3d 967 |
| Parties | , 161 Ill.Dec. 628 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anton JOHNSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jack O'Malley, State's Atty., County of Cook, Chicago, for plaintiff-appellee.
Defendant, Anton Johnson, was tried by a jury and found guilty of murdering John O'Neal. (Ill.Rev.Stat.1985, ch. 38, par. 9-1(a)(1), (2).) He was sentenced to a term of 30 years' imprisonment. On appeal, he contends that: (1) the State failed to rebut the prima facie case of discrimination, and instead, proffered reasons that were merely a pretext for excluding prospective black jurors on account of their race; (2) he was denied a fair trial due to the prosecutor's irrelevant and prejudicial insinuations that he was a member of a gang and as a result was motivated to kill; (3) he was denied a fair trial resulting from prosecutorial misconduct and overreaching; and (4) he was denied a fair trial because the trial court refused to submit his proffered eyewitness identification instructions to the jury.
On July 27, 1987, the trial court conducted a voir dire examination of prospective jurors. The record on appeal discloses that of the 25 venire members who were reached for voir dire, four were black. However, the record does not indicate either the number or the racial composition of those venire members in the array who had not reached the voir dire stage. During the voir dire, the State peremptorily challenged five prospective jurors. Of those five, three were black and two were white. Defendant, who is black, exercised peremptory challenges to excuse four prospective jurors. Of those four, three were not black, while the race of the fourth is not reflected in the record. Twelve jurors and two alternates were selected. Of the selected jurors, one was black while the remaining 11 were not black, although the record does reflect that at least two were Hispanic. The trial court itself discharged two venire members.
The three black venire members excused by the State were Shirley McGee, James Norwood, and David Neely, and they possessed the following characteristics:
(1) Shirley McGee lived with her son on West Wallon in Chicago, was single and had never been married. She had been unemployed for approximately one year. She had been burglarized three years before. She had no prior jury service. Her landlord was a Sergeant in the Chicago Police Department.
(2) James Norwood was married and had lived on South Ashland in Chicago for five years, had never served on a jury. He worked as a paint filler in a manufacturing company. He personally knew no one who worked in the law enforcement or in any law-related field, and neither he nor any member of his immediate family had been victims of crime.
(3) David Neely was single, had lived at 6200 South Saint Lawrence in Chicago for five years. Prior to living there, he had lived at 5700 South Bishop for 10 years. He graduated from Chicago State University, which is located on 95th and King Drive. For two years, he had been a fifth grade teacher at the Saint Alberts School located on 90th and Harper in Chicago. He never before served on a jury, knew no one who worked in law enforcement or in any law related field, and neither he nor any member of his immediate family had been victims of crime. (Neely was initially accepted by the State as a juror; however, after the Before the voir dire examination had been completed, defense counsel objected to the jury selection on the ground that the State had exercised peremptory challenges to exclude blacks from the jury. Defense counsel specifically referred to one of the peremptorily challenged black prospective jurors, David Neely, compared him to one of the accepted white jurors, Peggy Sutorious.
[161 Ill.Dec. 632] defense excused three other jurors, the State excused Neely.)
Without explicitly articulating whether or not a prima facie case of racial discrimination in juror exclusion had been established, the trial judge then asked the State to respond to the defense counsel's objection. The State pointed out that of the five prospective jurors peremptorily challenged by the State, two were white, and the trial court asked why the State had excluded Neely. The assistant State's Attorney explained he felt that Neely "would be more inclined to lean toward the Defense than to the State" because he lived, taught and had gone to college in the inner city.
The trial judge then inquired about the remaining two prospective jurors peremptorily challenged by the State. Before giving the State an opportunity to respond, the trial judge remarked, "One was a woman who apparently had an illegitimate child, Miss McGee." Defense counsel countered that McGee was "single, employed and worked as a phone operator." The trial judge then initially concluded, "I can't see any systematic exclusion, there are two Latinos on the Jury who are minorities but there is one other Juror, one black, I can't see systematic exclusion." Yet, despite his conclusion that there was no "systematic exclusion," the trial judge then asked the prosecutor why the State had peremptorily challenged Norwood. He replied:
"I don't believe he was attentive during the questioning, he appeared to be disinterested, he appeared to be sleeping when other people were being questioned."
The trial judge then remarked, "Well, he didn't bother me because he was rather quiet there, I don't know about him." The trial judge then denied defendant's motion, noted that the sworn panel contained three "minority" jurors, and the case proceeded to trial.
The pertinent testimony adduced at trial is as follows. Flora O'Neal, the victim's mother, testified that the victim, John O'Neal, had lived with her at 9215 South Woodlawn in Chicago, prior to his death on September 13, 1986.
Tony Rice, the victim's friend, testified that he lived at 4101 South Federal in Chicago. Shortly after 6 p.m. on September 13, 1986, he was in front of a food store on 43rd and State Streets with his brother, John Rice, and his friends, Tony Pierce, Sammy Jones, and the victim. Together they walked northbound towards the intersection of 42nd and State Streets.
Suddenly defendant appeared from behind a field house, 25 feet away, and began shooting at the group. Tony shouted a warning, then he and all his companions ran. As Tony ran, he fell behind an automobile, and he watched with an unobstructed view as the defendant continued shooting. Defendant then ran behind the field house. Tony discovered that the victim had been shot. Tony told the police on the night of the shooting that he had previously seen defendant three or four times "in the neighborhood," although he did not know defendant's name.
Tony further testified that at approximately 10 p.m. on the following day, while he and Sammy Jones were riding around the neighborhood with two police officers, he spotted the defendant and pointed him out.
On cross-examination, Tony testified that immediately after the incident he described the defendant to Officers Argenbright and Scannell. He told both officers that the defendant had a light mustache, shoulder-length hair and "he had his hair slick back into the wave." Tony added on redirect that he told the police that defendant wore blue jeans and a gray jacket; he had "slick hair and a wave," i.e., "processed" hair which was shoulder-length; he was thin, brown skinned, and about five feet nine inches tall. Tony denied telling the police there were three offenders, or that the offenders wore their hats to the right side.
John Rice, the victim's friend testified that he also lived at 4101 South Federal Street, as had the victim. John Rice testified for the State on direct examination that he was familiar with street gangs called the "Cobra Stones" (Stones) and the "Black Gangster Disciples" (Disciples), admitting to having once been a member of the Stones. He stated that the Stones, who controlled the building where he lived, and the Disciples, who controlled the building next to his, at 4037 South Federal, were rival gangs and at war. He stated that the Disciples controlled the park area from which the defendant had emerged when he began shooting.
John further testified that while he walked with his brother and the victim on State Street, he saw defendant pull out a gun, heard him shout something, and saw him fire approximately six shots. John had previously seen defendant "a few times around the neighborhood." John described defendant to the police as being 5'9"' tall, 150 to 160 pounds, wearing a gray jacket and blue jeans, with shoulder-length hair "slick back." He identified the defendant in a lineup the night after the shooting. Previously, John had been convicted of aggravated battery in 1981 and armed robbery in 1982.
On cross-examination, John denied telling the police there had been more than one offender.
Sammy Jones, along with the two Rice brothers and the victim, lived at 4101 South Federal. Jones testified to essentially the same events as Tony except that he did "[n]ot exactly" see the shooter. When he heard the first shot, he ran. On cross-examination, he initially testified that he informed the police officers that a group of three individuals fired...
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