People v. Johnson

• Decision Date: 20 April 1989
• Docket Number: No. 63438,63438
• Citation: 538 N.E.2d 1118,128 Ill.2d 253,131 Ill.Dec. 562
• Parties: , 131 Ill.Dec. 562 The PEOPLE of the State of Illinois, Appellee, v. Brian JOHNSON, Appellant.
• Court: Illinois Supreme Court

Page 1118

538 N.E.2d 1118

128 Ill.2d 253, 131 Ill.Dec. 562

The PEOPLE of the State of Illinois, Appellee, v. Brian JOHNSON, Appellant.

No. 63438.

Supreme Court of Illinois.

April 20, 1989.

Paul P. Biebel, Jr., Randolph N. Stone, Public Defenders, Chicago (Richard E. Cunningham, Asst. Public Defender, of counsel), for appellant.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Kenneth T. McCurry, Kevin Sweeney and Lynda A. Peters, Asst. State's Attys., of counsel), for People.

Justice RYAN delivered the opinion of the court:

Defendant, Brian Johnson, was charged by indictment in the circuit court of Cook County with one count of intentional murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(1)), two counts of knowing murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(2)), three counts of felony murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(3)), two counts of attempted murder (Ill.Rev.Stat.1983, ch. 38, par. 8-4)), seven counts of armed violence (Ill.Rev.Stat.1983, ch. 38, par. 33A-2), four counts of aggravated battery (Ill.Rev.Stat.1983, ch. 38, par. 12-4(a)), three counts of armed robbery (Ill.Rev.Stat.1983, ch. 38, par. 18-2(a)), one count of theft (Ill.Rev.Stat.1983, ch. 38, par. 16-1), and one count of unlawful restraint (Ill.Rev.Stat.1983, ch. 38, par. 10-3(a)). These charges stemmed from an incident in which one man was killed, two others were wounded and personal property was taken from them. The defendant entered a plea of not guilty and, after a bench trial, was found guilty of all of the charges. The trial court rendered a factual finding that the defendant had committed the murder in the course of an armed robbery. A death sentence hearing was held and the defendant again waived a jury. The court found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill.Rev.Stat.1983, ch. 38, par. 9-1(b)(6)(c)) and there existed no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (107 Ill.2d R. 609(a)) pending appeal to this court (Ill. Const.1970, art. VI, § 4(b); 107 Ill.2d R. 603). The defendant was also sentenced to serve 30 years for each of the two counts of attempted murder, 30 years for each of the two counts of armed violence, 15 years for each of the three counts of armed robbery, four years for theft, and three years for unlawful restraint. The remaining counts were all merged.

At trial, the State presented the following evidence. The defendant and the three victims, Frederick Foss, Arthur Hinshaw, and Ellis Worley, all worked together at a Goodyear Tire store in Chicago. The defendant was employed as a mechanic. Hinshaw was the manager of the store and four or five years previously had taken part in hiring the defendant. In early October 1984, the defendant was late in attending a Goodyear training program in Elgin, and on October 10, 1984, Hinshaw fired him.

October 19, 1984, was a regular weekly payday for Goodyear employees. At the time the defendant had at least one week's vacation pay accumulated. According to Hinshaw, Goodyear policy provided that monies owed to discharged employees would not be disbursed at the store, but would instead be sent from Akron to the employee's residence. At 5:30 p.m. on October 19, the defendant entered the service area of the Goodyear store and spoke to two other mechanics, Robert Johnson and Harvey Ellis. Worley was also in the service area at this time, although Hinshaw and Foss were not. The defendant asked Johnson and Ellis if his tools were still there. When they replied that they were, the defendant said he would return the next day to get them, and then left the store.

The defendant returned 10 minutes later. Worley, Hinshaw and Foss were all there, about to leave. According to Worley's testimony at trial, the defendant was holding a gun. The defendant said to the three men: "You are not going anywhere." He then said to Hinshaw, either: "You fired me, didn't you," or: "Art, you fired me." He then shot Hinshaw and Foss. Both victims fell to the floor. Worley testified that Hinshaw and Foss were shot twice. The defendant then ordered Worley to get down on the floor, and Worley complied.

Worley saw the defendant walk over to Hinshaw and take his wallet. He also saw the defendant approach Foss, but did not see him take anything from his body. The defendant then approached Worley and asked him what had been done with the money. Worley replied that they had not taken it to the bank, but had left it in the safe. The defendant told Worley to get up and come with him into the office area of the store, where the safe was located. The safe was locked, however, and the two returned to the service area.

The defendant ordered Worley to give him his money. Worley emptied his pocket, placing nine dollars and change on a table. The defendant then asked him whether that was all he had. When Worley affirmed that it was, the defendant told him to hand over the keys to his car, and Worley complied. The defendant then told Worley to get on the floor. When he had complied, the defendant shot Worley for the first time, through the hand which Worley was clasping to the top of his head. The bullet also grazed his scalp. Worley rolled over and the defendant shot him again. The defendant went through Worley's pockets and took $120 from him. As the defendant was leaving, he apparently saw Worley move. Saying, "Oh, you are still moving," the defendant stabbed Worley in the left side with a knife. Worley testified that the defendant took the knife from the inside of the green army jacket the defendant was wearing. Worley had never seen the knife at work before. Defendant then left the store through the back door, returning only briefly to turn out the lights.

Hinshaw's testimony differed in some respects from Worley's. According to Hinshaw, the defendant only said one word, "stop," before shooting Hinshaw once, hitting him in the stomach. Hinshaw heard Foss pleading with the defendant, telling him to stop and saying, "You don't have to go to these extremes." Hinshaw heard a shot and Foss fell to the floor beside him. He could hear Foss breathing. He heard the defendant say to Worley, "He's going to tell." The defendant walked over to Foss and shot him a second time, searching his pockets after he had done so. The defendant then shot Hinshaw a second time, afterwards taking his wallet, which contained approximately $100.

According to the medical evidence, Foss died of two gunshot wounds to the chest. Worley was treated for a severe stab wound in his abdomen, and gunshot wounds to his left chest, scalp, and right hand. A bullet was removed from his left arm. Hinshaw had two gunshot wounds, one to his stomach and one to his upper left arm. The bullet which pierced his stomach remains lodged in his backbone.

Shortly after the shootings, Officer Joseph Danzl and his partner were assigned to look for the defendant and for Worley's car. Later that night, the officers responded to a call telling them the car had been seen on South Michigan Avenue, three blocks from the store. They arrived there and arrested the defendant and a companion sitting in the car.

After the defendant's arrest, a green army jacket and $68 were taken from him. After being given his Miranda warnings, the defendant told the officers that he had placed the gun under a green carpet on the rear patio of a house on South Coles Avenue. The gun was recovered there on October 20.

On October 20, the defendant gave the police a written statement, which was admitted into evidence. According to the statement, the defendant was owed two weeks' pay when he was fired by Hinshaw. He waited for his money until the next payday, October 19, and then called Hinshaw at about 3 p.m. When he asked if his paycheck was in, Hinshaw replied, "What paychecks, I don't have no paycheck for you," and hung up.

The defendant went to the store at 5:45 p.m. but left without getting his money. When he returned, he pointed a gun at Hinshaw and asked him for the money. Hinshaw replied, "Get out of here, you young punk. You don't have enough heart to shoot, drop one right now." The defendant then shot Hinshaw twice and Foss twice. He went to the office but found that the safe was locked. After he returned he asked Worley if Worley would "tell on him," and Worley said yes. He then shot Worley twice. He took wallets from all three men and Worley's car keys. After leaving, he returned to the store at about 9 p.m. and took Worley's car.

The defendant presented no evidence in his own behalf. The defendant raises only one challenge to the guilt-innocence phase of his trial. He claims that he was denied effective assistance of counsel because his attorney's theory of defense was to concede guilt to the murder of Frederick Foss, but not to the armed robbery and felony murder charges. This theory was based on the view that the evidence of guilt for the murder charge was overwhelming, but that the defendant would not be eligible for the death penalty if it was established that the murder did not occur in the course of a felony.

At trial, the defendant was represented by two privately retained attorneys. The theory of defense became clear during opening statement when counsel stated that "the issue in this case is not whether or not Brian Anthony Johnson committed a murder, it is whether or not in the course of a felony did he commit murder." Counsel proceeded in his opening statement by setting forth his view of what the evidence would show. This version was consistent with the defendant's confession and his testimony at the sentencing hearing. On a number of occasions counsel stated that the defendant would testify; however, he was not called to testify at the guilt stage of the trial, though he did testify at the sentencing...