People v. Johnson

• Decision Date: 25 September 1973
• Docket Number: No. 42997,42997
• Citation: 55 Ill.2d 62,302 N.E.2d 20
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Eugene JOHNSON, Appellant.
• Court: Illinois Supreme Court

Page 20

302 N.E.2d 20

55 Ill.2d 62

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

No. 42997.

Supreme Court of Illinois.

Sept. 25, 1973.

James J. Doherty, Public Defender, Chicago (Michael Weininger and Lee T. Hettinger, Asst. Public Defenders, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and James B. Zagel, Asst. Atty. Gen., (Bernard Carey, State's Atty., and Kenneth L. Gillis and Thomas A. Mauet, Asst. State's Attys., of counsel), for the People.

WARD, Justice:

The defendant, Eugene Johnson, was found guilty by a jury in the circuit court of Cook County of the murder of Emma Pietras and the armed robbery of Otto Pietras, her husband, Joseph Schultz and Francisco Diaz during a robbery in Otto's Tavern in Chicago. Following the jury's recommendation, the trial court sentenced the defendant to death for the murder of Mrs. Pietras. The judge imposed three concurrent sentences of 50 to 100 years on the armed-robbery convictions. The defendant's appeal has been taken directly to this court.

The defendant's contentions on appeal are:

1. That he was not guilty of murder under the felony-murder doctrine.

2. That he did not knowingly waive his constitutional rights.

3. That the trial judge applied an improper standard in denying the defendant's motion to suppress the confession.

4. That the trial court erred in denying the defendant's motion to suppress identification testimony.

5. That the defendant was denied his right to counsel.

6. That the imposition of the death sentence was improper and the sentences for robbery were excessive. Otto's Tavern was owned and operated by Otto Pietras and his wife, Emma Pietras. On April 18, 1968, at about 10:45 P.M., Otto Pietras, Frank Diaz, George Schehl, Joseph Schultz, Raymond Becker and Jerry Miller were seated at the bar and Emma Pietras was serving as the bartender. Two young men entered the tavern and going directly to the pool table at the rear of the premises they began to play a game but then abruptly left the tavern. Minutes later two others, armed with shotguns, entered. One of them, whose face was covered by a stocking mask, came through the front entrance and stationed himself at that door. The other, whose face was exposed, came through the rear entrance and announced a holdup. That robber, who was later identified as the defendant, shoved his shotgun into Joseph Schultz's stomach and told him to sit down. Schultz, who had been coming out of the washroom when he encountered the defendant, testified at trial: 'I observed his face * * * for a minute and just looked at him stone cold.' The man then moved from one customer to another taking money and stuffing it into his pockets. He then went behind the bar and took the money from the cash register. The commission of the robberies took about five minutes. The robber who had taken the money then walked to his companion and both robbers walked out the front door. The man with the mask re-entered the tavern approximately two seconds later, it was testified, and fatally wounded Emma Pietras, who was sitting at the end of the bar and close to the front door.

The police learned that one Charles Knox had information about the crimes. He was picked up early on April 21 and was taken to the police station for questioning. There he stated that he had met Moses and Edward Clay at about 1:00 A.M. on April 19. They told him that they had committed a robbery and shot a woman at 1875 Bissell Street. He also said they had a large sum of money. The police then went to the apartment where the Clays lived, and arrested three brothers, Oscar, Moses and Edward Clay. One of the officers seized a wallet and watch which were in plain view in the living room and which had been taken in the robbery from Diaz.

Moses Clay, when questioned, told the police that the defendant had participated in the robbery. The officers proceeded to the defendant's home at 750 North Milwaukee Avenue and placed him under arrest. He was advised of his right not to make a statement and his related rights, and was taken to the police station. There he was again orally advised of these rights and was also given a card to read, on which these rights were printed. Following this the defendant made an oral statement that he had robbed the patrons of Otto's and had taken the money from the register. He said that Edward Clay had shot Emma Pietras.

Shortly thereafter, two lineups were held in which Moses, Oscar and Edward Clay, Charles Knox, the defendant, and defendant's half brother, Louis Clayton, appeared. Four of the victims, George Schehl, Joseph Schultz, Frank Diaz and Ray Becker, viewed the first lineup. Schultz and Schehl, in the presence of Diaz and Becker, identified the defendant as one of the robbers. A second lineup was held shortly thereafter for Otto Pietras. He too identified the defendant.

After further questioning Moses Clay, the police then returned to the Clays' apartment building. They recovered a single-barrel .12-gauge shotgun from the rear roof of the building and also a brown paper bag containing various identification cards bearing the name 'Pietras' from a garbage can behind the building. The officers went to the home of the father of the Clays, who turned over a .16-gauge shotgun to the police. At trial there was testimony that the shotguns looked like the shotguns carried by the robbers.

Motions by the defendant to suppress physical evidence, statements and identifications were heard and denied prior to trial.

At trial, Schehl, Pietras and Diaz identified the defendant as the man who had robbed them, and Diaz also identified a wallet, watch and other personal items recovered as having been taken from him in the robbery by the defendant. Schultz identified the defendant as the robber who had thrust the shotgun at his stomach and also identified various recovered identification cards as having been taken from him in the robbery.

The prosecution also put on as a witness Officer James Shannon, who testified that the defendant had admitted to him that he had participated in the robbery but had denied shooting Mrs. Pietras. The testimony of Officer Frank Blash corroborated Officer Shannon's testimony. Joseph Mortimer, a fingerprint technician of the Chicago Police Department, identified latent fingerprints found on contents of the paper bag recovered from the garbage can behind the Clay building as being those of the defendant.

An aunt of the defendant, Catherine Maiden, and the defendant testified that he had been asleep on a couch at Mrs. Maiden's home at 747 North May Street between 7:00 P.M. and 12:00 P.M. on the night of the crimes. His half brother, Louis Clayton, testified he had seen the defendant asleep on a couch at his aunt's home at 10:00 P.M. on that night. The defendant also denied that he had made any oral statement to Officer Shannon.

The defendant's first contention is that the evidence did not establish his guilt under the felony-murder doctrine, because it showed that the killing occurred after the robbery had been completed. He argues that when the door closed behind Edward Clay, who, it appears, was later convicted in a separate trial of the murder of Emma Pietras, the felony was ended and any act committed by Clay after that time was not related to the robbery.

The argument is not well founded. The doctrine of felony-murder is part of our law. Section 9--1 of the Criminal Code provides, in part: '(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: * * * (3) he is attempting or committing a forcible felony other than voluntary manslaughter.' (Ill.Rev.Stat.1967, ch. 38, par. 9--1(a)(3).) And of course one who aids or abets the planning or commission of a crime is legally accountable for the conduct of the principal. (Ill.Rev.Stat.1967, ch. 38, par. 5--2.) Thus, 'Where murder is committed during a robbery, all participants in the robbery are deemed equally guilty of murder and it is immaterial who fired the fatal shot. (Citations.)' (People v. Weber, 401 Ill. 584, 604, 83 N.E.2d 297, 308; see also People v. Armstrong, 41 Ill.2d 390, 243 N.E.2d 825; People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68; People v. Bongiorno, 358 Ill. 171, 192 N.E. 856.) The defendant need not to have been actually present at the killing to be guilty under the felony-murder doctrine. (People v. Brown, 26 Ill.2d 308, 186 N.E.2d 321.) If the killing is in the course of escape it is within the operation of the doctrine. (People v. Bongiorno, 358 Ill. 171, 192 N.E. 856.) In Bongiorno, two men, Bongiorno and King, committed an armed robbery, which was interrupted by a police officer. King escaped through a window, but Bongiorno was arrested by the officer. As Bongiorno was being taken down a hallway, King, who had returned, shot and fatally wounded the officer in the back. Bongiorno's contention was that he was not guilty of murder under the felony-murder doctrine because five minutes had elapsed after the robbery had been completed and the prosecution's evidence did not show any plan or design to kill in the course of the robbery. In affirming the conviction this court said, 'Here the uncontradicted evidence shows that the conspirators designed to commit the crime of robbery through the use of a deadly weapon. That use included the intimidation of the victims and the means of the offenders' escape. Under such circumstances the intent to kill, if necessary, in obtaining and carrying away the loot is established. A plan to commit robbery would be futile if it did not comprehend an escape with the proceeds of the crime. * * * Unless the plan of robbery is to terrify the victim, and, if occasion requires, to kill any person attempting to apprehend them at the time of or immediately upon gaining possession of the property, it would be inane and childlike. * * * It is vain to argue that the killing was...