People v. Johnson

• Citation: 385 Ill. App.3d 585,898 N.E.2d 658
• Decision Date: 08 September 2008
• Docket Number: No. 1-06-0833.,1-06-0833.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

898 N.E.2d 658

385 Ill. App.3d 585

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

No. 1-06-0833.

Appellate Court of Illinois, First District, First Division.

September 8, 2008.

Rehearing Denied October 16, 2008.

Michael J. Pelletier—Deputy Defender, Marion Buckley—Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Michelle Katz, Tasha-Marie Kelly, of Counsel), Chicago, IL, for Appellee.

Presiding Justice ROBERT E. GORDON delivered the opinion of the court:

On September 23, 2005, a jury found defendant Terrance Johnson guilty of both the first-degree murder of Zhontele Payne and the aggravated battery with a firearm of James Williams; and the jury also acquitted defendant of the attempted murder of Williams. The charges arose out of a drive-by shooting on July 18, 2001 involving rival gangs. On March 2, 2006, the trial court sentenced defendant to consecutive terms of 45 years for the murder and 6 years for the aggravated battery.

On appeal, defendant makes six claims: (1) the trial court erred in failing to suppress defendant's pretrial confession on right to counsel grounds; (2) the trial court erred by barring a prior defense attorney from testifying at trial about defendant's claimed assertion of his right to counsel; (3) defense counsel was ineffective at trial; (4) the prosecutor committed error in his rebuttal closing; (5) the trial court erred by admitting both the written statement and the grand jury testimony of the aggravated battery victim, who recanted at trial; and (6) the mittimus must be corrected because it stated that defendant spent 1,657 days in custody, when he actually spent 1,687 days. For the reasons stated below, we affirm the conviction. However, the mittimus must be corrected.

BACKGROUND

In the evening of July 18, 2001, Zhontele Payne and James Williams were shot in a drive-by shooting, near Maypole and Leclaire Streets in Chicago. Payne later died, and Williams sustained injuries. On August 27, 2001, a grand jury indicted defendant Terrance Johnson for Payne's murder and Williams' battery.

Before trial, defendant filed a motion on May 13, 2002 to quash his arrest due to lack of probable cause and to suppress any evidence obtained as a result of the arrest. That motion was heard on July 16, 2002, and denied. On September 25, 2002, defendant moved to suppress his videotaped confession based on his claim that he asserted his right to counsel in the presence of his attorney. Since his lawyer was a potential witness, the State filed a motion to disqualify his lawyer which was granted and defendant obtained new counsel. On March 16, 2004, the trial court denied defendant's motion to suppress the confession.

On September 20, 2005, the jury trial began. In its case in chief, the State called Annie Payne, mother of the murder victim, who testified that she had identified her son's body; and Larry Porter, who testified that he observed a blue van pull up next to the victim's auto, that a gun protruded from the van window and fired, and that he identified the van.

The State's next witness was James Williams, the aggravated battery victim. Although Williams had provided prior to trial both a written statement and grand jury testimony, at trial he recanted his prior identification of defendant as the shooter. At trial, Williams identified the written statement and his signature on every page of it, and he testified that he recalled testifying in front of the grand jury.

At trial, Williams testified that, in the evening of July 18, 2001, prior to 7 p.m., he was in the front passenger seat of an automobile, with Roderick Young in the driver's seat and Zhontele Payne in the backseat, and they were "about to go to Great America"; that Young parked the vehicle at Maypole and Leclair Streets and exited; that another vehicle pulled alongside and shots were fired from the second vehicle; and that he was shot in the leg.

However, at trial, Williams testified that he did not see the shooter. He answered "I don't recall" when asked whether he had previously stated in his written statement and before the grand jury that he saw defendant shooting a gun out the window of a blue minivan that had pulled up alongside their vehicle. At trial, Williams testified: "I didn't see no van. I didn't see nothing."

At trial, Williams testified that sometime shortly after he was released from the hospital, police detectives drove him down LeClaire Street, but he denied having pointed out defendant at that time. When asked whether he had stated to Assistant State's Attorney (ASA) Elisabeth Bauer Kent and before the grand jury that he had pointed out defendant to police detectives as defendant stood on LeClaire Street, Williams answered "I don't recall."

At trial, Williams denied belonging to a gang. He also testified that he did not recall having told both ASA Bauer Kent and the grand jury that he was a member of a gang called the Mafia Insane Vice Lords and that defendant was a member of a gang called the Four Corner Hustlers.

The State then called ASA Thomas Driscoll, who had presented Williams to the grand jury and who read Williams' grand jury testimony to the trial jury. The State also called Detective Richard Milz, who had arrested defendant; Brian Smith and Leah Kane, a forensic investigator and scientist, respectively; and ASA Elizabeth Bauer Kent, who handwrote a statement signed by Williams and who asked questions during defendant's videotaped confession. Williams' written statement was read to the jury, and the videotape of defendant's confession was played for the jury. The State also introduced a stipulation that if Dr. Barry Lifschultz, a forensic pathologist, were called to testify, he would testify that Payne died from gunshot wounds.

After the State rested, the defense called to the stand Amber Montgomery, defendant's former girlfriend, who testified that defendant was with her during the night of the shooting and did not leave her house until approximately 2:30 a.m. on July 19, 2001. Defendant testified that he was with his then-girlfriend until approximately 2 a.m., that his videotaped confession was coerced, and that he was the owner of the blue van previously identified by state witness Larry Porter.

In rebuttal, the State called Detective Raymond Schalk, who testified that defendant's former girlfriend told him that defendant had left her house at 10 p.m. on the night of the shooting. The State also recalled ASA Elizabeth Bauer Kent who testified that defendant did not ask for an attorney and did not complain of any mistreatment prior to his confession; and Detective Milz, who also rebutted defendant's claims of coercion.

As previously noted, the jury convicted defendant of the first-degree murder of Payne and the aggravated battery of Williams, and acquitted defendant of the attempted murder of Williams. Defense counsel filed a motion for a new trial, and defendant filed a pro se motion for ineffective assistance of counsel. Both motions were denied. At sentencing, the trial court stated that it was sentencing defendant to the minimum sentence, which was 45 years' incarceration for the first-degree murder charge, and a consecutive 6-year sentence for the aggravated battery charge. Defendant's motion to reconsider was denied, and this appeal followed.

ANALYSIS

On appeal, defendant makes six claims: (1) the trial court erred in failing to suppress defendant's pretrial confession on right-to-counsel grounds; (2) the trial court erred by barring a prior defense attorney from testifying at trial about defendant's claimed assertion of his right to counsel; (3) defense counsel was ineffective at trial; (4) the prosecutor committed error in his rebuttal closing; (5) the trial court erred by admitting both the written statement and the grand jury testimony of the aggravated battery victim, who recanted at trial; and (6) the mittimus must be corrected because it stated that defendant spent 1,657 days in custody, when he actually spent 1,687 days.

1. Right to Counsel

Defendant claims that the trial court erred in denying his motion to suppress his videotaped confession. At a suppression hearing, defendant's prior counsel testified that, at the police station and in his presence, defendant invoked his right to counsel. Defendant moved to suppress on the ground that the police subsequently obtained his confession in violation of this asserted right. After a hearing, the trial court denied the motion, finding that the State had showed that the defense attorney had not, in fact, visited defendant at the police station. On appeal, defendant claims that this factual finding by the trial court was against the manifest weight of the evidence.

Our standard of review is bifurcated, with an "against the manifest weight" standard for the trial court's factual findings and a "de novo" standard for the ultimate question of whether the evidence should have been suppressed. People v. Pitman, 211 Ill.2d 502, 512, 286 Ill.Dec. 36, 813 N.E.2d 93 (2004); People v. Gipson, 203 Ill.2d 298, 303-04, 272 Ill.Dec. 1, 786 N.E.2d 540 (2003). As our supreme court has previously explained, "[o]n review of a trial court's ruling on a motion to suppress, we accord great deference to the trial court's factual findings, and we will reverse those findings only if they are against the manifest weight of the evidence." Gipson, 203 Ill.2d at 303, 272 Ill.Dec. 1, 786 N.E.2d 540; see also Pitman, 211 Ill.2d at 512, 286 Ill.Dec. 36, 813 N.E.2d 93. "This deferential standard of review is grounded in the reality that the circuit court is in a superior position to determine and weigh the credibility of the witnesses, observe the witnesses' demeanor, and resolve conflicts in their testimony." Pitman, 211 Ill.2d at 512, 286 Ill. Dec. 36, 813 N.E.2d...