People v. Plummer

Decision Date20 August 2021
Docket Number1-20-0299
Citation2021 IL App (1st) 200299,191 N.E.3d 619,455 Ill.Dec. 312
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnny PLUMMER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Joey L. Mogul and Brad J. Thomson, of People's Law Office, and David M. Shapiro, of Roderick & Solange MacArthur Justice Center, both of Chicago, and Megha Ram, of Roderick & Solange MacArthur Justice Center, of Washington, D.C., for appellant.

Myles P. O'Rourke, Special State's Attorney, of Chicago (Andrew N. Levine, Ariel Yang-Hodges, and Elisabeth Gavin, Assistant Special State's Attorneys, of counsel), for the People.

Daniel J. Schneider, of Edelson PC, of Chicago, for amici curiae Chicago Torture Justice Center et al.

Michael A. Scodro, Elaine Liu, Sara Norval, and Sarah I. Rashid, of Mayer Brown LLP, of Chicago, for amici curiae Robert W. Bennett et al.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Johnny Plummer, appeals the second stage dismissal of his amended successive postconviction petition on the State's motion. On appeal, defendant contends that the trial court's dismissal should be reversed where defendant made a substantial showing to proceed to a third stage evidentiary hearing based on newly discovered evidence corroborating his claims of police torture and a Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation. For the following reasons, we reverse and remand for third stage proceedings.

¶ 3 A. Pretrial and Trial Proceedings

¶ 4 Following a bench trial, the court found defendant guilty of first degree murder, attempted first degree murder, and aggravated battery with a firearm in the death of Michael Engram (decedent) and the shooting of D'Andre Dyson (D'Andre). Accordingly, the court imposed a cumulative sentence of 50 years. The following facts were detailed by this court in defendant's direct appeal. People v. Plummer , 306 Ill. App. 3d 574, 239 Ill.Dec. 505, 714 N.E.2d 63 (1999).

¶ 5 The shooting occurred on August 11, 1991, and defendant, who was 15-years old at the time, was arrested shortly thereafter. Prior to trial, a hearing on defendant's motion to suppress statements was held. Id. at 576, 239 Ill.Dec. 505, 714 N.E.2d 63. The evidence established that Chicago police Detective Michael Kill was investigating the homicide of Anthony Phillips, near the location of 5817 South Union Avenue on August 18, 1991, around 6:30 p.m. Detective Kill saw defendant near the scene, and defendant gave him information regarding the Phillips death.1 Id. Defendant was allowed to leave the scene. Id.

¶ 6 On August 19, 1991, at around 3:30 a.m., Detective Kill was again near the scene of the Phillips's homicide talking to other witnesses. Id. He saw defendant walk by and asked defendant and other witnesses to accompany him to the police station: defendant agreed. Upon arrival at the Chicago Police Department Area 3 station (Area 3), the witnesses were put in separate interview rooms where they each gave a statement about Phillips's murder. Id. Defendant was not given his rights under Miranda ( Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ) because he was being treated as a witness. Plummer , 306 Ill. App. 3d at 576, 239 Ill.Dec. 505, 714 N.E.2d 63. At 6 a.m. Detective Kill and Detective John Halloran (Detective Halloran) interviewed defendant at which point he implicated a suspect in that case. Id. at 576-77, 239 Ill.Dec. 505, 714 N.E.2d 63. They gave the witnesses the option of staying at the station or coming back when they picked up the suspect. Id. at 577, 239 Ill.Dec. 505, 714 N.E.2d 63. The witnesses all elected to stay at the station. Id.

¶ 7 Later that morning, Chicago police Detective Stanley Turner received an anonymous call telling him that "Smokey" murdered decedent. Id. The caller described "Smokey" as a young black man, of dark complexion, tall, and from around the area of 59th Street. Id. Decedent was shot at 60th Street and Morgan Street on August 11, 1991, at around 4 p.m. Id. Detective Turner learned that an individual named "Smokey" was in the station already. Id. Defendant admitted that he was known as "Smokey" but denied any involvement at approximately 4 p. m. on August 19, 1991. Id. Detective Turner testified that defendant was not handcuffed and looked coherent and appeared relaxed. Id.

¶ 8 At 6 p.m. Detectives Kill and Kenneth Boudreau spoke with defendant again about the Phillips murder, and they left the station. Id. The detectives confirmed that the witnesses would stay at the station in the event that the suspect was found. Id. Detective Kill did not know defendant was known as "Smokey" and did not know about his potential involvement in the murder of decedent. Id. Detective Kill denied treating defendant in an abusive manner and stated that defendant never asked for an attorney or his mother. Id.

¶ 9 At 7 p.m., Detective Halloran returned to the police station to give food to the witnesses when he was informed that they had an eyewitness to the decedent's murder. Id. Detective Halloran denied treating defendant in an abusive manner and testified that defendant did not ask to see anyone. Id. Detective Halloran denied any involvement with the investigation into decedent's death. Id.

¶ 10 At 8:30 p.m., defendant stood in a lineup and was positively identified as decedent's killer. Id. at 577-78, 239 Ill.Dec. 505, 714 N.E.2d 63. Afterwards, defendant was informed of his Miranda rights by Detective Devon Anderson. Id. at 578, 239 Ill.Dec. 505, 714 N.E.2d 63. Defendant confessed to the murder of decedent to Assistant State's Attorney (ASA) William Marback and agreed to give a signed confession. Id.

¶ 11 At 12:35 a.m. on August 20, 1991, ASA Marback again advised defendant of his Miranda rights and wrote out defendant's statement of confession in his presence. Id. Defendant insisted on adding an additional statement that indicated that he shot the decedent because he was informed that decedent put a hit on him, which ASA Marback transcribed. Id. At 3:50 a.m. on August 20, 1991, defendant gave a witness statement to ASA Marback and Detective Halloran regarding the Phillips murder. Id. ASA Marback testified that defendant stated he was treated "fine" and was allowed to use the bathroom and was given a soda and a cigarette.

¶ 12 Defendant testified that between 9 and 10 a.m. on August 18, 1991, two detectives took him to the police station where he was placed in a small room and handcuffed to a ring in the wall. Id. Six hours later, he was driven to the scene of Phillips's murder. Id. at 579, 239 Ill.Dec. 505, 714 N.E.2d 63. He was taken back to the station and given one hamburger. Id. Defendant asked Detective Kill if he could go home or talk to his mother, and Detective Kill just laughed in defendant's face. Id. Detective Kill proceeded to hit defendant in the face, stomach, and side, pulled his hair, and then left the room. Id. Another detective, who defendant did not identify, came into the room and took his shoes. Id. That detective came back and claimed that the shoes matched the prints from the scene. Id. Another unidentified officer told defendant he would get 40 years in prison, where he would be raped. Id. Defendant testified that he only made the confession in decedent's case and witness statements for the Phillips case because he was told he could go home if he did so and because he was tired and afraid. Id.

¶ 13 On cross examination, defendant acknowledged that when he was talking about the Phillips murder, he was not handcuffed. Id. He agreed to go to the scene of Phillips's murder; however, when he returned to the station, he was then accused of murdering Phillips. Id. He asserted that he was never given any Miranda rights by any member of law enforcement but did receive his Miranda rights from ASA Marback. Id. Defendant stated that he informed ASA Marback that he was abused, but ASA Marback did not do anything. Defendant testified that "about a half day" after he gave his witness statement, Detective Kill hit him once in the face and three times with a flashlight. Id. Defendant testified that he did not know what was in the statement he signed, but he signed it because he was afraid and tired of being in the police station. Id. He testified that he signed that statement after he signed the witness statement regarding the Phillips murder. Id. He testified that when he was taken to the juvenile temporary detention center on August 20, 1991, he told the doctor there that the police had beaten him. Id. When defendant was shown photographs taken of him during the lineup, he admitted that there were no marks on his face. Id.

¶ 14 On redirect examination, defendant testified that both Detective Kill and his partner hit him. He also clarified that he was hit by Detective Kill's partner prior to signing his confession.

¶ 15 Defendant's mother, Jeanette Plummer, testified that she visited defendant on August 21, 1991, at the "Audy Home" and observed that his back and face were swollen and that he had dark marks on his upper chest. Id. at 580, 239 Ill.Dec. 505, 714 N.E.2d 63. However, on cross examination, she acknowledged that defendant's lineup photos showed no visible injuries. Id.

¶ 16 Dr. Lawrence Heinrich, a clinical psychologist, testified that he performed a series of tests on defendant in the spring of 1993 and reviewed prior medical reports, and he determined that defendant suffered from schizo-affective disorder. Id. In Dr. Heinrich's opinion, stress and prolonged interrogation would cause defendant to do anything to escape the situation, although he would not understand what he was doing. Id. He also testified that sometimes defendant did not tell the truth. Id.

¶ 17 In rebuttal, the State presented Dr. Albert Stipes, a psychiatrist, who testified that he met with defendant in 1992. Id. After reviewing police reports, defendant's...

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