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People v. Johnson

OPINION FILED SEPTEMBER 29, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LECURTIS JOHNSON, A/K/A LEE CURTIS JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Jack Arnold Welfeld, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, LeCurtis Johnson, was convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), and sentenced to a term of 10 years in the Illinois Department of Corrections. On appeal, defendant contends that: (1) the trial court erred in admitting into evidence shotgun shells found in his apartment; (2) the cumulative effect of improper prosecutorial comments during closing argument denied him his right to a fair trial; (3) the trial court abused its discretion in sentencing defendant to 10 years' imprisonment; (4) the trial court erred in denying defendant's motion for a new trial predicated on newly discovered evidence; and (5) the State's discriminatory use of peremptory challenges violated defendant's constitutional rights. For the reasons that follow, we affirm in part and remand for an evidentiary hearing on the issue of the State's use of peremptory challenges.

The record sets forth the following facts pertinent to this appeal. On Friday, May 6, 1983, approximately 4:45 p.m., Janet Majcher, salesclerk at Wieboldt's Department Store, River Forest, was robbed at gunpoint of approximately $1,000 in cash and checks while carrying the currency from the basement Budget Department where she worked to the third-floor Customer Service Department. Janet testified that while walking up the stairs between the first and second floors at Wieboldt's, she heard footsteps behind her, turned around and saw defendant, who was wearing dark pants and a burgundy shirt. Janet then continued going up the stairs until defendant ordered her to stop and to put the bags that she was carrying into his gym bag. When Janet refused, defendant pulled out a gun and clicked the trigger. At that point, Janet dropped her packages into defendant's gym bag; and defendant turned and ran down the stairs. Janet estimated that the entire confrontation lasted approximately three minutes. The stairwell was brightly lit and was open between the floors. After defendant fled, Janet began to yell for help and ran to the third floor.

At trial, Janet identified the photo on an identification card from the First Bank of Oak Park, bearing the name LeCurtis Johnson, as depicting the man who had robbed her in the stairwell. When shown the same card by a police officer immediately after the robbery, Janet had also identified the photo. Janet further stated that on the following Monday, May 9, 1983, she and another Wieboldt's employee viewed a lineup at police headquarters where she again identified defendant as the perpetrator.

Next, Sylvia Mickles, a Wieboldt's employee, testified that on Friday, May 6, 1983, approximately 4:45 p.m., she was working in an area located near the third-floor stairwell when she heard someone scream from the stairwell, "Stop, help me." When she walked over to the stairwell landing, she saw Janet and defendant standing on the stairs between the second and third floors. She had a clear, unobstructed view of both of them. Defendant looked up and saw Sylvia, then grabbed the packages from Janet and ran down the stairs.

Sylvia further testified that earlier that day she had seen defendant twice at the customer-service desk on the third floor. The first time he had been filling out a charge application and the second time he was sitting across from the cashier's department. After the robbery, when the police showed her a photo bank identification card, she identified the photo of defendant as the man she had seen in the stairwell. Sylvia further testified that at a lineup on Monday, May 9, 1983, she again identified defendant. At trial, Sylvia identified defendant for the third time. On cross-examination, Sylvia stated that she had not seen a gun in defendant's hand, but that she had seen the gym bag.

Kathy McBride, a Wieboldt's employee, next testified that on May 6, 1983, she was walking by the third-floor stairwell when she heard a commotion, looked down and saw Janet and defendant. Defendant was wearing a burgundy shirt and pointing a gun at Janet. The stairwell was brightly lit. When defendant saw Kathy looking at him, he ran down the stairs. At a lineup held at the River Forest police department on May 9, 1983, Kathy identified defendant as the man she had seen in the stairwell with Janet.

Henry Beau, Wieboldt's store manager, next testified that on May 6, 1983, approximately 4:45 p.m., he was alerted that there had been a holdup. After calling the police, Beau proceeded to the stairwell where he found a photo bank identification card on the landing. He then ran out to the parking lot where he handed the identification card to one of the police officers who had arrived on the scene.

Next, Irene Rindone, a Wieboldt's employee, testified that on May 6, 1983, she was walking up the Wieboldt's stairwell when she heard a commotion and a man ran past her down the stairs. She then heard something drop in front of one of the elevators, turned and found a 12-gauge shotgun shell which she gave to a security guard. On cross-examination, Irene stated that she had not actually seen the bullet drop.

Officer Charles Schauer of the River Forest police department then testified that on May 6, 1983, after talking with witnesses to the robbery and receiving the bank photo identification card, he returned to police headquarters where he conducted an investigation to obtain defendant's address and a description of his automobile. Accompanied by another officer, Schauer then drove to defendant's address where he met officers from the Oak Park police department and set up surveillance.

Approximately 4:15 a.m. the next morning, defendant arrived at the building accompanied by another male. After being buzzed into the apartment building hallway, one of the officers began talking to defendant through his apartment door, telling him to come out. Eventually, defendant and his friend came out into the building hallway where they were arrested. When one of the officers looked inside the apartment to see if anyone else was there, he saw a shotgun shell lying on the floor approximately 10 feet from the door and recovered it. Subsequently, the officers obtained a search warrant for defendant's apartment and his automobile where they found a burgundy shirt, nine live 12-gauge shotgun shells and a Wieboldt's credit application.

Following the completion of the State's case, defendant's motion for a directed verdict was denied. The court sustained defendant's objection to the introduction into evidence of the shotgun shell found at Wieboldt's, but overruled his objection to the introduction into evidence of the shotgun shells found in defendant's apartment.

Regina Johnson, defendant's wife, then testified that on Friday, May 6, 1983, defendant arrived to pick her up from work approximately 4:30 p.m. and waited for her for approximately one-half hour. After doing some errands, defendant drove her to her mother's house where she spent the night. She did not hear from defendant until 5 a.m. the next morning when he called to tell her that he had been arrested.

Next, Howard Baker, Regina Johnson's employer, testified that defendant regularly picked up his wife at work every Monday through Thursday at 4 p.m. and on Fridays between 4:30 p.m. and 5 p.m. On cross-examination, Baker testified that the Lake Street on which his company was located was the same Lake Street that ran through River Forest and Oak Park. Although he could not specifically recall the afternoon of Friday, May 6, 1983, Baker stated that defendant must have picked up his wife between 4:30 p.m. or 5 p.m. that day because he picked her up every Friday at that time. When queried about Monday, May 9, 1983, Baker insisted that defendant had picked up his wife that day based on the fact that it was his practice. The State then reminded Baker that defendant had been in police custody that day. Following deliberations by the jury, defendant was found guilty of armed robbery.

Approximately six weeks following completion of the trial, defendant filed a motion for new trial based, inter alia, on newly discovered evidence. Specifically, defendant alleged that his cousin, Dwight Johnson, had confessed to the crime for which defendant had been convicted. At the hearing on the motion, Dwight Johnson testified that on May 6, 1983, approximately 4 p.m., while wearing defendant's burgundy shirt and carrying his gym bag, he went to Wieboldt's Department Store in River Forest and robbed Janet Majcher at gunpoint in the store stairwell. Dwight further stated that prior to the conclusion of defendant's trial, he had not told anyone what he had done and had not come forward earlier because he did not think defendant would be charged. However, when he learned of defendant's conviction from defendant's mother, Dwight told her he had committed the robbery.

On cross-examination, Dwight admitted that, in 1979, he had been convicted of "a couple of retail thefts" and theft from a person for which he was placed on three years' probation. In addition, at the time of his testimony, he had two attempted-murder cases pending against him for which he had been offered 12 years' imprisonment if he would plead guilty. Dwight further stated that after the Wieboldt's robbery, he returned to defendant's apartment, where he occasionally lived, and changed clothes.

Following closing arguments on the motion, the court stated that it did not have the "slightest doubt" that defendant was the person who had committed the crime, denied the motion for a new trial, and sentenced defendant to 10 years in the Illinois Department of Corrections. Defendant's appeal followed.

We first address defendant's contention that the trial court erred in admitting into evidence the shotgun shells which had been found in defendant's apartment on the ground that they were not relevant to any issue in the case. The State argues that defendant has waived this issue for review by his failure to raise the objection with specificity in his post-trial motion. In the alternative, the State argues that if this court decides the issue was not waived, ...


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