SUPREME COURT OF ILLINOIS
506 N.E.2d 563, 116 Ill. 2d 13, 106 Ill. Dec. 763 1987.IL.432
Appeal from the Circuit Court of Cook County, the Hon. James M. Bailey, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
Following a jury trial in the circuit court of Cook County, the defendant, Gregory Johnson, was convicted of murder, conspiracy, and attempted armed robbery. The defendant waived the right to a jury for purposes of a death penalty hearing, and the trial Judge sentenced the defendant to death for his murder conviction. The death sentence was stayed pending direct review by this court. Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill. 2d Rules 603, 609(a).
The defendant's convictions resulted from a robbery attempt at an apartment building in Chicago on December 3, 1980. Around 4:30 that afternoon, Christine Bruce answered a knock at the front door of her apartment and found two men, strangers, standing outside in the hallway. As Bruce tried to determine the purpose for their visit, she noticed what appeared to be a piece of pipe in the hand of the first man. Realizing that the pipe was actually a gun, Bruce screamed and jumped away. Bruce's husband, William Hallars, who was sitting on a couch next to the front door, saw that the man was holding a shotgun; the gun went off before Hallars could slam the door shut. Bruce and Hallars ran to the kitchen to call the police. There, Hallars saw that someone was opening the back door, and as he shut and locked the door he saw two shadows go by. Bruce's 10-year-old daughter, Laura, was sitting on the other side of the living room when the men appeared at the front door, and she was struck and killed by the shotgun blast; Bruce, Hallars, and their nine-year-old daughter, Serena, who was also present, were not harmed.
Bruce was able to give the police a description of the first person at the door, the one holding the shotgun, but she could recall only a few details about the second. Hallars had observed only the clothing of the first person and was unable to provide a fuller description. That night, Bruce viewed photographs of possible suspects but did not make any identifications. Several days later, Bruce assisted a police artist in producing a sketch of the gunman. On December 9, Bruce selected the defendant from a photographic array, and a week later, on December 16, she identified the defendant in a lineup.
Bruce and Hallars testified at the defendant's trial, in September 1981, and Bruce made an in-court identification of the defendant as the gunman. Bruce was the manager of the apartment building where she and her family lived, and in that capacity she would collect the other tenants' monthly rent payments, which often were made in cash. Leroy Carter, an accomplice witness who testified in the State's behalf, explained that the offenses charged here grew out of a plan to rob the building manager of the rent receipts. According to Carter, the robbery scheme had been proposed by Joseph Clay, who lived in an apartment above the one occupied by Bruce and her family.
As Carter described it, he, Clay, and the defendant met at least two times in late November and early December 1980 to plan the robbery; a fourth person, Wesley Heard, was also present on one occasion. Clay told the others that he would notify them when the rents had been collected. Carter testified that the defendant came to his home on December 3 and said that Clay had suggested committing the robbery that day. Carter and the defendant then went to Wesley Heard's residence, where they obtained a sawed-off shotgun; the defendant hid the weapon under the hood of Carter's car. Carter, the defendant, and Heard arrived at Clay's building around noon, and Clay met them there several hours later. According to Carter, Clay instructed him to act as a lookout in the front of the building and to accompany the defendant to the manager's apartment. After the defendant and Carter gained admittance to the apartment and tied up the residents, Clay was going to enter and find the rent money. Heard was to act as a lookout in the alley behind the building, near the back door of the manager's apartment. Following the robbery, Clay, as a tenant of the building, was to provide investigating officers with false descriptions of the robbers.
Carter testified that he then went to the lobby of the building and was soon joined there by the defendant, who was armed with the shotgun. They proceeded to the manager's apartment; the defendant knocked at the door, and Carter heard a scream and heard the gun go off. Carter and the defendant then fled from the building. Carter said that he did not see Christine Bruce in the doorway and that he was about 5 feet from the defendant when the apartment door opened.
Carter was arrested on December 8, 1980, and charged in connection with these offenses. He testified that in exchange for his testimony the State had agreed to drop the murder charge; he was to plead guilty to attempted armed robbery, for which the State would recommend a 10-year sentence. Carter also acknowledged his criminal record, which included convictions for armed robbery, burglary, and unlawful use of weapons.
Defense counsel attacked the evidence of the defendant's guilt on several fronts. Sherona Heard, who was the defendant's girlfriend, and Delores Myers testified that they were with the defendant at Wesley Heard's apartment on December 3, 1980. According to the two women, Carter, Wesley Heard, and a third person left the apartment sometime around noon that day with a shotgun; the defendant did not go with them. On cross-examination, Sherona Heard provided an alibi for the defendant for the remainder of that day.
Defense counsel also attacked Carter's credibility and questioned his description of the events leading up to the robbery attempt. A police officer testified that the defendant was in court on the morning of December 1, which was the same time when Carter, the defendant, and Clay were meeting to plan the robbery, according to statements that Carter made before trial. A jail guard testified that he witnessed a statement by Carter to defense counsel in which Carter said that he was with the defendant at the front door of the building manager's apartment and that he saw Christine Bruce in the doorway.
Finally, defense counsel questioned Christine Bruce's description of the gunman and her opportunity to observe the two persons who appeared at her door on December 3. A former resident of the apartment building testified that the light over the entrance to the manager's apartment was controlled by the same device used to activate lights outside the building. The witness, who had been a janitor in the building, said that in the summer of 1981 the timer was set to go on at 7:30 p.m. Also, the police sketch of the gunman depicted a person with a full beard, though Bruce testified that she had described a person with only a goatee. Finally, defense counsel elicited from Bruce the information that she has been blind in one eye since birth.
In rebuttal, the State presented the testimony of Bruce's optometrist. He said that he had examined Bruce in February 1980 and that the vision in her seeing eye was 20/30, with myopic astigmatism. He believed that Bruce would have been able to observe a person standing 5 to 10 feet away. The optometrist also said that he had prescribed glasses for Bruce but that she did not need to wear them all the time.
The defendant was convicted of murder, attempted armed robbery, and conspiracy. The State requested a death penalty hearing for the murder conviction, and the defendant chose to be sentenced by the trial Judge. The defendant's eligibility for the death penalty was based on the occurrence of the murder in the course of his committing a felony, armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6)(c); see People v. Ramirez (1983), 98 Ill. 2d 439, 458; People v. Walker (1982), 91 Ill. 2d 502, 512), and it was shown that the defendant was 26 years old at the time of the offense. In aggravation, the State presented evidence of the defendant's criminal history, which included two previous convictions for armed robbery as well as several adjudications of delinquency. In mitigation, defense counsel introduced written statements by Clay and Heard to the effect that Carter was the gunman; no other mitigating evidence was presented. The trial Judge sentenced the defendant to death.
In advance of trial the defendant moved to sever his trial from that of Carter, Clay, and Heard. The State did not oppose the motion, and it was granted. One of the grounds for the motion was Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and indeed the severance order served to protect the defendant from any "spillover" prejudice that would occur in a joint trial in which the statements of his alleged accomplices were introduced into evidence against them. The defendant believes that in spite of the severance order a worse error occurred. He argues that the State was improperly allowed to introduce into evidence inadmissible hearsay statements by Clay and Heard identifying him as the gunman; when called by the defense, Clay and Heard asserted the privilege against self-incrimination, and therefore they were unavailable to testify at trial. The defendant contends that the State invited the jury to use the information as substantive evidence of guilt, in violation of his Federal and State constitutional rights to confront witnesses against him. (See U.S. Const., amends. VI, XIV; Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct.
Christine Bruce testified that she had told the police that the person with the gun was 5 feet 10 inches to 6 feet in height; an investigating officer, William Calabrese, testified that Bruce gave that description to him on the day of the murder. The police also received a different description of the gunman, however, indicating a shorter person -- one who stood 5 feet 4 inches to 5 feet 7 inches -- and it was the latter description that appeared in the police department's daily bulletin for December 7, 1980, accompanied by the police artist's sketch of the gunman. The description containing the shorter height also appeared in a report made by Detective Chris Grogmann. Grogman had spoken to Bruce on the night of the murder, and on cross-examination defense counsel asked the detective whether Bruce had described a person who was 5 feet 4 inches tall. Grogman replied that she had not. On redirect examination the following occurred:
": Who gave you the description of five, four?
A. The tenant in the upstairs apartment, Mr. Joseph Clay.
Q. That is the same Joseph Clay who was later arrested?
Q. Based upon naming Johnson, you went out and showed Gregory Johnson's photograph to the victim?
Q. They were arrested before Carter?
On further cross-examination, Grogman explained again that Bruce had not provided the 5 feet 4 inches description, though he acknowledged that it was that description that had appeared in the police department's December 7 "hot sheet" along with the sketch of the gunman. On further redirect examination Grogman was permitted to explain, over repeated objection, the following:
"Q. When you interviewed Joe Clay and got the description, you didn't know if he was a suspect at that time?
Q. He later became the co-defendant of this guy over here?
MR. McDONNELL: Objection. Improper recross.
THE COURT: You opened the door so wide open. Proceed.
MR. McDONNELL: Your Honor, at one time --
THE COURT: I have ruled. Proceed.
MR. TELANDER: Q. And he is now the co-defendant of ...