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06/30/88 the People of the State of v. Walter D. Johnson

June 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WALTER D. JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

526 N.E.2d 611, 172 Ill. App. 3d 371, 122 Ill. Dec. 352 1988.IL.1026

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. QUINLAN and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Defendant Walter Johnson was convicted of voluntary manslaughter after a jury trial and sentenced to 12 years' imprisonment. On appeal, he argues that his conviction should be reversed because (1) his use of force was reasonable under the circumstances; (2) the trial court erred by barring evidence of the decedent's reputation for violent behavior; and (3) the trial court abused its discretion by imposing a 12-year sentence on the defendant. We affirm.

The facts giving rise to the appeal are as follows. On February 1, 1985, the defendant was approached by Calvin Dates (Calvin), a co-worker at the Zimmerman Brush Company, who tried to sell him a gun. Although defendant did not want the gun, he was afraid to say so to Calvin. He told Calvin he would think about it and later called him to tell him that he did not want to buy the gun. Calvin told defendant that he nonetheless owed him $20 for his trouble. Calvin phoned the defendant several times during the day demanding money, and at lunch time, cornered him in the washroom, instructing him to be at the currency exchange at 4 p.m. Walter told several co-workers, Timothy Kindle, Milton O'Neal and Freyja Mason, about this incident.

At about 3 p.m., the defendant called his friend, Linda Hadwick, told her what had happened and asked her to bring him a gun. Hadwick brought the gun at approximately 3:45 p.m., at which time Walter placed the gun in his waistband and returned to work. When he reached the 6th floor, he examined the gun and saw that it was loaded. He told two co-workers, Freyja Mason and Milton O'Neal, about the gun.

At approximately 4 p.m., defendant left work and found Calvin waiting for him outside of the factory. The two men walked down Lake Street toward Halsted, Calvin with his hands in his pockets. Although Calvin never said so, the defendant assumed they were going to the currency exchange so that Walter could cash his paycheck.

There are several versions of what next occurred. Calvin was shot and killed and defendant was questioned immediately thereafter. Immediately after the shooting, the defendant had told Detectives Wendt and Puleaf of the Chicago police department and Assistant State's Attorney Dawn Overend that when he and Calvin had reached the corner of Lake and Peoria, Calvin stopped to wave at someone. The defendant seized the opportunity and struck Calvin in the head with his fist. At that time, Calvin stumbled to the ground and a gun fell out of his pocket. Walter said he ran over, picked up the gun and pulled the trigger twice, but that the gun failed to fire either time. As Calvin started to get up, Walter pulled the trigger a third time and the gun fired, striking Calvin in the side. Walter told the detective that as Calvin fell, the gun was knocked to the ground and broke apart. Walter picked up the pieces of Calvin's gun and ran away. Walter signed a written statement to that effect.

At trial, however, Walter testified that approximately one-half block from the factory, Calvin came at him with both hands in his pockets saying, "You think I'm playing with you." When Calvin made a movement with his hand, Walter pulled his gun from his waistband and shot Calvin once. As Calvin fell, his gun fell out of his pocket. Walter picked up that gun and ran. At approximately 4:30 p.m., Walter saw a friend of his, Booker Green, driving down Randolph at Racine. Walter flagged Booker down and asked for a ride home. In the car, Walter told Booker what had happened and Booker told Walter to turn himself in to the police. When Walter looked at Calvin's gun and saw that there were no bullets in it, he decided to tell the police there was only one gun. Walter testified that he had lied to the police because he wanted to cover up the gun which he had received from Linda.

Freyja Mason was called by the defense and testified that she and Walter were co-workers. At about 2 p.m. on the day of the shooting, Walter told her that Calvin had brought a gun to work for him to look at, but that he did not want the gun. Walter stated that Calvin wanted $20 for his trouble and had threatened to kill him if he did not pay the $20. At about 3 p.m. that day, Walter told her that he had to get a gun or that Calvin would kill him.

Timothy Kindle testified that he worked at the Zimmerman Brush Company with the defendant and that they were good friends. On February 1, 1985, at approximately 10 a.m., Walter told him that Calvin had brought a gun to work for him. Walter had stated that he did not want the gun, but that Calvin wanted $20 for his trouble. Kindle said that at about 3 p.m. that day, Walter asked him if he would have his car outside at 4 p.m. so that if Calvin was not waiting for him, he could run to Kindle's car and get a ride home. Kindle stated he was out in front of the factory at 4 p.m. when he saw Walter come out and saw Calvin waiting for him. The two men walked down Lake Street until they reached Peoria Street. At that time Walter began to walk away from Calvin, the two men exchanged words and Calvin made a movement into his pocket. Kindle said Walter pulled a gun from his waistband and shot Calvin. When Calvin fell to the ground, Walter picked up the gun that was in Calvin's hand and ran away. Kindle stated that he was approximately 300 feet from the scene at the time of the shooting.

Milton O'Neal testified that he and Walter were co-workers and friends. At about 3 p.m. on February 1, 1985, he had a conversation with Walter at which time Walter had stated that he had to get a gun to protect himself from Calvin. At 4 p.m. that day, O'Neal saw Walter walk down Lake Street with Calvin. When they reached Peoria Street, Walter began to move away from Calvin, and Calvin ran up in front of the defendant and blocked his path. O'Neal stated that the two men talked for a while and then Calvin pulled a gun out of his pocket. Walter pulled a gun out of ...


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