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08/11/88 the People of the State of v. Earnest Johnson

August 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EARNEST JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

527 N.E.2d 1317, 173 Ill. App. 3d 998, 123 Ill. Dec. 542 1988.IL.1248

Appeal from the Circuit Court of Alexander County; the Hon. Stephen L. Spomer, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. KARNS and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

The case now before us comes on appeal for the second time from convictions of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3)) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2) entered against defendant Earnest Johnson after separate trials heard by a jury in the circuit court of Alexander County. Following the first trial, defendant was sentenced to a term of natural life imprisonment for murder and to a concurrent extended term of imprisonment of 50 years for armed robbery. On appeal, we reversed the defendant's convictions and remanded the case for a new trial. People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433.

Following the second trial before a jury, defendant was again found guilty of murder and armed robbery and on May 27, 1986, he was sentenced to life imprisonment for murder and 50 years' imprisonment for armed robbery. In the present appeal, defendant raises 11 issues for our consideration: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied his right to an impartial jury representing a fair cross-section of the community; (3) whether he was denied a fair trial by the trial court's refusal to allow the jury to hear certain testimony; (4) whether he was denied a fair trial where the trial court refused his attempt to reopen the evidence in surrebuttal; (5) whether he was denied a fair trial where the trial court refused to allow him to testify that his prior convictions were the result of guilty pleas; (6) whether he was denied a fair trial by the submission to the jury of details regarding his prior convictions; (7) whether he was denied a fair trial by arguments made by the State during closing argument; (8) whether he was denied a fair trial by the trial court's instruction to the jury that certain evidence was admissible only for impeachment purposes; (9) whether he was denied effective assistance of counsel at trial; (10) whether he was denied effective assistance of counsel at his post-trial motion hearing; and (11) whether he improperly received an extended-term sentence on his armed robbery conviction. The substantive facts are reported in our previous opinion (People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433), and any additions or changes will be made where pertinent to the following Discussion.

The first issue presented by defendant is that the State did not prove him guilty beyond a reasonable doubt of armed robbery or murder. Defendant bases this argument on the assertion that the testimony of a key witness in the State's case was unbelievable. The witness whose testimony is questioned is James Johnson, a 15-year-old at the time of the underlying crime, and no relation to the defendant. James Johnson was the only witness claiming to have seen the defendant near the scene of the crime at the time of the killing. Defendant asserts that James Johnson's testimony was unbelievable because he did not make a statement implicating the defendant until three days after the crime, was seen socializing with the defendant a few hours after the crime, and in a statement given to the police stated that he heard a wrench drop when such specific information was unlikely to have been known by this witness if he were actually across the street playing basketball at the time of the killing, as claimed by this witness. Defendant cites People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96, and People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278, for the proposition that where a witness' testimony is improbable or contrary to human nature, the reviewing court is not obliged to accept the truthfulness of that testimony.

We do not find the testimony of James Johnson to be improbable or contrary to human nature such that its truthfulness may be disregarded completely. The fact that James Johnson made inconsistent statements, socialized with the defendant and was approximately one-half defendant's age are all factors to be considered by the jury. It is the function of the jury to weigh contradictory evidence and inferences, Judge the credibility of the witnesses, receive expert instructions, and draw ultimate Conclusions as to the facts. (Tennant v. Peoria & Pekin Union Ry. Co. (1944), 321 U.S. 29, 88 L. Ed. 520, 64 S. Ct. 409, reh'g denied (1944), 321 U.S. 802, 88 L. Ed. 1089, 64 S. Ct. 610.) A jury verdict should not be set aside merely because the jury could have drawn different inferences and Conclusions from conflicting testimony. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 530, 504 N.E.2d 772, 776.) Only if the verdict was palpably erroneous and wholly unwarranted, was clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable, and not based upon the evidence will it be overturned. Bautista, 152 Ill. App. 3d at 530, 504 N.E.2d at 776.

The trial record in the present case contains evidence sufficient to support the finding of the jury. In addition to the testimony of James Johnson implicating the defendant, prior testimony of Walter Williams, deceased, was read into the record stating that during the afternoon of July 4, 1983, the day of the killing, the defendant entered Williams' home and presented for Williams' appraisal a "V" nickel minted either late in the 19th century or early in the 20th century. The victim's son testified that his father carried an old nickel in his wallet as a good luck coin. Defendant testified that he had found the nickel in his backyard. The victim's son also testified that his father had recently cashed a social security check and it was likely he had a substantial amount of cash in his possession on the day he was murdered. Additionally, the operator of a local pool hall testified that he had known the defendant since the defendant was a "small kid" and that approximately two to four hours after the killing, he observed the defendant gamble and lose approximately $30 shooting dice. The pool hall operator admitted that he allowed patrons to gamble in 1983, that he helped conduct the gambling activities, and when asked if he considered it unusual to see the defendant with that much money, he replied, "Well, I hadn't ever seen him with any. I had never seen him gamble before."

Moreover, an acquaintance of the defendant testified that he accompanied Sylvia Graham, a woman with whom the defendant lived, to the home occupied by her and the defendant around the time of the killing and that he observed Sylvia Graham unzip a cushion cover on a couch and remove a pair of trousers and a shirt. He saw what appeared to be blood on the shirt, and he later saw Sylvia Graham burning the trousers and shirt. Although unable to recall the date of this occurrence, he believed that it was after the defendant had been incarcerated. Finally, Phillip Justice testified that the defendant had approached him requesting money approximately two or three hours before the victim was killed.

The circumstantial evidence outlined above, along with other testimony contradicting defendant's alibi testimony, is sufficient to support the jury's finding, and, therefore, it will not be overturned.

Returning to the testimony of James Johnson, we will at this time address defendant's contention that he was denied a fair trial when the trial court incorrectly instructed the jury that evidence admissible as substantive evidence was to be considered only for impeachment purposes (the eighth issue enumerated in the introductory paragraph above). The evidence defendant claims should have been admitted substantively is an inconsistent statement made by James Johnson. In a recorded statement given to the police, James Johnson stated in part that he had heard a wrench drop inside the victim's garage. At trial, James Johnson testified that after seeing the defendant enter the victim's garage he heard the sound of steel falling against either concrete or other steel. When asked if he had told the police that he had heard a wrench drop, he stated he did not remember. Defendant now contends that, according to statute (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1), such inconsistency in James Johnson's testimony was admissible as substantive evidence at trial. Therefore, according to defendant, the trial court's failure to so instruct the jury denied him a fair trial and necessitates a reversal and remand for a new trial. We do not agree.

Defendant cites People v. Wilson (1986), 149 Ill. App. 3d 1075, 501 N.E.2d 863, where the court stated that "[the] value of using prior inconsistent statements derives from the fact that they contradict testimony given at trial. The clear benefit of being able to use a prior inconsistent statement as substantive evidence is that it places such testimony on equal footing with the trial testimony, thus making it more persuasive in the eyes of the trier of fact." (149 Ill. App. 3d at 1078-79, 501 N.E.2d at 865.) The case now before us is distinguishable from Wilson because in Wilson the failure to use a prior inconsistent statement as substantive evidence was critical to the defense of the charged crimes. The defendant in Wilson was convicted of attempted murder, armed violence based on attempted murder, and theft. (149 Ill. App. 3d at 1076, 501 N.E.2d at 863.) At trial, the only witness testifying as to the underlying incident stated that "when defendant was approximately 6 or 7 feet in front of her, he looked back over his right shoulder and fired a shot at her with a large silver gun which he held in his left hand." (Emphasis added.) (149 Ill. App. 3d at 1076, 501 N.E.2d at 864.) At a preliminary hearing just one day after the incident, the same witness had claimed that "defendant had been holding the gun in his right hand and had fired over his left shoulder, without even looking back at her." (Emphasis added.) (149 Ill. App. 3d at 1077, 501 N.E.2d at 864.) In Wilson, the failure to admit the prior inconsistent statement as substantive ...


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