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04/20/89 the People of the State of v. Brian Johnson

April 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

BRIAN JOHNSON, APPELLANT



Before the second phase of the death penalty hearing, defendant again waived his right to a jury. The State relied for aggravation upon the evidence adduced at trial, and also introduced by stipulation evidence that the defendant had been arrested in 1982 for unlawful use of weapons, for which he had received and completed a term of court supervision. The defendant's motion in limine to bar the State from using this evidence was overruled.

SUPREME COURT OF ILLINOIS

538 N.E.2d 1118, 128 Ill. 2d 253, 131 Ill. Dec. 562 1989.IL.559

Appeal from the Circuit Court of Cook County, the Hon. Howard M. Miller, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case. JUSTICE CLARK, Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Defendant, Brian Johnson, was charged by indictment in the circuit court of Cook County with one count of intentional murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(1)), two counts of knowing murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(2)), three counts of felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)), two counts of attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4)), seven counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), four counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a)), three counts of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a)), one count of theft (Ill. Rev. Stat. 1983, ch. 38, par. 16-1), and one count of unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3(a)). These charges stemmed from an incident in which one man was killed, two others were wounded and personal property was taken from them. The defendant entered a plea of not guilty and, after a bench trial, was found guilty of all of the charges. The trial court rendered a factual finding that the defendant had committed the murder in the course of an armed robbery. A death sentence hearing was held and the defendant again waived a jury. The court found that there existed one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)(c)) and there existed no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (107 Ill. 2d R. 609(a)) pending appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). The defendant was also sentenced to serve 30 years for each of the two counts of attempted murder, 30 years for each of the two counts of armed violence, 15 years for each of the three counts of armed robbery, four years for theft, and three years for unlawful restraint. The remaining counts were all merged.

At trial, the State presented the following evidence. The defendant and the three victims, Frederick Foss, Arthur Hinshaw, and Ellis Worley, all worked together at a Goodyear Tire store in Chicago. The defendant was employed as a mechanic. Hinshaw was the manager of the store and four or five years previously had taken part in hiring the defendant. In early October 1984, the defendant was late in attending a Goodyear training program in Elgin, and on October 10, 1984, Hinshaw fired him.

October 19, 1984, was a regular weekly payday for Goodyear employees. At the time the defendant had at least one week's vacation pay accumulated. According to Hinshaw, Goodyear policy provided that monies owed to discharged employees would not be disbursed at the store, but would instead be sent from Akron to the employee's residence. At 5:30 p.m. on October 19, the defendant entered the service area of the Goodyear store and spoke to two other mechanics, Robert Johnson and Harvey Ellis. Worley was also in the service area at this time, although Hinshaw and Foss were not. The defendant asked Johnson and Ellis if his tools were still there. When they replied that they were, the defendant said he would return the next day to get them, and then left the store.

The defendant returned 10 minutes later. Worley, Hinshaw and Foss were all there, about to leave. According to Worley's testimony at trial, the defendant was holding a gun. The defendant said to the three men: "You are not going anywhere." He then said to Hinshaw, either: "You fired me, didn't you," or: "Art, you fired me." He then shot Hinshaw and Foss. Both victims fell to the floor. Worley testified that Hinshaw and Foss were shot twice. The defendant then ordered Worley to get down on the floor, and Worley complied.

Worley saw the defendant walk over to Hinshaw and take his wallet. He also saw the defendant approach Foss, but did not see him take anything from his body. The defendant then approached Worley and asked him what had been done with the money. Worley replied that they had not taken it to the bank, but had left it in the safe. The defendant told Worley to get up and come with him into the office area of the store, where the safe was located. The safe was locked, however, and the two returned to the service area.

The defendant ordered Worley to give him his money. Worley emptied his pocket, placing nine dollars and change on a table. The defendant then asked him whether that was all he had. When Worley affirmed that it was, the defendant told him to hand over the keys to his car, and Worley complied. The defendant then told Worley to get on the floor. When he had complied, the defendant shot Worley for the first time, through the hand which Worley was clasping to the top of his head. The bullet also grazed his scalp. Worley rolled over and the defendant shot him again. The defendant went through Worley's pockets and took $120 from him. As the defendant was leaving, he apparently saw Worley move. Saying, "Oh, you are still moving," the defendant stabbed Worley in the left side with a knife. Worley testified that the defendant took the knife from the inside of the green army jacket the defendant was wearing. Worley had never seen the knife at work before. Defendant then left the store through the back door, returning only briefly to turn out the lights.

Hinshaw's testimony differed in some respects from Worley's. According to Hinshaw, the defendant only said one word, "stop," before shooting Hinshaw once, hitting him in the stomach. Hinshaw heard Foss pleading with the defendant, telling him to stop and saying, "You don't have to go to these extremes." Hinshaw heard a shot and Foss fell to the floor beside him. He could hear Foss breathing. He heard the defendant say to Worley, "He's going to tell." The defendant walked over to Foss and shot him a second time, searching his pockets after he had done so. The defendant then shot Hinshaw a second time, afterwards taking his wallet, which contained approximately $100.

According to the medical evidence, Foss died of two gunshot wounds to the chest. Worley was treated for a severe stab wound in his abdomen, and gunshot wounds to his left chest, scalp, and right hand. A bullet was removed from his left arm. Hinshaw had two gunshot wounds, one to his stomach and one to his upper left arm. The bullet which pierced his stomach remains lodged in his backbone.

Shortly after the shootings, Officer Joseph Danzl and his partner were assigned to look for the defendant and for Worley's car. Later that night, the officers responded to a call telling them the car had been seen on South Michigan Avenue, three blocks from the store. They arrived there and arrested the defendant and a companion sitting in the car.

After the defendant's arrest, a green army jacket and $68 were taken from him. After being given his Miranda warnings, the defendant told the officers that he had placed the gun under a green carpet on the rear patio of a house on South Coles Avenue. The gun was recovered there on October 20.

On October 20, the defendant gave the police a written statement, which was admitted into evidence. According to the statement, the defendant was owed two weeks' pay when he was fired by Hinshaw. He waited for his money until the next payday, October 19, and then called Hinshaw at about 3 p.m. When he asked if his paycheck was in, Hinshaw replied, "What paychecks, I don't have no paycheck for you," and hung up.

The defendant went to the store at 5:45 p.m. but left without getting his money. When he returned, he pointed a gun at Hinshaw and asked him for the money. Hinshaw replied, "Get out of here, you young punk. You don't have enough heart to shoot, drop one right now." The defendant then shot Hinshaw twice and Foss twice. He went to the office but found that the safe was locked. After he returned he asked Worley if Worley would "tell on him," and Worley said yes. He then shot Worley twice. He took wallets from all three men and Worley's car keys. After leaving, he returned to the store at about 9 p.m. and took Worley's car.

The defendant presented no evidence in his own behalf. The defendant raises only one challenge to the guilt-innocence phase of his trial. He claims that he was denied effective assistance of counsel because his attorney's theory of defense was to concede guilt to the murder of Frederick Foss, but not to the armed robbery and felony murder charges. This theory was based on the view that the evidence of guilt for the murder charge was overwhelming, but that the defendant would not be eligible for the death penalty if it was established that the murder did not occur in the course of a felony.

At trial, the defendant was represented by two privately retained attorneys. The theory of defense became clear during opening statement when counsel stated that "the issue in this case is not whether or not Brian Anthony Johnson committed a murder, it is whether or not in the course of a felony did he commit murder." Counsel proceeded in his opening statement by setting forth his view of what the evidence would show. This version was consistent with the defendant's confession and his testimony at the sentencing hearing. On a number of occasions counsel stated that the defendant would testify; however, he was not called to testify at the guilt stage of the trial, though he did testify at the sentencing hearing.

Counsel explained that the defendant had worked at Goodyear for four years prior to the killings. He was initially good friends with all of the victims, including Arthur Hinshaw, with whom he enjoyed a relationship which was "almost father-son-like." Sometime during Christmas of 1983, this relationship began to sour when the two had a disagreement over the purchase of a transmission for the defendant's car. The defendant was entitled to an employee discount for the transmission but only received it after a dispute with Hinshaw, which was resolved in defendant's favor after he complained to Hinshaw's superiors.

The defendant on several occasions attended Goodyear training sessions in Elgin, Illinois. According to counsel's opening statement, in October of 1984, defendant arrived one day late for a training session because of problems with his car. When the defendant attempted to enroll at the training session, he was told that he could only be admitted with Hinshaw's permission. Hinshaw, however, told the operators of the school to send the defendant back to work. When he returned to work, Hinshaw fired him. After his firing, the defendant contacted the zone manager and inquired about the pay that was due to him and whether he could be transferred to another store.

Counsel proceeded by stating that on Friday October 19, payday at Goodyear, the defendant awoke at 10:30 a.m. and began to drink alcohol. The zone manager had told him that he was entitled to a paycheck that day, but when he called the store Hinshaw told him he had no paycheck for him and hung up. However, he still planned to go to the store to see about his check. On the way to the store he met a friend, "L.C.," a drug dealer. The two went to a "dope house," where they spent the afternoon using alcohol, cocaine, and marijuana laced with the drug "PCP." Late in the afternoon, realizing that Goodyear was about to close, he proceeded to the store. He carried with him a gun which he kept for protection while traveling on public transportation, but no knife. Defense counsel claimed the defendant would testify that his "only intention that day . . . was to go to Goodyear and get his due, and that was the checks that were due and owing to him that the zone manager told him were owing to him at the Goodyear Tire."

Counsel stated that when the defendant first went to the store he saw the three victims, but other people were in the store so he left. He then went across the street to buy some beer, yet when he reached the checkout counter he realized he had no money. He told the cashier to "hold his beer" while he went across the street, intending to collect his check and to cash it at a nearby currency exchange. At the store, Hinshaw, Foss and Worley were alone and defendant asked for his check. Hinshaw said he had no money for him, and defendant pulled out his gun. Hinshaw remarked that he was a punk and did not have the nerve to shoot. The defendant then fired upon the three men.

Counsel concluded his opening statement by saying:

"The evidence will show that Mr. Johnson did no act of theft, no act of armed robbery, no act of taking from the person of any of these people until after he had fired and killed Frederick Foss. . . .

Judge, the issue in this case is not whether or not a murder was committed. The issue is whether or not a felony murder was committed.

And I feel confident that, at the close of the evidence, the court will find that Mr. Johnson did not commit a felony murder. And that he is guilty of other things, but he did not commit a felony murder.

And I respectfully request the Court to enter such a finding."

Though defendant presented no evidence on his own behalf during the guilt-innocence phase of the trial, during the course of trial, counsel did cross-examine each of the State's witnesses, attempting to elicit that the defendant did not enter the store with the intent to rob any of the victims. Counsel cross-examined Ellis Worley in regard to his relationship with the defendant and also as to what happened on the day of the shooting. He was able to elicit that Worley never saw the defendant take any items of personal property from Foss. While cross-examining the arresting officer, counsel questioned him concerning conversations he had with the defendant and he introduced the defendant's confession. Much of the confession corroborated the theory that he did not go to the store with the intent to harm or rob anyone, but only to get his paycheck. During cross-examination of Hinshaw, he elicited that Foss had on him the daily receipts -- $900 in cash and a number of checks -- at the time of the shooting but defendant did not take any of that money.

Defense counsel began his closing argument by stating, "Your Honor, we did admit in our opening statement that Brian Johnson committed murder." He then argued that the defendant had not intended to rob any of the victims until after he had shot Frederick Foss, pointing out that he never asked any of the victims for any money and did not take the $900 in cash that was found in Foss' pockets. He concluded by stating:

"Nowhere in any part of the State's case did they state, or prove beyond a reasonable doubt that Brian Johnson attempted to commit an armed robbery in the commission of the shooting upon the three individuals. That was an afterthought. . . . he State cannot show a felony murder application here."

The defendant contends, on appeal, that this defense denied him effective assistance of counsel. In People v. Albanese (1984), 104 Ill. 2d 504, 526, we adopted the standard for competence of counsel set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In the first part of this two-part test, the defendant must prove that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the "counsel" guaranteed the defendant by the sixth amendment of the United States Constitution. Second, he must prove these deficiencies so prejudiced the defendant as to deprive him of a fair trial, a trial whose result is reliable. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The Court emphasized that scrutiny of counsel's performance must be highly deferential and "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) It warned that intensive scrutiny "and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

There are exceptional circumstances where the two-part test need not be applied. In United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039, the Court stated that where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." (Emphasis added.) (466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047.) In some instances, ineffectiveness of counsel will be established without application of the Strickland test. As examples, the Court remarked that where there has been a complete denial of counsel or denial at a critical stage then prejudice need not be established, but instead will be presumed. (466 U.S. at 658-59, 80 L. Ed. 2d at 667-68, 104 S. Ct. at 2046-47.) The Court in Strickland also made reference to such circumstances. It stated that where the State interferes with counsel's assistance or where counsel is burdened by an actual conflict of interest then prejudice need not be shown. Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067.

In a recent case, this court has forsaken the two-part test and found that the Cronic and Strickland presumption standard was met. (People v. Hattery (1985), 109 Ill. 2d 449.) The defendant's ineffective-assistance-of-counsel argument relies mainly on Hattery. Hattery was a jury trial in which the defendant received the death penalty for the murder of a mother and her two children. The evidence showed the defendant stood guard over, and eventually murdered, the victims while a co-defendant attempted to obtain drugs from the woman's husband. The defendant confessed to the murders, explaining that the codefendant had instructed him to kill the victims and that the codefendant had threatened to harm the defendant and his family if he disobeyed.

Counsel in Hattery on a number of occasions conceded defendant's guilt and that he was eligible for the death penalty. In his opening statement, counsel stated:

"'We are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evidence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery for trying to save the life of his family.'" 109 Ill. 2d at 458-59.

Counsel thus made an unequivocal concession to the murder charge, the only charge brought against the defendant. Moreover, counsel stated that the defendant should be found eligible for the death penalty, relieving the jury from that decision as well. Throughout the guilt-innocence phase of the trial, counsel advanced no theory of defense, presented no evidence of their own, made no closing argument and made no attempt to hold the State to its burden of proof. Rather, counsel attempted to show, in cross-examination, that the defendant's actions were the product of compulsion. Because compulsion is not a defense to a charge of murder, but is a mitigating factor sufficient to preclude imposition of the ...


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