Before trial, Byron's and Bean's attorneys moved for severance based on antagonistic defenses. Byron's attorney stated that Byron's defense was an alibi for that night and that Byron would testify that Bean was the murderer. The trial court denied severance. Thereafter, in his opening statement, Byron's counsel repeatedly referred to Bean. Bean's motion for a mistrial was denied. Further, during the course of trial, Byron's attorney reiterated the theory that Bean was the murderer and continued to do so during closing argument. Bean was convicted, sentenced to death, and appealed directly to the supreme court.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
544 N.E.2d 392, 187 Ill. App. 3d 756, 135 Ill. Dec. 896 1989.IL.990
Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Durkin, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a joint jury trial, defendant Irvin Johnson was convicted of murder and armed robbery and sentenced to concurrent prison terms of 80 years and 14 years, respectively; defendant Solomon Johnson, not related to Irvin, was convicted of murder and sentenced to a prison term of 80 years, which was subsequently reduced to 35 years.
On appeal, Irvin and Solomon contend that the trial court erred in denying their individual motions for severance on the grounds that: (a) their defenses were antagonistic and (b) a joint trial denied them their constitutional right to confront their accusers. Solomon contends individually that: (1) the State failed to prove that Solomon or those for whom he was accountable caused or contributed to the victim's death; (2) the trial court's refusal to instruct the jury on lesser included offenses denied Solomon his constitutional rights to due process and trial by jury; (3) the State's comments during closing argument regarding the cause of death and Solomon's burden of proof denied Solomon a fair trial; and (4) defense counsel's failure to present expert testimony that Solomon's acts did not cause or contribute to the victim's death denied Solomon his right to effective assistance of counsel. Irvin contends individually that: (1) the trial court erred in denying his motion to suppress his statement; (2) the trial court erred in prohibiting defense counsel from asking a police officer during cross-examination whether he would have allowed Irvin to leave the police station when Irvin was brought to the station for questioning; (3) the trial court erred in admitting into evidence clothing purportedly taken from Irvin after his arrest; (4) the State's comments during closing argument regarding Irvin's failure to call certain witnesses denied Irvin a fair trial; and (5) the substitution of Judge provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114-5) is unconstitutional because it denies defendants who are charged with Class X felonies and tried jointly the same number of automatic Judge substitutions granted to defendants who are charged with Class X felonies and tried singly. For the following reasons, we affirm in part, reverse in part, and remand for new severed trials.
The record sets forth the following facts. Approximately noon on February 20, 1981, the body of a male was found lying facedown in a drainage ditch along 155th Street in Harvey, Illinois. His face and body had been severely beaten and he was wearing only jockey shorts and had a cloth belt and wire hanger wrapped around his neck. A short distance away, an investigator found a hammer in the weeds.
Through fingerprint identification, the investigators identified the victim as Steven Freeman. They then interviewed Freeman's roommate, who told them that he had last seen Freeman alive on Thursday night, February 19, at a bar on 157th Street and Halsted. Freeman had been wearing blue jeans, a flannel shirt and a brown vest and had been driving a 1974 red Ford pickup truck with license plate number 813562B. The detectives notified the State Police of the information regarding the truck.
On Saturday, February 21, approximately 7:50 p.m., Paul Teegarden, an Illinois State trooper, spotted Freeman's truck parked along I-74, just outside of Danville. Two men were walking nearby along the highway. When the two men, Kenny McCray and Wilbur Johnson (Solomon's brother), admitted that they had been driving the truck, the officers took them into custody. Later that night, Chicago Detectives Fike and McCarthy drove to Danville to arrest McCray and Wilbur Johnson. At that time, McCarthy recovered a brown vest spotted with blood from Wilbur. The vest matched the description of the one Freeman had been wearing on the night he was murdered. The detectives and an evidence technician also examined the truck and discovered dried blood on the truck's bed.
During the early morning hours of February 22, Detectives Fike and McCarthy took Wilbur and McCray to the Harvey police station, where they tape-recorded their interviews. Wilbur told Fike that McCray had told him that Irvin Johnson, Larry McElroy and Wolf Payne had been involved in Freeman's murder. McCray later denied having told this to Wilbur. After the interviews, Wilbur and McCray remained in custody while the detectives located Irvin Johnson and Larry McElroy.
Approximately 10 a.m. on February 22, Detectives Fike and McCarthy went to Irvin's house with Markham plainclothes officer Henry Wilson. Wilson had known the Johnson family for approximately 16 years. Wilson and a uniformed officer went to the door of Irvin's house. When Mrs. Johnson answered the door, Wilson told her that they wanted to talk to Irvin. A few minutes later, Irvin appeared in his bathrobe. Irvin agreed to accompany the officers to the police station and Irvin was never handcuffed.
When Irvin arrived at the Harvey police station, he was put in an interview room by himself. The State claims that Irvin was in the room for 45 minutes, and the defense claims he was in there for 1 1/2 hours. The defense also claims that the door to the room was locked. Approximately noon, Detectives Fike and McCarthy brought Irvin to their office for questioning. Prior to questioning, Irvin was read his Miranda warning. Fike then questioned Irvin for approximately one hour, after which he was arrested. A State's Attorney was called approximately two hours later, and at 5:20 p.m., Irvin made a court-reported statement, which was subsequently published to the jury. In the statement, Irvin told the officers that in the early morning hours of February 20, 1981, he was at the Southern Lounge with Larry McElroy. Outside the lounge, they joined Wolf Payne, an acquaintance, and Steven Freeman, whom Irvin had never met. All four of the men drove to another lounge in Payne's car. After having a drink, they all drove to Freeman's truck, which was parked near the Southern Lounge. McElroy got in the truck with Freeman. Payne and Irvin followed in Payne's car. They drove to an old baseball field and stopped. Irvin saw Freeman get out of the truck first. Then McElroy got out and started choking Freeman. Payne then put on some gloves and started hitting Freeman in the face and stomach.
When Irvin realized he was just as guilty as those that were hitting Freeman, he got out of the car and started hitting and kicking him, too. Irvin stated that Freeman was "pretty badly beaten" and they took everything out of his pockets, removed his clothes and threw them in the weeds. Payne then walked back to his car and left. McElroy and Irvin put Freeman into the back of the truck and Irvin also climbed into the back.
While McElroy was driving the truck, Freeman kept rising up. Because they wanted Freeman to stay down, McElroy drove to his house and picked up a cotton string or belt and told Irvin to wrap it around Freeman's throat. Irvin put the cotton belt around Freeman's throat, and then McElroy put on a glove, and they both tried to strangle Freeman. Irvin claims that they were not able to kill him.
McElroy and Irvin then drove to Solomon's house and picked him up, after which the three of them drove to Irvin's mother's house to pick up a hammer. They then drove back to the baseball field, and McElroy and Solomon got out of the truck with the hammer. Irvin did not see what they were doing, but when they got back into the truck, there was blood on the hammer. The three of them took Freeman's body off the truck and threw the hammer in the weeds. Irvin believed that Freeman was dead at this point.
On March 2, 1981, Solomon Johnson was arrested on a warrant for Freeman's murder. After his arrest, Solomon gave a court-reported statement which was subsequently published to the jury. According to Solomon, on February 20, 1981, approximately 4:30 a.m., Irvin came to the front of his house and banged on the door. Both Solomon and his mother told Irvin to go away. A few minutes later, Larry McElroy knocked on the back door and told Solomon that he needed Solomon's help. When Solomon refused to go out, McElroy kept pleading with him until finally Solomon went outside to see what ...