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04/21/94 PEOPLE STATE ILLINOIS v. GRAYLAND JOHNSON

April 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GRAYLAND JOHNSON, APPELLANT.



McMORROW

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Defendant, Grayland Johnson, was arrested for the murder of Douglas Coleman, who was shot to death in Chicago on Easter Sunday, 1988. A jury sitting in the circuit court of Cook County found defendant guilty of first degree murder and also found him eligible for the death penalty. Defendant elected to have the trial court determine his sentence based on the evidence in aggravation and mitigation. The trial court found no mitigating factors sufficient to preclude imposition of the death penalty under the Criminal Code of 1961 (Criminal Code), section 9-1(b)(3) (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(3)), and entered sentence accordingly. The death sentence was stayed pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d. Rules 603, 609(a)).

In this appeal, defendant raises a number of issues challenging all phases of the proceedings. We affirm the conviction but vacate the death penalty in accordance with the decision of Morgan v. Illinois (1992), 504 U.S. , 119 L. Ed. 2d 492, 112 S. Ct. 2222, and remand for a new sentencing hearing.

BACKGROUND

Pretrial Proceedings

Defendant filed a motion to suppress his confession, contending that his inculpatory statement resulted from the infliction of physical and mental coercion and therefore was the fruit of an illegal arrest. The following evidence was adduced during the hearing on the motion to suppress.

Sergeant James Eldridge testified that he interviewed Arba Holden on April 16, 1988. Holden identified defendant from a photo array. Holden told the officer that he and other men, including defendant, had been together on the date Coleman was killed, April 3, 1988. According to Holden, the men left Ford City in two vehicles, defendant and Sumlin in one car and Holden and the others in a van. The men planned to "do some drug deals" in Chicago and then meet at 59th Street and the Dan Ryan Expressway. Sumlin and defendant were late returning to the meeting place. Sumlin said they were late because defendant had killed a man. Defendant said he had killed the man because the man owed him $600. The group then got back into their vehicles and entered the expressway. Holden told Sergeant Eldridge that he saw defendant throw a gun into the Little Calumet River.

Detectives Craig Cegielski and his partner, Nick Crescenzo, testified that on April 17, 1988, they went to defendant's home in Ford Heights to question him about the Coleman murder. Before going to defendant's house, the officers had learned from Coleman's family that defendant had been with Coleman the day of the murder. Officers Cegielski and Crescenzo also had been informed of Arba Holden's identification of defendant as a participant in the murder of Coleman. However, at the time the officers went to defendant's house, they did not know whether Holden or anyone else had witnessed defendant shoot the victim.

Defendant agreed to accompany the officers to the police station, saying that he would be glad to help because the victim was his friend and that he had come to the station on his own accord at a prior time to discuss the slaying. At the station, he was given the Miranda warnings, which he waived. Cegielski and Crescenzo took him into an interview room, where they spoke with defendant for 15 or 20 minutes. The officers then left the room to interview others who were at the station, including codefendant Jerome Sumlin. Sumlin implicated both himself and defendant in the murder.

After obtaining Sumlin's inculpatory statements, the officers returned to the room in which defendant was waiting and advised him that he was under arrest. This occurred at approximately noon. Cegielski handcuffed him to the wall and left the room with Crescenzo. The officers testified that no one abused defendant in their presence. Approximately 10 or 15 minutes after the officers left him, defendant called out that he wanted to speak to the State's Attorney.

Assistant State's Attorney Charles Burns arrived and advised defendant of the Miranda warnings. Burns spoke to defendant for 45 minutes and brought him lunch. According to Burns, no one threatened defendant or exercised force or coercion while Burns was present.

Caroyln Mabry testified for defendant at the suppression hearing. She stated that defendant had called her on April 18, 1988. He told her he had been arrested and beaten by officers at the station.

Nona Cameron, a correctional officer, testified that defendant told her on April 18 that he had a headache, was dizzy, and had been beaten by the police. At defendant's request she called for paramedics, but she did not observe any injuries herself.

Defendant testified that he went to the police station "freely and voluntarily." He said the paramedics treated him for a venereal disease. He described the officer's abuse of him and told the court he was suing the officers in Federal court.

The court found defendant's allegations of abuse unfounded. The court also ruled that the detectives had possessed sufficient information to take defendant into custody and therefore denied the motion to quash the arrest due to lack of probable cause. The court declined to make a finding as to the exact time that defendant was placed under arrest.

Before trial, defense counsel made a motion in limine to preclude the State from introducing evidence of gang membership. The court denied the motion. Next, defense counsel requested that the court ask the potential jurors if they believed that they must automatically impose the death penalty if the State requested it. The court sustained the State's objection to the proposed question.

The Trial

Lucille McNeal, Coleman's girlfriend, testified that she last saw Coleman on April 3, 1988, between 9 and 9:30 at night, when he, defendant, and a woman came to her house. Coleman and defendant were friends. McNeal testified that Coleman had belonged to the Black Gangster Disciples but she did not know whether defendant was also a member. McNeal further testified that Coleman had used drugs and that she had been a regular user of cocaine at the time of Coleman's death.

Defendant told McNeal he needed her to go with them to help rob his nephew of money and drugs. She refused, saying that she did not want to go because Coleman would "jump on her." Defendant showed her a small handgun and promised that Coleman would not hurt her, because if he did, defendant would kill Coleman. McNeal tried to talk Coleman out of going with the others on April 3.

Bertha Jackson, who was Jerome Sumlin's girlfriend and the mother of his two children, testified that both Sumlin and defendant belonged to the Black Gangster Disciples. In the afternoon of April 3, 1988, Jackson and Sumlin were present at a house in Chicago Heights, with defendant and others. Defendant took two guns from that house. He joined Jackson and Sumlin in Jackson's car and the three returned to Chicago. In Chicago they tried, unsuccessfully, to buy some drugs. Then they went to Coleman's house to see if he could assist them. Before they got to Coleman's house, defendant gave Sumlin one of the guns he had retrieved from the house in Chicago Heights.

According to Jackson, Coleman agreed to help them locate drugs and entered Jackson's car with her, Sumlin, and defendant. They stopped at McNeal's house. Later, defendant, Sumlin, Jackson, and Coleman drove to a gangway. When the car stopped, Jackson remained in the car while the others got out and walked a short distance. Defendant tried to persuade Coleman to accompany him down the gangway, but Coleman refused. As they were returning to the car, defendant shot Coleman in the head. Jackson further testified that Sumlin also shot the victim. Defendant shot Coleman "some more" and the three of them left the victim lying on the ground.

Jackson admitted that she was afraid that she would be charged with a crime when the police came to her house a few days later with Sumlin. Jackson went to the station, where she and Sumlin were separated for several hours. Jackson identified defendant as the shooter.

A medical examiner testified that Coleman had sustained 15 gunshot wounds and died as a result of them. The wounds to the victim's face showed a "tatooing" effect, indicating that the bullets had been fired at close range. The firearms examiner testified that the bullets recovered from the victim had come from both .22- and .32-caliber guns. No weapons were recovered.

The trial testimony of investigating detective Craig Cegielski essentially paralleled the testimony he gave at the suppression hearing. Cegielski testified that at the time the officers brought defendant to the police station defendant was not under arrest and he told the officers he wanted to help with the investigation because the victim was his friend. The police put defendant in an interview room while they spoke with Sumlin, who was also at the station. The officers then took Sumlin with them to the home of Bertha Jackson, who accompanied the officers and Sumlin back to the police station. After the officers obtained additional information from Jackson and Sumlin, who implicated defendant in Coleman's murder, the officers placed defendant under arrest. The police left defendant in a room, and after a few minutes, defendant called out that he wanted to talk. Defendant waived his Miranda rights and told the officers that Sumlin had approached defendant on Easter Sunday, April 3, 1988, at a meeting of the Black Gangster Disciples in Ford Heights. Sumlin told defendant he needed help in luring Coleman out of Coleman's house for a "hit," and since defendant was Coleman's friend, defendant would be the best person to approach Coleman. The killing was ordered because Coleman had been "sticking up" the drug houses of some of the gang members. Sumlin had a .22-caliber handgun and gave defendant a .32-caliber handgun when he agreed to help the others get Coleman.

Defendant told the officers that when he and Sumlin got Coleman to the gangway the victim appeared to become suspicious and, as they walked back to the car, Sumlin shot Coleman in the head and told defendant to do so as well. Defendant "emptied" his gun into the victim and Sumlin shot Coleman again.

Toni Ervin testified for the defense. She said that defendant and she were like siblings and had seen each other almost daily. Ervin and her boyfriend, Ronald Holden, saw defendant at approximately 9 or 9:30 in the evening of April 3, 1988, in the parking lot near Shannon's Lounge in East Chicago Heights. Defendant loaned Holden $250. Ervin persuaded defendant to leave his car in the lot and return to her home with them. Defendant stayed at her house, talking with her, until approximately one in the morning. Holden also testified that he had seen defendant at Shannon's parking lot on the night of the shooting, but under cross-examination he admitted that he did not tell anyone about this until one week before trial.

An attorney, Thomas Bennett, testified that defendant had contacted him in 1988 and told Bennett he was in police custody. Bennett asked what defendant had been charged with and defendant said that he did not know. Bennett then spoke to an officer, who told him that the police were holding defendant for an "investigation" only. Bennett advised defendant not to speak with the police.

Defendant, aged 36 at the time of trial, testified in his own behalf. His parents died in 1973, at which time he was in the military service. He admitted that in 1974 he had pleaded guilty to charges of murder and armed robbery, for which he served 13 1/2 years in prison. The State also introduced evidence that defendant had been convicted of a different armed robbery and was given a sentence to run concurrently with the sentences he received in 1974 when he pleaded guilty to the murder and armed robbery.

Defendant denied that he had shot Coleman, whom he had met in prison. Defendant was released from prison in July of 1987 and did not see Coleman again until October 1987. He visited Coleman several times at his house and knew that Coleman, a drug addict, was robbing drug houses to support his habit. On April 3, 1988, defendant saw Coleman earlier in the day but left him at about 7 p.m. Defendant's car broke down and he drove a "loaner" to Shannon's. He eventually went to his friend Toni Ervin's house.

Defendant testified that on April 8, 1988, he was questioned at the police station and allowed to leave. Defendant said that on April 17, the police arrested him at his home. Defendant testified that he secretly ingested about a gram each of cocaine and heroin after the police arrived. The police took him to the station, where he refused to answer questions without an attorney present. He said he repeatedly denied murdering Coleman. According to defendant, he was then taken into a washroom and hung outside a window by his handcuffed hands. The police hauled him back in and dipped his head into a toilet. Back in the interview room a plastic bag was put over his head and tightened, and he was hit on the side of the head. The blows gave him a painful headache.

Defendant further testified that after additional mistreatment he was brought a statement and told to sign it. He did not read it but signed it because he wanted the beatings to stop. He denied that the inculpatory information in the statement was true.

Defendant was taken to the Cook County Hospital emergency room, he testified, where he was seen by a doctor whose name he did not know. Defendant told the doctor he had been beaten by the police and the doctor said that defendant appeared to have "some type of trauma and a post concussion." Defendant also said he had been having problems with his penis. He was given Tylenol for his pain and scheduled for X rays.

Defendant testified that he was returned to the police station and booked on the charges. Two days later he went back to the hospital, where he saw an ophthalmologist who diagnosed him as suffering from decreased vision.

After defense counsel had concluded defendant's direct examination, the State moved to introduce a certified copy of defendant's 1974 conviction for armed robbery, an offense and conviction unrelated to the one he had testified to on direct examination. He had pleaded guilty to the second armed robbery simultaneously with the first and had received a concurrent sentence. The trial court allowed the evidence in over defense objection.

The State elicited defendant's admission that he had been a Disciples gang member before he went to prison, but he denied that he had remained part of the gang after 1982. Defendant also admitted that despite his claims of physical abuse by the police he had no bumps, bruises, or swelling during any of the first four days he was in the Cook County jail.

An orderly at Cermak Hospital testified that he had seen defendant on April 18, 1988, as a "follow-up," concerning his medication for a venereal disease and for no other reason. A doctor who examined defendant at Cermak on April 21, 1988, also testified. She saw no signs of injury during the examination, but determined he had decreased vision in his left eye. She arranged to have defendant examined by an ophthalmologist at Cook County Hospital. Defendant complained to her that he had been beaten.

In rebuttal, the State called a Cook County detention aide who testified that he saw defendant on April 17, 1988, the date of his arrest. Defendant did not complain to the aide about any physical problem except his venereal disease and never said that the police beat him. A police officer who transported defendant to the hospital after defendant had been processed on the criminal charges testified that defendant was treated for gonorrhea and never said he had been beaten. A photograph of defendant taken at the time defendant gave his confession showed no signs of injury.

Detective Nick Crescenzo testified that when he and his partner picked up defendant on April 17, they watched him dress but did not see him ingest any drugs. Crescenzo denied striking defendant and hanging him out of a window. He reiterated that defendant voluntarily accompanied the officers to the station on April 17.

By stipulation, defendant's prior criminal convictions were read into the record. In addition to the 1974 murder and armed robbery convictions, defendant was charged in 1988 with possession of a controlled substance with intent to deliver, unlawful use of a firearm by ...


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