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July 8, 1994



Petition for Leave to Appeal Denied October 6, 1994. As Corrected October 13, 1994.

Murray, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

After a jury trial defendant Terrance Johnson (Johnson) was convicted of attempted murder and two counts of armed robbery for his involvement in the March 22, 1989, robbery of the Concord Oil gas station located at 440 West 87th Street in Chicago. He was later sentenced to concurrent terms of 30 years' imprisonment on eachoffense, to be served consecutively to an 80-year sentence he received in a prior case.

In the prior case, as in the case presently before this court, Johnson and codefendants Lester Boston and Demetrius Broadwater were charged with robbing a gas station on March 22, 1989. The prior case, however, involved the Unocal gas station located at 8510 South Ashland, which is about two miles from the Concord Oil gas station involved here. The Unocal gas station robbery took place shortly after the Concord Oil gas station robbery and in that case a gas station attendant, Cleotha Adams, was shot to death in the course of the robbery. This court reviewed the appeal in the prior case and affirmed Johnson's armed robbery and murder convictions, as well as the 80-year sentence imposed, in an opinion issued September 3, 1993, and modified December 3, 1993. Leave to appeal to the Illinois Supreme Court was denied in April 1994. See People v. Johnson (1993), 255 Ill. App. 3d 547, 626 N.E.2d 1073, 193 Ill. Dec. 522, leave denied, (1994), 155 Ill. 2d 570.

In the present appeal Johnson raises five issues which, he argues, demonstrates trial error necessitating reversal of his present convictions and a new trial. However, some of the issues raised here have already been addressed in the earlier appeal. The issues in this appeal are: (1) whether Johnson's due process rights were violated by the admission of Tremmel Broadwater's recanted statement and grand jury testimony as substantive evidence, (2) whether evidence of other crimes was erroneously admitted, (3) whether Johnson was denied a fair trial by the inclusion of unnecessary details of other crimes, (4) whether a jury instruction mislead the jury on the permissible use of other crimes evidence, and (5) whether Johnson was denied a fair trial due to prosecutorial misconduct.

We find no merit to any of the arguments advanced by Johnson and affirm his convictions and sentence. Before addressing the issues raised, however, we shall briefly recount the evidence that was presented to the jury in the trial in this case.

Johnson's trial in this matter commenced on March 16, 1992. During the opening statements made by both the State and the defense, the jury was fully apprised that they would be hearing evidence with regard to two gas station robberies. The State then called its first witness, Tremmel Broadwater. Tremmel, who was the nephew of a codefendant, Demetrius Broadwater, and a friend of defendants, Lester Boston and Johnson, testified that he had been 17 years old on March 22, 1989. On April 14, 1989, police officers came to his home looking for Demetrius, who was not home. The officers took Tremmel to Area Two Chicago Police Station where, some hours later, he signeda written statement in which he admitted that he had been present in a tan-colored car with Demetrius, Lester Boston and Terrance Johnson in the early morning hours of March 22, 1989. According to the statement, they pulled into a Unocal gas station at Johnson's direction. Johnson, who possessed a .25 caliber automatic handgun, shot the gas station attendant in the back as he attempted to run away and then went through the attendant's pockets to remove his money. Tremmel also testified that he remained at the police station until Monday, April 17, 1989, at which time he was transported by the police to the courthouse at 26th and California to testify before the grand jury with regard to the events related to the Unocal gas station robbery.

Although Tremmel acknowledged his signature on the statement and admitted that he had testified under oath at the grand jury, at Johnson's trial Tremmel denied any knowledge of the Unocal gas station robbery, claiming that he had been home in bed at the time the robbery took place. He further claimed that he was coerced into signing the written statement by promises of leniency and by threats of being charged with murder. His grand jury testimony, he claimed, was given in exchange for his ability to go home, which the police refused to allow him to do until he testified. The State impeached Tremmel with his signed statement and grand jury testimony.

The next witness, Assistant State's Attorney Buckley, read the transcript of Tremmel's grand jury testimony into the record as substantive evidence after he testified regarding the conditions under which the testimony was taken. Specifically, Buckley testified that Tremmel came to his office on the morning of April 17, 1989. Buckley saw no police officers with Tremmel and was unaware that he had been transported to the hearing by the police. Buckley knew of no promises given or threats made in relation to Tremmel's testifying. Buckley indicated also that Tremmel had been cooperative and had freely discussed what the content of his testimony would be prior to giving his testimony before the grand jury. Before the grand jury, Tremmel answered questions posed to him by Buckley regarding the events surrounding the Unocal gas station robbery. In addition, Buckley noted that on that same day he met with Tremmel's mother, who had also been cooperative.

After Tremmel and Buckley testified on March 16, 1992, trial was continued. When trial reconvened on March 18, 1992, Johnson's jury was joined by Lester Boston's jury and Johnson's trial was conducted simultaneously with the jury trial of Lester Boston. The manner in which the trial proceeded is as follows: Both jurys sat while the direct testimony of a witness was taken, Boston's jury wasremoved during cross-examination by Johnson's counsel and Johnson's jury was removed during cross-examination by Boston's counsel. In this manner the juries heard the testimony of witnesses Charles Thurman, Jeffrey Thompson, Kenneth Malkowski and Detective John Irvin, all who testified in relation to the Concord Oil gas station robbery.

Charles Thurman testified that on March 22, 1989, at about 2 o'clock in the morning he was working at the Concord gas station located at 440 West 87th Street in Chicago. A tan-colored car drove into the gas station through the only gate in the fence that surrounds the station. The car made a complete rotation so that it was facing the gate that it came through before pulling up along the gas pumps at aisle 1, which is located closest to the fence running along 87th street. As Thurman walked up to the car to service it, the front-seat passenger jumped out of the car, pointed a gun in his direction and demanded that he turn over his money to the driver of the car.

Thurman testified that he could not see the gunman because of a light that was shining behind the gunman's head and because he was concentrating on the gun. However, when he dropped the money through the window of the car, he was able to see the driver, who he identified as Lester Boston in a line-up conducted April 15, 1989.

The next witness was Jeffrey Thompson. He, too, had been working at the Concord Oil gas station at 2 a.m. on March 22, 1989. He testified that he first realized that something was happening when someone with a gun kicked in the door of the station office where he had been doing some paperwork. The gunman held the gun to his head and ordered him to turn over his money and exit the building. He did as he was told, turning over $100 or more. He then laid down on the ground outside the station, as instructed by the gunman, and stayed there while the gunman ...

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