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10/07/94 PEOPLE STATE ILLINOIS v. JOSEPH JOHNSTON

October 7, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH JOHNSTON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE BARBARA DISKO, JUDGE PRESIDING.

As Corrected October 11, 1994. Second Correction October 31, 1994.

Cousins, Jr., Murray, Gordon

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

A jury convicted Joseph Johnston (Johnston) of aggravated battery, mob action, and two counts of ethnic intimidation. The trial court sentenced Johnston to probation. On appeal, Johnston argues that: (1) the evidence was insufficient to convict Johnston; (2) Illinois' Ethnic Intimidation Statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and also violates the free speech provision of the United States Constitution; (3) Illinois' Ethnic Intimidation Statute violates the State Constitution's Due Process and Free Speech provisions of Article 1; (4) prosecutorial misconduct during discovery and the trial's opening and closing statements denied Johnston due process of law; and (5) the trial court committed reversible error by refusing to allow further redirect by Johnston after the prosecution's recross-examination. We affirm.

BACKGROUND

The State presented the testimony of complainants Joseph Weaver (Weaver) and Calvin McLin (McLin), two black youths who were fourteen at the time of the incident. They testified that on August 15, 1989, they were picked up by two police officers while waiting for a bus home after attending a White Sox night baseball game. The officers took them to a nearby white residential neighborhood and ordered Weaver and McLin out of the police car, hitting them as they exited the vehicle. As Weaver and McLin began walking towards their homes, a group of white youths began throwing bottles at them. Weaver identified Johnston in court as being present in that group, and Weaver testified that he had previously identified Johnston in a police line-up.

Weaver and McLin ran away. The group of whites chased them and after a few blocks caught McLin, who was slowed down by a shoulder brace. During the chase the group shouted things such as "Let's get those niggers" and "Niggers don't belong in our neighborhood." After catching McLin, about six boys kicked and hit him until he passed out. The group stopped chasing Weaver after catching McLin.

The next day, Officer Richard Epstein testified that he went to Johnston's home and asked if Johnston could come to the station and talk to him. Officer Epstein read Johnston his Miranda rights upon arrival, and Johnston agreed to speak with him. Johnston told him that the previous night he was in the company of a number of friends when someone yelled, "There are a couple of niggers on the block, let's get them." Officer Epstein testified that Johnston "told me he then began to chase after the crowd [which was] yelling, 'Let's get the niggers.' He told me he did not catch up with the crowd but heard they had been knocked down, so he left." Johnston "said he ran after them. He was yelling, but he never caught up with them." When asked how Johnston referred to "them" - McLin and Weaver - Officer Epstein replied, "As niggers, shines."

Assistant States Attorney Laura Lambur (Ms. Lambur) also interviewed Johnston later that evening. She took a statement from Johnston. Johnston read the statement, and then Lambur read it out loud, following which Johnston signed every page. The statement, read by Ms. Lambur at trial, was a summary of how Johnston recalled the incident to Ms. Lambur. The statement describes the incident as follows:

"Joseph Johnston states on 15 August, 1989, he was hanging out on Union Street with his four friends Jimmy McQuen, Patrick Fitzpatrick, Rob Campbell, and Dan Bier when he noticed a beer can being thrown by Rob Campbell. Then he saw a friend John Boyd chasing two black kids. John Boyd yelled to Joseph Johnston and his friends, 'Help, help.' Johnston states he knows John Boyd meant help me get the black kids. Joseph states that his friends Fitzpatrick, Bier, and Campbell took off running to help John Boyd chase the black kids. Joseph says that he and Jimmy McQuen looked at each other and waited a second and then started running after their friends. Joseph states that some other neighborhood guys also started chasing the two black kids. Joseph said he knew that if the group caught the two black kids, they were going to beat them up. Joseph says he saw someone kick one of the black kids which made the black kid fall, and some of the group started kicking the kid after he fell. Joseph said he only watched the fallen black kid being beaten. Joseph said the other black kept running, and some of his friends chased that black kid. Joseph said Dan Bier yelled to Joseph to start running because the beaten black kid was hurt bad and passed out, and Joseph ran."

Ms. Lambur testified that the statement reflected what Johnston told her, but that she used her own words in the statement, including the replacement of Johnston's word "niggers" with "black kids" every time "black kids" appears in the statement.

Johnston testified on his own behalf. He explained that he chased after his friends, "Because I was concerned, I didn't want anyone to get hurt." Johnston stated he yelled to his friends, "Hey, come here, come here, no." Johnston also denied ever using the term "nigger" when talking to Officer Epstein or Ms. Lambur. On cross-examination, Johnston stated he saw a group of at least six people kicking McLin as he lay on the ground, did nothing to prevent them from hurting McLin, and that he ran home after the incident without running for help or ever calling the police or an ambulance. Johnston also recalled telling the state's attorney in his statement that Dan Bier yelled to him to start running because the beaten victim was hurt and had passed out. Johnston's recross-examination ended with the following colloquy:

[The prosecutor]: Mr. Johnston, giving you back your handwritten statement, please take it. Would you please look at that and tell the ladies and gentlemen of the jury if anywhere in that statement that you signed that it says that you tried to stop your friends from attacking and beating these kids?

A No, I do not.

Q Did you tell the state's attorney that?

A I really don't remember.

Johnston also presented the testimony of Detective Jerome Rusnak, who stated he was present for the police line-up of Johnston and that neither McLin nor Weaver was able to identify Johnston.

Following trial, the jury found Johnston guilty of mob action, aggravated battery, ethnic intimidation against Calvin McLin, and ethnic intimidation against Joseph Weaver. The trial court sentenced Johnston to probation, ordered him to get his G.E.D., and placed him on the sheriff's work program for four months. Johnston appeals.

I.

Johnston initially contends that the state did not prove any of the four counts beyond a reasonable doubt. Johnston argues the prosecution did not establish that he acted as either a principal or an accomplice, in that the prosecution was unable to prove beyond a reasonable doubt that Johnston ...


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