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May 15, 1995



The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

On September 9, 1989, the Latin Eagles, the Spanish Cobras, the Latin Disciples, and the Campbell Boys got together for a party. The night ended with seven separate fights, one of them resulting in the beating death of Ricardo Fernandez.

Henry and Juan Johnson, brothers, were two of four defendants placed on trial for murder. The Johnson brothers were found guilty of first degree murder in a bench trial that was heard in pieces, starting January 11, 1991, ending September 27, 1991.

The other two defendants, Hector Franco and Pedro Cordero, were acquitted.

The Johnson brothers, in this consolidated appeal, raise several questions: (1) whether the evidence was sufficient to prove guilt beyond a reasonable doubt; (2) whether they received ineffective assistance of counsel; (3) whether the trial judge unfairly coerced a witness to testify for the prosecution; (4) whether the sentences imposed should be vacated; and (5) whether it was error for the trial judge to refuse to allow them to file and be heard on their post-conviction petitions.

We affirm the convictions and the sentences, but remand the case to the trial judge for consideration of the post-conviction petitions filed by the defendants.


The trial was protracted and disjointed. We summarize the evidence as it came in.

January 11, 1991

The bench trial of the four defendants began. Juan Johnson, Henry Johnson, and Hector Franco were represented by the same privately retained lawyer. Pedro Cordero had a separate lawyer. Two witnesses testified.

Patricia Fernandez, the wife of the deceased: The last time she saw Ricardo alive was September 9, 1989, at their home. The next time she saw him was at his funeral, a week later.

Juan Michel: He had been a member of the Latin Eagles street gang for six or seven years. On September 9, 1989, he threw a birthday party for his friend, Edwin Robinson. The party was held at the Caguas Nighclub on North Avenue. More than 200 people attended, many of them members of "friendly street gangs"--the Spanish Cobras, the Latin Disciples, the Latin Eagles, and the Campbell Boys.

Michel was collecting a $3 fee at the door from everyone attending the party. He saw the four codefendants enter the club together. He recognized three of them, Franco, Cordero, and Henry Johnson, from the neighborhood.

About 11:30 p.m., a fight broke out between a member of the Spanish Cobras and a member of the Latin Eagles. The fight escalated. Shots were fired inside the club and the club emptied.

Michel went outside. He saw seven fights going on around him. One of the fights closest to him involved the defendants. The area was well-lit. At first, he was a half-block away from the fight. Then he walked toward it, getting as close as 15 feet. He saw a man lying on the street. Juan Johnson was hitting the man with a 4 by 4 board. Henry Johnson was striking him with a baseball bat. Cordero and Franco were kicking the man. Franco had some unidentified object in his hands. His attention was diverted when more shots were fired. He then saw the four defendants standing on the south side of the street.

Michel did not speak to the police when they arrived. Later, on September 10, they contacted him. At the police station he picked the four defendants' pictures out of the "gang books" kept by the police. That same evening, at two lineups, Michel identified Juan Johnson, Henry Johnson, and Hector Franco. On September 28, 1989, at a third lineup, Michel identified Pedro Cordero.

March 13, 1991

One witness, Edwin Gomez, testified: When asked if he saw someone outside the Caguas Club with a 4 by 4 board on the night of the party, he said, "I don't remember." The prosecutor asked:

"Q. A few minutes ago you were in the interview room and told me what happened. Isn't that correct?

A. (No response.)

Q. Isn't that correct? Judge, will you please order him to answer the question?"

The trial judge then reminded Gomez he was in court, under oath, and that there were serious penalties for not telling the truth.

The prosecutor again asked questions. Again, Gomez could not remember. The judge suggested that the prosecutor prepare a rule to show cause why Gomez should not be held in contempt. Gomez then was taken to the jury room, while the lawyers argued over how to proceed. The judge decided to break for lunch.

After lunch, Gomez began answering questions.

He saw someone who "looked like" Juan Johnson hitting a man, who was lying on the street, with a 4 by 4 board. He knew Fernandez, but didn't recognize him after the beating because his face was swollen. He did identify a photograph of the man on the street. He later learned that man was Fernandez.

On September 10, 1989, Gomez viewed a lineup. He identified Juan Johnson as the man he had seen with the 4 by 4 board.

May 10, 1991

Two witnesses testified.

Armando Mendez: When the fighting broke out he went outside to look for his wife. He saw a fight, about 100 feet away, where "nine or ten guys" were hitting and kicking a person lying on the ground. Hector Franco was one of the kickers. Henry Johnson was swinging a stick near the person's ...

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