Appeal from the Circuit Court of Cook County. No. 96 CR 25384 Honorable Joseph M. Claps, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Deangelo Johnson was convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West 1992)) and three counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)). Defendant was sentenced to 45 years for the murder, and 10 years for each of the aggravated battery charges, to be served consecutively, for a total of 75 years in the Illinois Department of Corrections. His conviction was reversed on appeal (People v. Johnson, 317 Ill. App. 3d 666 (2000)), but the Illinois Supreme Court reversed the appellate court and remanded the case to the appellate court for consideration of defendant's claims of ineffectiveness of counsel (People v. Johnson, 208 Ill. 2d 53 (2004)). On remand, the appellate court affirmed defendant's conviction. People v. Johnson, No. 1-98-4680 (2004) (summary order).
¶ 2 Defendant filed a petition for post-conviction relief, in which he claimed in part that trial counsel was ineffective for failing to investigate defendant's claims that his inculpatory statement was physically coerced by Detective Kriston Kato, that the State withheld exculpatory evidence by failing to turn over evidence of a pattern of Kato abusing suspects, and that appellate counsel was ineffective in failing to raise the issues on appeal. The post-conviction petition was denied at the second stage, and defendant appeals, claiming: (1) he made a substantial showing that his right to effective counsel was violated and (2) two of defendant's consecutive sentences are void because the victims did not suffer severe bodily injury. We affirm.
¶ 4 On August 23, 1996, Gary Thomas was killed and three others were injured during a shooting near a tavern named Wash's Place in Chicago. On September 11, 1996, defendant, who was 17 years old at the time, and Bernard Williams were arrested and subsequently indicted for first degree murder, attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1992)), aggravated battery and aggravated battery with a firearm, and armed violence (720 ILCS 5/33A-2 (West 1992)). The State ultimately proceeded solely on the first degree murder, attempted first degree murder, and aggravated battery with a firearm charges.
¶ 5 I. Motion to Suppress
¶ 6 On November 6, 1997, defendant, represented by an assistant public defender, filed a motion to suppress any statements he made in connection with his arrest. The motion claimed that defendant was not provided with his Miranda rights prior to being interrogated, that he was incapable of waiving his Miranda rights because he did not understand them, and that the statements were obtained as a result of physical coercion. We relate only the testimony concerning coercion, which is the primary issue on this appeal.
¶ 7 Assistant State's Attorney Susan Ziegler testified on behalf of the State. Ziegler testified that she was present at Area 4 police headquarters (Area 4) on the evening of September 11, 1996. At approximately 3 a.m., she interviewed defendant, who was not in handcuffs at the time. At one point during her interview, Ziegler and another assistant State's Attorney spoke to defendant outside the presence of any police officers, and Ziegler spoke to defendant about his treatment while in custody. Ziegler testified that defendant told her he was treated well by the police and did not complain about his treatment or any injuries that he sustained. Ziegler also did not observe any abusive behavior by Kato while she was present or notice any injuries. At approximately 4 a.m., Ziegler memorialized defendant's oral statement in writing and reviewed it with defendant; the other assistant State's Attorney and Kato were present while she was writing the statement and reviewing it with defendant. She testified that defendant made some corrections and additions to the statement. After the statement was completed, Ziegler took a Polaroid photograph of defendant.
¶ 8 The State also called Detective Kriston Kato as a witness. Kato testified that he and his partner were assigned to investigate the homicide of Gary Thomas and interviewed defendant for 15 minutes at approximately 2 a.m. on September 11, 1996.*fn1 Defendant was uncuffed at the time. Defendant denied any knowledge of the murder, and Kato confronted him with statements Kato had obtained from interviews conducted with Bernard Williams and Shawn Harris, a witness. In response, defendant stated that he was telling the truth, he had been in Evanston at the time, Williams and Harris were lying, and he would appear in a lineup to prove that he was being truthful.
¶ 9 Kato next spoke with defendant at approximately 5 a.m., when he told defendant that he was unable to obtain the people needed to view a lineup, but he would attempt it again in a few hours. Kato instructed defendant that Kato was leaving and that if he needed anything, to knock on the door. He told defendant that if he needed to use the restroom or wished to eat or drink anything, Kato's supervisor was next door and would comply with his needs. Defendant told Kato that he did not wish to eat at the time but wanted something to drink. Defendant was permitted to sleep; he was alone in the room, uncuffed, and the light switch was located inside the room, although Kato did not show defendant the location of the light switch. Kato's partner was not present during the conversation.
¶ 10 Kato testified that he returned to the room at approximately 4:30 p.m. with food for himself and defendant. Kato did not interview defendant at that time but gave him a hot dog. Kato left to look for witnesses, and located Martin Nash, an eyewitness to the shooting. Kato brought Nash back to Area 4 and arranged for a lineup, which occurred at approximately 6:10 p.m. Defendant and Williams both participated in the lineup and Nash identified them as the offenders.
¶ 11 Kato and his partner again interviewed defendant for 10 to 15 minutes at approximately 7 p.m. that evening; again, defendant was uncuffed. Kato informed defendant that he had been positively identified in the lineup, but defendant continued to deny participation in the murder. Kato then confronted defendant again with an oral statement Williams had made indicating that defendant was involved. Defendant stated that Williams was lying and that he wished to undergo a polygraph examination to prove that he was telling the truth. Kato scheduled polygraph examinations for defendant and Williams that evening. Shortly before 10 p.m., defendant was transported to a different location to participate in the polygraph examination, and he was returned to Area 4 at approximately 1:20 a.m. on September 12, 1996. Kato testified that the only food defendant had consumed through the time including the polygraph examination was the hot dog.
¶ 12 At approximately 1:30 a.m., Kato and his partner interviewed defendant for approximately 30 to 40 minutes and confronted him with the results of the polygraph examination, telling defendant that the test showed his knowledge of the murder. At that point, defendant stated that "he wanted to tell the truth" and gave his real name*fn2 and admitted to being one of the shooters. Kato contacted the State's Attorney's felony review unit, and two assistant State's Attorneys, including Ziegler, came to Area 4.
¶ 13 Kato denied striking defendant in the throat, hitting him with a telephone book, slapping him in the face, or severely tightening his handcuffs. Kato testified that defendant was never handcuffed during his interviews. He testified that there was a ring attached to the wall for the purpose of handcuffing people, but that it was not used for defendant.
¶ 14 Defendant testified that in September 1996, he was arrested along with Williams and Harris and taken to Area 4 at approximately 8 or 9 p.m. The three men were placed in separate rooms, and defendant's room had no windows and required someone to "let you out." Defendant sat on a steel bench and his right hand was handcuffed to the ring on the wall. Defendant was alone for approximately one hour, then Kato came into the room. He asked defendant whether he knew "who did that" and defendant responded that he did not know what Kato was talking about, so Kato left.
¶ 15 Some time later, a woman came in and took defendant to the washroom. She asked defendant whether he was hungry and defendant said he was not. When he returned to the room, defendant was not handcuffed. Approximately 30 minutes later, Kato returned and handcuffed defendant to the ring in the wall. Kato sat next to defendant and questioned defendant again, and defendant responded that he did not know what Kato was talking about. Kato told defendant to " '[j]ust tell me Poo Bear did it and I will let you go.' " Defendant told Kato that he did not know "Poo Bear," and Kato "karate-chopped" defendant in the throat and told defendant that he would be back; defendant testified that he could not swallow after the karate-chop. Approximately five minutes later, defendant heard Williams screaming " 'Oh, no, no' " in the next room. Kato returned, again asked defendant whether he was " 'ready to tell' " Kato, and defendant responded that he did not know "Poo Bear." At some point, he told Kato that he was at his aunt's house in Evanston at the time of the murder. Kato accused defendant of lying and left.
¶ 16 Eventually, a woman returned and took defendant to the washroom and gave him a bologna sandwich. Defendant was handcuffed to the wall again, but the handcuff was not tight. Defendant attempted to sleep, but the handcuff cut into his wrist and he was unable to sleep.
¶ 17 The next day, Kato returned and sat down. He asked defendant whether he was " 'ready to tell me now,' " and when defendant told him he did not know what Kato was talking about, Kato "back-handed [defendant], slapped [him]" in the face. Kato left the room and immediately returned, sitting on a chair in front of defendant. Kato told defendant, " 'We got you, you going down,' " and defendant responded that " 'I ain't did nothing.' " When defendant raised his head, Kato again karate-chopped defendant in the throat. Defendant told Kato, " 'Man, why you got to sit up here and hit on a person? I told you I don't know nothing,' " and Kato asked defendant if he would take a polygraph. Defendant agreed and was taken for the examination that night. During the polygraph examination, defendant denied knowing anything about the murder, and the technician told the officers that defendant had knowledge of the crime. Defendant was handcuffed and taken back to Area 4.
¶ 18 After returning, defendant participated in a lineup, and Kato asked defendant if he wished to speak with anyone. Defendant said that he wanted to call home, but Kato would not allow defendant to make any phone calls " 'until after we get through with you.' " Kato left, then immediately came back and asked defendant if he was sure that he did not wish to speak with anyone. Defendant repeated that he wanted to speak to his family, and Kato gave him a telephone book and told defendant to hold it up to his chest. Kato then hit defendant in the chest with "some black thing" and hit him in the face several more times with his hand. Kato told defendant that once defendant spoke to some people, he could leave, and defendant agreed.
¶ 19 Kato took defendant to a room with two people.*fn3
The people asked defendant if he had anything to tell them, and Kato began "making up some stuff," then looked at defendant "mean" and said " '[a]nd what else happened.' " Defendant and Kato then made up a story. The people told defendant to sign his name on a document, and he did so; defendant did not read the document, nor did anyone read it to him. Defendant testified that he was scared of Kato and would not have spoken to the people had it not been for Kato.
¶ 20 Defendant testified that when Kato hit him in the chest, it left
a red mark that lasted for three or four days. Additionally, every
time that Kato returned to the room, he would tighten defendant's
handcuffs to the point where defendant could hardly move his wrist and
could not feel his hand. Defendant testified that he had marks on his
wrist, and he showed his wrist to the judge at the hearing.*fn4
Defendant was examined by a medical provider when he
complained about the numbness in his hand while he was in
¶ 21 The parties also stipulated to the testimony of paramedic Stanislawski*fn5 , who would testify that he interviewed and examined defendant on September 13, 1996. Defendant did not complain of any injuries and his general appearance was good, with "no bruises, cuts, swelling, source, amputation, badges, cast scars, [or] contusions."
¶ 22 The trial court found that defendant was given the proper Miranda warnings and further stated:
"Concerning the alleged striking by Detective Kato as alleged by the defendant where it is denied by Detective Kato and whether or not he was informed of the results of the line up and of the co-defendant's statements. In assessing who to believe where there is a contradiction in the evidence I have to review all the evidence. In doing so I find that there is *** a pattern of untruthfulness on the part of the defendant. On many basis [sic], many of which have been argued by the State, others which have not been discussed or mentioned and even on the stand he contradicted himself as to whether or not he read part of the statement out loud at first saying on cross that he did and then denying that he didn't.
There is no corroboration of any abuse by Detective Kato, and because of what I find otherwise in the defendant's conduct throughout this entire matter and on the previous arrests where false information was given to police, both as to name and date of birth, that I do not believe the things that he testified to regarding Detective Kato occurred. I would therefore admit the statement over the defense objection."
¶ 24 Defendant's trial began on November 4, 1998, and defendant was represented by a private attorney.*fn6 As part of his opening statement, defendant's counsel urged the jury to "look upon the reliability of [defendant's] statement." We relate only the testimony that is relevant to the issues on appeal.
¶ 25 Martin Nash testified on behalf of the State. At the time of trial, Nash was serving a four-year sentence in the Illinois Department of Corrections for a felony narcotics charge to which he pled guilty. Nash testified that on August 23, 1996, at approximately 4:30 p.m., he was in front of Wash's Place with Eric Smith, also known as Puff; Irving Young, also known as Pokey; and Gary Thomas, also known as Buster. Nash was there with his 11-year-old son. Nash testified that Puff was the leader of a gang known as the Dog Pound; Nash denied being a member of the Dog Pound. Smith was playing with Nash's son when he looked down the street and said, " 'Man, look, here come those m*** f*** n***; man, m*** f*** travelers.' " Nash testified that the term "travelers" referred to a gang called the Traveling Vice Lords. Nash looked down the street and saw two men approaching them. They wore black hoods, black sweatshirts, and black leather gloves. Nash described the men as between 19 and 21 years old and identified defendant and Williams in court as the men he observed.
¶ 26 Nash testified that after Smith made his comment, the men reached into their waistbands and both pulled out guns, pointing them to where he was standing with Thomas, Young, and Smith and beginning to shoot, running toward them until they were approximately 20 feet away. As they were shooting, their hoods came down. Nash ran, but his son was "in shock" and was standing still. Nash turned to retrieve his son, looking at the men firing their guns. Thomas said, " 'I'm hit,' " and fell. Nash grabbed his son and ran with his son to the alley on the side of Wash's Place. He observed the two men running away.
¶ 27 Nash testified that he spoke to the police at the hospital where Thomas was taken. He described the men he observed, including that one man was tall and slim with braids in his hair and the second was a bit shorter and "bigger." He also told the police that Smith would likely know them since they were Traveling Vice Lords. He was contacted again by the police on September 2, 1996. Nash was shown a group of five photographs and identified defendant and Williams. On September 11, 1996, Nash viewed a lineup and identified defendant and Williams as the shooters.*fn7
¶ 28 Detective Kato also testified on behalf of the State. Kato testified that on September 2, 1996, he and his partner located Smith and interviewed him. After speaking with Smith, Kato sought to arrest Williams. Kato met with Nash and showed him a group of five photographs, one of which was a photograph of Williams. Nash identified ...