Court of Appeals of Illinois, First District, Sixth Division
Rule 23 Order filed June 28, 2013
Rule 23 Order withdrawn July 19, 2013
Rehearing denied August 12, 2013
Defendant’s conviction for first-degree murder was upheld over his contentions that errors occurred in the State’s re-cross-examination of a defense witness, the denial of defense counsel’s request for re-redirect examination of a defense witness, the admission of evidence that was hearsay, the State’s use of a document purporting to be notes taken during an interview of a witness, and the trial court’s attempt to define “reasonable doubt” during voir dire and to question potential jurors about whether they had any “qualms” about the principles set forth in Supreme Court Rule 431(b).
Appeal from the Circuit Court of Cook County, No. 09-CR-10177 (01); the Hon. Vincent M. Gaughan, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Kathleen Hill, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and Nancy Colletti, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE HALL delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Norman Johnson was convicted of first-degree murder in the shooting death of Jerrell Jackson. The trial court denied defendant's motion for a new trial and he was sentenced to 40 years' imprisonment. The trial court subsequently denied defendant's motion to reconsider his sentence. He now appeals his conviction. For the reasons that follow, we affirm.
¶ 2 The events in this case stemmed from an underlying ongoing dispute between a man named Douglas Johnson, also known as "Fresh" or "Doug, " and a man named Jason Coley. Evidence was presented that approximately a week prior to the shooting, Johnson and Coley were involved in an ongoing dispute over a stolen firearm belonging to Coley.
¶ 3 The evidence established that in the late evening of September 21, 2008, Johnson was riding a bike in the 700 block of South St. Louis Avenue in Chicago, Illinois. Jerrell Jackson and several other men were playing dice on the sidewalk. Jackson's girlfriend, Margaret Faulkner, who was 16 years old at the time, was watching the dice game from a first-floor window of a three-story apartment building located almost directly across the street from the dice game. Faulkner and Johnson gave trial testimony concerning events immediately preceding the shooting.
¶ 4 Faulkner testified that after the dice game ended, everyone who participated in the game left the area except for Jackson. Faulkner noticed Johnson ride past on a bike. Faulkner then observed two men wearing hooded sweatshirts (hoodies) emerge from the alley near her window. The men looked toward Johnson and began shooting. Faulkner testified that Johnson was shot and fell, but he got up and ran from the scene. Faulkner momentarily left the window and ran to wake her cousin. When they returned to the window, Faulkner saw Jackson lying on the ground. The shooters were gone.
¶ 5 Faulkner and her cousin ran outside to check on Jackson. He died at the scene from gunshot wounds to his abdomen and upper body. Johnson sustained a nonfatal gunshot wound to his left arm requiring surgery. A third man, sitting in a first-floor apartment, sustained a nonfatal gunshot wound from a stray bullet.
¶ 6 Johnson's version of events differed somewhat from Faulkner's version. Unlike Faulkner, Johnson testified that the dice game was still in progress when the shooting began. He also testified that there were three shooters, rather than two shooters.
¶ 7 Johnson, a convicted felon, testified that just prior to the shooting, he was riding a bike along the sidewalk on the 700 block of South St. Louis Avenue, when he encountered a dice game being played on the sidewalk. Johnson testified that he did not want to disrupt the dice game by riding through it, so he stopped on his bike to allow Jerrell Jackson to roll the dice. As Jackson was shaking the dice preparing to roll, Johnson looked around to make sure no police were in the area. He then observed three men standing across the street at the mouth of the alley. The men were standing in a triangle formation.
¶ 8 One man wore a white T-shirt and a baseball cap pulled down on his head. The other two men wore black hoodies with the hoods pulled over their heads. Johnson called Jackson's attention to the men, asking if he recognized any of them. As Jackson turned to look, the man wearing the white T-shirt said "yeah, nigger, " and started shooting. Johnson recognized the voice as belonging to Coley.
¶ 9 Johnson jumped off his bike and started running. Jackson and another young man who had been playing dice also ran. Jackson fell to the ground. Johnson was shot and momentarily fell to the ground before getting up and running from the scene. Johnson was taken to the hospital, where he received treatment for a gunshot wound to his arm.
¶ 10 Johnson denied speaking with detectives at the hospital, even though it was stipulated that if Detective Maresso were called to testify, she would testify that she and her partner interviewed Johnson in the emergency room at Mount Sinai Hospital on September 22, 2008, and that during the interview, Johnson stated that he recognized Coley as one of the shooters. Johnson told detectives that he and Coley grew up in the same neighborhood and had known each other for a number of years.
¶ 11 On September 23, 2008, two days after the shooting, detectives interviewed Faulkner at her mother's house. Faulkner signed a photo spread advisory form which stated that photos of the individuals involved in the shooting were not necessarily included in the photo array. Faulkner then viewed three negative photo arrays. A negative photo array is an array of photos that does not include a photo of the suspect. Faulkner did not make any identifications from this group of photos.
¶ 12 Detective Roberto Garcia testified that on September 23, 2008, he and his partner met with Johnson in an alley near the scene of the shooting. They interviewed Johnson and showed him two photo arrays. Johnson did not make any identifications from this group of photos. Johnson denied speaking with the detectives on September 23, 2008, but acknowledged his signature on a photo spread advisory form for that date.
¶ 13 Police continued their investigation, speaking with potential witnesses and gathering more information. The detectives eventually created two additional photo arrays. One array included a photograph of defendant and the other a photograph of Coley. Detective Garcia interviewed Johnson on October 5, 2008, at police headquarters. Johnson viewed the photo arrays and identified Coley as one of the shooters and identified defendant as being with Coley when the shooting began. At trial, Johnson testified that when he identified defendant and Coley he was merely identifying who they were and not that they had done anything.
¶ 14 In December 2008, police arrested Coley in connection with the shooting. He subsequently gave a statement confessing to the shooting and identified defendant as a shooter. On December 16, 2008, Johnson and Faulkner viewed separate physical lineups and identified Coley as one of the shooters. Faulkner testified that approximately two weeks after she identified Coley, detectives informed her that he had confessed to the shooting. Faulkner also gave a statement to the assistant State's Attorney, stating that during the shooting, Coley was wearing red and black, and that the second shooter was wearing all black.
¶ 15 On January 13, 2009, Johnson appeared before a grand jury and identified Coley as one of the shooters. In May 2009, detectives received an anonymous telephone tip informing them of defendant's location. Defendant was arrested on May 16, 2009. That same day, Faulkner viewed a physical lineup and identified defendant as the second shooter. She testified the police did not suggest whom she should identify.
¶ 16 On May 26, 2009, Faulkner testified before a grand jury and identified a photograph of Coley as the first shooter and identified a photograph of defendant as the second shooter. At trial, Faulkner testified that defendant was the second shooter and that if there was a third shooter, she would not have been able to observe him from her vantage point at the window.
¶ 17 Johnson acknowledged he appeared before a grand jury on May 28, 2009, and identified defendant and Coley as persons he saw raise their respective guns and fire. Contrary to his grand jury testimony, Johnson testified at trial that he did not actually observe defendant shoot his firearm because after Coley started shooting, he closed his eyes and ran. Johnson added that he did not see any of the shooters' faces and only identified Coley based on his voice. Johnson acknowledged telling the assistant State's Attorney that he would refuse to testify at trial and would claim he was being forced to testify.
¶ 18 At the time of trial, Coley was serving a 24-year prison sentence after pleading guilty to the murder of Jerrell Jackson. Coley testified that Johnson was the intended target of the shooting, not Jackson. Coley testified that approximately a week prior to the shooting, he and Johnson were engaged in an ongoing dispute over a stolen firearm and that Johnson had made verbal threats against him.
¶ 19 Coley testified that just prior to the shooting, he met with defendant and a man he did not know. Coley, defendant, and the unnamed man then went looking for Johnson on the 700 block of South St. Louis Avenue, an area Johnson was known to frequent. Coley was wearing a white T-shirt and brown hat. When the trio emerged from an alley onto St. Louis Avenue, Coley looked across the street and observed Johnson and a crowd of men playing dice. Coley testified that as he and ...