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People v. Johnson

Court of Appeals of Illinois, First District, Fifth Division

December 31, 2014

ANTHONY JOHNSON, Defendant-Appellant

As Corrected.

Appeal from the Circuit Court of Cook County. No. 04 CR 15600. Honorable Arthur Hill, Judge Presiding.


Defendant's conviction for first-degree murder on an accountability theory was reversed, notwithstanding the fact that defendant was the driver in a " drive-by" shooting, since the evidence was insufficient to prove beyond a reasonable doubt that defendant knew the shooter was armed and intended to kill the victim, and that defendant intentionally facilitated the shooter before or during the commission of the offense; furthermore, the court admonished the State about arguments the court found " deeply troubling," including the State's argument comparing defendant to " the Nazis" for denying accountability and the argument that an acquittal would " legalize drive-by shootings."

Stephen L. Richards, of Law Office of Stephen L. Richards, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.



Page 1217

[¶1] Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October 10, 2007, by a separate jury in a simultaneous trial of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). On direct appeal ( People v. Johnson, 402 Ill.App.3d 1187, 376 Ill.Dec. 786, 1 N.E.3d 119 (2010) (unpublished order under Supreme Court Rule 23)), we found that the trial court erred by failing to clarify the accountability statute's use of the word " during" after the jury requested clarification, and we remanded for a new trial. Defendant was convicted on retrial and sentenced to 47 years. People v. Johnson, 2013 IL App. (1st) 122459. The trial court denied defendant's posttrial motion for a new trial in which

Page 1218

defendant argued, among other things, (1) that the State failed to prove him guilty of murder beyond a reasonable doubt; and (2) that the State's remarks at closing argument amounted to prosecutorial misconduct.

[¶2] Defendant claims on this appeal: (1) that the State's evidence was insufficient to prove defendant accountable beyond a reasonable doubt for Clayton Sims' shooting of Brandon Baity; (2) that the trial court erred by refusing the jury instruction set forth by the appellate court in its prior order concerning the meaning of the word " during" in the accountability statute (720 ILCS 5/5-2(c) (West 2004)); (3) that the trial court erred by overruling the defense's objection to the State's questions of Clayton Sims concerning whether Sims, who did not testify at his own trial, lied by letting his counsel argue that the State failed to prove him guilty beyond a reasonable doubt; (4) that the State committed prosecutorial misconduct with this same line of questioning of Sims; (5) that the prosecutor deprived defendant of a fair trial by arguing in closing that if the jurors acquit, " you might as well legalize drive-by shootings in this town," and that the jurors should not let Clayton Sims lie to another jury; (6) that the prosecutor committed misconduct in closing by comparing defendant to " the Nazis in Nuremburg" by denying accountability; (7) that the prosecutor committed misconduct in closing when he stated falsely to the jury that there were no " useful" bystanders that the State knew of, although a bystander, Alexander Weatherspoon, had testified at defendant's first trial; (8) that defendant's trial counsel erred by failing to call Weatherspoon, who had testified at defendant's first trial that the shooter did not enter a vehicle after the shooting, which would have corroborated Sims' testimony on this point; and (9) that the increase in defendant's sentence after retrial from 30 years to 47 years was vindictive and we should remand for resentencing or reduce the sentence.

[¶3] In the first appeal, we concluded that the State's evidence at the first trial " was far from overwhelming." People v. Johnson, 2013 IL App. (1st) 122459, 378 Ill.Dec. 197, 3 N.E.3d 477 (2010) (unpublished order under Supreme Court Rule 23). The State's evidence in the second trial was even less, since an eyewitness from the first trial did not testify at the second trial and the actual shooter, who did not testify at the first trial, testified at the second trial, exonerating the defendant. Thus, we cannot find the State proved defendant accountable for murder beyond a reasonable doubt. For these reasons, we conclude that the State failed to prove beyond a reasonable doubt that defendant was accountable for Sims' murder of Baity, and we reverse defendant's conviction and sentence.

[¶4] The Illinois Supreme Court subsequently entered a supervisory order directing us to vacate our judgment and reconsider in light of People v. Fernandez, 2014 IL 115527, to determine whether a different result was warranted. People v. Johnson, No. 117292, 387 Ill.Dec. 509, 22 N.E.3d 1162 (Ill. 2014). After considering our supreme court's decision in Fernandez, we determine that, although Fernandez reversed People v. Phillips, 2012 IL App. (1st) 101923, a case that we previously relied on, a different result is not warranted.


[¶6] The State charged 17-year-old Anthony Johnson with first-degree murder for the shooting death of victim Brandon Baity on October 1, 2003. The State's theory was that defendant was accountable

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for the acts of codefendant Clayton Sims, who shot Baity multiple times. Sims, the shooter, was acquitted by a separate jury while defendant was found guilty by his jury on the theory that he was accountable for Sims' acts.

[¶7] The State's evidence established that, on the night that Sims shot Baity, defendant was driving around the neighborhood with Nolan Swain, smoking marijuana, drinking liquor and intending to pick up girls. At some point, defendant picked up Sims and they stopped by Baity's vehicle to ask if he had any " weed" for sale. Sims exited the vehicle and shot Baity several times. The detectives who testified at trial to defendant's statements to them admitted that defendant never admitted that he knew Sims was looking for Baity, that Sims had a gun, or that Sims intended to shoot Baity. At the retrial, Sims testified that he told defendant that he wanted to buy some " weed" from Baity and that defendant had no idea what Sims intended to do when he left defendant's vehicle. During the State's closing argument, the prosecutor admitted that the jurors might legitimately ask themselves: " The defendant didn't set out that evening to kill anyone, so what are we doing here?" Although there was some evidence that defendant drove Sims from the scene, Sims testified that he ran away on foot.[1] However, the act of driving someone from the scene is not a ground for finding accountability.[2]

[¶8] The State's evidence at the retrial included the testimony of only one event witness, Nolan Swain, an admitted drug user who was a passenger in the vehicle. Swain testified that he smoked so much marijuana at that time that he would sometimes black out and not remember events; that he was stoned and drunk at the time of the shooting; that he did not recall the shooting or recall hearing gunshots; but that he did recall driving around with defendant and that he woke up once and observed Sims, the shooter, in the vehicle.

[¶9] The State also called Rufus Johnson, the alleged vehicle owner, who is no relation to defendant and who denied previously telling the police that he had loaned his vehicle to defendant. Both Swain and Johnson testified that they had previously made statements concerning defendant in exchange for the dismissal or reduction of subsequent drug charges.

[¶10] The State's evidence also included testimony by two detectives about their interviews of defendant. Defendant never provided a statement and was never interviewed until December 4, 2003, a couple of months after the shooting, when police officers approached defendant on the street and transported him to a police station at 8 p.m. Their interviews of defendant began after midnight and lasted through the afternoon of December 5, culminating in defendant's release from custody without charges.

[¶11] The defense called Sims, who testified that he shot and killed Baity, and that defendant did not know that Sims intended to shoot the victim or that Sims was armed that evening. Sims testified that, during the shooting, defendant drove off and left

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him at the scene. The jury nonetheless found defendant guilty, and the trial court sentenced him to 47 years in the Illinois Department of Corrections.

[¶12] I. Eyewitness Alexander Weatherspoon's Testimony

[¶13] Since defendant is claiming on appeal that his attorney was ineffective for failing to call bystander Alexander Weatherspoon, we include here a short summary of Weatherspoon's testimony at the first trial, found in our prior order in this case.

[¶14] At the first trial, Weatherspoon, who was 17 years old at the time of the offense, testified that he was selling marijuana from 7 a.m. on September 30, 2003, until past midnight on October 1, 2003, from the front porch of a building near the intersection of 69th Street and Emerald Avenue in Chicago. Weatherspoon had been selling marijuana at that location for two years prior to the shooting, and Brandon Baity, the victim, supplied the drugs that Weatherspoon sold, while Weatherspoon gave Baity the money from the sales. On the night of the shooting, Baity sat by himself in his vehicle, parked on Emerald Avenue, while Weatherspoon's cousin stood at the intersection at 69th Street as a lookout.

[¶15] After midnight, Weatherspoon observed a four-door vehicle drive up and stop in the middle of Emerald Avenue, just in front of Baity's vehicle. Weatherspoon assumed that the vehicle contained " a regular customer" since one of the three occupants motioned to Baity that he intended to purchase marijuana. Although Weatherspoon had a clear view of the vehicle, he never observed the face of the driver or the front-seat passenger.

[¶16] Although Baity made a motion indicating that the vehicle should park, Clayton Sims, whom Weatherspoon had known for two years and identified at trial, exited the vehicle, said something, and then pointed a gun at Weatherspoon. To evade Sims, Weatherspoon ran inside a nearby building, and heard 10 or 12 gunshots as he ran upstairs. He then looked out the second-floor window and observed Baity lying in the street as someone with a gun stood over him, although Weatherspoon could not make out who the person was. Baity's vehicle had crashed into other vehicles farther down the street, but the vehicle that had previously pulled up with Sims was no longer on the street. Weatherspoon exited the house and walked around the block, and when he returned, Baity was lying in the street alone.

[¶17] II. Autopsy, Ballistics, and Other Evidence

[¶18] The State's first witness at the retrial, Timothy Poland, testified that, in 2003, he was an evidence technician with the Chicago police department. At 2 a.m. on October 1, 2003, he was assigned to process the evidence at the crime scene. Baity's body had already been removed by the time Poland arrived.

[¶19] Poland observed several crashed vehicles halfway down the block, parked on the east side of the street. Baity's vehicle, an off-white or cream-colored vehicle, had crashed into a blue vehicle, which in turn crashed into the back of another white vehicle. Two of the vehicles, including Baity's, had bullet holes and broken glass. Inside Baity's vehicle, Poland recovered two bullet fragments that appeared to have been fired through the windows. Poland recovered seven bullet shell casings near Baity's vehicle, and four more shell casings further down the block.

[¶20] Poland testified that a MAC-10,[3] an acronym for " Military Armament Corporation,"

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is a " relatively small weapon," classified as either a " submachine gun" or " machine pistol," and is capable of firing 9-millimeter bullets. A MAC-10 is typically between 4.5 inches and 8 inches long, contains a 1.5-inch-long barrel, and is 2 inches wide. A MAC-10 has a pistol grip, and there are two variations of the gun: (1) a semiautomatic version that is produced for civilians, and (2) a fully automatic version that is produced for police and the military. On a fully automatic setting, a MAC-10 is capable of firing all of its bullets in a second or a second and a half, depending on the size of the magazine, which typically holds 10 to 32 bullets. On a semiautomatic setting, it would take 11 trigger pulls to fire 11 bullets. Poland did not inspect the actual murder weapon since the weapon was never recovered.

[¶21] Tracy Konior testified that she is a forensic scientist for the Illinois State Police, and she examined 2 fired bullet jacket fragments, 2 lead bullet cores, and 11 9-millimeter bullet cartridge cases that were recovered from the crime scene. Konior opined that the lead cores were unsuitable for comparison, but the jacket fragments were fired from the same gun. Konior also opined that all 11 shell casings were fired from the same gun, but she could not determine whether they were fired from the same gun as the jacket fragments without examining the gun itself. Konior testified that a MAC-10 is a semiautomatic pistol that is eight inches long and shaped similar to a two-by-four with a handle attached to it. The cartridge cases recovered from the crime scene contained a rectangular firing pin, which is commonly used in a MAC-10 or MAC-11 gun, but atypical of most other 9-millimeter pistols.

[¶22] Dawn Holmes testified that she is a forensic pathologist for the Cook County medical examiner and that she prepared Baity's autopsy report from an autopsy conducted by another pathologist who no longer works for the medical examiner's office. Holmes noted that Baity had several tattoos, including the letter B on his right shoulder. The autopsy revealed that Baity had two apparent bullet wounds--one on each side of his chest--and abrasions on his forehead, nose, and left eyelids. Two bullets were recovered from Baity's body. Holmes opined that the cause of Baity's death was multiple gunshot wounds and that the manner of death was a homicide.

[¶23] III. Nolan Swain, Vehicle Passenger

[¶24] Nolan Swain, a passenger in defendant's vehicle, was interviewed twice by the police. The first interview took place on December 5, 2003, at Area 1 police station. When detectives interviewed him a second time on May 7, 2004, Swain provided a statement to the ASA, which he recanted at trial.

[¶25] A. Nolan Swain's Testimony

[¶26] Nolan Swain testified that he is 26 years old. In 2003, Swain was convicted of possession of a controlled substance with intent to deliver and was sentenced to attend boot camp, where he later obtained his GED. Swain has known defendant since he was a child, and he has known Clayton Sims for eight years. On the evening of September 30, 2003, defendant was driving a gray four-door Pontiac Grand Am, and Swain entered the vehicle and sat in the passenger seat. Swain knew Rufus Johnson but he did not know whether Johnson owned the vehicle. Defendant then drove Swain around the

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neighborhood with the intention to pick up girls, and the two of them spent the evening smoking marijuana and drinking liquor.

[¶27] Swain testified that he was so intoxicated that he blacked out in the vehicle. Swain explained he " fell asleep" since he had just finished boot camp and his body did not have much tolerance to drugs at that time. At some point, Swain momentarily regained consciousness and observed Sims in the vehicle, but he did not observe anything else that evening until he awoke the next morning at a " lady's house."

[¶28] On the evening of December 5, 2003, Chicago police officers transported Swain to the Area 1 police station, where detectives questioned him concerning the September 30, 2003, shooting. Swain did not remember whom he spoke to, or whether he received his Miranda warnings. Swain told the detectives that, on September 30, 2003, defendant drove him around the neighborhood in a gray Grand Am, and that he and defendant smoked marijuana and talked to girls. Swain did not recall telling the detectives anything about a shooting that evening, and he instead told them that his night ended when he went to a woman's house and fell asleep, and that he took the L train to Maywood the next day. At some point, Swain's mother arrived at the police station, and Swain was released without charges.

[¶29] On May 7, 2004, Swain was arrested in a drug sting, in which he and several others were transported to a police station in Homan Square. At the police station, Swain was questioned, but he did not recall whom he spoke to, how many officers he spoke to, or what questions were asked of him. Swain also did not recall speaking with an assistant State's Attorney (ASA) or giving a written statement, but when he was presented with the statement at trial, he testified that he " guesse[d]" that it was a statement that he gave to an ASA. Swain identified his signature that appeared on each page of the statement, after the Miranda warnings, and on a photograph of defendant, Clayton Sims, and a man whom he " guessed" was the victim, but he did not " really know him." Swain admitted that he placed his initials on the statement next to handwritten corrections, and he identified a photograph of himself that was made at the time the statement was given, although he did not remember being photographed.

[¶30] As the State began to question Swain about the substance of the statement, Swain testified that he signed the statement because the police beat him and forced him to sign it. Swain confirmed that his biographical information in the statement was accurate, and he recalled identifying defendant and Sims in photographs and explained to the ASA how he knew them. When questioned specifically about the statement's details concerning the shooting, Swain testified that he again " guess[ed]" that he provided those statements, but he did not recall giving this information to the ASA, and he did not know if the assertions were accurate. The only facts that Swain recalled telling the ASA were that he went to a house with defendant and that he rode the L train to Maywood the next day.

[¶31] Swain acknowledged that his statement said, in essence, that on September 30, 2003, defendant drove him in a Pontiac Grand Am and that they picked up Clayton Sims at 1:15 a.m. the next morning. As defendant was driving, Swain heard Sims say, " there goes that dude that shot me," and he then observed Baity driving a cream-colored vehicle. At Sims' request, defendant chased the vehicle, which eventually stopped on Emerald Avenue, just short of the intersection at 69th Street.

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Defendant stopped slightly ahead of Baity's vehicle, and Sims exited the Pontiac. As Sims approached Baity's vehicle on foot, Swain heard a voice say, " dude, want some weed?" Sims then pulled out a MAC-10 gun and shot Baity at least six times. As Sims was shooting, defendant let his foot off the brake and slowly drove his vehicle forward. Baity tried to escape the gunfire but collided with other vehicles as he attempted to drive away. Sims then ran back and entered defendant's vehicle, still holding the gun. Defendant drove away and dropped Sims off at the intersection of 70th Street and Eggleston Avenue.

[¶32] After the State brought out the substance of the statement, Swain explained that two police officers beat him and forced him to sign the statement. He identified the officers as white, but noted that they were not the same officers that questioned him that evening. The officers did not speak to Swain when they entered the interview room, and instead, they turned the lights off and beat him while he was still handcuffed. The officers punched and kicked Swain, but they did not demand that he sign anything. After the beating, the officers stripped him naked, placed him in a room with the air conditioning turned up, and left him there all night. The beating did not result in any bruising on his body, and he did not tell the ASA about it because he wanted to go home. The police did not beat Swain when he spoke with the ASA, though the ASA advised him to provide false statements. Swain explained, " [S]ome of the stuff [the ASA] told me to make up on my own, say it in my own words. She said how she wanted me to say it and then told me to put it in my own words." Swain admitted that his statement says that no promises or threats were made to him in exchange for the statement, which was made freely and voluntarily.

[¶33] On cross-examination, Swain admitted that he smoked marijuana nearly every day in 2003, and that he would occasionally black out and not remember things when he smoked too much. Swain again stated that he was high the night of shooting and that he neither observed Sims with a weapon nor overheard a conversation concerning the victim, Brandon Baity.

[¶34] Swain also testified that he was taken to three police stations following his May 7, 2004, arrest for conspiracy. Detectives questioned Swain about drugs at first, but they did not find any drugs on his person. The police then told him that he could go home if he told them what they wanted him to say. Swain was in fact charged with a drug offense, but he was immediately released and was not required to appear in court.

[¶35] B. First Interview of Swain, December 5, 2003

[¶36] Detective Robert Garza testified that he was a Chicago police detective on December 5, 2003, when Detective Edward Winstead asked him to locate Nolan Swain. Garza observed Swain later that day and asked him to accompany him to the Area 1 police station, and Swain agreed. Swain was not under arrest at that time. Garza led Swain to Detective Winstead at the Area 1 police station, and then Garza left. Garza did not work on the case after that day.

[¶37] Detective Edward Winstead testified that, at the time of trial, he had retired after 35 years with the Chicago police department. On the morning of December 5, 2003, he was assigned to investigate Baity's murder. Winstead asked Garza to locate Swain, and Swain was transported to the police station later that day. Winstead spoke with Swain at 8 p.m. and Swain received his Miranda warnings. Swain stated that he did not know anything about the shooting. Soon afterwards,

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Swain's mother arrived at the police station and told the police that she knew Swain was in defendant's vehicle and that she wanted to speak with him. Winstead allowed her to speak privately with Swain, and when she returned, she said that Swain wanted to tell the truth. After she left, Winstead had a conversation with Swain.

[¶38] Swain told Winstead that he was standing at the intersection of 68th Street and Eggleston Avenue when defendant drove up in a gray Grand Am. Swain entered the vehicle and defendant drove him around the neighborhood. That evening, the two smoked marijuana and talked to girls. At midnight, defendant picked up Shakia[4] and drove her to her house. Defendant entered her house while Swain drove the vehicle around. Swain did not want to be in the vehicle because he was high, so he honked the horn and waited for defendant. Defendant left the house an hour later, entered the vehicle, and drove off. As defendant drove around the neighborhood, Swain observed Sims at the intersection of 70th Street and Eggleston Avenue. Sims entered the vehicle and sat in the backseat, and Swain fell asleep in the front passenger seat.

[¶39] Swain woke up to the sound of gunfire. He observed other vehicles in the middle of the street, and Sims was shooting at a cream-colored Mercury that drove forward and hit their vehicle. Defendant then drove down the street, and Sims ran backwards to defendant's vehicle, while still facing the Mercury and firing shots. Sims then entered the vehicle and defendant dropped him off at the intersection of 70th Street and Eggleston Avenue. Defendant then parked the vehicle in an alley near 70th Street and Vincennes Avenue, where defendant and Swain left the vehicle. Swain and defendant met up with Sims, and the three of them walked to a girl's house. Swain fell asleep there, and he rode the L train home the next day.

[¶40] Swain left the police station after he told Winstead this information and he was not criminally charged.

[¶41] C. Second Interview of Swain, May 7, 2004

[¶42] Detective Chester Bach testified that he has been employed with the Chicago police department for 40 years, and on May 7, 2004, he and his partner, Officer Dave Evans, were assigned to a debriefing at the organized crime division headquarters at Homan Square. During a debriefing, the police typically interview people who are arrested for different offenses to determine if they have any information concerning homicides, shootings, or other violent crimes in the neighborhood where they are arrested. There were many unsolved shootings in 2003 and 2004, and Bach stated that he did not know anything about Baity's murder at that time.

[¶43] At 4:30 p.m. that afternoon, Bach interviewed Nolan Swain, who was in custody resulting from the drug sting, in an interview room at the Area 1 police station. Swain received his Miranda warnings, and he responded that he understood them. Bach asked Swain if he had any information concerning any murders, shootings, or violent crimes in the area, and Swain said that he did. Bach offered no promises to Swain, and he did not suggest that he would help Swain if he provided information.

[¶44] Swain told Bach that he had information concerning a murder. The night of the crime, " Yogi" [5] was driving a gray Pontiac, while Swain sat in the passenger

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seat and Clayton sat in the back seat. As Yogi was driving, Swain observed a man he knew as " B" driving a beige four-door vehicle. Clayton told Yogi to chase him, and Yogi pursued B's vehicle until he stopped near the intersection of 69th Street and Emerald Avenue. Clayton then exited the Pontiac and shot B, who was still sitting in his vehicle, with a MAC-10 machine gun. Swain did not observe the gun prior to the shooting. Clayton returned to the Pontiac and Yogi dropped him off nearby. Yogi then drove to 71st Street and Vincennes Avenue, where he parked the vehicle and left it. From there, Yogi and Swain walked to another person's home and spent the night. After providing this information, Swain agreed to speak with an ASA.

[¶45] Bach then reviewed Baity's murder file for the first time. Afterwards, he notified the felony review unit of the Cook County State Attorney's office and turned the case over to Detectives Brian Lutzow and Minelli.[6] Bach then went off duty. He testified that he never made any promises either to Rufus Johnson or Swain, and that a murder weapon was never recovered in the case. Defendant and Sims were later charged with first-degree murder in June 2004.

[¶46] D. Swain's Signed Statement

[¶47] Assistant State's Attorney Andreana Turano testified that she arrived at the Area 1 police station before 10 p.m. on May 7, 2004, and spoke with Detectives Lutzow and Minelli. Neither Turano nor the detectives had any familiarity with the Baity case before that day. At 12:10 a.m., Turano and Lutzow spoke with Swain in an office at the police station. Turano introduced herself and read Swain his Miranda warnings, and Swain responded that he understood. After a 30- to 40-minute conversation, Swain agreed to provide a statement. Turano requested a statement from Swain because he was also a friend of defendant. Turano spent time alone with Swain, and he never said that the police beat him or left him naked in a cold room. Swain did not appear to have been beaten. Turano told Swain that she was not offering him any promises concerning his drug offense in exchange for his statement.

[¶48] Turano and Lutzow then left to speak with Rufus Johnson, and Swain provided a statement when they returned. Swain told Turano and Lutzow what he observed during the night of the shooting, and Turano wrote a summary of what he said. Swain read the summary out loud, and he placed his initials next to any corrections that he made. All three signed it, and Turano photographed Swain, which they also signed. At 3:20 a.m., Swain signed the statement that she had written out. At trial, Swain's statement was offered into evidence and then published to the jury as follows:

" Statement of Nolan Swain taken May 8, 2004, at 3:19 a.m [ sic ] at Area 1, Police Headquarters. Present Assistant State's Attorney Andreana Turano Michiels, Detective Brian Lutzow, Star No. 21328. This statement taken regarding the shooting of Brandon Baity which occurred on October 1, 2003, *** at 1:15 a.m. I understand that I have the right to remain silent and that anything I say can be used against me in a court of law. I understand that I have a right to talk to a lawyer and have him present with me during questioning. And if I cannot afford to hire a lawyer, one will be appointed by the court to represent me before any questioning. Understanding these rights I wish to give a statement. After being advised of his constitutional rights and stating that he

Page 1226

understood those rights, and also after being advised that Assistant State's Attorney Andreana Turano Michiels is a lawyer and a prosecutor, but not his lawyer, and not a lawyer for anyone else involved in this case, Nolan Swain agreed to give the following statement, which is a summary and not word for word. Nolan Swain states that he is 18 years old. *** Nolan Swain states that he identified the person in People's Exhibit 1 as Yogi. Nolan states that he has known Yogi since he was a young kid. Nolan states that he identified the person in People's Exhibit 2 as Clayton Sims. Nolan states that he has known Clayton for about two or three years and knows Clayton from the neighborhood. Nolan states that he does not know Brandon, but he recognized Brandon as the person Clayton shot and killed on October 1, 2003. Nolan states that on September 3, 2003, he and Yogi were driving around in a gray Grand Am car. Nolan states that the car belonged to Rufus Johnson. Nolan states that he was just chillin' at 70th and Eggleston on September 30, 2003. Nolan states that by chillin' he means that he was just hanging out. Nolan states that Yogi had already gotten the keys to Rufus' car. Nolan states that he and Yogi just drove around in the gray Grand AM [ sic ] car. Nolan states that shortly before 1:15 a.m., on October 1, 2003, he and Yogi picked up Clayton at 70th and Eggleston. Nolan states that Yogi was driving the gray car, and he was sitting in the front seat passenger side. Nolan states that Clayton, who he identified in People's Exhibit 2, got into the back seat of the gray car. Nolan states that they were going to drop off Clayton at the crib. By 'crib' Nolan means that they were going to drop off Clayton at his house. Nolan states that he does not know where Clayton lived at the time. Nolan states that they were on 71st, he heard Clayton loudly state, there goes that dude that shot me. Nolan states that he saw Brandon, who he identified in People's Exhibit 3, driving the cream colored car. Nolan states that Yogi made a right turn and chased after the cream colored car that Brandon was driving. Nolan states that Yogi drove the car to Halsted and then to 69th and then to Emerald. Nolan states that Yogi was driving the car fast, and when they got to *** Emerald, he heard Clayton state, let me out right here. Nolan states that parked at the curb was Brandon in his cream colored car. And Brandon was still seated in the driver's seat. Nolan states that no one else was in Brandon's car. Nolan states that Yogi pulled the car up so that their car was a little bit ahead of Brandon's car. Nolan states that he heard a voice that said something like, Do [ sic ] you want some weed. Nolan states that weed is marijuana. Nolan states that he saw Clayton walk up to the passenger side front of Brandon's car and open fire. Nolan states that Clayton was firing his gun directly at Brandon. Nolan states that Brandon was still seated in the driver's seat of his car. Nolan states that he did not see Brandon with any weapons. Nolan states that he, Clayton, was firing his gun because he heard the sound of gunshots and saw flashes from the muzzle of Clayton's gun. Nolan states that he heard and saw Clayton fire his gun many times at least over six times. Nolan states that Clayton did not have anything covering his face. Nolan states that Yogi had left his foot off the brake so that their car was inching forward. Nolan states that he heard the sound of tires squealing as he saw Brandon attempting to move his car out of the parking spot and into the street in order to flee from Clayton, who

Page 1227

was still firing his gun at Brandon. Nolan states that Brandon's car hit the rear driver's side of the car that Yogi was driving. Nolan states that he then heard loud noises and loud crashing which sounded like Brandon's car was crashing into parked cars. Nolan states that he heard the sounds of glass shattering as well. Nolan states that Clayton had a Mack 10 [ sic ] in his hands as he was firing and as he came back to the car. Nolan states that a Mack 10 [ sic ] is like a semi-automatic machine gun with a big clip. Nolan states that when Clayton got back into the car, he still had the gun in his hands and was placing it near his waist. Nolan states that Yogi drove to 70th and Eggleston where Clayton got out of the car with his gun. Nolan states that Yogi then drove himself, and Yogi to 71st and Vincennes, into the alley where he and Yogi jumped out of the car and left the car there. Nolan states that he then went to a house with Yogi and then took the L or a train subway to Maywood the next day. Nolan states that no threats or promises have been made to him in exchange for giving this statement, and that he is giving this statement freely and voluntarily because it is the truth. Nolan states that he has had a couple of cheese burgers [ sic ] to eat, Pepsi to drink, cigarettes to smoke. And Nolan states that he has been allowed use the restrooms whenever he wanted. Nolan states that he is not under the influence of drugs or alcohol. Nolan states that he has been treated fair by the police and detectives and fair by the state's attorney. Nolan states that he has been arrested on drug charges and no deals or promises have been made to him on that case or any other pending matter in order for him to give this statement. Nolan states that he can read and write English and demonstrated this by reading a loud [ sic ] this entire statement while the detective and [S]tate's [A]ttorney followed along. Nolan states that he was allowed to make any changes, corrections, or additions to the statement that he wanted, and has nothing further to add at this time."

[¶49] IV. Rufus Johnson, Vehicle Owner

[¶50] Rufus Johnson, who is no relation to defendant, provided a statement to the police during an interview with detectives at the Area 1 police station on May 7, 2004. Johnson later testified before a grand jury on May 21, 2004, and he substantially repeated the information that was contained in his prior statement. At trial, ...

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