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People v. Gibson

Court of Appeals of Illinois, First District, Fourth Division

March 22, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAMES GIBSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 90 CR 3212 Honorable Neera Walsh, Judge Presiding.

          JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.

          OPINION

          ELLIS JUSTICE

         ¶ 1 Defendant James Gibson was convicted after a bench trial, and sentenced to life in prison, for the 1989 murders of Lloyd Benjamin and Hunter Wash. By the trial judge's own admission, the key piece of evidence in the State's case was an incriminating admission defendant made to Area 3 detectives under the command of Jon Burge, in which defendant placed himself at the scene of the murders. Though defendant would later claim that he was coerced into giving a false statement after two days of physical abuse at the hands of the police, defendant made no serious attempt to suppress that statement pre-trial, because his lawyer stated on the record that he deemed the statement "exculpatory"-favorable, not hurtful, to defendant's case-merely because defendant had not outright confessed to the murder in the statement, admitting only to being present at the scene. Counsel's interpretation would prove quite ironic later, given that the trial court found that statement to be anything but exculpatory-finding it, in fact, to be the lynchpin of the prosecution's case, "of extreme importance" to its finding of guilt.

         ¶ 2 In 2013, defendant filed a claim before the Torture Inquiry and Relief Commission (TIRC), alleging that his statement was the product of physical abuse by Area 3 detectives. He alleged, in particular, that several officers repeatedly punched and kicked him in the chest, and burned his arm with a heated clothing iron. TIRC found credible evidence that defendant was struck in the chest as he claimed-although it doubted his allegation that he was burned-and referred his claim to the circuit court for an evidentiary hearing. The circuit court, at the post-TIRC hearing, denied his claim after finding that defendant's testimony was not credible.

         ¶ 3 Defendant raises a multitude of issues on appeal. We reverse and remand for further proceedings based on one of them. At the hearing, two of the accused officers, former Sergeant John Byrne and former Detective John Paladino, invoked their fifth-amendment rights against self-incrimination. Believing that defendant's allegations were rebutted by several other detectives who testified, the circuit court declined to draw an adverse inference against Byrne or Paladino.

         ¶ 4 While an adverse inference is permissive rather than mandatory, we think it can be error not to draw one when there is no credible reason for refusing to do so. And here, certain of defendant's allegations against Paladino were not rebutted by any of the detectives' testimony, or by any other evidence in the record. Those allegations were also corroborated-not proven, but corroborated-by defendant's immediate complaint to the Chicago Police Department's Office of Professional Standards and by contemporaneous documentation of his injuries, which, a forensic pathologist testified, were consistent with his allegations that Paladino and other officers repeatedly punched and kicked him in the chest.

         ¶ 5 A law-enforcement officer's refusal to answer these allegations under oath is not to be taken lightly. The circuit court needed some defensible reason to refuse to draw an adverse inference. It did not have one. And that error, for reasons we will explain, could have changed the outcome of the hearing.

         ¶ 6 In light of that conclusion, we do not reach the other issues defendant has raised. But in the course of addressing the issue we find dispositive, we do address a question of law presented by several disputed evidentiary rulings, since that question will necessarily recur at any evidentiary hearing on a claim referred by TIRC. The question is: Do the Illinois Rules of Evidence apply at these hearings? We hold that they are "postconviction hearings, " within the meaning of Rule 1101, and that the Rules of Evidence therefore do not apply. See Ill. R. Evid. 1101(b)(3) (amended Apr. 8, 2013).

         ¶ 7 I. BACKGROUND

         ¶ 8 The victims, Benjamin and Wash, were shot and killed on December 22, 1989, while leaving a garage on the southwest side of Chicago. Benjamin, an insurance agent, was on his route collecting weekly premium payments. Benjamin's cash, and other personal effects, were found with his body, but the police suspected (attempted) robbery as the shooter's motive. Wash, a neighborhood mechanic who owned the garage, was a client of Benjamin's.

         ¶ 9 A. Investigation

         ¶ 10 On December 27, 1989, acting on an anonymous tip, detectives from the Area 3 Violent Crimes Unit detained defendant. The commanding officer of the unit at that time was Jon Burge. Over the next three days, several of Burge's subordinates interrogated defendant. According to the police reports (which the circuit court admitted into evidence at the post-TIRC hearing), those detectives included Anthony Maslanka, John Paladino, William Moser, Louis Caesar, John O'Mara, Phillip Collins, and John McCann. The supervising detective on the case was Sergeant John Byrne.

         ¶ 11 Defendant did not confess to the murders. But on December 30, 1989, after three days in police custody, he did admit that he was at Wash's garage when the murders were committed. He told the detectives that Eric Johnson (aka Keith Smith) handed a gun to a neighborhood drug addict named Fernando Webb, who shot Benjamin and Wash as they exited the garage.

         ¶ 12 The detectives confronted Johnson and Webb, who were also being questioned at Area 3, with defendant's statement. Johnson admitted that he was present at the crime scene, but he said that defendant shot Benjamin and Wash, while Webb acted as defendant's lookout. Webb, who had initially denied any knowledge of the murders, said that he passed by the garage, on his way home from getting his heroin fix, and saw an unidentified black male standing near the door.

         ¶ 13 Assistant State's Attorney (ASA) Lynda Peters interviewed the three suspects and concluded that further corroboration was required before any charges could be filed. Defendant was released from Area 3 and returned home on the evening of December 30, 1989.

         ¶ 14 The next day, on December 31, 1989, Johnson confessed to acting as a lookout while, he now claimed, defendant shot the victims. Webb, for the first time, also named defendant as the shooter. Johnson's sisters implicated defendant in an alleged plan to rob Benjamin. Defendant was arrested, without a warrant, later that day. He did not make any further statements after his arrest. Defendant and Johnson were both charged with the murders.

         ¶ 15 B. Defendant's Trial

         ¶ 16 Defendant's trial counsel filed a boilerplate motion to suppress, alleging that defendant was arrested without probable cause. Defendant filed a pro se supplemental motion to suppress. When the judge at defendant's trial asked defense counsel to clarify what specific evidence fell within the purview of the pretrial motions, counsel acknowledged that defendant "might" have made a statement to the police, but it was an "exculpatory-type statement[ ], " and "not [an] inculpatory statement[ ], " so it was not subject to suppression. The State likewise argued that neither counsel's motion nor defendant's pro se motion sought to suppress his statement placing himself at Wash's garage, and counsel did not contest the State's position.

         ¶ 17 Johnson, meanwhile, moved to suppress his confession on the ground that it was coerced through physical abuse. At his suppression hearing, Johnson testified that after his December 29, 1989, arrest, detectives hit him in the face, chest, ribs, arms, and stomach; kicked him; used racial slurs; and failed to Mirandize him. He ultimately signed a written statement that he did not write or review because he "was tired of getting beat, " and the detectives told him he could go home if he signed the statement. Because Johnson could not identify by name the detectives who abused him, the State called Detectives Moser, Paladino, Maslanka, Collins, McCann, Caesar, Jerome Rusnak, and Victor Breska; polygraph examiner Robert Tovar; and ASAs Peters and Richard Correa-all of whom, in sum, denied having any knowledge of the alleged abuse. Based on those denials, and Johnson's failure to corroborate his claims with medical records or photographs, the trial judge denied his motion.

         ¶ 18 Defendant and Johnson were tried separately. At defendant's bench trial, the State's case rested on the testimony of Johnson's sisters, Carla Smith and Janice Johnson; Webb; and Detective Moser, who testified to defendant's incriminating admission. The murder weapon was never recovered, and there was no physical evidence linking defendant to the shootings. Because Johnson did not testify, his statement implicating defendant as the shooter was not introduced. Defendant did not take the stand.

         ¶ 19 One of Johnson's sisters, Carla, testified that on December 20, 1989, she was at home with Johnson and defendant. Defendant said that he was "starving, " that his "car needed fixing, " and that he "would have to stick up the insurance man" to get money. Defendant added that "if [Benjamin] panicked" during the stick-up, he "would have to shoot him." And on December 21, 1989, Carla heard defendant ask her brothers for some .32 caliber bullets-the same caliber as the bullets recovered from the victims. On cross-examination, Carla testified that the police told her they would release Johnson if she made a statement, and that she did not read the written statement that she signed.

         ¶ 20 Johnson's other sister, Janice, testified that on December 20, 1989, she overheard defendant tell her brothers that "he was going to do a stick up" of the "insurance man." Like Carla, Janice testified on cross-examination that the police told her they would release Johnson if she made a statement. She further testified that after defendant was arrested, she ran into Webb on the street, twice, and both times he told her that he had lied to the police about this case. ¶ 21 At the time of defendant's trial, Webb was in jail on a pending armed-robbery charge. He testified that pursuant to a plea deal he reached with the State, he would be released that evening, after testifying against defendant. Webb, an admitted drug addict, further testified that on the day of the murders, he walked by Wash's garage, on his way to buy heroin, when he saw defendant standing outside the garage with a gun in his hand. Webb saw another person, whom he could not identify, standing by the back of the garage. Webb acknowledged defendant and continued on his way. On cross-examination, Webb admitted that he had lied to the police at first, and that he implicated defendant only after realizing he was under suspicion and could soon face charges himself.

         ¶ 22 The State called Detective Moser to introduce defendant's inculpatory statement. Counsel objected that defendant's statement was hearsay and did not fall within the exception for statements against penal interest, because it was exculpatory. Noting that "[w]e did not have any pretrial motion on it, " the trial court agreed to hear Detective Moser's testimony before ruling on whether defendant's statement was admissible.

         ¶ 23 Moser testified that defendant told him, along with Detectives Caesar and McCann, that he was outside Wash's garage at the time of the murders. Defendant said that Johnson gave Webb a gun, and Webb then shot both of the victims. Defendant also said that he previously had overheard Johnson and Webb planning a robbery.

         ¶ 24 After Detective Moser testified, counsel argued again that defendant's statement was not admissible as a statement against his penal interests because defendant merely admitted that he was present, not that he was involved. The trial court admitted defendant's statement, both because it was inculpatory, and therefore against his penal interests, and because it was an admission of a party-opponent, and therefore not hearsay in the first place.

         ¶ 25 In finding defendant guilty, the trial judge took Webb's testimony "with more than just a grain of salt, " finding that it "would not be sufficient on its own to convict anyone, including [defendant]." The judge acknowledged that Johnson's sisters "had an interest in protecting" him, but found that they still testified credibly. Above all, the judge explained, "the statement from [defendant]"-the same statement defendant's lawyer thought was exculpatory-was "of extreme importance to my findings" of guilt, since it corroborated the testimony of the other witnesses.

         ¶ 26 We affirmed defendant's convictions on direct appeal. People v. Gibson, No. 1-92-2306 (1993) (unpublished order under Illinois Supreme Court Rule 23), appeal denied, 158 Ill.2d 557 (1994). Defendant later filed, in sum, four postconviction petitions, a petition for relief from judgment, and a federal habeas corpus petition. Defendant did not allege that the police physically abused him or coerced his statement in any of these collateral pleadings, although he did allege, in some of them, that Johnson's statement was physically coerced.

         ¶ 27 C. Postconviction Proceedings

         ¶ 28 In 2006, codefendant Johnson filed a successive postconviction petition. He alleged that the recently released Report of the Special State's Attorney was newly discovered evidence that supported a claim of actual innocence. Johnson swore in his affidavit that Paladino, Maslanka, Breska, and McCann punched and kicked him in the face and ribs, and made racial slurs, during his interrogation at Area 3. After the circuit court denied leave to file the petition, we remanded for further proceedings, based on the parties' agreement that Johnson alleged a prima facie claim that his confession was coerced by police torture. On remand, the State agreed to Johnson's immediate release, in exchange for his Alford plea to one count of first-degree murder. See North Carolina v Alford, 400 U.S. 25 (1970). Johnson was released from prison sometime in 2012.

         ¶ 29 In 2011, defendant filed a petition for executive clemency. The petition alleged that he was the victim of torture "administered by at least two infamous detectives, " whom he identified as Paladino and Maslanka. Specifically, defendant alleged that the officers struck him in the chest and burned a tattoo of his nickname, "Peter Gunn, " off of his arm with an iron.

         ¶ 30 D. TIRC Proceedings

         ¶ 31 In May 2012, defendant filed a "claim of torture" under the Illinois Torture Inquiry and Relief Commission Act (TIRC Act). See 775 ILCS 40/1 et seq. (West 2012). The TIRC is an eight-person commission, appointed by the Governor, to investigate allegations of police torture. The commission consists of a retired circuit court judge; a former prosecutor; a public defender; a law professor; a criminal-defense lawyer; and three non-attorney public members not affiliated with the judicial branch. See 775 ILCS 44/20(a) (West 2014).

         ¶ 32 On his claim form, defendant alleged that Paladino, Maslanka, McCann, "and several others" hit, kicked, and burned him. The TIRC conducted an investigation, subpoenaing myriad documents, obtaining an opinion from a forensic pathologist, and conducting interviews, including one with defendant.

         ¶ 33 During his interview via video conference, defendant claimed that he was repeatedly slapped, punched, and kicked. Numerous detectives interrogated him, often "switching up" from one interrogation session to the next, but defendant named Paladino, Maslanka, McCann, and Caesar as his alleged abusers. He also claimed that on one occasion, Paladino and Maslanka burned his arm with a clothing iron.

         ¶ 34 The TIRC ultimately issued a 17-page report, finding "sufficient corroborating evidence of torture" to warrant judicial review of defendant's claims. The TIRC found "substantial contemporaneous evidence" of defendant's claims, including his immediate complaint of abuse to the Chicago Police Department's Office of Professional Standards (OPS), at his sister's urging, after his initial release from police custody; his recounting of police abuse to his public defender, to an OPS investigator, and to doctors at Cermak Hospital; and photographs, ordered by Judge Bastone, of defendant's bruising at the time of his bond hearing. These contemporaneous reports, the commission found, were very similar to those made by codefendant Johnson and to many of those made by other victims of Jon Burge and his detectives that came out years later.

         ¶ 35 The TIRC recognized inconsistencies in defendant's testimony, most notably his claim to have been burned by an iron; the commission determined that there was "a significant chance [defendant] fabricated this assertion to minimize his potential guilt and/or to increase the severity of his claimed torture." Finally, the TIRC noted that defendant filed suppression motions before trial but never mentioned police abuse within them-but the commission acknowledged that the failure to raise that issue pretrial may been the result of tactical, if incompetent, legal strategy by defendant's public defender at the time.

         ¶ 36 The TIRC also determined that the police had a motive to coerce an inculpatory statement against defendant, as the case against defendant, aside from his incriminating statement, was "otherwise weak." The commission noted that defendant was placed at the scene by a heroin addict (Webb) who only implicated defendant after defendant implicated him; that codefendant Johnson's sisters had a motive to implicate defendant and later admitted they only made those statements to secure their brother's release; that no physical evidence supported the conviction; that even the State's internal case evaluation characterized the case as "extremely weak" and "entirely circumstantial"; and that the trial judge had relied overwhelmingly on the inculpatory statement given by defendant, stating that it was "of extreme importance" to the finding of guilt.

         ¶ 37 The TIRC thus referred defendant's claim to the circuit court, where the evidence in question was presented at a hearing.

         ¶ 38 E. Post-TIRC Hearing in Circuit Court

         ¶ 39 At the hearing before the circuit court, defendant testified that he was detained at his mother's house and transported to Area 3 on December 27, 1989. He was handcuffed to a chair and left alone. The next day, he was placed in several lineups throughout the course of the day. But he was not questioned on either day. His interrogations-and his alleged abuse-began on December 29, 1989.

         ¶ 40 On December 29-sometime in the morning, defendant thought, although his perception of time was none too clear at that point-defendant had a short conversation with Detectives O'Mara and Collins. They did not abuse him at that time. But sometime later that day-again, defendant could not be sure exactly when-they came back with Paladino, Maslanka, and Detective Thomas Ptak. That is when the alleged physical abuse began.

         ¶ 41 One of defendant's arms was cuffed to the chair. Paladino slapped him and threatened, "we through playing with your ass ni***." Maslanka told defendant that Johnson had implicated him and his brother in the murders; defendant responded that perhaps it was Johnson and his brother who committed them. Maslanka then kicked him in the left side of his rib cage and punched him in the right side. Paladino slapped him "upside the head." The detectives warned him, "ni*** stop playing, " and threatened to "kick his ass all night" unless he started talking. O'Mara and Collins punched him in his rib cage, stomach, and sides; Collins kicked him in the groin. Then all of the detectives, after further warnings that defendant had better start talking, began "flooding" him, that is, barraging him with an onslaught of slaps, punches, and kicks, all while verbally threatening him that he had better make a statement and say what they wanted him to say. At some point, defendant claimed, he blacked out.

         ¶ 42 The next day, Rusnak and Breska came to ask if he would take a polygraph exam. (Defendant initially testified that it was McCann and Caesar, but he quickly changed his testimony and said it was Rusnak and Breska. Defendant admitted that sometimes he gets the various detectives confused because he encountered so many throughout his detention.) They said if he took the test and cleared everything up, "all this ass whooping" would stop. At ...


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