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People v. Johnson

Court of Appeals of Illinois, First District, Second Division

July 25, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee,
v.
ANTOINE JOHNSON, Petitioner-Appellant.

          Appeal from the Circuit Court of Cook County. No. 99 CR 6463 Honorable James B. Linn, Judge presiding.

          JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Hyman specially concurred in the judgment, with opinion. Justice Mason dissented, with opinion.

          OPINION

          PUCINSKI, JUSTICE.

         ¶ 1 Defendant Antoine Johnson appeals from the trial court's order dismissing his amended successive postconviction petition at the second stage under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). On appeal, defendant contends that trial counsel was ineffective for failing to investigate and call Douglas Williams as a witness who would have testified Williams was present at the shooting and defendant was not a shooter. We reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 Following a 2000 jury trial, defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996)) and three counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)). He was sentenced to 28 years in prison for first degree murder and 10 years in prison on each aggravated battery with a firearm count, to be served concurrently. We affirmed the trial court's judgment on direct appeal. People v. Johnson, No. 1-00-3913 (2003) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 4 Defendant's convictions arose from a shooting that occurred on August 28, 1998, and resulted in the death of Patricia Bowers and injury to Larrail Wright, Mahdi Riley, and Mikki West. Defendant and codefendant, Robert Branch, were charged with four counts of first degree murder, four counts of attempt first degree murder, three counts of aggravated battery with a firearm, five counts of aggravated discharge of a firearm, and three counts of aggravated battery.[1] Before trial, defendant filed motions to suppress identification and statements and to quash arrest and suppress evidence. The court denied defendant's motions.

         ¶ 5 At trial, Wright testified that, on August 28, 1998, at about 11:00 p.m., he was with Riley, "Smurf," and "Poppie" in front of Big O's, a liquor store located near 1469 East 67th Street.[2]Wright heard gunshots coming from across the street, after which he felt a gunshot hit his back. He turned around and saw "Big Mac," whom he identified at trial as defendant, "Pumpkin," whom he identified at trial as Branch, and "Quick" shooting towards the crowd in front of Big O's.[3] Defendant and Branch were standing together on the north side of the street and Quick was standing on other side of the street next to a church. Defendant had a cream colored and shiny gun and Branch had either a ".9-millimeter or a. 380" gun. Wright ran through a vacant lot and into a nearby house. Wright heard at least 30 gunshots. He was later taken to the hospital, where he received treatment for a bullet that went to his jaw. At trial, Wright testified that, while he was in the hospital, he told Chicago police detective Raymond Binkowski that defendant was at the shooting and he testified he recalled telling Binkowski that defendant, Branch, and Quick were all shooting. He denied that he had told Binkowski that he did not see defendant that night at the shooting. The State showed Wright photographs of the scene of the shooting and he described where he was standing when he was shot and where defendant and Branch were standing when he first saw them shooting.[4]

         ¶ 6 Wright testified that, before the shooting, he had known defendant and Branch for about four or five months. On August 31, 1998, Wright viewed a lineup at the police station and identified defendant "[f]rom the shooting." Wright and defendant were in different factions of the 67th and Blackstone gang.

         ¶ 7 Mahdi Riley testified that, on August 28, 1998, at about 11 p.m., he was in front of Big O's located near 67th Street and Blackstone Avenue with Ramell Bowman, Douglas Williams, and Wright, who were members of the same gang. One of them said "there they go" and Riley looked up and saw "Big Mack," whom he identified at trial as defendant, and "Pumpkin," whom he identified at trial as Branch, standing on the corner of 67th Street. Defendant and Branch were pointing handguns toward the crowd standing in front of Big O's. Riley rode away on his bike and, while doing so, he was shot in the back. He jumped off his bike and ran through a vacant lot and into a nearby house. Riley testified that he heard about 20 to 30 gunshots and they came from the corner where defendant and Branch were standing. Riley identified photographs of the scene of the shooting and described where defendant and Branch were standing when he saw defendant and Branch shooting. Before the shooting, Riley had known defendant for about four or five years.

         ¶ 8 Later at the hospital, Riley identified defendant in photographs as being from "[t]he shooting." Riley acknowledged that, after the shooting, he only identified defendant and Branch as the shooters and that he told a detective he did not see Quick at the shooting. On October 12, 1998, Riley identified a photograph of Branch and told a detective he recognized him from "[t]he night of the shooting." On that same day, Riley identified Quick in a lineup as one of the shooters. Riley testified that he had a conviction for unlawful use of a firearm and that, in previous encounters with the police, he had given false names and incorrect dates of birth.

         ¶ 9 Mikki West testified that, on August 28, 1998, at about 11 p.m., she greeted Bowers in front of Big O's and then heard multiple gunshots coming from across the street. West felt a bad pain and saw that her leg was bleeding. She looked up and saw Bowers's eyes "rolled up in her head" and "holes in her neck." West went into the store, heard more gunshots, and then saw Bowers fall. West was shot one time in her leg.

         ¶ 10 Chicago police detective Ted Przepiora testified that, on August 31, 1998, Wright identified defendant in a lineup as one of the offenders who shot at him. On October 12, 1998, Riley identified Branch in a photographic array as one of the offenders who shot at him and, on February 11, 1999, Wright and Riley separately identified Branch in a lineup as one of the offenders who shot at him.

         ¶ 11 Assistant State's Attorney (ASA) Geraldine D'Souza testified that, on August 31, 1998, she spoke with defendant in the presence of Przepiora and a youth officer. Defendant was 16-years-old at this time. D'Souza advised defendant of his Miranda rights and he agreed to speak. D'Souza testified to the substance of defendant's statement to her. D'Souza testified that defendant stated that, on August 28, 1998, he was with "Maleeka" in the area of 1469 East 67th Street. "Quick" and "Pumpkin," who were also in the area, pulled out .380-caliber guns and started shooting at a crowd across the street. Defendant stated that two factions in the Gangster Disciple gang had been fighting and there was a "war" in the area. Defendant was scared and felt in danger. He ran around the corner and through an alley and then came out behind Quick and Pumpkin, after which he pulled a .380-caliber weapon from his waistband and started shooting in the same direction. Defendant stated he shot the gun four times and then ran. On August 30, 1998, defendant disposed the gun on 71st Street.

         ¶ 12 D'Souza generated a report after the interview, which defendant did not review or sign. Defendant's statement was not reduced to writing and he never reviewed or signed it. D'Souza testified that defendant's statement was "preposterous."

         ¶ 13 Forensic investigator Joseph Bembynista testified that, on August 29, 1998, at three different locations at the scene of the shooting, he recovered 9-millimeter cartridge casings in groups of six, seven, and eight. Cook County medical examiner Nancy Jones testified that it was Jones's opinion that Bowers's cause of death was multiple gunshot wounds and the manner of death was homicide. She also recovered a fragmented medium caliber copper-jacketed bullet from Bowers's calf.

         ¶ 14 Forensic scientist Laura Fleming testified that at least three firearms were used in the shooting. The bullet fragment recovered from Bowers's body was ".9-millimeter/.38 caliber," meaning it was in the ".38 caliber family" and she could not determine whether it was a .9-millimeter caliber.

         ¶ 15 Fleming testified that it was fair to say that a 9-millimeter ammunition could not be fired from a .380-caliber firearm.

         ¶ 16 Chicago police detective Raymond Binkowski testified for defendant. On August 29, 1998, Binkowski interviewed Wright at the hospital when Wright was being treated for a gunshot injury to his face. Binkowski testified that Wright was mumbling and he had a hard time understanding him due to the treatment he was receiving for his gunshot injury. Binkowski understood Wright to have said that he did not see "Big Mack" at the shooting. Wright also told Binkowksi that there were two shooters; Quick was a shooter; and he was not sure whether "Pumpkin" did any shooting.

         ¶ 17 Defendant presented a stipulation between the parties that Riley "had used the name of Abder Riley" on prior occasions.

         ¶ 18 In rebuttal, Przepiora testified that he interviewed Wright at the police station on August 31, 1998. Przepiora asked Wright for the names of the individuals he saw shooting and Wright told him, "Big Mack," "Pumpkin," and "Quick." Przepiora asked defendant whether he was sure he had seen "Big Mack" and Wright responded, "I am positive." Wright told Przepiora that he told Binkowski at the hospital that "Big Mack" was a shooter.

         ¶ 19 The jury found defendant guilty of first degree murder and three counts of aggravated battery with a firearm for Wright, West, and Riley. The court denied defendant's motion for a new trial and sentenced him to 30 years in prison for first-degree murder and 10 years in prison for each aggravated battery count, to be served concurrently. The court subsequently reduced his sentence for first degree murder to 28 years in prison. Defendant appealed, arguing, inter alia, that the court erred when it denied his motion to suppress statement. We affirmed, finding that defendant gave his statement voluntarily. People v. Johnson, No. 1-00-3913 (2003) (unpublished order under Illinois Supreme Court Rule 23).

         ¶ 20 In 2003, defendant filed an initial postconviction petition and the trial court granted the State's motion to dismiss that petition. Defendant subsequently filed a "supplemental petition" in 2007 and the trial court granted the State's motion to dismiss that petition. Defendant appealed, and we subsequently allowed defendant's motion to dismiss the appeal (case No. 1-08-1796).

         ¶ 21 In 2011, defendant filed a motion for leave to file a pro se successive postconviction petition. Defendant asserted actual innocence based on newly discovered evidence. He attached affidavits of Terrance Hilliard and Jason Nichols. In Hilliard's affidavit, he averred he was present at the shooting and saw only Quick shoot at Riley. He attested that Riley told him that Riley had falsely identified defendant and Branch as the shooters. In Nichols's affidavit, he averred that Riley had told him that Riley and Wright were going to get "even" by identifying defendant, Branch, and Quick as the shooters. On March 17, 2011, the court docketed the petition and appointed the Cook County public defender's office to represent him.

         ¶ 22 Thereafter, on January 4, 2012, defendant filed a pro se "motion for leave to proceed prose [sic] and to releave appointed counsel," asserting postconviction counsel informed him that he had contacted Nichols and Hilliard but "nothing helpful came from them" and arguing that postconviction counsel did not investigate the witnesses' claims. On January 19, 2012, postconviction counsel filed a motion under People v. Greer,212 Ill.2d 192 (2004), asserting that no useful testimony would come from Hilliard and Nichols. The trial ...


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