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People v. Johnson

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

MICHAEL JOHNSON, Petitioner-Appellant.

          Appeal from the Circuit Court of Cook County. No. 03 CR 8365 The Honorable Diane Cannon, Judge, presiding.

          Attorneys for Appellant: James E. Chadd, Thomas A. Lilien, and Darren E. Miller, of State Appellate Defender’s Office, of Elgin, for appellant.

          Attorneys for Appellee: Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Noah Montague, Assistant State’s Attorneys, of counsel), for the People.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.



         ¶ 1 Defendant Michael Johnson appeals from the second-stage dismissal of his petition for postconviction relief. After a jury trial, he was convicted of first degree murder with a firearm and sentenced to 75 years with the Illinois Department of Corrections.

         ¶ 2 In this appeal, defendant claims (1) that his trial counsel was ineffective for failing to move to suppress his statements on the ground that the police questioned him after he had invoked his right to counsel in violation of Edwards v. Arizona, 451 U.S. 477 (1981), and (2) that his appellate counsel was ineffective for failing to argue that his trial counsel was ineffective for failing to raise the Edwards violation.

         ¶ 3 In response, the State argues (1) that defendant's trial counsel did, in fact, claim in defendant's pretrial motion to suppress, among other things, that police interrogation continued after defendant had asserted his right to counsel; (2) that the trial court held a suppression hearing on this motion, at which defendant testified; (3) that, during arguments at the hearing, the State cited People v. Perry, 147 Ill.2d 430 (1992), an Illinois Supreme Court case that discussed the United States Supreme Court case of Edwards; and (4) that the trial court denied defendant's suppression motion finding, "based on the credibility of the witnesses," that defendant received Miranda warnings and voluntarily chose to make a statement. See Miranda v. Arizona, 384 U.S. 436 (1966).

         ¶ 4 In reply, defendant argues (1) that, although defendant's pretrial motion claimed that interrogation continued after defendant invoked his right to counsel, the motion did not specifically cite Edwards; (2) that, although the State cited an Illinois case discussing Edwards, defendant's trial counsel did not offer an argument in response; and (3) that, although the trial court denied defendant's motion on credibility grounds, the trial court did not specifically articulate a ruling on the Edwards issue. In addition, defendant argues that this court may not consider credibility issues until the third stage of the postconviction process.

         ¶ 5 For the reasons stated below, we find that this issue was litigated prior to defendant's trial and, thus, neither his trial counsel nor his appellate counsel can be found ineffective for failing to raise it. As a result, we affirm the second-stage dismissal of defendant's postconviction petition.

         ¶ 6 BACKGROUND

         ¶ 7 This court has set forth the facts of this case and discussed the evidence at trial in a prior order (People v. Johnson, 1-08-1095 (2010) (unpublished order under Illinois Supreme Court Rule 23)), which we incorporate here by reference. Since we do not need to consider the sufficiency of evidence at trial, we provide here only a short synopsis of the offense and the evidence.

         ¶ 8 The State's evidence at trial established that defendant, acting as a hit man for drug dealer Marc Norfleet, killed police informant Adam Schultz. The evidence at trial included defendant's own videotaped statement, in which defendant admitted that, in exchange for Norfleet's promises of both money and entry into the drug business, he shot the victim. During his videotaped statement, defendant stated that Norfleet drove him, as well as defendant's nephew Larry Jones and the victim, to the mouth of an alley where defendant and the victim exited the vehicle. In the alley, the victim turned his head, and defendant shot him once in the head. Defendant's confession was corroborated by the trial testimony of defendant's nephew Larry Jones, who testified that Jones, Norfleet, defendant, and the victim drove around; that they made a stop at which defendant and the victim exited the vehicle; and that Jones and Norfleet drove away and returned after 15 minutes to pick up defendant, who was then alone. In addition, defendant stated on the videotape that Norfleet had given him a .38-caliber revolver, and that fact was corroborated by the testimony of a firearms expert who testified that the bullet fragments found in the victim's body came from a single .38-caliber bullet.

         ¶ 9 The issue in this appeal concerns defendant's pretrial suppression motion, the subsequent hearing on that motion, the parties' arguments at the hearing, and the trial court's ruling at the conclusion of the hearing, so we describe those facts in more detail.

         ¶ 10 On February 28, 2007, defendant's trial counsel filed a motion to suppress statements that claimed, among other things, "[t]hat the statements sought to be suppressed were obtained as a result of interrogation which continued after the defendant had elected to remain silent and had elected to consult with an attorney prior to further questioning in violations of the 5th and 14th Amendments."

         ¶ 11 At the suppression hearing held on September 26, 2007, both sides waived opening statements, but the State asked "that the defendant be sworn to the motion." Defendant then swore under oath that he had read the motion.

         ¶ 12 Detective John Callaghan testified that, on December 20, 2001, while working at Area 5 in Chicago, he was assigned to investigate the murder of Adam Schultz, which had occurred five days earlier. In connection with that investigation, he learned that Milwaukee police had arrested defendant on July 8, 2002, regarding an unrelated murder and had also arrested Franklin Bogan on July 9, 2002, for a narcotics offense. Between July 13 and July 23, 2002, Callaghan interviewed Bogan because Bogan indicated he had received information about the Schultz murder from defendant, who had been talking about it in jail. On August 13, 2002, Callaghan interviewed Bogan again with Assistant State's Attorney (ASA) Michael McHale for the purpose of obtaining Bogan's consent for a "consenual overhear." The trial court signed an order authorizing the consensual overhear, and between August 14 and September 3, 2002, several attempts were made to record conversations between defendant and Bogan.

         ¶ 13 Callaghan testified that, on August 27, 2002, he located defendant's nephew Larry Jones in the Cook County Jail and transported him to Area 5 to interview him; but Jones denied knowing any of the parties involved in the Schultz murder. On the same date, August 27, 2002, a Milwaukee detective, Paul Bratonja, and Deputy U.S. Marshal Patrick Amerson arrived in Chicago with defendant in custody for the purpose of investigating an unrelated Milwaukee murder. Callaghan did not know prior to that day that they were bringing defendant to Chicago. Callaghan did not interview defendant then and was not aware of any interviews with defendant at Area 5 on that date.

         ¶ 14 Callaghan testified that on that same date, August 27, 2002, he learned that codefendant Marc Norfleet, the person who ordered the Schultz murder, had been arrested in Neenah, Wisconsin. On September 3, 2002, Callaghan went to Milwaukee to meet with defendant at a Milwaukee police station. In the interview room, Detective Robert Carrillo advised defendant of his Miranda rights, and defendant indicated he understood his rights and agreed to speak with them. The detectives confronted defendant with some of the evidence, but he denied any knowledge of the offense. Detective Carrillo explained that an ASA from Cook County was present in Milwaukee, and defendant indicated he would like to speak with her. The detectives exited the room, and ASA Ward and Detective Carrillo returned and conducted subsequent interviews with defendant. Callaghan obtained lunch for defendant and provided him with cigarettes but was not present for the subsequent interviews. At 5:43 p.m. on September 3, 2002, defendant provided a videotaped statement in the presence of ASA Ward and Detective Carrillo. ASA Ward had brought with her from Chicago a tripod and a camera, which Callaghan started before exiting the room.[1]

         ¶ 15 Detective Callaghan testified that the entire time that he was with defendant on September 3, 2002, defendant never asked for an attorney, never indicated that he wanted to remain silent, and never refused to talk with them. Neither Callaghan nor anyone in his presence questioned defendant regarding the offense in Milwaukee for which defendant was being held. Neither Callaghan nor anyone in his presence told defendant that if defendant did not cooperate he would receive the death penalty. No one drew two boxes, labeled one box "live" and the other box "die," and told defendant to choose. No one told defendant that if he provided a statement he would not receive the death penalty but that if he did not provide a statement his nephew, Larry Jones, would be charged with first degree murder and face the death penalty.

         ¶ 16 On cross-examination, defendant's trial counsel asked whether, in July 2002, Callaghan knew that defendant had an attorney representing him on the unrelated case in Milwaukee. Callaghan testified that he had "no idea" whether defendant had an attorney in July 2002, and Callaghan did not check to determine if defendant was represented in the Milwaukee case. On redirect examination, Callaghan testified that, on September 3, 2002, defendant also asked questions and posed hypotheticals to the detectives. In response to defendant's hypotheticals, the detectives informed him that there was an ASA to whom he could speak. On recross-examination, Callaghan testified that, on September 3, 2002, defendant asked "how long could a person get for something like this" and what the possible penalties were. Callaghan did not recall if he told defendant that "he was looking at the death penalty." Callaghan admitted that the police report does not indicate that defendant asked any hypothetical questions or "what-if s."

         ¶ 17 ASA Kim Ward testified that, on August 26, 2002, she met with Detective Robert Carrillo and ASA Michael Hale for the purpose of obtaining an arrest warrant for Marc Norfleet based on an accountability theory. Ward traveled to Neenah, Wisconsin, on August 27, 2002, when the Norfleet arrest warrant was executed. On September 3, 2002, she traveled with Detectives Carrillo and Callaghan to Milwaukee to speak with defendant. The detectives interviewed defendant first at 10:56 a.m. for a half-hour, and then Ward met with defendant at 11:45 a.m. with Detective Carrillo. When she entered the room, she explained that she was an ASA and not his lawyer, and he indicated that he understood that. She explained that the Miranda warnings that he already been given still applied, and he said he understood. When she asked defendant if he wanted to talk to her, he said yes. During the course of their conversation, defendant received cigarettes and M&M's. The introductions finished at noon, and the interview itself lasted three hours. After Detective Carrillo confronted defendant with a newspaper article concerning Norfleet's arrest, defendant then implicated himself. When presented with options for memorializing his statement, defendant chose a videotaped statement, which began at 5:43 p.m. Prior to the start of the statement, defendant signed a consent to videotape form that was also signed by Ward and Carrillo.

         ¶ 18 On cross-examination, Ward testified that, toward the beginning of her interview, defendant was "giving a bunch of hypotheticals" and "initiating a lot of questions." Specifically, defendant asked, if someone was paid to murder someone, what would the penalty be and would he be eligible for the death penalty. Ward replied that the death penalty was one of the punishments. Ward testified that Detective Callaghan was not present ...

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