People v. Johnson

394 N.E.2d 919, 76 Ill. App. 3d 147, 31 Ill. Dec. 717, 1979 Ill. App. LEXIS 3208
Appellate Court of Illinois·Decided September 14, 1979·No. 78-427·Published·Cited by 10 cases

Opinion

Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a jury trial the defendant, Richard T. Johnson, was convicted of armed robbery and sentenced to a term of not less than 21 years nor more than 63 years imprisonment. The defendant had been indicted on charges of attempt murder and aggravated battery as well as on the armed robbery charge. However, the State advised the court at the commencement of trial that it was “proceeding only” on the armed robbery charge. The defendant contends in his appeal that, nevertheless, the State was permitted to introduce evidence of the attempt murder and aggravated battery and that he was thereby deprived of a fair trial when prejudicial testimony and prejudicial argument as to a shooting following the robbery was elicited without objection by his allegedly incompetent defense counsel.

The direct evidence against the defendant is primarily found in the testimony of an accomplice, Carl Loberg. Loberg testified that on the date of the crime, December 27, 1977, during a party at the defendant’s home, he and defendant had a private conversation concerning the commission of a robbery; that they borrowed the car of Fritzie McPeake, who was at the party, at about 10 p.m. to pick up a shotgun at Jim O’Neal’s house. They told Mrs. O’Neal that they wanted the gun for skeet shooting. They then went to Don Christoffel’s house, where only Loberg went in and picked up a pellet gun. They left there at about 10:45. He and defendant then drove to Weiland’s Tavern and parked one-half to three-quarters of a block away. Before entering, Loberg, who was wearing a hooded coat, put on a knit cap to cover his face while defendant pulled a nylon stocking over his head. Loberg said that he had possession of the pellet pistol while defendant possessed the shotgun. He further related that defendant, holding the shotgun ready at his hip, yelled “freeze” while Loberg walked to the bar and took *300 which the bartender, Leon Wilkerson, handed to him from the register. He related that defendant was asking people to empty out their pockets but that he told defendant to “forget it” and ran out, the defendant behind him.

Loberg’s further testimony, although without objection, reaches the area which defendant claims is error. Loberg said that as he was getting into the car he heard a shot, turned and saw defendant standing outside the closed tavern door, with his gun at his shoulder; and that when defendant got to the car he told Loberg that “he thought he’d shot somebody.”

The witness further testified that they then went to Christoffel’s home where they left the shotgun; that he and defendant divided the money and that they picked up the shotgun the next day and brought it to O’Neal’s house. (O’Neal later testified that he examined the gun and noticed that it had been fired.)

Leon Wilkerson testified for the State and corroborated the circumstances in the tavern as related by Loberg. He placed the time when the robbers entered as between 10:45 and 11 o’clock. He further testified without objection that when the men left, the door was shut and that about two seconds later a shotgun blast came through the door, striking the bartender’s cousin, Gilbert Cornell, Jr. The following questions and answers appear:

“Q What did your cousin do then after being stricken?
A He fell down onto the floor. He was sitting on the stool, bar stool.
Q Have you seen your cousin since this?
A Yes, I have.
Q What is his condition?
A He can’t walk. He’s paralyzed. And he’s — he’s in Chicago now.”

The prosecutor also exhibited a photo to the witness showing blood stains on the floor where the patron fell and questioned with regard to that. Also, the witness testified that the paralysis was from the waist down.

Another bartender, Lonnie Wilkerson testified, substantially corroborating Leon Wilkerson’s testimony. He placed the time of the robbery at 10:45 or 10:50. This witness was also questioned:

“Q Now, tell me what, if anything happened immediately after he left, the taller subject?
A After they left, not more than a couple seconds after, there was a shotgun blast and it struck my cousin in the back.
Q And what happened to your cousin, did he fall?
A Yes, he was — he fell quite hard.
Q Have you seen him lately?
A Not in the last couple weeks, three weeks.
Q Can you describe for us his condition at your last seeing him? A Paralyzed from the waist down.”

Neither Leon nor Lonnie Wilkerson nor any other witness identified the defendant at trial. Lonnie Wilkerson testified that he had identified a tan jacket owned by the defendant as one worn by Johnson that night. However, during grand jury testimony the police officer who investigated the shooting said that Lonnie had told him, “It looked similar to the jacket # # # ”

Karen Christoffel testified that when the defendant and Loberg returned to her home, defendant was crying and said that he thought he had shot someone. However, during her grand jury examination she said that “Rick Loberg” was crying. She also said that she did not hear all of the conversation that evening; to another question “Did you hear any of it” the record shows she shook her head, indicating that she did not. She corroborated Loberg’s story that the next day Loberg told her that he had gone with Johnson to hold up a tavern and that Johnson had fired a shot and hit somebody.

The defendant testified that he was never alone with Loberg during the evening of December 27, never discussed a robbery, and had no discussion about going with Loberg. He also denied any knowledge of the robbery and testified that, at the time, he was drinking in the Happy Comer’s Bar. The bartender at that bar testified that defendant came in to the place at approximately 10:30 or 10:45 p.m. and stayed approximately 1/2 horns, leaving at approximately 12 p.m. On rebuttal a police officer testified that the witness had told him she could not pinpoint the day the defendant was in the bar.

Jeanne Saintey, a friend of defendant’s, testified that she was at the Johnson party and that defendant and Loberg were not alone during the evening. She also placed the time of leaving the Johnson house at about 9:30 rather than 10 p.m. as Loberg had testified.

In closing argument the prosecutor on several occasions discussed the shotgun blast and the injuries to Cornell, stating “[a]nd the testimony from the stand was that he is paralyzed to this day.” Also, in closing argument the prosecutor’s last sentence was:

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People v. Johnson, 394 N.E.2d 919, 76 Ill. App. 3d 147, 31 Ill. Dec. 717, 1979 Ill. App. LEXIS 3208 (Ill. Ct. App. 1979).

394 N.E.2d 919 (People v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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