People v. Johnson

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Appellate Court Date: 2022.07.14

14:40:53 -05'00'

People v. Johnson, 2021 IL App (1st) 190567

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DAVID JOHNSON, Defendant-Appellant.

District & No. First District, First Division

No. 1-19-0567

Filed August 23, 2021

Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-17523; the

Review Hon. Domenica A. Stephenson, Judge, presiding.

Judgment Reversed and remanded.

Counsel on James E. Chadd, Douglas R. Hoff, and Jonathan Pilsner, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Noah Montague, and Justin Erb, Assistant State’s Attorneys, of

counsel), for the People.

Panel PRESIDING JUSTICE WALKER delivered the judgment of the

court, with opinion.

Justice Hyman concurred in the judgment and opinion.

Justice Coghlan dissented, with opinion.

OPINION

¶1 A jury found David Johnson guilty of first degree murder and aggravated discharge of a

firearm. Johnson contends on appeal that the court erred by admitting into evidence a recording

of a phone call Johnson made from jail and by failing to instruct the jury properly on the use

of other-crimes evidence. We find the call admissible, but we find the trial court committed

plain error by failing to instruct the jury on the limited purpose for which the court admitted

the call into evidence. Because we find the evidence closely balanced and the erroneous

instructions challenged the integrity of the judicial process, we reverse and remand for a new

trial.

¶2 I. BACKGROUND

¶3 At approximately 3:30 p.m. on May 24, 2014, police responded to a call and found Kenneth

Anthony on the ground near 69th Street and Halsted Street, dead from a gunshot wound. Police

arrested Toney Hill at the scene. Based on statements Hill made, police arrested Johnson three

months later. A grand jury indicted Johnson for the murder of Anthony, for the attempted

murder of Hill, and for aggravated discharge of a firearm.

¶4 At the jury trial, Hill testified that on May 24, 2014, he and Johnson were hanging out near

69th Street and Halsted Street with three friends Hill knew only by first name or nickname:

Deante, Dave, and Fabo. Deante started fighting with Johnson and landed on top of Johnson

before the others broke it up. According to Hill, “nobody really [won], they both fell to the

ground and we broke the fight up.” Hill walked with Johnson while others walked with Deante

in the opposite direction. After Johnson left, Hill and some friends went to a nearby store.

Anthony and Rashaun Hollins joined them outside on the street. Hill warned his friends when

he saw Johnson and Marlon Kersh walking towards them. Johnson raised a gun and fired. Hill

and his friends ran.

¶5 The prosecutor played several brief video recordings from store security cameras near the

crime scene. One recording showed the backs of two black men as they walked past the store.

Hill identified the men as Johnson and Kersh. Hill also identified two side views of the men as

they walked past a second store’s camera. He testified that a still shot extracted from the video

showed Johnson.

¶6 Kenneth Bradley testified that he was with the group at 69th Street and Halsted Street when

Deante fought with Johnson. Bradley said, “[Johnson] lost. He got beat up.” Bradley testified,

“[Johnson] mumbled something like he was coming back, you know what I mean. I don’t know

the exact words that he said, but he mumbled something.” Bradley and Deante went to

Bradley’s home, and both returned to the scene when Bradley got a phone call about the

shooting. A firearms expert testified for the prosecution that at least three different guns fired

the 19 cartridges police found on the ground at the crime scene. No witness claimed to have

seen a third gun or a third shooter at the scene.

¶7 Kimberly Hofsteadter, an investigator for the Department of Corrections, identified a

compact disc as a collection of recordings of calls Johnson made from the jail. The prosecution

asked the court to admit the phone calls into evidence as proof of Johnson’s consciousness of

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guilt. The court overruled Johnson’s objection. The court accepted the CD into evidence and

permitted the prosecution to play for the jury a recording of a call made on November 4, 2016. 1

¶8 The record does not include a transcript of the call. The voices on the recording do not

enunciate words very clearly. We accept the State’s representation in its brief that Johnson, on

the recording, said that his attorney wanted to talk to a witness, unnamed in the recording, “just

in case they do get snatched.” Johnson said, “make sure that on the 27th… send his a*** away.

For real.” The court had set the trial to begin on the 28th.

¶9 In the instruction conference, Johnson objected to a proposed instruction concerning

Johnson’s statements. The court overruled the objection and instructed the jury:

“You have before you evidence that the Defendant made a statement relating to the

offenses charged in the indictment. It is for you to determine whether the Defendant

made the statement and, if so, what weight should be given to the statement. In

determining the weight to be given to a statement, you should consider all of the

circumstances under which it was made.”

¶ 10 The jury asked the judge for a transcript of the phone call, and the court advised that no

transcript was available. Subsequently, the jury found Johnson guilty of murder and aggravated

discharge of a firearm during the murder, but not guilty of attempting to murder Hill. The court

held a hearing on Johnson’s posttrial allegations of ineffective assistance of counsel. The court

denied the motion for a new trial and sentenced Johnson to 35 years for murder, plus 20 years

for use of a firearm in the course of the murder, to be served consecutively to 6 years for

aggravated discharge of a firearm, for a total sentence of 61 years. Johnson now appeals.

¶ 11 II. ANALYSIS

¶ 12 On appeal, Johnson contends that the trial court erred by admitting the phone call into

evidence and by failing to instruct the jury about the limited use of defendant’s statements. He

also contends his attorney provided ineffective assistance by failing to offer an instruction on

other-crimes evidence.

¶ 13 We note that defense counsel failed to preserve the issues of whether the trial court erred

by admitting the phone call into evidence and failing to instruct the jury about the limited use

of the statements. Defense counsel made objections at trial, but the objections were not

preserved with a posttrial motion. To preserve an alleged trial error for appellate review, a

defendant must raise an objection both at trial and in a written posttrial motion. People v. Bush,

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The parties cite the call in the record as exhibit 73. Exhibit 73 is the compact disc that includes 81

separate files of calls Johnson made from the jail. The file identification tags do not indicate the date

or time of the calls. Thus, to find the specific call the prosecution used in this case, this court would

need to listen to all 81 files—and, according to other evidence admitted based on Hofsteadter’s

testimony, some of the calls lasted more than 30 minutes. We heard the call not as part of exhibit 73

but from a separate compact disc the prosecution prepared for the jury. That disc includes only one

phone call, plus the footage used at trial from the security cameras. The citation to exhibit 73 appears

to comply with supreme court rules for citations to the record. See Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1,

2020). We ask the supreme court to require citations to specify the file designation for any file on a CD

or similar device and to specify the minute within the file that includes the referenced material.

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214 Ill. 2d 318, 333 (2005). In People v. Herron, 215 Ill. 2d 167, 186-87 (2005), our supreme

court held that “the plain-error doctrine bypasses normal forfeiture principles and allows a

reviewing court to consider unpreserved error when either (1) the evidence is close, regardless

of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the

evidence.” Under the first prong, the defendant must prove “prejudicial error,” by showing

both that there was plain error and that “the evidence was so closely balanced that the error

alone severely threatened to tip the scales of justice against him.” Id. at 187. Under the second

prong, the defendant must prove that there was plain error and that “the error was so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process.” Id. Prejudice to the defendant is presumed because of the importance of the right

involved, “ ‘regardless of the strength of the evidence.’ ” (Emphasis in original.) Id. In both

instances, the burden of persuasion remains with the defendant.

¶ 14 A. Phone Call

¶ 15 Generally, we review the trial court’s evidentiary rulings for abuse of discretion. People v.

Reese, 2017 IL 120011, ¶ 75. Because Johnson’s motion for a new trial did not preserve his

objection to the ruling on the phone call, we review the issue for plain error. Id. ¶ 68. The first

step under either prong of the plain-error doctrine is to ascertain whether a clear or obvious

error occurred at trial. People v. Sebby, 2017 IL 119445, ¶ 49.

¶ 16 “Evidence of other crimes may *** be admitted *** as evidence to show a consciousness

of guilt.” People v. Abernathy, 402 Ill. App. 3d 736, 749 (2010). “An attempt by a defendant

to intimidate a witness, though a separate offense, is properly admissible for this purpose ***.”

People v. Woods, 122 Ill. App. 3d 176, 179 (1984).

¶ 17 Johnson contends that his unclear remarks about an unidentified person do not prove an

intent to intimidate or otherwise prevent a witness from testifying, especially because no

evidence shows that the unidentified potential witness ever learned that Johnson asked

someone to “send his a*** away. For real.”

¶ 18 To show that a defendant attempted to tamper with a witness in violation of section

1512(a)(2)(A) of Title 18 of the United States Code (18 U.S.C. § 1512(a)(2)(A) (2012)), the

prosecution must show the defendant attempted to use a threat of physical force to curtail a

witness’s participation in a trial. United States v. England, 507 F.3d 581, 588 (7th Cir. 2007).

“[T]he statute prohibits expressing an intent to inflict injury on another through physical force.

An ‘expression’ only requires that someone—not necessarily the intended victim—perceive

it.” (Emphasis omitted.) Id. at 589. “If a reasonable recipient, familiar with the context of the

communication, would interpret it as a threat, the issue should go to the jury.” (Internal

quotation marks omitted.) United States v. Davis, 854 F.3d 1276, 1293 (11th Cir. 2017).

¶ 19 We find that in the context of the discussion about witnesses at the upcoming trial, the jury

could conclude from the phone conversation that Johnson intended to make a witness

unavailable. The evidence of an effort to tamper with a witness “show[s] consciousness of guilt

of the crime at issue and is admissible in a criminal case.” People v. Spraggins, 309 Ill. App.

3d 591, 593 (1999); see Woods, 122 Ill. App. 3d at 179. We find no error, and we hold that the

trial court did not abuse its discretion by admitting the phone call into evidence.

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¶ 20 B. Instruction

¶ 21 Over Johnson’s objection, the court instructed the jurors they could consider the phone call

“a statement relating to the offenses charged” and that “[i]t is for [the jury] to determine

whether the Defendant made the statement and, if so, what weight should be given to the

statement.” The State agrees with Johnson that the court erred by giving this instruction, in part

because the utterances in the phone call, like the mumbled remark that may have indicated

Johnson intended to return, do not qualify as statements. Johnson made no claims about matters

of fact. See People v. James, 2017 IL App (1st) 143391, ¶ 119. The parties agree that the court

should instead have given the other-crimes instruction, Illinois Pattern Jury Instructions,

Criminal, No. 3.14 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 3.14). Johnson agrees with

the State that Johnson’s attorney failed to preserve the objection to the erroneous instruction

and the failure to give the correct instruction. We review the issue only for plain error or as

proof of ineffective assistance of counsel. People v. Johnson, 2013 IL App (2d) 110535, ¶ 76.

¶ 22 IPI Criminal 4th No. 3.14, modified to apply to the facts here, directs the jurors:

“Evidence has been received that the defendant has been involved in an offense

other than those charged in the indictment. This evidence has been received on the issue

of the defendant’s consciousness of guilt and may be considered by you only for that

limited purpose.

It is for you to determine whether the defendant was involved in that offense and,

if so, what weight should be given to this evidence on the issue of consciousness of

guilt.”

¶ 23 Unlike the instruction the court gave, IPI Criminal 4th No. 3.14 emphasizes the limitation

on the use of the evidence of another offense, here, only to show consciousness of guilt. When

courts admit evidence of other crimes, jurors might infer “that, because a person committed

other crimes or bad conduct, he is more likely to have committed the crime charged.” People

v. Brown, 319 Ill. App. 3d 89, 99 (2001). The law distrusts this inference, and the possibility

of the improper inference remains a major concern even when the evidence of other offenses

bears on issues like modus operandi, intent, identity, motive, or consciousness of guilt. Id.

“Accordingly, instructing the jury on the limited purpose for which such evidence can be

considered is imperative.” Id. “Moreover, the preferred practice is for the trial court to instruct

the jury, not only at the close of the case, but also when other-crimes evidence is admitted, of

the limited purpose for which it may consider the other-crimes evidence.” Johnson, 2013 IL

App (2d) 110535, ¶ 74.

¶ 24 The Johnson court used plain error analysis in similar circumstances. The court stated:

“Defendant concedes that he did not object below to the trial court’s alleged errors

in instructing the jury and that, therefore, the issue is forfeited. [Citation.] However,

under Illinois Supreme Court Rule 451(c) (eff. July 1, 2006), where a jury instruction

suffers from a substantial defect, claims of error are not subject to forfeiture on appeal.

An erroneous instruction constitutes a substantial defect, or plain error, when the

instruction created a serious risk that the defendant was incorrectly convicted because

the jury did not understand the applicable law, so as to threaten the fundamental fairness

of the defendant’s trial. [Citation.] To prevail, the defendant need not prove that the

error in the instruction actually misled the jury. [Citation.] ‘When there is error in a

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close case, we choose to err on the side of fairness, so as not to convict an innocent

person.’ Herron, 215 Ill. 2d at 193. Plain error arises in two circumstances: (1) when

the flawed instruction was provided in a case where the evidence was closely balanced

or (2) when the flaw in the instruction is *** so serious that it denied the defendant a

substantial right and undermined the integrity of the judicial process.” Id. ¶ 76.

¶ 25 The jury’s specific request for a transcript of the phone call indicates the importance to the

jury of the phone call. See People v. Shaw, 186 Ill. 2d 301, 324 (1998); People v. Autman, 58

Ill. 2d 171, 176-77 (1974). The instruction error here failed to limit the jurors’ consideration

of the evidence of witness tampering. If the evidence is closely balanced, the instruction error

here constitutes plain error. Johnson, 2013 IL App (2d) 110535, ¶ 76.

¶ 26 The prosecution relied principally on Hill’s testimony. Bradley corroborated the testimony

about a fight between Johnson and Deante and added something like a motive as Bradley said

Deante “beat up” Johnson. Bradley did not see Johnson again after Johnson left the fight. The

video recordings provide limited corroboration for Hill’s testimony, as the recordings show

that two men came from the direction described by Hill. The recordings show only blurry

images, insufficient to identify facial characteristics of the two men who walked past the

cameras. The trier of fact had no sufficient basis for identifying, on its own, the persons seen

in the recordings.

¶ 27 The prosecution presented no evidence tying any gun or ballistic evidence to Johnson.

Johnson did not confess, and no physical evidence, apart from the equivocal images recorded

by security cameras, showed Johnson at the crime scene. Johnson had no motive to injure

Anthony, who had not even witnessed the fight between Johnson and Deante. We find the

evidence closely balanced (see People v. Gonzalez, 2018 IL App (1st) 152242, ¶ 96), and

therefore we find plain error under the first prong of plain-error review.

¶ 28 Mistaken jury instructions may constitute plain error under the second prong of plain-error

review if the mistake “creates a serious risk that the jurors incorrectly convicted the defendant

because they did not understand the applicable law, so as to severely threaten the fairness of

the trial.” People v. Sargent, 239 Ill. 2d 166, 191 (2010). The court in Johnson, found that an

instructional mistake like the mistake committed here constituted plain error under the second

prong of plain-error review. In Johnson, 2013 IL App (2d) 110535, ¶ 1, prosecutors charged

the defendant with domestic battery for hitting Hausler in April 2010. At the trial, Hausler

testified that the defendant also struck her in December 2009 and March 2010. Id. ¶ 10. She

said she did not report those incidents to police because the defendant “told Hausler that, if she

called the police, there would be a shootout and he would kill himself, her, and the police.” Id.

¶ 20. The trial court instructed the jurors that they could “consider the evidence of defendant’s

‘conduct other than those charged in the indictment,’ for purposes of ‘intent, motive, design,

knowledge, absence of mistake, and propensity.’ ” Id. ¶ 35.

¶ 29 On the appeal from the conviction for domestic violence, the appellate court held that the

trial court properly admitted evidence of the prior threats to show the defendant’s intent and

lack of mistake. However, the court also held, “the jury should not have been instructed that it

could consider for propensity *** the threats defendant allegedly made to Hausler.” Id. ¶ 75.

Although the defendant failed to object to the mistaken instruction, the appellate court held

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that the trial court committed “a grave error that prejudiced defendant’s right to a fair trial and

undermined the integrity of the judicial process.” Id. ¶ 79.

¶ 30 We find the instructional error here similarly permitted the jurors to consider the threats as

evidence of a propensity to commit crimes, and therefore the error “denied the defendant a

substantial right and undermined the integrity of the judicial process.” Id. ¶ 76. We find plain

error under the second prong of plain-error review. We hold that the plain error the trial court

committed by failing to correctly instruct the jury on the limited use of evidence for the crime

of witness tampering is so misleading and prejudicial that it requires reversal and remand for

a new trial.

¶ 31 III. CONCLUSION

¶ 32 The erroneous instruction concerning a defendant’s statements permitted the jury to infer

that Johnson committed murder from evidence that he committed another offense of attempting

to prevent a witness from testifying. The court’s instructions did not limit the jury’s use of the

other-crimes evidence to prove Johnson was conscious of his guilt. Because of the closely

balanced evidence and because the error undermined the integrity of the judicial process, we

reverse the convictions and remand for a new trial.

¶ 33 Reversed and remanded.

¶ 34 JUSTICE COGHLAN, dissenting:

¶ 35 Although the trial court erred by giving IPI Criminal 4th No. 3.06-3.07, pertaining to

defendant David Johnson’s “statement related to the offenses charged in the indictment,” and

further erred by not giving IPI Criminal 4th No. 3.14, regarding the limited purpose for which

other-crimes evidence can be used, Johnson forfeited his claim of error by failing to raise it in

his posttrial motion. Moreover, Johnson cannot meet either prong of the plain-error test since

the evidence against him was not closely balanced and the error did not undermine the

fundamental fairness of his trial. Under these circumstances, I would decline to apply the plain-

error exception to the forfeiture doctrine in this case.

¶ 36 Toney Hill’s testimony that Johnson was the shooter was uncontradicted at trial, and his

identification bears multiple indicia of reliability. Johnson was not a stranger but a friend whom

Hill knew by the nickname “Little Legs.” See People v. Barnes, 364 Ill. App. 3d 888, 895

(2006) (“The persuasiveness of identification testimony is strengthened by the witness’s prior

acquaintance with the accused.”); People v. Petermon, 2014 IL App (1st) 113536, ¶ 32 (despite

brevity of shooting incident, witness’s identification was bolstered where he recognized the

defendant); People v. Sullivan, 366 Ill. App. 3d 770, 783 (2006) (same). When Hill exited the

corner shop and saw Johnson and Marlon Kersh walking up Halsted Street toward him, he had

sufficient time to cross the street and warn his other friends. Only later, as Johnson drew closer,

did Hill observe that he was armed. There is no evidence that Hill’s initial identification of

Johnson, which occurred during daylight hours, was in any way impaired. Mere hours after the

incident, Hill spoke to police and viewed a photo array from which he positively identified

Johnson as one of the two shooters.

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¶ 37 In addition, Hill’s identification of Johnson is corroborated by Kenneth Bradley, who

witnessed the fight between Johnson and Deante and heard Johnson threatening to “com[e]

back.” Hill’s testimony was also corroborated by the surveillance video of the murder, which

shows the events unfolded exactly as Hill testified at trial. Moreover, Johnson’s consciousness

of guilt is evidenced by his jailhouse phone call in which he explained that his trial was

definitely taking place on the 28th, expressed concern that an unknown witness would be

“snatched,” and then instructed the person he called to “make sure on the 27th you send his ass

away for real.”

¶ 38 To determine whether the evidence at trial is closely balanced, “a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it

within the context of the case.” People v. Sebby, 2017 IL 119445, ¶ 53. A “commonsense

assessment” of the evidence adduced at this trial establishes that it was not closely balanced.

¶ 39 As to the erroneous jury instruction given in this case, it is well established that “[a] fair

trial *** is different from a perfect trial. [Citation.] It is the fairness of the trial, not the

perfection of the trial, that the two prongs of plain error aim to protect.” (Internal quotation

marks omitted.) People v. Ely, 2018 IL App (4th) 150906, ¶ 19. Plain error is “a narrow and

limited exception to the general waiver rule” (internal quotation marks omitted) (People v.

Herron, 215 Ill. 2d 167, 177 (2005)), and in particular, the second prong requires “a systemic

error which serves to erode the integrity of the judicial process and undermine the fairness of

the defendant’s trial.” (Internal quotation marks omitted.) People v. Thompson, 238 Ill. 2d 598,

613-14 (2010).

¶ 40 The instructional error at issue in this case does not rise to that level. In context, it was

clear that the phone call was not being offered as evidence of Johnson’s general propensity to

commit crimes but as evidence of his consciousness of guilt in trying to “send *** away” a

potential witness the day before his trial began.

¶ 41 People v. Johnson, 2013 IL App (2d) 110535, upon which the majority relies, is readily

distinguishable. There, defendant was charged with domestic battery and unlawful possession

of a weapon by a felon. We held that defense counsel was ineffective for failing to object to

joinder of these offenses since joinder was not warranted under the facts and there was no

strategic reason for counsel’s acquiescence. Id. ¶¶ 53, 55. This error was “compounded and

amplified” by the trial court’s erroneous instruction that the jury could consider defendant’s

prior bad acts (multiple domestic violence incidents and threats made to the victim) for

propensity. Id. ¶¶ 69, 75. The totality of these circumstances constituted second-prong plain

error. Id. ¶ 76.

¶ 42 Here, by contrast, the jury instruction did not “compound[ ] and amplif[y]” any prior error,

insofar as the phone call was properly introduced to show consciousness of guilt, and the

instruction did not explicitly invite the jury to consider the phone call as propensity evidence.

Thus, the error in this case does not rise to the level of the error in Johnson.

¶ 43 Accordingly, I respectfully dissent and would affirm Johnson’s murder conviction.

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