People v. Johnson

229 N.E.3d 438

2023 IL App (5th) 190426-B

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dimitri JOHNSON, Defendant-Appellant.

NOS. 5-19-0426, 5-22-0786 cons.

Appellate Court of Illinois, Fifth District.

Filed June 20, 2023

Appeal from the Circuit Court of Williamson County. No. 17-CF-700, Honorable Brian D. Lewis, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and Ann B. McLennan, of State Appellate Defender’s Office, of Chicago, for appellant.

Brandon Zanotti, State’s Attorney, of Marion (Patrick Delfino, Patrick D. Daly, Sharon Shanahan, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, the defendant, Dimitri Johnson, was found guilty of unlawful possession of cannabis (720 ILCS 550/4(d) (West 2016)) and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)). The defendant appealed, arguing that the trial court failed to conduct an inquiry into the defendant’s pro se allegations of ineffective assistance of trial counsel and that the appointment of posttrial counsel did not cure the trial court’s error in failing to conduct a preliminary inquiry. The defendant also contended that he was denied a fair trial because the prosecutor made several improper remarks during closing argument or, in the alternative, that trial counsel was ineffective for failing to properly preserve this claim for our review.

¶ 2 On May 12, 2022, this court remanded the defendant’s case pursuant to People v. Krankel, 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), with directions to the trial court to conduct a proper inquiry into the defendant’s pro se allegations of ineffective assistance of counsel. We did not address the defendant’s contention concerning prosecutorial misconduct during closing argument, indicating that the defendant could raise this issue in a separate appeal following the preliminary inquiry. People v. Johnson, 2022 IL App (5th) 190426-U. The defendant filed a petition for rehearing, asking this court to address the defendant’s argument regarding the prosecuting attorney’s closing argument. This court denied the petition for rehearing, and the mandate was issued on July 6, 2022. People v. Johnson, 2022 IL App (5th) 190426-U, 2022 WL 1499925.

¶ 3 On September 7, 2022, pursuant to remand, the trial court conducted a preliminary inquiry into the defendant’s pro se claims of ineffective assistance of trial counsel. After hearing from the defendant, the trial court appointed new counsel to review the defendant’s ineffective assistance claims and set the matter for a status hearing. On November 9, 2022, while represented by counsel, the defendant notified the trial court that he wanted to withdraw his claims of ineffective assistance of trial counsel and return the case to the appellate court to consider his argument as to the propriety of the State’s closing argument. After questioning the defendant about whether anyone had forced him to make the decision to withdraw the ineffective assistance claims, the trial court accepted the defendant’s decision. On December 6, 2022, the defendant filed an "Amended Notice of Appeal" and listed the appellate court number as No. 5- 19-0426 (the initial appeal). By letter dated December 7, 2022, the clerk of this court acknowledged receipt of the defendant’s notice of appeal, filed it, and docketed it under No. 5-22-0786.

¶ 4 On January 18, 2023, the defendant filed a motion for a supervisory order, asking the Illinois Supreme Court to direct this court to recall its mandate in No. 5-19-0426, and address the defendant’s claim regarding the State’s closing argument. The supreme court granted the defendant’s motion, and the mandate was recalled on January 27, 2023. People v. Johnson, No. 129311 (Ill. Jan. 27, 2023) (supervisory order).

¶ 5 Subsequently, on March 6, 2023, the defendant filed a motion to consolidate the appeals in No. 5-19-0426 and 5-22-0786. On March 16, 2023, this court granted the defendant’s motion and consolidated the appeals under No. 5-19-0426. This court also advised the parties that the defendant’s supplemental brief was due on March 22, 2023. The defendant filed his supplemental brief on March 21, 2023. Therein, the defendant expressly withdrew the first argument made in his initial brief filed on March 25, 2021, in which he claimed that the trial court failed to make an inquiry into his ineffective assistance claims under Krankel. The defendant requests that this court reverse his convictions and remand his case for a new trial, based upon the arguments previously made regarding prosecutorial misconduct during closing argument. For the reasons that follow, we affirm the defendant’s convictions.

¶ 6 I. BACKGROUND

¶ 7 The evidence at the defendant’s jury trial was as follows. On December 19, 2017, at approximately 10 a.m., Detective Jesse Thompson and Sergeant Warren Blake were conducting surveillance at the defendant’s residence located at 2600 North 8th Street in Herrin, Illinois, as part of an investigation of the defendant. The residence is located on a corner lot. Detective Thompson and Sergeant Blake were in an unmarked car that had no police lights, sirens, or recording capabilities. They were positioned south and east of the house. Detective Thompson could see the entire south and east side of the house from his car. Detective Thompson noted that there were entrances to the house on the east and the west side of the residence. Detective Thompson could not state which door the occupants normally used.

¶ 8 Additional law enforcement officers involved in the investigation were stationed at other locations. Detective Justin Dwyer was in a separate vehicle located approximately two blocks away from the residence. Police Chief Tondini was also nearby in her own vehicle. Officer Robert Kraemer, a K-9 handler, was in his K-9 unit located near the Marion, Illinois, city limits.

¶ 9 At approximately 12:30 p.m., the defendant and his girlfriend, Jessica Keeling, exited the residence. The defendant was carrying a black duffel bag. The defendant and Keeling got into a white 2005 Mercury Mountaineer registered to Keeling. The Mercury was a four-door SUV with tinted windows. Keeling entered the front, driver’s side, and the defendant entered the front, passenger side, placing the duffel bag on the floorboard by his feet. Another individual, Jaylyn Phillips, sat in the rear passenger’s side seat. A pit bull sat in the rear middle seat. Keeling’s child sat in the rear driver’s side seat.

¶ 10 The Mercury left the residence, and Detective Thompson and Sergeant Blake followed the vehicle. As the Mercury traveled through Herrin, on its way to Marion, different officers followed the Mercury in their respective vehicles at different points on the route. During this time, Detective Dwyer was informed over the radio that Detective Thompson had observed Keeling commit a traffic violation by making an abrupt right turn. Specifically, Keeling "failed to provide the mandatory 200 feet of notification for indicating [her] intention to make a turn." Because Detective Thompson did not have police lights or a siren, Officer Kraemer was asked to initiate a traffic stop of the Mercury. Officer Kraemer, who was several blocks away, went to the location of the Mercury and activated his lights to stop the vehicle. Detective Thompson and Officer Kraemer both participated in the traffic stop, which occurred approximately 20 to 30 minutes after the Mercury originally left the residence.

¶ 11 Once the Mercury was stopped, Deputy Thompson approached the passenger side of the Mercury, and Officer Kraemer approached the driver’s side. Officer Kraemer’s K-9 was present at the scene but was not walked around the Mercury. Detective Thompson requested that the occupants of the Mercury roll down their windows because he could not see inside. The occupants complied. Once the windows were rolled down, Detective Thompson immediately detected an odor of cannabis and saw a metal cannabis smoking pipe in the passenger side door pocket. Detective Dwyer also arrived, and as he approached the vehicle, he detected an odor of raw cannabis coming from the Mercury. Detective Thompson ordered the occupants to exit the Mercury. The defendant, Keeling, and Phillips exited the Mercury, along with the pit bull. Keeling’s child remained inside the car.

¶ 12 After the defendant, Keeling, and Phillips exited the Mercury, Detective Thompson removed the black duffel bag from the floorboard of the vehicle where the defendant had been seated. The duffel bag was partially unzipped, but Detective Thompson could not see inside the bag. Detective Thompson unzipped the duffel bag and, when he looked inside, saw a firearm and a bag containing suspected cannabis. The firearm was a 9-millimeter pistol with a magazine containing 16 rounds of ammunition. The suspected cannabis field-tested positive for cannabis. The bag of suspected cannabis was later determined to weigh 116 grams.

¶ 13 At the scene of the stop, Detective Dwyer interviewed the defendant. Detective Dwyer provided the defendant with Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and the defendant indicated that he understood his rights. The defendant then stated that the contents of the black duffel bag belonged to him. He indicated that he was holding the pistol for a friend and that the other occupants of the Mercury were unaware of what was in the duffel bag. The defendant had asked Keeling to run an errand for him but did not elaborate any further. The defendant claimed that prior to the traffic stop, he was planning to return the firearm to its original owner. The defendant told Detective Dwyer that the defendant had never fired the gun, but he had taken it in and out of the duffel bag several times. He admitted that his fingerprints would...