People v. Johnson

2020 IL App (3d) 160675

165 N.E.3d 536

444 Ill.Dec. 890

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

v.Todd L. JOHNSON, Defendant-Appellant.

Appeal No. 3-16-0675

Appellate Court of Illinois, Third District.

Opinion filed July 13, 2020

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Todd L. Johnson, appeals following his conviction for armed robbery. He raises the following six arguments on appeal: (1) defense counsel rendered ineffective assistance by failing to request certain DNA testing, (2) the court erred in striking defendant's motion to quash arrest, (3) the jury's guilty verdicts for both armed robbery and aggravated robbery were legally inconsistent, (4) the court erred in failing to consider defendant's request for DNA testing, (5) the court committed plain error when it conducted a portion of voir dire in chambers without defendant present, and (6) the court applied an erroneous procedure in considering defendant's claim under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We vacate defendant's conviction and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 The State charged defendant via indictment with armed robbery ( 720 ILCS 5/18-2(a)(2) (West 2014)) and aggravated robbery (id. § 18-1(b)(1)).

¶ 4 Prior to trial, defendant filed a "Motion to Quash Arrest" and, later, an "Amended Motion to Quash Arrest." In the amended motion, defendant alleged that he had been arrested without a warrant and without probable cause. As relief, defendant requested that the court quash his arrest and immediately release him from custody. Defendant also sought "[a]ny and all other relief the Court deems just and equitable under the circumstances."

¶ 5 On March 17, 2016, the State orally moved to strike defendant's motion. The State argued that there was no relief that the court could grant because "the motion to quash arrest is not something that is statutor[ily] available." Defense counsel argued that the search warrant in the case "flow[ed]" from the illegal arrest. The court granted the State's motion to strike, commenting on the motion to quash arrest: "I'm not allowed to grant it by law."

¶ 6 Jury selection in defendant's case commenced on June 27, 2016. During voir dire , prospective juror Kimberlea Tillman indicated that she had an issue that might prevent her from serving on the jury. She indicated that she would be more comfortable discussing that issue in the court's chambers than in open court. Accordingly, the court invited Tillman, defense counsel, and the prosecutor into chambers to discuss the issue.

¶ 7 In chambers, Tillman indicated that she had medical appointments scheduled for the following Thursday and Sunday. The court noted that the case was unlikely to go past Wednesday, but the State pointed out that "we never know how long a jury [is] going to deliberate." The State requested that Tillman be removed for cause. Tillman indicated that the Thursday appointment could "probably" be pushed to Friday if necessary, and could potentially even be combined with the Sunday appointment. The court denied the State's request to remove Tillman for cause. The State indicated that it would exercise a peremptory challenge with respect to Tillman.

¶ 8 In open court, the court excused Tillman. Defense counsel requested a sidebar. After the venire was removed from the courtroom, the court explained that defendant had raised a Batson challenge. The court explained for the record that both defendant and Tillman were African American. The court also noted that one African American person had already been seated on the jury, while another remained a potential juror. The court then explained the procedure to be followed:

"The party making the Batson claim must establish a prima facie case of purposeful discrimination. Evidence must be produced sufficient to permit the trial judge to draw an inference that discrimination has occurred. Then the burden would shift to the other party to articulate a race-neutral reason, and I will weigh the evidence and make a decision."

¶ 9 Defense counsel argued: "[A]s the court identified on the record, the ethnicity of both the defendant as well as the perspective [sic ] juror. I would submit that it is being used as a basis to affect the ability to empanel the jury based on race." The court enquired: "And that was it?" Defense counsel responded: "That's it."

¶ 10 The court then asked the State if it had anything to add. The State asserted that prima facie evidence required a pattern of race-based strikes. The State pointed out that there had been no such pattern. The State concluded: "[T]he defendant has not met his burden initially, and we would ask the Court to rule accordingly."

¶ 11 The court then stated: "I am finding that defense [sic ] has not established a prima facie case of purposeful discrimination." The court then opined that it was clear the State was removing Tillman because of her medical appointments, and noted that "[i]t was a tough call" to not remove her for cause.

¶ 12 At trial, Aaron Ferguson testified that he was working as a clerk at a gas station located on West Forrest Hill Avenue in Peoria on the morning of March 10, 2015. Around 8 a.m., a person entered the gas station, carrying a black gun and demanding money. Ferguson described the person as wearing a white track jacket with the hood pulled up. The person was also wearing a mask. Ferguson testified that the person struck him multiple times in the head with the gun.

¶ 13 Surveillance video from the gas station shown at trial depicts an African American male wearing a white, zippered jacket with gray panels on the sides. The man is seen wearing a white hood, which appears to be part of an under layer, rather than attached to the jacket. He appears to be wearing a black stocking cap underneath the hood and mask of sorts covering the lower half of his face. The man is wearing black gloves and is holding what appears to be a black handgun. The gun appears to have a silver or gray ejector port. He is carrying a black, satchel-type bag that he places on the counter when he enters. The man keeps the gun pointed at Ferguson through most of the incident. A struggle between the two men ensues, and Ferguson is struck multiple times with the gun. Exterior footage from after the altercation shows the man moving briskly to Forrest Hill Avenue, then turning in the direction of Wilson Drive.

¶ 14 Earl Hensley testified that he was doing a home repair job one block from the gas station on the morning in question. He was sitting in his van, waiting for his coworkers to arrive, when he noticed a white Cadillac parked on the side of the road. The Cadillac was running, but no one was inside. Hensley testified that he saw a man running from the direction of Forrest Hill Avenue turn on Wilson Drive. The man ran past Hensley's van and then entered the white Cadillac. Hensley observed that the man was wearing a hooded jacket and a stocking cap. The man drove away.

¶ 15 Later, Hensley rode with a police officer in order to determine if Hensley could make an identification. When they reached their destination, Hensley was able to identify the white Cadillac he had observed earlier. The officer pulled his vehicle into an ally, at which point a man "came out of the house and walked past the front of the squad car." Hensley identified the man as the one who had run past his van earlier. In court, Hensley identified that man as defendant.

¶ 16 Detective Craig Williams responded to the robbery call and received a description of the white Cadillac. Williams believed he was familiar with the vehicle in question and, along with Detective Richard Linthicum, was able to locate the white Cadillac parked in an alley behind a house at 1810 New York Avenue. As Williams and Linthicum surveilled the car, a man exited the house, removed "something black" from the white Cadillac, and began walking to the garage. The man then returned to the house. Williams identified defendant as the man he saw.

¶ 17 Williams testified that he informed Detective Steven Garner that he had located the white Cadillac. After Garner arrived with Hensley, defendant again left the house. When Garner tried to make contact with defendant, defendant ran, but was apprehended by Linthicum after a brief chase. Linthicum testified that while he and Williams were watching the white Cadillac, defendant retrieved a black bag from the car and then entered the garage.

¶ 18 Officer Brian Terry testified that he secured the residence at 1810 New York Avenue while a search warrant was obtained. After the court issued the search warrant, Terry participated in the search of the house. Terry talked to Angel Patterson, who directed him to the bottom drawer of her dresser, where Terry found a black handgun. Terry described the gun as belonging to Patterson. Terry then searched the garage, where he found a second "firearm." Photographs admitted of the weapon found in the garage show it to be black with exposed silver or gray portions on top where the slide is missing. The handle is wrapped in black tape and a spring is coiled loosely around the top front portion of the weapon.

¶ 19 On cross-examination, Terry confirmed that the weapon found in the garage turned out to be a broken BB gun. Terry agreed that the BB gun was "solid black." Terry agreed that the gun found in Patterson's dresser was in a box underneath some folded clothes.

¶ 20 Paul Tuttle testified that, in addition to the gun, the crime scene unit found in the house a white hooded sweatshirt and a black ski mask. Photographs show the ski mask to have a zippered portion that would cover the chin, mouth, and lower portion of the nose. Tuttle swabbed the gun for potential DNA because he knew Ferguson had been struck with it. No DNA testing was ever requested on those swabs.

¶ 21 Patterson testified that she owned the black firearm found at 1810 New York Avenue. The gun was in the same...