People v. Johnson

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 180633-U

Order filed
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-18-0633
v. ) Circuit No. 16-CF-260
)
HORACE J. JOHNSON, ) Honorable
) Terence M. Patton,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Lytton and Schmidt concurred in the judgment.
____________________________________________________________________________

ORDER

¶1 Held: (1) The defendant did not receive ineffective assistance counsel.
¶2 (2) Two of the defendant’s convictions for unlawful delivery of a controlled
substance violate the one-act, one-crime rule.

¶3 The defendant, Horace J. Johnson, appeals from his four unlawful delivery of a controlled

substance convictions. The defendant argues: (1) he received ineffective assistance of trial and

posttrial counsel, and (2) two of his convictions must be vacated under the one-act, one-crime

rule.
¶4 I. BACKGROUND

¶5 The State charged the defendant with two counts of unlawful delivery of a controlled

substance within 1000 feet of a school (720 ILCS 570/407(b)(2) (West 2016)), two counts of

unlawful delivery of a controlled substance (id. § 401(d)(i)), one count of unlawful delivery of a

controlled substance within 1000 feet of a church (id. § 407(b)(2)), and one count of unlawful

delivery of a controlled substance within 1000 feet of public housing (id.). Relevant to this

appeal, count I alleged that on May 31, 2016, the defendant delivered less than 1 gram of a

substance containing cocaine within 1000 feet of a school, a Class 1 felony. Count II alleged that

on the same date, the defendant delivered less than 1 gram of a substance containing cocaine

within 1000 feet of a church, a Class 1 felony. Count IV alleged that on June 3, 2016, the

defendant delivered less than 1 gram of a substance containing cocaine within 1000 feet of a

school, a Class 1 felony. Count V alleged that on the same date, the defendant delivered less than

1 gram of a substance containing cocaine within 1000 feet of public housing, a Class 1 felony.

The court appointed counsel to represent the defendant.

¶6 Defense counsel filed a motion to suppress evidence. The motion alleged that the

Kewanee Police Departments’ applications to the Henry County State’s Attorney for an

electronic overhear on May 31, and June 2, 2016, were false or made with reckless disregard for

the truth. Specifically, the police did not verify whether the text messages referenced in the

applications that set up the controlled buys were sent to the defendant or the defendant’s phone,

citing Franks v. Delaware, 438 U.S. 154 (1978).

¶7 Attached as an exhibit to the defendant’s motion was a copy of the May 31, 2016,

overhear application. Officer Eric Peed requested, via e-mail, a 24-hour overhear exemption to

record a confidential informant, identified at trial as Justin Potter, purchase half a gram of crack

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 cocaine from the defendant. Peed had not used Potter as an informant before. Potter had known

the defendant for five months and purchased crack cocaine from the defendant on two prior

occasions. Potter was also present when the defendant sold crack cocaine on six other occasions.

Peed observed Potter send text messages to the defendant. Peed and Officer Stephen Kijanowski

believed that the language used in the messages was consistent with setting up a narcotics

transaction.

¶8 In a responding e-mail, Assistant State’s Attorney Cathy Runty asked if the phone

number Potter used matched the defendant’s phone number. Peed replied, the phone number the

police had for the defendant did not match but noted it was not uncommon for individuals to

change their cell phone number frequently, especially with prepaid phones. Runty authorized the

overhear to run from May 31 to June 1, 2016.

¶9 Peed sent a second request, via e-mail, for a 24-hour overhear exemption to purchase 1.5

grams of crack cocaine from the defendant. The written application was largely the same as the

May 31 application but included the additional details that Potter had participated in a controlled

buy that obtained approximately .45 grams of crack cocaine from the defendant. Runty provided

the authorization for the overhear to run from June 2 to June 3, 2016.

¶ 10 At the hearing on the motion to suppress, the defendant failed to appear. The court issued

a warrant for his arrest and proceeded without the defendant.

¶ 11 Trial counsel argued the e-mail chain that preceded both overhear authorizations did not

identify the phone number that Potter sent text messages to, nor did it establish that that phone

number belonged to the defendant. Counsel contended that submitting this information in the

overhear exemption applications exhibited a reckless disregard for the truth. Counsel also argued

that the statute clearly required a showing of reasonable cause.

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¶ 12 The court noted that the case law reviewing judicially supervised eavesdrop exemptions

used the “reasonable cause” standard and “ ‘reasonable cause’ means ‘probable cause.’ ” The

court reasoned that the legislature intended a similar interpretation of “reasonable cause” in the

State’s-attorney-authorized eavesdrop exemption. The court also noted that any restrictions

placed on one-party eavesdropping were statutory and not constitutional. The court found the

State did not submit false information or make a statement with reckless disregard for the truth.

The court found the information in the eavesdrop applications provided reasonable cause to issue

the overhear exemption and denied the motion to suppress.

¶ 13 The cause proceeded to a jury trial in absentia.

¶ 14 Peed testified that on May 31, 2016, Potter arranged to purchase crack cocaine from the

defendant via text message. Peed gave Potter $60 and set up a recording device. Peed and two

other officers drove Potter to a location near the controlled purchase site. Before the transaction

occurred, Peed drove past Potter’s location and saw Potter with the defendant. Peed reported that

Kijanowski observed the transaction. Potter purchased approximately .45 grams of crack cocaine

from the defendant. According to Peed, the controlled buy occurred 605 feet from a church and

1000 feet from a school.

¶ 15 Peed testified that before the May 31 controlled buy, he was “familiar” with the

defendant. Peed described the defendant as a “thin African-American male” with medium-length

hair. Peed identified the defendant from a photograph.

¶ 16 On cross-examination, trial counsel asked Peed what steps he took before setting up the

controlled buy. Peed said that he conducted a criminal history check of the defendant.

¶ 17 During Peed’s testimony, the State introduced a recording of the May 31, 2016,

controlled buy. The video shows the police officers setting up a camera on Potter’s person. Potter

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 rides with the officers to a location where he exits the vehicle and walks for a few minutes before

he receives a phone call. Potter can be heard telling the individual on the phone that he thought

he was near the individual’s location. Potter also says that he is wearing black clothes. Potter

approaches a house with a porch and starts talking to another individual. Approximately 15

minutes into the video, Potter says “good” and “thank you.” Potter then walks until he meets the

officers in a pickup truck. Inside the truck, Potter says “he gave me two nice fifties. *** Pretty

decent for $60 bucks. That ain’t too bad from [the defendant].”

¶ 18 Kewanee Police Sergeant Justin Reed testified that, on May 31, 2016, he assisted Peed

with a controlled buy. Reed was familiar with the defendant, as he was present when the

defendant was arrested in the past. Reed identified the defendant from a photograph. During the

May 31, controlled purchase, Reed drove Peed and Potter to the location of the controlled buy.

After Potter exited the vehicle, Reed saw Potter and the defendant meet. At the time, the

defendant was wearing a white shirt. After the controlled buy was complete, Reed drove Potter

to the Kewanee Police Department.

¶ 19 Kijanowski testified that he conducted surveillance for the May 31, 2016, controlled buy.

Kijanowski said “I’ve known [the defendant] through my police job for almost my whole

career.” Kijanowski identified the defendant from a photograph. Kijanowski saw the defendant

leave a residence and meet with Potter. Potter and the defendant then had a hand-to-hand

transaction. At the time, the defendant was wearing shorts and a white shirt.

¶ 20 On cross-examination, Kijanowski said that before the controlled buy, Potter had been

arrested on retail theft charges. Potter agreed to help the police even though the officers told

Potter that they could not promise him anything in return.

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¶ 21 At the beginning of the second day of trial, trial counsel made a motion in limine to

prohibit the State’s witnesses from mentioning the defendant’s criminal history. Counsel noted

that the previous day, the State’s questions prompted responses indicating that the defendant had

prior arrests. The State did not object, and the court granted the motion noting that the State has

to elicit testimony that the officers knew what the defendant looked like, and that testimony

might permit the jury to infer that the police knew the defendant from a prior interaction.

¶ 22 Forensic scientist Michelle Dierker testified that she tested two samples sent to her by the

police. Both samples tested positive for the presence of cocaine.

¶ 23 Potter testified that he was currently incarcerated for aggravated domestic battery, and he

also had prior convictions for retail theft and theft. In 2016, Potter cooperated with the Kewanee

Police Department with the hope that his assistance would lead to a reduced sentence in his retail

theft case. Potter told the police that he could purchase crack cocaine from the defendant. Potter

identified the defendant from a photograph.

¶ 24 On May 31, 2016, Potter met with officers to set up the first controlled buy. An officer

drove Potter to the location for the controlled buy. Potter met the defendant, handed him $100

and received one gram of crack cocaine. Potter departed and met with the officer that had

dropped him off. The State played the recording of the buy for the jury.

¶ 25 Potter reviewed the recording and said that when he says “Good,” the transaction is

complete. Potter is also heard telling an officer in the car that picked him up that “That ain’t bad

for $60.” Potter explained that he misspoke when he initially testified that he paid $100.

¶ 26 On cross-examination, Potter explained that the State initially offered to reduce his retail

theft charge from a felony to a misdemeanor, but the State withdrew this offer when Potter was

charged with theft. At the time of the buy, Potter did not use crack cocaine and had not

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 purchased it before. However, Potter had been around people who had purchased crack cocaine

from the defendant.

¶ 27 Following Potter’s testimony, the Sate recalled Kijanowski, Peed, and Reed, to testify

regarding the June 3, 2016, controlled buy. Kijanowski testified that on June 3, 2016, Potter

arranged to purchase crack cocaine from the defendant via text message. An officer gave Potter

$150 of recorded bills. Reed and Kijanowski drove Potter to the prearranged location and

dropped him off. Kijanowski lost sight of Potter before the exchange occurred. When Potter

returned, he gave Kijanowski a small plastic bag that contained the crack cocaine.

¶ 28 Peed testified that on June 3, 2016, he searched Potter and gave him the marked bills for

the controlled buy. Peed then conducted surveillance on the buy location. Peed saw Potter

approach the location, but he was unable to see the transaction.

¶ 29 On cross-examination, Peed said he believed that Potter told him that he had purchased

crack cocaine from the defendant in the past.

¶ 30 Reed testified that on June 3, 2016, he drove Kijanowski and Potter to the controlled buy

location. He dropped Potter off, and he and Kijanowski conducted surveillance. Reed did not see

the controlled buy occur.

¶ 31 Kewanee Police Officer Eric Hamilton testified that he provided surveillance for the June

3, 2016, controlled buy. Hamilton knew the defendant from prior encounters. Before the buy,

Hamilton saw the defendant sitting on the front porch of a residence. Potter approached and sat

next to the defendant. Hamilton then observed a hand-to-hand transaction. No one else

approached or spoke with the defendant and Potter while they were on the porch. After the

transaction, Potter got up and walked away. The defendant followed Potter until Hamilton could

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 no longer see both individuals. Hamilton said the buy location was 651 feet from a school and 50

feet from public housing.

¶ 32 The State also recalled Potter to testify. Potter said that on June 3, 2016, he worked with

the police to set up a second controlled buy from the defendant. Potter arranged the buy location

via text message with the defendant, and officers set up a recording device. Potter purchased

crack cocaine from the defendant on the front porch of a house.

¶ 33 During Potter’s testimony, the State played the surveillance recording of the June 3,

2016, controlled buy. Potter identified the defendant in the recording. Potter also indicated the

point in the recording where the transaction occurred.

¶ 34 The video shows the officers setting up the recording device. The officers transport Potter

to a location near where the controlled buy was to occur. Potter exits the vehicle and walks for

several minutes before meeting an individual wearing a white shirt on the front porch of a house.

Initially, the individual is speaking on a telephone and indicates his name is “Johnson.” After the

individual gets off the phone, he and Potter converse for a few minutes before Potter leaves the

porch and meets with the officers.

¶ 35 The jury found the defendant guilty of counts I, II, IV, and V.

¶ 36 Counsel filed a motion for new trial that alleged, in part, that the court erred in denying

the motion to suppress. Counsel also alleged his own ineffectiveness for arguing a fourth

amendment analysis that did not apply to statutory overhear exemptions and for failing to object

to the police officers’ trial testimony about their prior contact with the defendant.

¶ 37 The court allowed counsel to withdraw and appointed new posttrial counsel to represent

the defendant. Posttrial counsel filed an amended motion for new trial that alleged only that trial

counsel was ineffective for failing to argue that the overhear authorization was improperly

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 conducted. Initially, the court granted the defendant’s motion. However, after the State filed a

motion to reconsider, the court reversed its ruling.

¶ 38 The court sentenced the defendant, in absentia, 1 to four concurrent terms of 12 years’

imprisonment. The defendant appeals.

¶ 39 II. ANALYSIS

¶ 40 A. Ineffective Assistance of Counsel

¶ 41 The defendant argues he received ineffective assistance of trial and posttrial counsel. To

prevail on a claim of ineffective assistance of counsel, “the defendant must demonstrate that

counsel’s performance was objectively unreasonable under prevailing professional norms and

that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’ ” People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010)

(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). We review de novo claims of

ineffective assistance of counsel. People v. Coleman, 2015 IL App (4th) 131045, ¶ 66.

¶ 42 1. Motion to Suppress

¶ 43 The defendant first argues that trial counsel was ineffective for failing to argue there was

no reasonable cause to support the overhear exemption. We need not determine whether trial

counsel’s performance was deficient for failing to make this argument because the defendant

cannot demonstrate prejudice. See People v. Givens, 237 Ill. 2d 311, 331 (2010) (where a

defendant has not established prejudice, a reviewing court need not consider whether counsel’s

performance was deficient). In the context of a motion to suppress, the defendant must be able to

1
The Department of Corrections (DOC) website indicates that the defendant was taken into
custody in June 2019. See People v. Sanchez, 404 Ill. App. 3d 15, 17 (2010) (appellate court may take
judicial notice of the public records of the DOC).
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 show that but for counsel’s deficient performance, the court would have granted his motion to

suppress. See People v. Brickhouse, 2018 IL App (3d) 150807, ¶ 48.

¶ 44 Generally, eavesdropping is a felony offense. 720 ILCS 5/14-2(a)(2) (West 2016). The

restriction on the use of an eavesdropping device is purely statutory and does not implicate the

fourth amendment to the United States Constitution (U.S. Const., amend. IV). People v. Calgaro,

348 Ill. App. 3d 297, 301 (2004). Section 14-2(a) of the Criminal Code of 2012 (Code) permits a

police officer to use an overhear device,

“[w]ith prior request to and written or verbal approval of the State’s Attorney of

the county in which the conversation is anticipated to occur ***. The State’s

Attorney may grant this approval only after determining that reasonable cause

exists to believe that inculpatory conversations concerning a qualified offense will

occur with a specified individual or individuals within a designated period of

time.” 720 ILCS 5/14-3(q)(1) (West 2016).

“Reasonable cause,” as used in the Code, has been held to be synonymous with “probable

cause.” People v. White, 209 Ill. App. 3d 844, 876 (1991). Reasonable cause “is established

when the totality of facts and circumstances existing at the time are sufficient to warrant the

belief by a man of reasonable conscience that an offense has been, is being or will be

committed.” Id. Unlike applications for search warrants, courts are not to be “unduly technical”

in determining whether reasonable cause exists. Id. at 877. “Only a probability of criminal

activity need be shown.” Id.

¶ 45 Here, the defendant cannot show prejudice as the record establishes that both overhear

applications provided reasonable cause to believe that inculpatory conversations concerning a

narcotics purchase would occur on May 31, and June 6, 2016. The application for the May 31,

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 2016, overhear reported that Potter knew the defendant and had purchased crack cocaine from

the defendant twice within the preceding five months. Potter was also present when the

defendant sold crack cocaine to other individuals approximately six times. Peed also observed

Potter send text messages to the defendant to set up the May 31, 2016, controlled buy. The June

2, 2016, overhear request included the same details and the statement that Potter had participated

in a controlled buy that netted approximately .45 grams of crack cocaine from the defendant. The

totality of these facts would readily permit a person of reasonable conscience to believe that an

unlawful delivery was set to occur. While neither application included details to establish

Potter’s reliability as a first-time informant, a showing of reliability was not required to establish

reasonable cause. People v. Sylvester, 86 Ill. App. 3d 186, 195-96 (1980).

¶ 46 Additionally, even if counsel could establish that the overhear exemption was

unsupported by reasonable cause, our supreme court’s recent decision in People v. Davis, 2021

IL 126435, ¶¶ 19-20, establishes that only the audio recording would be illegal and subject to

suppression. The testimony from Reed, Kijanowski, Peed, Hamilton, and Potter regarding the

two controlled buys would remain admissible as the fruit of the poisonous tree doctrine does not

apply to illegal overhears. Id. ¶ 41. This consistent evidence was more than sufficient to establish

the defendant’s guilt without the recording. Therefore, the defendant cannot demonstrate that he

was prejudiced by trial counsel’s failure to argue that the overhear exemptions were unsupported

by reasonable cause.

¶ 47 2. Prior Bad Acts Evidence

¶ 48 The defendant argues that trial counsel provided ineffective assistance when counsel

failed to object to evidence of the defendant’s prior bad acts and elicited prior bad acts testimony

from Peed. Generally, evidence of a defendant’s prior bad acts is inadmissible because it has

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 “ ‘too much’ probative value” and might cause the jury to convict a defendant because he is a

bad person deserving of punishment. People v. Donoho, 204 Ill. 2d 159, 170 (2003) (quoting

People v. Manning, 182 Ill. 2d 193, 213 (1998)); Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

¶ 49 This argument also fails because the defendant cannot demonstrate that he suffered

prejudice. Setting aside the prior bad acts evidence, the trial evidence readily established that the

defendant twice delivered less than 1 gram of crack cocaine to Potter while within 1000 feet of a

school, church, and public housing. See 720 ILCS 570/407(b)(2), 401(d)(i) (West 2016). Several

officers and Potter testified that Potter set up a controlled buy with the defendant on May 31,

2016. Officers drove Potter to the prearranged location, where Potter exchanged prerecorded

bills that the officers had provided for approximately half a gram of cocaine. Kijanowski testified

that he saw this hand-to-hand transaction occur. On June 2, 2016, officers conducted a second

controlled buy that Potter arranged. Potter again met with the defendant and exchanged

prerecorded bills for crack cocaine. Hamilton testified that he observed this hand-to-hand

transaction. Both controlled buys were recorded, and the recordings largely confirmed the

witnesses’ testimony. Testimony from Peed and Hamilton established that the two controlled

buys occurred, respectively, within 1000 feet of a school and church, and within 1000 feet of a

school and public housing. This evidence was so conclusive that the exclusion of the generic

references to the defendant’s prior interactions with the police would not have changed the

outcome of the trial.

¶ 50 3. Cumulative Prejudice

¶ 51 The defendant argues counsel’s deficient performance cumulatively prejudiced him

because the overhear evidence and prior bad acts evidence bolstered Potter’s impeached

testimony. However, the combined impact of these alleged deficiencies caused the defendant

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 minimal prejudice. As previously discussed, the trial evidence establishing the defendant’s guilt

consisted of more than Potter’s testimony. Officers conducting surveillance observed both

transactions occur, and, after the buys, other officers received the crack cocaine that Potter

purchased from the defendant. The officers’ testimony further established the distance of the buy

locations from the schools, church, and public housing. This evidence would not have been

excluded even if counsel had prevailed on the motion to suppress (supra ¶ 45) and it readily

established the defendant’s guilt such that the exclusion of the prior bad acts evidence was

unlikely to change the outcome of the trial.

¶ 52 4. Posttrial Counsel

¶ 53 The defendant argues that posttrial counsel provided ineffective assistance in failing to

raise the above issues in the motion for a new trial. As we have found that trial counsel was not

ineffective, posttrial counsel is not ineffective for failing to raise these meritless claims. See

People v. Childress, 191 Ill. 2d 168, 175 (2000).

¶ 54 B. One-Act, One-Crime

¶ 55 The defendant argues two of his convictions violate the one-act, one-crime rule because

they derive from the same physical act. The defendant acknowledges that he forfeited review of

this issue but contends that it is subject to reversal under the second prong of the plain error

doctrine. The State concedes that two of the defendant’s convictions must be reversed under the

one-act, one-crime rule because counts I and II derive from a single narcotics delivery on May

31, 2016, and counts IV and V derive from a single narcotics delivery on June 3, 2016.

¶ 56 As acknowledged by the defendant, neither trial nor posttrial counsel preserved this one-

act, one-crime issue for appellate review by raising it in a posttrial motion. People v. Enoch, 122

Ill. 2d 176, 186 (1988). However, a one-act, one-crime violation is a reversible plain error

13
 because the error affects the defendant’s substantial rights. People v. Harvey, 211 Ill. 2d 368, 389

(2004).

¶ 57 A defendant may not be convicted of multiple offenses that are based on precisely the

same physical act. People v. King, 66 Ill. 2d 551, 566 (1977). Where multiple convictions derive

from a single physical act, a court should impose a sentence on the more serious offense and

vacate the less serious offense. People v. Artis, 232 Ill. 2d 156, 170 (2009).

¶ 58 Here, the defendant’s four convictions derive from two physical acts—the May 31, 2016,

narcotics delivery and the June 3, 2016, narcotics delivery. Accordingly, two of the defendant’s

convictions violate the one-act, one-crime, rule, and this otherwise forfeited error is subject to

reversal under the second prong of the plain error doctrine. See Harvey, 211 Ill. 2d at 389. As we

are unable to discern which two of the defendant’s four convictions are less serious, all four

convictions are Class 1 felonies, we remand the cause with directions for the circuit court to

vacate the two less serious offenses. See 720 ILCS 570/407(b)(2) (West 2016).

¶ 59 III. CONCLUSION

¶ 60 The judgment of the circuit court of Henry County is affirmed in part and remanded with

directions.

¶ 61 Affirmed in part and remanded with directions

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