*1 (No. 105887.
THE PEOPLE OF THE STATE ILLINOIS, OF Appel
lee, v. JAMES BANNISTER, Appellant.
Opinion Rehearing October denied filed 2009. January *2 Cunningham, Edwin A. Burnette and Abishi Jr., C. (Lester Chicago Public Defenders, of Finkle and Erica counsel), Reddick, ap- Assistant Defenders, Public pellant. Madigan, Attorney *3 Springfield,
Lisa General, of and (James Attorney, Chicago Anita Alvarez, State’s E. Fitzgerald, Spellberg Alan J. and John E. Nowak, As- Attorneys, counsel), People. sistant State’s for the judg- CHIEF JUSTICE FITZGERALD delivered the opinion. court, ment of the with Thomas, Justices Garman and Karmeier concurred judgment opinion. in and opinion, joined by
Justice dissented, Freeman with Justices Kilbride and Burke.
OPINION Defendant James Bannister was convicted of two degree counts of first murder and sentenced to natural shooting. in a gang-related for his role imprisonment life on direct ap- were affirmed and sentence His convictions (1994). The Young, Ill. 3d 627 App. peal. alleging postconviction petition, then filed a defendant the State innocence key because witness actual granted The trial court testimony. trial had recanted his convictions, and vacated his petition, trial, defendant a new trial. After bench ordered a murder counts of first convicted of two again was On appeal, life imprisonment. and sentenced alia, he was denied due inter that, asserted the State had trial because of a fair deprived and process so-called containing a a plea agreement entered into ac- one of the defendant’s consistency provision the defendant’s court affirmed The appellate complices. Ill. 3d 19. sentences. 378 convictions and affirm. follow, we also the reasons that For
BACKGROUND Dan men shot at Wil- several November On Stateway in the Gardens building a liams from around from the away ran Williams Chicago. housing complex the Il- campus a on the building and toward gunfire (IIT). was shot Technology Williams Institute linois Thomas building. revolving door of killed at the was shot building, Kaufman, inside security guard a several of bullet. The defendant stray a and killed Johnson, Michael members, including gang his fellow with murder. charged were defen- evidence direct only
At Wilson, 12-year-old of Deanda was the dant night on the testified that gang. of a rival Wilson member men six other he saw the defendant shooting of the housing Stateway Gardens in the building around play near a Wilson, Williams According complex. called out to when someone building in front lot *4 and his defendant exchange, a verbal Following him. gang Williams, fellow members shot at and Williams stumbled toward the IIT stated that the building. Wilson shooting continued for about 15 seconds before the defendant and his accomplices fled. The defendant presented defense, an alibi calling four witnesses who testified that he was at home at the time of the shooting. A jury found the guilty of two counts of first murder, and he was sentenced to life imprison- ment. The defendant’s convictions and sentence were af- firmed on direct appeal. Young, 263 Ill. 3d 627.
In April 1993, the defendant filed a se pro postconvic- tion petition, and more years than two later in July defense counsel filed a supplemental petition, alleging actual innocence based on Wilson’s recantation of his trial testimony impheating defendant. The trial court dismissed the petition without an evidentiary hearing, but the appellate court reversed and remanded. The appellate court held that the trial court should have conducted an evidentiary hearing regarding Wilson’s remand, recantation. On the circuit court conducted an evidentiary hearing that, and found with respect to the defendant, Wilson’s trial testimony was not accurate and truthful and that there was no corroboration for his implication of the defendant. The court concluded that the outcome of the defendant’s trial likely would have been different without perjured Wilson’s testimony. The trial court granted the defendant’s request for postcon- relief, viction vacated his convictions and sentences, and ordered a new trial.
The defendant waived his right trial, to a jury the cause proceeded to a bench trial. The State’s wit- key ness was the defendant’s accomplice, and a codefendant at his first Michael Johnson, Johnson. who had been tried separately, had also been convicted of both murders and sentenced to natural life imprisonment. Johnson agreed to testify against the defendant pursuant *5 The agreement with the State.
to a stated: testify Michael Johnson will truth-
“IT IS AGREED that murders fully regarding degree in matters the 1st all Kaufman, and Thomas which occurred on Dan Williams 9, 1989, 10:00 at or near approximately p.m. November Federal, County, Illinois. Such Chicago, 3517-19 S. Cook testimony shall be consistent with Michael truthful December and post-arrest [sic] Johnson’s statements 29, 1989, and Chicago Police officers Cook December County Attorneys and his statements Assistant State’s County Attorney personnel during State’s made to Cook May 24, April 29 and pre-plea agreement interviews on his truthfully testify will is that Michael Johnson agreed It ***. in the case of v. James Bannister testimony in Michael Johnson’s truthful exchange for matters, it that Michael Johnson shall agreed the above is petitions in his appeals post-conviction all withdraw *** case, any appeals, and all future and forever waive It pleas. or motions to vacate is post-conviction petitions will move to vacate the agreed parties further *** case and that in Michael Johnson’s existing sentence on the Honorable James placed the case will be back shall agreed It that Michael Johnson Schreier’s trial call. is Dan involving murder counts guilty degree to the 1st plead Williams, pros the 1st and the State will nolle Kaufman. The State will involving murder counts Thomas resentence Michael Judge Schreier recommend Department of Correc- years in the Illinois Johnson to 60 (‘I.D.O.C.’). Judge on agreement contingent is tions This entirety. in their acceptance of its terms Schreier’s place shall Michael agreed that the State It is further his trial Program Living Unit until in the Johnson Witness After completed. is his open court be remanded to the Michael Johnson shall completed, to I.D.O.C. that shall recommend I.D.O.C. The State *** co-defendants and segregated from Michael Johnson be medium-security in a be housed that Michael Johnson or, in the Pontiac Correctional possible, if that’s not prison, Center.” limitations, also contained a agreement page
which “null and void” if agreement stated was truthfully Johnson “to under oath in testify open failed court” or his “dur- representations ing agree- his statements and his post-arrest pre-plea interviews, predi- ment upon which was Johnson, cated” found two attorney, were false. assistant Attorneys signed agreement. State’s
At trial, the State called as a Johnson witness asked him first stated agreement. about that his understanding exchange for his *6 and the one of guilty plea, State would “nolle” the counts, years, murder a of recommend sentence and request he be transferred from Tamms Cor- Center, rectional “super-max” prison. Illinois’ Johnson understood that his sentence remained within the trial within judge’s discretion and that his transfer remained the discretion of the Department of Corrections. then testified about According the murders.
to Johnson, in he had a been member the Gangster Disciples gang approximately street for years. 9, 1989, On the of November evening he was walk- ing the through Gardens Stateway housing complex with Young James and Michael the Meyers they when met defendant, Smith, Carter, Eric Thomas and Young Kevin at an apartment in the All building seven men complex. went to upstairs the of Kevin niece apartment Young’s and talked for an hour about the recent sexual assault Young’s men girlfriend. The believed that Young’s girlfriend had been assaulted members Del by Vikings they street gang, plan and hatched to Del shoot Vikings revenge.
The men then themselves, armed left the apartment, and proceeded to There, another building complex. they encountered a known “Rick James,” man as who greeted the Young nickname. Kevin shot to
at “Rick The men returned the apartment James.” niece, for Kevin where talked and smoked Young’s they again apart- an hour. The men left the approximately complex. to building ment and another proceeded There, Nicholson, they encountered Daniel whom they building they began, men went to the where robbed. The he went Johnson lived. Johnson testified that and where a ski for himself upstairs apartment get to his mask Young some caps “wave” Kevin Carter. Johnson, men walked another According yet building, near the building complex. Standing in the here, After mother***.” say, Johnson heard Smith “Come Meyers the front hearing gunshots, he walked with he while the running where saw building, Williams Carter, Smith, Young, Young and James Kevin he guns their at him. Johnson testified firing were play lot, jumped as he shot crossed Williams building. According to fence, toward the IIT and ran Johnson, eventually shooting stopped, when the apartment building to an in another seven men went left the area. police waited until the consistent substantially Johnson’s Decem- police that he on gave statement acknowl- 29, 1989, day after his arrest. Johnson ber in the initially any he denied involvement edged that *7 that, trial, he moved prior to his had shootings and statement, he inculpatory asserting his suppress by rights not of his constitutional had been advised for motion was the basis this police. Johnson stated that before rights he had advised untrue because been cross- rigorously Defense counsel making his statement. plea as to terms of the specific examined agree- entering for into the and his motivation agreement ment. again he in his
As had first witnesses defense and called several an alibi presented
9 night he home on the who testified that was at guilty trial found the defendant on shootings. The court murder and sentenced him to both counts of first imprisonment. life the issue of the appealed, raising
The defendant validity constitutional the State’s The his conviction and appellate Johnson. court affirmed sentence, due holding that the defendant was not denied Ill. 3d the defendant’s process. App. 378 19. We allowed 315(a). 210 2d petition appeal. leave Ill. R.
ANALYSIS The appeal plea central issue is whether the agreement between the State and Johnson violated right to due Our review is de novo. process. Burns, 551, (2004); v. 209 2d v. People People Ill. 560 (2002). 460, 199 Ill. 2d Lindsey, the defendant Initially, argues standing that he has challenge validity plea agreement. of this that, defendant asserts plea agreements guided while are by contract law these principles, principles give must way agreement when an raises constitutional concerns. According defendant, others il- conspire “When legally develop evidence due process and fundamental fairness that a defendant must require *** standing have that conduct.” challenge process concerns,
Absent due
of a
validity
agreement
generally governed by
contract
law. People
Henderson,
90,
(2004);
Evans,
v.
211 Ill. 2d
v.
(1996).
law,
174 Ill. 2d
Under contract
there is a
that the
strong presumption
par-
benefits the
it,
ties to
and not a third
and this
party,
presumption
may
only by
manifesting
be overcome
evidence
an af-
firmative intent
to benefit the third
parties
party.
See Estate Willis v.
Construction
Corp.,
Kiferbaum
(2005),
Ill.
3d
Bates &
citing
Rogers
Hansen,
Corp.
Construction
&
(1985). Here, the defendant was not an intended benefi- of the ciary between State and Therefore, Johnson. he lacks that standing argue agreement was invalid.
The defendant the State’s actions here in compares procuring by Johnson’s to efforts the State to involuntary According secure confessions. to the defen- dant, however, his differs from that of a argument a fourth claim vicariously raising defendant amendment target” because he the “direct of the State’s conduct. defendant, however, The neither his explains reasoning nor cites of it. any authority support Any aggrieved the introduction of evidence an by produced by seizure a third could make the same illegal against party argument People but would fail. See v. argument, (1997) (“A Kidd, 92, 178 Ill. 2d 135 fourth amendment those urged successfully only by violation can be whose itself, rights actually by have been violated search aggrieved solely by not those who have been evidence”). damaging negoti- introduction The State Indeed, testimony. ated with Johnson secure fact bargains accomplice testimony. State often The at the would be used defendant’s Further, argument trial is unremarkable. authority the State lacked the to enter into a unavailing. with Johnson is Under the revest- doctrine, trial court litigants may ment revest a after the personal subject jurisdiction, 30-day matter they actively partici- final if period following judgment, the merits that are inconsistent with pate proceedings Minniti, App. See v. 373 Ill. prior judgment. People of the 237, Ill. 2d (2007), Kaeding, 3d v. citing People (1983); Ill. 3d Henry, 240-41 (2001). that even if for the defendant larger problem agreement, standing validity
he had to contest validity admissibility. is, its would not affect its That court, even if the trial in the case *9 validity had somehow found a reason to reach the plea agreement agreement Johnson’s that was still —an executory yet accepted by and had to be the trial court— remedy it, and invalidated would not have been to suppress testimony. remedy his The would have been to agreement. appellate correctly void the As the court plea agreement observed, a between a witness and the State that cannot be enforced has no effect on the admis- sibility testimony App. of that witness’ at trial. Ill. 378 citing App. 35, 3d at 318 1082, Ill. 3d People Caban, v. (2001). 1087-89 If the had been deemed invalid, Johnson would have remained convicted of two murders and Tamms, remained incarcerated and his testimony against would have remained in the case defendant. though standing
However, even the defendant lacks challenge validity agreement, he does not ability challenge testimony. lack the Johnson’s A may always question defendant a witness on matters af- fecting credibility issue, and The then, bias. becomes plea agreement whether the itself so undermined John- credibility son’s that we must conclude the defendant was denied a fair trial. challenge
noteWe that the defendant does not sufficiency against of the evidence him. The defendant argues simply that, as a matter of law, constitutional plea agreement by which the State secures an ac- complice’s testimony is invalid when it contains a so- consistency provision. According called plea agreements place strong a witness under a compulsion testify particular in fashion should be condemned this insists, court. The defendant “The require [a] State cannot co-defendant to tell the truth then tell the co-defendant what is the truth.” The had simply concedes that if the had he would have testify truthfully, Johnson to required away to do so. But the State took opportunity the truth was his post- when it told him that opportunity 1989, and his court-reported arrest statements statements prosecutors v. upon relies primarily
The defendant
Medina,
(1974),
Rptr.
3d
Cal.
Cal.
(1993).
Fisher,
State
Ariz.
However,
categori
the rule in
which
case.
in a subsequent
was clarified
cal
Jenkins,
1044,
In 900, 1010, 997 P.2d
22 Cal. 4th
377,
(2000),
1119-20,
2d
California
Rptr.
95 Cal.
the testi
the contention
rejected
Court
Supreme
agreement
is
plea
to a
mony
accomplice pursuant
of an
plea agree
unreliable.
that a
That court held
inherently
truthfully
testify fully and
accomplice
an
requiring
ment
believes
valid,
prosecutor
if it is clear
“even
truth,
is the
police
statement
witness’s
result
testimony may
from that statement
deviation
Jenkins, 22 Cal.
4th at
offer.”
plea
the withdrawal
460. Such an
1120,
2d at
1010,
Rptr.
P.2d at
95 Cal.
accomplice’s
not dictate the
does
Jenkins, 22 Cal.
due process.
that would offend
a manner
1120,
2d at
Rptr.
at
95 Cal.
4th at
997 P.2d
Fisher,
the defendant was
with first
charged
murder. At
the defendant’s wife invoked her
fifth amendment
rights
refused to
but a let
testify,
ter memorializing
an agreement
between her and the
State was admitted
letter,
into evidence. The
signed by
the defendant’s wife and her attorney,
stated that she
agreed that her
trial would
“vary
not
substantially”
from prior statements
she had made to
police. The defendant was convicted
of first degree
murder and sentenced to death. He then filed a motion
for a new trial based on newly discovered evidence—
namely, his wife’s confession to the murder. The trial
court granted
motion,
and the State appealed. The
Arizona Supreme
affirmed,
Court
holding
plea
agreements with consistency provisions, but without any
overriding requirements
truthfulness,
“undermine the
reliability and fairness of the trial and plea bargaining
process and taint
the truth-seeking function of the courts
by placing undue pressure on witnesses to stick with one
version of the facts regardless
of their
truthfulness.”
Fisher,
But in a case, subsequent the Arizona Supreme Court explained:
“The critical issue is not whether the witness will feel an obligation testify to the same facts earlier told the prosecutors police, or but rather whether prosecution has conditioned the agreement upon testimony, such regardless of the truth of the earlier statement. [Citation.] All accomplice plea agreements put some pressure on a cooperating witness. consistency [Citation.] But a agree ment strong has the potential procure untruthful *11 testimony if agreement is not upon also conditioned the requirement of testimony. truthful It [Citation.] is this tainting of the ‘truth-seeking function of the courts’ that consistency makes provisions invalid. [Citation.]” v. State Rivera, 188, (2005). 191, 83, 210 Ariz. 109 P.3d 86 The Rivera court noted that safeguards, such as full disclosure of the plea agreement to the finder of fact and a
cross-examination,
protect
adequately
See State
Rivera,
The
court here relied
appellate
(Tenn. 1998),
Jones, and
The
Court of
Supreme
if it
admissible
even
testimony
generally
complice
Bolden,
at
979 S.W.2d
agreement.
results
from a plea
noted,
that other courts have
though,
court
admitting such
to be followed before
required safeguards
the full disclosure of
include
testimony;
safeguards
these
for
opportunity
and the
any plea agreement
the terms of
Bolden,
at 590. The
979 S.W.2d
full cross-examination.
have added the
that other courts
court
further noted
may not be conditioned
testimony
that such
requirement
The court stated
following
script.
a
on the witness
“
has bargained
only
prosecution
‘it is
where
result,
that an ac
or a
testimony,
specific
specific
false or
preclu
...
require
is so tainted as
complice’s
”
Bur
State v.
Bolden,
quoting
sion.’
979 S.W.2d
(1986).
258, 266
chett, 224 Neb.
444, 456, 399 N.W.2d
in which the
their facts cases
on
distinguished
The court
testify
witness
only required
produce
or that
fashion
particular
the truthfulness
result,
regard
without
specific
*12
15
Bolden
Bolden,
The
of Appeals initially
Court
stated
“in
cases,
most
a promise of
or
immunity
other favorable
only
treatment
is relevant
credibility
issue
witness,
not
im
admissibility or the
testimony.” Jones,
405,
munized
236 Mich.
at
App.
600
N.W.2d at 656. The court acknowledged that
state
several
courts have held that
the prosecution may not bargain
an accomplice
in exchange for testimony conform
ing to a
without
script,
regard
Jones,
for the truth.
236
405-06,
Mich. App. at
did rights prosecu not violate where the grants tion its on the expressly immunity conditioned provide the witnesses truthful promises would Jones, Mich. at testimony. N.W.2d 657. The Jones court concluded that when a prosecutor bargain makes the decision to with a witness on the basis *13 the by during negotia of made witness representations State, tions the is for the prosecutor with it reasonable to the assertion that such rely representa on witness’ tions truthful to that the witness’ trial expect are and the would consistent with testimony essentially be original upon promise information which the State’s Jones, 407, 600 App. was induced. 236 Mich. at leniency N.W.2d at 657. We find Bolden and Jones persuasive. disposition is no ‘[t]he
“There question the charges by agreement prosecutor criminal between accused, “plea bargain called loosely and the sometimes component essential of the administration ing,” is an ” Henderson, Santo 102, 211 Ill. justice.’ quoting 2d at York, 427, 260, bello v. New 257, U.S. 30 L. Ed. 2d 404 (1971). 432, 495, may bargain S. Ct. 498 The State 92 case, may of a or it dispose with a defendant directly testi bargain accomplice a defendant’s secure with of a effort to mony dispose an its is testimony by nature Though accomplice case. weaknesses, it is admis generally with serious fraught it an offer of by sible even where was procured See agreement. a plea lenient sentence and secured (2002). is, 411, 2d 429 That Tenney, v. 205 Ill. i.e., testimony testimony, trial specific “bargaining consistent with information essentially is during negotiations true represented factually be bargain State, withholding the benefits testified, is not inconsistent has until after witness Sheriff, Hum due process.” for truth or with the search 197, Acuna, 664, 669, P.2d boldt County 107 Nev. (1991); Clark, 850, see also State v. Wash. (1987) im- (“[j]ust 743 P.2d because an on munity agreement premise requested rests State, will be of some benefit the agree- necessarily ment is not rendered coer- impermissibly cive”). It is reasonable for the State to condition its largesse toward an on the accomplice accomplice testify- ing consistently truth, with what the State believes is as long agreement’s as the overriding requirement accomplice testify also truthfully.
Here, repeatedly explicitly obligated Johnson to testify truthfully.
also provided that Johnson testify would in a manner that was consistent with his prior police statements prosecutors, but if any of the representations contained in false, statements were found to be the agreement would be rendered null and void. Truthful- ness was the overriding requirement agreement. The agreement neither compelled Johnson to disregard oath, his witness’ nor bound him to a particular script or result. Accordingly, Johnson’s was not tainted *14 by the plea agreement, and the testimony admission of his did not violate the defendant’s rights process due a fair trial.
Our legal system tests a witness’ credibility through cross-examination and leaves the determination of that credibility finder of fact. People Evans, See v. 209 194, Ill. 2d (2004), 213 quoting States, v. United Hoffa 293, 311, U.S. 374, 387, 408, 17 L. Ed. 2d 87 S. Ct. (1966). instances, any
“In most potential for prejudice to a defendant’s case allowing will be avoided the witness to testify subject to searching cross-examination intended to fully any develop evidence of part bias or motive on the of witness, improper or part conduct on the of the State. Every fact might way in some influence the truthful- credibility ness and testimony of the witness’s be should no [finder fact]. [Citation.] laid before the This ensures ability unnecessary imposed will be on the State’s barriers testimony, bargain for truthful and at the same time fact] ensures the will be able to determine what [finder evidence, any, give weight, light if of all the testimony.” McGonigle, witness’s State v. 401 N.W.2d (Iowa 1987). State, Johnson, fully on direct examination him, and plea agreement disclosed the terms of the with to cross-examine opportunity the defendant had an he agreement Johnson about benefits would court heard the details of Johnson’s receive. The trial and found him to be credible nonethe- plea fact, the trial court’s less. As the finder it was alleged to resolve inconsistencies responsibility evidence, as to weigh conflicts as well of the See credibility and determine witnesses. (2006). Sutherland, 223 Ill. 2d
CONCLUSION stated, we affirm the For the reasons that we have appellate of the court. judgment
Affirmed. dissenting: JUSTICE FREEMAN constitutional issues significant This appeal presents courts, Illinois the limits defining of first impression ac- an power of the State’s to secure contingent into a by entering cused him to accomplice requires an which already-convicted certain “consistently” with “truthfully,” but also testify serious mat- view that these my statements. It careful consideration analysis and require in-depth ters agreements that such arguments fair trial due and a right process an accused’s violate truth-seeking interfere with they unduly because *15 in our courts. and, therefore, prohibited be should process stamp approval their colleagues place now my Because upon contingent plea use of agreements State’s addressing any without containing consistency clauses advanced in the context of arguments by defendant of this I cannot unique appeal, join majority facts opinion. was in 1991 of counts of
Defendant convicted two first degree imprisonment. murder sentenced life trial, sole against the State’s witness During member, defendant a rival who 12-year-old gang was testified he saw defendant shoot the victims. however, recanted his testi- Subsequently, this witness and, defendant mony, during postconviction proceedings, granted was a new trial. It this second which took place subject appeal. in which is the of this only The State’s direct against evidence defendant this new trial came Michael through testimony of Although Johnson. Johnson had been a dur- codefendant ing prosecution, the 1991 he tried separately, present testimony State did not from Johnson during defendant those proceedings. Like Johnson had aby jury been convicted of two counts of first murder and sentenced to natural life imprisonment with no possibility parole. Johnson was Center, incarcerated Tamms “super” Correctional maximum-security facility, when the State approached him in January years 2004—13 after the convicted jury him of offer bargain double murder —with the of a plea exchange testimony against defendant’s second trial. For January six months —from to June 2004—the State the terms negotiated agreement with Johnson.
Ultimately, parties struck deal in Johnson which would “testify truthfully” against agree- defendant. The ment required truthful shall be “[s]uch added) consistent (emphasis with” two of the several postarrest statements made to law enforcement *16 subsequent to his arrest for the murders
officials
as with
interviews
preplea agreement
as well
Johnson’s
State,
May
the
which occurred
and
April
with
of his
“withdraw all
plea,
agreed
ap-
As
Johnson
part
case,”
and
in his
and
peals
post-conviction
petitions
waive
future
any
post-conviction
“forever
and all
appeals,
pleas.”
exchange,
or
to vacate
the
petitions
motions
to “move to vacate
agreed
existing
[Johnson’s]
State
sentence,”
and
that Johnson’s
“case will be
promised
agree-
The
court’s]
back on the
trial call.”
placed
[circuit
plead
called for Johnson to then
to one count
guilty
ment
murder,
State would
degree
provided
first
the
of
pros”
“nolle
degree
first
murder
count of
second
previously
Finally,
which Johnson had
been convicted.
be resen-
agreed
the State
to recommend that Johnson
incarceration,
he be moved
years’
tenced to
and that
medium-security
the Tamms
to a lower-level
facility
from
to serve the remainder of
sentence.
facility
during
testified
thereafter
convicted
only
trial.
It
defendant was
second
was
after
and the
agreement
between Johnson
State
plea
reflects
executed. The circuit court’s docket sheet
was
27, 2004,
counts
July
that on
Johnson’s “conviction
agreement
parties.”
of the
by
murder
vacated
[was]
Thus,
cooperation with
State
as a result of Johnson’s
plea agreement,
in the
provisions
and adherence to
for first
murder entered
jury
degree
his two
convictions
erased,
only
pled
earlier
he
one
years
guilty
were
murder,
years’
to 60
of first
was resentenced
count
served,
already
with credit
time
imprisonment
lower-security
to a
facility.
Tamms
was transferred from
questions
propriety
Defendant
in this court
State,
as-
Johnson and
between
and a
right
process
that his
to due
serting
constitutional
by employed
the method
trial were violated
fair
which
then
testimony,
Johnson’s
securing
State
in his
used
defendant to obtain
conviction
addition,
also advances the
second trial. In
generally
argument
court
broader
should
consistency
contingency
prohibit the
clauses in
use
agreements,
plea
as
such clauses interfere
due
placing
process
truth,
search
and the
for the
witness
compulsion testify
strong
particular
under a
to a
set of
virtually
testimony.
“scripting”
facts
witnesses’
majority
standing
holds that defendant lacks
validity
contest the
entered into
argues
between the State and Johnson. Defendant
*17
requirements
standing
he has met the
for
in that he has
injury
legally cognizable interest,
demonstrated an
to a
injury
that the
is
the
traceable to
State’s actions and
substantially likely
Village
that it is
be
See
to
redressed.
County
Sangamon,
Chatham
v.
216 Ill. 2d
of
419-20
(2005). Specifically,
defendant asserts that the
testimony against
procured
him,
State’s use of Johnson’s
through
plea agreement containing
consistency
a
a
legally cognizable
clause,
violated
interest
due
process
majority,
and a fair
however,
trial. The
never
squarely addresses
the
defendant’s contention in
context
specific
my colleagues
Instead,
facts
this case.
“[ajbsent
generally
process concerns,
state that
due
the
validity
agreement
plea
generally governed by
of a
They
contract law.”
Although majority general *18 jury guilty. a verdict of to overturn authority absolute the offer of through that this occurs explains
Defendant which of determines the State bargain wherein a “true,” a witness are made statements various these statements adhere to witness to compels that then the requirements under throughout that addition, argues In clause. consistency vacate Johnson’s to jurisdiction lacked circuit court earlier. convictions, years entered 13 jury two “defen- references briefly majority opinion, In its authority to lacked the the State that argument dant’s Johnson,” im- into with enter mediately “unavailing.” 2d 10. The finds it 236 Ill. at majority disposes serious contentions in of defendant’s “[ujnder holding sentence, one revestment may personal litigants doctrine, trial revest a court period subject jurisdiction, 30-day after the matter they actively following judgment, participate if final proceedings that are inconsistent with the merits of the prior judgment.” Ill. 2d at 10. (2003), People Flowers, v. 2d 291 this court Ill.
clearly jurisdiction “[t]he stated that of trial courts to modify judgments indefinite,” reconsider and their not normally jurisdiction and held trial court loses to modify judgement days entry vacate or after its judgment, timely postjudgment unless a motion is Flowers, filed. 2d Ill. at 303. We further held that subject jurisdiction subject “[l]ack of matter is not through [citation] waiver and cannot be cured consent of parties [citation].” the Although Flowers, 208 Ill. 2d upon directly
we were not called address the vitality continued Flowers, the revestment doctrine in unequivocal language opinion in that has caused our appellate question court to whether the revestment People doctrine Price, remains valid. See v. 364 Ill. (2006) (although leaving open ques- 3d 546-47 tion of whether the revestment doctrine survived Flow- ers, the court noted that Flowers was “consistent with party may objection the maxim that a not an waive subject jurisdiction”). matter
Although majority opinion summarily in its holds upon parties that the revestment doctrine bestowed authority wipe away and the circuit court the John- years son’s double murder convictions 13 after their entry plead guilty and allow him to to one count of my colleagues I sentence, murder and a reduced note appellate cite Minniti, court decision in *19 (2007), 373 Ill. 3d 55 for direct of this hold- App. support Minniti ing. uncertainty decision itself the discusses appellate within the court the continued vital- regarding to our ity subsequent of the revestment doctrine decision Minniti, Ultimately, 3d Flowers. in 373 Ill. at 65-66. of after the and the revest- examining history purposes doctrine, Minniti concludes that “the ment revestment Minniti, remains intact” after Flowers. Ill. doctrine App. 3d at 66. upon appel- is the relies the majority
It curious its court’s decision Minniti support late in for direct of ap- of in the application the revestment doctrine instant Minniti stated, impact the peal. struggled interpret As of of our decision in Flowers vitality the upon continued a doctrine, concluded, based upon the revestment and law, case doctrine of revest- review of our could be reconciled with Flowers. It is my position ment its own deci- duty it is the court reconcile sions, directly should bench speak we indirectly reasoning doing so, and not bar as to at- citation to an court decision which through appellate The majority’s the intent of this court. to divine tempts doc- the revestment regarding one-sentence statement in trine, appellate its to this court decision citation holding, nothing its to reconcile does support to the revest- contrary Flowers —which language not the fundamen- ment doctrine —and also does answer matter us by defendant before tal raised question and the circuit court authority as State I ago. Finally, a verdict entered over decade nullify jury concerning the question if were no note that even there doctrine, a ques- there remains revestment vitality facts applies unique it under tion as to whether majority case cited this case. Minniti —the ap- doctrine was holding of its revestment support —the to hear with jurisdiction to revest the circuit court plied motion which was postjudgment untimely by eight days. *20 Minniti, Here, Ill. 3d at the majority revests the jurisdiction circuit court with after years entry Johnson’s conviction. I question whether the purposes and principles underlying may the revestment doctrine be stretched that far.
After determining that defendant does not have standing challenge plea agreement between Johnson, State and the majority further holds that even he did have standing, defendant’s arguments would if fail. Defendant contends that his right process to due and a fair trial includes the right to be tried on competent evidence. Although majority acknowledges that “ac- complice testimony by its nature is fraught with serious (236 weaknesses” 16), Ill. 2d at it dismisses defendant’s assertion that the testimony by offered Johnson against him is especially suspect because Johnson’s plea agree- ment with the State required that his testimony be consistent with certain of his prior statements, state- ments had, which Johnson fact, previously contra- dicted under oath. Specifically, after his arrest Johnson had initially provided statements to law enforce- ment officers in which he denied any involvement crime. Subsequently, however, Johnson provided an inculpatory statement which also implicated defendant. Before his again changed his position filed a motion to suppress his inculpatory statement, and testified under oath that he did not understand concept of Miranda rights, was not given Miranda rights, did not provide the information that was contained in his confession, and did not remember making confession.
Defendant underscores that pursuant terms of the plea agreement Johnson, between the State and Johnson’s testimony was required be consistent only with those statements wherein he implicated defendant, despite the fact that Johnson himself testified under oath
at his that he did not make those suppression hearing that, same statements. Defendant further contends that Johnson’s although required “truthful,” it is difficult to ascertain under testimony be the “truth” Accord- presented exactly the facts what is. the State has made the determination ing to the contents of certain equates the “truth” However, statements made Johnson. contends, itself in thereby improperly places the State making of the trier of fact in that determina- position crystal the State has no tion. Defendant maintains only ball to know what the “truth” is—it knows what statements are consistent. argues
Defendant further the effect extremely Johnson under an place *21 in a testify against strong compulsion in the State. please manner an effort particular he a trial granted Defendant asserts that once new key the State’s witness at the by due to the recantation desperate first the State was to obtain Johnson’s only against was the direct evidence testimony, which so, defendant trial. In order to do defendant at second Johnson an agree- maintains the State had to offer In exchange, ment he would find difficult to refuse. way a that would ensure testify Johnson had to such convicted, or Johnson would that defendant would be life in facing prison. According himself return defendant, a witness is with such a situ- presented when ation, will, necessity, by witness the State. Defendant by conform to what is dictated delivering to Johnson concludes this amounts is inconsistent with testimony which “scripted” integrity impugns for the truth and search justice system. address defendant’s squarely fails to majority case law Rather, examine my colleagues
contentions.
from
jurisdictions
other
support
draw
from those
decisions for its conclusion that
between the State and Johnson did not violate defen-
dant’s rights because even though
agreed
his testimony would be consistent with certain made,
statements
he had
it also required that
testimony be “truthful.” A closer examination of the
cases relied upon by
majority, however,
undermines
support for its holding, as these
upheld
decisions
plea
agreements containing consistency clauses in situations
factually distinguishable from the matter at bar.
(Tenn.
Bolden,
State v.
1998),
codefendant was offered plea agreement whereby in exchange for his testimony against he would receive a There, reduced sentence. the agreement provided:
“If [the codefendant truthfully witness] testifies as to [defendant’s] involvement in the [the murder of victim] and as he stated in his [law statement enforcement] on p.m. 6:05 and as to threats made to him 3/21/94 [defendant] then [the State] will offer to 2d Degree Murder, I, Range judicial Bolden, sentencing.” 979 S.W.2d at 589. The court held that because the agreement “hinged upon truthful testimony” (Bolden, 592), 979 S.W.2d at it did not require that the witness testify accordance with a particular script.
Similarly, in People
Jones,
“IN THE
[Witness],
MATTER OF
that
if [Witness]
provides a truthful statement
to the Detroit Police Depart-
ment concerning his knowledge
killing
[the
victim]
truthfully
and testifies
trials,
in
proceedings
all
and hear-
ings in connection
Wayne
with that killing
County
Prosecutor’s Office will not use
testimony
[Witness’]
bring charges against
Jones,
him.”
App.
Mich.
at
The court incentive” for “some immunity provided agreements their at trial to to conform their the witnesses agree that accounts, persuaded it was “not prior as to testimony so tainted rendered the witnesses’ ments Jones, 236 Mich. be inadmissible.” at 657. N.W.2d had been incarcerated Johnson appeal,
In the instant was ap- murder when he decade for double for over a encourag- with a by the State proached defendant; pat- similar fact no testify against him to ing Further, or Jones. in both exists in either Bolden tern Jones, dif- plea agreements terms of the Bolden bar, in matter at respect in from significant fer as here which such provision neither contained as “truth- only testify must not the witness required consistent also that his “shall” be but fully,” Further, is no there statements. certain of the witnesses had these cases that indication in either of oath, as does under inconsistent statements history in the witnesses it not Finally, appear does Johnson. offered the extent of benefits those cases received the nul- including testimony, for his exchange conviction, of a erasing and the jury of a verdict lification super- from a sentence, and a transfer reduction facility. lower-security to a security facility maximum factu- are majority relied upon the cases Because of its supportive I do not find them ally distinguishable, unobjection- here was holding condoned should be agreements such able and that under Illinois law. the future majority’s reasons, join I cannot foregoing For the opinion. in this dis- join and BURKE KILBRIDE
JUSTICES sent. notes rule that provisions govern agreements plea contract “absent due concerns,” confines its discussion strictly process it is contract principles, an standing application process “due concerns” the aforementioned precisely and which are not argument which animate arguments majority’s opinion. by addressed than citation simple more implicate raised notes, As defendant principles. contract general related context observed court has previously bargains are right plea “contract” underlying concerns reflect[ ] and therefore “constitutionally based run wider than those fundamentally from and that differ this, that, because of law,” and of commercial contract agree- principles plea law “the of contract application in some instances.” may require tempering ments (1996). I am unconvinced Evans, 320, 326-27 174 Ill. 2d no considerations analysis that majority’s terse by the into under play law come those of contract other than here. presented facts specific shrift to defen- short addition, majority gives of both authority questioning argument dant’s conviction jury court to erase and the circuit State According to entry. after its years murder 13 double bargain between upholding presented circumstances specific under the and the State has the State holding in this case is tantamount