Appeal from the Circuit Court of Cook County. No. 08 C6 61704 The Honorable Frank Zelezinski, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.
¶ 1 Defendant, Dorian Jackson, appeals his conviction after a jury trial of aggravated unlawful use of a weapon and his sentence of one year imprisonment. On appeal, Jackson contends his conviction must be reversed and the cause remanded for a new trial because (1) the prosecutor's misstatement of the evidence during rebuttal argument was prejudicial error; (2) the Illinois aggravated unlawful use of a weapon statute is unconstitutional; (3) one of the jurors who convicted him did not reside in Cook County; and (4) the trial court erred in denying his pretrial motion to exclude evidence of cannabis found in his car where it was not relevant to the charge against him. For the following reasons, we reverse Jackson's conviction and remand for a new trial.
¶ 3 The trial court sentenced Jackson on July 16, 2010, and he filed a timely notice of appeal on July 16, 2010. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Jackson was charged with four counts of aggravated unlawful use of a weapon. Prior to trial, he filed a motion to quash arrest and suppress evidence regarding the cannabis found in his car. Jackson testified at the hearing that he was driving down Sauk Trail Road with an air freshener hanging from his rear view mirror when a police officer made a U-turn, turned on his flashing lights, and pulled Jackson over. Officer Leo Garza testified that he saw Jackson driving down Sauk Trail Road with a Christmas tree-shaped air freshener hanging from the mirror. The air freshener obstructed Jackson's view and he also switched lanes without turning on his signal. Officer Peter Loquercio, the backup officer who arrived at the scene during the stop, testified that the Christmas tree-shaped air freshener obstructed the driver's view. The trial court denied Jackson's motion, ruling that the officer "had a reasonable articulable suspicion that a traffic violation, in fact, was being committed. He *** was justified in stopping the vehicle at that point to make that further determination."
¶ 6 At trial, Officer Garza testified that on September 23, 2008, at around 6 p.m., he was working the afternoon shift. He was traveling eastbound on Sauk Trail Road when he observed a red Oldsmobile traveling westbound switch lanes without using turn signals. He made a U-turn and pulled over the red Oldsmobile. When he approached the vehicle he noticed the engine was turned off and Jackson was sitting in the driver's seat. Officer Garza also saw a plastic baggie containing a green leafy substance in a cupholder of the center console. Officer Garza asked to see Jackson's license and insurance, but instead Jackson handed him a traffic ticket and state identification. Officer Garza soon learned that Jackson's driver's license had been suspended. When Officer Loquercio arrived on the scene, Officer Garza asked Jackson to step out of the car so that they could place him under arrest for driving with an expired license and for possessing cannabis.
¶ 7 Officer Garza stated that Jackson started his car and tried to put the vehicle into drive. Officer Garza, fearing for his safety, drew his weapon and ordered Jackson to exit the vehicle. He again ordered Jackson to exit the car and Jackson got out. Officer Garza handcuffed him, patted him down, and placed him in the back of the police car. During this time, Officer Loquercio watched the passenger in the car. When Officer Garza returned to Jackson's car, Officer Loquercio got the passenger out of the car and handcuffed him. Officer Loquercio recovered a bag of cannabis from the passenger and also notified Officer Garza that he had found a gun in the driver's side of the car. During a search of the entire vehicle, Officer Garza opened the center console and found a larger bag containing cannabis.
¶ 8 The gun recovered from Jackson's vehicle was a Smith and Wesson 9 millimeter handgun with a magazine and 10 rounds of ammunition. The gun was transferred to the police department and then to the crime lab. A check of the license plates confirmed that Jackson owned the red Oldsmobile.
¶ 9 Officer Loquercio testified that on September 23, 2008, he was working as a patrol officer. While monitoring radio traffic, he heard Officer Garza inquire about a license plate number which usually means a traffic stop was in progress. After hearing the location of Officer Garza's stop, Officer Loquercio traveled to the scene. He saw Officer Garza standing next to the driver's side window of a red Oldsmobile. He got out of his car and heard Officer Garza ask Jackson to get out of the car. Jackson then made an aggressive, quick motion, started the car, and attempted to put the car into drive. He removed his weapon and pointed it at defendant because he feared for his life. The officers shouted verbal commands at Jackson to put the car in park and get out of the car. Once Jackson exited the vehicle, Officer Loquercio kept his weapon out while Officer Garza returned his weapon to his holster before handcuffing Jackson. Officer Loquercio secured the passenger and while performing a pat down he found cannabis.
¶ 10 Both officers began a full search of the red Oldsmobile. Officer Garza found more cannabis, and Officer Loquercio opened the driver's side door and noticed a bulge under the floor mat. He lifted the floor mat and recovered a Smith and Wesson 9 millimeter semi-automatic pistol. The weapon was uncased and loaded. The State rested and Jackson moved for a directed verdict which the trial court denied.
¶ 11 Jackson testified that he resided in Richton Park, Illinois and worked at a shop called Bubbles and Beyond. He acknowledged that he owned the red Oldsmobile and he did have an air freshener hanging from his rearview mirror. On September 23, 2008, he went to his cousin Matthew's house to watch music videos. While there, he agreed to let his other cousin Kenny borrow the car because Kenny had to run some errands. Three hours later, Kenny returned with a friend. They joined Jackson and Matthew to watch videos before Jackson drove Kenny home to Ford Heights, Illinois. When driving Kenny home, Matthew ...