Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 10 MC6 014663 The
Honorable Thomas J. O'Hara, Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court,
with opinion. Justice Neville concurred in the judgment and
opinion. Justice Mason dissented, with opinion.
1 After James Jackson calls 911 for an ambulance, the
paramedics arrive to find him "agitated, "
"nervous, " "irrational, " and "very
uncooperative, " suffering from some type of
psychological issue and with an "altered" mental
state. The paramedics call for police assistance. Jackson
screams and flails; one officer uses his taser on Jackson,
striking him 10 times. Another officer tries to grab Jackson
and gets kicked in the shins. Jackson resists being placed in
handcuffs. Ultimately, the police subdue him and place him
into the ambulance for transport to the hospital. Jackson is
charged and convicted of battery and resisting arrest.
2 This, in sum, is what happened to James Jackson, and what
happens all too often to individuals who may be experiencing
a mental health or other crisis. When they (or their
families) call for help, they are met with some use of force
by officers. See United States Department of Justice Civil
Rights Division and United States Attorney's Office,
Northern District of Illinois, Investigation of the
Chicago Police Department (Jan. 13, 2017), at 37
(listing incidents where Chicago police officers "used
force against people in crisis who needed help"). The
DOJ report reveals that, as here, law enforcement officers,
often "first responders" to mental health
emergencies, are not necessarily trained or prepared to deal
with the complex situations in which they may find
themselves. The lesson in these cases can be stark: call 911
and someone could end up charged with a crime, or worse. (The
dissent, infra ¶ 101, states that there is no
evidence that Jackson was mentally ill, but this ignores
testimony from every state witness that Jackson was
"irrational." The ultimate diagnosis is
irrelevant-what matters is how Jackson acted.)
3 Battery against a police officer is a serious charge, but
being kicked in the legs by a mentally unstable person
(causing no serious injury) is not the type of touching that
requires either specific or general deterrence. Sometimes,
the initial decision to arrest or charge a defendant becomes
a boulder rolling downhill, and no one feels strong enough to
say, "stop, " regardless of the resources wasted.
The dissent (infra ¶ 100) feels we should not
find fault with the officers' actions and theorizes that
they had no choice but to wrestle Jackson to the ground and
tase him 10 times. But the officers should have received
training in how to de-escalate such a situation. The officers
didn't tase Jackson out of malice, but because they did
not know what else to do. The restraint used on Jackson did
not assist the paramedics in assessing Jackson's
health-how could they do so, after he had been zapped with
50, 000 volts? All they could do was bundle Jackson into an
ambulance. The lack of training turned a call for help into a
contentious encounter with police.
4 Prosecutors too should receive training to enable them to
distinguish between those responsible for their actions and
those, like Jackson, whose vulnerable or abnormal mental
state causes them to act in uncooperative or confused ways.
We will say it outright-this prosecution was a waste of time
and money, all so that Jackson could be sentenced to 18
months of conditional discharge.
5 Jackson challenges the sufficiency of the evidence. He also
contends that several errors occurred during trial, which he
asks us to review under the plain error standard. And he
claims that his trial counsel was ineffective for failing to
preserve those errors.
6 We find the evidence was legally insufficient to support
Jackson's conviction. Further, several errors occurred
during trial-the trial court (i) failed to properly question
potential jurors during voir dire; (ii) erringly admitted
other-crimes evidence that Jackson smelled of marijuana; and
(iii) erringly admitted opinion testimony from paramedics
that Jackson was not having a seizure during the incident.
The State in its closing argument relied on this inadmissible
evidence, and so did the jury in convicting Jackson. We
reverse Jackson's conviction, and the State may not retry
him. People v. Lopez, 229 Ill.2d 322, 367 (2008)
(State may not retry defendant once it has been determined
evidence introduced at trial was insufficient to sustain
8 Before trial, the judge asked each panel of potential jury
members whether they disagreed with, or would be unable to
follow, the rules of law that (i) Jackson is presumed
innocent; (ii) the State has the burden to prove him guilty
beyond a reasonable doubt; (iii) Jackson did not need to
present evidence; and (iv) Jackson's failure to testify
could not be held against him. The judge did not ask the
panels whether they understood and accepted these principles.
Jackson's counsel did not object to these questions.
9 The relevant facts adduced at trial follow.
10 On December 10, 2010, James Jackson called 911 from his
apartment building in Calumet City, and requested an
ambulance. Calumet City Fire Department paramedic Timothy
Piepenerink testified that he and his partner, Chris
Stapleton, responded to an ambulance call for an unknown
medical emergency at about 6:00 p.m. They arrived in a large
ambulance labeled Calumet City Fire Department and entered
the apartment building through the front door into a
vestibule. A second door separated the vestibule from the
rest of the building. Jackson was behind the second door, and
said that he needed an ambulance. When Piepenerink identified
himself, Jackson replied, "You are not the
ambulance." Piepenerink observed that Jackson seemed
"a little bit nervous and kind of upset."
11 Piepenerink and Stapleton coaxed Jackson outside to show
him their ambulance, but Jackson loudly insisted they were
not paramedics. Jackson began calling 911, repeatedly asking
for an ambulance despite the dispatcher telling him the
ambulance was there. Jackson began to yell profanities, so
Stapleton requested police assistance. Piepenerink thought
Jackson might be suffering from some type of psychological
issue: "he was not rational. We couldn't get through
to him. *** He was nervous. There was something going
on." Stapleton thought that Jackson's "mental
status was altered;" Jackson did not follow simple
directions and did not seem to be thinking clearly.
Piepenerink and Stapleton also noted that Jackson smelled of
12 Jackson tried to go back inside the building but did not
have his key for the second door, so he and the paramedics
waited in the vestibule area for the police to arrive. During
that time, Jackson kept yelling "don't touch
me" and appeared agitated.
13 When Officer Dan Piech arrived, the paramedics met him in
the driveway and informed him that Jackson was mentally
unstable, or possibly under the influence of an unknown
controlled substance. Jackson stayed in the vestibule
screaming profanities and "I am not going." Officer
Piech tried to calm Jackson and convince him to go with the
paramedics, but Jackson kept yelling. Piech reached for
Jackson's shoulder; Jackson pulled away and fell
backwards, sliding down the vestibule wall to the floor.
Jackson then began to punch and kick, in a manner Piech
characterized as "defending myself" rather than
"violent." Piech tried and failed to handcuff
Jackson, while the paramedics attempted to hold down
Jackson's legs. During the struggle, Jackson tried to
bite Stapleton's arm. But, Stapleton pulled away and
Jackson clamped down on Stapleton's sweatshirt. Piech
then used his department-issued taser, in the "dry
stun" mode, to stun Jackson with 50, 000 volts in the
waist area. Normally, using the taser would make a subject
less combative. Piech tased Jackson "about 10
times." On Jackson, the taser had "no affect
14 A few minutes later, Officer Gary Wojcik arrived. From
outside, he could hear Jackson screaming. Inside the
vestibule, Wojcik tried to assist Piech in handcuffing
Jackson while the paramedics backed away. To Wojcik, Jackson
seemed "irrational." He noticed that the vestibule
had a "very strong odor of burnt cannabis, " though
he did not know where the smell had come from. Jackson kicked
Wojcik several times in the lower legs. Wojcik put handcuffs
on one of Jackson's wrists; Jackson pulled away, and
began punching the glass window in the vestibule. Piech then
tased Jackson again, which had no effect. After struggling
for several minutes to subdue Jackson, the two officers
succeeded in placing handcuffs on him. Jackson was placed on
a stretcher, put in the ambulance, and transported to the
hospital. There, Jackson was still unhinged and screaming.
15 According to Jackson's longtime girlfriend, Stephanie
Stelly, Jackson wore leg braces, and suffered from seizures.
Stelly had observed Jackson having seizures 10 to 20 times
over the previous seven years, and the seizures did not
always present in the same way. On the day of the incident,
Stelly returned to the apartment building while Jackson was
being placed in the ambulance. She saw blood on Jackson's
face. His head was turning from side to side. Stelly had seen
that motion before-when Jackson was going into or coming out
of a seizure.
16 Peipenerink was unable to medically examine Jackson, but
opined that Jackson had not had a seizure. Over defense
objection, Piepenerink described what was typical of a
seizure: "What we have been trained if the patient
responds as what we consider, post dictal. It's
a medical term where you just - you are slow *** to respond.
They are sluggish. They have no idea where they are at. They
can't answer questions. It's kind of slow to respond
usually normally." Jackson was vocal and his movements
brisk. Piepenerink admitted that he did not know whether
Jackson had suffered a seizure before the paramedics arrived
and that seizures can take different forms.
17 Stapleton also opined, over objection, that Jackson was
not having a seizure: "I have never seen a person after
post seizure act the way Mr. Jackson did that day. The people
coming out of the seizures are more confused. *** Sometimes
seem a little aggressive. They are scared. They are more
confused, but they just don't [d]o that type of
aggression and strength for that matter. Usually when people
are having seizures, all of the energy in their body is
pretty well spent from the seizure itself, and they don't
just physically have the energy to carry on the way Mr.
Jackson did that afternoon." Stapleton believed that
someone having a seizure would be unable to bite at another
in the manner that Jackson did, or be as vocal as he, or make
the kind of statements Jackson made during the incident. Nor
would someone having a seizure continue flailing like Jackson
had at the hospital. Stapleton admitted that not all seizures
have the same symptoms, and clamping down with the teeth is a
symptom of a seizure.
18 During closing arguments, the prosecutor told the jury
that they "heard four witnesses from our side. You heard
one witness from the defense side. It's up to you now to
judge the credibility." The prosecutor emphasized the
paramedics' opinions that Jackson was not having a
seizure, noting that Jackson was not charged with biting
Stapleton, thereby rendering the paramedics' testimony
more credible. Over objection, the prosecutor stated that
"maybe smoking a lot of cannabis or something else"
could explain Jackson's behavior, and reminded the jury
that "at least three different people on the stand 
told you that he smelt strong like cannabis."
19 The jury pronounced Jackson guilty of battery and
resisting a peace officer. Jackson's counsel filed a
posttrial motion which did not address (i) the judge's
questioning of the jury before trial; (ii) the admissibility
of the paramedics' opinion testimony; (iii) the testimony
from three of the State's witnesses regarding the odor of
cannabis; or (iv) the State's closing argument. The
motion was denied, and the trial court sentenced Jackson to
18 months of conditional discharge.
21 Sufficiency of the Evidence
22 Jackson contends he was having a medical emergency and
lacked the mental state for either knowingly committing
battery or knowingly resisting a peace officer. We must
decide whether the evidence could reasonably uphold a finding
of guilt beyond a reasonable doubt. People v.
Cunningham, 212 Ill.2d 274, 278 (2004). We view the
evidence in the light most favorable to the State, and
determine if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979);
People v. Steele, 2014 IL App (1st) 121452, ¶
20. We will only reverse a conviction if the proof was so
improbable, implausible, or unsatisfactory that reasonable
doubt exists as to the defendant's guilt. People v.
Evans, 209 Ill.2d 194, 209 (2004).
23 The trier of fact assesses the credibility of the
witnesses, determines the appropriate weight to give the
testimony, and resolves inconsistencies in the evidence.
Evans, 209 Ill.2d at 211. Our function on review is
neither to retry the defendant nor substitute our judgment
for the trier of fact's judgment. Id. We will
not reverse a conviction based on contradictory evidence
presented by witnesses. People v. Siguenza-Brito,
235 Ill.2d 213, 228 (2009).
24 Battery occurs when, without legal justification, a person
knowingly "makes physical contact of an insulting or
provoking nature with an individual." 720 ILCS
5/12-3(a)(2) (West 2010). A person resists a peace officer
when he or she knowingly resists the performance by one known
to the person as a peace officer. 720 ILCS 5/31-1(a) (West
2010). A person acts knowingly when he or she is
"consciously aware that that result is practically
certain to be caused by his conduct." 720 ILCS 5/4-5(b)
(West 2010). Intent, such as knowingness, may be proven by
circumstantial evidence, and inferred from the
defendant's action and the conduct surrounding it.
People v. Phillips, 392 Ill.App.3d 243, 259 (2009).
25 At trial and on this appeal, Jackson claims he was having
an epileptic seizure during the incident, rendering his
kicking of Officer Wojcik involuntary. He also claims that
due to his mental state, he did not knowingly resist a peace
officer. The State maintains Jackson did not present
sufficient proof that he was having a seizure.
26 But even if, as the State suggests, we ignore
Jackson's contention that he was having a seizure, the
evidence was insufficient to support a finding that Jackson
had the requisite mental state to commit these crimes.
Rather, there was an abundance of evidence-almost all of it
from State witnesses-that Jackson was not
"knowingly" acting during the incident. Both
paramedics observed, on their arrival, that Jackson was
"nervous" and "agitated." Piepenerink
thought Jackson was suffering from some type of psychological
issue, and Stapleton thought Jackson's mental state was
altered. Though the paramedics were in uniform, and driving a
vehicle distinctively marked as an ambulance, Jackson
repeatedly denied they were paramedics and continued to call
911. Jackson grew more and more upset and neither the
paramedics nor Officer Piech could communicate with him.
Officer Wojcik arrived, and Jackson kicked him and resisted
being handcuffed, but Officer Wojcik immediately recognized
Jackson's behavior as "irrational." While, as
the dissent points out (infra ¶ 85), Jackson
was speaking in complete sentences-those sentences included
telling Piepenerink and Stapleton that they were not, in
fact, paramedics. Jackson's verbal coherence does not
indicate a "knowing" state of mind indicating that
he understood what was happening to him.
27 Whatever the cause of Jackson's behavior-epilepsy,
drug intoxication, some undiagnosed mental illness, or being
tasered 10 times-carries no consequence in as much as the
State presented little-to-no evidence that Jackson behaved
"knowingly." When Jackson was thrashing in the
vestibule in a "defending myself" manner, was he
"consciously aware" that his thrashing would result
in kicking Officer Wojcik? If Jackson did not recognize
Piepenrink and Stapleton as paramedics, where was the
evidence that he "knew" that Piech and Wojcik were
police officers, as the statute requires?
28 The dissent speculates (infra ¶ 90) that,
even if Jackson's behavior was caused by voluntary
intoxication or mental illness, he would still need to plead
that theory as an affirmative defense. But we analyze only
the evidence presented by the State, not Jackson's chosen
trial strategy-after all, as defendant, Jackson was not
required to present any evidence. He could have simply
required the State to meet its burden of proof without ever
mentioning the word "seizure." We do not know why
Jackson was behaving this way, but we ...