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People v. Jackson

Court of Appeals of Illinois, First District, Sixth Division

May 18, 2018

RONALD JACKSON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 11 CR 12720 (1) Honorable Dennis J. Porter, Judge Presiding.

          JUSTICE DELORT delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Connors concurred in the judgment and opinion.



         ¶ 1 The State charged defendant, Ronald Jackson, and a codefendant, Marvin Fields, with, among other things, one count of attempted murder of a peace officer. Defendant and Fields were tried jointly before separate juries. Fields's jury acquitted him of the main offense but convicted him on the lesser included offense of attempted murder.[1] Defendant's jury saw things differently and convicted him of the more serious crime of attempted murder of a peace officer. Defendant contends that this difference in outcomes was the result of ineffective assistance of counsel and of other errors which permeated his trial. We affirm and correct the mittimus.

         ¶ 2 BACKGROUND

         ¶ 3 Because defendant was tried jointly with Fields and each defendant had his own jury, some testimony which we discuss below was presented to defendant's jury but not Fields's, and vice versa. Unless otherwise specified, however, all the testimony and evidence we describe was presented to both juries.

         ¶ 4 At trial, Officer Victor Portis testified that on the evening of January 12, 2011, he and his partner, Officer Andrew Dennis, were patrolling a four-block area in the Roseland neighborhood of Chicago as part of a "violence suppression mission." They patrolled in an unmarked police vehicle. Because their mission required that they be inconspicuous, Officer Portis was wearing "civilian dress, " with his badge displayed on a chain hanging from his neck.

         ¶ 5 During the patrol, Officer Portis saw two people in an alley between State Street and Lafayette Avenue. When he approached to conduct a field interview, one of the individuals fled west towards Lafayette Avenue, while the other person remained behind. Officer Portis gave chase. At the intersection of 120th Street and State Street, he saw two different people, whom he identified at trial as defendant and Fields, running east on 120th Street onto State Street. Fields was wearing a black jacket with a fur collar, and defendant was wearing a black jacket. When they were half a block apart, Officer Portis yelled "stop, " "get back, " and announced his office. Fields then stopped, raised a gun, and fired at him. Jackson was one to two feet behind Fields.

         ¶ 6 Officer Portis returned fire and dove behind a vehicle, injuring his wrist in the process. As bullets continued to rain down on his position, Officer Portis radioed for assistance. Shortly thereafter, Officer Dennis arrived in his police vehicle, and the suspects fled. A few minutes later, Officer Portis was informed that Fields had been taken into custody. Officer Portis went to Fields's location and identified him as "the one that fired the initial shot."

         ¶ 7 On cross-examination before defendant's jury only, Officer Portis testified that he did not see two people firing at him. He reiterated that he saw Fields fire at him but stated with respect to defendant, "I saw him on scene, but no, I did not see him firing at me." Upon further direct examination before defendant's jury, Officer Portis testified that he saw multiple muzzle flashes coming from Fields and defendant's direction. Fields then cross-examined Officer Portis in front of his jury only. Responding to a question posed by Fields's attorney, Officer Portis testified that he was wearing a grey hooded jacket and grey pants on the date in question.

         ¶ 8 Officer Dennis testified that while Officer Portis pursued the person who fled, he remained behind to speak to the other person who did not flee. Within 20 to 25 seconds, however, Officer Dennis heard gunfire, so he ended the interview and drove towards 120th and State Street, where he saw multiple muzzle flashes from gunfire and Officer Portis crouching behind a car. Officer Dennis stated that the person firing the gun was wearing a black coat with a fur hood. When the shooting stopped, he drove to Officer Portis and picked him up. At trial, Officer Dennis identified defendant as the person he saw firing towards Officer Portis.

         ¶ 9 On cross-examination before defendant's jury only, Officer Dennis testified that he only saw one shooter, who was wearing a black coat with fur trim. He acknowledged learning at a later date that Fields, not Jackson, was wearing a black coat with fur trim. Thereafter, pressed by trial counsel, Officer Dennis conceded that "the person that [he] saw shooting was Marvin Fields, not [defendant.]" Officer Dennis then admitted, again at defense counsel's behest, that he did not see defendant with a firearm at any point.

         ¶ 10 On cross-examination before Fields's jury only, Officer Dennis testified that he and Officer Portis were in civilian clothes. He further testified that when he heard the gunfire, he did not hear anyone saying anything.

         ¶ 11 Sergeant Eric Jackson testified that he was supervising the violence suppression mission. Sergeant Jackson stated that he was near 120th Street and Lafayette Avenue when he heard Officer Portis's distress call. The sergeant was wearing civilian clothes and driving an unmarked police vehicle. After hearing the call, he exited his vehicle. He then saw a man, whom he later identified as defendant, exit from a gangway "at 119th Street on the east side of Lafayette" and begin walking "briskly" north on Lafayette Avenue. Sergeant Jackson observed defendant discard a black jacket and gloves he was wearing and then run into a gangway towards 119th Street and Perry Street and hop a fence. Defendant emerged near 11925 South Perry Street, where he was detained. Once Sergeant Jackson heard that defendant had been caught, he went back to collect the jacket and gloves that defendant had dropped. Sergeant Jackson later learned that Fields was detained a few blocks away in an abandoned house and that two firearms were discovered where he was hiding. On cross-examination before Fields's jury only, he testified that, other than what he heard on the radio, he did not hear Officer Portis say anything during the shooting.

         ¶ 12 Officer Chris Skarupinski testified that he was driving in an unmarked police vehicle with two other officers in support of the violence suppression mission. He explained that he and his fellow officers "were in plain clothes, which would be jeans or sweaters." Around 9 p.m., Officer Skarupinski's unit was driving near 111th Street and Wentworth Avenue and received a call of shots fired at an officer. In response, they drove to an alley near 119th Street and Lafayette Avenue and exited their vehicle. When Officer Skarupinski saw defendant running through an alley, he began running on the street in a direction parallel to defendant's path of travel. The officers eventually cornered defendant in a yard on Perry Street. At that point, Officer Skarupinski drew his service weapon and ordered defendant to the ground, while another officer attempted to detain him. Defendant did not comply and instead resisted arrest, so a third officer took defendant to the ground. Defendant continued resisting, and his compliance was not achieved until a fourth officer, Officer Timothy Davis, arrived on scene and deployed a Taser on defendant.

         ¶ 13 On cross-examination before defendant's jury only, Officer Skarupinski testified that he never saw defendant with a weapon at any point and that the police did not recover a weapon from defendant. He noted that defendant was actually released from custody the following morning and that he was not brought back into police custody until July 11, 2011.

         ¶ 14 Officer Timothy Davis testified that he was patrolling the neighborhood in a marked police vehicle. Around 9 p.m., Officer Davis heard Officer Portis's distress call and drove to 11925 South Perry Street. When he arrived, he saw other officers struggling to take defendant into custody. Officer Davis explained that defendant "wouldn't show his arm, and he wouldn't give up his other arm." Officer Davis announced that he was going to deploy his Taser, but defendant continued resisting. Officer Davis then tasered defendant and he became compliant.

         ¶ 15 Nancy DeCook, a forensic investigator for the Chicago Police Department, testified that she recovered 15 .40-caliber shell casings at 12010 South State Street. Less than a quarter block away, at 12025 South State Street, she recovered five .45-caliber shell casings. She then went to 12011 South Lafayette Avenue, where Fields was detained, and processed the area. There, she recovered a Sig Sauer pistol and a .40-caliber Smith and Wesson pistol.

         ¶ 16 Marc Pomerance, a forensic scientist with the Illinois State Police, testified as an expert in the field of firearms and firearms identification. During his testimony, Pomerance identified the firearms recovered from 12011 South Lafayette Avenue. He explained that the Sig Sauer was a .40-caliber Smith and Wesson pistol, and that the other gun was a .40-caliber semiautomatic Smith and Wesson firearm. He examined 15 of the shell casings that were recovered and found that 10 were fired from the Sig Sauer and 5 were fired from the other gun.

         ¶ 17 Ellen Chapman, a forensic scientist with the Illinois State Police, testified as an expert in the field of gunshot residue (GSR). Chapman explained that the samples taken from defendant's hands "contained particles that were characteristics of background samples." As a result, she concluded that defendant "may not have discharged a firearm. If he did discharge a firearm, then the particles were removed by activity, not deposited, or not detected by our procedures." She noted, however, that it was "quite possible" that if a shooter was wearing gloves, they would prevent GSR from contacting the shooter's skin. Thereafter, Chapman testified that one of defendant's gloves "contained tri-component and consistent gunshot residue particles, " which led her to conclude that the glove's surface "contacted a primer gunshot residue related item or was in the environment of a discharged firearm. Similarly, Chapman testified that the right cuff area of defendant's jacket also "contained tri-component and consistent gunshot residue particles, " which likewise caused her to conclude that the right cuff of the jacket "either contacted a gunshot residue item or was in the environment of a discharged firearm."

         ¶ 18 On cross-examination, Chapman clarified that she did not conclude that defendant discharged a firearm. She acknowledged that it was possible for a person's clothes to test positive for GSR if the person was in an area where a gun was fired or next to a person discharging a firearm.

         ¶ 19 After the State rested, defendant presented his case-in-chief, which consisted entirely of testimony from Chicago police detective William Sullivan. Detective Sullivan testified that he was assigned to investigate the shooting and that he interviewed Officer Portis as part of that investigation. Defense counsel asked Detective Sullivan whether Officer Portis said there were multiple shooters. In response, Detective Sullivan stated, "What he stated is that he saw only one of two shooters, but he saw multiple muzzle flashes once he engaged the individual that was shooting at him." He then testified that Officer Portis said he only saw one shooter.

         ¶ 20 Before the case was submitted to the jury, the court held an instruction conference. At defendant's request, the court instructed the jury on the lesser included offenses of straight attempted murder and aggravated discharge of a firearm. After deliberations, the jury found defendant guilty of attempted murder of a peace officer.

         ¶ 21 Afterwards, defendant argued that his trial counsel was ineffective for, among other things, failing to call Fields to testify. Defendant contends that Fields would have told the jury that defendant was not present at the scene of the shooting. The court appointed a new lawyer from the public defender's office to serve as posttrial counsel and held a Krankel hearing. See People v. Krankel, 102 Ill.2d 181 (1984). Trial counsel testified at the hearing, but his testimony was limited to explaining the basis for his decision not to call Fields to testify in defendant's case-in-chief. After that testimony, the court denied defendant's posttrial motion. Thereafter, the court sentenced defendant to 38 years' imprisonment, which consisted of 23 years for the base offense, plus a 15-year enhancement because defendant personally discharged a firearm during the offense.

         ¶ 22 ANALYSIS

         ¶ 23 We first consider defendant's argument that his trial attorney was ineffective because, when he cross-examined the police witnesses, he did not elicit testimony demonstrating that the defendant did not know that Officer Portis was a police officer. Defendant specifically argues that when trial counsel cross-examined Officers Portis and Dennis and Sergeant Jackson, he should have proceeded as Fields's attorney did, and elicited testimony (1) from Officer Portis explaining that he was dressed to blend into the community and (2) from Officer Dennis and Sergeant Jackson that they did not hear Officer Portis yelling that he was a police officer.

         ¶ 24 Ineffective assistance of counsel claims are governed by the familiar two-part test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A defendant raising a Strickland claim "must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687.

         ¶ 25 We begin by considering whether trial counsel's performance was constitutionally deficient. " 'Strickland's first prong sets a high bar.' " People v. Jones, 2017 IL App (1st) 143766, ¶ 41 (quoting Buck v. Davis, 580 U.S.,, 137 S.Ct. 759, 775 (2017)). To meet that high hurdle, " 'the defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the "counsel" guaranteed by the sixth amendment.' " Id. (quoting People v. Evans, 186 Ill.2d 83, 93 (1999)). In so doing, the defendant must " 'overcome the strong presumption that the ...

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