Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 10 CR 10481 The
Honorable Gregory Robert Ginex, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Stephen L. Gentry, of State Appellate Defender’s
Office, of Chicago, for appellant.
Attorneys for Appellee Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher,
and Clare Wesolik Connolly, Assistant State’s
Attorneys, of counsel), for the People.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Justices Reyes and Burke concurred in the judgment
1 Defendant, Rashaun Carlisle, was found guilty by a jury of
attempted murder after he used a sawed-off shotgun to shoot
at police officers, and he was sentenced to 60 years with the
Illinois Department of Corrections (IDOC).
2 In this appeal, defendant claims that the trial court erred
by dismissing his pro se petition for postconviction
relief as frivolous and patently without merit. Defendant
claims that his petition stated the gist of a constitutional
claim that he was denied effective assistance of appellate
counsel when appellate counsel failed to include a claim that
his trial counsel was ineffective for failing to object to
the publication in the jury room of photographs of a bloody
police vest and radio.
3 A defendant raising a claim concerning appellate counsel
"must show both that appellate counsel's
performance was deficient and that, but for
counsel's errors, there is a reasonable probability that
the appeal would have been successful." (Emphases
added.) People v. Petrenko, 237 Ill.2d 490, 497
(2010). Thus, to succeed on the sole claim that he raises on
appeal, defendant must show both (1) ineffective
assistance of trial counsel and (2) ineffective
assistance of appellate counsel. When reviewing a claim of
ineffectiveness of appellate counsel, a reviewing court must
consider first whether trial counsel was
ineffective. Petrenko, 237 Ill.2d at 501-02. Thus,
in our analysis below, we consider first whether
trial counsel was ineffective, even though the sole
claim that defendant raises in this appeal is the ineffective
assistance of his appellate counsel.
4 As we explain below, we cannot find ineffectiveness by
either counsel, and thus, we must affirm.
6 We provide a detailed description of the testimony below,
but in sum, the State's evidence at trial established
that on May 8, 2010, at 2:50 a.m., defendant stood on the
median strip of Mannheim Road near Division Street in Stone
Park, Illinois,  and fired two rounds from a sawed-off
shotgun at police officers Robert Vicari and Terry Carr, who
were called to investigate a disturbance. Officer Vicari was
wounded in the face and shoulder, and Officer Carr was not
injured. Defendant fled the scene and was subsequently
7 I. Evidence at Trial
8 The State's evidence consisted of the testimony of
eight witnesses: (1) a Stone Park police officer, Andrew
Morales, who observed the shooting; (2) a Stone Park police
officer, Robert Vicari, who was shot by defendant; (3) a
Stone Park police officer, Terry Carr, Officer Vicari's
partner; (4) a Cook County Sheriffs police officer, Sergeant
Melvin Jenkins, who observed the shooting; (5) a Franklin
Park police officer, Sergeant Michael Jones, the arresting
officer; (6) Mark Pomerance, a forensic scientist who
analyzed the shotgun used by defendant; (7) a Stone Park
police detective, Christopher Pavini, who investigated the
shooting; and (8) an assistant state's attorney (ASA),
who interviewed defendant.
9 A. Officer Andrew Morales
10 Police Officer Andrew Morales testified that at 2 a.m. on
May 8, 2010, he was on patrol when he responded to a call to
close a bar located in a strip mall on North Mannheim Road in
Stone Park in response to complaints of gang activity.
Morales was in uniform and was driving a marked police Ford
Expedition. Morales was familiar with the bar as a frequent
"hang out" location for the Latin Kings. Morales,
joined by a number of other police officers at the strip
mall, closed down the bar. The patrons of the bar were
compliant with the officers' requests to vacate the
premises, and the patrons promptly exited the bar and the
bar's parking lot.
11 Morales then entered a liquor store located in the same
strip mall to discuss nearby traffic issues with the liquor
store clerk. An unidentified male entered the liquor store
and complained that he was being harassed by an individual in
front of the bar. At this time, the other officers involved
in closing the bar had vacated the strip mall. However,
Officer Carr and Officer Vicari arrived forthwith at the
liquor store, and Morales instructed them to investigate the
disturbance in front of the bar. Carr and Vicari were dressed
in "plain clothes, " but they wore bulletproof
vests outside of their clothes, with their police badges
showing, and belts containing their firearms, handcuffs, and
other equipment. They were driving an unmarked police Chevy
12 Morales observed Carr and Vicari handcuff an individual
who was shouting outside of the bar. Morales was standing
outside of the liquor store, approximately 100 feet away from
Carr and Vicari, when he heard two gunshots. Morales observed
an individual standing in the median strip of Mannheim Road
pointing a shotgun at Carr and Vicari,  who, besides the
individual they had handcuffed, were the only people in the
parking lot. Officer Morales returned the fire at the
individual in the road, who promptly fled. Morales gave
pursuit but did not apprehend the individual. Upon returning
to the parking lot, Morales observed Vicari bleeding from his
13 Morales testified, on cross-examination, that when he
exited the liquor store the individual creating the
disturbance was yelling but that there was no one else in the
parking lot. He further testified that his marked vehicle was
in front of the liquor store and that neither of the two
police vehicles in the strip mall parking lot had its Mars
lights flashing. On redirect, Morales identified the
sawed-off shotgun that the individual in the median of the
street was holding. This exhibit was later admitted into
evidence without objection.
14 B. Officer Robert Vicari
15 Officer Robert Vicari testified that, on May 8, 2010, at 2
a.m., he received a call to proceed with his partner, Officer
Terry Carr, to close down the bar on Mannheim Road in
response to gang activity at the bar. Vicari's and
Carr's bulletproof vests had the word "Police"
written on the back, and the parking lot of the bar was well
lit. After the bar and its parking lot were cleared, Vicari
and Carr drove to a garage behind the bar to investigate a
report of gang graffiti sprayed on the garage. After
observing the graffiti, the two officers drove to the front
of the strip mall, where Officer Morales directed Vicari and
Carr to return to the bar, where an individual was causing a
disturbance. The individual was intoxicated, agitated, and
had apparently been arguing previously with "some other
unknown male subject." Vicari handcuffed the individual
for the officers' safety and began patting down the
individual. Vicari then heard a gunshot, took cover, drew his
firearm, and rose to return fire. Observing an individual in
the median of Mannheim Road, about 60 feet away, he fired a
second shot and then returned to cover. Vicari called on his
police radio that shots had been fired both at and by the
police. At this point, the handcuffed individual informed
Vicari that Vicari had been shot in the face. To verify that
information, Vicari wiped his left hand across his face and
realized that "it was loaded with blood." Vicari
then called on his radio, stating that he had "been shot
in the face by a sawed-off shotgun, " and that there was
"a male Hispanic runner southbound Mannheim going
eastbound on Division with a black hoodie and blue jeans on
with a sawed-off shotgun."
16 Vicari testified that he still had five pellets in his
face and one in his shoulder, and that doctors cannot remove
the two pellets remaining in his left eye due to fear that
the surgery could result in blindness.
17 Vicari testified that, at the time of the offense, he was
wearing a bulletproof vest, with a two-way radio attached to
it. The exhibits at issue in this appeal are the photographs
marked People's Exhibit Nos. 12, 13, and 14, that depict
Vicari's vest and radio. Prior to showing the photographs
to Vicari, the ASA stated that he was showing them to defense
counsel. Defense counsel made no objection. With respect to
these photos, Vicari then testified as follows:
"ASA: I'm going to show you picture Exhibit No. 12.
Do you recognize that?
VICARI: Yes. It's my vest and my radio.
ASA: Okay. And now that was the radio and vest you wore on
the evening the shooting took place, is that correct?
VICARI: That's correct.
ASA: Prior to the shooting was your vest and radio covered in
VICARI: No, it was not.
ASA: Showing you No. 13, I'd ask if you recognize that.
VICARI: That's my vest.
ASA: And that's more of a close-up, correct?
ASA: And finally I will show you People's 14 and ask if
you recognize that.
VICARI: Yes. It's my vest and my radio in a better shot.
ASA: And these pictures were all taken shortly after the
shooting took place, is that correct?
18 The ASA then asked to "be granted leave to
publish" the photographs to the jury, and defense
counsel responded: "No objection." The trial court
then received the exhibits in evidence.
19 Vicari testified again with respect to these exhibits, as
"ASA: People's No. 12, that's a photograph, a
close-up of your two-way radio, your microphone, is that
ASA: And it's covered with blood, is that true?
ASA: People's No. 13, that again is the vest you told us
ASA: And again, what I'm pointing to now in the center of
the photograph is the blood that we've been talking
ASA: And finally People's No. 14 is an overall shot of
your vest, as well as the microphone, is that correct?
20 On cross-examination, Vicari testified that, after the bar
was cleared out, the only person left in the parking lot was
the individual creating the disturbance. Vicari testified
that before May 8, 2010, he did not know defendant and knew
of no reason why defendant would be angry with him. Vicari
confirmed that he gave a statement to Detective Pavini, and
defense counsel then attempted to impeach Vicari, asking:
"Isn't it true that you told him-" However, the
State objected, and the trial court sustained the objection.
No offer of proof was made by the defense.
21 C. Officer Terry Carr
22 Officer Terry Carr testified that on May 8, 2010, at 2
a.m., he was partnered with Officer Vicari. Both officers
were wearing bulletproof vests with "Police"
written on the back; their badges were on the front of the
vests, and their duty belts, holding their equipment, were
around their waists. Carr confirmed that, after the bar was
closed, the parking lot was completely cleared. Carr
testified that he and Vicari checked on some graffiti behind
the bar and returned, at the behest of Officer Morales, to
question an individual causing a disturbance in front of the
bar. During the questioning, Carr heard a gunshot and felt
glass ricochet around him. The glass was from the windows of
the bar, which shattered upon being hit by pellets from the
shotgun. Carr took cover, moved to the front of his police
vehicle, and then observed a muzzle flash in the median of
Mannheim Road. The muzzle flash was pointed directly at the
two officers. Carr began to pursue the suspect; however, his
pursuit ended when he heard Vicari on the radio reporting
that he was shot. Carr then returned to Vicari and radioed
that there was a "male black subject" running
eastbound from Mannheim Road.
23 On cross-examination, Carr testified that prior to May 8,
2010, he did not know defendant and knew of no reason why
defendant would be angry with him. Defense counsel asked Carr
if it was possible that Carr had given a statement to
Detective Pavini about this incident, and Carr replied that
it was "[v]ery possible, " but he did not recall
24 D. Sergeant Melvin Jenkins
25 Sergeant Melvin Jenkins testified that on May 8, 2010, at
2:50 a.m., he was leaving the scene of an arrest and heading
northbound on Mannheim Road when he heard a gunshot near the
intersection of Mannheim Road and Division Street. As he
heard the gunshot he observed a muzzle flash to his left.
Jenkins slowed his vehicle and observed a second muzzle flash
from the same position as the first muzzle flash. Jenkins
observed that the individual shooting the shotgun was
pointing the shotgun at "one marked police car, which
was behind another unmarked car. But I was able to notice
that there were a couple of police officers and what appeared
to be a citizen or someone that they had in custody near the
back side of a marked vehicle." He did not observe any
other individuals in the strip mall parking lot. Jenkins
turned on his Mars lights and pursued the suspect while using
a spotlight to illuminate the area. He drove to 39th Street
and exited his vehicle, where a number of other law
enforcement agencies arrived to surround the area in which
the suspect had fled. Jenkins then received notification over
his radio that the suspect was apprehended, and he identified
the suspect in custody as the same man he observed fleeing
the shooting; however, the suspect was no longer wearing a
dark-colored "pullover" (sweatshirt) that he was
wearing during the shooting. Jenkins searched the area and
located a dark sweatshirt, which had been "stuffed"
into a bush. Jenkins identified defendant as the suspect he
observed shooting at Carr and Vicari.
26 On cross-examination, Jenkins testified that he could not
positively state that the gun held by the suspect was
pointing directly at the squad cars or officers. He could
testify only that the gun was being pointed west and that