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People v. Carlisle

Court of Appeals of Illinois, First District, Fourth Division

September 19, 2019

RASHAUN CARLISLE, Defendant-Appellant.

          Appeal 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 and opinion.



         ¶ 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.

         ¶ 5 BACKGROUND

         ¶ 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, [1] 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 apprehended.

         ¶ 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 Malibu.

         ¶ 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, [2] 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 face.

         ¶ 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 blood?
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?
VICARI: 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 follows:

"ASA: People's No. 12, that's a photograph, a close-up of your two-way radio, your microphone, is that correct?
ASA: And it's covered with blood, is that true?
ASA: People's No. 13, that again is the vest you told us about, correct?
VICARI: Correct.
ASA: And again, what I'm pointing to now in the center of the photograph is the blood that we've been talking about.
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 it.

         ¶ 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 this ...

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