People v. Jackson

• Decision Date: 26 February 1990
• Docket Number: No. 1-86-2343,1-86-2343
• Parties: , 141 Ill.Dec. 682 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Prentiss JACKSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1025

551 N.E.2d 1025

195 Ill.App.3d 104, 141 Ill.Dec. 682

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Prentiss JACKSON, Defendant-Appellant.

No. 1-86-2343.

Appellate Court of Illinois First District, First Division.

Feb. 26, 1990.

Randolph N. Stone, Public Defender of Cook County, Chicago, for defendant-appellant (Timothy J. Leeming, James H. Reedy, Asst. Public Defenders, of counsel).

Cecil A. Partee, State's Atty. of Cook County, Chicago, for plaintiff-appellee (Inge Fryklund, James E. Fitzgerald, and Gayle L. Terry, Asst. State's Attys., of counsel).

Presiding Justice BUCKLEY delivered the opinion of the court:

Following a jury trial, Prentiss Jackson (defendant) was convicted of two counts of attempted murder (Ill.Rev.Stat.1983, ch. 38, pars. 8-4, 9-1), two counts of armed violence (Ill.Rev.Stat.1983, ch. 38, par. 33A-2) and three counts of aggravated battery (Ill.Rev.Stat.1983, par. 12-4(a)). The lesser included offenses of armed violence and aggravated battery merged into the attempted murder convictions and defendant was sentenced to 30-year concurrent terms of imprisonment.

Defendant appeals his convictions, contending that (1) he was denied a fair trial where the trial court admitted into evidence a weapon recovered at the time of his arrest; (2) he was denied a fair trial based upon the State's presentation of non-verbal testimony at trial; (3) he was denied a fair trial as a result of improper prosecutorial comments during trial; (4) he was denied a fair trial because of judicial misconduct at trial; (5) he was denied a fair trial as a result of ineffective assistance of counsel; (6) he was denied a fair trial because of the admission of improper hearsay testimony; and (7) he was not proved guilty beyond a reasonable doubt. We affirm.

The record discloses that on August 17, 1985, at approximately 6 a.m., Gladys Powell sustained a near-fatal injury as a result of a gunshot wound to the left side of her head. Her husband, Leroy Powell, also present at the shooting, did not suffer any injury. After Leroy provided police with a description of the offender, whom he only knew as "Rabbit," defendant was arrested and a .9 millimeter semi-automatic gun with a black rubber handle was recovered.

Prior to trial, defendant presented a motion in limine requesting the trial court, inter alia, to prohibit the State's introduction of the .9 millimeter gun because Leroy's description of the weapon used for the commission of the offense specifically excluded the gun. The trial court denied the motion, finding that the gun would be admissible upon the State's showing that it was suitable for the commission of the crime. Despite Leroy's testimony during trial that the .9 millimeter gun was not the weapon used in the crime, the trial court admitted the gun into evidence.

Leroy, the State's sole eyewitness, testified to the following at trial: In July 1985, Leroy and his wife were both heroin addicts. At that time, he was approached by Nicky Vaugh, a "street dealer," concerning the possibility of him selling narcotics. Vaugh introduced Leroy to a man named "T-Fly," who was interested in utilizing Leroy's apartment for drug distribution. Leroy agreed to the arrangement, and, for protection, burglar gates and bars were affixed to the front and rear doors of his apartment.

After his apartment was prepared for drug sales, T-Fly introduced him to a man named "Squeaky," who was to be in charge of the overall drug operation emanating from Leroy's apartment. Leroy's function in the operation was that of a "door man." As such, he was responsible for answering the door, taking the drug order and relaying the order to Squeaky, who would fill the order. After Squeaky filled the order, Leroy would tender the drugs to the customer in exchange for money. The transactions always took place through the locked burglar gates. Leroy estimated that the drug business grossed approximately $500 per day and he received $100 per day for his services as "door man."

In addition to Squeaky being responsible for replenishing the apartment with drugs, Squeaky was also responsible for collecting the cash proceeds from the drug sales. It was through these deliveries and collections that Leroy first met defendant, who was initially an "armed escort" for the drug operation. Defendant carried either a .357 magnum or a .45 or .38 automatic and "would check to make sure no one was out to stick the guy up that was delivering" "the drugs and picking the money up."

Defendant eventually became Squeaky's "relief man" and ultimately was in charge of the drug distribution operation, performing all of Squeaky's duties. Defendant resided at Leroy's apartment on an average of six days each week and was rarely seen without a gun in his possession.

On August 16, 1985, at approximately 12:30 p.m., defendant entered Leroy's apartment with his girl friend, Robin Crump. Defendant and Robin spent the rest of the day and night in a bedroom of the apartment "free basing" cocaine. Defendant had two guns on that day, "one was blue with a large wooden grip * * * and [the other was] an automatic, like * * * a military 45."

Gladys arrived at the apartment at approximately 2 p.m., and she and Leroy used heroin until 8 p.m., at which time Gladys left. At 4 a.m., Gladys returned to the apartment with hamburgers, coffee, cigarettes and a newspaper. Defendant remained in the bedroom with Robin until 5 a.m., at which time he left the apartment to take Robin home.

Shortly thereafter, defendant returned to the apartment and stated that he had forgotten something and retreated into the bedroom where he and Robin had been earlier that day. Gladys was sitting on the couch and Leroy was sitting on a chair at a table reading the newspaper. Defendant appeared agitated and nervous when he emerged from the bedroom, but nevertheless conversed with Gladys and Leroy. While reading the paper and conversing with defendant, Leroy next "saw a movement out of the corner of [his] eye." He looked up and saw defendant point and fire a pistol at Gladys. Defendant then pointed and fired the pistol at Leroy. Leroy attempted to rise from his chair, but fell backwards and landed on the floor. Leroy "froze" and "played dead" on the floor until defendant exited the apartment. Upon defendant's exit, Leroy comforted Gladys who was slumped over, moaning and bleeding from the side of her head. Because he did not have a telephone, Leroy ran to Ricky Wade's apartment, which was located on the second floor below his apartment, and telephoned the police.

On cross-examination, Leroy described the gun used in the shooting as a "[b]lue steel, large wooden handle[ ], revolver." He further testified that when defendant returned to the apartment after taking Robin home, defendant was holding a gun, which was wrapped in a towel. Leroy also stated that the .9 millimeter gun recovered by the police at the time of defendant's arrest was not the gun used to shoot Gladys.

Laurie Hamrick, a 16-year-old prostitute who lived with Ricky and other individuals in the apartment below Leroy's and Gladys' apartment, testified for the State as follows: She first met defendant in Ricky's apartment during a "dope deal," but defendant frequently came to Ricky's apartment to smoke cocaine, talk, and to use the telephone. Laurie was aware of the drug distribution operation in Leroy's and Gladys' apartment and that defendant possessed guns, which he kept under his shirt in his pants.

On August 17, 1985, between 2 a.m. and 4 a.m., Gladys came to Laurie's apartment carrying cigarettes, coffee and a newspaper. She stayed a short while before returning to her third-floor apartment.

At approximately 5 a.m., as Laurie was sitting in the kitchen of her apartment near an opened back door, Ricky and defendant approached and stopped immediately outside the screen door. Laurie overheard defendant tell Ricky "[t]hat he was going to go up to Leroy and Gladys and kill them because--* * * he had done their drugs." Defendant proceeded up the back stairway to Leroy's and Gladys' third-floor apartment. Laurie subsequently "heard a shot, * * * and then a couple of seconds later, [she] heard two shots, and then [she] heard like a body fall, * * * and * * * [she] heard [defendant] running down the back stairs * * *." Laurie peeked out of the window and observed defendant, who was wearing a gray cut-off sleeve shirt, blue pants and a black hat running from the back stairway towards the train tracks approximately one-half block away.

Detective Fred Stone of the Chicago Police Department testified that when he arrived at Leroy's apartment on August 17, 1985, Leroy described the perpetrator as a black male wearing a black baseball cap, a black or gray type jogging shirt or sweater a pair of blue jogging pants and a pair of white "Nike" gym shoes. Upon defendant's arrest approximately 48 hours later, defendant was wearing a pair of blue denim jeans with the cuffs "rolled real wide," a gray and dark trimmed sweater and a pair of white "Nike" gym shoes. Also recovered at the time of defendant's arrest was a black baseball cap and a .9 millimeter handgun.

Defendant's nephew, Gregory Smith, and wife, Patrice Jackson, testified as alibi witnesses. They stated that defendant came home at approximately 4 a.m. on August 17, 1985, and remained there until approximately 11 a.m., at which time Patrice ordered defendant to leave "[b]ecause he couldn't give [her] any explanation of where he had been." Their testimony further disclosed that defendant and Patrice were together from 4 a.m. until 11 a.m.

Defendant did not testify at trial.

On appeal, defendant first contends that the trial court committed reversible error in admitting the .9 millimeter semi-automatic gun into evidence where testimony established that it was not the weapon used in the crime. We find that it was error to admit the gun into evidence, but hold that...