People v. Jackson

• Decision Date: 22 March 2021
• Docket Number: No. 1-18-0672,1-18-0672
• Citation: 2021 IL App (1st) 180672,170 N.E.3d 1075,446 Ill.Dec. 549
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brandon JACKSON, Defendant-Appellant
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 180672

170 N.E.3d 1075

446 Ill.Dec. 549

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Brandon JACKSON, Defendant-Appellant

No. 1-18-0672

Appellate Court of Illinois, First District, First Division.

Opinion filed March 22, 2021

Rehearing denied April 13, 2021

James E. Chadd, Douglas R. Hoff, and Deborah K. Pugh, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Noah C. Montague, and Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 A jury appears to have found Brandon Jackson guilty of first degree murder for the shooting death of Cuauhtemoc "Temo" Estrada and attempted armed robbery of Rigoberto Anaya. We say "appears" because, after the jury returned its signed verdict forms, Jackson's counsel requested the trial court poll the jury. The trial court asked 11 of the jurors, "Was this then and is this now your verdict?" Of the 11 jurors the court polled, all responded "yes." The court then dismissed the jury without polling the twelfth juror.

¶ 2 The parties do not dispute that the trial court erred by failing to poll the twelfth juror. Nor do the parties dispute that Jackson's counsel forfeited review of the issue by (i) failing to object before the trial court dismissed the jurors and (ii) failing to include the alleged error in a posttrial motion. We address a narrow issue: Does the trial court's error in failing to poll all 12 jurors constitute second-prong plain error, excusing Jackson's forfeiture and requiring reversal of the trial court's judgment?

¶ 3 We hold that leaving out of the poll of the jury even one juror calls into question the integrity of the judicial process and, so, constitutes second-prong plain error. We reverse and remand for a new trial.

¶ 4 We do not arrive lightly at the decision. The offense was violent; for the witnesses and Estrada's family, the trial was a traumatic process. As the trial court pointed out, Estrada's family regularly attended court for the four years this case progressed. The victim impact statements presented at sentencing reveal the deep emotional toll Estrada's murder has taken on those who knew him. We acknowledge the difficulty in subjecting Estrada's family and the other witnesses to a retrial for what may appear an oversight. Nonetheless, the inviolable right to be tried by an impartial jury of one's peers stands as an uncontested cornerstone of our criminal law system. Failing to ensure that even a single juror's verdict "was [ ] then and is [ ] now your verdict" damages that essential and durable cornerstone.

¶ 5 Background

¶ 6 We recount the facts of Jackson's offense briefly because Jackson raises no issue concerning the sufficiency or the closeness of the trial evidence.

¶ 7 The victim, Cuauhtemoc "Temo" Estrada, rented out the hall at a Veterans of Foreign Wars (VFW) post for a Christmas party on December 20, 2013. Rigoberto Anaya, who was dating Temo's daughter Christina, arrived at the VFW at about 7:40 p.m. Before the couple could make it inside, two men came up to them and demanded that Anaya "give [them] all [his] shit." Anaya saw both men carried guns. Temo came over to find out what was going on and reached for his weapon, telling the offenders he was an officer. As soon as Temo reached for his gun, one of the men shot at him. Christina's testimony was substantially similar to Anaya's.

¶ 8 Temo's son, Daniel, who had arrived at the VFW earlier that evening, had gone outside to help Temo. Daniel and Temo saw Anaya and Christina "being held up" by two men. Daniel watched as Temo walked up to the two men to "see what was going on," and the next thing he knew, Temo had been shot. After the shooting, the two men ran from the scene. Temo did not survive.

¶ 9 The State introduced evidence that Jackson told a friend, Ronald Jones Jr., "he had tried to rob somebody at the bar" but that he "didn't mean to shoot the person." Jackson reportedly said that someone had come out of the VFW with a gun and Jackson "shot [his] gun at the victim." After listening to recordings of Jackson's phone calls from the Piatt County Jail, officers eventually located the gun used in the shooting. Although no fingerprints were found on the gun, officers found the gun where Jackson had said "the unit was."

¶ 10 After closing arguments, the jury retired for deliberation at 12:21 p.m. At 2:11 p.m. the jury sent out a question asking to "get the legal definition of reasonable doubt." By agreement of the parties, the court answered, "Keep deliberating. You have all the instructions and the evidence." At 3:42 p.m. the jury sent out another question: "Can we get a numbered evidence list? If not, can we get a clarification if Exhibit 38 is Gage Thornton or Brandon Jackson?" By agreement of the parties the court answered, "Exhibit No. 38 is Gage Thornton." As deliberations continued, the parties agreed that, should the jury continue until 9:00 p.m., they would be excused to return the next day. But the jury came to a verdict.

¶ 11 The jury found Jackson guilty of first degree murder and guilty of attempted armed robbery. The jury also found the allegation that Jackson personally discharged a firearm during the offense had been proven. The verdict forms have 12 unique signatures. At counsel's request, the court polled the jury using the question, "Was this then and is this now your verdict?" The court only posed the question to 11 of 12 jurors. All 11 responded, "Yes." The court discharged the jury without any further comment from Jackson's counsel.

¶ 12 Jackson's counsel filed a motion for a new trial raising several claims of error but included nothing about the trial court's failure to poll all 12 jurors. The trial court denied the motion.

¶ 13 The trial court conducted an extensive sentencing hearing where both parties presented substantial evidence in aggravation and mitigation. In imposing sentence, the trial court commented:

"What is the right sentence here for everybody? That is my job to try to determine, to try to balance what I have heard about the defendant, his upbringing, his experiences in life, his choices that he made to the life of Mr. Estrada who served this country—and I'm just making these comments. He served his country as a Marine. He serve[d] his country as a sheriff. He was a family man. He was a person who commanded respect from the people that he came into contact with.’’

¶ 14 The court then juxtaposed Estrada's family, whom the court characterized as "God-fearing people," with Jackson's family, who "tried [their] best" to prevent Jackson from "suffer[ing] the consequences" of his choices. Overall the trial court made extensive findings and sentenced Jackson to 55 years in prison for first degree murder and 5 years in prison for attempted robbery.

¶ 15 The State asked for clarification on whether the court's 55-year sentence included the 25-year firearm enhancement. Both parties agreed the judge should make explicit the underlying sentence in addition to the enhancement, which would make Jackson's sentence 30 years for first degree murder plus 25 years for the firearm enhancement. The court responded: "Then that's not the appropriate sentence. It would have—okay. So it would have to be 35 years on the murder plus 25 years on the enhancement plus 5 years on the attempt robbery." The sentencing order reflects a 60-year sentence for first degree murder to run consecutively with a 5-year sentence for attempted armed robbery for a total of 65 years in prison.

¶ 16 Jackson's counsel filed a motion to reconsider his sentence, alleging the court had no basis to "change[ ] its sentence from 55 years to 60 years on the murder counts" without presentation of additional aggravation or mitigation. The trial court denied counsel's motion.

¶ 17 Analysis

¶ 18 Jackson raises two arguments. First, he argues the trial court erred in polling less than all jurors. The State does not dispute that the incomplete polling was error; instead, the State argues Jackson forfeited the issue and claims the error was not serious enough to warrant a new trial under the second prong of the plain error doctrine. Jackson also challenges two aspects of his sentence, arguing (i) the trial court erred in considering the victim's characteristics as an aggravating factor and (ii) the trial court erred in "capriciously" increasing Jackson's sentence to 60 years after it had first imposed a sentence of 55 years.

¶ 19 We agree that failing to poll the entire jury constitutes error and, disagreeing with People v. McGhee , 2012 IL App (1st) 093404, 358 Ill.Dec. 46, 964 N.E.2d 715, we find the error serious enough to be considered second-prong plain error. We reverse and remand for a new trial.

¶ 20 At the outset, Jackson acknowledges he forfeited his claim by failing to object at the time of jury polling and failing to include the claim of error in his posttrial motion.

People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) (both contemporaneous objection and posttrial motion raising issue required to preserve issue for appeal). By Illinois Supreme Court Rule, we can address forfeited errors "affecting substantial rights." Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under the rule, a defendant can show plain error one of two ways: (i) where the error is clear and obvious and the evidence is closely balanced such that the error alone threatened to tip the scales of justice against the defendant or (ii) when an error is clear and obvious and the error itself is "so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." (Internal quotation marks omitted.) People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675. Under the second prong, we assume prejudice because of the...