People v. Jamison

• Decision Date: 28 December 2018
• Docket Number: No. 1-16-0409,1-16-0409
• Citation: 430 Ill.Dec. 1,125 N.E.3d 1019,2018 IL App (1st) 160409
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ismaaeel JAMISON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 160409

125 N.E.3d 1019

430 Ill.Dec. 1

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

v.Ismaaeel JAMISON, Defendant-Appellant.

No. 1-16-0409

Appellate Court of Illinois, First District, SIXTH DIVISION.

December 28, 2018

James E. Chadd, Patricia Mysza, and Manuela Hernandez, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Mary L. Boland, and Kathryn A. Schierl, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Defendant-appellant, Ismaaeel Jamison, was arrested and convicted of three counts of aggravated battery. At trial, the State presented evidence that demonstrated defendant punched Hector Hernandez while he attempted to board a Chicago Transit Authority (CTA) bus. The evidence also showed that while on the bus, defendant made insulting or provoking contact with the bus driver, Thomas Hojnacki. After the jury convicted defendant, the trial court sentenced defendant to nine years' imprisonment.

¶ 2 Defendant timely appealed to this court. He raises several arguments before this court: (1) the State failed to prove he acted knowingly when he committed both aggravated batteries; (2) the State failed to prove he knew the victim, Thomas Hojnacki, was over 60 years old; (3) trial counsel provided ineffective assistance when he promised testimony from two witnesses but never called them during the trial; (4) the trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); and (5) he established a prima facie Batson claim so this case should be remanded for a second and third stage Batson proceeding. See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 3 After reviewing the record and for reasons stated more fully below, we affirm the defendant's convictions for aggravated battery. The State presented sufficient evidence from which the jury could infer defendant acted knowingly when he committed the batteries. Trial counsel did not provide ineffective assistance for failing to call two witnesses mentioned in opening statements. The evidence was not closely balanced so defendant is not entitled to remand on the Rule 431(b) violation nor is he entitled to remand for the alleged Batson violation.

¶ 4 JURISDICTION

¶ 5 On September 4, 2015, a jury found defendant guilty of three counts of aggravated battery and not guilty on two other counts of aggravated battery. Defendant filed a motion for a new trial, which the court denied on October 2, 2015. On December 11, 2015, the trial court sentenced defendant to nine years' concurrent imprisonment on the two aggravated batteries. A notice of appeal was filed December 29, 2015. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below.

Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 6 BACKGROUND

¶ 7 The State charged defendant with six counts of aggravated battery for his conduct on a CTA bus on November 22, 2012. The State proceeded to trial on five of the six counts: aggravated battery causing bodily harm to transit passenger Hector Hernandez (count II), aggravated battery causing bodily harm to transit employee Thomas Hojnacki (count III), aggravated battery caused by contact of an insulting or provoking nature with transit employee Thomas Hojnacki (count IV), aggravated battery causing bodily harm to an individual (Thomas Hojnacki) 60 years or older (count V), and aggravated battery caused by contact of an insulting or provoking nature to a victim (Thomas Hojnacki) 60 years or older (count VI).

¶ 8 Prior to the start of trial, defense counsel moved for a behavioral clinical examination of defendant "for physical incapacity to assist the defense" based on a claim defendant had no recollection of the events leading to his arrest. On November 2, 2014, the court held a fitness hearing in which forensic psychologist, Dr. Christopher Cooper, chief of psychology and clinic coordinator for Forensic Clinical Services, testified regarding the interview he conducted with defendant on August 22 and August 29, 2014.

¶ 9 Dr. Cooper testified that he examined defendant and found no signs of acute psychological symptoms. During the examination defendant indicated he understood the relevant aspects of his prosecution and the roles of all the various court personnel. Defendant informed Dr. Cooper that he had no memory of the incident that led to his arrest. Based on defendant's claim, Dr. Cooper administered two memory malingering tests to objectively assess cognitive malingering or memory impairment. Defendant's scores on both tests were "highly indicative of malingering current memory dysfunction or currently a malingering memory impairment." Dr. Cooper opined that defendant was fit to stand trial and assist in his own defense. After hearing from Dr. Cooper, the trial court found defendant fit to stand trial.

¶ 10 Jury selection began on September 1, 2015. During voir dire , defense counsel raised two Batson objections alleging the State improperly dismissed African American venirepersons based solely on their race. Of the four peremptory strikes utilized by the State, three were used against African Americans. After hearing from defense counsel, the trial court (on both motions) concluded defendant failed to establish a prima facie case of systematic exclusion because the State had accepted other African Americans to sit on the jury.

¶ 11 During opening statements, defense counsel argued defendant committed the acts attributed to him but was not guilty because he had not committed the acts "knowingly." Defense counsel informed the jury that defendant's girlfriend would testify and describe to them defendant's actions and demeanor prior to the events on the bus. He also told the jury that Officer Glenn Manguerra, the first responding officer who shot defendant twice, would relay to the jury the appropriate procedure that should have been followed that day. Defense counsel went on to suggest that Officer Manguerra did not follow proper police procedures and the case against defendant was an attempt to justify the officer's misdeeds.

¶ 12 Hojnacki testified that on November 22, 2012, he was 67 years old and working as a CTA bus driver. His route that day was on California Avenue from 71st Street up to the north side of the city.

While driving the bus, he wore his CTA issued shirt, tie, and coat. The bus only had one passenger when defendant boarded at either 68th Street or 67th Street and California Avenue. Upon entering the bus, defendant wore a winter coat and cap and did not display any unusual behavior. Almost immediately, defendant began arguing with the other passenger on the bus. Hojnacki stopped the bus at 65th Street, and the other individual exited while defendant remained on the bus. Another black male boarded the bus at this time. Hojnacki immediately heard defendant and the new passenger arguing, and when he turned around, the men were punching each other. Hojnacki hit the panic button and pulled over at 63rd Street. After pulling over, he hit the panic button again and dialed 911. Defendant and the other man continued to fight even after Hojnacki yelled at them to leave and that the police were on the way.

¶ 13 While stopped, defendant moved toward the front of the bus and without warning punched a Hispanic man, Hernandez, attempting to enter. Defendant hit the man with a closed fist, causing the man's head to hit a metal bar inside the bus. Hernandez exited the bus, and defendant again confronted the black man at the back of the bus. This man then ran out the back door. Hojnacki was still seated in the driver's seat when defendant came back to the front of the bus. Defendant exited through the front door, grabbed a teenage girl from the sidewalk, and dragged her back onto the bus. The girl's mother followed defendant screaming and hitting him.

¶ 14 Hernandez, who had fled to a nearby currency exchange, observed the situation and went back to the bus to lend assistance. Hernandez approached defendant, who punched him in the face again. Despite the punch, Hernandez was able to get the defendant's attention long enough for the teenage girl to escape off the bus. Hernandez also exited the bus and returned to the currency exchange until the police arrived.

¶ 15 Defendant remained on the bus and proceeded to remove both his coat and shirt. He yelled at Hojnacki, "this is my mother*** bus" and ordered him to drive. Hojnacki told defendant the bus had broken down and he had called for help. Defendant then grabbed Hojnacki by the sleeve of the shirt. Hojnacki told defendant "[Y]ou don't want to fight me, I'm just an old man." Defendant then released Hojnacki from his grip.

¶ 16 Officer Manguerra of the Chicago police was the first officer to arrive on the scene. He had been flagged down by a bystander, Ana Torres, and was alone in his car. Defendant exited the bus to confront the officer. Hojnacki remained on the bus but could see the pair and heard the officer tell defendant to "take it easy." Officer Manguerra drew his weapon as defendant walked towards him and then away. Defendant returned to the bus several times in an attempt to retrieve his shirt and coat, but Hojnacki would not open the door. Defendant again approached Officer Manguerra "as if he wanted to tackle" the officer. Officer Manguerra responded by shooting the defendant twice. Defendant fell to the ground. He attempted to stand back up but was tased by other officers at the scene.

¶ 17 Several other witnesses also testified as to what they observed that day. Hernandez explained that he was on his phone as he attempted to enter the bus and had not even paid his fare before defendant punched him in...