People v. Jackson

2021 IL App (1st) 190263

196 N.E.3d 85

457 Ill.Dec. 961

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

v.Ceno JACKSON, Defendant-Appellant.

No. 1-19-0263

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion Filed March 25, 2021

James E. Chadd, Douglas R. Hoff, and Stephanie T. Puente, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Brian K. Hodes, and Leslie Billings, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Ceno Jackson appeals from the second-stage dismissal of his petition for postconviction relief and seeks a remand for further second-stage proceedings. Defendant claims that he was denied the reasonable assistance of postconviction counsel when his appointed counsel failed to adequately support his pro se claim that his trial counsel was ineffective.

¶ 2 Defendant was convicted after a jury trial of being an armed habitual criminal and sentenced to 16 years in the Illinois Department of Corrections (IDOC). The arrest stemmed from a police officer's recovery of a handgun from defendant's pants pocket after an anonymous tip that an African American "male *** with a red shirt" on a particular street corner "had a gun on his person."

¶ 3 On direct appeal, defendant claimed that the trial court erred in denying his motion to suppress evidence where the police lacked reasonable suspicion to stop him. People v. Jackson , 2014 IL App (1st) 121926-U, ¶ 2, 2014 WL 2854977. Defendant argued that the officers did not notice a bulge in his pants pocket prior to seizing him and, thus, the stop was based entirely on a prior anonymous tip that lacked enough detail to justify the stop by itself. Jackson , 2014 IL App (1st) 121926-U, ¶¶ 14, 19. On direct appeal, we found that there was evidence in the record to support a finding that, "[p]rior to effectuating the Terry stop in this case, [the police officer] personally observed a bulge which he believed to be a gun in defendant's pants pocket," and which, in turn, "corroborated the assertion of illegality in the tip." Jackson , 2014 IL App (1st) 121926-U, ¶ 28.

¶ 4 After we denied his direct appeal, defendant filed the pro se petition at issue, in which he alleged that he asked his trial counsel repeatedly to introduce the red shirt and jeans that he was wearing when arrested, so that the jury could observe "how long [the] shirt was and how baggy the jeans were to demonstrate that" the officer could not have possibly observed a bulge. After postconviction counsel was appointed and a supplemental petition was filed, the State filed a motion to dismiss, which was granted.

¶ 5 On this appeal, defendant argues that, even with the assistance of counsel, the record failed to indicate whether there was a photo of defendant wearing baggy clothes when he was arrested, whether his clothing was inventoried by jail personnel, whether the clothing was in storage, or whether trial counsel had access to the clothing. Defendant claims that postconviction counsel rendered unreasonable assistance when the record lacked any indication whether she had attempted to obtain the clothing, the jail inventory sheet, or arrest photos.

¶ 6 For the following reasons we vacate the second-stage dismissal and remand for further second-stage proceedings.

¶ 7 BACKGROUND

¶ 8 On March 30, 2011, defendant moved to quash his arrest and suppress evidence on the ground that his conduct, "prior to his arrest, was such as would not be interpreted by the arresting officers as constituting probable cause that [he] had committed or was about to commit a crime." On May 5, 2011, the sole witness at the suppression hearing was Officer Sayeed Tanovic, one of the two arresting officers.

¶ 9 Officer Tanovic testified that on August 1, 2010, at 12:20 a.m., he was in civilian clothes, in an unmarked police vehicle, in the vicinity of West Windsor Avenue in Chicago, when he first observed defendant standing on the sidewalk. Officer Tanovic was with his partner, Officer Pacocha.¹ Defendant did not appear to be breaking any laws or making any threatening or unusual movements. No weapon was visible on defendant's person, and nothing was protruding from his pocket. Officer Tanovic did not have a warrant for defendant's arrest.

¶ 10 Before noticing defendant, Officer Tanovic had received a call concerning an anonymous informant who had observed an African American "male *** with a red shirt" in the vicinity of Sheridan Road and Wilson Avenue with "a gun on his person." The informant did not describe the individual's age, facial hair, height, or weight or any tattoos or markings. After receiving this call, Officer Pacocha told Officer Tanovic that, "a few minutes before," he had observed an African American "male *** with a red shirt" walking on Sheridan Road toward Windsor Avenue. Office Tanovic testified that Windsor Avenue is a half-block south of Wilson Avenue. The two officers were only a few blocks away, so they drove toward Sheridan and Wilson.

¶ 11 After observing defendant in a red T-shirt, the officers did not turn on their lights or siren or draw their weapons. While seated in the driver's seat of his vehicle, Officer Tanovic could not discern a bulge in defendant's pocket. Officer Tanovic, who was wearing a police "star" on his vest, exited his vehicle, approached on foot, and announced his office. Defendant did not try to flee. When Officer Tanovic stated, "Police, let me see your hands," defendant put his hands up.

¶ 12 Officer Tanovic testified: "Upon approach, I observed the bulge in his front right jeans pocket. And once I approached him, I conducted a pat down search of that pocket." Officer Tanovic clarified that he observed the bulge before he reached defendant. The pat down revealed the presence of a "heavy, metal object," which the officer recovered. The object was a .25-caliber Raven Arms pistol, five to six inches in length, that was completely inside defendant's pocket.

¶ 13 Officer Tanovic testified that he had been a Chicago police officer for 5½ years and that he had been "in the military since the age of 18. So[,] basically all my adult life, I've been around weapons." At the time of the offense, Officer Tanovic had made numerous arrests in the vicinity of Sheridan Road and Wilson Avenue for narcotics and "gang-related" activity, and he was aware of shootings in the area. Based on his experience in the area and the anonymous tip, he feared for his safety as he approached defendant and, therefore, conducted the pat down. Based on his experience in the military and as a police officer, he recognized the object he felt "as a gun."

¶ 14 In closing argument, defense counsel argued that this case was similar to Florida v. J.L. , 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), in which the United States Supreme Court found that an anonymous tip, by itself, was insufficient to justify a stop, when the tip indicated only that "a young [African American] male [was] standing at a particular bus stop and wearing a plaid shirt [and] was carrying a gun."

¶ 15 After listening to arguments from both sides, the trial court found that, when "the seasoned officer both in the police force and in the armed forces and very familiar with weapons" approached defendant, "he observed an unusual bulge in the defendant's clothing," which is "what makes this case different from the case cited by defendant." Based on this "distinctive point between the case cited and the case at hand," the trial court denied defendant's motion to quash his arrest and suppress the resulting evidence.

¶ 16 At trial, defense counsel argued in opening statement that "you'll hear in the evidence what [defendant] was wearing, and the evidence will say it's a red shirt. But they won't show that he's wearing baggy pants ***."

¶ 17 Both Officer Tanovic and his partner, Officer Pacocha, testified at trial. Officer Tanovic's testimony was substantially similar to the testimony he provided at the hearing described above. Officer Tanovic was shown People's exhibit No. 1, which he identified as a photo of defendant taken on the night of the arrest that depicted defendant's red shirt. On cross-examination, when defense counsel asked whether defendant was wearing "baggy pants," Officer Tanovic replied defendant was wearing "perfect fit pants." Officer Tanovic testified that he first observed "the bulge about eight to ten feet away." At the police station when defendant was being processed, Officer Tanovic observed that defendant had "a lot of personal property," including "pay stubs, Social Security, some jewelry," and that he did not "remember how many cell phones." On redirect, Officer Tanovic explained that he did not inventory the red shirt because "[w]e don't send our prisoners to lockup without wearing clothes on."

¶ 18 Officer Pacocha's testimony was similar to his partner's testimony, except that he testified that he did not observe a bulge in defendant's pants pocket until after defendant raised his hands in the air. When Officer Pacocha observed the bulge, he made eye contact with his partner, and they "gave each other a look that we were both seeing the same thing." When the officers reached defendant, Officer Tanovic "grabbed [defendant's] right pants pocket" from the outside of the garment and then removed the handgun from the pocket. After defendant was arrested and transported to the police station, Officer Pacocha read him his Miranda rights. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant then stated:

"A guy in a black Cadillac gave [the handgun] to me at Sheridan and Wilson. *** [H]e was starting to freak out because he saw you guys in the area. I think he might have been on meth. After he gave me the gun, I just walked away. I think he called on me because I just walked away. I know I'm not supposed to

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