2021 IL App (1st) 182118-U No. 1-18-2118 Order filed May 26, 2021 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 15200 ) CARLOS JENKINS, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is reversed and the cause remanded where defendant presented an arguable claim of ineffective assistance based on trial counsel’s failure to cross-examine a witness in order to elicit the content of defendant’s inculpatory statement.
¶2 Defendant Carlos Jenkins appeals from the circuit court’s summary dismissal of his
petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et
seq. (West 2018)). On appeal, defendant contends that the court erroneously dismissed the petition No. 1-18-2118
because it stated an arguable claim that trial counsel was ineffective for failing to cross-examine a
State’s witness to elicit defendant’s admission that he committed the offense with a plastic toy gun
when the issue of whether defendant possessed an actual firearm was contested at trial. For the
following reasons, we reverse and remand for further proceedings under the Act.
¶3 Following a bench trial, defendant was found guilty of armed robbery with a firearm (720
ILCS 5/18-2(a)(2) (West 2012)) and sentenced to 25 years in prison. We set forth only the trial
evidence relevant to the issue on appeal. Prior to trial, defendant filed a motion for discovery
requesting any written or recorded statements and the substance of any oral statements made by
defendant. In its answer to discovery, the State stated that it would use “statements made by
defendant” at trial.
¶4 At trial, Brian Green testified that on July 15, 2012, he was working at an adult novelty
store on West Randolph Street in Chicago. Around 11 a.m., defendant entered the store and
approached the counter. Defendant then “pulled out a gun” and demanded money. Green described
the firearm as black with a brown handle. Defendant told Green, “ ‘Hurry up or I’ll shoot you.’ ”
Green removed money from the cash register and handed it to defendant, who then left the store.
Green contacted the police, spoke to officers, and told them that the store had a video surveillance
system. He later identified defendant in a line-up. At trial, Green identified himself and defendant
in footage from the surveillance system and in a still photograph from the footage which he
testified showed “defendant with a gun in his hand.” 1
1 Neither the video nor the photograph is included in the record on appeal.
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¶5 During cross-examination, Green testified that he was behind a “stomach high” counter but
saw defendant draw the firearm because defendant “stepped back.” The firearm was pointed at
him “[b]riefly,” for only one or two seconds.
¶6 Chicago police detective Robert Smith spoke with defendant on July 26, 2012, at a police
station. Smith advised defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
The State asked whether defendant made an “inculpatory statement,” and Smith answered
affirmatively. Smith then contacted Green and was present when Green identified defendant. Trial
counsel did not cross-examine Smith.
¶7 During closing argument, trial counsel argued there was “nothing in the evidence” to
indicate that defendant was armed with a firearm or even a dangerous weapon. Green supplied “no
details” about the object, no firearm was recovered, and the video and photograph did not clearly
show the object in defendant’s hand. Counsel concluded that the State could not meet its burden
based solely on Green’s “vague” description, and asked the court to find defendant guilty of the
lesser-included offense of robbery. The State responded that Green observed the firearm and heard
defendant say to hurry up or be shot and that evidence, combined with the video and photograph,
was sufficient to establish that defendant possessed a firearm.
¶8 In finding defendant guilty, the court acknowledged there was not an “extensive”
description of the firearm, but that Green described it as black with a brown handle and
“unequivocally” stated it was a firearm. The court concluded that defendant’s threat to shoot Green
and his actions on the video indicated he was not holding “something innocent” like a “plastic gun
or piece of metal.” The court noted that “[t]here was nothing in the record that indicated it was
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something other than a gun.” Relying on Green’s testimony and the “very clear” video, the court
found defendant guilty of armed robbery with a firearm.
¶9 Defendant filed two motions seeking a new trial alleging, inter alia, that the State failed to
prove beyond a reasonable doubt that the object he possessed was an actual firearm when Green
gave a vague description of the object and only saw it for a “brief moment.” The trial court denied
defendant a new trial and sentenced him to 25 years in prison.
¶ 10 On direct appeal, we rejected defendant’s contention that his conviction should be reduced
because there was insufficient evidence that he was actually armed with a firearm. See People v.
Jenkins, 2016 IL App (1st) 141673-U.
¶ 11 On May 15, 2018, defendant filed the instant pro se postconviction petition alleging that
he was denied effective assistance by trial counsel’s failure to cross-examine Smith as to the
content of defendant’s inculpatory statement in order to elicit that defendant admitted to the
robbery but asserted he used a “plastic toy gun.” The petition further asserted that defendant was
denied due process because the State elicited false testimony that his statement was inculpatory
when, in fact, defendant “expressly” denied an element of the charged offense. The petition finally
alleged that defendant was denied effective assistance on direct appeal when counsel did not raise
these issues.
¶ 12 Attached to the petition were handwritten and typed summaries of defendant’s July 26,
2012 statement. The handwritten summary, part of a “General Progress Report” by the Chicago
Police Department detective division, stated that defendant robbed a cashier and displayed a
“toy/replica gun” during the offense. The typed summary stated that at 10 p.m., in the presence of
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Smith and an assistant State’s Attorney, defendant stated that he robbed the store with a “plastic
toy gun” because he needed money for crack.
¶ 13 On August 2, 2018, the circuit court summarily dismissed the petition as frivolous and
patently without merit in a written order. In relevant part, the court stated that even if defendant’s
statements were admissible, “there is no arguable probability the outcome would have been
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2021 IL App (1st) 182118-U No. 1-18-2118 Order filed May 26, 2021 Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 15200 ) CARLOS JENKINS, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is reversed and the cause remanded where defendant presented an arguable claim of ineffective assistance based on trial counsel’s failure to cross-examine a witness in order to elicit the content of defendant’s inculpatory statement.
¶2 Defendant Carlos Jenkins appeals from the circuit court’s summary dismissal of his
petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et
seq. (West 2018)). On appeal, defendant contends that the court erroneously dismissed the petition No. 1-18-2118
because it stated an arguable claim that trial counsel was ineffective for failing to cross-examine a
State’s witness to elicit defendant’s admission that he committed the offense with a plastic toy gun
when the issue of whether defendant possessed an actual firearm was contested at trial. For the
following reasons, we reverse and remand for further proceedings under the Act.
¶3 Following a bench trial, defendant was found guilty of armed robbery with a firearm (720
ILCS 5/18-2(a)(2) (West 2012)) and sentenced to 25 years in prison. We set forth only the trial
evidence relevant to the issue on appeal. Prior to trial, defendant filed a motion for discovery
requesting any written or recorded statements and the substance of any oral statements made by
defendant. In its answer to discovery, the State stated that it would use “statements made by
defendant” at trial.
¶4 At trial, Brian Green testified that on July 15, 2012, he was working at an adult novelty
store on West Randolph Street in Chicago. Around 11 a.m., defendant entered the store and
approached the counter. Defendant then “pulled out a gun” and demanded money. Green described
the firearm as black with a brown handle. Defendant told Green, “ ‘Hurry up or I’ll shoot you.’ ”
Green removed money from the cash register and handed it to defendant, who then left the store.
Green contacted the police, spoke to officers, and told them that the store had a video surveillance
system. He later identified defendant in a line-up. At trial, Green identified himself and defendant
in footage from the surveillance system and in a still photograph from the footage which he
testified showed “defendant with a gun in his hand.” 1
1 Neither the video nor the photograph is included in the record on appeal.
-2- No. 1-18-2118
¶5 During cross-examination, Green testified that he was behind a “stomach high” counter but
saw defendant draw the firearm because defendant “stepped back.” The firearm was pointed at
him “[b]riefly,” for only one or two seconds.
¶6 Chicago police detective Robert Smith spoke with defendant on July 26, 2012, at a police
station. Smith advised defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
The State asked whether defendant made an “inculpatory statement,” and Smith answered
affirmatively. Smith then contacted Green and was present when Green identified defendant. Trial
counsel did not cross-examine Smith.
¶7 During closing argument, trial counsel argued there was “nothing in the evidence” to
indicate that defendant was armed with a firearm or even a dangerous weapon. Green supplied “no
details” about the object, no firearm was recovered, and the video and photograph did not clearly
show the object in defendant’s hand. Counsel concluded that the State could not meet its burden
based solely on Green’s “vague” description, and asked the court to find defendant guilty of the
lesser-included offense of robbery. The State responded that Green observed the firearm and heard
defendant say to hurry up or be shot and that evidence, combined with the video and photograph,
was sufficient to establish that defendant possessed a firearm.
¶8 In finding defendant guilty, the court acknowledged there was not an “extensive”
description of the firearm, but that Green described it as black with a brown handle and
“unequivocally” stated it was a firearm. The court concluded that defendant’s threat to shoot Green
and his actions on the video indicated he was not holding “something innocent” like a “plastic gun
or piece of metal.” The court noted that “[t]here was nothing in the record that indicated it was
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something other than a gun.” Relying on Green’s testimony and the “very clear” video, the court
found defendant guilty of armed robbery with a firearm.
¶9 Defendant filed two motions seeking a new trial alleging, inter alia, that the State failed to
prove beyond a reasonable doubt that the object he possessed was an actual firearm when Green
gave a vague description of the object and only saw it for a “brief moment.” The trial court denied
defendant a new trial and sentenced him to 25 years in prison.
¶ 10 On direct appeal, we rejected defendant’s contention that his conviction should be reduced
because there was insufficient evidence that he was actually armed with a firearm. See People v.
Jenkins, 2016 IL App (1st) 141673-U.
¶ 11 On May 15, 2018, defendant filed the instant pro se postconviction petition alleging that
he was denied effective assistance by trial counsel’s failure to cross-examine Smith as to the
content of defendant’s inculpatory statement in order to elicit that defendant admitted to the
robbery but asserted he used a “plastic toy gun.” The petition further asserted that defendant was
denied due process because the State elicited false testimony that his statement was inculpatory
when, in fact, defendant “expressly” denied an element of the charged offense. The petition finally
alleged that defendant was denied effective assistance on direct appeal when counsel did not raise
these issues.
¶ 12 Attached to the petition were handwritten and typed summaries of defendant’s July 26,
2012 statement. The handwritten summary, part of a “General Progress Report” by the Chicago
Police Department detective division, stated that defendant robbed a cashier and displayed a
“toy/replica gun” during the offense. The typed summary stated that at 10 p.m., in the presence of
-4- No. 1-18-2118
Smith and an assistant State’s Attorney, defendant stated that he robbed the store with a “plastic
toy gun” because he needed money for crack.
¶ 13 On August 2, 2018, the circuit court summarily dismissed the petition as frivolous and
patently without merit in a written order. In relevant part, the court stated that even if defendant’s
statements were admissible, “there is no arguable probability the outcome would have been
different had counsel elicited [defendant’s] statement he used a toy gun.” Consequently, defendant
was not arguably prejudiced by trial counsel’s failure to adduce that statement from Smith.
¶ 14 The Act provides a procedural mechanism through which a defendant may assert a
substantial denial of his constitutional rights in the proceedings which resulted in his conviction.
725 ILCS 5/122-1 et seq. (West 2018). At the first stage of proceedings under the Act, the
defendant files a petition, which the circuit court independently reviews and, taking the allegations
as true, determines whether it is frivolous or is patently without merit. People v. Tate, 2012 IL
112214, ¶ 9. A petition should be summarily dismissed as frivolous or patently without merit only
when it has no arguable basis in either fact or law. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009).
A petition lacks an arguable basis in fact or law when it “is based on an indisputably meritless
legal theory or a fanciful factual allegation.” Id. at 16. Fanciful factual allegations are those which
are “fantastic or delusional,” and an indisputably meritless legal theory is one that is “completely
contradicted by the record.” Id. at 16-17. We review the summary dismissal of a postconviction
petition de novo. Id. at 9.
¶ 15 When considering a claim of ineffective assistance of trial counsel at the first stage of
postconviction proceedings, the defendant must show both that counsel’s performance was
arguably deficient, and that he was arguably prejudiced by counsel’s deficient performance,
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namely, that it affected the outcome of his trial. Id. at 17 (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)).
¶ 16 Here, defendant contends that his petition set forth an arguable claim that he was denied
effective assistance when trial counsel failed to cross-examine Smith as to the content of
defendant’s inculpatory statement once the State elicited that defendant made the statement.
Defendant concludes that the content of this statement, that he committed the offense with a plastic
toy gun, would have supported the defense theory that he did not possess an actual firearm and
contradicted Green’s testimony that defendant possessed a firearm.
¶ 17 Decisions on cross-examination usually will not support a claim for ineffective assistance
because they are matters of trial strategy involving “the exercise of professional judgment which
is entitled to substantial deference from a reviewing court.” People v. Pecoraro, 175 Ill. 2d 294,
326-27 (1997). However, when reviewing a summary dismissal under the Act, this court does not
consider whether trial counsel’s actions or inactions were based on trial strategy. See Tate, 2012
IL 112214, ¶ 22 (arguments related to trial strategy are “inappropriate for the first stage” of
postconviction proceedings).
¶ 18 In the case at bar, it is at least arguable that trial counsel was ineffective in failing to cross-
examine Smith as to the content of defendant’s inculpatory statement. Smith’s testimony that
defendant made an inculpatory statement created the reasonable inference that defendant confessed
to committing the charged offense, armed robbery with a firearm. However, the documents
attached to defendant’s pro se petition stated that defendant admitted to committing the offense
with a plastic toy gun. We cannot say that defendant’s legal theory that counsel could have cross-
examined Smith as to the content of defendant’s inculpatory statement in order to clarify that
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defendant admitted he committed a robbery, but not a robbery armed with a firearm, is indisputably
meritless. See People v. Liner, 356 Ill. App. 3d 284, 292-93 (2005) (“Under the doctrine of curative
admissibility, a party may present inadmissible evidence where necessary to cure undue prejudice
resulting from an opponent’s introduction of similar evidence.”); see also People v. Mandarino,
2013 IL App (1st) 111772, ¶ 29 (“The doctrine [of curative admissibility] is protective, and only
shields a party from unduly prejudicial inferences raised by the other side.”).
¶ 19 Moreover, defendant was arguably prejudiced when Green admitted he only observed the
object at issue for a few seconds and described it as black with a brown handle. Evidence that
defendant admitted the object was a plastic toy gun would have supported the defense theory that
he was not armed with an actual firearm. Trial counsel may be considered ineffective for failing
to present exculpatory evidence of which he or she is aware. People v. Upshaw, 2017 IL App (1st)
151405, ¶ 39. Additionally, when making its guilty finding, the trial court specifically noted
“[t]here was nothing in the record that indicated it was something other than a gun.” Thus, it is at
least arguable that defendant was prejudiced by counsel’s failure to cross-examine Smith in order
to elicit the content of the inculpatory statement. See People v. Wilson, 2013 IL App (1st) 112303,
¶ 20 (at the first stage of proceedings, a defendant need only show that “it is arguable that his
counsel was deficient and it is arguable that the outcome of his case would have been different
absent the deficient representation” (emphasis in original)).
¶ 20 Accordingly, we find that defendant satisfied the low threshold applicable to first-stage
proceedings (see People v. Allen, 2015 IL 113135, ¶ 24), and set forth an arguable claim for
ineffective assistance of counsel. We therefore reverse the summary dismissal of the instant
petition and remand the matter to the circuit court for further proceedings under the Act. We take
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no position on the merits of defendant’s claim or his ability to prove that he was denied effective
assistance of counsel. See Tate, 2012 IL 112214, ¶ 26.
¶ 21 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand the cause for further proceedings under the Act.
¶ 22 Reversed and remanded.
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