People v. Jenkins

2021 IL App (1st) 182118-U
Appellate Court of Illinois·Decided May 26, 2021·No. 1-18-2118·Unpublished·Cited by 2 cases

Opinion

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

-3- No. 1-18-2118

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

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