                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Jackson, 2012 IL App (1st) 102035




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DORIAN JACKSON, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-2035


Filed                      July 10, 2012


Held                       Although defendant waived his objection to the prosecutor’s
(Note: This syllabus       misstatement of the evidence during rebuttal closing argument by failing
constitutes no part of     to raise the issue at trial, the appellate court was entitled to review the
the opinion of the court   issue under the plain error doctrine, and based on the closeness of the
but has been prepared      evidence and the substantial prejudice defendant suffered, his conviction
by the Reporter of         was reversed and the cause was remanded for a new trial.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-C6-61704; the
Review                     Hon. Frank Zelezinski, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Eve
                           Reilly, and Michelle D. Hemphill, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Justices Cunningham and Connors concurred in the judgment and
                           opinion.



                                              OPINION

¶1           Defendant, Dorian Jackson, appeals his conviction after a jury trial of aggravated
        unlawful use of a weapon and his sentence of one year’s imprisonment. On appeal, Jackson
        contends his conviction must be reversed and the cause remanded for a new trial because (1)
        the prosecutor’s misstatement of the evidence during rebuttal argument was prejudicial error;
        (2) the Illinois aggravated unlawful use of a weapon statute is unconstitutional; (3) one of the
        jurors who convicted him did not reside in Cook County; and (4) the trial court erred in
        denying his pretrial motion to exclude evidence of cannabis found in his car where it was not
        relevant to the charge against him. For the following reasons, we reverse Jackson’s
        conviction and remand for a new trial.

¶2                                           JURISDICTION
¶3          The trial court sentenced Jackson on July 16, 2010, and he filed a timely notice of appeal
        on July 16, 2010. 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. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶4                                          BACKGROUND
¶5           Jackson was charged with four counts of aggravated unlawful use of a weapon. Prior to
        trial, he filed a motion to quash arrest and suppress evidence regarding the cannabis found
        in his car. Jackson testified at the hearing that he was driving down Sauk Trail Road with an
        air freshener hanging from his rear view mirror when a police officer made a U-turn, turned
        on his flashing lights, and pulled Jackson over. Officer Leo Garza testified that he saw
        Jackson driving down Sauk Trail Road with a Christmas tree-shaped air freshener hanging
        from the mirror. The air freshener obstructed Jackson’s view and he also switched lanes

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       without turning on his signal. Officer Peter Loquercio, the backup officer who arrived at the
       scene during the stop, testified that the Christmas tree-shaped air freshener obstructed the
       driver’s view. The trial court denied Jackson’s motion, ruling that the officer “had a
       reasonable articulable suspicion that a traffic violation, in fact, was being committed. He ***
       was justified in stopping the vehicle at that point to make that further determination.”
¶6         At trial, Officer Garza testified that on September 23, 2008, at around 6 p.m., he was
       working the afternoon shift. He was traveling eastbound on Sauk Trail Road when he
       observed a red Oldsmobile traveling westbound switch lanes without using turn signals. He
       made a U-turn and pulled over the red Oldsmobile. When he approached the vehicle he
       noticed the engine was turned off and Jackson was sitting in the driver’s seat. Officer Garza
       also saw a plastic baggie containing a green leafy substance in a cupholder of the center
       console. Officer Garza asked to see Jackson’s license and insurance, but instead Jackson
       handed him a traffic ticket and state identification. Officer Garza soon learned that Jackson’s
       driver’s license had been suspended. When Officer Loquercio arrived on the scene, Officer
       Garza asked Jackson to step out of the car so that they could place him under arrest for
       driving with an expired license and for possessing cannabis.
¶7         Officer Garza stated that Jackson started his car and tried to put the vehicle into drive.
       Officer Garza, fearing for his safety, drew his weapon and ordered Jackson to exit the
       vehicle. He again ordered Jackson to exit the car and Jackson got out. Officer Garza
       handcuffed him, patted him down, and placed him in the back of the police car. During this
       time, Officer Loquercio watched the passenger in the car. When Officer Garza returned to
       Jackson’s car, Officer Loquercio got the passenger out of the car and handcuffed him. Officer
       Loquercio recovered a bag of cannabis from the passenger and also notified Officer Garza
       that he had found a gun in the driver’s side of the car. During a search of the entire vehicle,
       Officer Garza opened the center console and found a larger bag containing cannabis.
¶8         The gun recovered from Jackson’s vehicle was a Smith and Wesson 9-millimeter
       handgun with a magazine and 10 rounds of ammunition. The gun was transferred to the
       police department and then to the crime lab. A check of the license plates confirmed that
       Jackson owned the red Oldsmobile.
¶9         Officer Loquercio testified that on September 23, 2008, he was working as a patrol
       officer. While monitoring radio traffic, he heard Officer Garza inquire about a license plate
       number which usually means a traffic stop was in progress. After hearing the location of
       Officer Garza’s stop, Officer Loquercio traveled to the scene. He saw Officer Garza standing
       next to the driver’s side window of a red Oldsmobile. He got out of his car and heard Officer
       Garza ask Jackson to get out of the car. Jackson then made an aggressive, quick motion,
       started the car, and attempted to put the car into drive. He removed his weapon and pointed
       it at defendant because he feared for his life. The officers shouted verbal commands at
       Jackson to put the car in park and get out of the car. Once Jackson exited the vehicle, Officer
       Loquercio kept his weapon out while Officer Garza returned his weapon to his holster before
       handcuffing Jackson. Officer Loquercio secured the passenger and while performing a pat-
       down he found cannabis.
¶ 10       Both officers began a full search of the red Oldsmobile. Officer Garza found more


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       cannabis, and Officer Loquercio opened the driver’s side door and noticed a bulge under the
       floor mat. He lifted the floor mat and recovered a Smith and Wesson 9-millimeter
       semiautomatic pistol. The weapon was uncased and loaded. The State rested and Jackson
       moved for a directed verdict which the trial court denied.
¶ 11       Jackson testified that he resided in Richton Park, Illinois and worked at a shop called
       Bubbles and Beyond. He acknowledged that he owned the red Oldsmobile and he did have
       an air freshener hanging from his rearview mirror. On September 23, 2008, he went to his
       cousin Matthew’s house to watch music videos. While there, he agreed to let his other cousin
       Kenny borrow the car because Kenny had to run some errands. Three hours later, Kenny
       returned with a friend. They joined Jackson and Matthew to watch videos before Jackson
       drove Kenny home to Ford Heights, Illinois. When driving Kenny home, Matthew and
       Kenny’s friend rode in the back seat. After arriving at Kenny’s home, they stayed around for
       about three or four hours before Jackson and Matthew left.
¶ 12       Jackson drove westbound on Sauk Trail Road in the far right lane because he was
       preparing to make a right turn onto Richton Road to take Matthew home. He stated that he
       did not switch lanes. A police car pulled him over as he passed Ashland. Officer Garza
       approached Jackson’s vehicle and asked if he could search the car. Jackson handed Officer
       Garza his insurance, traffic citation, and state identification. Officer Garza asked again if he
       could search the car. Jackson asked him why he was being pulled over and Officer Garza
       opened the driver’s side door and pulled Jackson out of the car. He took Jackson to the rear
       of the car, patted him down, handcuffed him, and took him to the police car.
¶ 13       Jackson testified that he saw another police car at the scene and two officers got out of
       the other car and began to search his car while Matthew was still inside. Jackson stated that
       a handgun and a bag of marijuana were recovered from his vehicle. He further testified that
       he did not put the gun in his car, had no knowledge that the gun was in his car, and never saw
       the gun in his car before it was recovered by the police. He stated that the gun was not in his
       car when he went to Matthew’s house that morning. Jackson testified that he did not know
       where Kenny drove the car and when Kenny returned, Jackson did not search his vehicle.
       Jackson also denied that he tried to start his car after being pulled over or that he attempted
       to shift gears.
¶ 14       The jury found Jackson guilty of one count of aggravated unlawful use of a weapon and
       the trial court denied his motion for a new trial on April 29, 2010. After hearing arguments
       in mitigation and aggravation, the trial court sentenced Jackson to one year imprisonment.
       Jackson filed this timely appeal.

¶ 15                                        ANALYSIS
¶ 16        Jackson contends he was denied a fair trial when the prosecutor remarked during rebuttal
       closing argument that Jackson had told officers he found a gun in his car. The State argues
       that Jackson has waived this issue on appeal because he failed to object to the statement at
       trial. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for appeal,
       defendant must both object at trial and raise the issue in a posttrial motion). However, where
       the prosecutor misstated the evidence in closing argument, a reviewing court may review the

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       issue under plain error. People v. Robinson, 157 Ill. 2d 68, 84 (1993). The plain error
       doctrine allows reviewing courts to address forfeited errors if “(1) the evidence is close,
       regardless of the seriousness of the error” or “(2) the error is serious, regardless of the
       closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
¶ 17        Error clearly occurred here. Jackson never stated that he told police he found a gun in his
       car. Furthermore, the evidence at trial was comprised of conflicting testimony by opposing
       witnesses. Although cannabis and a weapon were recovered from Jackson’s car, Jackson
       testified that other people had been in his car that day and a passenger was in the car when
       Officer Garza stopped Jackson. No physical evidence linked Jackson to the recovered gun.
       Where judgment rests solely on the credibility of witnesses at trial, the evidence is closely
       balanced. People v. Steidl, 177 Ill. 2d 239, 256 (1997). We will review Jackson’s claim as
       plain error.
¶ 18        Jackson challenges the following remark made by the prosecutor in rebuttal during
       closing argument:
                “Defendant[‘s] own words, he told the officers he found a gun in his car. He can’t
            deny that. He can’t deny that there was, in fact, a gun in his car. He can’t admit it was his,
            but he can’t deny it was there.”
       He argues that no one testified at trial that he told officers about the gun found in his car, and
       the misstatement “was completely devastating” to his defense, which was based on his claim
       that he did not know a gun was in his car. A prosecutor has great latitude in closing argument
       and may argue fair and reasonable inferences drawn from the evidence at trial. People v.
       Porter, 372 Ill. App. 3d 973, 978 (2007). However, he may not argue facts not based on
       evidence in the record. People v. Johnson, 208 Ill. 2d 53, 115 (2003). A prosecutorial
       misstatement does not necessarily deprive a defendant of a fair trial. People v. Patrick, 205
       Ill. App. 3d 222, 228 (1990). A reviewing court will reverse a jury’s verdict based upon
       improper comments during closing arguments only if such remarks “resulted in substantial
       prejudice to the defendant and constituted a material factor in his conviction.” People v.
       Brooks, 345 Ill. App. 3d 945, 951 (2004).
¶ 19        To convict Jackson of aggravated unlawful use of a weapon under the statute, the State
       must show that Jackson knowingly carried in his vehicle a gun that was uncased, loaded, and
       immediately accessible at the time of the offense. See 720 ILCS 5/24-1.6 (West 2008). The
       parties do not dispute that the determinative issue at trial was whether Jackson had
       knowledge that the gun was in his car when Officer Garza pulled him over. As such, we find
       that the prosecutor’s improper remarks substantially prejudiced Jackson. The evidence here
       did not overwhelmingly favor the State. The only evidence the State presented that could
       demonstrate Jackson’s knowledge of the gun in his car came from the testimony of Officer
       Garza. He testified that Jackson attempted to restart his car and flee when Officer Garza
       instructed him to exit his vehicle so he could be placed under arrest for having no valid
       license and for possessing cannabis. Jackson, however, testified that he never attempted to
       restart his car after being stopped and that Officer Garza pulled him out of the car to place
       him under arrest. Although Jackson acknowledged that the police recovered cannibis and a
       gun from his car, he denied having any knowledge that the gun was in his car. In fact,


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       Jackson consistently maintained throughout the trial that he had no knowledge the gun was
       in his car and others had access to his vehicle that day.
¶ 20       Jackson’s position that he did not know of the gun in his vehicle comprised the core of
       his defense. The State’s misstatement that Jackson actually told police that he found a gun
       in his car directly contradicted Jackson’s trial testimony that he had no knowledge of the gun.
       Adding to the harm, Jackson had no opportunity to respond to the misstatement because it
       was made during the State’s rebuttal closing argument. Given the closeness of the evidence,
       and the fact that the misstatement spoke directly to the issue of Jackson’s knowledge of the
       gun, we find that the error substantially prejudiced Jackson and was a material factor in his
       conviction. Although the trial court did subsequently instruct the jury that closing argument
       is not considered evidence, such admonishment was insufficient to cure the error in this case.
       We therefore reverse Jackson’s conviction and remand for a new trial. See Brooks, 345 Ill.
       App. 3d at 953 (if the improper statement “has the effect of undermining the entire trial,
       reversal for a new trial is warranted”).1
¶ 21       We must now address the double jeopardy issue arising from our reversal of Jackson’s
       conviction. The double jeopardy clause of the United States Constitution prohibits the State
       from having another opportunity to try a case unless it has in the first trial presented
       sufficient evidence to prove the defendant guilty beyond a reasonable doubt. People v.
       Macon, 396 Ill. App. 3d 451, 458 (2009). Since the State may reindict and retry defendant,
       double jeopardy requires the appellate court to rule upon the sufficiency of the evidence
       issue. People v. Taylor, 76 Ill. 2d 289, 309 (1979). Upon careful review of the record in the
       light most favorable to the prosecution, we find the evidence sufficiently supports the jury’s
       verdict beyond a reasonable doubt. Our determination, however, is not binding on retrial and
       does not indicate this court’s decision as to Jackson’s guilt or innocence.
¶ 22       For the foregoing reasons, the judgment of the circuit court is reversed and the case is
       remanded for a new trial.

¶ 23       Reversed and remanded.




               1
                 Due to our disposition of the case, we need not address Jackson’s remaining contentions
       at this time.

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