People v. Jackson

2021 IL App (1st) 210190-U

No. 1-21-0190

Order filed November 16, 2021.

Second 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. 14 CR 3456
)
MARCUS JACKSON, ) The Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition is affirmed,
where defendant failed to make a substantial showing that his counsel provided
ineffective assistance by failing to present the testimony of a witness.

¶2 Defendant Marcus Jackson appeals from the second-stage dismissal of his petition for relief

pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On

appeal, he argues that the circuit court erred in dismissing his postconviction petition, where he
No. 1-21-0190

made a substantial showing that his trial counsel was ineffective for failing to call a key witness to

testify. We affirm.

¶3 Defendant was charged by indictment with two counts of possession of a controlled

substance (heroin) with intent to deliver and eight counts of aggravated battery to a peace officer,

premised on an October 14, 2013, incident.

¶4 Following a jury trial, defendant was found guilty of possession of a controlled substance

with intent to deliver and sentenced to 12 years’ imprisonment. On direct appeal, we affirmed and

ordered correction of the mittimus. People v. Jackson, 2019 IL App (1st) 161745. Because we set

forth the facts on direct appeal, we recount them here to the extent necessary to resolve the issue

raised in this appeal.

¶5 Chicago police sergeant John Hamilton testified that on October 14, 2013, he assisted in

the search of a residence on the 6800 block of South Bishop Street pursuant to a search warrant.

In a bedroom on the first floor, Hamilton found a hidden compartment in the door frame to a

doorless closet. Behind a panel on the other side of the wall, the officers found a motorcycle

battery, battery charger, and wiring, which opened the compartment. Inside the compartment were

two square blocks of an “off white” substance, which appeared to be raw heroin. The blocks were

recovered and inventoried.

¶6 On cross-examination, Hamilton confirmed that he was the Chicago Police Department’s

“foremost expert” in “hidden traps.” Had Hamilton not seen chipped pieces of wood near the

compartment, it would have been “very difficult” to find. Hamilton confirmed he did not see

anything that “tied” defendant to the hidden compartment, and the area was not dusted for latent

prints in his presence.

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¶7 Chicago police officer Vincent Ciocci testified that there was a separate warrant for the

building’s basement, first floor, and second floor, and he was the evidence officer for the basement.

While he was in the living room of the first floor, he saw defendant being led upstairs from the

basement in handcuffs. Defendant kicked, screamed, attempted to escape, and was brought outside

to a transport vehicle because he was acting “belligerently.”

¶8 Ciocci and other officers went down into the basement. In the kitchen area, they recovered

and inventoried two digital scales, one of which had a “white powdery residue” on it. The officers

also found money inside a black bag on a coffee table, and they recovered and inventoried a Magic

Bullet mixer and two bags of cannabis. Ciocci testified that Magic Bullet mixers are used to mix

heroin with a “cutting agent.” From a windowsill “[v]ery close” to the scale with heroin residue,

the officers recovered and inventoried an item of mail addressed to defendant at the building’s

address.

¶9 On cross-examination, Ciocci testified that he saw the drugs recovered from the first floor.

When asked whether Ciocci saw defendant near the evidence on the first floor, Ciocci testified that

he only saw defendant being led up to the first floor from the basement.

¶ 10 Chicago police officer Scott Bittner testified that he entered the building through the

basement after he was told an individual had opened the door and ran back inside. Bittner saw

Federal Bureau of Investigations (FBI) Special Agent Dennaris Coleman and Officer Robert

Stegmiller detain defendant in the basement kitchen area. Bittner could not recall any other

civilians being in the basement. Defendant yelled, squirmed, and flailed his body. He was

handcuffed, led onto the first floor, and placed in a chair, where he continued to yell. Defendant

got up and was “taken down” forcefully. Bittner searched the basement and first floor. In the living

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room of the first floor, he recovered two pieces of mail from a built-in hutch, which was in a room

near where the hidden trap containing heroin was found. The State entered the mail into evidence,

and Bittner testified that the two pieces of mail were addressed to defendant at the building’s

address and sent from ComEd and the Department of Water Management respectively.

¶ 11 On cross-examination, Bittner testified that there were “maybe” one or two other people

on the first floor while he executed the search warrant. He first saw defendant on the ground with

his hands cuffed behind him. He did not see defendant have any contact with the controlled

substance recovered from the first floor.

¶ 12 Chicago police sergeant Michael Karczewski testified that he was watching the front of the

building. Defendant exited the basement from the back, made eye contact with him, and ran back

through the basement door. Karczewski announced his office and told him to stop multiple times,

but defendant did not stop. Coleman and Stegmiller pursued defendant towards the basement, but

defendant slammed the basement door on them, and they had to breach the door.

¶ 13 After defendant was placed in the chair on the first floor and before the heroin was

recovered, Karczewski told him they had a search warrant for the first floor and basement.

Defendant then attempted to escape but was taken down and returned to the chair. Defendant

continued to act belligerently as four officers took him to the transport vehicle. The other civilians

in the building did not behave as defendant did.

¶ 14 At about 7:26 p.m., Karczewski Mirandized and spoke with defendant at the hospital in the

presence of FBI Agent John Rouske. Defendant stated he owned the building that was searched,

the building’s utilities were in his name, and he used the basement as a music recording studio.

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Karczewski asked defendant about his combative behavior, and defendant apologized and said he

“just lost it.” Defendant also indicated he had flushed about an ounce of cannabis down the toilet.

¶ 15 On cross-examination, Karczewski testified that all the civilians in the building were

secured before the premises were searched. A woman in her 30s and an older man were on the first

floor. Two men in their 20s, an 81-year-old woman, and a younger woman were on the second

floor. Defendant did not make any statements in the hospital about the heroin on the first floor but

admitted to possessing cannabis.

¶ 16 Coleman testified consistently with the other witnesses. He added that in the basement, he

saw defendant exit the bathroom. He instructed defendant to stop and put his hands above his head.

Defendant ran away, and Coleman repeatedly told him to stop. Coleman and Stegmiller performed

a take-down on defendant and handcuffed him. Rouske approached and spoke to them, and

defendant responded that he “flushed a little bit of weed.”

¶ 17 On cross-examination, Coleman testified that he did not know if defendant had any contact

with the area where the heroin was found.

¶ 18 Chicago police officer Sean Brandon added that he was the evidence officer for the first

floor of the building. Once the first floor was secure, he was told to bring the four second-floor

occupants to the first floor. He did not see defendant, but saw four bags of heroin, three of which

were in clear knotted plastic bags and one of which was in a black bag. On cross-examination,

Brandon confirmed that he did not see defendant contact any of the recovered drugs.

¶ 19 Chicago police officer Robert Gallas added that he and Brandon went to the second floor

and detained the four people there.

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¶ 20 On cross-examination, Gallas testified that there were multiple indicators that the four

people on the second floor resided there. The first floor had indicators that “[s]omebody” lived

there, and Gallas “believe[d]” the two people on the first floor had lived there “at some point.” He

confirmed that he did not see any “ledgers” indicating potential drug transactions, and he did not

see defendant possess any controlled substance.

¶ 21 The State stipulated that if called to testify, an Illinois state police forensic chemist would

state that she received three knotted bags inventoried together containing a brown chunky powder

and one separately inventoried bag containing powder, and tested the contents of the bags. The

chemist found that the three bags weighed 594.0 grams, the one separate bag weighed 10.7 grams,

and all the bags tested positive for the presence of heroin.

¶ 22 The State further stipulated that if called, another Illinois state police forensic chemist

would testify that she tested two separately inventoried bags containing plant material and an

inventoried black digital scale with white powdery residue on it. She concluded that one bag of

plant material weighed 3.4 grams, the other weighed 0.7 grams, and they both tested positive for

the presence of cannabis. She also concluded that the residue of white powder on the scale tested

positive for the presence of cocaine and heroin.

¶ 23 In closing argument, defendant’s trial counsel asserted that the State had not produced any

evidence that defendant had engaged in past drug sales, and the State’s witnesses could tell the

jury “nothing” about defendant being “involved in drugs.” Counsel described the trap containing

the heroin as “hidden and hard to find,” requiring an expert to uncover. Counsel further argued

that while the State’s witnesses claimed defendant “mysteriously re-appeared” in the basement

where cannabis and a “scant mysterious residue” were found, defendant was not charged with

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possessing those items. He further asserted the State showed “no connection” between defendant

and the tenants in the building, and there was no showing that defendant had knowledge of the

heroin that was recovered. Counsel stated that “not one person, not one witness for the State, took

the stand and testified that they witnessed [defendant] ever possess or distribute heroin.”

¶ 24 The jury found defendant guilty of possession of a controlled substance with intent to

deliver, and acquitted him of all counts of aggravated battery to a peace officer. The trial court

sentenced defendant to 12 years’ imprisonment.

¶ 25 On direct appeal, defendant asserted that the circuit court failed to comply with Illinois

Supreme Court Rule 431(b) (eff. July 1, 2012) during voir dire, the evidence was not sufficient to

sustain his conviction, and his mittimus should be corrected to reflect the proper name of the

offense for which he was convicted. We affirmed and ordered correction of the mittimus. Jackson,

2019 IL App (1st) 161745.

¶ 26 In January 2020, defendant filed a pro se postconviction petition under the Act, alleging

that trial counsel provided ineffective assistance by failing to call Mario Jackson as a witness. 1

According to defendant, Mario would have corroborated defendant’s position at trial that he had

no knowledge of or control over the heroin recovered from the first floor, as other people controlled

the first-floor premises.

¶ 27 Defendant supported his petition with his own affidavit, averring that in October 2013, he

was the owner of the building on the 6800 block of South Bishop, but he did not have “access or

control” over the first-floor apartment, which he rented to his “relative” Mario. Defendant averred

that he told trial counsel about Mario and that Mario would be willing to testify as to his first-floor

1
Because Mario Jackson has the same last name as defendant, we refer to him by first name.

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tenancy, but to the best of defendant’s knowledge and belief, trial counsel “did not act on this

information in any manner.”

¶ 28 Defendant also attached to his petition the affidavit of Mario, who averred that he has lived

on the first floor of the building at the 6800 block of South Bishop since 2011, and his girlfriend

began living there in 2013. Mario’s aunt, cousin, and mother have lived on the second floor of the

building since 2011. While no one lived in the apartment’s basement, defendant used the basement

as a studio and would call Mario to access the basement. Mario claimed that in October 2013, he

and his girlfriend were the only people who lived in and had access to the first-floor apartment. He

further averred that defendant did not have access to the apartment in October 2013. He claimed

that defendant “never went into [his] apartment without permission,” and was not in Mario’s

apartment the day he was arrested. Mario did not see defendant on October 14, 2013, until after

defendant was arrested.

¶ 29 The circuit court docketed defendant’s petition for second stage postconviction

proceedings, and defendant retained counsel. On September 14, 2020, the State filed a motion to

dismiss defendant’s petition, asserting in relevant part that defendant could not show the

performance of trial counsel was unreasonable or prejudiced him, where trial counsel extensively

elicited testimony and argued that defendant had no connection with the recovered heroin.

According to the State, Mario’s testimony only would have weakened the defense theory by

suggesting defendant did in fact have a connection to the heroin on the first floor. The jury would

have learned from Mario that defendant was related to multiple residents in the building. The State

also asserted that defendant could not show that Mario’s testimony would have changed the

outcome of trial, given the strong circumstantial evidence connecting defendant to the heroin.

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¶ 30 At a hearing on the motion to dismiss, defendant’s postconviction counsel asserted that

defendant owned the building containing the heroin, and he did not live in the first-floor apartment

but rather leased the floor to his brother, Mario. The State asserted that defendant’s trial counsel

clearly made a reasonable decision of trial strategy, choosing to show defendant had no connection

with the heroin, rather than showing “someone else may have had better control,” which may not

have worked because “more than one person can have control.” The State added it was not even

clear Mario would have testified, as the testimony could have incriminated Mario and thus raised

fifth amendment concerns (See U.S. Const., amend. V).

¶ 31 The circuit court granted the State’s motion to dismiss the petition. The court recounted

the circumstantial evidence linking defendant to the heroin in the apartment, including contraband

related to drug dealing in the basement where defendant was, mail on the first floor addressed to

defendant, and defendant’s ownership of the entire building. The court stated that Mario “would

have an absolute and clear Fifth Amendment privilege” if called to testify, and the court recalled

defendant’s trial counsel “being aggressive and assertive in his advocacy.” The court found it

“cannot say that [trial counsel] was incompetent in not presenting Mario Jackson with all the

infirmities that I see existing here.”

¶ 32 On appeal, defendant argues that the circuit court erred in dismissing his postconviction

petition, where he made a substantial showing that his trial counsel was ineffective for failing to

call Mario as a witness to testify as to defendant’s lack of control over the first floor in which the

heroin was recovered. The State responds that defendant failed to rebut the presumption that trial

counsel chose not to call Mario as a matter of trial strategy, particularly where Mario was

defendant’s brother and may have linked defendant more closely to the heroin. The State asserts

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that had trial counsel called Mario, counsel would not have been able to claim that defendant had

no connection to the tenants in the building.

¶ 33 The Act provides a three-stage method for persons under criminal sentence to “assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9-10 (2009).

Defendant’s petition was dismissed at the second stage of proceedings, in which counsel is

appointed to represent the defendant if necessary, and the State is permitted to file responsive

pleadings. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001). At the second stage of

postconviction proceedings, “the circuit court must determine whether the petition and any

accompanying documentation make a substantial showing of a constitutional violation.” Id. at 246.

“[A]ll well-pleaded facts that are not positively rebutted by the trial record are to be taken as true.”

People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The second stage of postconviction review tests

the legal sufficiency of the petition. People v. Domagala, 2013 IL 113688, ¶ 35.

¶ 34 “The inquiry into whether a post-conviction petition contains sufficient allegations of

constitutional deprivations does not require the circuit court to engage in any fact-finding or

credibility determinations,” as such determinations are made during the evidentiary third stage of

postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 385 (1998). “An evidentiary

hearing is only required when the allegations of the petition, supported by the trial record and

accompanying affidavits, make a substantial showing of a violation of a constitutional right.”

People v. Flowers, 2015 IL App (1st) 113259, ¶ 31. In reviewing the second-stage dismissal of a

postconviction petition, this court generally reviews de novo the circuit court’s decision.

Pendleton, 223 Ill. 2d at 473.

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¶ 35 Under the sixth amendment to the United States Constitution (U.S. Const., amend. VI), a

criminal defendant is guaranteed the right to effective assistance of counsel. People v. Cole, 2017

IL 120997, ¶ 22. To prevail on a claim of ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984), a defendant must demonstrate both “that counsel’s performance fell below

an objective standard of reasonableness and that the deficient performance prejudiced the defense.”

(Internal quotation marks omitted.) People v. Tate, 2012 IL 112214, ¶ 19. To establish the

deficiency prong, a defendant must show that counsel’s performance “was so inadequate that

counsel was not functioning as the counsel guaranteed by the sixth amendment and, also, must

overcome the strong presumption that any challenged action or inaction may have been the product

of sound trial strategy.” (Internal quotation marks omitted.) People v. Dupree, 2018 IL 122307,

¶ 44. Matters of trial strategy are generally immune from claims of ineffective assistance of

counsel. Id. To establish prejudice, the defendant must show “there is a ‘reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’ ” Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland, 466 U.S. at 694). Because a

defendant must satisfy both prongs of the Strickland test, failure to establish either one is fatal to

the claim. People v. Clendenin, 238 Ill. 2d 302, 317-18 (2010).

¶ 36 “[T]he decision whether to call a certain witness for the defense is a matter of trial strategy,

left to the discretion of counsel after consultation with the defendant,” and “such decisions will

not ordinarily support a claim of ineffective assistance of counsel.” People v. Peterson, 2017 IL

120331, ¶ 80. Even a mistake in trial strategy will not alone render representation constitutionally

defective unless counsel’s trial strategy “is so unsound that he entirely fails to conduct meaningful

adversarial testing of the State’s case.” (Internal quotation marks omitted.) Id. Defense counsel

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need not call a particular witness if he reasonably believes that “under the circumstances the

individual’s testimony is unreliable or would likely have been harmful to the defendant.” People

v. Flores, 128 Ill. 2d 66, 106 (1989).

¶ 37 We find that defendant failed to make a substantial showing that trial counsel was

ineffective for not calling Mario to testify, as he has failed to overcome the presumption that the

decision not to call Mario was a decision of sound trial strategy.

¶ 38 Defendant was charged and convicted with possessing heroin with the intent to deliver. At

trial, the State presented the testimony of several officers, establishing that the heroin was

recovered from the first floor of an apartment building owned by defendant. The heroin was found

hidden in an elaborately hidden compartment. Defendant was detained in the basement of the

building, struggled, acted belligerently, and attempted to escape arrest. He told police he used the

basement as his recording studio. The basement connected to the first floor. The State submitted

evidence that mail addressed specifically to defendant at the building was recovered from the

basement and first floor, and drug dealing paraphernalia were recovered from the basement,

including a scale that had cocaine and heroin residue on it. As we previously found, the

paraphernalia “indicates defendant was involved in selling heroin.” Jackson, 2019 IL App (1st)

161745, ¶¶ 30. As we also found, defendant’s ownership in the building, his presence in the

basement connecting to the first floor, and the recovery of mail addressed to him on the first floor

all showed he constructively possessed the heroin on the first floor, and his attempt to flee indicated

consciousness of guilt. Jackson, 2019 IL App (1st) 161745, ¶¶ 30, 40-41.

¶ 39 Counsel’s trial strategy was essentially to present the theory that defendant had no

connection to the first floor where the heroin underlying defendant’s charges was recovered. In his

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postconviction petition, defendant essentially took issue with that strategy, claiming that he told

his trial counsel about the value of his “relative” Mario as a witness, but counsel did not call Mario,

whom counsel identified to the circuit court as defendant’s brother. According to defendant, the

testimony of his brother Mario who lived on the first floor would have shown defendant was not

residing on the first floor and could not access it.

¶ 40 However, Mario’s affidavit asserted that he and his family rented the first and second floors

of the building, and it was undisputed that defendant was related to Mario. Mario’s affidavit even

stated that defendant would call him to access the basement of the building. Presenting Mario’s

testimony would have demonstrated defendant’s connection to other tenants in the building. Such

testimony could have suggested that defendant had a closer connection to the tenants than an

ordinary landlord-tenant relationship. This would have undermined the defense theory, and trial

counsel could have reasonably believed Mario’s testimony would have been harmful to

defendant’s case. People v. Ashford, 121 Ill. 2d 55, 74-75 (1988) (trial counsel’s decision to call a

particular witness is a matter of trial strategy where the individual’s testimony would likely have

harmed the defendant).

¶ 41 Moreover, Mario’s affidavit asserts that defendant would call him in order to access the

building’s basement, and he had not seen defendant that day until after he was placed in custody.

However, the trial evidence also overwhelmingly showed defendant did have access to the

basement, as he had exited and reentered the basement, and neither defendant nor Mario’s affidavit

offered an explanation as to how defendant accessed the basement that day. Given these apparent

discrepancies in Mario’s account and Mario’s familial relationship with defendant, counsel could

have reasonably concluded that the testimony of defendant’s family member may have been

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unreliable. See Flores, 128 Ill. 2d at 106-07 (counsel was not ineffective for not calling members

of defendant’s family to testify, as counsel could have reasonably concluded their testimony was

unreliable).

¶ 42 Finally, as mentioned, even a mistake in trial strategy will not alone render representation

constitutionally defective unless counsel’s trial strategy is so unsound that he entirely failed to

conduct meaningful adversarial testing of the State’s case. Peterson, 2017 IL 120331, ¶ 80. That

is not the case here where the record shows that counsel attempted to distance defendant from the

heroin, eliciting through cross-examination testimony from multiple witnesses that defendant was

never seen in contact with the heroin and was not seen on the first floor until officers escorted him

there. In closing argument, counsel asserted the State failed to present evidence connecting

defendant to the heroin on the first floor, or to the other tenants in the building. Given this,

defendant has failed to overcome the strong presumption that his counsel’s decision not to call

defendant’s relative Mario as a witness was a product of sound trial strategy. Dupree, 2018 IL

122307, ¶ 44. As such, defendant has failed to show that counsel’s performance was objectively

unreasonable under prevailing professional norms. Defendant’s failure to satisfy one of the

Strickland prongs is fatal to his ineffectiveness claim. Clendenin, 238 Ill. 2d at 317-18.

Accordingly, the circuit court properly dismissed his postconviction petition.

¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 44 Affirmed.

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