Appeal from the Circuit Court of the 21st County Judicial Circuit,Kankakee, Illinois Honorable Clark Erickson, Judge Presiding No. 97-CF-352
The opinion of the court was delivered by: Presiding Justice Holdridge
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the court:
Defendant was tried by a Kankakee County jury and convicted of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful use of a weapon. Judgments were entered on each conviction and he was sentenced to concurrent terms of 12, 6, and 2 years imprisonment respectively.
On appeal, the defendant argues that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in not admitting into evidence two affidavits; (3) his conviction for aggravated discharge of a firearm should be vacated as a lesser included offense of his conviction for aggravated battery; (4) his conviction for unlawful use of a weapon should be reduced to a misdemeanor; and (5) his judgment of sentence should reflect day-for-day credit.
We vacate defendant's conviction for aggravated discharge of a firearm, reduce defendant's conviction for unlawful use of a weapon from a felony to a misdemeanor, strike all reference to truth-in-sentencing provisions from the sentencing order, and otherwise affirm the judgment of the trial court.
At defendant's trial, Virginia Staples testified that on the night of May 24, 1997, at approximately 2:00 a.m., she was driving a car in which John Hawkins, Delbert Davis, and Lerviearn Boyd were passengers. On the way to Lerviearn's house, the car passed defendant's brother, Larry Boyd, standing by the side of the road. After dropping Lerviearn at the house, Staples retraced her route and drove toward where Larry Boyd had been. This time Larry Boyd stood in the middle of the road with his arms raised in the air. Staples stopped the car. She noticed two other men with Larry Boyd. When she stopped the car, Larry Boyd approached and began to yell at one of the passengers. As Staples began to drive away, Larry Boyd kicked the car. Davis then got out of the car. Staples stopped the car, and both she and Hawkins got out. Larry Boyd, the defendant and a man identified as Tim Binion approached.
Davis and Larry Boyd exchanged words, which immediately lead to a fight between the two. Davis threw Larry Boyd to the ground and began kicking him in the stomach. At this point, according to Staples' testimony, defendant walked toward Davis, drew a handgun and fired at Davis' head from a distance of approximately five feet. The shot grazed Davis' chin. Davis then got up and made a dash for the car, with defendant and Binion shooting at him. Hawkins also made it back to the car. He too had been struck by a bullet. Staples testified that she did not see a gun in Hawkins' possession.
On cross-examination, Staples admitted that she had given a statement to police, but had not stated that defendant had aimed his gun at Davis's head.
Davis testified in similar detail and corroborated Staples' testimony. In addition, Davis testified that he saw a gun on the ground, but he did not see Hawkins shoot that gun at the defendant. However, he was impeached by a statement he had given to police while in the hospital, wherein he stated that Hawkins had a gun and shot at least one round at defendant.
Deputy Mark Aydelott testified that he went to the scene around 2:30 a.m., on May 25, 1997, where he found defendant lying on the ground with two gunshot wounds in his upper torso. Aydelott testified that defendant was in pain and had difficulty speaking. He was able, however, to tell the deputy that he had been shot by Hawkins. Approximately 100 feet from defendant, Aydelott found a chrome colored stainless steel revolver surrounded by numerous shell casings.
Investigator Brian Raetz testified that, based upon bullets and shell casings found at the scene, at least three different calibers of weapons were used. Neither the gun nor the shell casings were dusted for fingerprints.
Tayrone Boyd, defendant's cousin, testified for the defense. He stated that he was present at the scene. According to Tayrone, the first person to shoot was Hawkins, who shot at defendant from a distance of approximately 12 feet. Tayrone did not see the defendant fire a shot. However, when the shooting started, Tayrone retreated to a nearby house, after which he heard five or more gunshots. Tayrone's statement that after Hawkins shot at defendant, defendant returned fire, was introduced to impeach his previous testimony that he did not see defendant with a gun.
Defendant testified that he and Hawkins were watching as Davis and Larry Boyd fought. Defendant took his hand from his pocket, and as he did so, he saw Hawkins shoot at him from a distance of about 30 feet. Scared and bent over from a wound, he took out a gun and returned fire while trying to run away. He testified that he had not taken out his gun until Hawkins shot him, at which time he ...