People v. Boyd

• Citation: 307 Ill. App.3d 991,719 N.E.2d 306,241 Ill.Dec. 445
• Decision Date: 01 October 1999
• Docket Number: No. 4-97-1017.,4-97-1017.
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antwan D. BOYD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

719 N.E.2d 306

307 Ill. App.3d 991

241 Ill.Dec. 445

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antwan D. BOYD, Defendant-Appellant.

No. 4-97-1017.

Appellate Court of Illinois, Third District.

October 1, 1999.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Martin J. Ryan (argued), Office of the State Appellate Defender, Springfield, for Antwan D. Boyd.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Michael J. Kick, State's Attorney, Kankakee, Robert M. Hansen, (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.

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 believed that his own death or great bodily harm was imminent. The jury convicted defendant on all charges.

The defendant first maintains that he was not proven guilty beyond a reasonable doubt of the offenses of aggravated battery with a firearm and aggravated discharge of a firearm because he fired at Hawkins in self-defense. When considering a challenge to the sufficiency of the evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985).

Once a defendant presents some evidence tending to prove self-defense, the burden is upon the People to prove beyond a reasonable doubt that the accused did not act in self-defense. People v. Denny, 221 Ill.App.3d 298, 163 Ill.Dec. 685, 581 N.E.2d 839 (1991). A question of self-defense is a factual matter. Denny, 221 Ill.App.3d at 303, 163 Ill.Dec. 685, 581 N.E.2d 839. The jury, as finder of fact, determines the credibility of witnesses, draws reasonable inferences from testimony and resolves conflicts in evidence. People v. Jennings, 268 Ill. App.3d 439, 206 Ill.Dec. 146, 644 N.E.2d 1199 (1994). A jury need not accept a defendant's claim of self-defense. People v. Belpedio, 212 Ill. App.3d 155, 155 Ill.Dec. 761, 569 N.E.2d 1372 (1991).

At its essence, defendant's claim is that the People failed to prove beyond a reasonable doubt that he fired first at Davis, and not in self-defense after Hawkins fired at him. He maintains that the witnesses who testified that he fired first (Staples and Davis) were biased against him, had been impeached on key points, and were generally unworthy of belief. In contrast, he maintains, his own testimony and that of his cousin Tayrone established that the defendant fired in self-defense. We disagree.

Although the evidence is conflicting as to who fired the first shot, the jury chose to resolve the conflict by crediting the People's witnesses and discrediting the defendant's witnesses. While the defendant maintains that the People's witnesses were biased against him due to family loyalties, he must also acknowledge that the witnesses in his favor were also biased in his favor based on those same family loyalties.

We also reject defendant's contention that Staples' testimony was impeached by introduction of an allegedly inconsistent statement she gave to police immediately following the incident. Without undue detail concerning Staples' trial testimony and her prior statement, a review of that statement shows no material inconsistencies.

Further, the credibility of the People's witnesses was bolstered by the objective evidence presented at trial. The evidence established that defendant fired a .38 caliber semi-automatic hand gun. The evidence also established that the defendant was the only participant in the shooting who used that particular type of weapon. Three spent shell .38 caliber casings were found very near where Davis and Boyd had fought, and an additional four casings were found at a point several feet away.

The People argued, and the jury accepted, that the placement of these casings established that the defendant fired three shots while only a few feet away from Davis, and then fired four more shots from a point further away. This evidence, the People maintained, supported Staples' and Davis' testimony that defendant fired first from a point only a few feet from Davis. This evidence also contradicted defendant's testimony that he returned fire from a point approximately 30 feet from Davis.

Viewing the evidence in the light most favorable to the People, we find that a rational trier of fact could have found beyond a reasonable doubt that defendant did not act in self-defense and that the elements of the charged offenses were proven beyond a reasonable doubt.

Defendant next maintains that the trial court erred in refusing to admit into evidence the affidavits of Larry Boyd and Tim Binion. He claims that the statements were admissible under section 115-10.2 of the Code of Criminal Procedure of 1963 (the Code)(725 ILCS 5/115-10.2 (West 1996)). We disagree and affirm the trial court's ruling.

The affidavits at issue had been given to defendant's counsel by these men on or about August 13, 1997. Both men were served with subpoenas, which were caused to be issued on August 14, 1997. Both subpoenas commanded the individuals to testify at defendant's trial on September 3, 1997. On that date defense counse...