People v. Guyton, 1–11–0450.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Justice PIERCE delivered the judgment of the court, with opinion.
• Citation: 30 N.E.3d 1062
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kasey GUYTON, Defendant–Appellant.
• Docket Number: No. 1–11–0450.,1–11–0450.
• Decision Date: 15 July 2014

30 N.E.3d 1062

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Kasey GUYTON, Defendant–Appellant.

No. 1–11–0450.

Appellate Court of Illinois, First District, Second Division.

July 15, 2014.
Rehearing Denied May 4, 2015.

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Michael J. Pelletier, Alan D. Goldberg, and Jonathan Krieger, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Carol L. Gaines, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Kasey Guyton was convicted of second degree murder, attempted first degree murder, and aggravated discharge of a firearm. In a simultaneous bench trial, defendant was convicted of unlawful use of a weapon by a felon. Defendant was subsequently sentenced to 18 years' imprisonment for second degree murder and 16 years' imprisonment for attempted first degree murder with a 20–year mandatory add-on for the personal discharge of a weapon, and 6–year concurrent terms for aggravated discharge of a firearm and unlawful use of a weapon by a felon. On appeal, defendant argues: (1) his convictions for second degree murder and attempted first degree murder are inconsistent; (2) the trial court improperly limited his presentation of Lynch material (People v. Lynch, 104 Ill.2d 194, 83 Ill.Dec. 598, 470 N.E.2d 1018 (1984) ); (3) his sentence for attempted first degree murder is unconstitutional because it shocks the conscience and violates equal protection and due process; (4) his sentence for attempted first degree murder is unconstitutional because the firearm add-on imposed is not reasonably related to the aim of deterring firearm use and thus violates due process; (5) his sentences for attempted first degree murder and second degree murder are excessive; (6) counsel was ineffective for failing to request defendant's sentence for attempted first degree murder be reduced based on provocation; and (7) his conviction for aggravated discharge of a firearm violates the one-act, one-crime doctrine and should

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be vacated. For the following reasons, we affirm the judgment of the trial court but vacate defendant's conviction for aggravated discharge of a firearm.

¶ 2 BACKGROUND

¶ 3 Defendant was charged by way of indictment with first degree murder, attempted first degree murder, aggravated discharge of a firearm, and unlawful use of a weapon by a felon. At trial, Edner Flores testified that at 7:30 p.m. on August 22, 2006, he was a passenger in a van being driven by Adam Saldivar, which collided with defendant's Grand Marquis at the intersection of Leclaire and Augusta in Chicago. Both Saldivar and the driver of the Grand Marquis, whom Flores identified as defendant, exited their cars. Flores remained in the passenger seat. Although Flores could hear their voices, he could not hear what Saldivar and defendant were saying. He could hear that they were yelling. After a few minutes, Saldivar got back into the van and they drove south on Leclaire, while defendant returned to his car and drove east on Augusta.

¶ 4 Saldivar followed several one-way streets to get back around to Augusta. There, he stopped briefly to assess the damage to the van. Saldivar then drove to the intersection of Augusta and Lawler, one block east of the initial accident. Saldivar stopped at the stop sign and then proceeded through the intersection. Flores then heard six or seven shots but could not tell where they were coming from. He felt a burning sensation in his upper back and looked at Saldivar. Saldivar appeared to be in “shock” and lost control of the van, hitting an oncoming car and crashing into a brick building.

¶ 5 Flores jumped out of the van and ran toward a young woman on a nearby front porch. He asked her to call the police. Flores went home, changed his shirt, went to Saldivar's house to tell Saldivar's family what had happened and returned to the scene with Saldivar's family. Flores spoke to the police and then went to the police station where he saw a little burn mark in the middle of his back. Flores identified defendant in a photo array and a lineup as the man from the accident.

¶ 6 David Johnson testified that he lived near the intersection of Augusta and Leclaire and was outside at 7:30 p.m. on August 22, 2006. He witnessed a collision between a maroon van and blue car. He walked toward the scene and heard the drivers of the two vehicles arguing over who was at fault. Johnson saw a passenger in the van but the passenger never got out. After they were done arguing, the men got into their cars and drove away. Johnson then saw the van as it returned to the area. As the van made a left turn from Lawler onto Augusta, Johnson saw defendant, who was standing by a tree on the southwestern corner of the intersection holding a semiautomatic pistol, step out and shoot at the van. He heard four or five shots. The van then struck another car and crashed into a building. The driver of the van was slumped over the steering wheel and the passenger fled west on Augusta. Johnson saw defendant get into a car and drive east. Johnson had seen defendant in the neighborhood several times and knew that he lived on the corner of Leclaire and Augusta. Johnson did not see anyone in the van shoot at defendant.

¶ 7 Johnson did not talk to the police until three days later, when he flagged down an officer he knew. He identified defendant as the shooter in a photo array and in a lineup. Johnson admitted that he had three prior convictions for drug offenses and admitted that he was a heroin addict. He also testified that although he

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worked as a confidential informant for the police in other cases, he was not paid in this case.

¶ 8 Eric Smith testified that he knew defendant from the neighborhood and knew that he drove a sky blue Grand Marquis. On August 22, 2006, he saw defendant twice at the intersection of Augusta and Lawler. The first time he saw defendant, defendant pulled up, parked his car, got out and knocked on the window of a building, got back in his car and drove off. About an hour later, Smith saw defendant, who had a young woman in his car, park in the same location. Smith left and returned a few minutes later. When he came back, he heard a commotion on the corner. When he approached, he saw that defendant's car had been hit. He heard defendant say, “this motherfucker is going to pay.” Defendant went into his car and returned with a gun in his hand. Smith saw defendant walk southbound on Lawler. Defendant stopped, and “tucked” himself behind a big tree on the corner. Smith saw a maroon van approach the stop sign on the corner and as the van was about to turn westbound on Leclaire, Smith heard a gunshot from behind the tree and saw defendant with a gun in his hands. Smith saw defendant bang on the gun and fire several more shots. The shots were fired at the passenger side back window of the van. Smith did not see anyone in the van point anything out of the window. The van struck another car and crashed into a building. The passenger of the van jumped out and ran. He had nothing in his hands.

¶ 9 Defendant jumped into the passenger side of his car and took off. Smith talked to police on August 30, 2006, after he was stopped by the police when he ran from them. Smith had a prior felony conviction for delivery of a controlled substance.

¶ 10 Eardia Basset was driving eastbound on Augusta at approximately 7:45 p.m. on August 22, 2006. She was on her way to her son's house and her granddaughter sat in the backseat of her car. As she was about to turn onto Lawler, she heard a “pow” and then heard it again. She told her granddaughter to get low in the seat. She then saw a van come around the corner, heard another shot and saw the van crash into her car on the driver's side.

¶ 11 She looked to where she heard the shots coming from and saw defendant standing on the southeast corner of Lawler and Augusta with a gun in his hand, firing at a maroon-colored van. Neither the driver nor the passenger in the van had a gun, and they were not yelling. The passenger got out of the van and ran west, then north. Eardia identified defendant as the shooter in a photo array and in open court.

¶ 12 Forensic investigator Donald Fanelli arrived at the scene at about 8:30 p.m. and took video and photographs of the area. Investigator Fanelli observed a white painted tree on Lawler and saw four fired cartridge cases and a live unfired bullet on the ground by the tree. All five cartridges were Winchester 9 millimeter Luger. He also observed a bullet hole in the house on the corner of Lawler and Augusta, as well as a hole in the fence.

¶ 13 Investigator Fanelli also observed that the window on the passenger side of the maroon van was broken and that Saldivar was still inside the van, lying between the seats. A baseball bat was found under the front passenger seat of the van. A bullet was recovered from the back of the front passenger seat.

¶ 14 Detective Anthony Noradin arrived at the scene and saw Saldivar lying in the front seat of the van. On August 25, 2006, Detective Noradin showed Eardia Bassett

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