People v. Horshaw

• Decision Date: 30 September 2021
• Docket Number: 1-18-2047
• Citation: 2021 IL App (1st) 182047,194 N.E.3d 1051
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kirk HORSHAW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 182047
194 N.E.3d 1051

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kirk HORSHAW, Defendant-Appellant.

No. 1-18-2047

Appellate Court of Illinois, First District, Fourth Division.

Filed September 30, 2021

James E. Chadd, Douglas R. Hoff, Brian E. Koch, and Joshua M. Bernstein, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

194 N.E.3d 1054

¶ 1 Defendant Kirk Horshaw was convicted of first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2002)) and attempted murder (id. §§ 8-4(a), 9-1(a)(1)) for crimes that he committed at age 18¹ and for which he received an aggregate minimum sentence of 66 years’ imprisonment. Defendant moved for leave to file a successive petition for postconviction relief challenging the constitutionality of his sentence under both the eighth amendment of the United States Constitution ( U.S. Const., amend. VIII ) and article I, section 11, of the Illinois Constitution ( Ill. Const. 1970, art. I, § 11 ), commonly referred to as the proportionate penalties clause.

¶ 2 For the following reasons, we reverse and remand for further postconviction proceedings.

¶ 3 I. BACKGROUND

¶ 4 This appeal arises from the denial of defendant's motion for leave to file a successive petition for postconviction relief. The evidence leading to defendant's convictions and history of this case has been previously discussed in our decisions affirming defendant's convictions on direct appeal ( People v. Horshaw , 2013 IL App (1st) 111072-U, 2013 WL 2635816 ( Horshaw I )) and in affirming the dismissal of defendant's initial petition for postconviction relief ( People v. Horshaw , 2016 IL App (1st) 140829-U, 2016 WL 4425945 ( Horshaw II )). We set out those facts pertinent to defendant's motion for leave to file a successive petition for postconviction relief necessary for an understanding of the issue and our resolution thereof.

¶ 5 Following a bench trial in 2011, defendant was convicted of the first degree murder of Aaron Crawford ( 720 ILCS 5/9-1(a)(1) (West 2002)) and attempted murder of Daniel Wesley (id. §§ 8-4(a), 9-1(a)(1)). The evidence at defendant's trial showed that Jamaine Williams, Crawford, and Wesley were members of the Black Disciples street gang and that defendant and codefendant were members of a rival gang, the Gangster Disciples. The two gangs were involved in a war and would shoot each other on sight.

¶ 6 On May 7, 2002, Williams was walking along 71st Street in Chicago when he saw Crawford and Wesley on one side of the street, while defendant, codefendant, and a third man were standing in a vacant lot across the street. An argument ensued between the two groups, and Williams heard Crawford say, "You all going to shoot, shoot." Williams jogged toward Crawford, and when he was near Crawford

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and Wesley, defendant and codefendant pulled out their guns and fired multiple shots. Crawford ran in one direction, and Williams and Wesley ran in another, taking shelter in a building. Defendant and codefendant then fled the area. When Williams looked out, he saw Crawford lying on the ground. Williams and Wesley took Crawford to the hospital, but he died of a gunshot wound. Williams spoke to the police shortly after the incident and told them defendant and codefendant shot Crawford. He identified both men in a photo array. Williams did not see Crawford or Wesley with a gun during the shooting.

¶ 7 Daniel Wesley, who was incarcerated in Minnesota for aggravated robbery and had two prior convictions in Illinois for unlawful use of a weapon, testified that, on the day of the shooting, he had been smoking marijuana and drinking. At about 9 p.m. on the night in question, he was outside on 71st Street when he heard shots and saw Crawford on the ground. Wesley ran and took shelter. When the shooting stopped, Wesley and Williams lifted Crawford into a car and accompanied him to the hospital. Wesley and Williams returned to a restaurant near the scene of the shooting, where police saw them. Wesley told the police he did not know anything, but the police took them to the police station. The detectives separated Wesley and Williams, and Wesley testified the police forced Wesley to identify the shooters from a photo array. Wesley acknowledged that he identified defendant and codefendant but explained "it was script" and that he was drunk, high, did not know what he was saying, and was just trying to leave the station.

¶ 8 Wesley had previously given a written statement, grand jury testimony, and testimony at codefendant's trial, in which he identified defendant and codefendant as the shooters. His prior statement and testimony were consistent with each other and similar to Williams's account of the shooting. During codefendant's trial, Wesley testified that Crawford did not have a gun during the shooting. The written statement, grand jury testimony, and testimony at codefendant's trial were admitted as substantive evidence at trial.

¶ 9 Karen Luckett testified that she lived next to the site of the shooting. She saw two men get out of a car and identified defendant as one of them. Although she did not see the shooting, she heard the gunshots.

¶ 10 Tiffany Vining, also known as Tiffany Morgan, testified that, at the time of the shooting, she was on drugs and she did not remember the incident. However, Vining's July 2002 written statement to an assistant state's attorney and a police detective, which was admitted as substantive evidence, indicated that at 9 p.m. on the night in question she saw Crawford arguing with defendant, codefendant, and a third man she did not know. Codefendant pulled out a gun and "acted like he was going to shoot [Crawford]." After defendant, codefendant, and the third man crossed the street toward a vacant lot, defendant also pulled out a gun, and he and codefendant started shooting at Crawford. Crawford never had a gun in his hands.

¶ 11 Donnell Russell testified that he was arrested for possession of cannabis in 2004 and, while at the police station, he told officers he had information about the May 7, 2002 shooting. In particular, he told detectives that on September 6, 2002, he and defendant were driving around searching for marijuana to buy. Russell had not seen defendant for a while and asked where he had been. Defendant responded that he had been "laying low" because he and codefendant were involved in a shooting

194 N.E.3d 1056

near 71st Street and Paxton Avenue. Defendant told him that he "caught somebody who shot at him earlier."

¶ 12 Detective John Fassl testified that he and his partner interviewed Wesley and Williams at the police station on the night of the shooting. Both men identified defendant and codefendant as the shooters from a photo array. Detective Fassl denied that Wesley was given any kind of "script" or that he was told who to identify.

¶ 13 Officer Ware testified that on the day after the shooting he and his partner saw a car that was reported to have been involved in the shooting and attempted to pull it over. A chase followed, during which defendant and codefendant jumped out of the car. The car crashed, and the driver, Ricardo Martin, jumped out. Officer Ware and his partner pursued and arrested Martin because he was seen discarding a gun. Defendant and codefendant were subsequently arrested.

¶ 14 Defendant presented four alibi witnesses in his defense at trial: defendant's stepdaughter Jasmine Brooks, family friend Charles Parks, defendant's sister-in-law Clarissa Greer, and defendant's wife Erica Horshaw. All four witnesses testified that defendant was in Georgia on the date of the shooting and served as a pallbearer for a funeral that took place the following day. The defense introduced into evidence a program from the funeral, which listed the date and named defendant as a pallbearer.

¶ 15 After defendant was convicted of the first degree murder of Crawford and the attempted first degree murder of Wesley, a sentencing hearing was held before the trial court on April 7, 2011. Neither side called witnesses or presented any evidence. The presentence investigation report (PSI) established the following: defendant had one prior felony conviction from the state of Georgia, for which he received a seven-year sentence in the Georgia Department of Corrections, and two Illinois juvenile convictions for possession of a controlled substance. Defendant described his upbringing as "fair" and denied that he was abused or neglected as a child. Defendant lived with his mother and saw his father with regularity until his father died when defendant was 12 years old. Defendant's older brother had a criminal history. Defendant was married and had two children with whom he resided. Defendant attended high school for two years, during which time he was a member of the football and basketball teams and received average grades. He dropped out of high school because "it was too far." Defendant had not completed his general equivalency diploma (GED) and was never previously employed. Defendant was supported by his mother and his wife. Defendant denied a history of alcohol abuse but admitted that he began smoking marijuana by age 15 and spent "an unlimited amount of money daily" on his marijuana usage. Defendant was never evaluated or treated for drug usage. Defendant was in good health, was not under a doctor's care, and was not taking prescription medications. Defendant was a member of the Gangster Disciples street gang from ages 13 to 22. He held no role or rank in the structure. In his free time defendant enjoyed writing letters and playing chess. The PSI contained no psychological or physiological information and only indicated that defendant denied being diagnosed with a behavioral or learning disorder.

¶ 16 At...