People v. Wright

• Decision Date: 22 May 2013
• Docket Number: No. 4–11–0822.,4–11–0822.
• Citation: 987 N.E.2d 1051,2013 IL App (4th) 110822,370 Ill.Dec. 285
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kyle L. WRIGHT, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 110822
987 N.E.2d 1051
370 Ill.Dec. 285

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Kyle L. WRIGHT, Defendant–Appellant.

No. 4–11–0822.

Appellate Court of Illinois,
Fourth District.

April 17, 2013.
Rehearing Denied May 22, 2013.

[987 N.E.2d 1052]

Michael J. Pelletier, State Appellate Defender's Office, Springfield, Peter A. Carusona, Jay Wiegman, State Appellate Defender's Office, Ottowa, for appellant.

Jack Ahola, State's Attorney, Decatur (Patrick Delfino, Robert J. Biderman, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION
Justice APPLETON delivered the judgment of the court, with opinion.

[370 Ill.Dec. 286]¶ 1 Defendant, Kyle L. Wright, who is serving a 55–year term of imprisonment for first degree murder (720 ILCS 5/9–1(a)(1) (West 2006)), appeals from the summary dismissal of his postconviction petition. He makes several claims in his petition, but the only claims he pursues in this appeal are those of ineffective assistance of counsel. We conclude that our previous decision, on direct appeal, collaterally estops defendant from making his claims of ineffective assistance. Therefore, we affirm the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 In the jury trial, which occurred in March 2008, the evidence tended to show the following. On June 2, 2007, defendant was driving in Decatur, and Ebony Oldham was one of his passengers. Defendant was angry with Robert May for selling him $800 of fake cocaine. May was standing beside Derrick Matthews and Ricky Johnson in the 800 block of West Macon Street. According to Oldham and the other passengers in defendant's car, defendant stopped the car, pulled out a pistol, and fired three rounds through the open front passenger window. One of the bullets hit Matthews in the head, killing him. May and Johnson were uninjured. The other two bullets struck a nearby house.

¶ 4 The jury found defendant guilty of the first degree murder of Matthews. The jury also answered yes to the question of whether the State had proved, beyond a reasonable doubt, that defendant had personally discharged a firearm and thereby had proximately caused the death of Matthews.

¶ 5 The trial court held a sentencing hearing in April 2008. In the sentencing hearing, the State called Emma Matthews, the mother of the murder victim. She testified her deceased son had two daughters, aged four and six, to whom he had been devoted, visiting them every day and taking them to school. He also had been close to his sister. Defendant's sister, his children, and the mother of his children all would miss him greatly, Matthews said.

¶ 6 The State next called James Addison. He testified he lived at 876 West Macon Street and that on June 2, 2007, he was sitting in his living room, the room closest to the street, watching television with a friend, when a bullet flew by him, about an inch from his head, and “exploded” in the wall. Particles from the wall struck him.

¶ 7 The State next called David Pruitt, a Decatur police officer, who identified an audio recording of a telephone call defendant had made from the Macon County jail to an eyewitness, Oldham. The State played the recording for the trial court. The court remarked that the recording [370 Ill.Dec. 287]

[987 N.E.2d 1053]

was difficult to follow but that defendant appeared to be asking Oldham to leave town.

¶ 8 Defendant made a statement in allocution, which really was not a statement in allocution so much as a declaration of his innocence and a complaint about his lack of opportunity to read the police reports and other discovery materials.

¶ 9 The trial court recited the following circumstances as factors in aggravation: the telephone call defendant had made from jail to Oldham requesting her to leave town (but because the recording or the conversation in the recording was unclear, the court said it was not giving this factor much weight), his previous violation of probation, his prior Class 4 felony conviction and several misdemeanor convictions, his history of drug activity, and his lack of work history. In addition, the court remarked: “For factors in aggravation[,] * * * we certainly have conduct * * * that caused serious harm and obvious death to the victim, Derrick Matthews.” The court also considered the imperilment of Addison and his guest as an aggravating factor. The court said:

“But, then[,] we[ ] also[ ] have [the facts that] defendant's conduct did threaten serious harm. Doesn't have to cause serious harm. The [s]tatute reads, ‘threatened serious harm.’

Here, we have a drive-by shooting, three bullets or three shots from a car * * *.

* * * [W]e heard from Mr. Addison[,] [who was] an innocent bystander, so [ ]to [ ]speak, but not just a bystander. He's sitting in his house, sitting on the couch watching TV, and a bullet whizzes by his ear, explodes in the wall. * * * [L]uckily, [he was] not hurt. * * * [L]uckily, [he was] not killed. But[ ] did it threaten serious harm? Certainly, it did. * * * [S]o, the [c]ourt has considered * * * his testimony as evidence in * * * aggravation as well.”

¶ 10 The trial court found only one factor in mitigation. The court said: “We certainly have the defendant's age, 21 years old. * * * [W]e hope that a person of that age has * * * the opportunity to be rehabilitated.”

¶ 11 The trial court sentenced defendant to imprisonment for 55 years for first degree murder. That sentence reflected a 30–year term for murder plus a 25–year enhancement for the discharge of a firearm. See 730 ILCS 5/5–8–1(a)(1)(d)(iii) (West 2006). (Without the enhancement, first degree murder was punishable by imprisonment for not less than 20 years and not more than 60 years. 730 ILCS 5/5–8–1(a)(1)(a) (West 2006).)

¶ 12 Defendant took a direct appeal. In addition to challenging jury instruction ( People v. Wright, No. 4–08–0472, slip order at 10, 392 Ill.App.3d 1147, 368 Ill.Dec. 491, 984 N.E.2d 216 (Aug. 20, 2009) (unpublished order under Supreme Court Rule 23)), he argued the trial court had erred by considering two circumstances as aggravating factors in the sentencing hearing: (1) the severe harm he had caused the murder victim, Matthews, and (2) the severe harm he almost had caused to the man watching television in his living room, Addison ( id. at 12). These factors, he argued, were already implicit in the offense of first degree murder and hence were not legitimate aggravating factors. Id.

¶ 13 Defendant acknowledged that, because his trial counsel never raised this issue in a motion for a reduction of the sentence, the issue normally would be forfeited. Id. Nevertheless, on the authority of People v. Martin, 119 Ill.2d 453, 458, 116 Ill.Dec. 669, 519 N.E.2d 884 (1988), he requested us to review the issue as plain [370 Ill.Dec. 288]

[987 N.E.2d 1054]

error. Wright, slip order at 12–13. We concluded that the endangerment of Addison was a legitimate aggravating factor and that consideration of that factor was therefore not error at all. Id. at 13. As for the harm to Matthews, we agreed that consideration of that factor was erroneous, but we did not find it to be plain error. Id. at 13. We reasoned:

“The jury could have found that defendant intended to shoot May, in which case the bullet whizzing by Addison in his living room was not inherent to the felony murder of Matthews. Nor was the endangerment of Richards inherent to the felony murder (Richards was the other man standing beside May). In Martin, 119 Ill.2d at 458 [116 Ill.Dec. 669], 519 N.E.2d at 886, the evidence in the sentencing hearing ‘was not [only] closely balanced, [but] it strongly favored leniency for the defendant.’ In the present case, the evidence in the sentencing hearing was not closely balanced, and it does not strongly favor leniency. Driving down West Macon Street, defendant had to see the houses lining the sides of the street. He had to see Richards standing beside May. Nevertheless, defendant drew his pistol, pointed it in the direction of Addison's house and Richards, and squeezed off not one but three rounds. He had no quarrel with Addison or Richards; it is just that their lives were insignificant to him, and if they happened to be in the way of his wrath, so be it. The court could punish defendant for his indifference to human life. We do not find that the court's passing reference to the harm inflicted upon Matthews put the judicial system in disrepute (see People v. Hampton, 149 Ill.2d 71, 102 [171 Ill.Dec. 439], 594 N.E.2d 291, 305 (1992)) or deprived defendant of a fair sentencing hearing (see People v. Hall, 195 Ill.2d 1, 18 [252 Ill.Dec. 552], 743 N.E.2d 126, 136 (2000)). The plain-error doctrine will not rescue defendant from the procedural forfeiture.

Seemingly as an afterthought, defendant accuses his trial counsel, in one sentence, of ineffective assistance for failing to object to improper aggravating factors. This assertion is too cursory to qualify as an argument. The element of prejudice is far from self-evident. See People v. Nieves, 192 Ill.2d 487, 503 [249...