                                                                              SIXTH DIVISION
                                                                              June 20, 2008


No. 1-06-0141



THE PEOPLE OF THE STATE OF ILLINOIS,                  )               Appeal from the
                                                      )               Circuit Court of
                       Plaintiff-Appellee,            )               Cook County, Illinois.
                                                      )
                                                      )
                                                      )               No. 04 CR 11378
v.                                                    )
                                                      )
SEDGWICK WILLIAMS,                                    )               Honorable
                                                      )               James B. Linn,
                       Defendant-Appellant.           )               Judge Presiding.


       JUSTICE JOSEPH GORDON delivered the opinion of the court:

       Following a bench trial in the circuit court of Cook County defendant, Sedgwick

Williams, was found guilty of aggravated kidnaping (720 ILCS 5/10-2(a) (West 2002)) and

sentenced to 25 years’ imprisonment. On appeal, defendant contends that (1) the State failed to

prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying his motion to

quash the search warrant and to suppress evidence; (3) the trial court erred in denying his motion

to dismiss the indictment; (4) the trial court abused its discretion when it found that two child

witnesses were competent to testify at trial; (5) the trial court erred when it permitted Chicago

police detective Robert Smith to testify regarding a photo identification by Malik Baker where

the prosecutor never questioned Malik about his photo identification; and (6) the trial court erred

when, at various phases of the trial, it departed from its function as a trial court and assumed the

role of a prosecutor. For the reasons that follow we reverse.

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No. 1-06-0141

                                        I. BACKGROUND

       On May 6, 2004, defendant was charged with two separate indictments. In case No. 04

CR 11378, defendant was charged with numerous counts of aggravated kidnaping (720 ILCS

5/10-2(a)(2), (a)(6) (West 2004)) and aggravated vehicular hijacking (720 ILCS 5/18-4(a)(2),

(a)(3) (West 2004)) of the victims: Anthony Baker, Liz Baker and three children under the age

of 13 (Millard Baker, Malik Baker, and Erik Williams) which occurred on January 2, 2004.1 In

case No. 04 CR 1027, defendant was charged for the attempted murder (720 ILCS 5/9-1(a)(1)

(West 2004)) of Anthony Baker on January 20, 2004. These two cases were joined for trial by

agreement of the parties. With respect to case No. 04 CR 11378, involving the January 2, 2004,

aggravated kidnaping of the Baker family, defendant was tried together with codefendants Jeffrey

Campbell and Steven Williams.


       1
           The evidence presented to the grand jury in case No. 04 CR 11378, involving the

aggravated kidnaping and hijacking, consisted of the following. Detective Smith testified that on

or about January 2, 2004, defendant “participated in a kidnaping.” Detective Smith identified the

victims of this kidnaping as Anthony Baker, his wife, Liz, and three children (Millard Baker,

Malik Baker and Eric Williams). Detective Smith further stated that the “offenders” initially

used handguns to hijack the vehicle in which the Baker family was seated. Detective Smith

acknowledged that Liz Baker fled the scene but stated that the offenders took Anthony and the

three children. Detective Smith averred that the children were ultimately released and that

Anthony was “able to get out of the clutches of his kidnapers.” Detective Smith finally testified

that Malik Baker viewed a photo array and positively picked out defendant.

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No. 1-06-0141

                1. Motion to Quash the Search Warrant and to Suppress Evidence

       Prior to trial, on November 18, 2004, defendant filed two pretrial motions to quash the

search warrant and to suppress evidence seized from three separate searches of defendant’s

grandmother’s house and basement.

       At the hearing on that motion, on February 15, 2005, defendant’s grandmother, Betty

Williams, testified that she is 72 years old and lives on the second floor of her two flat at 6835

South Dorchester Street in Chicago, with her 16-year-old granddaughter Fallon, her 27-year-old

grandson Torino, and defendant. Betty stated that she rents the first-floor unit, but that the

basement is hers.

       Betty further testified that about 11:30 p.m., on January 3, 2004, she was in her apartment

with Fallon, and both of them were sleeping, when she was awakened by the persistent ringing of

the doorbell. Betty got out of bed, woke up Fallon and told her to go check who was at the front

door. When Fallon told Betty that the police were at the front door, Betty instructed her to see

what they wanted. She stood at the top of the stairs leading down to the front door. According

to Betty, when Fallon turned the knob, six officers, one in plain clothes and five in uniform then

rushed into the house, up the stairs and past Betty into the second-floor apartment. Betty stated

that she did not give the police permission to enter her home.

        Betty further averred that when she demanded to know what was going on, an officer

asked for defendant. Betty told the police that defendant was not at home and that she last saw

him the day before. The police proceeded to search the house for defendant. According to Betty,

the police searched the bedroom, the kitchen, the enclosed back porch, and the living room.

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No. 1-06-0141

Betty also averred that she saw a police officer going through a clothes closet and another one

looking through her dresser drawer.

       According to Betty, at that point she heard a knock on the back door and she instructed

her granddaughter to go and see who it was. Fallon indicated that “it was more police officers”

who entered the house without asking for permission.

       Betty also testified that the police searched the basement inside the building. She stated

that she remained upstairs while they did that.

       Betty also averred that none of the police officers asked her to sign a consent to search

form when they initially entered the house. Instead, according to Betty, the police searched the

house for about 25 minutes before an officer presented her with a consent form. According to

Betty, the officer asked her to sign the consent form only after Fallon voiced her opinion that the

police should not be there and that Betty should call her daughter, Alicia, who is also a police

officer. Betty testified that she refused to sign the consent form because the police had already

searched her house. She stated that at that point the officer said, “This house is under seizure.

I’m going to find me a judge.” After that, the police remained in Betty’ home until about 10 a.m.

on the following morning.

       On cross-examination, Betty stated that she uses the basement, that it is always locked

and that she holds the keys. Betty, however, acknowledged that she does allow defendant to use

the basement on occasion and that she gives him the keys when he asks for them. She stated,

however, that defendant did not ask her for the basement keys the day before.



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No. 1-06-0141

         On cross-examination, Betty also conceded that she allowed Fallon to take the officers

into the basement. Betty stated that she did that after the police officers came into her house

from the backdoor and stated “We need to go into the basement.” According to Betty, she

allowed the police into the basement because she was confused and afraid that they were going to

take down the basement door if she did not allow them to go inside.

         Betty also averred that she never saw any children enter the house or the basement, but

conceded that she did not enter the basement on the previous night. Betty acknowledged that she

did not know whether defendant went into the basement on that night or if he had kept anything

there.

         After defendant presented his case, the parties stipulated that after a warrant was obtained

and executed, witnesses were brought onto the premises by police to view and identify the

basement as the scene of the crime, and that subsequently certain evidence (including, inter alia,

a bulletproof vest and some ammunition) was taken out of that basement.

         The State called Detective Robert Smith, who testified that on January 3, 2004, he was

assigned to investigate the kidnaping, and vehicular hijacking, of the Baker family. Detective

Smith stated that from his investigation he learned that on January 2, 2004, three children, ages,

10, 8 and 2, were kidnaped and taken to a basement. Detective Smith testified that as a result of

his investigation, he also learned that codefendant Curtis Posey was already in custody. After

speaking with Posey, Detective Smith discovered that defendant was one of his “associates.”

Detective Smith also averred that he spoke with two of the victims, Anthony Baker and Malik

Baker. He stated that after being shown a photo array, Anthony Baker identified defendant as a

                                                  5
No. 1-06-0141

drug dealer from 68th Street and Dorchester, and Malik Baker identified defendant as the man

present at the scene while he was being duct taped.

       Detective Smith testified that he then searched for defendant’s home address and found

out that he lived at 6835 South Dorchester. Detective Smith averred that at about 11:30 p.m. on

January 3, 2004, he went to that residence with approximately half a dozen other officers.

According to Detective Smith, upon arriving at the house, he knocked on the door and “a young

lady came to greet him.” Detective Smith identified himself as a detective of the Chicago police

department and asked to speak to the owner of the residence. At that point, an older lady came to

the door and stated that she was defendant’s grandmother, Betty Williams. Detective Smith

asked Betty if she knew where defendant was and she indicated that he lived there but that at the

present time he was not at home.

       Detective Smith averred that he then asked Betty’s permission to search the house for

defendant and that she permitted him to do so. After an unsuccessful cursory search of the

apartment, Detective Smith asked Betty if he could search the basement. Betty gave the keys to

the basement to her granddaughter Fallon, and Fallon opened the basement door for the police.

       Detective Smith testified that immediately upon opening the basement door he observed a

bulletproof vest, several boxes of ammunition, paint cans and plastic chairs. According to

Detective Smith, during his conversation with the two minor victims, he had been told that there

were paint cans and chairs in the basement where they had been taken by the kidnapers.

       Detective Smith averred that he then had Millard Baker and Malik Baker brought to



                                                6
No. 1-06-0141

Betty’s basement. According to Detective Smith, when the boys entered the basement they

looked around and Malik Baker pointed at the plastic chairs and stated that that was where he

was seated after he was kidnaped.

       After the children left, Detective Smith went to obtain a search warrant. He averred that

he obtained one the following morning, at approximately 7:25 a.m.

       On cross-examination, Detective Smith acknowledged that when he entered Betty’s

house at 11:30 p.m. he did not have a search warrant. He stated that he initially went to the

house to find defendant. Detective Smith however conceded that he did not have information

that defendant was at home, that he did not conduct surveillance of the home, and that he did not

go to the home to check if defendant’s name was on the mailbox in order to ascertain if

defendant actually lived there. Detective Smith further acknowledged that he did not have any

information that defendant was at the home and about to flee, and that he had no information or

reason to believe that evidence that was inside that home was in danger of disappearing or being

destroyed.

       Detective Smith also testified that he initially went to Betty’ house to arrest defendant

based upon Malik Baker’s photo array identification of defendant as one of the perpetrators.

Detective Smith stated that the photo array was conducted in Anthony Baker’s house and that it

included six photographs. Detective Smith stated that defendant’s photograph was placed in the

photo array because he was “an associate of [codefendant] Curtis Posey.” Detective Smith

acknowledged that Posey never made a statement implicating defendant in the kidnaping before

defendant’s photograph was placed in the photo array. He, however, testified that Posey did

                                                 7
No. 1-06-0141

implicate defendant in the kidnaping after the photo array and before he and other detectives

went to Betty’s home.

       Detective Smith also averred that he placed defendant’s photograph in the photo array

because during his investigation, he had learned that “the female who had dropped the children

[who had been kidnaped] off in the 7th District [police station] was *** Crystal Long *** [who]

has a relationship with [defendant.]” Detective Smith testified that he assumed that Crystal Long

and defendant were dating because his investigation revealed a prior domestic battery call

involving Crystal Long as the victim and defendant as the “possible offender.”

       On cross-examination, Detective Smith also conceded that when he initially entered

Betty’s home he told her that his search would be limited to finding defendant and that he would

not search the premises for anything else. He indicated that he searched inside the closets and

underneath the beds, but denied having gone through desk drawers or any of Betty’s belongings.

       In rebuttal, defendant presented the testimony of defendant’s cousin and Betty’s

granddaughter, Fallon Williams. Fallon testified that she is 16 years old and that she lives in the

second-floor apartment at 6853 South Dorchester Street with her grandmother. Fallon averred

that at approximately 11:30 p.m., on January 3, 2004, her grandmother woke her up because the

front doorbell was ringing. When Fallon went to the door and inquired who it was, a police

officers told her, “little girl, open the door.” Fallon told her grandmother that it was the police

and her grandmother instructed her to open the door and see what they wanted. Fallon

specifically averred that her grandmother did not give her permission to let the officers inside the

home. When Fallon opened the door, six officers rushed into the apartment, without asking

                                                  8
No. 1-06-0141

permission to enter. Fallon stated that one officer asked for defendant and that she told him that

he was not at home.

       Fallon testified that about 30 minutes later, more police officers came in from the

backdoor and indicated that they wanted to enter the basement and needed keys. Fallon’s

grandmother gave her the keys and told her to lead them to the basement.

       After hearing closing arguments by defense counsel and the State, the circuit court denied

defendant’s motion to quash the search warrant and suppress evidence. In doing so, the circuit

court specifically found that entry was proper both because the police were given consent to enter

Betty’s home and because there were exigent circumstances surrounding that entry, namely a

“violent offense where children [were] duct taped and held secretly in this very location,” and the

close proximity in time between the searches and the actual crime. The court also noted that in

respect to consent, it found the testimony of Detective Smith far more credible than the testimony

of either Betty or Fallon Williams.

                               2. Motion to Quash the Indictment

       On June 13, 2005, defendant filed a motion to dismiss the indictment alleging that there

was no evidence presented to the grand jury that he had committed acts in furtherance of the

crime charged, namely, aggravated kidnaping. In support of this contention, defendant attached

a transcript of the grand jury proceedings. In arguing his motion, defendant cited to People v.

Rodgers, 92 Ill. 2d 283 (1982), and contended that according to that transcript the only evidence

presented to the grand jury of his involvement in the crime was the testimony of Detective Smith,

who stated that defendant “participated in the kidnaping.” According to defendant, there was no

                                                 9
No. 1-06-0141

evidence at all presented to the grand jury regarding what specific actions he took in committing

that crime. Defendant also argued that the testimony elicited from Liz Baker during the grand

jury proceedings revealing that she had identified defendant as the offender was relevant only

with respect to case No. 04 CR 1027, involving the shooting of Anthony Baker on January 20,

2004, and not relevant to case No. 04 CR 11378, involving the kidnaping of the Baker family on

January 2, 2004. As such, defendant argued that this identification was irrelevant to the

indictment presented to the grand jury. The circuit court denied defendant’s motion, rejecting

the argument that the State failed to present some evidence that defendant did something in

furtherance of the crime. In doing so the court held that “the criminal acts are talked about, albeit

in a conclusory manner.”

                                       3. Trial Proceedings

       On July 7, 2005, a simultaneous bench trial began for defendant and two other

codefendants, Steven Williams and Jeffrey Campbell. In this proceeding, defendant was tried

under two separate indictments for crimes occurring on two separate dates, namely, the

aggravated kidnaping and aggravated vehicular hijacking of Anthony Baker, Liz Baker, Millard

Baker, Malik Baker, and Erik Williams, which occurred on January 2, 2004 (case No. 04 CR

11378 ) and the attempted murder of Anthony Baker, which occurred on January 20, 2004 (case

No. 04 CR 1027). Codefendants Steven Williams and Jeffrey Campbell were also tried for the

aggravated kidnaping of the Baker family on January 2, 2004. The testimony that is contained

and discernable from the record below is as follows.



                                                 10
No. 1-06-0141

                                       a. Anthony Baker

       Anthony Baker testified that in January 2004, he lived at 6860 South Calumet Drive in

Chicago. Anthony stated that at about 7:25 p.m. on January 2, 2004, he was inside his 1995

Dodge Caravan parked across the street from his home, with his wife, Liz Baker, his two

children Millard and Malik Baker, and another child, Eric Williams (known as Redman), whom

Liz babysat. Anthony was sitting in the driver’s seat while Liz was in the front passenger seat,

and the three children were on the bench seat directly behind them. According to Anthony, at

that time Millard was 10 years old, Malik was 8 years old and Eric was 2.

       Anthony averred that as he was pulling out of the parking spot a van pulled up next to his

car and “a bunch of people jumped out,” armed with guns, circling his car. One of the armed

men approached his door and told him to open it. Two other men approached Liz’s window and

tried to open her door. Anthony identified codefendants Jeffrey Campbell and Curtis Posey as

being those two men. Anthony testified that after Campbell and Posey approached Liz’s

window, they went around the car to his door and ordered him to open it. Once Anthony opened

the door, codefendant Campbell put a gun to his neck and ordered him to get in the back of the

car.

       Anthony stated that he climbed over the seats and over the children into the back of the

van. Once there, he observed the men open the back doors of the car and jump inside of it.

Anthony testified that the men struck him, and duct taped him across his eyes, mouth, nose, and

hands. At trial, Anthony testified that he had identified a Mark Williams, from a photo array

shown to him by police, as the man who struck him in the back of the van.

                                                11
No. 1-06-0141

       Anthony next stated that while he was being duct taped and restrained, he heard one of

the men ask what should be done with the children, and he heard Posey responding “duct tape

them, too.” According to Anthony, once he and the children were duct taped, they were “taken

for a short ride,” which appeared to be only a few blocks away, whereupon they were

“transferred to another van.” Anthony stated that although he could not see the vehicle he was

placed in he assumed it was a van because he heard sliding doors. While inside the second

vehicle, Anthony heard someone ask where they would take Anthony and the children and he

heard “Sedgwick” say, “take them to grandma’s house.” Anthony was not questioned on how he

recognized defendant’s voice.

       Anthony averred that at the next stop, the children were taken away while he was

transferred alone into yet another car and placed on the floor of the backseat. During this car

ride, Anthony could glean that there were at least three men in the car because one had his feet

on him, and he could hear the conversation between the two men in the front. According to

Anthony the car ride lasted approximately 20 minutes. Once the car stopped, Anthony was taken

out of the vehicle and the tape was taken off his hands. Anthony was told that he would be

brought to a house and that the tape would be taken off his face once he reached the front door.

Posey specifically instructed him to ask for Lisa. Once Anthony reached the front door, he felt

the tape being removed from his face.

       According to Anthony, a young boy, about 12 or 13 years old answered the door and told

them that Lisa was not home. Anthony stated that he heard a telephone ringing in the house and

a female voice in the background calling the boy to come to the telephone because his mother

                                                12
No. 1-06-0141

wanted him. At that point, Posey grabbed the door and dragged Anthony inside the house and sat

him at the dinner table. Anthony saw Posey grab the boy and demand that he be taken to where

his mother kept the money. According to Anthony, a little girl, about 10 years old, then appeared

in the doorway of the living room and another offender, who was armed with a gun, stood next to

her.

       While Posey was walking the young boy through the apartment, the doorbell rang.

Anthony testified that Posey and the other offender ran outside the apartment. When they ran out

of the house, Anthony locked the door behind them and called the police. After the police came,

they took Anthony to the police station. When Anthony arrived at Area 2 police station, he saw

Posey and identified him as being the offender who spoke to him both inside the cars and inside

the house.

       When questioned about codefendant Steven Williams, Anthony testified that Steven

Williams was not an offender or participant in any crime committed against him or in his

presence. He denied ever having told an officer that he saw Steven Williams on the passenger

side of his van or “in the living room putting duct tape on the little girl.” He also stated that the

first time he saw Steven Williams in any shape or form was on July 14, 2005, and he stated that

he had never been shown a photograph of him by any police officer.2



       2
           Immediately upon this testimony, the parties stipulated that if Detective Robert Smith

were called to testify, he would testify that on February 17, 2004, at 4:15 p.m., he had a

conversation with Anthony, who was shown a photo array. The detective would testify that

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No. 1-06-0141

        Anthony next testified about the January 20, 2004, incident. He stated that at

approximately 12:27 p.m. he had picked up his daughter, Sade Baker, from school and parked his

van in front of his house at 6860 South Calumet Drive. Anthony stated that his wife was in front

of the car with his friend Elgin Wallace, and that he and Sade had just got out of the car, when he

observed a vehicle with tinted windows and duct tape on the doors pull up behind him. Anthony

then saw defendant get out of the car and start shooting at him. Anthony felt a shot in his arm,

yelled “run,” and started running toward the house himself. Anthony averred that defendant did

not stop shooting but hit him in the head and then the back. Anthony stated that once he was

wounded, defendant came very close to him and continued to shoot him in the chest, stomach,

legs and other arm. Defendant finally tried to shoot Anthony in the head but his gun “would not

go off.” According to Anthony, defendant then kicked some dirt in his face and left.

        Anthony testified that soon thereafter the police and ambulance arrived and he was taken

to Christ Hospital. Once there, Anthony spoke to police, who asked him if he knew the person

who shot him. Anthony told the police that it was “the same [person] my son [Malik] pointed

out, that he said took the tape off his face in the kidnaping.” When asked when Malik made this

identification, Anthony stated that between the kidnaping and the time he was shot, the police

showed him photographs and asked him if he could identify any more people that had been

involved in the kidnaping and he could not. However, he stated that his son Malik was standing


Anthony picked codefendant Steven Williams out of the photo array. He would further testify

that he never inventoried that photo array, that he no longer has it and that he cannot find it for

purposes of the trial.

                                                 14
No. 1-06-0141

nearby and then said, “Daddy, this the one that took the tape off my face,” identifying defendant.

       Anthony averred that after speaking with the police at Christ Hospital, he was brought a

photo array, and he identified defendant as the man who shot him.

       On cross-examination, Anthony stated that the first time he spoke to the police, he

described the offenders involved in his kidnaping as being male blacks, between the ages of 20

and 26, between 5 feet 7 inches and 5 feet 11 inches in height, weighing about 170 to 180

pounds.

       On cross-examination, Anthony conceded that he knew defendant before the January 20,

2004, shooting but denied knowing him before the kidnaping. When questioned regarding his

prior statements to police about knowing defendant, Anthony denied having told Detective Maas

on February 7, 2004, that “he supplied product” to defendant via a Michael Raymond of Joliet.

Anthony denied ever having sold cocaine, but admitted to being known as “Crack Daddy” since

1976. Anthony further denied ever knowing a male black in his 40s named Michael Raymond,

or Redmond, and denied ever having told police that he knew him.3

                                           b. Liz Baker

       Liz Baker next testified that on January 2, 2004, at 7:25 p.m., she and Anthony were in

their van parked on the east side of Calumet Street with their two children Millard and Malik

Baker, and a child that Liz provides daycare for named Eric Williams (or Redman). According


       3
           As shall be described below, the aforementioned aspects of Anthony’s testimony were

challenged by other witnesses at trial.

                                                15
No. 1-06-0141

to Liz, at that time Anthony was seated in the driver’s seat and she was in the passenger seat with

the children in the back. Liz testified that another van pulled up to the passenger side of their

van and a man wearing a black hoody walked around the back of their van to Anthony’s window,

pointed a gun at him and told him to open the door. Liz testified that she saw two more men exit

the van and approach her door. One of the men, whom she later identified as Curtis Posey,

attempted to open her door, but it was locked. The third offender went to the back and opened

the sliding door where the children were.

       Liz averred that after being threatened by the gunman, Anthony opened the driver’s side

door. Liz stated that the gunman, whom she later identified as codefendant Jeffrey Campbell,

ordered Anthony to get into the back of the van. According to Liz, as Anthony started climbing

over the seats to the back of the van, she heard Campbell tell Posey to put her in the back of the

van as well, and so she opened the passenger side door and ran. As Liz ran westward toward a

neighbor’s house, she heard Campbell yelling behind her “catch that bitch, catch that bitch.” Liz

testified that she did not see what happened to the van and that she eventually went home.

       Liz next averred that later that night she received a call from the 7th District police

station informing her that her children were there and that they had been reported as “walking the

streets alone.” Once at the police station, Liz told the officer that the children had been kidnaped

that day.

       Liz next testified with respect to the January 20, 2004, incident. According to Liz, at

approximately 12:27 p.m. on the day in question she was standing in front of her house on 6860

South Calumet Drive talking with her friend, Elgin Waller, her daughter Sade, and her husband,

                                                 16
No. 1-06-0141

Anthony, when she observed a burgundy car with tinted windows pulling up to the house. She

then saw a man jump out of that car and shoot at her husband. Liz testified that while Anthony

was hit 13 times, the shooter shot many “more times than that.” Liz made an in-court

identification of defendant as the man who shot her husband.

       Liz further testified that after defendant started shooting, Anthony attempted to run but

fell to the ground. According to Liz, defendant continued to shoot at her husband until he ran out

of bullets. After defendant ran away, the ambulance was called and arrived soon thereafter to

take Anthony to Christ Hospital.

       Liz testified that while she was at the hospital, the police showed her a photo array

including defendant’s photograph, but she did not identify anyone from it. Liz, however, averred

that on April 6, 2004, she went to Area 2 police station where she viewed a lineup, and identified

defendant as the shooter.

       On cross-examination, Liz acknowledged that with respect to the kidnaping which

occurred on January 2, 2004, she never told police that there were more than three offenders.

She also acknowledged that she originally described the three offenders as male blacks between

the ages of 22 and 26, with one man being “extremely short.” Liz also conceded that it was dark

outside when the kidnaping occurred.

       On cross-examination, Liz testified that she viewed several lineups and photo spreads

related to the kidnaping case. She specifically stated that on February 7, 2006, she viewed a

lineup at Area 2 police station and picked out codefendant Jeffrey Campbell as one of the



                                                17
No. 1-06-0141

offenders. On April 6, 2004, at Area 2 police station, she viewed a lineup and picked out Curtis

Posey.

         Liz also testified that on March 8, 2004, at about 4:45 p.m., she viewed a lineup and

identified another man as the person who forced Anthony onto the floor of the van, striking him

in the head several times. However, Liz could not recall whether that person’s name was Mark

Williams, a man not charged as a codefednant in the case. At this point in the trial proceedings,

the court inquired whether Mark Williams was placed in the photo array as a suspect or filler,

and all the attorneys agreed that Mark Williams was a suspect, not a filler, that he was arrested

regarding the case, but that neither the prosecution nor the defense knew what had happened to

him since.

         With respect to codefendant Steven Williams, Liz testified that he was not present on

January 2, 2004. She denied ever identifying him either in a lineup or in a photo array as an

offender in the kidnaping and denied ever having told police that he was the man who stood next

to the passenger side window of the van during the incident.

         Liz also testified that her husband is known by the name “Crack” because he “cracks

jokes all the time.”

         When questioned about defendant, on cross-examination, Liz stated that she did not see

defendant during the kidnaping incident. Liz explained that she heard defendant’s name for the

first time after the kidnaping when her children looked at photo arrays and told the police that

they recognized defendant from “when he took tape off of their faces.” Liz also denied ever



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No. 1-06-0141

having met defendant prior the kidnaping.




                                          c. Malik Baker

       Malik Baker, age nine, was next called as a witness. His testimony began with the

prosecutor offering to establish his competency as a witness. When asked whether he knew the

difference between a truth and a lie, Malik shook his head from side to side, indicating “no,” and

said he did not. When questioned whether the prosecutor would be lying if she said that she was

wearing a white shirt, Malik indicated that she would be because the shirt was black. After that

Malik also indicated that he does understand the difference between a truth and a lie.

       At this time, defendant objected to the competency of Malik to testify at trial because he

had initially stated that he did not understand the difference between a truth and a lie. The court

then continued its own voir dire of Malik. The court asked Malik if he knew where he was, and

he indicated that he did. The following colloquy next took place:

                “THE COURT: Where are you? What kind of building is this?

                MALIK: I forgot.

                THE COURT: You don’t know where you are?

                MALIK: I forgot.

                THE COURT: Okay. You know when I asked you to raise your hand to promise

       to tell the truth?



                                                19
No. 1-06-0141

                MALIK: Yes.

                THE COURT: What did that mean to you?

                MALIK: To tell the truth.

                THE COURT: Okay. And what does the truth mean?

                MALIK: To not lie.

                THE COURT: To not lie. If something really happened and you would say what

      really happened is that the truth or is that a lie?

                MALIK: That is the truth.

                THE COURT: Okay. And if something didn’t happen that you say it happened

      even though it didn’t happen is that a truth or a lie?

                MALIK: That is a lie.

                THE COURT: How many fingers do I have up now?

                MALIK: Two.

                THE COURT: The record will show that the Court has two fingers up. If I told

      you this was three fingers would that be a truth or a lie?

                MALIK: A lie.

                THE COURT: If I told you that it was two would that be the truth or a lie?

                MALIK: A truth.



                                                 20
No. 1-06-0141

                THE COURT: Okay. Do you know what happens if you tell a lie in court?

                MALIK: No.

                THE COURT: No. You know you could get in trouble for it if you tell a lie in

       court?

                MALIK: Yes.

                THE COURT: You believe me when I say this?

                MALIK: Yes.”

The circuit court then found that Malik was competent to testify as a witness.

       Malik testified that in January of 2004, he was in the van with his mother, father, brother

and cousin, when another van pulled up and a man with a gun came to his father’s side of the car.

According to Malik, his father did not open the door at first, but did when he was ordered to do

so a second time. After his father opened the door, Malik heard the man tell him to move to the

back of the van and he did so. Malik stated that “a couple of men” then followed his father to the

back of the van and tied him with duct tape. Malik also averred that the men put duct tape on

him, his brother and his cousin. He stated that they put duct tape on his legs, arms, and eyes.

       Malik testified that after his eyes were duct taped he felt the van moving. He stated that

at one point the van stopped and he was taken outside together with his brother and cousin.

Malik did not know where his father was at that time. Malik stated that together with his cousin

and brother he was then taken into another car with three people. When asked if he had tape on

his eyes in that car Malik stated that he did. However, when asked if someone took the tape off

                                                21
No. 1-06-0141

his eyes, Malik stated that someone did but indicated that he did not see the person who took the

tape off. When asked if he could state whether the three people in the car were “boys or girls,”

or “how old they were,” Malik indicated that he could not.

        Malik then stated that after he was in this car, he was taken to the police station by

“Crystal Long.” Malik averred that before “this lady” took him to the police station, two men,

who were inside the car were dropped off somewhere. When asked if saw the two people that

“got dropped off,” Malik indicated that he had.

       Malik was next asked by the State to look around the courtroom and see if anyone that

was present in January 2004 was currently inside the courtroom. Malik responded with “no.”

The following colloquy then took place:

                “THE STATE: You want to take a look?

                DEFENSE COUNSEL: Objection.

                THE COURT: You can try it again but watch your gestures, please.

                THE STATE: Do you want to stand up and look around the courtroom?

                MALIK: No.

                THE STATE: Are you scared?

                MALIK: No.

                THE COURT: You may try some more, just be careful of how you do it but you

       can explore this a little bit.



                                                  22
No. 1-06-0141

                THE STATE: Malik, can I see you look up and look at the people in the

       courtroom that are sitting here?

                MALIK: Yes.

                THE STATE: Can you look around at all the people in the courtroom?

                MALIK: Yes.

                THE STATE: Did you look at all the people in the courtroom?

                MALIK: Yes.

                THE STATE: Do you see anybody here today that you saw back on that date?

                MALIK: No.

                THE STATE: Are you looking around at all the people that are here?

                DEFENSE COUNSEL: Objection, your Honor.

                THE COURT: Overruled

                MALIK: Yes.

                THE STATE: All around?

                MALIK: Yes.”

       At this point, the State proceeded with another line of questioning and asked Malik if he

remembered whether the duct tape came off his eyes at any point during the incident in January

2004. Malik stated that the tape came off his eyes inside a basement. Malik was then shown a

photograph marked as exhibit 4A and asked to identify it. Malik indicated that this was a

                                               23
No. 1-06-0141

photograph of the basement where the duct tape was taken off his eyes. He stated that he knew

that it was the basement in question because of the “chairs, paint stuff, [and] paint bottles down

there.” Malik was shown another photograph marked as exhibit 4B and asked to identify it, and

he again stated that it was a photograph of the same basement and that he knew that because it

contained the “motorcycle [and the] chairs.” Malik went on to identify exhibits 4C, 4D, and 4E

as photographs of blue chairs and bicycles that were in the basement, as well as the wall of the

basement.

       Malik was next questioned about a photograph marked exhibit 5A, and he identified it as

a car.4 Malik stated that he was inside this car and that “Sedgwick” was in this car with him.

When asked how he knew that “Sedgwick” was with him inside the car, Malik stated “because of

his voice.” The following colloquy next took place:

                  “THE STATE: You heard his voice?

                  MALIK: Yeah.

                  THE STATE: Did you hear his voice again?

                  MALIK: No, just in the basement.

                  THE STATE: You heard his, Sedgwick’s [defendant’s] voice in the basement?

                  MALIK: Yes.




       4
           We note that exhibit 5A is not part of the record and that from the transcript of the trial

proceedings it is unclear whether it was ever admitted into evidence at trial.

                                                    24
No. 1-06-0141

                THE STATE: Did he talk to you?

                MALIK: No.

                THE STATE: Did he talk to other people?

                MALIK: No.

                THE STATE: Did you see Sedgwick’s [defendant’s] face ever?

                MALIK: Yeah–no.

                THE STATE: Do you see Sedgewick [defendant] in this courtroom today?

                MALIK: No.

                THE STATE: Do you see Sedgwick [defendant] in this courtroom today?

                MALIK: No.

                THE STATE: Did you look around?

                MALIK: Yes.

                THE STATE: You looked all around this room?

                MALIK: Yes.

                DEFENSE COUNSEL: Objection.

                THE STATE: And you don’t see Sedgwick [defendant] here today?

                MALIK: Yes.

                THE STATE: You do see him?


                                             25
No. 1-06-0141

                MALIK: Yeah.

                THE STATE: Can you point to where he is sitting?

                MALIK: Right there. (Indication).

                THE STATE: Which one?

                MALIK: That one.

                THE STATE: You recognize somebody?

                DEFENSE COUNSEL: Objection, she asked–

                MALIK: Yeah.”

At this point in the trial proceedings, the circuit court interrupted and asked Malik to stand in

front of the person that he is pointing to, whereupon, Malik left the witness stand and stood next

to defendant. The court then stated, “Very good,” and indicated for the record that Malik “stood

in front of [defendant] in open court.”

       When Malik returned to the witness stand, the State asked him if he had seen defendant

on the night in question. Malik stated that he did not see defendant in the basement but did see

him inside the car that was photographed in exhibit number 5A.

       When asked who else was in that car with Sedgwick, Malik indicated that there was a “a

boy,” who appeared to be about 15 years old. Malik also identified exhibit 5C as a photograph of

Crystal Long.

       On cross-examination, Malik testified while he was in that car, defendant was seated in


                                                 26
No. 1-06-0141

the front passenger seat and that Crystal Long was with him. Malik initially stated that while he

was in the car with defendant, defendant told him that his name was “Sedgwick.” Malik,

however, then stated that the police told him both Crystal’s and Sedgwick’s names. He also first

averred that he had never seen Sedgwick before that day in January, but then stated that he heard

his father mention Sedgwick’s name once “before any of this happened.”

       On cross-examination, Malik also testified that the duct tape was never taken off his eyes

while he was in the basement and that he did not see defendant inside the basement. He also

testified that somebody had to help him walk out of the basement because his eyes were duct

taped and he could not see. When asked how he could then identify the bicycles and chairs in the

photographs of the basement, Malik first became unresponsive, and the court had to admonish

him to answer the attorney’s question. When Malik refused to do so, the court took note of that

for purposes of the record. Malik then responded by saying that the police showed him

photographs of the items that were inside the basement. He then added that his eyes were taped

only “a little bit” while he was in the basement and that therefore he could see. Malik changed

his testimony yet again and stated that he did in fact see defendant inside the basement.

       When questioned on when the duct tape was removed from his eyes, Malik testified on

cross-examination that it was removed inside the car, and not inside the basement. He stated that

a man took the tape off his eyes, but that he did not know which man and that he could not

identify that man.

       On cross-examination, Malik also acknowledged that during this entire incident the “sun

had gone down” and there were no streetlights or other lamps nearby.

                                                27
No. 1-06-0141



                                         d. Millard Baker

       Millard Baker, 11 years old, was next called as a witness on behalf of the State. Millard

testified that in January 2004, he was inside his father’s van with his father, mother, little brother

(Malik) and Eric. Millard averred that his father was sitting in the front driver’s seat at this time.

Millard stated that at one point a man with a gun came to the van and told his father to open the

door. According to Millard, his father opened the door and crawled to the back of the van. The

men came into the van and drove off. Millard stated that he cold not see when he was inside the

van. He then averred that together with his brother and his little cousin (Red Man) he “went to a

basement, or something like that.”

       Millard testified that he had trouble remembering what happened in the basement.

Millard stated that afterwards, the three of them went into a car with a lady, a boy and another

person who sat in the front passenger seat. He stated that the boy and the man in the passenger

seat were “dropped off” and that the woman then took him, his brother and cousin to the police

station where they were reunited with his mother.

       The State then asked Millard if he saw anyone in the courtroom who was present on that

day in January 2004, and over defense counsel’s objection, Millard was allowed to state that he

did. The following colloquy and in-court identification then took place:

                “THE STATE: Who did you see?

                MILLARD: A man.


                                                  28
No. 1-06-0141

                THE STATE: What man did you see? Do you think you can point out the man

       that you saw?

                MILLARD: (Indication).

                THE COURT: Ask a little, she’s [sic] pointing towards the jury box I want to

       know exactly who she [sic] is pointing to.

                THE STATE: He is pointing.

                THE COURT: Who he is pointing to, excuse me.

                THE STATE: Do you want to stand in front of the person that you saw?

                MILLARD: No.

                THE COURT: Well, you can describe it verbally a little better.

                THE STATE: Can–

                THE COURT: At this point I know where in the jury box. But you can go ahead.

                THE STATE: Was it this man?

                MILLARD: Yes.

                THE COURT: The record will reflect that the witness is identifying [defendant] in

       open court.” (Emphasis added.)

       Millard next identified a number of exhibits as being photographs of himself, his brother,

Eric Redman, his father’s van, the basement he was taken to, and the chair that he sat in while in




                                                29
No. 1-06-0141

the basement. Millard also identified exhibit 5A as the car he was in during the kidnaping.5

Millard identified exhibit 5C as the photograph of “a girl” who was in the car with him during

the kidnaping.

       During cross-examination, however, Milllard testified that while he was in the basement

he could not see because his eyes were covered with duct tape. Millard also averred that he had

not been able to walk to the car because his eyes were covered, and he stated that somebody

carried him into the car in his arms. He also explained that he did not know how his brother or

cousin got into the car because his eyes were taped.

       On cross-examination, Millard also testified that before that night, he had never seen any

of the three people in the car (the young boy, Crystal, or defendant). When asked if he had talked

about the kidnaping with his parents prior to trial, Millard was unresponsive. Millard finally

averred that he did not recognize either of the two codefendants, Steven Williams or Jeffrey

Campbell, who were seated in the jury box with defendant.

       When questioned whether anyone had shown him photographs of any of the defendants

present in the courtroom, Millard first stated that he had seen the photographs “a few minutes

ago,” “before court,” but then changed his testimony stating that he had not seen those

photographs earlier in the day. Millard changed his testimony a third time and stated that he

could not remember if he had ever been show photographs of any of the defendants before that.



       5
           As noted above exhibit 5A is not part of the record on appeal, and we cannot discern

from the record whether it was ever admitted at trial.

                                                  30
No. 1-06-0141

                                e. Quincy Saddler and Sade Baker

       The State next presented two additional witnesses with respect to the January 20, 2004,

incident. First, Quincy Saddler testified that on the date in question he lived at 6858 South

Calumet Drive, in Chicago and that he was neighbors with the Baker family. Saddler averred

that at approximately 12:27 p.m. on that day, he was standing at the corner of 68th Street and

Calumet, about to go into his house, when he saw the Baker family parking their car. Saddler

testified that as soon as he saw Anthony get out of his car, he observed a man come out of a

maroon car and “just start shooting.” Saddler stated that he only saw two shots but indicated that

he heard at least 20 more. Saddler testified as soon as he heard the shots he immediately fell to

the ground and therefore did not see the face of the shooter.

       Next, Sade Baker, Anthony and Liz’s 18-year-old daughter, testified that at about 12:27

p.m., on January 20, 2004, she was in front of her house at 6786 South Calumet Drive with her

mother, father, their friend Elgin, and a child from her mother’s day care. Sade testified that at

that time she observed defendant jump out of a burgundy car and start shooting at her father. She

stated that her father ran and fell and that defendant followed him and continued to shoot at him.

       Sade stated that after defendant ran away, an ambulance was called and her father was

taken to Christ Hospital. Sade averred that once she was at the hospital, the police showed her a

photo array but she did not pick anyone out of that photo array. Sade went to Area 2 police

station on April 6, 2004, to view a lineup where she identified defendant as the shooter. Sade

also made an in-court identification of defendant.



                                                 31
No. 1-06-0141

       On cross-examination, Sade acknowledged that defendant’s photograph was part of the

original photo array shown to her at Christ Hospital only hours after the shooting and that she did

not pick defendant out of that photo array.

                                          f. Detective Weber

       Detective Weber next testified on behalf of the State. He averred that on April 6, 2004,

as part of his duties at Area 2 police station, he was assigned to investigate both the kidnaping

and attempted murder of Anthony Baker and his family. Detective Weber testified that on that

date he conducted a lineup that contained defendant and that was viewed by Liz Baker and Malik

Baker. According to Detective Weber, he did the lineup individually, first with Liz and then

with Malik. Detective Weber testified that Liz picked defendant out of the lineup as the man

who shot at her husband on January 20, 2004. He stated that Malik also picked out defendant

from the lineup “as the person who shot his father.” Detective Weber acknowledged that he was

the only person inside the viewing room with each of the victims, but he averred that he did not

tell either Malik or Liz whom he or she should pick out of the lineup.

       On cross-examination, Detective Weber changed course and indicated that Liz was

present when Malik identified defendant as the shooter. In addition, Detective Weber could not

recall if he had investigated whether Malik was present during the shooting of his father on

January 20, 2004.6



       6
           In that respect, we note that there is no evidence anywhere in the record that would

indicate that Malik was present during the shooting on January 20, 2004.

                                                  32
No. 1-06-0141

                                     g. Detective Miguel Rios

       Detective Miguel Rios next testified on behalf of the State. He stated that on February 7,

2004, at approximately 9 p.m., as part of his duties at Area 2 police headquarters, he conducted a

lineup in conjunction with the case of aggravated kidnaping of the Baker family. He stated that

Liz Baker picked out codefendant Jeffrey Campbell as an offender. According to Detective Rios,

Liz identified Campbell as the man who, at gunpoint, ordered her husband, Anthony, to go to the

back of the van.

                                    h. Officer Steven Lazzara

       Officer Steven Lazzara testified that at approximately 12:50 p.m., on January 20, 2004,

he was assigned to investigate the shooting of Anthony Baker. He stated that he was only

assigned to investigate this shooting and not the kidnaping which had occurred on January 2,

2004. Officer Lazzara testified that as a result of his investigation, he went to the crime scene

near 68th Street and Calumet, where he observed a dozen or more 40-caliber shell casings on the

street. He stated that personnel from the crime lab photographed the scene in his presence and

collected the evidence.

       Officer Lazzarra also testified that on January 24, 2004, he went to Christ Hospital, where

he spoke to Anthony. He showed Anthony a photo array, and Anthony picked out defendant as

the shooter.

       On cross-examination, Officer Lazzara acknowledged that on January 20, 2004, a few

hours after the shooting, while at Christ Hospital, he showed Liz Baker and Sade Baker photo


                                                 33
No. 1-06-0141

arrays containing defendant’s photograph. According to Officer Lazzara, neither Liz or Sade was

able to make an identification from that photo array.

       On cross-examination, Officer Lazarra also stated that when he spoke to Anthony in the

hospital on January 24, 2004, and before he showed Anthony the photo array, Anthony told him

that he knew defendant and also that defendant was the person who kidnaped him. Officer

Lazarra also testified that out of the six photographs that he showed Anthony on that day four

were fillers (not suspects in the case) and one (that of defendant) was a photograph of a person

Anthony knew from before. When questioned about the sixth photograph, Officer Lazarra was

first vague and then testified that he could not recall who the person in that photograph was.

                                    i. Detective Robert Smith

       Detective Robert Smith testified that in January 2004, he was assigned to the robbery

burglary team at Area 2 police station, and that up until that point he had been a detective for

approximately six months. Detective Smith averred that as part of his duties, together with his

partner Sergeant McClellen, he was assigned to investigate the kidnaping and hijacking of the

Baker family which had occurred on January 2, 2004. Detective Smith stated that as part of that

investigation, at about 10:50 p.m., on January 3, 2004, together with his partner, he conducted a

photo array at the Bakers’ home on Calumet Drive. Specifically, Detective Smith averred that he

showed the photo array to Malik Baker. According to Detective Smith, Malik’s brother and

parents were in the front room during the photo array.

       Over defense counsel’s objection, Detective Smith testified that Malik picked out



                                                 34
No. 1-06-0141

defendant during the photo array as the person who kidnaped him. Detective Smith then made

an in-court identification of defendant. Defense counsel objected to this testimony stating that it

was improper for the detective to testify about a photo array identification by Malik Baker, when

the trial record failed to show that Malik ever testified to making such an identification. The

State conceded that “the kid’s testimony was rather difficult to understand” but argued that

Malik’s father, Anthony, had previously testified that he was with Malik when Malik viewed a

photo array. The court indicated that it would take the matter under advisement until the parties

could look at the transcripts and tell the court what the transcripts reflected.

        At a subsequent trial date, defense counsel asked that the testimony of any police officer

testifying with respect to the photo array identifications by either Malik or Millard be stricken

because the transcript revealed that neither child had testified regarding such identifications. The

court denied defense counsel’s motion, noting that the objection made by counsel at trial with

respect to this issue goes to the weight of the evidence and not its admissibility. The court

specifically stated:

                “I’m not barring it. Some witnesses say this is their recollection in lieu of

        children, say this is their recollection (sic). And the police officers saying later that’s

        their recollection.

                The trier of fact has to sort through that. It’s – I’m not going to strike it because

        it’s at odds with the other.

                                                 ***



                                                  35
No. 1-06-0141

                I don’t believe the remedy is striking it. It is what it is. This is the evidence. I

       have different witnesses telling me different things about the same investigation and they

       are at odds with each other.

                                                 ***

                Just because witnesses disagree it doesn’t mean one or the other gets stricken, it

       just means that they disagree and it may impact the weight somewhere down the line.”

       Detective Smith next testified that he subsequently learned that defendant’s last address

was 6835 South Dorchester. He stated that at approximately 11:35 p.m., on January 3, 2004, he

went to that address, where he was met by defendant’s grandmother. Detective Smith testified

that defendant’s grandmother permitted him into the house and into the basement to search for

defendant. Detective Smith stated that after viewing the basement, he contacted the Baker family

and had them come to the location. Over defense counsel’s objection, Detective Smith testified

that Malik viewed the basement and identified it as the place where he was held captive.

Detective Smith next identified a series of photographs of the basement at 6853 South

Dorchester and a photograph of the fence near the trash cans in the back of the building.

Detective Smith also identified a photograph of a roll of duct tape in the kitchen of 6853 South

Dorchester, two photographs of a piece of curmpled duct tape on a mattress at 6853 S.

Dorchester, as well as a photograph of a curled-up piece of duct tape near the back fence outside.

       Detective Smith also testified that on April 6, 2004, he conducted a lineup which was

viewed by Sade Baker. He stated that Sade identified defendant as the man who shot her father



                                                  36
No. 1-06-0141

on January 20, 2004.

       On cross-examination, Detective Smith acknowledged that numerous people were

arrested in connection with the aggravated kidnaping. He stated that a man named Mark

Williams was never arrested. Detective Smith also testified that he “heard that [Mark Williams’

photograph] was put in a photo array,” but indicated that he had “no personal knowledge” of

such an array and that he has “never seen such a photo array.”

       On cross-examination, Detective Smith also acknowledged that he conducted a photo

array including codefendant Steven Williams, and that Anthony Baker identified Steven

Williams as one of the men involved in the kidnaping. Detective Smith also testified that Steven

Williams was a “shorter individual,” approximately 5 feet tall.

       On cross-examination, Detective Smith also averred that Malik told him that he did not

know who duct taped him, that he was brought to a basement, and that he was taken out of it by a

man who took his hand. Detective Smith testified that Malik indicated that he remembered the

voice of the person who led him out of the basement as being that of defendant.

       On cross-examination, Detective Smith testified that Anthony and Millard both identified

codefendant Steven Williams as involved in the kidnaping.

       Detective Smith finally acknowledged that although the Baker’s van was recovered, it

was never dusted for fingerprints. He also stated that there was no physical evidence (i.e.,

fingerprints) ever recovered linking defendant to the kidnaping. The State then rested.




                                                37
No. 1-06-0141

                       B. Directed Verdict as to Codefendant Steven Williams

       After the State rested as to codefendant Steven Williams, Steven presented no evidence

and instead moved for a directed verdict. The court granted the motion for a directed verdict

finding that the State failed to meet its burden to show beyond a reasonable doubt that Steven

participated in the kidnaping. In doing so, the court specifically noted that it had the “scantiest of

evidence” about Steven, namely, a photo array that could not be located by the police and a prior

identification from a key witness, Anthony, which was recanted in open court.

                                  C. Defendants’ Cases in Chief

                                         a. Mark Williams

       Codefendant Jeffrey Campbell called Mark Williams as his first witness, and defendant

adopted his testimony. Mark, age 24 years old, testified that at about 7:25 p.m., on January 2,

2004, he was “either sick or on his way to the hospital.” Mark averred that approximately six

weeks later, he was stopped by the police in front of his house at 6411 South Evans Street and

was taken to the police station located at 71st Street for questioning. Mark was subsequently

transferred to the police station at 111th Street where two detectives questioned him about a

kidnaping that had occurred on January 2, 2004. Mark testified that while at the police station he

was placed in two separate lineups and that following each the detectives told him that he was

“pointed out.” Mark stated that he then told the police that on January 2, 2004, he was taken to

the emergency room at Providence Hospital by his girlfriend Danielle Hoy because of a nose

bleed and that he remained there for at least four to five hours. Mark stated that after the police



                                                 38
No. 1-06-0141

officers went to the hospital, they released him. Mark averred that after his arrest he was in

police custody for a total of three days.

       On cross-examination, Mark acknowledged that he has known both defendant and

codefendant Jeffrey Campbell from the neighborhood for a couple of years.

                                            b. Sergeant Paluch

       Sergeant Paluch next testified that on March 8, 2004, he showed Liz and Anthony Baker

a photo array in regard to the January 2, 2004, kidnaping. According to Sergeant Paluch, this

photo array included a photograph of Mark Williams. Sergeant Paluch testified that both

Anthony and Liz identified Mark Williams as a participant in the kidnaping.

       For a second time in the trial proceedings, the circuit court inquired sua sponte whether

Mark Williams was a suspect or a filler in the case, and Sergeant Paluch responded that he was a

suspect.

                                  c. Sergeant Deanne Owsianiak

       Sergeant Deanne Owsianiak next testified that on January 2, 2004, she was at the 7th

District police station, when a black female brought the Baker children to the station. The black

female had indicated that she found the children on the street near 63rd and Ashland. Sergeant

Owsianiak took the woman’s information and “asked the children if they were ok.” According to

Sergeant Owsianiak, the children did not tell her that they had been kidnaped, but only gave her

their mother’s telephone number.

       Sergeant Owsianiak then called Liz Baker. She stated that during the telephone

                                                   39
No. 1-06-0141

conversation Liz did not tell her that the children had been kidnaped. Liz soon came to the

police station and retrieved her children.

       On cross-examination, Sergeant Owsianiak acknowledged that during the telephone

conversation, Liz had stated that her children were missing.

       At this point in the trial proceedings, the circuit court sua sponte asked the witness what,

if anything, the children told her when they were brought into the station, and Sergeant

Owsianiak responded that they only said that “they were dropped off, they were lost.”

                                         d. Officer Verdin

       Officer Verdin next testified that at about 7:30 p.m., on January 2, 2004, he was a

uniformed police officer in a beat car when he answered a call at 6860 South Calumet Drive.

Officer Verdin testified that at that time he interviewed Anthony and Liz Baker with respect to

the aggravated vehicular hijacking. According to Officer Verdin, both Liz and Anthony

indicated that there were only three offenders involved in the hijacking.

                           e. Stipulations Offered in Defendant’s Case

       The parties then stipulated that if called to testify by the defense Officer Rios would

testify that Liz Baker identified Curtis Posey as the offender who on January 2, 2004, went to the

passenger side door of Anthony’s van while armed with a handgun.

       The parties further stipulated that if called to testify, Officer Arteaga would state that

when he spoke to Anthony Baker in April 2004 about the January 20, 2004, shooting, Anthony

told him he knew defendant prior to this incident.

                                                 40
No. 1-06-0141

        The parties further stipulated that if called to testify by the defense, Detective Smith

would aver that as part of his investigation of the January 2, 2004, vehicular hijacking and

kidnaping, he prepared a search warrant of the building at 6835 South Dorchester. Detective

Smith would state that as part of the complaint for the search warrant he included a statement

made to him on January 2, 2004, by Anthony Baker, in which Anthony stated that on January 2,

2004, Detective Smith showed him a photo array and Anthony identified defendant from that

photo array as “someone that he knew to be a drug dealer from the area of 68th [Street] and

Dorchester.”

        The parties further stipulated that if the keeper of records at U.S. Cellular Telephone were

called to testify he or she would state that cellular phone number 773-593-1219 was registered to

defendant and was active from December 29, 2003, through January 22, 2004. The keeper of

records would also aver that cellular phone number 773-430-6383 was registered to Liz Baker

and was active between May 26, 2001, and July 20, 2005. The keeper of records would finally

testify that there were a series of telephone calls made between defendant’s and Liz’s cellular

telephones.

                                       f. Detective Neil Maas

        Detective Neil Maas next testified on behalf of defendant. Detective Maas stated that on

February 7, 2004, he had a telephone conversation with Anthony Baker, wherein Anthony told

him that he “supplied product to the Williams [defendant] via his connection, Michael Raymond

of Joliet.”



                                                 41
No. 1-06-0141

                                        g. Michael Raymond

       Michael Raymond testified that he has known Anthony Baker for about 20 years. He

averred that Anthony’s nickname is “Crack.” Raymond also stated that about two years ago he

introduced Anthony Baker to defendant and Torino Fontez Williams at the home of Betty

Williams on 68th Street and Dorchester, in Chicago. Raymond testified that defendant and

Torino were trying to buy marijuana from Anthony. Raymond also stated that he had previously

purchased “little bags” of marijuana from Anthony. Raymond also explained that the word

“product” is sometimes used to describe a certain quantity of marijuana.

       Raymond further averred that the day after the kidnaping of the Baker family, he spoke

with Anthony, who told him that he had been kidnaped. Anthony also told Raymond that he

believed that defendant and Torino may have been involved but that he never saw their faces.

       Raymond testified that he later heard that Anthony had been shot but indicated that he has

not spoken to him since because Anthony’s telephone has been out of service.

       On cross-examination, Raymond conceded that he has known defendant since defendant

was three years old because “my kids are cousins with [defendant] through my wife.”

                                      D. The State’s Rebuttal

       In rebuttal, the State offered three stipulations. The parties first agreed that, if called to

testify, an agent from U.S. Cellular would state that he or she examined the records of a cellular

telephone registered to defendant and that they showed that no calls were made to a number

registered to Liz Baker after December 30, 2003. The parties next stipulated that if called to


                                                  42
No. 1-06-0141

testify the keeper of records from Provident Hospital would aver that “a Mark Williams received

emergency treatment at Provident ER on January 2, 2004, and that the record shows his arrival

time at the ER to be 10:30 p.m.” The parties finally agreed that if Detective Sutherland of Area 2

Violent Crimes were called to testify, he would state that on or about March 8, 2004, he

conducted a lineup at Area 2 police station with Mark Williams as a participant in that lineup.

Detective Sutherland would further aver that Liz Baker viewed that lineup and that she did not

identify anyone from it.

                                     E. Trial Court Findings

       After hearing closing argument by both the State and defense counsels for defendant and

codefendant Jeffrey Campbell, the trial court found defendant guilty of aggravated kidnaping

(720 ILCS 5/10-2(a)(2), (a)(6) (West 2004)) and acquitted him of all remaining charges

(including the aggravated vehicular hijacking (720 ILCS 5/18-4(a)(2), (a)(3) (West 2004)) of the

Baker family on January 2, 2004, in case No. 04 CR 11378, and the attempted murder (720 ILCS

5/9-1(a)(1) (West 2004)) of Anthony Baker on January 20, 2004, in case No. 04 CR 1027). The

court also acquitted codefendant Jeffrey Campbell of all charges brought against him. In doing

so, the court specifically found the testimony of Malik and Millard credible and the testimony of

Anthony Baker not credible. The trial court subsequently sentenced defendant to 25 years’

imprisonment for aggravated kidnaping. Defendant now appeals.

                                         II. ANALYSIS

       On appeal, defendant contends that (1) that the State failed to prove him guilty beyond a



                                                43
No. 1-06-0141

reasonable doubt; (2) the trial court erred in denying his motion to quash the search warrant and

to suppress evidence; (3) the trial court erred in denying his motion to dismiss the indictment; (4)

the trial court abused its discretion when it found that 9-year-old Malik and 11-year-old Millard

were competent to testify at trial; and (5) the trial court erred when it permitted Detective Smith

to testify to a hearsay photo identification of defendant by Malik. As shall be discussed below,

we reverse the judgment of the trial court by reason of the substantive insufficiency of the

testimony of the two minor witnesses. However, in order to reach that analysis, we must first

examine the merits of the other contentions raised by defendant in this appeal.

                                  1. Motion to Suppress Evidence

       We first address defendant’s contention that the trial court erred when it denied his

motion to quash the warrant and suppress evidence seized during the search of his grandmother’s

house and basement. Defendant asserts that the initial and warrantless entry into his

grandmother’s house and basement was illegal because his grandmother never consented to the

entry or search and because there were no exigent circumstances that would have permitted the

police to enter the house without a warrant. Consequently defendant contends that any evidence

obtained from that initial entry, including the victim’s show up of the basement, which was done

hours after the initial entry and still without a warrant, as well as any photographs of that

basement obtained after a search warrant was procured on the following morning, should have

been suppressed as fruits of an illegal search. For the reasons that follow, we disagree.

       We first note that in denying defendant’s motion to quash arrest and suppress evidence,

the circuit court found both that defendant’s grandmother consented to the police entry into her

                                                 44
No. 1-06-0141

home and that exigent circumstances justified the police’s failure to procure an arrest warrant.

When reviewing a court’s ruling on a motion to quash the warrant and suppress evidence, we

will not reverse a trial court’s denial of defendant’s motion to quash the warrant and suppress

evidence unless the court’s factual findings are clearly erroneous. People v. Henderson, 142 Ill.

2d 258, 293, 568 N.E.2d 1234, 1251 (1990). However, “[w]hen neither the facts nor the

credibility of the witnesses is questioned *** the issue *** is a legal one” and the standard of

review is de novo. People v. Foskey, 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197 (1990) (although

       Both section 6 of article I of the Illinois Constitution and the fourth amendment to the

Constitution of the United States prohibit police officers from making warrantless,

nonconsensual entries into a private residence, absent exigent circumstances. Foskey, 136 Ill. 2d

at 74, 554 N.E.2d at 196; Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct.

1371(1980); People v. Day, 165 Ill. App. 3d 266, 268, 519 N.E.2d 115, 116 (1988). In other

words, as a general rule, the police need either a warrant, the resident’s consent, or probable

cause coupled with exigent circumstances to lawfully enter a private residence and effectuate an

arrest. Foskey, 136 Ill. 2d at 74, 554 N.E.2d at 196.

        In the present case, the State concedes that the police officers did not have a search

warrant to initially enter defendant’s grandmother’s home. Therefore, the question becomes

whether entry into that home was proper either because the entry and search were consented to or

because there were exigent circumstances present.

       We first address defendant’s contention that the police were not given consent to enter

the house or search the basement. In that respect, we first note that a person may waive his

                                                 45
No. 1-06-0141

fourth amendment rights by consenting to a search conducted without a search warrant. People

v. Harris, 297 Ill. App. 3d 1073, 1083, 697 N.E.2d 850, 858 (1998). “When a trial court is

deciding whether consent was given ***, the circumstances must have been such that the police

could have reasonably believed that they had been given consent to enter.” Henderson, 142 Ill.

2d at 299, 568 N.E.2d at 1254. In addition, the State bears the burden of proving by a

preponderance of the evidence that the consent was given voluntarily (Harris, 297 Ill. App. 3d at

1083, 697 N.E.2d at 858) and that it was more than mere “acquiescence to a claim of [un]lawful

authority” (Bumper v. North Carolina, 391 U.S. 543, 549, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788,

1792 (1968)). The question of whether a consent to search is voluntary and not the product of

duress or coercion, express or implied, is a question of fact to be determined by the trial court

from the totality of circumstances. People v. Hernandez, 278 Ill. App. 3d 545, 551, 663 N.E.2d

86, 90 (1996).

       In the present case, during the motion to suppress hearing, the circuit court was presented

with clearly conflicting testimony regarding consent. On one hand, defendant’s grandmother,

Betty, and her granddaughter Fallon both testified that on the night in question they heard the

doorbell ringing and that when Fallon went downstairs and opened the door, the police rushed

into the apartment without permission and proceeded to search the apartment for defendant. On

the other hand, Detective Smith testified that when he first arrived at Betty’s home, he knocked

on the door and Fallon answered. Detective Smith averred that he identified himself as a

detective of the Chicago police department and asked to speak to the owner of the residence.

According to Detective Smith, an older lady then came to the door and stated that she was


                                                 46
No. 1-06-0141

defendant’s grandmother, Betty. Detective Smith stated that he then asked Betty’s permission to

search the house for defendant and that she consented to that search.

       With respect to the entry and search of the basement, all three witnesses agreed that when

more officers entered the house from the back door, and Detective Smith asked Betty if he could

search the basement of the house, Betty gave the basement key to Fallon and told her to open the

basement door for the police.

       In denying defendant’s motion to quash the warrant and suppress evidence, the circuit

court specifically found with respect to the question of consent that the testimony of Detective

Smith was more credible than the testimony of either Betty or Fallon. The circuit court noted

that none of the witnesses testified that “this was a tumultuous entry” where the police came in

with guns, kicking the door down or ransacking the house, but rather that they all agreed that

there was “communication” between the police and Betty. The trial court’s determination of

credibility will not lightly be disturbed on appeal, unless it is clearly unreasonable. Harris, 297

Ill. App. 3d at 1083, 697 N.E.2d at 858, citing Hernandez, 278 Ill. App. 3d at 551, 663 N.E.2d at

90. We find nothing in the record to support the conclusion that the trial court’s choice to

believe the testimony of Detective Smith over the testimonies of Betty and Fallon Williams was

clearly erroneous. Harris, 297 Ill. App. 3d at 1083, 697 N.E.2d at 858 (holding that the court’s

determination that a suspect’s wife gave valid consent to a warrantless search of the house and

garage was not clearly erroneous, where officers testified, contrary to the wife, that they

explained the situation to her and asked for her consent and that she was very cooperative, signed

a consent form, moved the family’s dogs to allow officers into the yard and opened the lock on

                                                 47
No. 1-06-0141

the gates and the garage door); see also Hernandez, 278 Ill. App. 3d at 552, 663 N.E.2d at 90-91

(holding that the circuit court’s determination that defendant voluntarily consented to the search

of his vehicle in a residential garage was supported by the testimony of the State’s witness that a

consent form was voluntarily signed in defendant’s backyard, in the presence of his wife and

friends, after officers informed defendant of his rights, notwithstanding the testimony by all of

the defense witnesses, including defendant’s wife and friends, that defendant was coerced by

police). Rather, we hold that the totality of circumstances supports the trial court’s conclusion

that Betty consented to the search. See Henderson, 142 Ill. 2d at 296-99, 568 N.E.2d at 1252-54

(holding that the totality of evidence supported the conclusion that defendant’s mother consented

to the police entry of her apartment where the police officer identified himself and asked if

defendant was home, and mother said defendant was inside the apartment and then stepped back

from the open door and pointed toward defendant’s bedroom).

        “Because a voluntary consent to a warrantless search and seizure waives the

constitutional privilege, the evidence derived therefrom is thus admissible at trial.” Hernandez,

278 Ill. App. 3d at 552, 663 N.E.2d at 90. As such, we hold that the circuit court did not err in

denying defendant’s motion to quash arrest and suppress the evidence.

       In coming to this conclusion, we have considered the cases of People v. Johnson, 99 Ill.

App. 3d 863, 425 N.E.2d 1215 (1981), and People v. White, 117 Ill. 2d 194, 512 N.E.2d 677

(1987), cited to by defendant and find them inapposite.

       In Johnson, the circuit court granted defendant’s motion to quash the arrest and to

suppress evidence and the State appealed. Johnson, 99 Ill. App. 3d at 864, 425 N.E.2d at 1216.

                                                48
No. 1-06-0141

The issues were decided by the circuit court on a stipulation, without testimony. Johnson, 99 Ill.

App. 3d at 864, 425 N.E.2d at 1216. The stipulations established that two police officers

interviewed the victim of an attempted robbery, who informed them that her assailant was known

to her for some 10 years by the name “Syrup.” Johnson, 99 Ill. App. 3d at 864, 425 N.E.2d at

1216. Thereafter, in a conversation with another person the officers learned where the suspect

lived, and immediately proceeded to that address. Johnson, 99 Ill. App. 3d at 864, 425 N.E.2d at

1216. When the police knocked at the door, an elderly woman, who was later identified as

defendant’s grandmother, opened the front door, with the screen door remaining shut. Johnson,

99 Ill. App. 3d at 864, 425 N.E.2d at 1216. The officers properly identified themselves.

Johnson, 99 Ill. App. 3d at 864, 425 N.E.2d at 1216. The police then noticed defendant on a

stairway inside the house and asked him if he was “Syrup.” Johnson, 99 Ill. App. 3d at 864, 425

N.E.2d at 1216. He answered that he was. Johnson, 99 Ill. App. 3d at 864, 425 N.E.2d at 1216.

The officers then told defendant’s grandmother that they “ ‘wish[ed] to make an arrest upon the

person that they saw on the premises.’ ” Johnson, 99 Ill. App. 3d at 865, 425 N.E.2d at 1216.

The grandmother then opened the screen door, which had remained closed throughout the

conversation, and the police entered the house and placed defendant under arrest. Johnson, 99

Ill. App. 3d at 865, 425 N.E.2d at 1216.

       In affirming the decision of the circuit court that the entry was nonconsentual, the

appellate court held that the evidence presented through the stipulation at best constituted “an

acquiescence to authority.” Johnson, 99 Ill. App. 3d at 866, 425 N.E.2d at 1217. The court

specifically held that it was relevant that the officers never actually “asked permission to enter,”


                                                 49
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the house and that the stipulation was silent with respect to defendant’s grandmother’s

“subjective state of mind *** upon which the matter of voluntariness is necessarily based.”

Johnson, 99 Ill. App. 3d at 866, 425 N.E.2d at 1217. In addition, the appellate court noted that if

it were to hold that the facts presented in the stipulation were sufficient to show consent, then

this would mean that “merely opening a door without comment in response to a police officer’s

statement that he wished to enter would constituted consent as a matter of law.” Johnson, 99 Ill.

App. 3d at 866, 425 N.E.2d at 1217.

       We first note that, unlike in Johnson, the issues here were not decided upon a stipulation,

but rather upon the testimony of witnesses, albeit conflicting, and the question of consent rested

entirely upon their relative credibility to be determined by the trier of fact. Unlike in Johnson,

where the stipulation indicated that none of the officers ever asked permission to enter the house

(Johnson, 99 Ill. App. 3d at 866, 425 N.E.2d at 1217), here, at the motion to suppress hearing,

Detective Smith specifically testified that he asked Betty if he could search the house for

defendant and that Betty stated that he could. In addition, Detective Smith, as well as Betty and

Fallon, all testified that when officers asked Betty if they could search for defendant inside the

basement, Betty gave Fallon the basement keys and instructed her to open the door for the police.

As such, under the present circumstances, it cannot be said that Betty merely “acquiesced to

police authority.”

       Similarly, in White, the circuit court granted defendant’s motion to quash the arrest and

to suppress evidence and the State appealed. White, 117 Ill. 2d at 221, 512 N.E.2d at 687. The

record in that case established that two officers accompanied defendant’s mother to defendant’s

                                                 50
No. 1-06-0141

brother’s residence. White, 117 Ill. 2d at 205, 512 N.E.2d at 679. Defendant’s brother, Michael

Loving, was eating breakfast with his family, when he heard the doorbell ring. White, 117 Ill. 2d

at 205, 512 N.E.2d at 679. Loving then descended the stairs to the first floor, and when he heard

his mother call out: “It’s me, Michael,” he opened the door. White, 117 Ill. 2d at 205, 512

N.E.2d at 680. The record further showed that as Loving opened the door, the two detectives

stepped around defendant’s mother and entered the hallway, without first asking for permission

to enter or announcing their purpose. White, 117 Ill. 2d at 205, 512 N.E.2d at 680. When

defendant’s mother asked Loving if defendant was at home, Loving first denied that defendant

was with him, but then admitted that he was. White, 117 Ill. 2d at 205, 512 N.E.2d at 680. The

two detectives then went up the stairs to Loving’s apartment. White, 117 Ill. 2d at 205, 512

N.E.2d at 680. Loving followed them up and pushed past them while they were on the stairs.

White, 117 Ill. 2d at 205, 512 N.E.2d at 680. The officers searched Loving’s apartment and

found defendant. White, 117 Ill. 2d at 206, 512 N.E.2d at 680.

       The supreme court affirmed the decision of the trial court that the totality of

circumstances supported the finding that Loving did not voluntarily consent to the police entry.

White, 117 Ill. 2d at 221, 512 N.E.2d at 687. In doing so, the supreme court indicated that

Loving opened the opaque door leading to the street only for his mother, not knowing that the

offices were waiting to push past her and enter the hallway. White, 117 Ill. 2d at 221, 512

N.E.2d at 687. Moreover, when the police officers had entered the hallway, Loving did not give

them permission to go upstairs and in fact pushed past them to enter the apartment first. White,

117 Ill. 2d at 221-22, 512 N.E.2d at 687. In addition, the supreme court noted that “[t]he fact


                                                51
No. 1-06-0141

that [Loving] knew that they were police officers after they entered does not compel the

conclusion that he condoned their continued presence” inside his house. White, 117 Ill. 2d at

222, 512 N.E.2d at 687.

       Unlike in White, in the present case, neither Betty nor Fallon testified that they were

tricked into opening the front door for the police officers. See White, 117 Ill. 2d at 221-22, 512

N.E.2d at 687. Instead, both of these witnesses indicated that Betty had told Fallon to see who

was at the front door, and that when the police announced their presence to Fallon and she told

her grandmother that it was the police, Betty instructed Fallon to open the door and see what they

wanted. In addition, unlike in White, where Loving ran in front of the police when they

attempted to reach the upstairs apartment (White, 117 Ill. 2d at 221-22, 512 N.E.2d at 687), Betty

willingly gave Fallon the keys to the basement and instructed her to open the door for the police.

       For all of the aforementioned reasons, we find, unlike our holding below with respect to

the credibility of the two minor witnesses, that the trial court’s conclusion that Betty consented to

the search of both the apartment and the basement was not clearly erroneous. See Henderson,

142 Ill. 2d at 296-99, 568 N.E.2d at 1252-54 (holding that the totality of evidence supported the

conclusion that defendant’s mother consented to the police entry of her apartment where the

police officer identified himself and asked if defendant was home, and mother said defendant

was inside the apartment and then stepped back from the open door and pointed toward

defendant’s bedroom). As such, we need not address the second and alternative ground for the

trial court’s denial of defendant’s motion to suppress evidence, i.e., the presence of exigent

circumstances.

                                                 52
No. 1-06-0141

                                 2. Motion to Dismiss Indictment

       Defendant next contends that the circuit court erred when it denied his motion to dismiss

the indictment in case No. 04 CR 11378 because no evidence was presented to the grand jury that

would support the return of the indictment charging defendant with aggravated kidnaping (720

ILCS 5/10-2(a)(2), (a)(6) (West 2004)) and aggravated vehicular hijacking (720 ILCS 5/18-

4(a)(2), (a)(3) (West 2004)). Defendant specifically contends that the only evidence presented to

the grand jury was the statement of Detective Smith that defendant “participated” in the

kidnaping. For the reasons that follow, we disagree.

       Our supreme court has held that upon defendant’s motion to dismiss an indictment the

circuit court “has inherent supervisory authority to review grand jury transcripts and determine

whether any evidence was presented which tends to connect the accused to the offense charged.”

People v. Rodgers, 92 Ill. 2d 283, 290, 442 N.E.2d 243-44 (1982), citing People v. Linzy, 78 Ill.

2d 106, 109, 398 N.E.2d 1 (1979) and People v. Lawson, 67 Ill. 2d 449, 455, 367 N.E.2d 1244

(1977). The grand jury is expected to indict an accused only if it determines that there is

probable cause for believing that the accused has committed an offense. Rodgers, 92 Ill. 2d at

288, 442 N.E.2d at 242. According to our supreme court, an indictment will withstand scrutiny

if the transcript of the grand jury proceedings reveals that “some evidence relative to the charge”

was presented to the grand jury. Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 244; see also People v.

Whitlow, 89 Ill. 2d 322, 331, 433 N.E.2d 629, 632 (1982) (holding that if there is some evidence

presented to the grand jury from which defendant’s illegal conduct can be inferred, the reviewing

court will not inquire into the “adequacy of that evidence”). “Some evidence” does not mean

                                                53
No. 1-06-0141

that the State must present the grand jury with evidence as to each element of the offense, but

rather means that the evidence submitted must be such that it “tends to connect” the defendant to

the crime. See Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 244. “This evidence which connects

may be any direct or circumstantial evidence from which an inference of criminal conduct can be

derived.” People v. Edwards, 243 Ill. App. 3d 280, 285, 611 N.E.2d 1196, 1200 (1993).

       In the present case, applying the standard enunciated by our supreme court, we find that

there was “some evidence” presented to the grand jury which tended to connect” defendant to the

aggravated kidnaping and aggravated vehicular hijacking with which he was charged. The

transcript of the grand jury proceedings reveals that Detective Smith testified that defendant

“participated in a kidnaping.” Detective Smith identified the victims of this kidnaping as

Anthony Baker, his wife, Liz, and three children under the age of 13 (Millard Baker, Malik Baker

and Eric Williams). Detective Smith further stated that the “offenders” initially used handguns

to hijack the vehicle in which the Baker family was seated. Detective Smith acknowledged that

Liz Baker fled the scene but stated that the offenders took Anthony and the three children.

Detective Smith averred that the children were ultimately released and that Anthony was “able to

get out of the clutches of his kidnapers.” Most importantly, Detective Smith testified that Malik

Baker viewed a photo array and positively picked out defendant as an offender. Under these

circumstances, we cannot find that the trial court erred in denying defendant’s motion to dismiss

the indictment. See Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 244.

                     3. Competency of Malik and Millard to Testify at Trial

       Defendant next contends that the trial court abused its discretion in finding that 9-year-

                                                54
No. 1-06-0141

old Malik and 11-year-old Millard Baker were competent to testify at trial. We disagree.

       Pursuant to section 115-14 of the Code of Criminal Procedure of 1963 all witnesses,

regardless of age are presumed competent to testify. See 725 ILCS 5/115-14(a) (West 2000); see

also People v. Sutherland, 317 Ill. App. 3d 1117, 1124, 734 N.E.2d 1007, 1013 (2000); People v.

Westpfahl, 295 Ill. App. 3d 327, 330-31, 692 N.E.2d 831, 834-35 (1998). Potential witnesses

can be disqualified if they are (1) incapable of expressing themselves concerning the matter at

hand, so as to be understood, or (2) incapable of understanding the duty of a witness to tell the

truth. See 725 ILCS 1/115-14(b)(1), (b)(2) (West 2000). The burden of proving that a witness is

not competent to testify falls upon the party challenging the witness’s ability to testify. See 725

ILCS 1/115-14(c) (West 2000). The question of a witness’s competency is to be determined by

the trial judge, and a reviewing court may not disturb that determination absent a clear abuse of

discretion. Sutherland, 317 Ill. App. 3d at 1125, 734 N.E.2d at 1013, citing People v. Dempsey,

242 Ill. App. 3d 568, 583-84, 610 N.E.2d 208, 217-18 (1993).

       In the present case, defendant contends that both Malik and Millard Baker were

incompetent to testify at trial. With respect to Malik Baker, defendant contends that the totality

of Malik’s testimony, including the competency voir dire, initiated by the State and continued

sua sponte by the trial court, as well as his testimony and demeanor during trial, indicated that he

lacked sufficient intelligence to testify. Specifically, defendant contends that Malik was often

nonresponsive, and that the court had to admonish him to listen and answer the questions, at one

point even taking note for purposes of the record that Malik refused to answer a question. More

importantly, defendant contends that Malik himself testified that he did not know the difference

                                                 55
No. 1-06-0141

between the truth and a lie and that he testified that he “forgot” where he was and why he was in

the courtroom.

       Contrary to defendant’s contentions, we find insufficient support in the record to disturb

the trial court’s determination that nine-year-old Malik was a competent witness. In this respect,

we note that “[i]t is not incumbent upon a child to give perfect answers to questions asked during

the competency determination or at trial to be deemed a competent witness, as one imperfect

response to a question is insufficient to invalidate a finding of competency in light of the totality

of the responses.” Sutherland, 317 Ill. App. 3d at 1125, 734 N.E.2d at 1013. When looked at in

its entirety, Malik’s testimony at the competency hearing revealed, albeit after prodding by the

State and the circuit court, that he displayed a threshold grasp of the difference between telling

the truth and lying. Although Malik initially responded in the negative to the State’s question of

whether he knew the difference between the truth and a lie, he exhibited his understanding of this

difference when immediately thereafter he testified that the prosecutor would be lying if she said

that she was wearing a white shirt when in fact she was wearing a black one. In addition, in

response to the circuit court’s further questioning, Malik indicated that if “something really

happened” and he said that it happened, that would be the truth, and that if “something did not

really happen” but he said that it did, this would be a lie. Malik also answered the following

circuit court’s questions:

                 “THE COURT: How many fingers do I have up now?

                 MALIK: Two.



                                                 56
No. 1-06-0141

                THE COURT: The record will show that the Court has two fingers up. If I told

       you this was three fingers would that be a truth or a lie?

                MALIK: A lie.

                THE COURT: If I told you that it was two would that be the truth or a lie?

                MALIK: A truth.

                THE COURT: Okay. Do you know what happens if you tell a lie in court?

                MALIK: No.

                THE COURT: No. You know you could get in trouble for it if you tell a lie in

       court?

                MALIK: Yes.

                THE COURT: You believe me when I say this?

                MALIK: Yes”

Under these circumstances, as already noted above, we find that the totality of Malik’s responses

at the competency hearing was sufficient to indicate that he knew the threshhold difference

between telling the truth and lying. See Dempsey, 242 Ill. App. 3d at 584, 610 N.E.2d at 217-18

(nine-year-old sexual abuse victim found competent to testify, even though when questioned

whether he knew the difference between a truth and a lie at the beginning of the voir dire, he

indicated that he did not; court found that boy’s statement that if he told a lie he would “go to the

devil” demonstrated his understanding that it was sinful and therefore wrong to tell a lie); see



                                                 57
No. 1-06-0141

also Sutherland, 317 Ill. App. 3d at 1125, 734 N.E.2d at 1013 (six-year-old shooting victim was

found competent to testify in prosecution for attempted murder and battery with a firearm, even

though she stated that “telling the truth made people ‘happy’” and lying made them “‘mad,’”

where she demonstrated the knowledge of the difference between telling the truth and lying by

stating that she thought it was wrong to lie and that is she lied she would get a “‘whopping’”).

       We next turn to defendant’s contention that Millard was incompetent to testify at trial. In

that respect, we first note that prior to or during Millard’s testimony, defendant nowhere

challenged Millard’s competency as a witness or attempted to strike his testimony because of

such incompetence. As such, we find that defendant has waived this issue for purposes of appeal

by failing to properly preserve the error for review. See People v. Enoch, 122 Ill. 2d 176, 186-

87, 522 N.E.2d 1124, 1130 (1988) (holding that in order to preserve an issue for appeal,

defendant must first make an objection to the alleged error at trial and then raise it in a posttrial

motion).

       More overridingly, we find that waiver is proper because defendant has failed to comply

with the requirements of Supreme Court Rule 341(e)(7) by failing to elaborate on his argument

that Millard was incompetent to testify. See 87 Ill. 2d R. 341(e)(7) (providing that arguments

made in support of issues raised on appeal “shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on” and noting

that “[p]oints not argued are waived” for purposes of appeal); see also People v. Ramirez, 98 Ill.

2d 439, 472, 457 N.E.2d 31, 47 (1983). In that respect, we note that defendant merely interjects

his argument that Millard was incompetent in the middle of his contentions with respect to

                                                  58
No. 1-06-0141

Malik’s incompetency, by simply contending that “they” (being Malik and Millard) were

incompetent because “they” were nonresponseive to questions and appeared to lack the

appreciation of the role of the parties in the courtroom. Defendant offers no further explanation

or argument with respect to Millard’s lack of competency.

         As such, because of the rule that all witnesses, regardless of age, are presumed competent

to testify at trial (see 725 ILCS 5/115-14(a) (West 2000); see also Sutherland, 317 Ill. App. 3d at

1124, 734 N.E.2d at 1013), we are compelled to find that Millard, just as Malik, was a competent

witness. Nevertheless, as shall be fully discussed below, our finding of threshold competency

with respect to these two minor witnesses by no means predetermines whether the weight of the

substantive testimony of these two witnesses was sufficient to support the trial court’s finding of

guilt.

           4. Admissibility of Detective Smith’s Prior Identification Hearsay Testimony

         Defendant next contends that the trial court erred in admitting Detective Smith’s hearsay

testimony regarding Malik Baker’s photo array identification of defendant, where Malik testified

before Detective Smith but was never questioned with respect to this photo array. Defendant

specifically contends that Malik, as the declarant of the out-of-court identification, was never

made available for cross-examination concerning the statement, because he was never asked

about the statement during direct examination.

         While, for the reasons discussed below, we find this evidence to be of insufficient weight

to have substantive efficacy to support the finding of the trial court, we nevertheless find that it



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No. 1-06-0141

satisfies the requirement of section 115-12 of the Code of Criminal Procedure (725 ILCS 5/115-

12 (West 2000)) to be admitted into evidence as an exception to the hearsay rule.

       We first note that section 115-12 of the Code of Criminal Procedure permits the

introduction of hearsay testimony with respect to prior identifications in certain circumstances.

See 725 ILCS 5/115-12 (West 2000). Section 115-12 of the Code of Criminal Procedure, titled

“Substantive Admissibility of Prior Identification” states in pertinent part:

                “A statement is not rendered inadmissible by the hearsay rule if (a) the declarant

       testifies at the trial or hearing, and (b) the declarant is subject to cross-examination

       concerning the statement, and (c) the statement is one of identification of a person made

       after perceiving him.” 725 ILCS 5/115-12 (West 2000).

       We next note that our supreme court has recently addressed and resolved the exact issue

raised here by defendant, namely, whether under the aforementioned section of the Code of

Criminal Procedure, to be “subject to cross-examination concerning the statement,” the declarant

must testify to the out-of-court identification before a third party may offer testimony on that

matter. See People v. Lewis, 223 Ill. 2d 393, 402-06, 860 N.E.2d 299, 305-07 (2006).

       In Lewis, at defendant’s trial for the unlawful delivery of a controlled substance, Clem,

the State’s key witness testified that she purchased drugs from defendant and made an in-court

identification of defendant. Lewis, 223 Ill. 2d at 397, 860 N.E.2d at 302. Clem, however, did

not testify to her prior photo identification of defendant. Lewis, 223 Ill. 2d at 397, 860 N.E.2d at

302. Subsequent to Clem’s testimony, the State called a police detective who testified that prior



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to trial he showed Clem a photograph of defendant and that she immediately identified the

photograph as that of the man who had sold her cocaine the previous day. Lewis, 223 Ill. 2d at

398, 860 N.E.2d at 303.

       On appeal, defendant contended that the trial court erred in admitting the police

detective’s testimony that Clem had made an out-of-court identification of defendant. Lewis,

223 Ill. 2d at 400, 860 N.E.2d at 303. Specifically, defendant contended that Clem was not

subject to cross-examination on her prior photo identification because the State had failed to

raise this issue on direct examination, thereby barring defendant from raising this issue on cross-

examination. Lewis, 223 Ill. 2d at 403-04, 860 N.E.2d at 305-06.

       The supreme court disagreed, first holding that the plain language of section 115-12

merely requires that declarant testify and be subject to cross-examination on the identification

statement, and that there is no requirement that the declarant “testify on the out-of-court

identification before a third party may testify about that identification.” Lewis, 223 Ill. 2d at 403,

860 N.E.2d at 305. In addition, the supreme court found that Clem was subject to cross-

examination as required under section 115-12 of the Code of Criminal Procedure, because she

was “placed on the witness stand, under oath, and respond[ed] willingly to questions.” Lewis,

223 Ill. 2d at 404, 860 N.E.2d at 306. More overridingly, the supreme court rejected defendant’s

argument that he was prevented from cross-examining Clem about her out-of-court identification

because this issue was not raised by the State on direct examination, holding that defendant was

free to recall the witness for cross-examination after the detective testified about her photo

identification. Lewis, 223 Ill. 2d at 404, 860 N.E.2d at 306.

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No. 1-06-0141

       Applying the principles articulated in Lewis to the case at bar, we find that the trial court

committed no error in permitting Detective Smith to testify regarding Malik Baker’s photo array

identification of defendant. Just as in Lewis, in the present case, Malik Baker was called as a

witness on behalf of the State and under oath testified to the circumstances of the kidnaping,

making an in-court identification of defendant. Malik, however, was not questioned regarding

his prior photo array identification of defendant. Instead, Detective Smith testified later in the

trial proceedings that on January 3, 2005, he went to the Baker residence, where he showed

Malik a photo array including a photograph of defendant. According to Detective Smith, Malik

picked defendant out of that photo array. Because Malik was present at trial, testified under oath,

and was available to be recalled as a witness after the testimony of Detective Smith for purposes

of cross-examination, we find that the trial court did not err in admitting the photo array

identification testimony pursuant to section 115-12 of the Code of Criminal Procedure (725 ILCS

5/115-12 (West 2000)). See Lewis, 223 Ill. 2d at 404, 860 N.E.2d at 306.

                                    5. Sufficiency of Evidence

       We lastly address defendant’s contention that the State failed to prove him guilty of

aggravated kidnaping by accountability beyond a reasonable doubt. When considering a

challenge to the sufficiency of the evidence, the relevant question on appeal is 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 crime beyond a reasonable doubt. People v. Hall,

194 Ill. 2d 305, 330, 743 N.E.2d 521, 536 (2000); People v. Young, 128 Ill. 2d 1, 51, 538 N.E.2d

461, 473 (1989). As such, “it is our duty in the case at bar to carefully examine the evidence

                                                 62
No. 1-06-0141

while giving due consideration to the fact that the court *** saw and heard the witnesses.”

People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999). “If, however, after such

consideration we are of the opinion that the evidence is insufficient to establish defendant’s guilt

beyond a reasonable doubt, we must reverse the conviction.” Smith, 185 Ill. 2d at 541, 708

N.E.2d at 369, citing People v. Bartall, 98 Ill. 2d 294, 306, 456 N.E.2d 59 (1983). While the

weight to be given to the testimony, the credibility of the witnesses, the resolution of conflicting

testimony, and the reasonable inferences to be drawn from the evidence are the responsibility of

the trier of fact, and the trier of fact is entitled to great weight on these matters, its determination

is nevertheless not conclusive. Smith, 185 Ill. 2d at 541, 708 N.E.2d at 370. Rather, we will

reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to

justify reasonable doubt of defendant’s guilt. Smith, 185 Ill. 2d at 542, 708 N.E.2d at 370, citing

People v. Pellegrino, 30 Ill. 2d 331, 196 N.E.2d 670 (1964).

        In the present case, defendant was found guilty of aggravated kidnaping under

accountability principles. In Illinois, a person is legally accountable for the criminal conduct of

another when “[e]ither before or during the commission of an offense, and with the intent to

promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such

other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2002). To

prove that defendant was accountable under section 5-2(c) of the Criminal Code of 1961

(Criminal Code) (720 ILCS 5/5-2(c) (West 2000)), the State was required to establish beyond a

reasonable doubt that (1) defendant solicited, ordered, abetted, agreed or attempted to aid another

in the planning or commission of the crime; (2) defendant’s participation took place before or


                                                   63
No. 1-06-0141

during the commission of the crime; and (3) the defendant had the concurrent intent to promote

or facilitate the commission of the crime. See People v. Perez, 189 Ill. 2d 254, 267-68, 725

N.E.2d 1258, 1265 (2000).

       Here, the only evidence linking defendant to culpable involvement in the aggravated

kidnaping is the testimony of the two minor children, Malik, age 9, and Millard, age 11. As the

record reveals, none of the adults at trial could identify this defendant as a participant in the

aggravated kidnaping.7 In addition, the State conceded during oral argument that there was no

physical evidence introduced at trial linking defendant to the crime. As a result, defendant’s

culpability rested solely on the hesitant testimony of the two minors and must therefore be

carefully scrutinized. After a review of the evidence, viewed in the light most favorable for the

prosecution, for the reasons that follow, we find that the testimony of these two witnesses, which

came after substantial prodding through vigorous leading questions, was riddled with internal

inconsistencies and self-contradictions, was hesitant, vague and, insofar as it involved the time of

their first meeting defendant, impeached by the testimony of other witnesses and the telephone

       7
           In that respect, we note that although the record reveals that Anthony testified that while

in the second van, he heard someone ask where the offenders should take him and the children,

and he heard “Sedgwick” say “take them to grandma’s house,” Anthony was never questioned on

how he recognized this voice or who “Sedgwick” was. Rather, throughout the trial, Anthony

continued to maintain that he did not know, see or meet the defendant prior to the shooting,

which took place 18 days after the kidnaping, thus negating that he had any basis for any voice

recognition of defendant.

                                                   64
No. 1-06-0141

records at trial. As such, this testimony was substantially unreliable and too tenuous to sustain

the trial court’s finding of guilt.

        We first consider Malik’s initial opportunity to observe defendant’s involvement in the

crime and find his testimony in this regard to be consistently contradictory. The record reveals

that Malik first testified that immediately after the initial carjacking the kidnapers, none of whom

he identified as defendant, taped his eyes with duct tape. Malik next testified that he did not

recall getting out of their van, but did remember getting into another car. Malik testified that he

had tape on his eyes and remembered a man taking the tape off, but stated that he could not

identify the man who took the tape off his eyes.

        In addition, Malik later testified that he remembered that there were three people in the

car with him, but could neither recall if they were “boys or girls, or their ages.” Malik recalled,

however, that the woman’s name was “Crystal Long,” and stated that “this lady” took him to the

police station. On cross-examination, he admitted that the police told him Crystal’s name.

Malik then changed his testimony and stated that two men were inside the car and that they were

“dropped off” before he was taken to the police station. When asked by the State if he saw the

two men that got “dropped off,” Malik indicated that he had not.

        Furthermore, Malik’s testimony as to where he actually saw defendant is glaringly

contradictory. While Malik initially testified that he saw defendant inside a basement, he

admitted at trial that his eyes were taped, that “he could not see” inside the basement and that

therefore he did not see defendant there. Malik changed his testimony again during trial and

stated that he could see inside the basement and that he saw defendant there. Malik finally

                                                 65
No. 1-06-0141

changed his story for the third time and testified that he in fact did not see defendant inside the

basement but that he did see him inside the car.

       Malik’s voice identification of defendant suffers from similar contradictions. The record

reveals that this voice identification occurred when the State showed Malik a photograph of a

car, and Malik stated that he was inside this car with “Sedgwick,” and that he knew it was

“Sedgwick” “because of his voice.” We first note that the photograph of this car was never

introduced into evidence at trial, and is not part of the record on appeal. In addition, we note that

although Malik explained that he recognized defendant’s voice because he had just heard it

inside the basement, when asked by the State if defendant had spoken to him or to anyone else

inside the basement, Malik stated, “no.”

       Malik’s voice identification of defendant was further contradicted by his testimony that

he had never seen or heard defendant before the kidnaping. Malik initially testified that he had

not met defendant before the incident and that he knew defendant’s name only because defendant

had introduced himself inside the car as “Sedgwick.” However, Malik then changed his

testimony and stated that he knew defendant’s name because the police told him defendant’s

name was “Sedgwick.” Malik then changed course a third time and explained that he knew the

name because he had heard his father mention “Sedgwick’s name” once at home “before any of

this happened.”

       In this respect, we further note that the court chose not to believe the testimony of

Anthony, his wife, Liz, and their eldest daughter, Sade Baker, with respect to their identification

of defendant as the shooter in the attempted murder case, because they were impeached by

                                                   66
No. 1-06-0141

telephone records and the testimony of Michael Raymond, which indicated there was an on-

going relationship between Anthony and defendant. Arguably, Malik’s statement that he had not

met or seen defendant prior to the incident would have been impeachable by this same evidence,

as there would be no reason by which to treat Malik’s testimony differently, by the mere fact that

he was a minor at the time of the incident.

       Moreover, we find little value in Malik’s identification of defendant’s grandmother’s

basement, in which he was allegedly kept during the kidnaping. When initially questioned by the

State as to whether he remembered if the duct tape came off his eyes at any point during the

kidnaping, Malik first stated that the tape came off his eyes inside a basement, and then went on

to identify photographs of that basement and the chairs and bicycles inside it. Nevertheless, on

cross-examination, Malik testified that the duct tape was never taken off his eyes while inside the

basement. In addition, Malik stated that somebody had to help him walk out of the basement

because his eyes were duct taped and he could not see. When asked how he could then identify

the bicycles and chairs in the photographs of the basement, Malik first became unresponsive,

then stated that the police had showed him photographs of the items that were inside the

basement. Malik then changed course and averred that his eyes were “taped only a little bit” and

that therefore he could see inside the basement.

       Under all of the above circumstances, we find that Malik’s in-court identification of

defendant in response to the State’s relentlessly leading questions was far too tenuous and

internally inconsistent to be supportive of the trial court’s finding. The record reveals that when

Malik was asked if he would look around the courtroom to see if he could recognize anyone that

                                                   67
No. 1-06-0141

was present during the kidnaping, Malik responded with “no.” The following colloquy then took

place:

                 “THE STATE: You want to take a look?

                 DEFENSE COUNSEL: Objection.

                 THE COURT: You can try it again but watch your gestures, please.

                 THE STATE: Do you want to stand up and look around the courtroom?

                 MALIK: No.

                 THE STATE: Are you scared?

                 MALIK: No.

                 THE COURT: You may try some more, just be careful of how you do it but you

         can explore this a little bit.

                 THE STATE: Malik, can I see you look up and look at the people in the

         courtroom that are sitting here?

                 MALIK: Yes.

                 THE STATE: Can you look around at all the people in the courtroom?

                 MALIK: Yes.

                 THE STATE: Did you look at all the people in the courtroom?

                 MALIK: Yes.



                                                68
No. 1-06-0141

                THE STATE: Do you see anybody here today that you saw back on that date?

                MALIK: No.

                THE STATE: Are you looking around at all the people that are here?

                DEFENSE COUNSEL: Objection, your Honor.

                THE COURT: Overruled

                MALIK: Yes.

                THE STATE: All around?

                MALIK: Yes.” (Emphasis added.)

       After Malik already failed to identify defendant in court on these two occasions, later in

his testimony, Malik changed course and ultimately made an in-court identification in the

following inconsistent manner. When the State asked Malik whether he ever saw defendant’s

face, Malik first stated “yeah-no.” The following colloquy between the State and Malik then

occurred:

                “THE STATE: Do you see Sedgwick [defendant] in this courtroom today?

                MALIK: No.

                THE STATE: Do you see Sedgwick [defendant] in this courtroom today?

                MALIK: No.

                THE STATE: Did you look around?

                MALIK: Yes.

                                                69
No. 1-06-0141

                THE STATE: You looked all around this room?

                MALIK: Yes.

                DEFENSE COUNSEL: Objection.

                THE STATE: And you don’t see Sedgwick [defendant] here today?

                MALIK: Yes.

                THE STATE: You do see him?

                MALIK: Yeah.

                THE STATE: Can you point to where he is sitting?

                MALIK: Right there. (Indication).

                THE STATE: Which one?

                MALIK: That one.

                THE STATE: You recognize somebody?

                DEFENSE COUNSEL: Objection, she asked–

                MALIK: Yeah.”

At this point in the trial proceedings, the circuit court interrupted and asked Malik to stand in

front of the person that he was pointing to, whereupon, Malik left the witness stand and stood

next to defendant. Under these circumstances, we find that Malik’s hesitant and vacillating

identification, engendered by the State’s relentlessly leading questions, clearly lacks reliability to

sustain the judgment.

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No. 1-06-0141

       As indicated above, the foregoing reasons which rendered Malik’s in-court identification

unreliable and insufficient to support the trial court’s finding permeate and also reflect on the

unreliability of his alleged prior photo identification to which Detective Smith testified at trial.

Because Malik was never questioned and never testified regarding the circumstances of this

photo identification at trial, Detective Smith’s testimony with respect to this photo identification,

albeit admissible, is insufficient standing alone to support the trial court’s finding.

       We similarly turn to Millard’s testimony. In that respect, we first note the contradictions

in Millard’s identification of defendant’s grandmother’s basement, where he was allegedly kept

during the kidnaping. Millard initially testified that after the initial carjacking, he was taken

together with Malik and Eric Redman to “a basement or something like that.” Millard then

indicated that he actually had trouble remembering what happened inside the basement.

Although Millard later identified photographs of the basement, he nevertheless testified that

while he was inside the basement, he could not see because his eyes were covered with duct tape.

Millard also averred that he had not been able to walk from the basement to the car because his

eyes were covered and that instead somebody had to carry him into the car. He also explained

that he did not know how his brother or cousin got into the car because “his eyes were taped.”

       We similarly find Millard’s in-court identification of defendant troubling in light of

Millard’s answers to the following questions posed at trial. When asked if anyone had shown

him photographs of any of the three defendants present in the courtroom at trial, Millard first

stated that he had seen the photographs “a few minutes ago” and “before court.” Millard,

however, then changed course and averred that he had not seen those photographs earlier in the

                                                  71
No. 1-06-0141

day. Millard changed his testimony for a third time and stated that he could not remember if he

had ever been shown photographs of any of the defendants before trial. In that respect, we find

relevant that although Millard was older than Malik at the time of the kidnaping, according to

Detective Smith’s own testimony, unlike Malik, Millard was never asked by the police to make a

photo identification, or for that matter, any type of identification of defendant, immediately after

the kidnaping or at any time prior trial. In addition, when asked at trial whether he ever talked to

his parents about the kidnaping, Millard refused to answer the question and continued to be

unresponsive.

       We note that Millard’s in-court identification of defendant came only after the prosecutor

pointed her finger at defendant and asked him if “this [was] the man.” (Emphasis added.) The

record reveals that when first asked if he saw anyone in the courtroom who was present during

the kidnaping, Millard stated that he did, and the following in-court colloquy then occurred:

                “THE STATE: Who did you see?

                MILLARD: A man.

                THE STATE: What man did you see? Do you think you can point out the man

       that you saw?

                MILLARD: (Indication).

                THE COURT: Ask a little, she’s pointing towards the jury box I want to know

       exactly who she is pointing to.

                THE STATE: He is pointing.

                                                 72
No. 1-06-0141

                THE COURT: Who he is pointing to, excuse me.

                THE STATE: Do you want to stand in front of the person that you saw?

                MILLARD: No.

                THE COURT: Well, you can describe it verbally a little better.

                THE STATE: Can–

                THE COURT: At this point I know where in the jury box. But you can go ahead.

                THE STATE: Was it this man?

                MILLARD: Yes.

                THE COURT: The record will reflect that the witness is identifying [defendant] in

       open court.” (Emphasis added.)

       The State nevertheless argues that the inconsistencies in the testimonies of Malik and

Millard were minor and that the credibility of witnesses rests within the purview of the trier of

fact, who in this case found the testimonies credible. We acknowledge that the “weight of the

evidence, credibility of witnesses or resolution of conflicting testimony” are the province of the

trier of fact. People v. Jones, 295 Ill. App. 3d 444, 452, 692 N.E.2d 762, 768 (1998). However,

in the preset case, the inconsistencies and contradictions and other vulnerabilities in Malik’s and

Millard’s testimonies were major, rather than minor, and, in fact, materially essential to the

identification of defendant as a participant in the kidnaping.

       Our supreme court has previously held that a conviction cannot be sustained on doubtful,



                                                 73
No. 1-06-0141

vague and unreliable identification testimony. People v. Ash, 102 Ill. 2d 485, 494, 468 N.E.2d

1153, 1158 (1984); see also, e.g., People v. Dowaliby, 221 Ill. App. 3d 788, 800, 582 N.E.2d

1243, 1250-51 (1991); People v. Williams, 244 Ill. App. 3d 669, 673, 614 N.E.2d 367, 370

(1993). Moreover, as already noted above, our supreme court has held that a trial court’s finding

of witness credibility may be set aside in the face of serious inconsistencies and/or repeated

impeachment of witness testimony. See e.g., Smith, 185 Ill. 2d at 541-45, 708 N.E.2d at 369-71

(holding that witness’s testimony that defendant shot victim was not credible and therefore

insufficient to sustain defendant’s conviction of murder, where witness’s testimony that victim

came out of bar alone, that the shooter came out of bar a few seconds later, and that victim was

standing alone when he was shot was contradicted by testimony of bartender and victim’s

companions, witness’s credibility was repeatedly impeached with signed statements she gave to

defense investigator five months before trial, and witness had a motive to falsely implicate the

defendant); People v. Schott, 145 Ill. 2d 188, 205-09, 582 N.E.2d 690, 690-700 (1991) (holding

that there was insufficient evidence to support a conviction of defendant for aggravated indecent

liberties with his stepdaughter, where the victim’s testimony was fraught with inconsistences and

contradictions); People v. Williams, 65 Ill. 2d 258, 266, 357 N.E.2d 525, 528-30 (1976)

(reversing conviction for murder and attempted armed robbery for want of sufficiency of

evidence where the testimony of the state’s only witness was “so thoroughly impeached that,

absent very substantial corroboration, it could not support a finding of guilt”; the court noted that

although the witness who was only 15 years of age at the time of the incident consistently

testified that defendant was the individual who fired the gun, he “made inconsistent statements


                                                 74
No. 1-06-0141

*** with respect to virtually every other important segment of his testimony”).

       Given the serious internal inconsistencies and contradictions in Malik’s and Millard’s

testimonies, as well as their repeated and continued hesitancy and reluctance to respond to

questions while on the witness stand, in the present case, we find that no reasonable trier of fact

could have found their identifications to be credible or reliable. Accordingly, absent any

corroborative evidence of defendant’s presence at the scene of the crime, we find that the

testimonies of Malik and Millard were not sufficient to prove defendant guilty beyond a

reasonable doubt. See Smith, 185 Ill. 2d at 541-45, 708 N.E.2d at 369-71.

       Because we reverse on these grounds, we need not consider defendant’s contention that

he was denied a fair trial when the trial judge assumed the role of prosecutor.

       Reversed.

       McBRIDE, P.J., and O’MALLEY, J., concur.




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               No. 1-06-0141
__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     THE PEOPLE OF THE STATE OF ILLINOIS,
                                                       Plaintiff-Appellee,

                             v.

                             SEDGWICK WILLIAMS,

                                                       Defendant-Appellant.


______________________________________________________________________________________________________________
                                           No. 1-06-0141
 Docket No.
                                           Appellate Court of Illinois
 COURT                                     First District, SIXTH Division

 Opinion
 Filed                                         June 20, 2008
                                          (Give month, day and year)
______________________________________________________________________________________________________________
                          JUSTICE JOSEPH GORDON DELIVERED THE OPINION OF THE COURT:

JUSTICES                              PRESIDIN G JU STIC E M cBRID E and JU STIC E O’M ALLE Y concur.


                                  Lower Court and Trial Judge(s) in form indicated in margin:
APP EAL from the
Circuit Court of Cook                                  Appeal from the Circuit Court of Co ok C ounty;
County; the Hon___
Judge Presiding.                               The Hon. James B. Linn Judge presiding..
__________________________________________________________________________________________________________________________


                             Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR
APPELLANTS                                                        NONE if not represented.
John Doe, of Chicago

For APPELLEES, :             FOR APPELLANT: Robert A. Fisher, Robert A. Fisher, Ltd., 20 South Clark St., Suite 700, Chicago, IL 60603

Smith and Smith of
Chicago,                      FOR APPELLEE: Richard A. Devine, State’s Attorney, and James E. Fitzgerald, Samuel Shim and Anjana Hansen,
                   Assistant State’s Attorneys, of Counsel, Cook County, Richard J. Daley Center, Rm. 309, Chicago, IL 60602
               _____________________________________________________________________________________________________________

Add attorneys for third-
party appellants and/or
appellees.




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No. 1-06-0141




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