1 SIXTH DI VISI ON June 20, 2008

No. 1-06-0141

THE PEOPL

E OF THE

STATE OF

IL LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County , Illi nois. ) ) ) No. 04 CR 11378 v. ) ) SEDGWICK WIL

LI AMS, ) Honorab le ) James B. Linn, Defendant-Appellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO N deliver ed the opinion of the

court: Following a bench trial in the circuit court of Cook County defendant, Sedgwick Williams, was found guilty of ag gravated kidnaping (720 I LCS 5/10-2(a) (West 2002)) and sentenc ed to 25 y

ears’ im prisonme nt. On app eal, def

endant c ontends th at (1) the State fa iled to prove him

guilty bey ond a rea sonable d

oubt; (2) the trial

court er red in de nying his mot

ion to quash the search warrant and to suppress e vidence; (3) the trial court erred in deny ing his motion to dismiss the indictme

nt; (4) the trial cou rt abuse d its discr

etion whe n it found t

hat two ch

ild witn esses were co mpete nt to testi fy at tria l; (5) the tr ial co urt er red whe n it p ermit ted Ch icago police detective Robert Smith to testify reg arding a photo identification by Malik Baker where the prosecutor never questioned Malik about his photo identification; and (6) the trial cour t 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 rea sons that follow we reverse.No. 1-06-0141

1 The evidence presented to the gr and jury in case

No. 04 CR 11378, involving the aggravat ed kid napin g and hi jacki ng, consisted of the following . Detective Smith testified that on or about January 2, 2004, def endant “participated in a kidnaping.” De tective Smith identified the victims of this kidnaping as Anthony B aker, his wife, Liz, and three c hildren (Millard Baker, Malik Ba ker and E ric William s). Dete ctive Smith further stated tha

t the “of fender s” initially used han dguns to

hijack the vehicl e in which the Bak er famil y w as seate d. Detective Smith acknowledged that L

iz Baker fled the scene but stated that the offende rs took Anthony and the three children. Detective Smith averred that the c hildren were ultimately

released and that Anthony was “a

ble to get out of the clutches of his kidnapers.” Detective Smith finally testified that Malik

Baker viewed a photo arr ay and positi vely

picked ou

t defend ant. 2 I. BACKGROUND On May 6, 2004, def

endant was charged with two separ ate indictments. In case No. 04 CR 11378, de

fendant was cha rged w ith numero

us counts o f agg

ravate d kidnaping (720 I

LCS 5/10-2(a)(2), (a)(6) (West 2004)) and a ggravated vehicular

hijacking (720 IL

CS 5/18-4(a)(2), (a)(3) (West 2004) ) of th e vict ims: Antho ny Baker, Liz Baker an d thre e chil dren u nder t he age of 13 (Millard Baker, Malik Baker, a nd Erik Williams) which occurred on January 2, 2004. 1 In case No. 04 CR 1027, defendant was charg ed for the attempted murder (720 I LCS 5/9-1(a)(1) (West 2004)) of Anthony B aker on January 20, 2004. T hese two cases were joined for trial by agreement of the parties. With respect to ca se No. 04 CR 11378, involving the January 2, 2004, aggravated kidnaping

of the Baker family , defendant was tried together with code fendants Jeffrey Campbell and Steven Williams.No. 1-06-0141

3 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 evidenc e seized from three separate sear ches of defendant’s grandmother’s house and basement. At the hea

ring on t hat motion, on Febr

uary 15, 2005, d

efenda nt’s gr andmothe r, Betty Williams, testified that she is 72 years old and lives on the second f loor of her two flat at 6835 South Dorc

hester St reet in Ch icago, with her 1 6-y ear-ol d gran ddaugh ter Fallon, her 2 7-y ear-ol d grandson Torino, and defendant. B etty stated that she re nts the first-floor unit, but that the basemen t is hers. Betty fur ther testified that about 11:30 p.m., on January 3, 2004, she wa s 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 c heck who was at the front door. When Fallon told Betty tha t the police were at the front door, Betty instructed her to see what they wa

nted. She stood at the top of the stairs leading down to the front door. Accor ding 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 fur ther averred that when she demande d to know what was going on, an office r asked for defendant. Betty told the police that defendant was not at home and that she last saw hi m t he da y be fo re . T he po li ce pr oc ee de d t o s ea rc h t he ho us e for de fe nd an t. Ac co rd in g t o B et ty, the police searched the bedroom, the kitchen, the e nclosed back porch, and the living room.No. 1-06-0141

4

Betty also a

verred that she saw a police office r going through a clothes c loset and another one looking through her dresser dra wer. According to Betty , at that point she heard a knock on the back door and she instructed her gr anddaug hter to g o and see

who it was . Fallon indicate d that “it w as more p olice of ficers” who entered the house without asking for permission. Betty also testified tha

t the police searched the basement inside the building. She stated that she r emained upstairs w

hile they did that. Betty also a

verred that none of the police officer s asked her to sign a consent to search form when they

initially entered the house. I nstead, according to Betty , the police searched the house for about 25 minutes bef

ore an of ficer p resente d her with

a consen t form. Ac cording

to Betty, the of

ficer asked her to sign the consent for m only after F allon 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 bec ause the police had already searched her house. She stated that at that point the office r said, “This house is under seizure. I’m g oing to f

ind me a ju dge.” After th at, the po lice remained in B etty ’ home unt il about 10

a.m. on th e foll owing m ornin g. On cross-examination, Betty sta ted that she uses the basement, that it is alway s locked and that s he holds th

e key s. Betty , howeve

r, ackno wledge d that she

does allo w defen dant to use the basement on occasion and that she gives him the key s when he asks for them. She stated, however, that defendant did not ask her for the ba sement keys the da y before

.No. 1-06-0141

5

On cross-examination, Betty a lso conceded that she allowed Fallon to take the offic ers into the ba sement. B etty

stated tha

t she did th at after

the polic e offic ers cam

e into her house from the backdoor and stated “We need to g o into the basement.” According to Betty , she allowed t he police into the ba sement because sh e was co nfused a

nd afra id that the y w ere go ing to take down the basement door if she did not allow them to go inside. Betty also a

verred that she never saw any children enter the house or the basement, but conceded that she did not enter the basement on the pre vious night. Betty a

cknowledged 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 wa s obtained and executed, witnesses were brought onto the pre mises by police to view and identify the basement as the scene of the crime, and that subseque ntly certain evide

nce (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 ve hicular hijacking, of the Baker family. Detective Smith state d that fro m his invest igation he lear ned that o n January

2, 2004, th

ree chi ldren, a

ges, 10, 8 and 2, were kidnaped and taken to a base ment. 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 “a ssociates.” Detecti ve Smith als o averr ed that he spoke with

two of the

victims, A

nthony Baker and Malik Baker . He stated that af

ter bein g shown a

photo arr ay , Anthony

Baker identifie d defend ant as aNo. 1-06-0141

6

drug de aler fr

om 68th Street and Dorchester, and Malik Bake r identified defendant as the man present at the scene while he was being duct taped. Detective Smith testified that he then searched for defe ndant’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 re sidence with approximately half a dozen other officers. According to Detective Smith, upon arriving at the house , he knocked on the door and “a y oung lady came

to greet him.” Detective Smith identified himself as a detective of the Chicago police departm ent and a sked to spe ak to the o wner of the resid ence. A t that point , an older

lady came to the door a nd stated that she w as defe

ndant’s g randmoth er, Be tty Wi lliams. De

tective S mith asked Betty

if she knew where defendant wa s 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 Be tty’s permission to search the house for defendant and that she permitted him to do so. After an unsuccessf ul cursory sea

rch of the apartme nt, Detective Smith a sked Be tty i f he coul d search the base ment. Be tty g ave the k

ey s to the basement to her granddaug hter Fallon, and Fallon opened the basement door f or the police. Detective Smith testified that immediately upon opening the basement door he observed a bulletpro of vest, s everal

boxes of am

munition, p aint can s and plas tic chair s. Accor ding 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 whe re they ha d been taken by

the kidnapers. Detecti ve Smith av erred t hat he the n had Milla

rd Bake r and Mal ik Bake r broug ht toNo. 1-06-0141

7

Betty’s ba sement. According to Detective Smith, when the boy s entered the basement they looked around and Malik Baker pointed at the plastic cha irs and stated that that was where he was seated after he was kidnaped. After the children left, Detective Smith went to obtain a searc h warrant. He averred that he obtained one the

following

morning , at appr

oximately 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 warra nt. He stated that he initially went to the house to find defendant. Detective Smith however conce ded 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 ch

eck if de fendant ’s name w as on the mailbox in ord er to asc ertain if defendant actually

lived there. Detective Smith further acknowledg ed that he did not have any information that defendant was at the home and about to flee, a nd that he had no information or reason to believe that evidence that was inside that home wa s in danger of disappearing or being destroyed. Detective Smith also testified that he initially went to Be tty’ house to arre st defendant based upon Malik Baker’s photo array identification of defendant as one of the perpe trators. Detecti ve Smith sta

ted that th

e photo ar ray was cond ucted in A

nthony Baker ’s house a

nd that it included six photographs. Detective Smith stated that defendant’s photograph w as placed in the photo arr ay because he was “ an assoc iate of [c odefend ant] Curtis Po sey .” Dete ctive Smith acknowledged that Posey never made a statement implicating defenda nt in the kidnaping before defenda nt’s photo graph

was plac ed in the photo arr ay . He, how ever, te stified th at Posey didNo. 1-06-0141

8

implicate defendant in the kidnaping after the photo ar ray and be

fore he and other detectives went to Betty’ s home. Detective Smith also averred that he placed def endant’s photograph in the photo array because during his investigation, he had lea rned that “the female who had dropped the c hildren [who had been kidnap ed] off in t he 7th District [police station] was *** Crystal L ong *** [who] has a relationship with [defendant.]” Detective Smith testified that he assumed that Cry stal Long and defe ndant we re datin g beca

use his inv estiga

tion reve aled a pr

ior domes tic batte

ry call involving Crystal L

ong as the victim and defendant as the “possible offe nder.” On cross-examination, Detective Smith also conceded that when he initially entered Betty ’s home he

told her th at his sea

rch woul d be limite d to findin g defe ndant and that he wo

uld not search the premises for any thing else. He indicated that he searched inside the closets and underneath the beds, but denied having g one through desk drawers or any of Betty’ s belongings. In rebuttal, defenda

nt presented the testimony of de fendant’s cousin and Betty ’s granddaughter, F allon 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.” F allon told her grandmother that it was the police and her grandmother instructed her to open the door and see what they wanted. Fallon specifically a

verred that her grandmother did not g ive her permission to let the officers inside the home. When Fallon opened the door, six officers rushed into the apartment, without askingNo. 1-06-0141

9

permission to enter. Fallon stated that one officer asked f or defendant and that she told him that he was not at home. Fallon testified that about 30 minutes later, more police officers ca me in from the backdoor and indicated that they wanted to enter the basement and needed ke ys. Fallon’s grandmother gave he

r the keys a

nd told her to lead them to the basement. After hearing closing a

rguments by

defense counsel and the State, the circuit court denie d defenda nt’s motion

to quash th

e searc h warra nt and supp

ress evi dence. In do ing so, th e circu it court specifically

found that entry wa s proper both because the police were g iven consent to enter Be tt y’s ho me an d b ec au se th er e w er e e xi ge nt ci rc um st an ce s s ur ro un di ng th at en tr y, n am el y a “violent offense where children [were] duct tape d and held secretly in this very location,” and the close pr oximity in time bet

ween the search es and the actual c rime. The

court al so noted th at 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 gr and jury that he ha

d committed acts in furtherance of the crime charged, namely , aggravated kidnaping . In support of this contention, defendant attac hed a transcript of the grand jury proceedings. I

n arguing his motion, defendant cited to People v. Rodgers , 92 Ill. 2d 283 (1982), and contended that a ccording 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 noNo. 1-06-0141

10

evidence at all presented to the gra nd jury reg arding what specific actions he took in committing that crime. Defendant also argued that the testimony elicited from L iz Baker during the grand jury procee dings re

vealing that she h ad identi fied def endant a s the off

ender w as 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 B aker family on January 2, 2004. As such, defe ndant argued that this identification was irrelevant to the indictment presented to the grand jury . The circuit court denied defendant’s motion, rejecting the arg ument tha t the State failed to present some evid

ence tha t defend ant did som

ething in further ance of the crime . In doing so th e court h eld that “the criminal acts are talk ed about, albeit in a conclusory ma

nner.” 3. Tri al Pro ceedin gs On July 7, 2005, a simultaneous bench trial beg an for defendant and two other codefendants, Steven Williams and Jeffrey Campbell. In this proceeding, de fendant was tried under two separate indictments for crimes occur ring on two separate dates, namely , the aggravated kidnaping

and aggravated ve

hicular hijacking of Anthony Baker, Liz Ba

ker, Millard Baker , Malik Ba

ker, and Erik Willia

ms, which o ccurre d on Januar y 2, 2004 (ca se No. 04 C R 11378 ) a nd the att empted mu

rder of Anthony Baker , which oc curred

on January

20, 2004 ( case No. 04 CR 1027). Codefendants Steven Williams and Jeffrey Campbell we re also tried for the aggravated kidnaping

of the Baker family

on January 2, 2004. The testimony that is contained and discernable from the record be low is as follows.No. 1-06-0141

11 a. Anthony Ba

ker Anthony Baker testifie d that in Janu ary

2004, he lived at 68 60 South Cal umet Driv e in Chicago. Anthony

stated that at about 7:25 p.m. on January 2, 2004, he wa s inside his 1995 Dodge Caravan parked a

cross the street from his home, with his wife, Liz Ba ker, his two children Millard and Malik Baker, and another c hild, Eric Williams (known as Redman), whom Liz ba bys at. Antho ny w as sitting in the driv er’s se at while L iz was in the

front pa ssenge

r seat, and the three children were on the benc h seat directly be

hind them. According to Anthony , at that time Millard was 10 year s old, Malik was 8 year s old and Eric was 2. Anthony averre d that as he was pulling out o f the par king spo t a van pulled up next t o his car and “a bunch of people jumped out,” a rmed 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 a

round 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 or dered him to get in the back of the

car. Anthony stated that he climbed ove r the seats and over the children into the back of the van. Once there, he observed the men ope n the back doors of the car and jump inside of it. Anthony testified that the men struck him, and duct taped him across his eye s, mouth, nose, and hands. At trial, Anthony testified that he ha d identified a Mark Williams, from a photo array shown to him by police, as the man who struc k him in the back of the van.No. 1-06-0141

12

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 hear d Posey responding

“duct tape them, too.” According to Anthony , once he and the children were duct taped, they we re “taken for a short ride,” which appeare d to be only a few blocks away, w

hereupon they

were “transferred to another van.” A nthony 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 he ard 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 averr

ed that at the next stop, the children were taken away while he was transferred alone into y

et 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 fee t on him, and

he could h

ear the convers ation bet

ween the two men in t

he front . Accor

ding 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. A nthony was told that he would be brought to a house and that the tape would be taken off his face once he reache d the front door. Posey specific ally

instructed him to ask

for L isa. Onc e Anthony

reached the fro nt door, he felt the tape being removed from his face

. Accord ing to An thony , a y oung boy , about 12 or 13 y ears old answer ed the doo

r 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 backgr ound calling the boy

to come to the telephone because his motherNo. 1-06-0141

2 Imme diately

upon this te stimony , the par ties stipul ated tha

t if Dete ctive Robe

rt Smith were called to testify , he would testify that on Fe bruary 17, 2004, a

t 4:15 p.m., he had a conversation with Anthony, who w as shown a photo array . The detective would testify that 13 wanted him. At that point, Posey gr abbed the door and dragg ed Anthony inside the house a nd sat him at the dinner table. Anthony sa w Posey gr

ab the boy and de

mand that he be taken to where his mother kept the money. Ac cording to Anthony , a little girl, about 10 ye ars old, then appeared in the door

way of the living room a

nd anothe r offen der, who

was armed with a g

un, 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 apa rtment. When they ran out of the house, Anthony locked the door behind them and called the police. After the police c ame, they took Anthony

to the police station. When Anthony arrived a t 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 tha t Steven Williams wa s not an of

fender or participant in a

ny c rime comm

itted ag ainst him or

in his presence. He denied ever ha ving told an officer that he saw Steven Williams on the passenge r 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 f orm was on July 14, 2005, and he stated that he had never been shown a photogr aph of him by any

police officer. 2No. 1-06-0141

Anthony picked code

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

tely 12:27 p.m. h

e had pic ked up his d aughte

r, Sade B aker, f

rom schoo l and par

ked his van in front of his house at 6860 South Calumet Drive. Anthony sta ted that his wife was in front of the car with his friend Elgin Wallace, and that he a nd 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 defenda nt get ou t of the c ar and st

art shoot ing at him. Anthony

felt a shot in his arm , ye lled “ru n,” and s tarted r

unning to ward the

house hims elf. Anthony averre d that def

endant di d 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. Defenda nt 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 therea fter the police and ambulance arrive d 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 too

k the tape off his fa ce in the kidnaping .” When as ked 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 pe ople that had been involved in the kidnaping and he could not. However, he stated tha t his son Malik was standingNo. 1-06-0141

3 As shall be described below, the aforementioned a spects of Anthony’s testimony were challenged by

other witnesses at trial. 15 nearby and then s aid, “Da

ddy , this the o ne that to ok the tap e off my face,” identify ing def endant. Anthony averre d that af

ter spea king with the polic e at Chris t Hospital , he was b rought a photo array , and he identified defendant as the man who shot him. On cross-examination, Anthony stated that the f irst time he spoke to the police, he described the offenders involved in his kidnaping as be ing male blacks, between the ag es of 20 and 26, between 5 feet 7 inches and 5 fee t 11 inches in height, weighing about 170 to 180 pounds. On cross-examination, Anthony conc eded that he knew defendant before the January 20, 2004, shoo ting but d

enied kno wing him b efore t he kidnap ing. When

questione d rega

rding hi s 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 Michae l Raymond of Joliet. Anthony denied eve

r having sold cocaine, but admitted to being known as “ Crack Daddy ” since 1976. Anthony further de nied ever knowing a male black in his 40s named Micha el Raymond, or Redmon d, and de

nied eve r having told police

that he knew him. 3 b. Liz Baker Liz Ba ker next te stified th at on Janua ry 2, 2004, a

t 7:25 p.m., she and A

nthony were in their va n parked on the ea st side of C alumet Str eet with t heir two c hildren M illard and Malik Baker, and a child that L

iz provides daycare

for named Eric Williams (or Redman). AccordingNo. 1-06-0141

16

to Liz, a t that time A

nthony was sea ted in the driver’ s seat an d she wasin the pas senge r seat with the child ren in the back. L iz testifie d that ano ther van pulled up t

o the pass enger

side of their van and a man wearing a blac k hoody walked a

round the back of their van to Anthony ’s window, pointed a gun at h im and told h

im to open th

e door. L iz testifie d that she

saw two mo

re men e xit th e v an an d a pp ro ac h h er do or . O ne of th e m en , w ho m s he la te r i de nt if ie d a s C ur ti s P os ey, 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. L iz stated th at the gunman, whom she late r identif ied as co defenda

nt Jeffre y Ca mpbell, 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 hear d Campbell tell Posey to put her in the back of the van as well, and so she opened the passenge r side door and ran. As Liz ran we stward toward a neighb or’s hous e, she he ard Campb ell y elling b ehind her “catch that bitch , catch t

hat bitch .” Li z testified that she did not see what happened to the van and that she eve ntually went home. Liz next averre d that late

r that nig ht she re ceived a

call fro m the 7th

District police station informing her that her children were the re and that they

had been reported as “walking the streets alone.” Once at the police station, L iz told the officer that the children had been kidnaped th at da y. Liz next testified with respect to the January 20, 2004, incident. According to L iz, 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 daug hter Sade, and her husband,No. 1-06-0141

17

Anthony, when she obse

rved 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. L iz 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 de fendant started shooting, Anthony attempted to run but fell to the ground. According to L iz, defendant continued to shoot at her husband until he ran out of bullets . After d

efenda nt ran aw ay , the ambulance w as calle d and arr ived soon t

hereaf ter 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 fr

om 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 acknowledge d that with respect to the kidnaping which occurred on January

2, 2004, she never told police that there were more tha n three offenders. She also acknowledged that she origina lly described the three offenders as male blacks betwee n the ages of 22 and 26, with one man being “extremely short.” L

iz also conceded that it was dark outside when the kidnaping occurred. On cross-examination, Liz testified that she viewed severa l lineups and photo spreads related to the kidnaping case. She specific ally stated that on Fe bruary 7, 2006, she

viewed a lineup at Area 2 police station and picked out codefenda nt Jeffrey Campbell as one of theNo. 1-06-0141

18

offende rs. On Apr

il 6, 2004, a

t Area 2 p olice sta

tion, she v

iewed a lineup and picked o

ut Curtis Po se y. Liz also testified that on March 8, 2004, at about 4:45 p.m., she viewed a lineup a nd identifie d another

man as the

person w ho forced Anthony

onto the f

loor of the van, str

iking him in the head several times. However, L iz could not recall whether that person’s name was Mark Williams, a man not cha

rged a s a codef

ednant in the case . At this point in the tr ial proc eeding s, the court inquired whether Mark Williams was placed in the photo array as a suspect or filler, and all the attorney s agreed that Mark Williams was a suspect, not a filler, that he w as arrested regar ding the case, bu t that neit her the p rosecut ion nor the

defense knew wha

t had happ ened to him since. With respect to codefendant Steven Williams, Liz testified that he was not present on January 2, 2004. She denied eve r identifying

him either in a lineup or in a photo array as an offe nder in the kidna ping and d enie d eve r having t old po lice that h e wasthe ma

n 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. L iz explained that she heard defendant’s name for the first time after the kidnaping when her childre n looked at photo array s and told the police that they rec ognized defendant from “when he took tape of f of their faces.” L

iz also denied everNo. 1-06-0141

19

having met defendant prior the kidnaping.

c. Malik Baker Malik Baker, age nine, wa s next called as a witness. His testimony beg an with the prosecutor offering to establish his competency as a witness. When asked whether he knew the difference between a truth a nd a lie, Malik shook his head from side to side, indicating “no,” and said he did not. When questioned whether the prosecutor would be ly ing if she said that she was wearing a white shirt, Malik indicated that she would be bec ause the shirt was black. After that Malik also indicated that he does understand the differenc e between a truth and a lie. At this time, defendant objected to the competency of Malik to testify at trial beca use he had initially stated that he did not understand the diff erence 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 COU

RT: Where a

re y ou? What kind of

building is this? MALI K: I f orgot. THE COURT: You don’t know where y ou are? MALI K: I f orgot. THE COURT : Okay . You know when I asked y ou to rais e y our hand

to promise to tell the truth?No. 1-06-0141

20 MALI K: Yes. THE COURT: What did that mean to you? MALI K: To tell the truth. THE COURT: Okay. And wha t does the truth mean? MALI K: To not lie. THE COURT: To not lie. If something rea lly happened a

nd you would say

what really happe

ned is that the truth or is that a lie? MALI K: 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? MALI K: That is a lie. THE COURT: How many fing ers do I have up now? MALI K: Two. THE COURT : The rec ord will sh ow that the Court has t

wo fing ers up. I

f I to ld you this was three f

ingers would that be a truth or a lie? MALI K: A lie. THE COURT: If I

told you that it was two would that be the truth or a lie? MALI K: A truth.No. 1-06-0141

21 THE COURT : Okay . Do y ou know wh at happe ns if y ou tell a li e in cour

t? MALI K: No. THE COURT : No. You k now y ou could g et in troub le for it i f y ou tell a li e in court? MALI K: Yes. THE COURT : You belie ve me whe

n I sa y th is? MALI K: Yes.” The circuit court then found that Malik was competent to testify as a witness. Malik testified that in January of 2004, he wa s in the van with his mother, father, brother and cousin, when another van pulled up and a man with a g un 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 w as ordered to do so a second time. After his father opened the door, Ma lik heard the man tell him to move to the back of the van and he did so. Malik stated that “a couple of me n” then followed his father to the back of the van and tied him with duct tape. Malik also averred tha t the men put duct tape on him, his brother and his cousin. He stated that they put duct tape on his legs, arms, and ey es. Malik testified that after his ey es 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 n ot know where his f ather wa s at that ti me. Malik s tated tha t togeth er with hi s cousin and brother he was then taken into another ca r 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 offNo. 1-06-0141

22

his eyes, Malik stated that someone did but indicate d that he did not see the person who took the tape off. When asked if he could state whether the thre e people in the car were “boy s or girls,” or “how old they we

re,” Malik indicated that he could not. Ma li k t he n s ta te d t ha t a ft er he wa s i n t hi s c ar , h e w as ta ke n t o t he po li ce st at io n b y “Crystal L

ong.” Malik averred that before “this lady” took him to the police station, two men, who were inside the car were dr opped off somewhere. When asked if saw the two people that “got dropped off,” Malik indicated that he ha d. Malik was next asked by the State to look around the c ourtroom and see if any one that was present in January 2004 w as 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 y our gestures, please. THE STATE : Do y ou want to stand up a

nd look ar

ound the c ourtroom ? MALI K: No. THE STATE: Are y ou scared? MALI K: No. THE COURT: You may try some more, just be careful of how y ou do it but you can explor

e this a lit tle bit.No. 1-06-0141

23 THE STATE: Malik, can I see y ou look up and look at the people in the courtroom that are sitting here? MALI K: Yes. THE STATE : Can y ou look ar ound at all the peop le in the c ourtroom ? MALI K: Yes. THE STATE : Did y ou look at a ll the peo ple in the courtro om? MALI K: Yes. THE STATE: Do you see anybody here today

that you saw bac

k on that date? MALI K: No. THE STATE: Are y ou looking around at all the people that are here ? DEFENSE COUNSEL: Objection, y our Honor. THE COURT: Overruled MALI K: Yes. THE STATE: All around? MALI K: Yes.” At this point, the State proceeded with another line of questioning and asked Ma lik if he remembered whether the duct tape c ame off his ey es at any point during the incident in January 2004. Malik stated that the tape came off his ey es inside a basement. Malik was then shown a photogr aph mark ed as exhib it 4A and a sked to ide ntify it. Malik in dicated

that this w as aNo. 1-06-0141

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 e ver admitted into evidence at trial. 24 photograph of the basement where the duct tape was taken off his ey es. He stated that he knew that it was the basement in question because of the “chairs, pa int stuff, [and] paint bottles down there.” Malik was shown another photogra ph marked as exhibit 4B and asked to identify it, and he aga in stated t hat it wasa photog

raph of t he same b asement

and that h

e knew th at beca

use it contained the “motorcycle [and the] chairs.” Malik went on to identify exhibits 4C, 4D, and 4E as photographs of blue chairs and bicy cles 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” wa s with him inside the car, Malik stated “because of his voice.” The following colloquy next took place: “THE STATE: You heard his voice? MALI K: Yeah. THE STATE: Did you hear his voice again? MALI K: No, just in the basement. THE STATE : You hea

rd his, Sed

gwick’ s [defend ant’s] voic e in the ba sement? MALI K: Yes.No. 1-06-0141

25 THE STATE: Did he talk to you? MALI K: No. THE STATE: Did he talk to other people? MALI K: No. THE STATE: Did you see Sedgwick’s [defendant’s] face ever? MALI K: Yeah–no. TH E S TA TE : D o yo u s ee Se dg ew ic k [ de fe nd an t] in th is co ur tr oo m t od ay? MALI K: No. TH E S TA TE : D o yo u s ee Se dg wi ck [d ef en da nt ] i n t hi s c ou rt ro om to da y? MALI K: No. THE STATE: Did you look around? MALI K: Yes. THE STATE : You looke d all around this ro om? MALI K: Yes. DEFENSE COUNSEL: Objection. TH E S TA TE : A nd you do n’ t s ee Se dg wi ck [d ef en da nt ] h er e t od ay? MALI K: Yes. THE STATE : You do se e him?No. 1-06-0141

26 MALI K: Yeah. THE ST ATE: C an you poi nt to where h e is si ttin g? MALI K: Right there. (Indica tion). THE STATE: Which one? MALI K: That one. TH E S TA TE : Y ou re co gn iz e s om eb od y? DEFENSE COUNSEL: Objection, she aske d– MALI K: Yeah.” At this poin

t in the tri al proceedings, the circuit court interrup ted and a sked Mali k to stand i n fron t of th e per son th at he

is poi nting

to, wh ereu pon, M alik l eft t

he wi tnessstand

and s tood next to defendant. The court then stated, “Very good,” and indicated for the rec ord 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 defe ndant 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 indicate d that there was a “a boy,” who appe ared to be about 15 y ears old. Malik also identified exhibit 5C as a photograph of Crystal Lon g. On cross -examinat

ion, Malik

testifie d while he

was in tha

t car, de fendant was sea ted inNo. 1-06-0141

27

the front passenger seat and that Cry stal Long was with him. Malik initially stated that while he was in the car with defendant, defenda nt told him that his name was “Sedgwick.” Malik, however , then sta

ted that th

e police told him both

Cry stal’s and Sedgw ick’s na mes. He a

lso first averred that he had never see n Sedgwick before that day in January, but then stated that he hea rd his father mention Sedgwick’s name once “be fore any of this happened.” On cross-examination, Malik also testified that the duct tape was never taken off his eyes while he w as in the b asement and that h

e did not see defen

dant insid e the bas ement. He

also testified that somebody had to help him walk out of the ba sement because his ey es were duct taped and he could not see. When asked how he could then identify the bicycles a

nd chairs in the photogr aphs of th e baseme nt, Malik f

irst beca me unres ponsive, a

nd the cou

rt had to a

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

d. Malik then respo nded by say ing that the polic e showed

him photographs of the items that were inside the basement. He then added that his eye s were taped only “a little bit” while he wa s in the basement and that therefore he could see . Malik changed his testimony y

et again and stated that he did in fact see de fendant inside the basement. When questioned on when the duct tape was removed from his ey es, Malik testified on cross-examination that it was removed inside the car, and not inside the basement. He state d 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 we re no streetlights or other lamps nearby

.No. 1-06-0141

28 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 fa ther’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 fathe r 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 c old not see when he was inside the van. He then averred that toge ther 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 ha ppened in the basement. Millard stated that afterwards, the three of them we nt into a car with a lady , a boy and a nother person who sat in the front passenger sea t. He stated that the boy a nd the man in the passenger seat were “dropped off” a nd 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 any one in the courtroom who was present on that day in January

2004, and over defense counsel’s objection, Millard was a llowed to state that he did. The following colloquy and in-court identification then took place: “THE STATE: Who did you see? MIL LARD: A man.No. 1-06-0141

29 THE STATE: What man did you see? Do you think you can point out the man that you saw? MIL LARD: (I ndication). THE COURT : Ask a littl e, she’s[ sic ] pointing towards t he jury box I wa nt to know exactly who she [ sic ] is pointing to. THE ST ATE: H e is po inti ng. THE COURT: Who he is pointing to, excuse me. THE STATE: Do you want to stand in fr ont of the person that you sa w? MIL LARD: No. THE COURT: Well, you can descr ibe it verbally a little better. THE STATE: Can– THE COURT: At this point I know where in the jury box. But you can g o ahead. THE STATE : Was it this man? MIL LARD : Yes. THE COURT : The rec ord will r eflect t hat the wi tness is ide

ntify ing [def endant] in open court.” (Emphasis added.) Millard next identified a number of exhibits as being photographs of himself, his brother, Eric Red man, his f ather’ s van, the

basemen t he was ta

ken to, and the cha

ir that he sat in whil e inNo. 1-06-0141

5 As noted above exhibit 5A is not part of the record on appeal, and we c annot discern from the r ecord w hether it was eve

r admitte d at trial

.

30 the ba semen t. Mi llard also i denti fied ex hibi t 5A as the car he was i n duri ng the k idnap ing. 5 Millard identified exhibit 5C as the photograph of “a girl” who was in the c ar with him during the kidnaping. During cross-examination, however, Milllard testified that while he was in the ba sement he could not see because his ey es were covered with duct tape. Millard also a verred that he had not been able to walk to the car because his ey es were covered, and he state d 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 ey es were taped. On cross-examination, Millard also testified that before that night, he had neve r seen any of the three people in the car (the y oung boy, Cry stal, or defendant). When asked if he had talked about the kidnaping

with his pa

rents pr ior to tria l, Millard was unre sponsive. Millard f inally 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 quest

ioned whe

ther any one had s hown him ph otogra phs of any

of the defendant s present in the courtroom, Millard first stated that he had seen the photog raphs “a few minutes ago,” “befor

e court, ” but then

chang ed his tes timony

stating that he ha

d 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 bee n show photographs of any of the defendants before that.No. 1-06-0141

31 e. Quincy Saddler

and Sade Baker The State next presented two additional witnesses with respect to the January 20, 2004, incident . First, Q

uincy Saddler t estified that on the

date in qu estion he

lived at 6 858 South Calumet Drive, in Chicago and that he was neig hbors with the Baker family . Saddler averred that at ap proximatel

y 12 :27 p.m. on t

hat day , he was s tanding

at the co rner of 68th Street and Calumet, about to go into his house, when he saw the Baker f amily parking

their car. Saddler testified that as soon as he saw Anthony get out of his car, he observed a man c ome out of a maroon car and “just start shooting.” Saddler stated that he only saw two shots but indicated that he hear d at leas t 20 more. Saddler t estified as soon ashe hear

d the shotshe immedia

tely fell to the ground and therefore did not see the face of the shooter. Next, Sade Baker, Anthony and Liz’s 18-y

ear-old daughter, testified that at about 12:27 p.m., on January 20, 2004, she was in front of he r house at 6786 South Calumet Drive with her mother, father, their friend Elgin, and a c hild 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 tha t defendant followed him and continued to shoot at him. Sade stated that after defendant ran a way, an a mbulance 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 ar ray. Sade w ent to Area 2 police station on April 6, 2004, to view a lineup where she identified defendant as the shoote r. Sade also made an in-court identi fication of defe ndant.No. 1-06-0141

6 In tha t respect, we note

that ther e is no evi dence a

nyw here in t he reco rd that wo

uld indicate that Malik was present during the shooting on January 20, 2004. 32 On cross-examination, Sade acknowledged that defe ndant’s photograph was part of the origina l photo ar ray shown to he

r at Chris t Hospital

only hours af ter the shooting a

nd that she

did not pick defendant out of that photo array

. f. Detective Weber Detective Weber next testified on behalf of the State. He aver red that on April 6, 2004, as part of his duties at Area 2 police station, he was assig ned to investigate both the kidnaping and attempted murder of Anthony Baker and his family . Detective Weber testified that on that date he c onducted

a lineup t hat conta ined def endant a nd that wa s viewed

by L iz Baker and Malik Baker. According to De

tective Weber, he did the lineup individually, f irst with Liz and then with Malik. Detective Weber testified that Liz picked def endant 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 change d course and indicated that Liz was present when Malik identified defendant as the shooter. I n addition, Detective Weber could not recall if he had investigated whether Malik was present during the shooting of his father on January 20, 2004. 6No. 1-06-0141

33 g. Detective Miguel Rios Detective Miguel Rios next testified on behalf of the State. He stated that on Fe bruary 7, 2004, at approximately 9 p.m., as part of his duties at Are a 2 police headquarters, he conducted a lineup in conjunction with the case of aggra vated kidnaping of the Baker f amily. He stated that Liz Ba ker pick ed out cod

efenda nt Jeffre y Ca mpbell as a

n offend er. Acc ording t

o Detec tive Rios, Liz identified Campbell as the man who, at gunpoint, order ed her husband, Anthony , to go to the back of the van. h. Officer Steven La zzara Officer Steven La

zzara testified that at approximately 12:50 p.m., on January 20, 2004, he was a ssigned

to investig ate the s hooting o f Anthony Baker . He stated that he w as only assigned to investigate this shooting and not the kidnaping whic h had occurred on January 2, 2004. Officer La

zzara testified that as a result of his investigation, he went to the crime scene near 68t h 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 photog raphed the scene in his presence and collected the evidence. Officer La

zzarra also testified that on January 24, 2004, he we nt to Christ Hospital, where he spoke to Anthony. He show ed Anthony a photo ar ray, and A

nthony picked out defe

ndant as the shooter. On cross-examination, Officer L azzara acknowledged that on January 20, 2004, a few hours af ter the shooting, w

hile at Chr

ist Hospita

l, he show ed Li z Baker

and Sade Baker photoNo. 1-06-0141

34

array s containing defendant’s photograph. A ccording to Officer L

azzara, neither Liz or Sade was able to make an identification from that photo array

. On cross-examination, Officer L azarra also stated that when he spoke to Anthony in the hospital o n January

24, 2004, a

nd befor e he show ed Anthon

y the photo ar

ray , Anthony

told him that he knew defendant and also that defenda nt was the person who kidnaped him. Officer Lazarra also testified that out of the six photographs tha t he showed Anthony on that day four were fillers (not suspects in the case) and one (that of defendant) was a photogr aph of a person Anthony knew fr

om before. When questioned about the sixth photograph, Officer L azarra was first vag ue and the

n testifie d that he c ould not recall who t he person in that ph otogra ph was. i. Detec tive Rober

t Smith Detective Robert Smith testified that in January 2004, he wa s assigned to the robbery burglary team at Area 2 police station, and that up until that point he had been a detective for approxima

tely six months. De

tective S mith aver

red that as part o f his dutie s, toget her with h

is partner Sergeant McClellen, he wa s assigned to investigate the kidnaping and hijac king 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, tog ether with his partner, he conducted a photo array

at the Bakers’ home on Calumet Drive. Specifica lly, Detective Smith averr ed 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 ar ray. Over defense counsel’s objection, Detective Smith testified that Malik picked outNo. 1-06-0141

35

defendant during the photo array as the person who kidnaped him. Detective Smith then made an in-court identi fication

of defe ndant. De

fense c ounsel obj ected to this testimo ny s tating th at it was improper for the detective to testify about a photo array

identification by Malik Ba ker, 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 arg ued 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 tha t the testimony of any

police officer testifying with re spect to the photo array identifications by either Ma lik or Millard be stricken because the transcript revealed tha t neither child had testified regarding such identifications. The court de nied def ense cou nsel’s mot

ion, noting

that the o bjection made by counsel a

t trial wit h respect to this issue goes to the weight of the evidenc e and not its admissibility. The court specifically state d:

“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 say ing later that’s their recollection. The trier of fact has to sort through that. I t’s – I’m not going to strike it bec ause it’s at odds with the other. * * *No. 1-06-0141

36 I don’t believe the reme dy is striking it. I t is what it is. This is the evidence. I have different witnesses telling me differ ent things about the same investigation and they are at odds with each other. * * * Just becau se witnes ses disag ree it do esn’t mea

n one or th

e other g ets stricken, it just means that they disag ree and it may

impact the weight somewhere down the line.” Detecti ve Smith ne

xt testified

that he su

bsequen tly l earned

that def endant’ s last add

ress 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 per mitted him into the house and into the basement to search for defenda nt. Detective Smith st

ated tha t after v iewing the base ment, he c ontacte d the Ba ker fam ily and had them come to the location. Over defense c ounsel’s objection, Detective Smith testified that Malik viewed the basement and identified it as the place wher e he was held captive. Detecti ve Smith ne

xt identifie d a serie s of photog raphs of the base ment at 68 53 South Dorchester and a photograph of the fence near the trash ca ns in the back of the building. Detecti ve Smith als o identifi ed a photo graph of a roll o f duct ta

pe in the k

itchen of 6853 South Dorche ster, two

photogr aphs of a piece of curmple d duct tap e on a mat tress at 6 853 S. Dorchester, as well as a photogra ph of a curled-up piece of duct tape ne ar 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 defe ndant as the man who shot her fatherNo. 1-06-0141

37

on January 20, 2004. On cross-examination, Detective Smith acknowledged that numerous people were arrested in connection with the agg ravated kidnaping. He stated that a man na med Mark Williams wa s never a

rrested . Detec tive Smith a lso testif ied that he “hear

d that [Mar

k Williams’ photograph] was put in a photo array ,” but indicated that he had “no personal knowledg e” of such an array

and that he has “never seen such a photo a rray.” On cross -examinat

ion, Dete ctive Smith

also ack nowledg ed 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 fee t tall. On cross-examination, Detective Smith also averred that Malik told him that he did not kn ow wh o d uc t t ap ed hi m, th at he wa s b ro ug ht to a b as em en t, an d t ha t h e w as ta ke n o ut 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 a nd Millard both identified codefe ndant Stev en Wi llia ms as i nvol ved in the ki dnapi ng. Detecti ve Smith fin ally

acknowl edged

that altho

ugh the Baker ’s van wa s recove

red, it was never dusted for fingerpr ints. He also stated that there was no phy sical evidence ( i.e. , fingerprints) ever recove

red linking defendant to the kidnaping. The State then r ested.No. 1-06-0141

38 B. Dire cted Ve

rdict as t o Codefe ndant Stev en Williams After the State rested as to codefendant Steven Williams, Steven presented no e vidence and instead moved for a directed verdict. The court granted the motion for a directed ve rdict finding that the State failed to meet its burden to show bey ond a reasonable doubt that Steven participated in the kidnaping. I n 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 r ecanted in open court. C. Defendants’ Cases in Chief a. Mark Wi lliams Codefendant Jeffrey

Campbell called Mark Williams as his first witness, and defendant adopted his testimony. Mark, ag e 24 yea rs old, testified that at about 7:25 p.m., on January 2, 2004, he w as “either sick o r on his wa

y to the hospit

al.” Mar k averr ed that a pproximate

ly s ix weeks later, he was stopped by the police in front of his house at 6411 South Evans Street and was take n to the pol

ice stati on locate d at 71st Street fo r questio ning. Ma

rk was su bsequen tly transfe rred to th e police station at 111th Street wh

ere two d etective s 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 e ach the detectives told him that he was “pointed out.” Mar

k stated th at he the

n told the p olice tha

t on Januar

y 2, 2004, he w as taken

to the emer gency room at Pr

ovidence Hospital b y hi s girlfr

iend Dan ielle Hoy because of a nose bleed and that he remained there for a t least four to five hours. Mark stated that after the policeNo. 1-06-0141

39

office rs went to the hospit

al, they releas ed him. Ma

rk aver red that after h is arres t he was in police custody

for a tota l of three day s. On cross-examination, Mark acknowledged that he ha s known both defendant and codefendant Jeffrey

Campbell from the neighborhood for a couple of y ears. b. Sergeant Paluch Sergeant Paluch next testified that on March 8, 2004, he showed L iz and Anthony Baker a photo ar ray in rega rd to the Jan

uary 2, 2004, ki dnaping . Accor ding to Se

rgean t Paluch, t

his photo arr ay included a photog raph of M ark Willia

ms. Serg eant Palu ch testif ied that b oth Anthony and L

iz identified Mark Williams as a participant in the kidnaping. For a second time in the trial proceeding s, the circuit court inquired sua sponte whether Mark Willia

ms was a su spect or

a filler in the ca se, and Se

rgean t Paluch r esponde d that he w as a suspect. c. Sergeant Deanne Owsia niak Serge ant Dea

nne Owsia

niak next te stified th at on Janua ry 2, 2004, sh

e was at t he 7th District police station, when a black female brought the B aker children to the station. The black female had indicated that she found the children on the street near 63rd and Ashland. Sergeant Owsiania k took the w oman’s in

formatio n and “a sked the c hildren if they were ok .” Acco

rding 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 L iz Baker. She stated that during the telephoneNo. 1-06-0141

40

conversation Liz did not tell her that the children had bee n kidnaped. Liz soon came to the police station and retrieved her children. On cross-examination, Sergeant Owsianiak acknowle dged that during the telephone

conve rsati on, Liz had st ated t hat he r chil dren we re mis sing. At this poin

t in the tri al proceedings, the circuit court sua sponte asked the witness w

hat, if anything, the

children told her when they were brought into the station, and Sergea nt Owsianiak responded that they only said that “they

were dropped off, they

were lost.” d. Officer Verdin Office r Verdin next testif

ied that a t about 7:3 0 p.m., on Jan

uary 2, 2004, he

was a uniformed police officer in a beat car when he answered a call at 6860 South Calumet Drive. Office r Verdin testifie d that at th at time he interviewed Antho ny a

nd Liz B aker wit

h respect to the aggravated ve

hicular hijacking. According to Of ficer Verdin, both Liz and Anthony indicated that there were only three offenders involved in the hijacking. e. Stipula

tions Off ered in D efenda

nt’s Case The par ties then s tipulated

that if ca lled to tes tify

by t he defe nse Offi cer Rios w ould testify that L

iz 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 B aker in April 2004 about the January 20, 2004, shooting, Anthony told him he knew defendant prior to this incident.No. 1-06-0141

41

The par ties furt her stipulated tha

t if calle d to testif

y by the defe nse, Det ective Sm ith would aver that as part of his investigation of the January 2, 2004, vehicular hijacking and kidnaping, he prepared a sea rch warrant of the building at 6835 South Dorchester . Detective Smith would state that as part of the complaint for the search warra nt he included a statement made to him on January 2, 2004, by Anthony Bake

r, in which Anthony stated that on January 2, 2004, Detective Smith showed him a photo array and Anthony identified def endant from that photo arr ay as “some one that h

e knew to be a drug dealer from the a

rea of 6 8th [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 stat

e that ce llular pho ne number

773-593- 1219 was r

egiste red to defendant and was active from Dec ember 29, 2003, through January 22, 2004. The keeper of records would also aver that cellular phone number 773-430-6383 was registered to L iz Baker and was a ctive be tween Ma y 26 , 2001, and July

20, 2005. T

he keep er of records would finall y testify that there we

re a series of telephone calls made be tween defendant’s and L

iz’s cellular telephones. f. Detective Neil Maas Detective Neil Maas next testified on behalf of defendant. De tective Maas stated that on Februa ry 7, 2004, he

had a tel ephone c onversa tion with An

thony Baker , where

in Anthony

told him that he “supplied product to the Williams [defendant] via his connection, Michael Raymond of Joliet.”No. 1-06-0141

42 g. Michael Ray

mond Michael Raymond testified that he has known Anthony B aker for about 20 years. He averred that Anthony ’s nickname is “Crack.” Ray mond also stated that about two yea rs ago he introduc ed Anthon

y B aker to d

efenda nt and Tor

ino Fonte z Williams at th e home of Betty Williams on 6 8th Street and Dorchester, in Chicago. Ray mond testified that defendant and Torino we

re try ing to buy

marijuan a from An

thony . Ray

mond also s tated tha

t he had pr

eviously purchased “little bags” of marijuana f rom Anthony. Ray

mond also explained that the word “product” is sometimes used to describe a certain quantity of marijuana. Raymond further a

verred that the day

after the kidnaping of the Bake r family, he spoke with Anthony, who told him that he had been kidnaped. Anthony also told Ray mond that he believed that defendant and Torino may have been involved but that he never saw their fa ces. Raymond testified that he later heard that Anthony ha

d 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 defe ndant was three y ears old because “my kids are cousins with [defendant] through my wife.” D. The State’s Rebuttal In re buttal, the State off ered thr ee stipula tions. The parties f irst ag reed tha t, if call ed to testify, an ag ent from U.S. Cellular would state that he or she examined the records of a c ellular telephone registered to defenda nt and that they showed that no c alls were made to a number regist ered to L iz Baker after D ecembe

r 30, 2003 . The par

ties next stip

ulated th at if called toNo. 1-06-0141

43

testify the keepe

r of records from Provident Hospital would aver that “a Ma rk Williams received emergency

treatment at Provident ER on January 2, 2004, and tha t 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 L iz Baker viewed that lineup and that she did not identify any

one from it. E. Tri al Cou rt Fin dings After hearing closing a

rgument by

both the State and defense counsels for defenda nt and codefendant Jeffrey

Campbell, the trial court found defendant guilty of aggravated kidna

ping (720 IL CS 5/10-2(a)(2), (a)(6) (West 2004)) and ac quitted him of all remaining charges (including the aggra

vated vehicular hijacking (720 I LCS 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 a ttempted m

urder ( 720 I

LCS 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 a ll charges brought ag ainst him. In doing so, the court specifically

found the testimony of Malik and Millard cr edible and the testimony of Anthony Baker not cred ible. The trial cou rt subseq uently sentenc ed defe

ndant to 25 ye ars’ imprisonme

nt for ag grava

ted kidna ping. De fendant now appe als. II. AN ALYS IS On appeal, defendant contends that (1) that the State fa iled to prove him guilty bey ond aNo. 1-06-0141

44

reasonable doubt; (2) the trial court erred in de nying his motion to quash the sear ch warrant and to suppress evidence; (3) the trial court erre d in denying his motion to dismiss the indictment; (4) the trial court abused its discretion when it found that 9-y ear-old Malik and 11-year-old Millard

were c ompetent

to testify at trial; a nd (5) the trial cou rt erre d when it p ermitted Detecti ve Smith to testify to a hearsa

y photo identification of defe ndant by Malik. As shall be discussed be low, we reverse the judgment of the trial c ourt by rea son of the substantive insufficiency of the testimony of the two

minor witnesses. H owever , in order to reach that ana

lys is, we must

first examine the merits of the other contentions raised by defendant in this appeal. 1. Motion to Suppress Evidence We first a ddress de fendant ’s conte

ntion that t

he trial c ourt err

ed when it denied h

is motion to quash the warrant and suppress evidence seized during the search of his grandmother’s house an d baseme

nt. Defe ndant ass erts that

the initia l and war rantlessentry

into his grandmother’s house and basement wa s illegal because his grandmother ne ver consented to the entry or sea

rch and because there wer e 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 w arrant was procured on the following morning, should have been suppressed as fruits of an illegal sea rch. For the reasons that follow, we disag ree. We first note that in denying de fendant’s motion to quash arrest and suppress evidence, the circuit court found both that defendant’s gra ndmother consented to the police entry into herNo. 1-06-0141

45

home and that exigent circumstances justified the police’s failure to pr ocure an arrest warra

nt . When reviewing a court’s ruling on a motion to quash the wa rrant and suppress evidence, we will not re

verse a trial cou rt’s den ial of defendant ’s motion to quash the

warran t and suppr

ess evidence unless the court’s factual finding s are clearly erroneous. People v. Henderson , 142 I ll. 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 i s 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 Un

ited State s prohibit p olice of ficers f rom making

warran tless, nonconsensual entries into a private residence, abse nt exigent circumstances. Foskey , 136 Ill. 2d at 74, 554 N.E.2d at 196 ; Payton v. New York , 445 U.S. 5 73, 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). I n other words, a s a general rule, the po lice nee d either a warra nt, the re sident’s c onsent, or probable cause coupled with exigent circumstances to lawfully enter a private residence and e ffectuate an arrest. Fo sk ey, 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. The refore, the question becomes whether entry into that home was prope r either because the entry

and search were consented to or because there were exige

nt circumstances present. We first address defendant’s contention that the police were not given consent to enter the house or search the basement. I n that respect, we first note that a person may waive hisNo. 1-06-0141

46

fourth amendment rights by consenting to a search conducted without a se arch warrant. People v. Harr is , 297 I ll. App. 3d

1073, 1083 , 697 N.E. 2d 850, 858 (1998). “ When a tria

l court is deciding whether consent was given ***, the circumstances must have been such that the police could have reasonably

believed that they ha

d been given consent to enter.” Henderson , 142 I ll. 2d at 299, 568 N.E.2d at 1254 . In ad di ti on , t he St at e b ea rs th e b ur de n o f p ro vi ng by a pr ep on de ra nc e o f t he ev id en ce th at th e c on se nt wa s g iv en vo lu nt ar il y ( Harris , 297 Ill. App. 3d at 1083, 697 N.E.2d at 858 ) and that it was more than mere “acquiesce nce 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 deter mined by the trial court from the totality of circ

umstances. 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 cour t was presented with clearly c onflicting testimony reg arding consent . On one hand, defendant’s gra ndmother, Betty, and he

r granddaughter Fallon both testified that on the night in question they hea rd the doorbell ringing and that when Fa llon went downstairs and opened the door, the police rushed into the apartment without permission and proceeded to search the a partment for defendant. On the other hand, Detective Smith testified that when he first arrived a t Betty’s home, he

knocked on the doo

r and Fa llon answe

red. De tective S mith aver

red that he identi fied himse

lf as a detective of the Chicago police depar tment 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 wasNo. 1-06-0141

47

defenda nt’s gr andmothe r, Betty . Detec tive Smith st ated tha t he then a sked Be

tty’ s permissi on to search the house for defendant a nd that she consented to that search. With respect to the entry and se arch of the basement, all three witnesses ag reed that when more off icers e ntered t he house from the b ack door , and Det ective Sm ith asked Betty if he could search the basement of the house, Be tty gave the basement key

to Fallon and told her to open the basement door for the police. In de nying def endant’ s motion to qu ash the w arrant and suppr

ess evide nce, 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 wit

nesses te stified th at “this w as a tumult uous entr y” where th

e 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. T

he trial court’s determination of credibi lity

will not lig

htly be distur bed on ap peal, unless it is clearly unrea sonable. Harris , 297 Ill. App. 3d at 1083 , 697 N .E.2d at 858 , citi ng Hernandez , 278 Ill. App. 3d at 551, 663 N.E.2d at 90. We find

nothing in the rec ord to supp ort the c onclusion that the tr

ial cour t’s choic e to believe the testimony of De tective Smith over the testimonies of Betty a nd Fallon Williams was clearly e rroneous. 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 va lid consent to a warrantless search of the house a nd garage was not c learly er

roneous, where officers testified, contra ry to the wife, tha

t they explained the situation to her and asked for her consent and that she wa s very coope rative, signed a consent form, moved the family ’s dogs to allow officers into the y ard and opened the lock onNo. 1-06-0141

48

the gates and the gara

ge 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 defenda nt voluntarily consented to the sea rch of his veh icle in a r esidentia l gara ge wassupporte d by

the testim

ony of the Sta

te’s witness that a consent form was voluntarily signed in defendant’s backyard, in the presence of his wife and friends, after officers informed de fendant of his rights, notwithstanding the testimony by all of the defense witnesses, including defenda nt’s wife and friends, that defendant was coe rced by police). Rather, we hold that the totality of circumstances supports the trial court’s conclusion that Betty conse

nted to the search. See Henderson , 142 I ll. 2d at 296-99, 568 N.E.2d at 1252-54 (holding that the totality of e vidence supported the conclusion that defendant’s mother conse nted to the polic e entry

of her a partmen t where t he police office r identif ied himself and ask

ed if defendant was home, and mother said defenda nt was inside the apartment and then stepped back from the open door and pointed toward defendant’s be droom).

“ Because a voluntary

consent to a warrantless search and se izure waives the constitutional privilege, the evidence derived there from is thus admissible at trial.” Hernandez , 278 Ill. App. 3d at 552, 663 N.E.2d at 90 . As such, we hold th at the cir cuit cour t did not er

r 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 I ll. 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 de

fendant and find them inapposite. In Johnson , the cir

cuit cour t grant ed defe ndant’s m otion to qua sh the ar

rest and to suppress evidence and the State appealed. Johnson , 99 Ill. App. 3d at 864, 425 N.E.2d at 1216.No. 1-06-0141

49

The issues were decided by the circuit court on a stipulation, without testimony. Johnson , 99 I ll. 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 y ears 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 wher e 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, opene d 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 “Sy rup.” 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 g randmother 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 scr een door, which had remained closed throug hout the conversation, and the police entered the house a nd placed defendant under arre st. 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 prese nted 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 he

ld that it was relevant that the officers never ac tually “asked pe

rmission to enter,”No. 1-06-0141

50

the house and that t he stipula tion was si lent with r

espect t o defend ant’s g

randmoth er’s “subjective state of mind *** upon which the matter of voluntariness is necessar ily based.” Johnson , 99 Ill. App. 3d at 866, 425 N.E.2d at 1217

. In a ddition, the appell ate cour t noted tha

t if it were to hold that the facts presented in the stipulation were sufficie nt to show consent, then this would mean that “merely opening a door without comment in response to a police office r’s statement that he wished to enter would constituted consent as a matter of law.” Johnson , 99 I ll. 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 re

lative credibility to be deter mined by the trier of f

act. Unlike in Johnson , where th e stipulat ion indica ted that n one of the

office rs ever asked pe rmission to

enter the house ( Johnson , 99 Ill. App. 3d at 866, 425 N.E.2d at 1217 ) , here, at the moti on to suppr ess he aring, 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 B etty if they could search for defendant inside the basement, Betty

gave Fallon the basement key s and instructed her to open the door for the police. As such, u

nder the present circumst ances, i t cannot b e said tha

t Betty merely “acquie sced to police authority.” Similarly, in White , the circuit court granted defe ndant’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 officer s accompanied defendant’s mother to defendant’sNo. 1-06-0141

51

brother’s residence. White , 117 Ill. 2d at 205, 512 N.E.2d at 679 . Defendant’s brother, Michael Loving, was ea

ting breakfast with his family , when he heard the doorbell ring. White , 117 Ill. 2d at 205, 512 N.E.2d at 679

. Loving then desce nded 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 L oving opened the door, the two detectives stepped around defendant’s mother and enter ed 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 L oving if defendant was at home, L oving 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 pa st them while they were on the stairs. White , 117 Ill. 2d at 205, 512 N.E.2d at 680

. The officers searched L oving’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 tr ial court that the totality of ci rc um st an ce s s up po rt ed th e f in di ng th at Lov in g d id no t v ol un ta ri ly c on se nt to th e p ol ic e e nt ry. White , 117 Ill. 2d at 221, 512 N.E.2d at 687

. In doing so, the supreme c ourt indicated that Loving opened the opa

que door leading to the street only for his mother, not knowing that the offices were waiting to push past her a nd enter the hallway

. White , 117 Ill. 2d at 221, 512 N.E.2d at 687

. Moreover, when the police officers ha d entered the hallway , Loving did not give them permission to go upstairs and in fact pushed past them to enter the apar tment first. White , 117 Ill. 2d at 221-22, 512 N.E.2d at 687

. In addition, the supreme court noted that “ [t]he factNo. 1-06-0141

52

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 off icers. See White , 117 Ill. 2d at 221-22, 512 N.E.2d at 687 . Instead, both of these witnesses indicate d that Betty had told F allon to see who was at the front doo r, and tha t when the

police a nnounce d their pr

esence to Fallon and she to ld her grandmother that it was the police, Be tty 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 attempte d to reac

h the upsta

irs apar tment ( White , 117 Ill. 2d at 221-22, 512 N.E.2d at 687 ) , Betty willingly g ave Fallon the key s to the basement and instructed her to open the door for the police. For all o f the af

orement ioned re asons, we

find, unli ke our ho lding be

low with re spect to the cre dibility

of the two

minor witnesses, th at the tri al court ’s concl usion that Betty consented to the search of both the apartment and the baseme nt was not clearly

erroneous. See Henderson , 142 I ll. 2d at 296-99, 568 N.E.2d at 1252-54 (holding that the totality of e vidence supported the conclusion that defendant’s mother consented to the police entry of her apartment where the police officer identified himself and asked if defe ndant was home, and mother said defendant was inside the apartment and then stepped back from the ope n door and pointed toward defendant’s bedroom). As such, we need not address the second and alternative g round for the trial court’s denial of defendant’s motion to suppress evidence, i.e ., the presence of exigent circumstances.No. 1-06-0141

53 2. Motion to Dismiss Indictment Defend ant next co ntends tha t the circ uit court e

rred when it deni ed his motio n to dismiss the indictment in case No. 04 CR 11378 because no evidence was prese nted to the grand jury

that would support the return of the indictment charging defendant with aggra

vated kidnaping (720 IL CS 5/10-2(a)(2), (a)(6) (West 2004)) and ag gravated vehicular hijacking (720 IL CS 5/18- 4(a)(2), (a)(3) (West 2004)) . Defen dant spec ifically contendsthat the o nly

evidenc e prese

nted to the grand jury

was the statement of Detective Smith that defendant “participate d” in the kidnaping. For the reasons that follow, we disag ree. Our supreme court has held that upon defendant’s motion to dismiss an indictment the circuit court “has inherent supervisory authority to review g

rand jury tra

nscripts and determine whether any

evidence was presented which tends to connect the accused to the offense char ged.” People v. Rodgers , 92 Ill. 2d 283 , 290, 442 N. E.2d 2 43-44 (1982 ), cit ing Peopl e v. L inzy , 78 I ll. 2d 106, 109, 398 N.E.2d 1 (1979) and People v. Lawson , 67 Ill. 2d 449, 455, 367 N.E.2d 1244 (1977). T he gra nd jury is expecte d to indict a

n accused only

if it dete rmines tha

t there is probable cause for believing that the a ccused has committed an offense. Rodgers , 92 Ill. 2d at 288, 442 N.E.2d at 242. According to our supreme cour t, an indictment will withstand scrutiny if the transcript of the grand jury proceedings reveals that “some e vidence 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 ther e is some evidence presented to the grand jury from which defendant’s illegal conduct c an be inferred, the reviewing court will not inquire into the “adequacy of that evidence”). “Some evidence” does not meanNo. 1-06-0141

54

that the Sta

te must pre sent the g

rand jur y w ith evidence as to each element of the off ense, but rather means tha

t the evid ence sub mitted must b e such tha t it “tendsto connect” the defendant to the crime. See Rodgers , 92 Ill. 2d at 290, 442 N.E.2d at 244 . “This ev idence w hich conn ects may be any

direct or circumstantial evidence from which a n 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” pre sented to the grand jury which tended to connect” defendant to the aggravated kidnaping

and aggravated ve

hicular hijacking with which he was charg ed. 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 Bake

r, his wife, Liz, and three children unde r the age of 13 (Millard Bake r, 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 acknowledge d that Liz Baker fled the sce

ne but stated that the offenders took Anthony and the three children. Detecti ve Smith av erred t hat the children w ere ultimately releas ed and tha

t Anthony was “ab le to get out o f the clu

tches of his kidnap ers.” Mo st importa ntly , Detec tive Smith te stified th at Malik Baker viewed a photo arr ay and positi vely

picked ou

t defend ant as an

offende r. Under these circumst ances, w e canno t find that the trial court er red in de nying def endant’ s motion to di smiss the indictment. See Rodgers , 92 Ill. 2d at 290, 442 N.E.2d at 244

.

3. Competency of Malik and Millard to Te stify at Trial Defendant next contends that the trial court abused its discretion in finding that 9-y ear-No. 1-06-0141

55

old Malik and 11-yea

r-old Millard Baker were compete nt to testify at trial. We disagree. Pursuant t

o section 115-14 of

the Code o f Criminal

Procedu re of 196 3 all witne sses, regardless of age

are presumed competent to testify . See 725 IL CS 5/115-14(a) (West 2000); see also People v. Sutherland , 317 I ll. App. 3d

1117, 1124 , 734 N.E. 2d 1007, 10 13 (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 themse lves concerning the matter at hand, so as to be understood, or (2) incapable of under standing the duty of a witness to tell the truth. See

725 I LCS 1/1 15-14(b) (1), (b) (2) (West 2000). Th

e burden of provin g that a

witness is not competent to testify falls upon the par ty challenging the witness’s ability to testify . See 725 IL CS 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 deter mination absent a clear abuse of discretion. Sutherland , 317 Ill. App. 3d at 1125, 734 N.E.2d at 1013 , citi ng 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 we re incompet ent to test ify at trial. With respe ct to Malik Baker , defend ant conte

nds that the totality of Ma li k’ s t es ti mo ny, in cl ud in g t he co mp et en cy voir dire , initiated by the State and continued sua sponte

by the trial court, a s well as his testimony and demeanor during trial, indicated that he lacked sufficient intelligence to testify . Specifically, def endant 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 rec ord that Malik refused to answer a question. More importantly, defenda

nt contends that Malik himself testified that he did not know the differenceNo. 1-06-0141

56

betwee n the truth

and a lie and that h

e testifi ed that he

“forg ot” wher

e he wasand why

he was in the courtroom. Contrary to defe

ndant’s contentions, we find insufficient support in the record to disturb the trial court’s determin ation tha t nine-y ear-ol d Malik wa s a compe tent witne ss. 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 imper fect response to a quest

ion is insuf

ficient t o invalida te a find ing of c ompetency in

light of the totality of the responses.” Sutherland , 317 Ill. App. 3d at 1125, 734 N.E.2d at 1013

. When looke d at in its entirety, Malik’s testimony at the competency

hearing revealed, albe

it after prodding by

the State and the circuit court, that he displayed a threshold grasp of the differ ence between telling th e t ru th an d l yin g. Al th ou gh Ma li k i ni ti al ly responded in the negative to the State’s question of whether he knew t

he diffe rence b etween

the truth a

nd a lie, h e exhibited

his under standing

of this differe nce whe n immediat

ely therea fter he testifie d that the

prosecu tor would b e ly

ing if sh e said that she w as wear

ing a wh ite shirt w hen in fa ct she wa s wearing a blac k one. I n addition , in response to the circuit court’s further questioni ng, Mali k indicat ed that if “something really happened” and he said that it happened, that would be the truth, a nd that if “something did not really happe

n” but he said that it did, this would be a lie. Malik also answered the following circuit c ourt’s qu estions:

“THE COURT: How many f ingers do I have

up now? MALI K: Two.No. 1-06-0141

57 THE COURT : The rec ord will sh ow that the Court has t

wo fing ers up. I

f I to ld you this was three f

ingers would that be a truth or a lie? MALI K: A lie. THE COURT: If I

told you that it was two would that be the truth or a lie? MALI K: A truth. THE COURT : Okay . Do y ou know wh at happe ns if y ou tell a li e in cour

t? MALI K: No. THE COURT : No. You k now y ou could g et in troub le for it i f y ou tell a li e in court? MALI K: Yes. THE COURT : You belie ve me whe

n I sa y th is? MALI K: Yes ” Under these circumstances, as alrea dy noted above, w e find that the totality of Malik’s re sponses at the competency

hearing was sufficient to indicate that he kne w the threshhold difference between telling the truth and ly ing. See Dempsey , 242 Ill. App. 3d at 584, 610 N.E.2d at 217-18 (nine-ye ar-old sexual abuse victim found competent to testify , even though when questioned whether he knew the differenc e 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 therefor e wrong to tell a lie); seeNo. 1-06-0141

58

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 prosec ution for attempted murder and battery with a firearm, even though she stated that “telling the truth made people ‘ha ppy’” and ly

ing made them “‘mad,’” where she demonstrated the knowledge of the difference between te lling the truth and lying

by stating that she thought it was wrong to lie and that is she lied she would g et a “‘whopping’”). We nex t t urn to def end ant ’s c ont ent io n t hat Mi ll ard was in com pet ent to tes ti fy at tri al. 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 bec ause of such incompetence. As such, we find that defenda nt has waived this issue for purposes of appeal by failing to pr

operly pre serve the error for review . See People v. Enoch , 122 Ill. 2d 176, 186- 87, 522 N.E.2d 1124, 1130 (1988) (holding that in ord

er to pre serve a

n issue fo r appea l, defendant must first make an objection to the alleged e rror at trial and then raise it in a posttrial motion). More ove rriding ly, we find th at waive r is prope r becau se defe

ndant hasfailed 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) (providi ng that a rgumen ts made in support of issues raised on appeal “shall contain the contentions of the a ppellant and the reasons therefor, with citation of the authorities and the pag es of the record relied on” and noting that “[p]oints not argued are waived” for purposes of a ppeal); see also People v. Ramirez , 98 I ll. 2d 439, 472, 457 N.E.2d 31, 47 (1983). In tha t respect, we note

that def endant me

rely interjects his argument tha

t Millard w as incomp etent in th e middle o f his cont

entions wi

th respe ct toNo. 1-06-0141

59

Malik’s incompetency, by simply contending that “the y” (being Malik and Millard

) were incompetent because “they ” were nonresponseive to questions and appear ed to lack the appreciation of the role of the parties in the courtr oom. Defendant offers no further explanation or argument with respect to Millard’s lack of c ompetency. As such, because of the rule that all witnesses, reg ardless of age, are pr esumed competent to testify at trial (see 725 I LCS 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 weig ht of the substantive testimony of these two witnesses wa s sufficient to support the trial court’s finding of guilt. 4. Admissibility of Detective Smith’s Prior I dentification Hearsay

Testimony Defendant next contends that the trial court erred in admitting De tective Smith’s hearsay testimony reg arding Malik Baker’s photo arr ay identification of de

fendant, where Malik testified before Detective Smith but was never questioned with respect to this photo array. Def endant specifically c ontends that Malik, as the declarant of the out-of-court identifica tion, was never made available for cross-examination concerning the statement, because he was never a sked about the statement during direct examination. While, for the reasons discussed below, we find this evidence to be of insuff icient weight to have su

bstantive effica cy to support

the finding of the

trial cou rt, we ne verthel ess find th at itNo. 1-06-0141

60

satisfies the requirement of section 115-12 of the Code of Criminal Procedure (725 IL CS 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 identifica tions in certain circumstances. See 725 IL

CS 5/115-12 (West 2000). Section 115-12 of the Code of Criminal Procedure, titled “Substant ive Admiss ibility

of Prior I dentific ation” sta

tes in per tinent pa rt: “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 I LCS 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 identifica tion before a third party

may offe r testimony on that matter. See People v. Lew is , 223 Ill. 2d 393, 402-06, 860 N.E.2d 299, 305-07 (2006). In Lew is , at defe

ndant’s t rial for the unlaw ful delive

ry of a cont rolled su bstance , Clem, the State’s key witness testified tha t she purchased drugs from defe ndant and made an in-court identification of defendant. Lew is , 223 Ill. 2d at 397, 860 N.E.2d at 302 . Clem, how ever, di d not testify to her prior photo identifica tion of defendant. Lew is , 223 Ill. 2d at 397 , 860 N.E.2d at 302 . Subsequent to Clem’s testimony, the State called a police de tective who testified that priorNo. 1-06-0141

61

to trial he showed Clem a photograph of defenda nt and that she immediately identified the photograph as that of the man who had sold her coc aine the previous day

. Lew is , 223 Ill. 2d at 398 , 860 N.E.2d at 303

. On appea l, 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. Lew is , 223 Ill. 2d at 400, 860 N.E.2d at 303

. Specifically, def endant contended that Clem was not subject to cross-e xamination o n her pri or photo id entifica tion beca use the Sta

te had fa iled to raise thi s issue on d

irect exa mination, t

hereby barring defenda nt from ra ising thisissue on c

rossexamination. Lew is , 223 Ill. 2d at 403-04, 860 N.E.2d at 305-06

. The supreme court disagreed, f irst 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 declara nt “testify on the out-of-c ourt identification before a third party may testify

about that identification.” Lew is , 223 Ill. 2d at 403, 860 N.E.2 d at 305. In a

ddition, the suprem

e court f ound that C lem was su

bject to crossexamination as required under section 115-12 of the Code of Criminal Procedure, be cause she was “placed on the witness stand, under oath, and re spond[ed] willingly to questions.” Lew is , 223 I ll. 2d at 404, 860 N .E.2d at 306. More overridingly , the supreme court rejected defenda nt’s argument that he was prevented f rom 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 t he witnes s for cr

oss-examin ation af

ter the d etective testifie d about he

r photo identification. Lew is , 223 I ll. 2d at 404, 860 N.E.2 d at 306.No. 1-06-0141

62

Applying the pr

inciples articulated in Lew is to the case at bar, we find that the trial court committed no error in permitting Detective Smith to testify regarding Malik Ba

ker’s photo array identification of defendant. Just as in Lew is , in the pr esent ca se, Malik

Baker was call ed as a witn ess on behal f of th e Stat e and u nder o ath te stif ied to the ci rcums tances of the kidn aping, making an in-court identification of defendant. Ma lik, however, was not questioned regarding his prior photo array

identification of defendant. I nstead, Detective Smith testified later in the trial proceedings that on January 3, 2005, he went to the Baker residence , where he showed Malik a ph oto arra

y including

a photog raph of d efenda nt. Acco rding to Detecti ve Smith, Ma

lik picked defendant out of that photo array . Because Malik was present at trial, testified unde r 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 arra y identific ation test

imony pursuant to section

115-12 of

the Code o f Criminal

Procedu re (725 I LCS 5/115-12 (West 2000)). See Lew is , 223 I ll. 2d at 404, 860 N .E.2d at 306. 5. Sufficiency of

Evidence We lastly address defe

ndant’s contention that the State failed to prove him guilty of aggravated kidnaping

by acc ountability bey

ond a reasonable doubt. When consi derin g a challenge to the sufficiency of the evidence, the relevant question on appea l is whether, after viewing the evidence in the light most favorable to the prosecution, any r

ational trier of fact could have found the essential elements of the crime bey ond 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 c ase at bar to carefully examine the evidenceNo. 1-06-0141

63

while giving due consideration to the fact that the c ourt *** saw and heard the witnesses.” People v. Smith , 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999). “I f, however, after such consider ation we a

re of the opinion tha

t the evid ence is i nsuffic ient to est

ablish defendant ’s guilt beyond a re asonable doubt, we must reverse the conviction.” Smith , 185 Ill. 2d at 541, 708 N.E.2d at 369, citi ng 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 dra wn from the evidence are the re sponsibility of the trier of fact , and the trier of fact is entitled to great weight on these matters, its deter mination is nevertheless not conclusive

. Smith , 185 Ill. 2d at 541, 708 N.E.2d at 370 . Rather, we will

revers e a conviction whe

re the evidence

is so unrea sonable, improbab le, or uns atisfac tory 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 kidna

ping under accountability principles. I n Illinois, a person is legally accountable for the criminal conduct of another when “[e ]ither bef

ore or du ring the commission

of an off ense, 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 I LCS 5/5-2(c) (West 2002). To prove that defendant was accountable unde r section 5-2(c) of the Criminal Code of 1961 (Criminal Code) (720 IL

CS 5/5-2(c) (West 2000)), the State was required to establish bey ond a reasonable doubt that (1) defendant solicited, order ed, abetted, agreed or a

ttempted to aid another in the planning or commission of the crime; (2) defendant’s pa rticipation took place before orNo. 1-06-0141

7 In tha t respect, we note

that altho

ugh the record reveal s that Anthony

testifie d that whil e in the second van, he heard someone ask wher e the offenders should take him and the children, and he heard “Sedgwick” sa y “take the

m to grandma’s house,” Anthony was never questioned on how he recognized this voice or who “Sedg wick” was. Rather, throughout the trial, Anthony conti nued t o main tain t hat he did n ot kn ow, se e or mee t the d efenda nt pri or to t he sho otin g, which took place 18 day s after the kidnaping, thus negating that he had any

basis for any voic e recognition of defendant. 64 during t he commiss ion of the

crime; a nd (3) the defenda nt had the concurr ent inten t 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 ag gravated kidnaping is the testimony of the two minor c hildren, 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 aggravat ed kid napin g. 7 In addition, the State conceded dur ing oral argument that there wa s no physical evidenc e 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 theref ore 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 throug h vigorous leading questions, was riddled with internal inconsistencies and self-contradictions, was hesitant, vag ue and, insofar as it involved the time of their first meeting defendant, impeached by the testimony of other witnesses a nd the telephoneNo. 1-06-0141

65

record s at trial . As such, this testimo ny w as substa ntially unrelia ble and to o tenuous t

o sustain the trial court’s finding of guilt. We first consider Malik’s initial opportunity to observe def endant’s involvement in the crime and find his te stimony in this reg ard to be

consiste ntly contrad ictory . The re cord reveals that Malik first testified that immediately after the initial carjacking the kidnapers, none of whom he identified as defendant, taped his ey es with duct tape. Malik next testified that he did not recall getting out of their van, but did remember g etting into another car. Malik testified that he had tape on his eye s 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 reme mbered that there were three pe ople in the car with him, but could neither recall if they were “boy s or girls, or their ages.” Malik recalled, however, that the woman’s name was “Cry stal Long,” and stated tha t “this lady” took him to the police station. On cross-examination, he admitted that the police told him Crystal’s na me. Malik then changed his testimony and stated that two men were inside the car and that they were “dropped off” before he wa s taken to the police station. When asked by the State if he saw the two men that got “dropped off,” Malik indicated that he ha d not. Further more, Ma lik’s test imony as to whe

re he actually

saw def endant isglarin gly contradictory . While Malik initially testified that he saw defendant inside a basement, he admitted at trial that his eyes we re taped, that “he could not see” inside the baseme nt and that therefore he did not see defendant ther e. Malik changed his testimony again during trial and stated tha t he could see insid e the bas ement an d that he s aw defe ndant the re. Malik finallyNo. 1-06-0141

66

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 fr om 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 “Sedg wick,” and that he knew it was “Sedgwick” “because of

his voice.” We first note that the photograph of this car was ne ver introduced into evidence at trial, and is not part of the recor d on appeal. In addition, we note that althoug h Malik expla

ined that he reco gnized de

fendant ’s voice

because he had jus t heard it inside the basemen t, when a sked by

the State if defe ndant had spoken to h

im or to any

one 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 de fendant 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 intro duced him self insid e the ca r as “Sed gwick. ” Howev er, Malik then cha nged hi s testimony and stated that he knew defendant’s name because the police told him defendant’s name was “Sedgwick.” Malik then cha nged course a third time and explained that he knew the name because he had heard his fa ther mention “Sedgwick’s name” once a t home “before any

of this happened.” In this respect, we fur

ther note that the court chose not to believe the testimony of Anthony, his wife, L

iz, and their eldest daughter, Sade Baker , with respect to their identification of defendant as the shooter in the attempted murder ca se, because they were impeached byNo. 1-06-0141

67

telephone records and the testimony of Michael Raymond, which indicated there was an ongoing relationship between Anthony and defendant. Arguably , Malik’s statement that he had not met or seen defendant prior to the incident would have bee n impeachable by

this same evidence, as there would be no reason by which to treat Malik’s testimony diffe rently, by the mere fact that he was a minor at th

e time of t

he incide nt. Moreover, we find little value in Malik’s identification of defendant’s g randmother’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 ey es inside a basement, and then went on to identify photogra

phs of that basement and the chairs and bicy cles inside it. Nevertheless, on cross-examination, Malik testified that the duct tape was never taken off his e yes while inside the basement. In addition, Malik stated that somebody had to help him walk out of the basement because his ey es were duct taped and he could not see. When asked how he could then identify the bicycles a

nd chairs in the photographs of the basement, Malik first bec ame unresponsive, then stated that the police had showed him photographs of the items that were inside the basement. Malik then changed course a nd averred that his eyes were “taped only a little bit” and that therefore he could see inside the baseme nt. 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 tria l court’s finding. The record reve als that when Malik was asked if he would look around the courtroom to see if he c ould recognize any one thatNo. 1-06-0141

68

was present during the kidnaping, Malik re sponded 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 y ou want to stand up a

nd look ar

ound the c ourtroom ? MALI K: No. THE STATE: Are y ou scared? MALI K: No. THE COURT : You may try some more, just be careful of how you do it but you can exp lore this a l ittle bit. THE STATE: Malik, can I see y ou look up and look at the people in the courtroom that are sitting here? MALI K: Yes. THE STATE : Can y ou look ar ound at all the peop le in the c ourtroom ? MALI K: Yes. THE STATE : Did y ou look at a ll the peo ple in the courtro om? MALI K: Yes.No. 1-06-0141

69 THE STATE: Do you see anybody here today

that you saw bac

k on that date? MALI K: No. THE STATE: Are y ou looking around at all the people that are here ? DEFENSE COUNSEL: Objection, y our Honor. THE COURT: Overruled MALI K: Yes. THE STATE: All around? MALI K: Yes.” (Emphasis added.) After Ma lik alrea dy f ailed to id entify defenda nt in cour t on these two occa sions, late

r in his testimony, Malik change d course and ultimately ma de an in-court identification in the following inconsistent manner. When the State asked Malik whether he ever saw def endant’s face, Malik first stated “y eah-no.” The following colloquy between the State and Malik then occurred: “T HE ST AT E: Do you se e S ed gw ic k [ de fe nd an t] in th is co ur tr oo m t od ay?

MALI K: No. TH E S TA TE : D o yo u s ee Se dg wi ck [d ef en da nt ] i n t hi s c ou rt ro om to da y? MALI K: No. THE STATE: Did you look around? MALI K: Yes.No. 1-06-0141

70 THE STATE : You looke d all around this ro om? MALI K: Yes. DEFENSE COUNSEL: Objection. TH E S TA TE : A nd you do n’ t s ee Se dg wi ck [d ef en da nt ] h er e t od ay? MALI K: Yes. THE STATE : You do se e him? MALI K: Yeah. THE ST ATE: C an you poi nt to where h e is si ttin g? MALI K: Right there. (Indica tion). THE STATE: Which one? MALI K: That one. TH E S TA TE : Y ou re co gn iz e s om eb od y? DEFENSE COUNSEL: Objection, she aske d– MALI K: Yeah.” At this poin

t in the tri al proceedings, the circuit court interrup ted and a sked Mali k to stand i n front of the person that he was pointing to, whereupon, Ma lik left the witness stand and stood next to defendant. Under these circumstances, we find that Malik’s hesitant a nd vacillating identific ation, en gende

red by the State ’s relen

tlessly leading questions , clear

ly la cks relia bility to sustain the judgment.No. 1-06-0141

71

As indicated above, the foregoing reasons which rendered Malik’s in-court identifica tion unreliable and insufficient to support the trial court’s finding per meate and also reflect on the unreliability of his alleg ed prior photo identification to which Detective Smith testified at trial. Becau se Malik w as never questione d and nev er testif ied reg arding

the circumstance s 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 f irst note the contradictions in Millard’s identification of defendant’s grandmother’ s basement, where he was alleg edly kept during the kidnaping. Millard initially testified that after the initial carjacking, he wa s 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 base ment, he nevertheless testified that while he was inside the basement, he could not see beca use his eyes we

re covered with duct tape. Millard a lso aver red that he had no t been ab le to walk from the b asement

to the ca r becau se his eyes we re 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 beca use “his eye s were taped.” We similarly find Millard’s in-court identification of de fendant troubling in light of Millard’s answers to the following questions posed at trial. When asked if any one had shown him photog

raphs of any of the thr ee defe ndants pr esent in th

e courtr oom at tria

l, Millard first stated that he had seen the photographs “a few minutes ago” and “befor e court.” Millard, however, then changed cour se and averred that he had not seen those photog raphs earlier in theNo. 1-06-0141

72

day. Millard cha

nged his testimony for

a third time and stated that he could not remember if he had ever been shown photographs of a ny of the def

endants before trial. In that respect, we f ind releva nt that alt hough Mi llard wa s older th an Malik a t the time o f the kidn aping, accord ing to Detective Smith’s own testimony, unlike Malik, Millard was neve r asked by the

police to make a photo identification, or for that matter, any type of identifica

tion of defendant, immediately after the kidnaping or at any

time prior trial. In addition, when ask ed at tria l 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 defenda nt and asked him if “ this [was] the man.” (Emphasis added.) The record reveals that

when first asked if he saw any one in the courtroom who was present during the kidnaping, Millard stated that he did, and the following in-court c olloquy then occurr ed: “THE STATE: Who did you see? MIL LARD: A man. THE STATE: What man did you see? Do you think you can point out the man that you saw? MIL LARD: (I ndication). THE COURT: Ask a little, she’s pointing towards the jury box I want to know exactly who she is pointing to. THE ST ATE: H e is po inti ng.No. 1-06-0141

73 THE COURT: Who he is pointing to, excuse me. THE STATE: Do you want to stand in fr ont of the person that you sa w? MIL LARD: No. THE COURT: Well, you can descr ibe it verbally a little better. THE STATE: Can– THE COURT: At this point I know where in the jury box. But you can g o ahead. THE STATE : Was it this man? MIL LARD : Yes. THE COURT : The rec ord will r eflect t hat the wi tness is ide

ntify ing [def endant] in open court.” (Emphasis added.) The State nevertheless argues that the inc onsistencies in the testimonies of Malik and Millard were minor and that the credibility of witnesses rests within the purview of the trier of fact, w ho in this case fo und t he tes timo nies c redib le. W e ackno wledge 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). Howeve r, in the preset case, the inconsistencies and contradictions and othe r vulnerabilities in Malik’s and Millard’s testimonies were major, rather than minor, and, in fact, mate rially essential to the ident ifica tion of defe ndant as a par tici pant i n the k idnap ing. Our supr eme cour t has previously

held that a convic tion cann ot be susta ined on doubtful,No. 1-06-0141

74

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 r epeated 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 def endant shot victim was not credible and therefore insuffic ient to sust

ain defe ndant’s c onviction

of murde r, wher e witness ’s testimo ny t

hat victim came out of bar alone, that the shooter came out of ba r a few seconds later, and that victim was standing alone when he was shot was contradicted by testimony of bartender and victim’s companio ns, witnes s’s cre dibility was rep eatedly

impeached with sig

ned state ments she gave to defense investigator five months before tria l, and witness had a motive to falsely implicate the defenda nt); 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 de fendant for aggr

avated indecent liberties with his stepdaughter, where the victim’s testimony was fraught with inconsistences and contrad ictions); People v. Williams , 65 Ill. 2d 258, 266, 357 N.E.2d 525, 528-30 (1976) (reversing conviction for murder a nd attempted armed robbery for want of sufficiency

of evidenc e where

the testim

ony of the sta te’s only witness w as “so tho

roughly impeached that, absent very

substantial corroboration, it could not support a finding of guilt”; the court noted that althoug h the witne ss who wasonly 15 y ears of

age a t the time o f the inc ident con sistently testifie d that def

endant w as the ind

ividual who fired th

e gun, h e “made inconsiste

nt stateme

ntsNo. 1-06-0141

75

*** with respect to virtually eve ry other important seg

ment of his testimony”). Given the serious internal inconsistencies and contradictions in Malik’s and Millard’s testimonie s, as well

as their r epeate d and con

tinued he sitancy

and relu ctance

to respond to questions while on the witness stand, in the present case, we find that no reasona ble trier of fact could have found their identifications to be credible or reliable . Accordingly , absent any corroborative evidence of defe ndant’s presence at the scene of the crime, we find that the testimonies of Malik and Millard were not sufficient to prove defendant g uilty bey ond 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 judg e assumed the role of prosecutor. Reversed. McBRIDE, P.J., and O’MAL LEY, J., concur.No. 1-06-0141

76 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT (Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form THE PEOPLE OF THE STATE OF IL LI NOIS, Plaintiff-Appellee,

v. SEDGWICK WIL

LI AMS, Defend ant-App ellant.

______________________________________________________________________________________________________________ No. 1-06- 0141 Docket No. Ap pellate Co urt of Illino is COURT Firs t Dis tri ct, SIXTH Divisi on Opinion File d Jun e 20, 2008 (Give month, day and year)

______________________________________________________________________________________________________________ J USTI CE J OSE PH GOR DON DE LI VERE D THE OP INI ON OF THE C OURT: JUSTI CES 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 i n margin: APP EAL from the Circuit Court of Cook Ap pea l from the Circu it Cou rt of Co ok C ounty; County ; the Hon___ Judge Presiding. Th e H on. James B. Linn Judge pre siding..

__________________________________________________________________________________________________________________________ Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR APPELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : FOR APPELL ANT: Robert A. Fisher, Robe rt A. Fis her, Ltd., 20 South Clark St., Suite 700, C

hicago, IL

60603 Smith and Smith of Chicago, FOR APPELL EE: Richar

d A. Dev ine, State’ s Attorne

y, and J ames E. Fitzge

rald, Sam uel Shim a

nd Anjana Hansen, Assist ant State’ s Attorne

ys, of Counsel, Cook

County, Ri

chard J. Da

ley Ce nter, Rm . 309, Chicag o, IL 60602

_____________________________________________________________________________________________________________ Add attorne

ys for thirdparty a ppellants a

nd/or appellees.No. 1-06-0141

77