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People v. Calhoun

Court of Appeals of Illinois, First District, Second Division

December 13, 2016

KENNETH CALHOUN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 01 CR 25785, Honorable Evelyn B. Clay, Judge Presiding.

          MASON JUSTICE delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Presiding Justice Hyman dissented.


          MASON JUSTICE.

         ¶ 1 Following a 2005 bench trial, defendant Kenneth Calhoun was convicted of the first degree murder of Ardeen Adams and sentenced to an aggregate term of 40 years' imprisonment. Calhoun appeals from the circuit court's order denying him leave to file a second successive pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contends that his petition presented a colorable claim of actual innocence based on the attached affidavits of Robert Evans, Bridget Banks, and William Robinson, the State's eyewitnesses, recanting their trial testimony. We affirm.

         ¶ 2 On August 27, 2001, members of the Gangster Disciples street gang were playing a dice game near 9337 South Evans Avenue in Chicago. At about 10 p.m., a white car approached the group, and three men inside the car began shooting at the dice players. As a result of the shooting, Adams was killed, and Anton Moore and Matthew Shorts were wounded. Calhoun and codefendant Kevin Smith, who Evans, Banks, and Robinson identified as two of the shooters, were charged by indictment with multiple counts of first degree murder, attempted first degree murder, and aggravated battery with a firearm.

         ¶ 3 At a joint but severed bench trial, Evans, Banks, and Robinson provided similar eyewitness accounts of the shooting. Evans, a former Gangster Disciple, testified that, during the evening of August 27, he was playing dice with a group of friends, including the victims Adams, Moore, and Shorts, under a street lamp near the intersection of South Evans Avenue and South Lyons Avenue. At about 10 p.m., a white car approached the group and slowed down. Evans, who was about 12 feet from the passenger side of the car, could not identify the driver of the car but recognized Calhoun in the rear seat and codefendant Smith in the front passenger seat. Prior to the shooting, Evans had been friends with Calhoun for about 9 or 10 years and Smith for at least 12 years, despite their membership in rival gangs that were "at war" (Calhoun and Smith were members of the Mickey Cobras street gang). Evans testified that Calhoun started shooting from the back seat of the car, while Smith shot from the front passenger seat. The driver was also shooting from the driver's seat. Evans ran in front of the car and heard 30 to 40 shots. Evans could not locate Adams after the shooting but saw that Moore was shot twice in the back.

         ¶ 4 Shortly after the shooting, Evans spoke with Chicago Police Detectives David Fidyk and Scott Rotkovich about the shooting and told them that Calhoun and Smith were the shooters. Evans later identified Calhoun and Smith from separate lineups at the police station. Evans also identified Calhoun and Smith in open court.

         ¶ 5 Banks testified that on August 27, 2001, she walked from her house to the group playing dice to ask Adams, her boyfriend at the time, to come home. Adams refused, and Banks began to walk back to her house, located about two blocks away. As Banks walked to her house, she saw a white car approach the group and heard gunshots. During her testimony, Banks testified that she "thought" she saw Smith in the front passenger seat of the car, but that she was not sure. Banks denied seeing Calhoun in the car. Banks admitted telling detectives that she thought she saw Smith in the car. She also admitted identifying Smith from a photo array and lineup. Banks's version of the shooting was reduced to writing by assistant State's Attorney (ASA) Jim Lynch. Banks admitted reading and signing the statement.

         ¶ 6 When the State confronted Banks with her statement at trial, she denied that she had identified Calhoun as one of the shooters. Banks testified that she, Robinson, and Evans had smoked marijuana before speaking to police. Banks was impeached with her grand jury testimony, in which she had identified Calhoun as one of the shooters. She then admitted that she had identified Calhoun from a lineup and that she told a detective that Calhoun was in the back seat but that he was not shooting.

         ¶ 7 On cross-examination, Banks stated that she had known all along that Calhoun and Smith were not the shooters but that she had told police that they were in order to seek revenge against them for a gang dispute. Banks also stated that the lighting conditions at the time of the shooting prevented her from seeing who was inside the car. Banks testified that she saw Evans purchase crack cocaine and marijuana from Adams about 30 minutes before the shooting. Banks also testified that, although she had lied in front of the grand jury, she was telling the truth at trial.

         ¶ 8 Robinson testified that he was familiar with Calhoun and Smith because they all attended the same school. On the night of the shootings, Robinson was among the group of dice players and saw a white car with three men inside approach. The people inside the car began shooting. Robinson testified that it was too dark to identify the shooters. Robinson admitted that he spoke with detectives at the police station. He stated that he told the detectives that he did not recognize any of the men in the white car. Robinson denied telling police that Calhoun and Smith were the shooters. He also denied viewing a lineup at the police station.

         ¶ 9 The State confronted Robinson with a statement he made to police that had been reduced to writing in which he indicated that he saw Calhoun in the back seat of the car holding a gun. Robinson admitted that he had signed the statement but testified that he did so only because he had been handcuffed to a rail and was told that he could leave the police station if he signed the statement.

         ¶ 10 Detectives Fidyk and Rotkovich and ASA Lynch, who interviewed Banks and Robinson, testified about the circumstances surrounding their statements and lineup identifications of Calhoun and Smith. The testimony of the detectives and ASA Lynch confirmed that both Banks and Robinson had positively identified Calhoun and Smith as two of the shooters. The detectives and ASA Lynch also testified that Robinson was not handcuffed or threatened that he would be locked up if he did not provide a statement.

         ¶ 11 Calhoun and Smith then presented evidence in their defense, each adopting the evidence presented by the other. The parties stipulated to the grand jury testimony of Lovie Brown, Smith's girlfriend, which was read into the record. Brown testified before the grand jury that Smith had been residing with her and her sister Erica for a week and a half while he looked for a job. On August 27, 2001, Brown was scheduled to work from 3 p.m. to 11 p.m., and she left the house at about 2:15 p.m. When she left, Smith was watching television at the house. When Brown arrived home from work at about 11:30 p.m., Smith was lying in the living room watching television. Brown's sister was also home and asleep in bed. When asked if she knew where Smith was at about 10 p.m., Brown stated that she "supposed" he was at her house.

         ¶ 12 Helen Banks, Bridget Banks's mother, testified that on August 27, she was at her home, which was located 30 to 40 feet from the scene of the shooting. At about 8 p.m., Helen was on her front porch, looking in the direction of Adams and trying to get his attention so he could go to the store for her. She saw a beige four-door car approach the area and heard gunshots. She stated that there were three light-complected men in the car and that Calhoun was not one of them. Helen testified that she had known Calhoun for "quite a while" because he had grown up in the neighborhood. She also testified that at 8 p.m., it was still light outside so she was able to see well enough to know that Calhoun was not one of the passengers inside the car. Helen testified that she did not speak to police on the night of the shooting because she did not want to be involved. She stated that she decided to come forward because she did not want to see someone go to jail for something he did not do.

         ¶ 13 On cross-examination, Helen testified that when people in the neighborhood started saying that Calhoun and Smith were the shooters, she started to speak up and told her friends and coworkers that Calhoun and Smith were not the shooters. She acknowledged that she did not tell the police. Helen testified that she told the detectives who came to her house to pick up her daughter Bridget that ...

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