Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 01 CR 25785,
Honorable Evelyn B. Clay, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justice Pierce concurred in the judgment and opinion.
Presiding Justice Hyman dissented.
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
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
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 ...