Opinion
No. 1-19-0397
05-07-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORVILLE MILLER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 77 CR 2750 Honorable Maura Slattery Boyle, Judge, presiding. JUSTICE CONNORS delivered the judgment of the court.
Presiding Justice Mikva and Justice Harris concurred in the judgment.
ORDER
¶ 1 Held: Circuit court did not err in denying defendant's petition for forensic testing because the ballistic database comparison he seeks would not significantly advance his claim of actual innocence. ¶ 2 Following a jury trial in 1978, defendant Orville Miller was found guilty of first degree murder and sentenced to 100 to 200 years' imprisonment. We affirmed on direct appeal. People v. Miller, 98 Ill. App. 3d 453 (1981). After multiple unsuccessful postconviction petitions, in 2018, defendant filed a petition for forensic testing; namely, comparison of fired bullets, 9-millimeter cartridge casings, and shotgun shells introduced at his trial to the Integrated Ballistic Identification System (IBIS) database under section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2018)). The circuit court denied the petition and, on appeal, defendant contends he sufficiently set forth all the elements of a section 116-3 claim. We affirm. ¶ 3 Defendant and codefendant Rudy Bell were charged with murder in the shooting death of Tyrone Smith on April 2, 1977. The State alleged they intentionally killed Smith or shot him knowing they created a strong probability of his death or great bodily harm (Ill. Rev. Stat. 1975, ch. 38, ¶ 9-1(a)(1), (2)). The cases against defendant and Rudy Bell were tried together. As defendant only challenges the circuit court's denial of his section 116-3 petition, we recite only the facts necessary to decide this appeal. ¶ 4 At trial, Lucille Faulker testified her son, Tyrone Smith, was shot and killed in front of her home at approximately 2:30 a.m. on April 2, 1977. As Faulkner and Smith were getting out of their car, another car approached with its headlights off. Faulkner heard Smith shout at the occupants of that car to turn its headlights on, then she heard gunshots. She did not see who shot her son. ¶ 5 Audrianna Thomas testified she was talking to a friend on a sidewalk when she saw a car park two or three houses down the street, and a man she knew as "Mouse" exit the car. Another car, which was blue, approached with its headlights off, and Thomas heard Mouse say, "Hey, Man, turn your lights on." The blue car stopped next to Mouse's car and Thomas saw four men get out. One man ran around the front of Mouse's car and the three men ran around the rear. ¶ 6 Thomas saw "guns go off." The man who ran around the front of Mouse's car was holding "a rifle or shotgun" or a "long barrelled gun." Thomas knew this man as "Bimbo." When asked to identify Bimbo in court, Thomas identified codefendant Rudy Bell. Thomas saw defendant, whom she identified in court, "running from the car without lights on" carrying "a long-barreled gun." Thomas had "been seeing Rudy Bell and Bimbo for the last few years." She learned defendant and Rudy Bell's names approximately one year before the trial. Thomas did not recognize the other two men who came from the blue car, but they "looked like they were carrying hand guns." ¶ 7 After the shooting started, Thomas saw Mouse fall to the ground, and her friend pushed her down. She heard a car "skid off" but saw nothing else. Thomas did not call police. ¶ 8 On cross-examination, Thomas testified she had seen defendant and Bell for two to three years prior to the shooting, but had not been introduced to them. Bell and Bimbo were different people. She acknowledged she was mistaken when she identified Bell as Bimbo. Thomas was approximately 45 feet away from Mouse's car and the blue car that pulled up next to it. The men who exited the blue car were not wearing anything over their faces. Thomas spoke to police about this incident approximately one month after the shooting. ¶ 9 The parties stipulated defendant stated he was known by the name Bimbo when he was brought to Cook County Jail on May 7, 1977. ¶ 10 Chicago police evidence technician William Sherlock testified he recovered and inventoried thirteen 9-millimeter cartridge casings and two 12-gauge shotgun shells from the scene. The cartridge casings and shotgun shells tested negative for fingerprints. ¶ 11 Chicago police investigator John Byrne testified he and other officers arrested Ricky Bell, the brother of codefendant Rudy Bell, inside a house on March 15, 1977, approximately two weeks before Smith's murder. Byrne recovered nineteen 12-gauge shotgun shells in the basement of that home and inventoried them. ¶ 12 Chicago police firearms examiner Richard Chenow opined the cartridge casings recovered from the scene were fired from two separate 9-millimeter pistols and the two shotgun shells were fired from two separate weapons, for a total of four guns. Extractor markings indicated one of the fired shotgun shells recovered from the scene had "at one time" been in the same weapon as two of the unfired shotgun shells recovered from Ricky Bell's basement. ¶ 13 On cross-examination, Chenow testified the two unfired shotgun shells recovered from Ricky Bell's basement he examined had additional markings that did not match the fired shell recovered from the scene. The shells recovered from Ricky Bell's basement had "been through several different guns." No weapon was submitted for testing in connection with Smith's murder. ¶ 14 Professor Joseph Nichol testified the fired shotgun shell recovered from the scene had been in the same weapon as one of the unfired shells recovered from Ricky Bell's basement. He could make no comparison between the fired shotgun shell and the other unfired shell recovered from Ricky Bell's house. ¶ 15 Dr. L. F. Beamer testified he was employed as a Cook County assistant medical examiner and performed Smith's autopsy. He opined Smith had been "shot to death." Most of the gunshot wounds to Smith's body were made by 9-millimeter projectiles, but Beamer could not determine what kind of projectiles caused wounds to Smith's left index finger, left buttocks, and chin. All the projectiles Beamer recovered from Smith's body were "consistent with handguns." ¶ 16 Ida Crumb testified she was Smith's aunt and was present when he was shot. She saw two individuals and "fire coming from some kind of weapon," but could not see the individuals' faces because they were wearing what appeared to be masks of some kind. ¶ 17 Investigator Robert Gay testified he worked for the office of the Public Defender of Cook County and visited the scene of Smith's murder. He estimated the distance between where Thomas testified she was standing and where Smith was shot was 100 to 150 feet. ¶ 18 Michell Walker testified she met defendant in Evanston at approximately 8:00 p.m. on April 1, 1977. They saw a movie and visited clubs in Evanston until 1:00 or 1:30 a.m. on April 2, 1977, then returned to Walker's home, also in Evanston. Defendant left that morning before 8:00 a.m. Defendant was inside Walker's home between 2:30 and 2:40 a.m. on April 2, 1977. ¶ 19 Margaret Bell testified she was codefendant Rudy Bell's wife. Ricky Bell was Rudy's brother. Rudy Bell had never lived at his brother Ricky's house, but he sometimes visited it and used it as a mailing address. ¶ 20 In closing, the State argued Thomas's description of events was consistent with the other eyewitnesses and the physical evidence, and she "saw Bimbo's face." The State contended the ballistic evidence "link[ed] Rudy Bell to the crime" and "these shotgun shells show[ed] Rudy Bell to be guilty of murder." Defendant argued Thomas had incorrectly identified Rudy Bell as "Bimbo," and that her testimony was inconsistent and incredible in multiple respects. Defendant contended "the only thing in this case against him is Audrianna Thomas who says that was the man she saw that night" and the shotgun shells "don't have anything to do with [him]." ¶ 21 The jury found defendant and Rudy Bell guilty of murder. ¶ 22 Defendant filed a motion for a new trial, which argued Thomas was not credible and Smith had been shot by 9-millimeter weapons, not shotguns. The trial court denied this motion. ¶ 23 The trial court sentenced defendant to "a minimum of one hundred years and a maximum of two hundred years" in prison. ¶ 24 On direct appeal, defendant challenged the sufficiency of the evidence, the admission of certain evidence, and the State's alleged concealment of an eyewitness's surname. Miller, 98 Ill. App. 3d at 455. We affirmed. Id. at 460. ¶ 25 Defendant filed multiple postconviction petitions, all of which were dismissed. We affirmed the dismissal of all postconviction petitions on appeal. People v. Miller, No. 1-89-1322 (1992) (unpublished order under Illinois Supreme Court Rule 23); People v. Miller, No. 1-97-1913 (1997) (unpublished order under Illinois Supreme Court Rule 23); People v. Miller, Nos. 1-01-0507, 1-01-4030 (2002) (unpublished summary order under Illinois Supreme Court Rule 23); People v. Miller, 1-04-3727 (2006) (unpublished order under Illinois Supreme Court Rule 23). ¶ 26 In 2018, defendant filed a pro se section 116-3 petition, requesting IBIS ballistic testing for shotgun shells and 9-millimeter shell casings, as well as "fired projectiles" recovered from Smith's body. Defendant's petition argued identity was at issue during trial and the ballistic evidence was kept in a sufficient chain of custody. He also contended "the requested testing has the potential to produce evidence relevant to defendant's assertion of actual innocence" because it could show the shotgun shells have "absolutely no ties or connection" to him and the 9-millimeter projectiles "could possibly be linked to other crimes, thereby identifying the actual culprits involved." The circuit court denied this petition without argument or a response from the State. ¶ 27 On appeal, defendant contends the circuit court should have granted his motion for IBIS testing where the shooters' identities were at issue during trial and the State's case relied on the impeached identification testimony of Audrianna Thomas. ¶ 28 Section 116-3 allows a defendant to file a motion in the circuit court for IBIS testing "on evidence that was secured in relation to the trial *** which resulted in his or her conviction" if the evidence was either (1) not subject to IBIS testing at the time of trial or (2) previously tested, but "can be subjected to additional testing utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results." 725 ILCS 5/116-3(a) (West 2018). "IBIS serves as a nationwide computerized database for firearms, bullets, and cartridge casings. It compares ballistic signatures on fired bullets and cartridge casings to each other, and can discover links between crimes that otherwise would remain hidden." (Internal citation omitted.) People v. Navarro, 2015 IL App (1st) 131550, ¶ 11. ¶ 29 To be entitled to testing under section 116-3, a defendant must first present a prima facie case that "identity was the issue" at trial and the evidence to be tested has been keept in a sufficient chain of custody. 725 ILCS 5/116-3(b) (West 2018). Chain of custody can be presumed when the evidence has been in the possession of the police or another State agency, such as when the trial court ordered the evidence to be preserved. People v. LaPointe, 2018 IL App (2d) 160432, ¶¶ 40-41. ¶ 30 If a defendant presents a prima facie case, the circuit court shall allow the requested testing if "the result of the testing has the scientific potential to produce new, noncumulative evidence *** materially relevant to the defendant's assertion of actual innocence when the defendant's conviction was the result of a trial, even though the results may not completely exonerate the defendant." 725 ILCS 5/116-3(c)(1)(i) (West 2018). Evidence is materially relevant to a claim of actual innocence if it tends to significantly advance the claim, even if it does not, by itself, exonerate the defendant. People v. Stoecker, 2014 IL 115756, ¶ 33. Whether evidence is materially relevant requires an evaluation of the trial evidence and the evidence the defendant seeks to acquire through testing. Id. We review de novo the circuit court's denial of a section 116-3 petition. Id., ¶ 21. ¶ 31 We agree with the parties that defendant has established a prima facie case in support of IBIS testing. IBIS testing was not available at the time of defendant's 1978 trial. See People v. Pursley, 407 Ill. App. 3d 526, 532 n. 3 (2011) (IBIS became a useable database in 2000). Identity was at issue in this trial, as the State established defendant's involvement through the eyewitness identification testimony of Thomas. Defendant sought to impeach Thomas and also presented an alibi. The ballistic evidence has been in the State's custody at all times, so we presume chain of custody was proper. See LaPointe, 2018 IL App (2d) 160432, ¶¶ 40-41. Thus, defendant has set forth a prima facie case under subsections 116-3(a) and (b). See 725 ILCS 5/116-3(a)-(b) (West 2018). ¶ 32 Thus, the question becomes whether the results of the testing would be materially relevant to defendant's claim of actual innocence. Defendant argues IBIS testing could produce evidence the guns used to kill Smith were used in other crimes, and those crimes would somehow be linked to other individuals, who could become alternate suspects in this case. He also hopes to discover evidence that disproves the link between the fired shotgun shell recovered from the scene and the unfired shotgun shells recovered from Ricky Bell's basement. ¶ 33 We find the circuit court did not err in denying defendant's section 116-3 petition because IBIS testing could not produce evidence materially relevant to his claim of actual innocence. This determination requires us to evaluate the trial evidence. See Id., ¶ 33. The State's case against defendant relied on Thomas's eyewitness testimony and identification of defendant as one of the four men involved in Smith's murder. Defendant does not dispute this. ¶ 34 The ballistic evidence at trial linked codefendant Rudy Bell to Smith's murder in that it suggested the expended shotgun shells found at the scene were once in the possession of Rudy Bell's brother, at a house Rudy Bell sometimes visited and used as a mailing address. However, the State did not attempt to link defendant to the ballistic evidence recovered at the scene or the shotgun shells recovered at Ricky Bell's house. The State did not claim defendant even had access to Ricky Bell's house. The State also did not attempt to prove defendant used any specific gun, aside from Thomas's testimony she saw him holding "a long-barreled gun." Even if IBIS testing linked the ballistic evidence in this case to guns used in other crimes, that would not undermine the evidence that established defendant's guilt; namely, Thomas's eyewitness testimony and identification of him. At most, IBIS testing would merely indicate some of the guns used to murder Smith were also used at other times. Thus, IBIS testing would not produce evidence materially relevant to defendant's claim of actual innocence. ¶ 35 Navarro guides our reasoning. In Navarro, the defendant was convicted of first degree murder based on the testimony of eyewitnesses who saw the defendant firing at the victim and displaying a gun while being chased by police, and also on forensic evidence establishing shell casings from the scene matched the gun police recovered during the chase. Navarro, 2015 IL App (1st) 131550, ¶¶ 3-4. Defendant filed a motion seeking IBIS testing, arguing that the murder weapon may have been used by a different group of individuals in the area. Id., ¶ 7. On appeal, the only issue was whether IBIS testing could produce new, noncumulative evidence materially relevant to the defendant's claim of actual innocence. Id., ¶ 15. ¶ 36 We affirmed the denial of IBIS testing because the defendant's conviction was primarily based on eyewitness testimony identifying him as the shooter, not ballistic evidence. Id., ¶¶ 16-18. "Thus, IBIS testing of the bullet shells would not materially advance [the defendant's] claim of actual innocence." Id. ¶ 16. Similarly, in this case, the lynchpin of the State's case against defendant was not the ballistic evidence, but Thomas's identification of him. Thus, as in Navarro, IBIS testing of the ballistic evidence here would not materially advance defendant's claim of actual innocence. ¶ 37 Defendant primarily challenges the reliability of Thomas's identification of him. However, as explained above, any evidence IBIS testing might reveal would not undermine Thomas's identification of defendant, which is the evidence that supports his conviction. Moreover, a jury has already heard and rejected defendant's argument that Thomas's identification of him was not reliable. ¶ 38 The cases defendant cites are distinguishable and do not warrant IBIS testing under the facts before us. See, e.g., Pursley, 407 Ill. App. 3d at 535-39 (IBIS testing warranted where the State relied heavily on ballistic evidence "that the crime scene bullets and evidence came from defendant's [gun] to the exclusion of all other guns."); People v. Johnson, 205 Ill. 2d 381, 396-397 (2002) (defendant sought DNA testing to prove he did not rape victim). Accordingly, the circuit court did not err in denying defendant's section 116-3 petition. ¶ 39 For the foregoing reasons, we affirm the judgment of the circuit court. ¶ 40 Affirmed.
Codefendant Rudy Bell and his brother, Ricky Bell, were both mentioned at trial. For clarity, we refer to them by their full names.