Opinion
5-19-0180
03-25-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORDELL L. GINES, Defendant-Appellant.
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 Jackson County. No. 96-CF-450 Honorable Ralph R. Bloodworth III, Judge, presiding.
JUSTICE WHARTON delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
WHARTON JUSTICE
¶ 1 Held: The court did not err in denying the defendant's postconviction motion for DNA testing, filed after testing had been completed pursuant to a previous order granting a previous motion for DNA testing, where the requested testing was not necessary to complete the testing ordered in the previous order and where the court correctly determined that the defendant did not meet his burden of establishing that he satisfied the statutory requirements for additional DNA testing.
¶ 2 The defendant, Cordell L. Gines, appeals an order of the trial court denying his motion for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2016)). The case comes to us after an unusual procedural history. The evidence requested to be tested was collected in connection with the defendant's 1997 trial. At that time, it was subjected to forensic testing; however, because the results of that testing were not admitted at trial, it is unclear what type of testing was performed. In 2013, the trial court granted a motion for DNA testing. That testing yielded inconclusive results. The forensic serologist who performed the tests noted in her report that with "fresh standards" from three known individuals, more conclusive results might be possible. The defendant subsequently filed a motion requesting that such fresh standards be tested. The court denied that motion. In this appeal, the defendant argues that the court erred because (1) the testing of fresh standards is necessary to complete the testing ordered in 2013 and (2) the testing requested is relevant to a claim of actual innocence that should be allowed to proceed as a matter of due process. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The defendant was convicted on six counts of aggravated criminal sexual assault, one count of armed robbery, and one count of aggravated battery in connection with an incident that occurred in Carbondale in September 1996. The matter came to trial in February 1997. We will discuss only the evidence that is relevant to our decision.
¶ 5 The victim, T.S., testified that a man she did not know approached her on the street as she was walking home from visiting a friend. The man grabbed her arm, struck the side of her head with a gun when she attempted to scream, and threatened to kill her if she screamed again. She testified that the man dragged her behind an abandoned house and demanded that she take off her clothes and lie on the ground. She explained that she complied with his demands because she was afraid that he would kill her. T.S. testified that her assailant proceeded to have sexual intercourse with her. After that, he told her she could leave. When she attempted to do so, however, the assailant grabbed her, pulled her to the side of the abandoned house, and performed additional sex acts.
¶ 6 T.S. described her assailant as a black male with a beer gut who was wearing a baseball cap, blue jeans, a blue shirt, and white tennis shoes. She estimated that he was between 5 feet 9 inches and 6 feet tall and that he weighed 160 to 200 pounds. T.S. testified that the man's hair was in "penitentiary braids," which she described as French braids that go from the front of the head to the back. T.S. identified the defendant as her assailant in court. A photograph of the defendant taken when he was arrested the day after the assault was entered into evidence. It shows the defendant's hair was in the style described by T.S. The photograph is labeled with information, including the defendant's name, height, and weight. That label states that the defendant is 5 feet 9 inches tall and weighs 185 pounds.
¶ 7 Detectives Lynn Trella and James Temple each testified about the statements the defendant made to them. Trella testified that the defendant wore his hair in penitentiary braids when he was interviewed the day after the assault on T.S. Trella further testified that the defendant initially denied having any knowledge concerning a sexual assault. However, he subsequently admitted to having sexual intercourse with T.S., telling the detectives two different stories of how it occurred.
¶ 8 First, the defendant told Trella and Temple that T.S. approached him on the street and offered to perform oral sex in exchange for money. He told them that he and T.S. went behind a building, where T.S. performed oral sex. After that, she became angry when she learned that he had no money to pay her. The testimony of the two detectives varied slightly. According to Temple, the defendant stated that T.S. did not request cash until after she performed the sex act.
¶ 9 The defendant changed his story after the detectives told him they did not believe him. This time, he stated that he approached T.S. on the street and attempted to rob her. Trella testified that the defendant explained that he had been released from prison a few days earlier and that he had no place to live and only $30. According to Trella, the defendant admitted pulling T.S. behind an abandoned house, displaying a gun to her, and hitting the side of her head, although he denied using the gun to strike her. Temple likewise testified that the defendant admitted to displaying the gun and hitting the side of T.S. 's head with his hand. However, he testified that the defendant made these admissions during his first story. Trella testified that the defendant told her that T.S. offered to have sex with him because she did not have any money. She further testified that the defendant admitted to having intercourse with T.S. but stated that it was consensual. Temple, however, testified that the defendant admitted to forcing T.S. to have intercourse with him. Temple also testified that Trella was present for only portions of his interview with the defendant.
¶ 10 The State introduced evidence that samples from which DNA could be extracted were collected from both the victim and the defendant. The results of tests conducted on these samples and questions concerning their admissibility were discussed twice during the trial outside the presence of the jury. We note that the forensic evidence was not admitted, and it is not clear what type of testing was performed.
¶ 11 During the first discussion of the forensic evidence, the attorneys informed the court that "all of the ABO and/or PGN activity identified could have come from the victim herself," while the "remainder *** could have originated from" the defendant. They also informed the court that an individual named Terry Thompson likewise could not be eliminated. They explained that Thompson's blood was tested because when an emergency room nurse collected the rape kit, T.S. indicated in response to a standard question that she had sex within 72 hours before the assault.
¶ 12 Initially, defense counsel indicated that she intended to object to the admission of any evidence concerning these results on the grounds that the defendant was not a match. However, the prosecutor argued that forensic serologist Stacie Speith, who performed the testing, should be allowed to testify regarding these results. He argued that the results were relevant to show the presence of semen as well as the blood type. Defense counsel indicated that if Speith testified, counsel would cross-examine her concerning the fact that a sample from Thompson was also tested and the reason that sample was obtained. The court ruled that Speith could testify about the results. The court further ruled that the defense could cross-examine her about the reasons for obtaining a sample from Thompson but could not specifically ask about any prior sexual activity. Ultimately, however, the prosecutor opted not to call Speith to testify, noting that he had discovered a case holding that such evidence is inadmissible if it shows only that the defendant cannot be eliminated but does not establish that the defendant is a match.
¶ 13 The defendant was convicted on all eight counts. He appealed his convictions, and this court affirmed. Subsequently, the defendant filed multiple collateral challenges to his convictions, none of which were successful.
¶ 14 On June 28, 2012, the defendant filed a motion for DNA testing through an attorney who had been appointed to represent him in collateral proceedings. The motion alleged that evidence from which DNA could be obtained had been collected in connection with the defendant's trial, but that it had not been subjected to the testing requested. It further alleged that counsel confirmed that this evidence was still in the possession of the Carbondale Police Department, that counsel believed it had not been tampered with, that the defendant's identity was at issue in his trial, and that the testing requested would be materially relevant to a claim of actual innocence.
¶ 15 In its response to the defendant's motion, the State conceded that "no forensic DNA testing was performed before or at the time of the defendant's trial." The State argued, however, that the request for testing should be denied for two reasons. First, the State asserted that the defendant's identity was not at issue at trial because "all of the evidence *** pointed to the defendant as the perpetrator." See 725 ILCS 5/116-3(b)(1) (West 2010). Second, the State argued that the evidence produced by the requested testing would not have the potential to materially advance a claim of actual innocence due to overwhelming evidence against the defendant. See id. § 116-3 (c)(1).
¶ 16 On April 5, 2013, the court entered an order granting the defendant's motion for DNA testing. We note that neither the defendant's motion nor the court's order specify what type of testing was to occur.
¶ 17 On May 28, 2014, forensic serologist Stacie Speith issued a report of her findings. Although the report itself does not appear in the record, it is discussed and quoted in a subsequent motion filed by an attorney representing the defendant. For purposes of this appeal, we will assume that the motion accurately describes the statements in Speith's report. The report indicated that a mixture of DNA profiles was found in the "sperm fraction." The defendant could not be excluded as being the contributor to the predominant profile. Both T.S. and Terry Thompson were excluded as contributors to the predominant profile. Both the defendant and Thompson were excluded as contributors to the minor profile, but T.S. could not be excluded. The report stated: "Due to the partial results in the known standards, the statistics offered for Exhibit # 3A1(F2) are limited. At such time as fresh standards for [T.S.], Cordell Gines, and Terry Thompson are submitted, a more complete forensic analysis *** may be possible."
¶ 18 On August 8, 2016, appointed counsel filed a motion for time to determine whether to file a petition for leave to file a successive amended postconviction petition based on the results contained in the May 2014 report. He argued that the results of the predominant profile indicated the presence of DNA from an unidentified individual. Pointing to the finding that the defendant was excluded as a contributor to the minor profile, counsel further argued that even partially favorable results require a hearing to determine whether they would be likely to change the outcome of the trial.
¶ 19 On January 11, 2017, the defendant, who was still represented by counsel, filed both a pro se motion for forensic DNA testing and a pro se motion requesting to represent himself. In the latter motion, he asserted that his attorney failed to make reasonable efforts to expedite the proceedings. In the motion for testing, the defendant pointed to the 2013 order for testing and asserted that, in light of the court's earlier ruling, he had already established a prima facie case for DNA testing. He further alleged that DNA was present on "several items" of evidence that had not been tested, although he did not specify what those items were. Finally, the defendant alleged that the requested testing could conclusively prove that the defendant was not the "donor." He requested short-tandem-repeats, polymerase chain reaction, and mitochondrial testing of "all of the physical evidence."
¶ 20 On January 23, 2017, appointed counsel filed on behalf of the defendant a motion to appoint an investigator and "to obtain DNA standards for a complete DNA analysis." He reiterated the allegations contained in the motion for time to determine whether to file a petition for leave to file a successive postconviction petition. In addition, he asserted that an investigator was needed to determine the whereabouts of T.S. and Terry Thompson.
¶ 21 On April 3, 2017, with the January motions still pending, the defendant filed a pro se motion requesting leave to file another successive postconviction petition, arguing that his attorney provided him with unreasonable assistance. The court denied his request, and the defendant appealed. The Office of the State Appellate Defender filed a motion to withdraw as counsel in that appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). The appeal and the Finley motion are still pending at this time.
¶ 22 On March 21, 2019, the defendant filed a pro se motion for forensic testing pursuant to section 116-3 of the Code (725 ILCS 5/116-3 (West 2016)). He repeated his earlier allegation that a prima facie case for testing had already been established. He requested that "fresh new standards" be obtained and submitted for testing.
¶ 23 On April 10, 2019, the court entered a written order denying the defendant's motion. The court noted that the defendant's motion did not request any particular method of testing. The court found that the defendant thus failed to meet his burden of demonstrating that additional testing would be more probative than testing that had already been performed. The court further found that the defendant failed to establish that the requested testing was not scientifically available at the time of his trial. This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 The defendant argues that the court erred in denying his request for further DNA testing. He contends that the testing requested is necessary to complete the testing previously ordered by the court and that the requested tests are reasonably likely to produce evidence to support a claim of actual innocence. He further contends that due process requires that he be permitted to advance his claim of actual innocence. We are not persuaded.
¶ 26 Under section 116-3 of the Code, a defendant may request forensic DNA testing "on evidence that was secured in relation to [his] trial or guilty plea." 725 ILCS 5/116-3(a) (West 2016). To be entitled to testing, the defendant must make a prima facie case by demonstrating that (1) identity was at issue in the trial and (2) the evidence to be tested "had been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect." Id. § 116-3(b). Where, as here, the evidence has already been subjected to testing, the defendant must also show that the evidence "can be subjected to additional testing utilizing a method that was not scientifically available" when the previous testing was performed and that the testing requested "provides a reasonable likelihood of more probative results" than the earlier testing. Id. § 116-3(a)(2).
We note that the express statutory language specifically mandates a showing that the testing was unavailable at the time trial. 725 ILCS 5/116-3(a) (West 2016). Here, of course, the evidence was subjected to forensic DNA testing years after the defendant's trial in response to his previous successful motion for DNA testing. We need not determine whether these unusual circumstances require the defendant to demonstrate that the tests requested were scientifically unavailable when the DNA testing occurred because we find that he failed to establish that the tests were scientifically unavailable either at the time of trial or when the DNA tests were performed in 2014.
¶ 27 In addition, the defendant must demonstrate that the testing requested "has the scientific potential to produce new, noncumulative evidence" that either is "materially relevant" to a claim of actual innocence or raises "a reasonable probability that the defendant would have been acquitted" had the test results been available at trial. Id. § 116-3(c) (1) (providing that the trial court "shall allow the testing" if it determines that this is the case); People v. Stoecker, 2014 IL 115756, ¶ 32 (holding that the trial court correctly denied a motion for testing where the "defendant failed to establish subsection (c) (1)"). The proposed testing need not completely exonerate the defendant to meet this standard. 725 ILCS 5/116-3(c)(1) (West 2016). However, it must "significantly advance" his claim of actual innocence. Stoecker, 2014 IL 115756, ¶ 33 (citing People v. Savory, 197 Ill.2d 203, 214 (2001)). Determining whether this standard has been satisfied depends on an evaluation of the evidence presented at trial. Id. We must also assess the evidence to be obtained through the requested testing. People v. Rozo, 2012 IL App (2d) 100308, ¶ 11. "However, the strength of the State's evidence is not a hurdle that the defendant must overcome." Id. On appeal, we conduct a de novo review of the court's decision to deny a section 116-3 motion. People v. Barrow, 2011 IL App (3d) 100086, ¶ 25.
¶ 28 The defendant first argues that the testing requested was necessary to complete the testing previously ordered by the trial court in its 2013 order for DNA testing. We disagree. The 2013 order directed the Carbondale Police Department to create a list of all the physical evidence in its possession from its original investigation in this case. The order further directed the parties to agree to which items of evidence should be tested. The court ordered that those items of evidence be tested at a laboratory to be selected and agreed upon by the parties. The order did not address the testing of evidence not in the possession of the Carbondale Police Department from the original investigation, including the "fresh standards" the defendant now requests. It is also worth noting that by its express terms, section 116-3 only allows testing of "evidence that was secured in relation to [his] trial or guilty plea." 725 ILCS 5/116-3(a) (West 2016).
¶ 29 The defendant next argues that the requested testing will advance his claim of actual innocence and that due process requires that he be allowed to advance this claim. We first note that although the defendant, who appears pro se, asserts in his brief that the testing is relevant to a claim of actual innocence, he does not otherwise argue that he satisfied the statutory requirements. Arguments not raised in an appellant's brief are forfeited. See Ill. S.Ct. R. 341 (h) (7) (eff. May 25, 2018). Forfeiture aside, however, we find that the trial court correctly denied the defendant's motion for testing because he failed to satisfy multiple statutory requirements.
¶ 30 First, the defendant failed to establish that the testing requested was not scientifically available either in 1997, when his trial took place, or in 2014, when the previously ordered DNA testing took place. See 725 ILCS 5/116-3(a)(2) (West 2016). We note that although the defendant did request specific tests in the pro se motion for DNA testing he filed in January 2017, he did not specify any particular tests in his 2019 motion. As stated previously, the court found that, as a result, he failed to meet his burden of showing that the requested testing was not scientifically available earlier. We agree with the trial court's conclusion.
¶ 31 A defendant's burden to show that requested testing was not scientifically available at the time of trial (or when earlier testing took place) cannot be satisfied by showing only that the lab that performed the previous tests was not yet using the particular test requested. See Rozo, 2012 IL App (2d) 100308, ¶ 10. Instead, the defendant must show that the requested test was not performed "because the technology for the requested test was unavailable." (Emphasis in original.) People v. Brooks, 221 Ill.2d 381, 393 (2006). Here, the defendant did not allege, much less establish, that the testing requested was not scientifically available at the time of trial or when the testing occurred in 2014. If testing was not performed for any reason other than scientific unavailability, section 116-3 is not applicable. Id. at 394. As such, the defendant has failed to satisfy his burden.
¶ 32 We also do not believe the defendant satisfied his burden of showing that the test results would materially advance a claim of actual innocence or that there is a reasonable probability that he would have been acquitted had those results been available at trial. As explained earlier, this requires an assessment of both the evidence presented at trial and the evidence that would result from the requested testing. Stoecker, 2014 IL 115756, ¶ 33; Rozo, 2012 IL App (2d) 100308, ¶ 11. One consideration is the State's use of DNA evidence at trial-that is, whether such evidence was significant or minor compared to other evidence. People v. Dodds, 344 Ill.App.3d 513, 518 (2003).
¶ 33 Here, the State did not present any DNA evidence or other forensic evidence concerning the semen detected in the evidence collected in the rape kit. In discussing the results of the forensic testing that did occur, the court noted that the jury would likely either acquit or convict based on its assessment of T.S. 's credibility. It is worth emphasizing that her identification of the defendant as the perpetrator was supported by the fact that his physical appearance matched her description in multiple ways-his height, weight, and hairstyle. Her identification was also supported by the defendant's own statements to police. He gave two different accounts in which he admitted to having sex with T.S. These accounts were consistent with evidence concerning injuries sustained by T.S. and evidence that a gun was found behind the abandoned house where T.S. said the assaults occurred. We recognize that the mere fact that a defendant made inculpatory statements does not always preclude a claim of actual innocence. See, e.g., People v. Williams, 392 Ill.App.3d 359 (2009) (holding that a defendant's request to file a successive postconviction petition asserting a claim of actual innocence should have been granted even though the defendant made an inculpatory statement). However, his statements are certainly relevant to our analysis. See Barrow, 2011 IL App (3d) 100086, ¶ 29. Viewing the trial evidence in its entirety, particularly in light of the fact that DNA testing revealed that the defendant could not be eliminated as having contributed to the "sperm fraction" in the rape kit sample, we cannot find that the defendant met his burden of demonstrating that the proposed additional testing would materially advance a claim of actual innocence. For these reasons, we find no error in the trial court's decision to deny the defendant's motion.
¶ 34 III. CONCLUSION
¶ 35 For the foregoing reasons, we affirm the decision of the trial court.
¶ 36 Affirmed.