Opinion
No. 1-15-3470
03-16-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WARE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 98 CR 24643 Honorable Gregory R. Ginex, Judge Presiding. JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment. ORDER ¶ 1 Held: The judgment of the circuit court of Cook County denying defendant leave to file a successive postconviction petition and dismissing defendant's petition for relief from judgment is reversed; defendant's successive petition for postconviction relief states a colorable claim of actual innocence based on newly discovered evidence, and defendant established fraudulent concealment of a claim that would probably have precluded entry of the judgment in the original action and diligence in both discovering the claim and presenting the petition. ¶ 2 Following a bench trial the circuit court of Cook County convicted defendant, Marvin Ware, of aggravated criminal sexual assault of 16-year old C.K. and sentenced him to natural life imprisonment based on being a repeat sex offender. This court affirmed defendant's conviction and sentence on direct appeal. Defendant sought postconviction relief and DNA testing that was not available at the time of his trial. Defendant's initial postconviction petition was summarily dismissed. During the pendency of the appeal of the summary dismissal, defendant filed an amended motion for DNA testing, which the trial court denied. This court reversed and ordered DNA testing. On remand, in addition to defendant's requested testing, the State also caused evidence to be tested that had not previously been tested before defendant's trial. Once DNA testing was complete defendant filed a motion for leave to file a successive postconviction petition and a petition for relief from judgment. Defendant attached to his petitions the results of all of the testing that had been completed after our remand (the testing by him and by the State). The trial court considered the results of all of the tests and denied both pleadings. For the following reasons, we reverse and remand for further proceedings.
¶ 3 BACKGROUND
¶ 4 This court has previously set forth the details of defendant's trial and conviction in the direct appeal and in appeals from both the dismissal of his initial postconviction petition and a motion for forensic testing pursuant to section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2008)). We will briefly set forth those facts necessary to an understanding of our disposition of the current appeal. C.K. testified that on August 19, 1998, she was visiting her former place of employment, a bagel shop, where defendant also worked. As C.K. was walking down a hallway toward the back door defendant grabbed her and pulled her into the men's washroom. Defendant locked the door and pinned C.K. to the wall. C.K. tried to say "no" and "stop" but defendant either had his tongue in her mouth or covered her mouth with his hand. Defendant pulled down C.K.'s pants and underwear and inserted his penis into her vagina. Defendant ejaculated onto the floor and into some toilet paper. C.K. reported the assault to her mother, who took C.K. to the hospital. C.K. told medical personnel she had not had sex with anyone within 72 hours of the incident. The Illinois State Police found semen on the crotch area of C.K.'s underwear. Because it pertains to an issue in this appeal, the testimony concerning the DNA analysis on the semen is set forth in detail below. A Chicago Police Department detective testified that when he interviewed C.K., she identified the perpetrator as a former co-worker and provided his first name. C.K. identified defendant in a physical lineup. ¶ 5 Dr. Barbara Wilson, a forensic scientist for the Illinois State Police, testified at defendant's trial. Wilson testified semen was identified on the victim's underwear but no sperm were identified. The State asked Wilson if the fact no sperm was identified made it hard to find DNA. Wilson testified to further steps she took to try to find DNA. Wilson testified that she took the portion of the underwear containing the semen stain and added it to chemicals "to release the DNA from that material and then *** analyzed that DNA." The State then asked Wilson the following questions and Wilson gave the following answers:
"Q. Okay. And pursuant to you analyzing that DNA in that sample, can you tell the judge what your conclusion was, what were your results?
A. The only DNA I was able to find from that panty, the semen stain, was DNA that matches the DNA of the victim.
Q. Through looking at the DNA, were you able to find any DNA other than the victim's DNA?
A. No.
Q. So there was nothing that was inconsistent other than the victim's DNA, is that correct?
A. Only the victim's DNA was observed.
Q. No other DNA?
A. No other DNA.¶ 6 On cross-examination, Wilson testified that when she does her analysis she cannot tell how old a semen specimen might me. Wilson agreed she could not say to any reasonable degree of medical certainty that the semen stain in the victim's underwear was deposited on August 19, 1998 and that the semen could have been deposited prior to that date. On re-direct, Wilson testified that semen can only come from a male. ¶ 7 In closing argument the State argued in part as follows:
Q. So your conclusion is even though semen was found you cannot determine who the source, who the actual person is of that semen, is that correct?
A. Correct.
THE COURT: So your conclusion as to the stain in the panties was sperm?
THE WITNESS: Well, the conclusion—
THE COURT: Or it was semen?
THE WITNESS: It's semen. And I can't make any conclusions who the semen donor could be because I have no DNA."
"The one thing he didn't know that would occur when he was pulling out a drip did fall on the panties, which was down on the ankle right above the pants, that little drip that occurred. Yeah, *** we could not find DNA it; however, that expert testified that positively is male semen. And [C.K.] testified she hadn't had sex for seventy-two hours.
So what does counsel want you to believe? That she walked around with those same panties wearing them for seventy-two hours if she had sex before that?
No, judge. That semen that was found, it's male semen, it's fresh semen, it's the defendant's semen.¶ 8 In its oral ruling, the trial court began by noting that defendant had executed a jury waiver, that defendant was apprised of his right to testify, and that defendant chose not to testify. The court addressed the fact that instead of calling the police the victim went home to her mother and found that "does not cast a negative inference on the case." The court continued:
There definitely was sex in there, semen was found in there. We can't find male sperm. That third test was just able to find the semen. Maybe if we would have been able to find that, the water, the stains on the ground, however, he cleaned it all up, then we would have been able to find the DNA, but clearly, judge, the key physical evidence is semen and [C.K.] testified seventy-two hours prior she did not have sex, judge. What's he want you to believe, that she has been walking around for seventy-two hours with the same pair of underpants with the semen stain there? No, judge."
"I note that [C.K.] testified clearly and concisely. I note that Sergeant Higgins said that she was visibly upset. I note that her mother said that she was visibly upset. I note that even though there was not DNA evidence, that there was evidence of semen found in her pants.¶ 9 Defendant filed a petition for postconviction relief and a motion for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2008)). The trial court summarily dismissed defendant's petition for postconviction relief and denied his motion for DNA testing, and defendant appealed. While that appeal was pending, defendant filed a new motion for DNA testing pursuant to section 116-3. This court affirmed the summary dismissal of defendant's initial pro se postconviction petition and dismissed defendant's appeal of the denial of his motion for DNA testing as moot based on the pendency of the second motion for DNA testing in the trial court. The trial court denied defendant's second motion for DNA testing on the grounds the testing defendant requested had already been done and could not produce newly discovered evidence that was material to a free-standing claim of actual innocence. Defendant again appealed. ¶ 10 This court first found that identity was a central issue in the case because defendant maintained his innocence and argued false accusation by the complainant, and the identity evidence rested solely on complainant's testimony and information she relayed to others; therefore, defendant met the first requirement for establishing a prima facie case for DNA testing under section 116-3. This court then found that the evidence to be tested—the semen sample from C.K.'s underpants—was subject to a sufficiently secure chain of custody. Next, this court found that "newer DNA testing, specifically Y-STR testing, with the potential to find previously undetected male DNA and the potential to exclude defendant would be material in this case." People v. Ware, 2012 IL App (1st) 103021-U, ¶ 24. This court stated that "[a] conclusive determination of whether defendant's DNA is present in the semen sample in complainant's underwear would be both new and noncumulative and would be materially relevant to defendant's claim of actual innocence. [Citation.]" Id. However, defendant's second motion requested STR testing, which had already been completed, and not specifically Y-STR testing. This court remanded the case to the trial court with directions to allow defendant to amend his section 116-3 motion to specifically request Y-STR testing and upon such amendment, for the trial court to order that DNA testing be conducted, "as all other requirements for section 116-3 testing have been met." Id. ¶ 27. ¶ 11 Upon remand, defendant filed a motion for discovery seeking "all discovery materials," including Chicago Police Department inventory sheets, medical test results, the State Crime Laboratory file, all notes, reports, or other documents regarding the forensic materials that were recovered and preserved, and all other related materials. Defendant also filed a motion for Y-STR DNA testing. The State tendered DNA reports and materials to the defense. Defendant filed a motion to impound the physical evidence, to allow a defense expert to examine the evidence, and for additional discovery. ¶ 12 Defendant's motion to impound asserted that the lab reports the defense received show that additional testing "makes it clear that the semen stain on the complainant's panties did not come from [defendant] and instead probably came from *** Larry Berry, whose DNA profile was in the Illinois Offender Database and according to trial testimony was living in the same house with the complainant on the date the crime allegedly occurred." Defendant's motion to impound also stated that the State had tested a pair of boxer shorts "alleged to have been taken from [defendant.]" The motion states that the Illinois State Police Crime Laboratory report states that stains containing C.K.'s DNA were purportedly found on the boxer shorts. The motion sought "discovery from the State for all chain of custody documents related to" the boxer shorts. The State did not object to impounding the evidence to allow the defense expert to examine the evidence. The State also provided documents which it stated "detail the recovery of and chain of custody for the underwear recovered from" defendant. ¶ 13 In October 2015 defendant filed a motion for leave to file a successive postconviction petition and a combined petition for postconviction relief and motion for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). Petitioner attached supporting exhibits to his petition for postconviction relief and petition for relief from judgment which included the "Illinois State Police Laboratory File on Post-Conviction DNA Testing," the "Affidavit of Dr. Karl Reich," and "Additional Physical Evidence Submitted to the Illinois State Police Crime Laboratory by the State." In pertinent part, defendant's postconviction allegations were that he was denied due process by the perjury of State agent, Barbara Wilson, the fact that the prosecution failed to disclose evidence favorable to him and the fact that his trial lawyer failed to provide effective assistance of counsel by failing to discover that evidence. Defendant also alleged that newly discovered evidence that DNA testing actually excluded defendant as a contributor to the semen stain on the complainant's underwear demonstrates his actual innocence. Defendant also alleged that the "true facts," that he was excluded as the donor of the DNA in the semen stain, that the State's forensic scientist lied about those facts, and the complainant's lie that she had not had sex with anyone within 72 hours, constitute facts which would have prevented the judgment against him had they been presented to the trial court. ¶ 14 In its oral ruling on the successive postconviction petition and petition for relief from judgment, the trial court stated, in part, as follows:
* * *
Accordingly, it's the decision of this court that I have weighed all the factors and I find the defendant, Marvin Ware, guilty as charged."
"The evidence in the trial was *** no DNA other than that of the complaining witness.
The victim was visibly upset and apparently called her boyfriend who is apparently the subject of the postconviction petition saying that there is, perhaps, his DNA there and not the defendant's.
* * *
The issue that came up was about testing regarding the semen stain. *** The only DNA that was discerned to be in this particular patch of the crotch of the
panties was *** the victim's. Not the defendant's. In fact the defendant was excluded.¶ 15 The trial court denied defendant leave to file the successive postconviction petition and denied his petition for relief from judgment. ¶ 16 This appeal followed.
* * *
Now the defendant has alleged that because of the new DNA, the DNA reveals that someone else may have been the perpetrator. However, when one looks at this, whether or not the victim had sex with a partner, perhaps Mr. Berry, within 72 hours—although she testified she didn't—is an impeachment issue.
* * *
The jury heard this evidence and quite frankly excluded everything and regarded the fact that the defendant was excluded from the DNA, and the DNA that I see does not say that Mr. Berry committed the act, although the defense is alleging there is a basis for her to do that and put it on the defendant because Mr. Berry is the boyfriend.
And interestingly enough on the defendant's boxer shorts, I believe are 5 or 6 locations of DNA that check to the victim, the complaining witness in this case.
Now none of that was put in the record at trial. But that is part of the record now that this court has to consider.
* * *
The only issue that possibly could result from the new testing, there are two: 1, that the complaining witness had sex with Mr. Berry prior or within the 72 hours which is an impeachment issue, and 2, that the defendant's boxer shorts now reveal several locations of the complaining witnesses' DNA which would corroborate the entire situation."
¶ 17 ANALYSIS
¶ 18 Defendant argues the trial court erroneously denied him leave to file a successive postconviction petition because his petition and supporting documentation set forth a cognizable claim of actual innocence, and the trial court erroneously denied his petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)) because the petition sets forth a meritorious claim that new evidence exists that probably would have prevented entry of the judgment at defendant's trial. "[A] section 2-1401 petition differs from a postconviction petition. A postconviction petition requires the court to decide whether the defendant's constitutional rights were violated at trial (see 725 ILCS 5/122-1(a) (West 2002)); a section 2-1401 petition, on the other hand, requires the court to determine whether facts exist that were unknown to the court at the time of trial and would have prevented entry of the judgment." People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003). We address each of defendant's pleadings in turn.
¶ 19 Motion for Leave to File Successive Postconviction Petition
¶ 20 We will review the trial court's order denying defendant leave to file a successive postconviction petition de novo. People v. Warren, 2016 IL App (1st) 090884-C, ¶¶ 71-75.
"The Post-Conviction Hearing Act (the Act) provides that, generally, a defendant may only file one postconviction petition. [Citation.] In order to file a successive postconviction petition, a petitioner must first obtain 'leave of court.' [Citation.] One way a petitioner may obtain leave of court is by raising a colorable claim of actual innocence. [Citation.] When a petitioner seeks leave of
court based on a claim of actual innocence, 'leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual innocence.' [Citation.]" Id. ¶ 70.To establish a claim of actual innocence, the evidence supporting defendant's claim must be (1) newly discovered, (2) material and not merely cumulative, and (3) of such a conclusive character that it would probably change the result at a retrial. Id. ¶ 76. "At the initial stage of the proceedings, where the defendant seeks leave to file the successive petition, a defendant is not required to conclusively prove his case." Id. Rather, leave of court should be granted when the defendant's supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. ¶ 21 "Newly discovered evidence must be evidence that was not available at defendant's trial and that the defendant could not have discovered sooner through diligence. [Citation.] Generally, evidence is not 'newly discovered' when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative. [Citation.]" (Internal quotation marks omitted.) People v. House, 2015 IL App (1st) 110580, ¶ 40. In this case, the State does not argue that the DNA test excluding defendant as a contributor to the semen stain on C.K.'s underwear is not newly discovered evidence. We agree that the DNA evidence is newly discovered. ¶ 22 In this case, a DNA test result excluding defendant as a contributor to the semen stain was not known to defendant or available to him at defendant's trial. Defendant, as did the State, reasonably relied on the report and testimony of State forensic scientist Dr. Barbara Wilson stating that the only DNA identified from C.K.'s underwear was that of C.K. Regarding the question of whether the test results could have been discovered through diligence, defendant has claimed in these proceedings that trial counsel was ineffective in failing to discover the forensic scientist's notes and the full scope of what testing on C.K.'s underwear revealed. Defendant's posttrial expert Dr. Karl Reich opined the "notes and data in what appears to be Dr. Wilson's own handwriting document the *** production of a DNA profile that deliberately removed exculpatory results form a mixed DNA profile." However, this court has recognized "that the newly-discovered-evidence requirement may work an injustice if applied inflexibly, and that relaxation of this requirement may be necessary where a defendant's presentation of evidence is hindered by his attorney's performance." Warren, 2016 IL App (1st) 090884-C, ¶ 136. Additionally, the State has forfeited an argument the DNA test results could have been discovered through diligence by failing to raise it in its appellee's brief. See Ill. S. Ct. R. 341(i) (eff. July 1, 2008). We find defendant has satisfied the first criteria for establishing a claim of actual innocence. ¶ 23 Nor does the State argue that the DNA evidence is not material, or is merely cumulative. "Material means the evidence is relevant and probative of the petitioner's innocence. [Citation.] Noncumulative means the evidence adds to what the jury heard. [Citation.]" Id. (quoting People v. Coleman, 2013 IL 113307, ¶ 96). In this case, the trier of fact heard that the contributor of the semen stain on C.K.'s underwear could not be identified through DNA. The State argued that although the contributor could not be identified, the presence of semen in C.K.'s underwear, combined with her testimony that she had not had intercourse with anyone within the 72 hours preceding the alleged assault, proved that the assault occurred as C.K. testified. Evidence that DNA analysis excludes defendant as a contributor to the semen stain would add to what the trier of fact heard. "Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011)." People v. Anderson, 2017 IL App (1st) 122640, ¶ 63. In this case, the DNA evidence is relevant and probative of defendant's innocence because it makes it less probable the assault occurred as C.K. testified. We find defendant has satisfied the second criteria for establishing a claim of actual innocence. ¶ 24 We turn to a consideration of whether the DNA evidence excluding defendant as a contributor of the semen stain in C.K.'s underwear is of such a conclusive character that it would probably change the result at a retrial. Defendant argues that "[k]nowing that the semen stain did not come from Ware would undermine the only inculpatory evidence from trial, refute the State's theory of the case, and almost certainly change the result on retrial." He also argues that a DNA match for "a plausible alternate suspect *** would also cast the entire trial in a different light." ¶ 25 The State responds that posttrial DNA testing on evidence gathered prior to trial produced both exculpatory and inculpatory evidence. Specifically, testing on boxer shorts defendant allegedly wore on the day of the assault revealed that C.K.'s DNA was on the boxer shorts. The State argues that "[b]ecause a retrial would also include the new inculpatory evidence from defendant's boxer shorts, he cannot meet his burden of proving that the new exculpatory evidence would probably change the result at a retrial." The State further argues that the new inculpatory evidence relegates the evidence that defendant is excluded as a contributor to the semen stain on C.K.'s underwear to mere impeachment of C.K.'s testimony that she did not have intercourse with anyone within the 72 hours preceding the assault, and notes that "[e]vidence that merely impeaches a witness will typically not be of such conclusive character as to justify postconviction relief. [Citation.]" People v. Collier, 387 Ill. App. 3d 630, 637 (2008). ¶ 26 At this stage of postconviction proceedings, the question is, "did [the] request for leave of court and [the] supporting documentation raise the probability that it is more likely than not that no reasonable juror would have convicted [defendant] in the light of the new evidence?" People v. Edwards, 2012 IL 111711, ¶ 31. To answer that question, the court may not consider evidence that is not part of the record of the proceedings from which defendant seeks postconviction relief. People v. Sanders, 2016 IL 118123, ¶ 40 ("the standard at the second stage of postconviction proceedings is that all well-pleaded allegations of the petition and accompanying affidavits are taken as true unless positively rebutted by the record of the proceedings. *** [T]he standard refers only to the record of the proceedings from which the petitioner seeks postconviction relief and not any other related proceedings."). Sanders was an appeal from a judgment granting the State's second-stage motion to dismiss a second successive postconviction petition alleging newly discovered evidence of actual innocence. Id. ¶¶ 1, 14. The trial court granted the State's motion to dismiss the successive petition based on a credibility determination it made in a separate proceeding regarding an affiant who had provided an affidavit in support of the petition at issue. Id. ¶ 19. The parties disputed whether the trial court could rely on its credibility finding regarding the affiant made in a separate proceeding. Id. ¶ 38. The Sanders court held that the trial court's credibility determination in a related proceeding "cannot be substituted for a third-stage evidentiary hearing in petitioner's case. [Citation.]" Id. ¶ 42. The court held that in allowing the State's motion to dismiss "the trial court erred in considering matters outside the record of petitioner's case." Id. ¶ 43. ¶ 27 Although Sanders involved a motion to dismiss a successive petition, we find that the same rule applies when the trial court is to determine whether leave to file a successive postconviction petition should be granted. "Both the second stage and a motion for leave to file a successive petition require a review of 'the petition and any accompanying documentation.' [Citations.]" People v. Jones, 2016 IL App (1st) 123371, ¶ 60. Further, second-stage proceedings present a higher barrier for a postconviction petitioner to overcome. Id. ¶ 60. "For the second stage to not be superfluous for a successive petition, it must be that the 'substantial showing' required at the second stage is greater than the 'probability' required for a successive petition to receive leave for filing. [Citation.]" Id. If the trial court may not consider matters outside the record of the proceedings from which postconviction relief is sought when the petitioner must make a greater showing than the showing required to obtain leave to file a successive petition, it would be illogical to allow the trial court to consider evidence outside the record of the proceedings at issue when a defendant is merely seeking leave to file a successive petition. "Since a filed successive petition has already satisfied a higher standard, the first stage is rendered unnecessary and the successive petition is docketed directly for second-stage proceedings." Id. ¶ 57. Therefore, to hold otherwise would mean that the trial court could consider matters outside the record of the proceedings at issue to determine whether a petition states a colorable claim of actual innocence, but would be prohibited from considering such evidence when ruling on a motion to dismiss filed by the State. We may not "construe a statute in a manner that leads to absurd results. [Citation.]" People v. Jackson, 2015 IL App (3d) 130575, ¶ 38. See also People v. Jackson, 2016 IL App (1st) 143025, ¶ 43 ("From the perspective of the orderly administration of justice, it makes sense to review primarily at this very preliminary stage the documents filed by defendant rather than the entire trial court record."). Additionally, "the Act contemplates that factual and credibility determinations will be made at the evidentiary stage of the post-conviction proceeding, and not at the dismissal stage." People v. Coleman, 183 Ill. 2d 366, 390-91 (1998). To permit the court to weigh the allegations in the petition and the documents filed specifically in support of those allegations against other evidence, that was not offered in support of the allegations in the petition or part of the original trial, even if that evidence is attached to the petition, would permit a factual and credibility determination that should not be made at this stage (Warren, 2016 IL App (1st) 090884-C, ¶ 77), and in this case it would allow the trial court to do so without defendant having the opportunity to contest the accuracy of the testing on the boxer shorts or the chain of custody. ¶ 28 We hold that at this stage, when the court is determining whether the petition states a colorable claim of actual innocence such that leave to file a successive petition must be allowed, the court is only to consider the well-pled allegations in the complaint and the documentation in support of those allegations to determine if they are positively rebutted by the record of the proceedings from which relief is sought (the trial) and whether the defendant has stated a colorable claim of actual innocence. ¶ 29 The new evidence on which the State relies is not part of the record of defendant's first trial. Therefore, the trial court erred in relying on evidence that was inadmissible at this stage of postconviction proceedings, and this court will not consider the newly discovered inculpatory evidence in our review of the trial court's judgment at this stage. Absent consideration of the new evidence obtained from the boxer shorts, we find that evidence defendant was not a contributor to the semen found in C.K.'s underwear is of such a conclusive character that it would probably change the result at a retrial. Defendant did not argue consent but maintained that the offense did not occur. Throughout its closing argument the State argued that the fact semen was found in C.K.'s underwear combined with her demeanor when reporting the assault proved that the assault did occur as C.K. testified despite the fact testing on the underwear could not point to a specific offender. The newly discovered evidence excluding defendant as a contributor to the semen stain undermines the entire basis of defendant's conviction. We hold the trial court improperly considered evidence outside the proceedings leading to defendant's conviction and that defendant stated a colorable claim of actual innocence such that leave to file a successive postconviction petition claiming actual innocence based on newly discovered evidence should have been granted. ¶ 30 The exceptions to the filing of successive postconviction petitions apply to claims, not to the petition as a whole. People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002). Therefore, we must review the remaining claims in defendant's petition to ascertain whether an exception applies to those claims. Id. "[T]he cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to section 122-3 so that a claim raised in a successive petition may be considered on its merits." Id. at 459. "Cause" in this context "refers to any objective factor, external to the defense, which impeded the petitioner's ability to raise a specific claim in the initial post-conviction proceeding." Id. at 462. "Prejudice, in this context, would occur if the petitioner were denied consideration of an error that so infected the entire trial that the resulting conviction or sentence violates due process." Id. at 464. At this stage of proceedings, the allegations of fact in the petition are liberally construed in favor of the petitioner and taken as true, and the court is foreclosed from engaging in any fact-finding. See Coleman, 183 Ill. 2d at 380-81 ("at the dismissal stage of a post-conviction proceeding *** the circuit court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act"). Accordingly we turn next to defendant's claims he satisfied the cause-and-prejudice test for his claims (1) the State knowingly used perjured testimony, (2) the State violated defendant's due process rights by failing to turn over exculpatory evidence, and (3) defendant's trial counsel was ineffective for failing to discover the falsehood in the State's expert's testimony.
Without addressing its merits, we note that the State argues Wilson testified that there was no DNA "that would enable her to determine the source of the semen." We construe the State to draw on a distinction between DNA that would permit identification of who a contributor is, and DNA that would permit identification of who a contributor is not, to argue that there is no evidence, including defendant's expert's affidavit, Wilson intended to make a false or inaccurate statement or knew that she did. The State makes this argument to refute defendant's claim it knowingly used perjured testimony; the State does not assert the exclusion of defendant as a contributor to the semen stain was discoverable through diligence.
Further, as defendant notes, this court has already found that "[a] conclusive determination of whether defendant's DNA is present in the semen sample in complainant's underwear would be both new and noncumulative and would be materially relevant to defendant's claim of actual innocence." Ware, 2012 IL App (1st) 103021-U, ¶ 24.
In support of the argument the trial court erred in considering the new inculpatory evidence, defendant's opening brief cites an unpublished order of this court for the proposition that review of an order denying leave to file a successive postconviction petition is based solely on the defendant's pleadings. We "remind defendant that unpublished Rule 23 orders are not precedential and may not be cited by parties except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case. [Citation.]" People v. Wilder, 356 Ill. App. 3d 712, 718-19 (2005) (citing Ill. S. Ct. R. 23(e) (eff. July 1, 2011)). --------
¶ 31 (1) Knowing Use of Perjured Testimony
¶ 32 First, defendant argues the fact forensic scientist Dr. Wilson manipulated the results of her testing to hide the fact her results excluded defendant as a contributor of the semen found in C.K.'s underwear is an objective factor that prevented him from raising his claim the State used perjured testimony to secure his conviction in his initial postconviction petition. Defendant further argues the use of perjured testimony to obtain a criminal conviction, even if the State did not know that Wilson's testimony was perjured—so long as Dr. Wilson knew it, is a violation of due process that is sufficient to support a finding of prejudice. The State responds its expert testified "in accordance with her report that the semen stain did not contain sperm or anything else that contained DNA that would enable her to determine the source of the semen." Defendant's expert opined that the State's expert's notes show that she identified a mixed DNA profile then manipulated the results to remove exculpatory results. Specifically, Dr. Reich averred, in pertinent part, as follows:
"6. I relied [for my opinions] on the *** hard copy data for the work performed by Dr. Wilson.
7. [T]he data produced by the genetic analyzer used by Dr. Wilson to analyze the semen stain on the complainant's panties clearly demonstrate that there was male DNA present in the tested stain in addition to DNA perfectly consistent with the complainant. The petitioner, Marvin Ware is excluded by these data as being a contributor to the tested stain.
8. The notes and data in what appears to be Dr. Wilson's own handwriting document the methodical, step by step production of a DNA profile that deliberately removed exculpatory results from a mixed DNA profile obtained from an intimate sample of the alleged victim.
13. The DNA profile [from the original electropherogram] is obviously from at least two contributors *** and one of the contributors must be male ***.
15. Contrary to Dr. Wilson's trial testimony in which she claimed that no DNA except that consistent with the complainant was evident, a second, male contributor is clearly present and evident in the electropherogram.
16. Dr. Wilson had developed a DNA profile from a known and chain of custody confirmed sample taken from petitioner Ware. His DNA profile could, and can, be compared to the partial profile observed as the minor contributor ***.
17. Mr. Ware is excluded as a contributor to sample W98-1124 2A, semen on panties.
18. As a highly trained and experienced DNA analyst Dr. Wilson was certainly aware of these facts. According to the data and what appear to be Dr. Wilson's own notes, Dr. Wilson used less total DNA in a brand new PCR amplification which eliminated the evidence of the male profile; because the male contributor was the minor component of the original mixture, adding less total
DNA would reduce the male DNA profile to below the level of detection *** thus making the exculpatory data disappear. Dr. Wilson was then able to claim that her testing showed no evidence of any DNA profiles other than the one consistent with that of the complainant.¶ 33 The State argues the defense expert is "not competent to testify as to Wilson's intentions, credibility, or truthfulness." The State also argues, without supporting facts, that the defense expert's "testimony benefitted from the advances in scientific DNA analysis in the many years that separated Wilson's analysis and testimony from [his] review of her work." This final contention is not helpful because defendant's expert based his opinions on Dr. Wilson's notes and the original analysis. Further, the fact the State's expert testified "in accordance with her report" is not a basis for finding that defendant's claim is contradicted by the record. In this case, the defense expert's opinion that Dr. Wilson falsified her report is based on a review of the original analysis and Dr. Wilson's notes of the analysis of the semen. That Dr. Wilson testified consistently with the report she allegedly manipulated to generate false data does not contradict the defense expert's analysis of the original DNA analysis and Dr. Wilson's notes. ¶ 34 Although the State argues that expert testimony about a witness's credibility is inadmissible, what the authority it relies upon actually says is "expert testimony pertaining to the credibility of a witness is inadmissible where it does not present a concept beyond the understanding of the average person." People v. Cox, 197 Ill. App. 3d 1028, 1034 (1990). "Expert testimony is admissible where the expert speaks to his or her knowledge as applied to the facts of a case without improperly commenting on witness credibility." People v. Cardamone, 381 Ill. App. 3d 462, 506 (2008). In People v. Smith, 236 Ill. App. 3d 35, 40 (1992), a licensed psychologist testified that he believed the child complainant told him the truth when the child told the psychologist about a sexual assault. The court addressed whether the trial court erred by allowing the psychologist to render an opinion on an ultimate issue: that the child told the truth about the defendant's conduct. Id. at 42. The court held the trial court did not err because the "opinion as to whether R.B. was telling the truth was within the area of his expertise as a child psychologist. Also, because the trier of fact was the court and not a jury, there was little or no chance that his opinion was overly invasive." Id. at 42. Dr. Reich's opinion that Dr. Wilson must have known that a male DNA profile was present in the semen stain and that defendant was excluded as a contributor to that DNA profile was based on an application of Dr. Reich's knowledge and experience and within his area of expertise as a molecular biologist. Further, the defense expert's opinion is not a direct commentary on Dr. Wilson's believability. See People v. Simpkins, 297 Ill. App. 3d 668, 683 (1998). Rather, it is circumstantial evidence—that is, it describes the data from the DNA tests and how that data was analyzed, allegedly manipulated, recorded, and ultimately testified to by the State's expert. If other evidence—particularly the analysis results and Dr. Wilson's notes—corroborate the expert's statements, a trier of fact could reasonably view that evidence as supporting defendant's claim the State's expert knowingly perjured herself. See id. Therefore, the defense expert's opinion is not an improper comment on witness credibility and is admissible. ¶ 35 We find defendant has shown cause for his failure to raise a claim the State's forensic scientist perjured herself and the original DNA analysis excluded him as a contributor to the semen stain in C.K.'s underwear in earlier proceedings. Evidence that the original DNA analysis shows that defendant could have been excluded as a contributor to the DNA originally identified from the semen stain in C.K.'s underwear, and that Dr. Wilson concealed that evidence, is newly discovered evidence. Cf. People v. Leason, 352 Ill. App. 3d 450, 455 (2004) (finding claim did not involve any newly discovered evidence and, therefore, the defendant was unable to establish cause for his default). The State's expert's failure to report the full scope of her findings and alleged manipulation of the evidence to hide it was an objective factor which impeded defendant's ability to raise the specific claim in the initial postconviction proceeding. We also find the alleged error so infected the entire trial that the resulting conviction or sentence violates due process. "The rule is well-established that the State's knowing use of perjured testimony to obtain a criminal conviction constitutes a violation of due process of law. [Citation.] A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury's verdict. [Citation.]" People v. Olinger, 176 Ill. 2d 326, 345 (1997). Therefore, defendant has shown prejudice from his inability to raise this claim. Pitsonbarger, 205 Ill. 2d at 464 ("Prejudice, in this context, would occur if the petitioner were denied consideration of an error that so infected the entire trial that the resulting conviction or sentence violates due process."). Defendant has satisfied the cause and prejudice test for his claim the State knowingly used perjured testimony. Therefore, leave to file this claim in a successive postconviction petition should have been allowed.
24. Dr. Wilson's own generated data in this case demonstrates conclusively that her testimony was false ***."
¶ 36 (2) Brady Violation
¶ 37 Defendant argues his claim the State violated Brady v. Maryland, 373 U.S. 83 (1963), "similarly provides a basis for a successive petition under the cause and prejudice test." The United States Supreme Court in Brady "set forth this general rule: 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.]" People v. Hobley, 182 Ill. 2d 404, 432 (1998).
"To establish a Brady violation, suppressed evidence must be both favorable to the accused and material. Favorable evidence is material in this
context 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' [Citation.] A 'reasonable probability' of a different result is a 'probability sufficient to undermine confidence in the outcome.' [Citation.] In making a materiality determination, a court considers the cumulative effect of all suppressed evidence favorable to the defense, rather than considering each piece individually. [Citation.]¶ 38 The State argues defendant cannot show that the forensic expert's analysis in 1998 excluded him as a source; therefore, defendant's argument the State had a duty to learn of the favorable evidence fails because defendant failed to demonstrate that at the time of trial the underlying test results constituted exculpatory evidence. "At the initial stage of the proceedings, where the defendant seeks leave to file the successive petition, a defendant is not required to conclusively prove his case." Warren, 2016 IL App (1st) 090884-C, ¶ 76. Rather, leave of court should be granted when the defendant's supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id.
The prosecution cannot escape its duty under Brady by contending that the suppressed evidence was known only to police investigators and not to the prosecutor. [Citation.] As the Supreme Court explained ***, 'any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.' [Citation.]" Id. at 432-33.
"To meet the cause-and-prejudice test for a successive petition requires the defendant to 'submit enough in the way of documentation to allow a circuit court to make that determination.' [Citation.] *** [W]e conclude that leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law." Smith, 2014 IL 115946, ¶ 35.We find defendant has met this threshold. ¶ 39 Based on a review of the successive petition and the documentation submitted by defendant, the claim of a Brady violation does not fail as a matter of law. See Smith, 2014 IL 115946, ¶ 35. The claims in the successive petition and the supporting documentation establish that evidence that was both favorable to defendant and material was known to the State's forensic expert. The State's argument its expert testified truthfully based on the scientific methods available at the time is misleading. Although new DNA testing was conducted on C.K.'s underwear, defendant's expert's opinions are based on a review of the data generated from the original tests Dr. Wilson conducted and her notes of that analysis. It is that information, available prior to trial that defendant claims the State failed to disclose. The State had an obligation to disclose that information, known to its expert, at that time. The State's arguments concerning Illinois Supreme Court Rule 417 (eff. Mar. 1, 2001), are inapposite. ¶ 40 Defendant has shown cause for failing to raise this claim in earlier proceedings and that prejudice would result from the inability to raise this claim. Supra ¶ 33. Leave to file a successive postconviction petition alleging a Brady violation should have been granted.
¶ 41 (3) Ineffective Assistance of Counsel
¶ 42 The State's argument defendant's alternative claim of ineffective assistance of counsel fails because it "relies on over 15 years' of hindsight, including advances in DNA analysis and the changes in discovery rules for DNA evidence" is unavailing. See supra ¶ 37. Defendant specifically alleges trial counsel was ineffective in failing to subpoena Dr. Wilson's records or seeking to interview Dr. Wilson, or obtaining an independent expert to review the results of the original analysis. That claim is not based on any advances in technology or hindsight. Defendant's expert averred that Dr. Wilson's notes from 1998 prove that her original analysis revealed a male DNA profile that excluded defendant as a contributor to the semen stain. It is that evidence defendant claims trial counsel should have investigated, not the results of modern DNA testing as the State suggests. Moreover, defendant's claims in the successive petition are not based on any allegation concerning a failure to comply with Rule 417. ¶ 43 We have already found cause for defendant's inability to raise a claim based on the DNA evidence excluding him as a contributor to the semen stain on C.K.'s underwear, and that the inability to address a claim defendant was deprived of that evidence would prejudice him because the error that so infected the entire trial that the resulting conviction or sentence violates due process. See supra ¶ 33. The same analysis applies to defendant's claims of a Brady violation and his alternative claim his trial counsel was ineffective in failing to discover the exculpatory evidence. Accordingly, we hold defendant has satisfied the cause and prejudice test for the claims in his successive postconviction petition and that leave to file the petition should have been granted.
¶ 44 Petition for Relief From Judgment
¶ 45 Defendant also argues his petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure should have been granted. "Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that would have precluded entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition." People v. Vincent, 226 Ill. 2d 1, 7-8 (2007).
"Section 2-1401 of the Code of Civil Procedure *** provides a comprehensive statutory procedure by which final orders and judgments may be challenged more than 30 days after their entry. People v. Harvey, 196 Ill. 2d 444, 447 (2001) (stating that section 2-1401 provides a civil remedy, which also applies to criminal cases). A section 2-1401 petition filed more than two years after the challenged judgment cannot be considered absent a clear showing that the person seeking relief was under a legal disability or duress or the grounds for relief were fraudulently concealed." Pinkonsly, 207 Ill. 2d at 562."To prove fraudulent concealment in a section 2-1401 petition, the petitioner must prove by clear and convincing evidence that the respondent intentionally misstated or concealed a material fact which the respondent had a duty to disclose and that the petitioner detrimentally relied on the respondent's statement or conduct." Cavitt v. Repel, 2015 IL App (1st) 133382, ¶ 46. ¶ 46 The State argues that the trial court properly denied defendant's petition for relief from judgment because "his proffered newly discovered evidence is not so conclusive that it would change the result at a retrial." The State again argues that any retrial would necessarily include the results of testing on the boxer shorts, and the trial court properly considered that evidence because defendant attached it to his petition. The State did not argue defendant's petition for relief from judgment was untimely. "If the party opposing the section 2-1401 petition does not raise the limitations period as a defense, it may be waived." Pinkonsly, 207 Ill. 2d at 562. The State argues that because defendant included his petition for relief from judgment with his successive postconviction petition, which he had not yet received leave to file, it would have been "inappropriate" for the State to file a written response. We find no basis for that assertion. As the State itself notes, the trial court treated the two pleadings separately. We see no reason the State could not have done the same. "If the State wished to argue that the defendant's section 2-1401 petition was untimely, it should have done so before the trial court, where any amendments could have been made and any factual disputes could have been resolved. [Citation.] The State waived its timeliness argument." Id. ¶ 47 The State's failure to answer the petition also constituted an admission of all well-pleaded facts and rendered the petition ripe for adjudication. Vincent, 226 Ill. 2d at 9-10. The trial court could either dismiss the petition or grant or deny the petition on the pleadings alone. Id. at 9. In this case the trial court denied the petition on the pleadings, "the functional equivalent of a dismissal for failure to state a cause of action." Id. at 14. "[W]hen a court enters either a judgment on the pleadings or a dismissal in a section 2-1401 proceeding, that order will be reviewed, on appeal, de novo." Id. at 18. We hold the dismissal of the petition for relief from judgment was error. The trial court found that defendant was diligent in discovering his claim and presenting the petition, and we agree. We find, however, that there is a question of fact as to whether defendant could prove by a preponderance of the evidence a defense that would have precluded entry of the judgment in the original action. "Where a material issue of fact exists, summary judgment is inappropriate and an evidentiary hearing—a trial in effect—is required in ruling on the petition." Id. at 9. ¶ 48 Defendant's petition for relief from judgment alleges that the true results of Wilson's testing and the new testing on the semen stain, both of which show that defendant is excluded as a contributor of the semen and the latter showing that the contributor of the semen was the complaining witness's adult houseguest, are newly discovered facts that would have prevented the entry of the judgment against him. Specifically, defendant's petition for relief from judgment argues that evidence he did not contribute to the semen stain would severely undercut the credibility of C.K.'s claim to have been sexually assaulted as she described, the evidence would have suggested a different offender, and it would offer a possible explanation both for C.K.'s demeanor when reporting the alleged assault and for implicating defendant. Defendant must prove these contentions by a preponderance of the evidence. The State will be allowed to present its DNA evidence from the boxer shorts in that hearing, which defendant may challenge based on the alleged deficiency in the chain of custody, the accuracy or conclusiveness of the testing, or on any other grounds. See Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 286 (1982) ("In a section [2-1401] proceeding, as in a proceeding on a summary judgment motion, factual disputes may arise that cannot be resolved solely on the basis of pleadings, affidavits, and the record of the prior proceeding. Where there is a genuine dispute as to an issue of fact, that issue must be determined by the trier of fact."). The trial court's judgment denying defendant's petition for relief from judgment is reversed and the cause remanded for an evidentiary hearing on the matters raised in the petition.
¶ 49 CONCLUSION
¶ 50 For the foregoing reasons, the circuit court of Cook County is reversed and the cause remanded for further proceedings. ¶ 51 Reversed and remanded.