                                  Illinois Official Reports

                                          Appellate Court



                              People v. Smith, 2014 IL App (1st) 113265



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      LESHUN SMITH, Defendant-Appellant.

District & No.               First District, Fourth Division
                             Docket No. 1-11-3265

Filed                        March 27, 2014

Held                         The trial court’s denial of defendant’s request for DNA testing of a
(Note: This syllabus         sweatshirt and gloves discovered at the time of his arrest for first
constitutes no part of the   degree murder was reversed and the cause was remanded to allow the
opinion of the court but     trial court to order such testing, since the sweatshirt and gloves were a
has been prepared by the     central focus at defendant’s trial, and in his appeal, the record showed
Reporter of Decisions        defendant made no inculpatory statements, the State’s case was
for the convenience of       largely circumstantial, and the requested testing is materially relevant
the reader.)                 to defendant’s claim of actual innocence, especially if defendant’s
                             DNA is absent or another person’s DNA is present.



Decision Under               Appeal from the Circuit Court of Cook County, No. 99-CR-26852; the
Review                       Hon. Maura Slattery-Boyle, Judge, presiding.



Judgment                     Reversed and remanded with directions.



Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Megan E. Ledbetter, all of
Appeal                       State Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             Christine Cook, and Amy M. Watroba, Assistant State’s Attorneys, of
                             counsel), for the People.
     Panel                       JUSTICE LAVIN delivered the judgment of the court, with opinion.
                                 Presiding Justice Howse and Justice Epstein concurred in the
                                 judgment and opinion.




                                                    OPINION

¶1          Defendant, Leshun Smith, appeals from an order of the circuit court of Cook County
       denying his motion for deoxyribonucleic acid (DNA) testing under section 116-3 of the Code
       of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2010)). He contends that the
       trial court erred in denying his motion because the testing requested has the potential to
       produce noncumulative evidence materially relevant to his claim of actual innocence. He thus
       requests that we reverse the trial court’s order and remand his cause with instructions that the
       court order DNA testing on two items of clothing that were presented at trial.
¶2          The record shows that defendant’s 2001 conviction of first degree murder arose from
       events that transpired on October 28, 1999, near 1821 West 56th Street in Chicago, Illinois. On
       that date, Melvin Owens was fatally shot by a man wearing a gray sweatshirt, and, later that
       same day, police found defendant sitting on a gray sweatshirt in a van matching the description
       of the getaway vehicle and from which the murder weapon was thrown.
¶3          At trial, Sheila Smith 1 testified that about 1 p.m. on the day of the incident she was outside
       her apartment building at 1839 West 56th Street, unloading groceries from her car, when her
       friend Owens approached her. After a brief conversation, Owens walked to a store about 100
       feet from her building. Shortly thereafter, she saw a man wearing a gray “hoody” approach the
       entrance to her building, and although the hood was over his head, she was able to see his face
       from a distance of about five feet when he turned to peer inside. Sheila identified defendant in
       court as that man and further testified that she continued to watch as defendant walked away
       and “duck[ed]” behind a nearby garage. Soon thereafter, she saw defendant emerge from that
       garage when Owens exited the store and began walking in her direction. She yelled “watch
       out,” then saw defendant shoot Owens numerous times before running toward Wolcott Street.
       Although she could not see defendant’s face at that time, the shooting occurred a block away
       from her and nothing was obstructing her view. The following day, she viewed a lineup at the
       police station and identified defendant as the shooter. She also identified a picture of a hoody
       as the one she saw defendant wearing the previous day.
¶4          Jean Turner testified that about 1 p.m. on the day of the incident, she was sitting on her
       porch at 5527 South Wolcott Street and saw a van park in front of her home. Shortly thereafter,
       she heard several gunshots, followed by a “click,” and saw that the rear passenger side door of
       the van was now slightly ajar. She then saw a man running north on Wolcott in her direction.
       His hands were inside the pockets of the gray sweatshirt he was wearing, and he became briefly
       tangled in a wire fence in her yard as he entered the van. At that time, she was able to see his
       face from a distance of about six feet, and, because his hood was approximately an inch away
       from his forehead, she was also able to see the color of his hair. Turner identified defendant in
       court as that man and further testified that after the van sped away, she wrote down the license

             1
              Sheila Smith and defendant are not related.

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       plate number of the van and gave it to police, along with a description of defendant. Later that
       day, she viewed a lineup at the police station and identified defendant as the man she had seen
       running down the street and jumping into a van shortly after she heard gunshots. Police also
       showed her a picture of a sweatshirt, and she identified it as the one worn by defendant.
¶5         Lola Smith, Sheila’s mother, testified that about 1 p.m. on the day of the incident, she was
       helping Sheila with groceries when Owens approached them and spoke briefly before walking
       to a nearby store. Shortly thereafter, she saw a man wearing a gray hooded sweatshirt peer into
       Sheila’s apartment building, then walk away. She did not pay particular attention to him after
       that, but Sheila continued to watch him. A short while later, she heard a gunshot and saw
       Owens fall to the ground, then saw the man in the gray sweatshirt repeatedly shoot Owens
       before running toward Wolcott Street. Lola viewed a lineup at the police station the following
       day, but did not identify anyone because she had only caught a “glimpse” of the shooter and
       did not want to pick out the wrong person.
¶6         Amos Thompson testified that he owns the van in which defendant was found on the day of
       the incident. He loaned the van to Lorenzo Banks in the early morning hours of October 28,
       1999, and he next saw it several days later at the police pound. When police questioned him on
       the day of the incident, he provided them with Banks’ name and address.
¶7         Chicago police officer Robert Haile testified that he and his two partners set up a
       surveillance near Banks’ home on the day of the incident. About 30 minutes later, they
       “curbed” a van matching the description of the getaway vehicle. As the officers approached the
       van, Officer Haile saw a handgun “come flying” out of the rear passenger window. The
       officers detained the four men inside of the van: William Jackson, the driver; Banks, the front
       seat passenger; Marlon Hayes; and defendant, who was sitting on a gray sweatshirt in the rear
       passenger seat behind the driver. Officer Haile then recovered the gun, which was later
       inventoried.
¶8         Forensic investigator John Stout testified that he processed the van at issue, and, in doing
       so, recovered, inter alia, a gray, hooded sweatshirt and gloves that were inside a pouch of the
       sweatshirt and later inventoried. He further testified that he conducted a gunshot residue exam
       on defendant while his partner conducted exams on Banks, Hayes and Jackson. These exams
       were inventoried and routed for lab analysis.
¶9         Forensic scientist Peter Brennan testified that he specializes in firearms identification and
       described the procedures he followed in analyzing the gun and two gun cartridges that were
       recovered on the scene in this case. In his opinion, those two cartridges were fired from that
       gun “to the exclusion of any other firearm.”
¶ 10       Forensic scientist Robert Berk testified that he performed tests on the four gunshot residue
       kits in this case. He described the procedures he followed in doing so and stated that the results
       of defendant’s kit reflected normal hand blank limits, meaning that he was not involved in the
       discharge of a weapon, that the weapon that was discharged did not emit sufficient residue in
       order to test positive, or that he was able to remove the gunshot residue from his hands prior to
       the test being taken. On cross-examination, Berk testified that he also tested the kits of Jackson
       and Hayes, whose results also indicated normal hand blank limits, as well as Banks, whose
       results were inconclusive.
¶ 11       Latent print examiner Jennifer Barrett described the procedures she followed in examining
       a gun, a magazine, four cartridges and two shell casings in relation to this case, and she
       testified that she was unable to recover any suitable latent impressions on those items.

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¶ 12        Chicago police detective John Posluszny testified that he conducted a lineup on the day of
       the incident as well as the following day, and that defendant, Banks, Jackson and Hayes
       participated in both lineups.
¶ 13        The parties then stipulated that defendant was stopped in the van at 802 East 75th Street in
       Chicago, Illinois, at 2:43 p.m. on October 28, 1999. The parties further stipulated that, if called
       to testify, Officer Haile would state that in a supplementary report he wrote that he saw a
       bluesteel handgun fly from the passenger side of the vehicle and land on the curb.
¶ 14        Defendant testified that about 2 p.m. on the day of the incident, he was walking to a gas
       station on 76th Street and Cottage Grove to buy cigarettes, when he encountered his friends
       Jackson and Banks, and accepted their invitation to drink with them in their van. Jackson was
       the driver, Banks was in the front passenger seat, and defendant sat behind the driver’s seat; no
       one else was in the van at that time. They drove around listening to music, and when the van
       was later stopped by police, defendant did not know what was going on. At that time, he saw
       Banks throw a gun out of the front passenger window and did not know where the gun came
       from. On cross-examination defendant acknowledged that he was sitting on a gray sweatshirt
       in the van, but he stated that it did not belong to him. He further stated that he did not recall
       telling police that Banks had been driving the van or that he, Banks and Hayes picked Jackson
       up from a liquor store.
¶ 15        In rebuttal, the State called Detective Posluszny, who testified that after defendant was
       arrested and advised of his rights, he stated that Banks had been driving the van and that they
       met Jackson at a liquor store.
¶ 16        The jury found defendant guilty of first degree murder and he was subsequently sentenced
       to 36 years’ imprisonment. On direct appeal, this court affirmed that judgment after granting
       appellate counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
       People v. Smith, No. 1-01-3188 (2002) (unpublished order under Supreme Court Rule 23). In
       doing so, we also considered defendant’s pro se claims and found that the identification
       testimony presented at trial was sufficient to prove him guilty beyond a reasonable doubt, and
       although no gunshot residue was found on his hands, that a pair of gloves was found in the
       pocket of “defendant’s sweatshirt.” Id. at 2.
¶ 17        Defendant subsequently filed a pro se postconviction petition, after which counsel was
       appointed to represent him. Postconviction counsel then filed an amended petition, alleging,
       inter alia, that pursuant to section 116-3 of the Code, defendant is entitled to DNA testing on
       the sweatshirt and gloves. Pursuant to the circuit court’s request, postconviction counsel filed a
       separate motion on that issue. After a hearing thereon, the circuit court denied the motion,
       finding that defendant failed to show that the DNA testing would reveal evidence materially
       relevant to his assertion of actual innocence, in light of the eyewitness evidence presented
       against him at trial.
¶ 18        In this appeal, defendant contends that the trial court erred in denying his request for DNA
       testing on the sweatshirt and gloves because the testing requested has the potential to produce
       noncumulative evidence materially relevant to his claim of actual innocence. We review a
       denial of a postconviction request for forensic testing de novo. People v. Shum, 207 Ill. 2d 47,
       65 (2003).
¶ 19        Section 116-3 of the Code delineates the prerequisites a defendant must meet in order to
       establish that he is entitled to, inter alia, postconviction forensic DNA testing. 725 ILCS
       5/116-3 (West 2010). In relevant part, defendant must first show that his request for forensic

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       testing relates to evidence that was secured in relation to the trial which resulted in his
       conviction, and that this evidence was (1) not subject to the testing which is now requested at
       the time of trial, or (2) although previously subjected to testing, that it can now be subjected to
       additional testing utilizing a method that was not scientifically available at the time of trial. 725
       ILCS 5/116-3(a)(1), (2) (West 2010).
¶ 20        The State maintains that defendant cannot get past this initial hurdle because he has failed
       to show that the requested DNA testing was unavailable at the time of trial. We disagree.
       Although a prior version of the statute imposed such a limitation as to all evidence at issue (725
       ILCS 5/116-3 (West 2006)), the statute has subsequently been amended, separating evidence
       into two classifications; evidence that was not subjected to the testing now requested at the
       time of trial, and evidence that had previously been subjected to testing but can now be
       subjected to additional testing (725 ILCS 5/116-3(a)(1), (2) (West 2010)). In its current form,
       if the evidence at issue was not subjected to the requested testing at the time of trial, section
       116-3 does not require that that type of testing not have been scientifically available at that
       time. 725 ILCS 5/116-3(a)(1), (2) (West 2010); People v. Rozo, 2012 IL App (2d) 100308, ¶ 6;
       People v. Pursley, 407 Ill. App. 3d 526, 531 (2011). Here, the State concedes that the gloves
       and sweatshirt were not previously subjected to DNA testing.
¶ 21        In this respect, we find the case at bar distinguishable from People v. Barker, 403 Ill. App.
       3d 515, 520-21 (2010), cited by the State, where the evidence which defendant sought to be
       tested had been subjected to DNA testing at the time of trial. As such, defendant in Barker was
       subject to section 116-3(a)(2), which requires that defendant show that the requested testing
       was not available at the time of trial, and not to section 116-3(a)(1), which does not contain
       such a requirement. 725 ILCS 5/116-3(a)(1), (2) (West 2010). Further, to the extent that our
       decision in Barker implies that the unavailability element applies to all evidence, regardless of
       whether it had previously been subjected to testing, we note that our citation was to the prior
       version of the statute, which indeed contained that limitation. Barker, 403 Ill. App. 3d at 524.
       This is not the case under the current version of the statute.
¶ 22        Defendant must next present a prima facie case that identity was an issue at his trial and
       that the evidence to be tested has 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. 725
       ILCS 5/116-3(b) (West 2010). If defendant does so, section 116-3 provides that the court shall
       allow the requested testing, provided that it determines that (1) the result of the testing has the
       scientific potential to produce new, noncumulative evidence materially relevant to defendant’s
       assertion of actual innocence even though the results may not completely exonerate him, and
       (2) the requested testing is generally accepted in the scientific community. 725 ILCS
       5/116-3(c) (West 2010).
¶ 23        Here, the State concedes that defendant has established a prima facie case that identity was
       an issue at his trial and that the gloves and sweatshirt have been subject to a proper chain of
       custody. The State maintains, however, that the trial court correctly found that defendant failed
       to show that the requested testing had the potential to produce evidence which is materially
       relevant to his claim of actual innocence.
¶ 24        Evidence which is materially relevant to a claim of actual innocence is evidence which
       tends to significantly advance that claim, and, pursuant to the express terms of the statute, need
       not completely exonerate a defendant. People v. Savory, 197 Ill. 2d 203, 213-14 (2001). In
       determining whether evidence is materially relevant to defendant’s claim of actual innocence,


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       we may consider the evidence introduced at trial, in addition to assessing the evidence
       defendant is seeking to test. Savory, 197 Ill. 2d at 214.
¶ 25        Here, defendant was connected to Owens’ shooting through Sheila’s identification of him
       as the shooter and Turner’s identification of him as the person she saw escaping in a van
       shortly after the shooting. Evidence was presented that the shooter was seen wearing a gray
       sweatshirt, and, about an hour and a half after the shooting, defendant was found sitting on a
       gray sweatshirt in a van matching the description of the getaway vehicle and from which the
       murder weapon was thrown. An investigator discovered a pair of gloves inside a pouch of the
       sweatshirt. That said, no forensic evidence linked defendant to the crime, as no suitable
       fingerprints were available for analysis, defendant’s gunshot residue test yielded results within
       normal limits, and the sweatshirt and gloves were not submitted for forensic testing. Defendant
       made no incriminating statements to police or other witnesses, and he denied his involvement
       in the shooting and denied that the gray sweatshirt belonged to him.
¶ 26        At trial, and in this appeal, defendant argues that Banks, and not he, was the shooter,
       pointing out that Banks’ gunshot residue test yielded inconclusive results, that Banks was the
       one who borrowed the van in question, and that he testified that he saw Banks throw the
       murder weapon from the front passenger window of the van. Defendant maintains that if DNA
       testing of the sweatshirt and gloves reveals that his DNA was not present, but that Banks’ DNA
       was present, it would strongly support his defense theory that Banks was the shooter, thereby
       significantly advancing his claim of actual innocence.
¶ 27        In response, the State argues that, at best, the testing defendant seeks would show that
       someone else touched the clothing, which would not overcome the credible identifications
       made of him by Sheila and Turner, and the consistent testimony of other witnesses, and thus
       would not be materially relevant. In so arguing, the State relies on People v. Barrow, 2011 IL
       App (3d) 100086, ¶ 32, People v. Gecht, 386 Ill. App. 3d 578, 584 (2008), and People v.
       Urioste, 316 Ill. App. 3d 307, 318 (2000), cases in which the reviewing courts found that the
       requested DNA testing would not be materially relevant. In Barrow, defendant made
       incriminating statements to an acquaintance in which defendant recounted how he committed
       the crime. Barrow, 2011 IL App (3d) 100086, ¶ 7. The reviewing court relied heavily upon
       these statements in finding that the requested testing would not materially advance defendant’s
       claim of actual innocence. Barrow, 2011 IL App (3d) 100086, ¶¶ 29, 32. Similarly, the
       defendant in Gecht made incriminating statements to police, which the reviewing court relied
       upon in determining whether the requested DNA evidence was materially relevant. Gecht, 386
       Ill. App. 3d at 580, 583-84. Finally, in Urioste, not only did the defendant make incriminating
       statements to police, but he relied upon an insanity defense at trial, which, the reviewing court
       found, made him ineligible to seek DNA testing under section 116-3, because identity was no
       longer at issue as he had admitted to committing the crime. Urioste, 316 Ill. App. 3d at 310,
       316-17. Here, in contrast, defendant made no such incriminating statements, nor did he rely
       upon an insanity defense. Thus, the reasoning employed in Barrow, Gecht, and Urioste is
       inapplicable to the case at bar.
¶ 28        Defendant, on the other hand, cites, inter alia, People v. Savory, 197 Ill. 2d 203 (2001), and
       People v. Johnson, 205 Ill. 2d 381 (2002), in support of his request for testing. In Savory,
       defendant was convicted of two counts of murder, and, at trial, the State presented evidence
       that defendant made inculpatory statements to three of his friends, that he made statements to
       police revealing knowledge of the crime scene that only the offender would have known, and
       that a pair of pants stained with blood matched the same blood type as one of the victims.

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       Savory, 197 Ill. 2d at 206-08. The trial court denied defendant’s subsequently filed section
       116-3 motion for DNA testing of the bloodstained pair of pants, and the reviewing court
       affirmed that order on appeal. Savory, 197 Ill. 2d at 208-09. In affirming the appellate court’s
       order, the supreme court found that the requested testing would not materially advance
       defendant’s claim of actual innocence. Savory, 197 Ill. 2d at 214. The court reasoned that the
       testimony regarding the possible source of the bloodstain on the pants was only a minor part of
       the State’s evidence and that a far greater portion of its case consisted of defendant’s
       knowledge of certain features of the crime scene and his inculpatory statements to three
       friends. Savory, 197 Ill. 2d at 214-15. The court also noted that the State concentrated on those
       aspects of the case during closing argument and did not mention the evidence regarding the
       bloodstained pants until rebuttal closing argument. Savory, 197 Ill. 2d at 215.
¶ 29       Following Savory, the supreme court decided Johnson, 205 Ill. 2d at 387, in which
       defendant was convicted of, inter alia, rape and attempted murder. In finding that the trial
       court erred in denying defendant’s request for DNA testing of a Vitullo kit, the court reasoned,
       inter alia, that unlike Savory, defendant did not make damning admissions placing himself at
       the crime scene. Johnson, 205 Ill. 2d at 396. The court noted that the State presented a strong,
       but largely circumstantial, case and that the only direct evidence of defendant’s guilt came
       from the victim’s identification, and it found that a favorable result on a DNA test of the
       Vitullo kit would significantly advance his claim of actual innocence. Johnson, 205 Ill. 2d at
       396-97.
¶ 30       Here, as in Johnson, defendant made no inculpatory statements, and the State’s case
       against him was largely circumstantial. Further, unlike Savory, the gray sweatshirt was not
       merely a minor part of the State’s evidence against him, for the record shows that during
       closing argument, the State referenced the gray sweatshirt 19 times. Moreover, in affirming
       defendant’s conviction on appeal, we placed significance on the pair of gloves found inside the
       sweatshirt, noting that no gunshot residue was found on defendant’s hands, but a pair of gloves
       was found on “defendant’s sweatshirt.” Smith, slip op. at 2. This statement implies that
       defendant wore the gloves at the time of the shooting, thereby preventing gunshot residue from
       collecting on his hands, and that the sweatshirt belonged to him. Accordingly, we find that the
       gray sweatshirt and gloves were a central focus both at trial and on appeal, and, as such, a
       favorable result on a DNA test of these items could significantly advance defendant’s claim of
       actual innocence. Johnson, 205 Ill. 2d at 396-97.
¶ 31       In reaching this conclusion, we have considered the State’s argument that the testing
       cannot yield materially relevant evidence of actual innocence because the sweatshirt and
       gloves are not items of an intimate nature. In so arguing, the State attempts to minimize the
       significance of a scenario in which another person’s DNA is found on the items at issue. In
       doing so, the State ignores the fact that defendant’s argument does not center solely on the
       presence of another person’s DNA on those items but, rather, on the ramifications of the
       absence of his DNA from those items. Further, although the State maintains that the requested
       DNA testing would not overcome the “unequivocal” identifications of defendant by Sheila and
       Turner, we observe that neither witness testified that she was previously acquainted with
       defendant and that requested DNA testing has been deemed materially relevant even where the
       victim was previously married to the defendant (People v. Hockenberry, 316 Ill. App. 3d 752,
       754, 757 (2000)).
¶ 32       For the foregoing reasons, we find that the DNA testing of the gray sweatshirt and gloves
       requested by defendant is materially relevant to his claim of actual innocence and, accordingly,

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       reverse the trial court’s order denying his section 116-3 motion. We remand this case so that
       the trial court may order DNA testing of the gray sweatshirt and gloves.

¶ 33      Reversed and remanded with directions.




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