Appeal from the Circuit Court of Cook County. P.C. No. 79C 4915 Honorable Frank W. Meekins, Judge Presiding.
The opinion of the court was delivered by: Justice Gordon
PRESIDING JUSTICE GORDON delivered the opinion of the court:
Defendant Maurice Dunn filed a pro se post-conviction petition, counsel was appointed and the trial court then dis-missed the petition without an evidentiary hearing. On appeal, defendant primarily contends that he is entitled to DNA testing.
Defendant's first trial for rape and aggravated battery (great bodily harm) resulted in a mistrial. Defendant was subsequently retried by a jury and was convicted of rape, aggravated battery (great bodily harm) and aggravated battery while on a public way. *fn1 He was sentenced to an extended prison term of 40 years. On direct appeal, this court vacated defendant's conviction for aggravated battery while on a public way, but affirmed defendant's remaining convictions and sentence. People v. Dunn, No. 1-80-2898 (1983) (unpublished order under Supreme Court Rule 23).
The evidence, as presented at the second trial, established that at about 7:45 a.m. on July 30, 1979, the victim was attacked by defendant as she was walking to a southside Chicago train station. Defendant forced her into a secluded area where the victim was able to clearly see defendant's face when he got on top of her and began choking her. During the attack, the victim was able to see defendant's face a few more times. Despite the victim's struggle, defendant raped her. When the victim identified defendant in court as her attacker, the victim said, "And I looked right at your face. I saw your face. I'll never forget your face. Ever."
She also stated that defendant was wearing a dark green jogging suit with yellow stripes on the sleeves.
Susan Kelly testified that minutes before the attack she too was going to the train station when she passed a man dressed like the attacker. She stated that defendant resembled that man.
Other evidence showed that defendant's father-in-law lived near the train station, and defendant's wife was living with him. Defendant presented an alibi claim that he was in Harvey, Illinois, where he resided.
On direct appeal, defendant contended that he received ineffective assistance of counsel because of defense counsel's lack of preparation at the second trial; that the trial court erred in denying his motion to suppress the victim's in-court identification of him; that he was not proven guilty beyond a reasonable doubt; that there was no indictment for aggravated battery while on a public way; that the trial court abused its discretion in sentencing defendant to an extended term; and that his second trial violated double jeopardy. This court vacated defendant's conviction for aggravated battery while on a public way because there was no indictment for it, but affirmed defendant's remaining convictions and sentence with this modification, finding that defendant was proved guilty beyond a reasonable doubt.
On January 31, 1989, defendant filed his pro se post-conviction petition. He alleged that he received ineffective assistance of counsel; that the State withheld material evidence favorable to him; that his constitutional rights were violated because the State used peremptory challenges to exclude black jurors; that his request for a reduction of sentence was proper; that the trial court erred in denying his motion to suppress the victim's in-court identification; that the trial court abused its discretion in sentencing defendant to an extended term; that his second trial was barred by double jeopardy; and that he was not proven guilty beyond a reasonable doubt. Defendant also filed a memorandum in support of his post-conviction petition and a motion for the appointment of counsel. His petition indicated that there were exhibits attached to the petition, but none are contained in the record on appeal. Defendant also requested an evidentiary hearing at which he wanted the following witnesses to appear: Dr. Koenigsknect, the doctor who examined the victim on the day of the attack; attorney Barry Spector, defendant's attorney at his first trial; and attorney O. Kenneth Thomas, defendant's attorney at his second trial.
On April 19, 1989, the State filed a motion to dismiss defendant's petition. On February 27, June 8, July 4, July 13, and July 16, 1992, defendant wrote various letters to the Cook County State's Attorney and the trial court requesting genetic testing or chemical castration. On December 8, 1995, the public defender, on behalf of defendant, filed a petition to compel genetic testing. On February 6, 1996, the State filed a motion to deny defendant's petition to compel genetic testing, and defendant's motion was withdrawn on April 19, 1996. On May 31, 1996, an assistant public defender filed a Supreme Court Rule 651(c) certification that she had examined defendant's pro se petition and did not amend it because she felt that nothing could be added. 134 Ill. 2d R. 651(c). On June 10, 1996, the trial court dismissed defendant's post-conviction petition with prejudice. Defendant's original notice of appeal was filed in the circuit court on June 10, 1996, but was not filed in this court until January 23, 1998. Finally, on December 1, 1998, defendant filed an affidavit in the form of a supplemental record with this court, averring that he did not know until recently that the motion to compel genetic testing had been withdrawn.
Defendant contends that the trial court erred in dismissing his post-conviction petition, which contained a viable claim of innocence based on the assertion that genetic testing would exonerate him. In the alternative, defendant contends that this cause must be remanded for further proceedings because his post-conviction counsel did not provide him with a reasonable level of assistance when she did not amend defendant's pro se petition to include his meritorious claim of actual innocence.
The State subsequently filed a response to defendant's motion to supplement the record on appeal with his affidavit dated November 17, 1998. The State contends that this constituted new evidence which was prepared and submitted in direct response to the State's argument that defendant never objected to the withdrawal of the motion for genetic testing. The State requests that this court deny defendant's motion to supplement the record with his affidavit and strike from defendant's reply brief any reference to the affidavit.
We first address the State's motion to strike defendant's affidavit and a portion of defendant's reply brief. We took the motion with the case. The supreme court rules permit supplementing the record on appeal. People v. Gonzalez, 268 Ill. App. 3d 224, 229 (1994). However, supplements to the record must contain material which was before the trial court. Gonzalez, 268 Ill. App. 3d at 229. Supreme Court Rule 329 allows for material omissions or inaccuracies to the record may be corrected. 134 Ill. 2d R. 329. Rule ...