The opinion of the court was delivered by: Justice Heiple
Docket No. 85982-Agenda 2-May 2000.
Defendant, Cecil Sutherland, appeals from the denial of his post-conviction petition after an evidentiary hearing in the circuit court of Jefferson County. Because defendant has been sentenced to death, his appeal lies directly to this court. 134 Ill. 2d R. 651(a). We reverse defendant's convictions and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was tried by a jury in 1989 for aggravated kidnaping, aggravated criminal sexual assault, and three counts of murder. The following evidence was presented at his trial. On July 2, 1987, an oil field worker discovered the nude body of 10-year-old Amy Schulz near an oil lease access road in rural Jefferson County. Amy's body was lying on its stomach covered with dirt. There were shoeprint impressions on her back. A large, open wound on the right side of her neck exposed her spinal cord. Several pubic hairs were found stuck in her rectal area. On the ground near the body were automobile tire impressions and a shoe impression similar to that on Amy's back. Her clothes were found strewn along the access road.
An autopsy of Amy's body revealed a wound to the neck extending from her throat to her right ear. Her right eye was hemorrhaged, the base of her ear was torn away from the skin, and her lips were lacerated from compression against her teeth. There were linear abrasions to the outer lips of the vagina and evidence of tearing of the rectal mucosa. Her body also had a fractured rib, torn liver, bruised esophagus, and hemorrhages in the vocal cords and inside the skull. The medical examiner determined that Amy's attacker had anally penetrated her, strangled her to unconsciousness, slit her throat, and stepped on her body to force exsanguination. Based on her stomach's gastric contents, the time of death was fixed between 9:30 and 11 p.m. on July 1, 1987. Evidence at trial indicated that Amy was last seen walking alone on a road in Kell, Illinois, at approximately 9:10 to 9:15 p.m. on July 1.
Police determined that the tire prints found near the body were consistent with only two types of tires manufactured in North America: the Cooper "Falls Persuader" and the Cooper "Dean Polaris." Police also ascertained that the shoe prints found on and near the body were made by a boot sold by K mart called the "Texas Steer."
Several months after the crime, police were contacted by law enforcement authorities at Glacier National Park in Montana, where defendant had been arrested for shooting at park rangers. Park authorities reported that defendant's car had a single Cooper Falls Persuader tire on the right front wheel, and that a pair of Texas Steer boots was found in his possession. Police also discovered that, at the time of Amy's murder, defendant was living in Dix, Illinois, a few miles from where the body was found.
Expert witnesses testified for the State at trial that the tire prints discovered near the body corresponded with the tread from the tire found on defendant's car in Montana. Expert testimony also indicated that: (1) 34 dog hairs found on Amy's clothing were consistent with hairs from defendant's black Labrador and inconsistent with hairs from Amy's family's dogs and her neighbors' dogs; (2) 29 fibers found on Amy's clothing could have originated from the carpet or upholstery of defendant's vehicle; and (3) 19 fibers found in defendant's vehicle could have originated from Amy's clothing. A forensic scientist also testified for the State that the two pubic hairs recovered from Amy's rectal area could have originated from defendant, but did not originate from 24 other suspects in the case or from any member of Amy's family.
Defendant's sister-in-law testified that on the night of the crime, defendant was at her house near Kell until 8 or 8:30 p.m. An expert for the defense testified that most of the clothing fibers recovered from defendant's vehicle were inconsistent with fibers from Amy's clothing.
The jury convicted defendant on all charges, found him eligible for the death penalty, and determined that there were no mitigating factors sufficient to preclude a sentence of death. The trial court accordingly sentenced defendant to death.
On direct appeal, this court held that the prosecution at trial improperly argued before the jury that the hair and fiber evidence conclusively established that Amy Schultz had been in defendant's car. People v. Sutherland, 155 Ill. 2d 1, 25 (1992). We noted that expert testimony at trial instead indicated merely that hair and fibers from the crime scene were "consistent with" those from defendant's car. Nevertheless, we held this error to be immaterial because the evidence at trial was not closely balanced. Sutherland, 155 Ill. 2d at 25-26. We thus declined to order a new trial, and affirmed defendant's convictions and death sentence in all respects. Sutherland, 155 Ill. 2d at 31.
Defendant subsequently filed a post-conviction petition in the circuit court raising a variety of claims. The court dismissed most of the claims in the petition, but granted an evidentiary hearing on the following allegations: (1) that defendant's trial counsel was ineffective in failing to discover and present evidence that defendant's purchase of "Texas Steer" boots and installation of the Cooper "Falls Persuader" tire on his car both occurred after the date of the crime; (2) that the conviction of Amy's step-grandfather for sexual abuse subsequent to her death constituted evidence of defendant's actual innocence; and (3) that the verdict form signed by the jury at sentencing was defective.
At the evidentiary hearing, defendant's mother testified that at the time of Amy Schulz's murder, defendant wore black lace-up boots that were nearly knee-high. In contrast, she testified, the Texas Steer boots recovered from defendant after his arrest in Montana were tan in color and "above-ankle." She stated that defendant bought the Texas Steer boots sometime in July after Amy Schulz's murder, and that she had offered the receipt for this purchase to defendant's counsel prior to defendant's original trial. She also testified that defendant changed the two front tires on his car before he left for Montana and after the date of Amy's murder.
The defense called a retired Chicago police officer who testified that at least 75% of homicide victims and child sexual assault victims know their attackers. He testified that in his career as a police investigator, he would typically look for suspects in murder and child sexual assault cases among the victim's family and friends and among the last persons to have seen the victim alive. He stated that his review of the ...