The opinion of the court was delivered by: Presiding Justice Burke
Appeal from the Circuit Court of Cook County. Honorable William S. Wood, Judge Presiding.
Defendant James Barksdale appeals from an order of the circuit court summarily dismissing his second post-conviction petition without an evidentiary hearing. Following a jury trial, defendant was convicted in 1972 of rape, deviate sexual assault, and aggravated kidnaping, and we affirmed his convictions and sentences on direct appeal. People v. Barksdale, 24 Ill. App. 3d 489, 321 N.E.2d 489 (1974). Thereafter, defendant's subsequent initial post-conviction petition was dismissed in 1985, and his second petition in 2000. On appeal, defendant contends that he was entitled to the appointment of an attorney and an evidentiary hearing on his second post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 (West 2000)) because his petition stated the gist of a meritorious constitutional claim based on his allegations that (1) pursuant to section 116--3 of the Code of Criminal Procedure (Code) (725 ILCS 5/116--3 (West 2000)), he was entitled to have DNA tests conducted on certain articles of the victim's clothing that the trial court had ordered preserved and (2) that the potentially exculpatory evidence of his innocence could not be tested because the State destroyed the evidence in 1982, thereby violating his constitutional rights. For the reasons set forth below, we reverse and remand.
We briefly recite some of the relevant testimony from defendant's 1972 trial. *fn1 At trial, the victim testified that on June 23, 1971, at approximately 4 a.m., a man she later identified as defendant passed her in his car while she was walking down Sheridan Road in Chicago toward her house. Defendant pulled up along side of her, jumped out of the car, hit her in the head, and pulled her back into his vehicle. Defendant pushed her onto the floor in the back seat, placed what she believed was a gun to her head, and told her to be quiet or he would kill her. Defendant began driving and continued to threaten to kill her while keeping his hand on her upper thigh.
The victim further testified that at approximately 6:10 a.m., defendant stopped the car in an open area that she did not recognize. He removed a cord from his trunk which he used to tie her hands behind her back, dragged her from the car, and threw her onto a sleeping bag that he had stretched on the ground. Defendant ripped open her blouse and removed her bra and pants. Thereafter, she complied with defendant's request to perform an act of "oral copulation" upon him, defendant then struck her above her right breast and on the side of her head and threatened to beat her further, and defendant then performed an act of "oral copulation" upon her. She further stated that she was then allowed to put her clothing back on, and, a short time thereafter, defendant placed her back in the rear seat of the vehicle, defendant again ordered her to remove her clothing, and defendant forced her to have intercourse and anal intercourse with him. Defendant subsequently dropped her off in an alley where she told two men nearby what had happened, called the police, and she was taken to the hospital.
The victim also described the person who attacked her as a black male, 5' 10" tall, 150 to 175 pounds, 25 to 26 years of age, with ear-length sideburns, wire-rimmed glasses, a short-sleeved knit shirt, corduroy slacks, brown sandals, black socks, red underwear, small pock marks on his face under the sideburns, and no moustache. She described his car as a black two-door Chevrolet Impala hardtop with a black interior. She subsequently identified defendant as the attacker on August 3, 1971, in a police lineup of five men at the Evanston police station.
A doctor from Holy Cross Hospital testified that he examined the victim on June 23, 1971, in the emergency room and took a vaginal smear which tested positive for the presence of spermatozoa. A detective from the Evanston police department testified that on August 2, 1971, he saw defendant driving a 1968 black two-door Chevrolet Impala with a black vinyl top on Sheridan Road in Evanston. In a parking lot on the campus of Northwestern University, the detective approached defendant who, at the detective's request, opened the trunk of his vehicle. Defendant was placed under arrest and a search of the vehicle revealed a loaded chrome-plated, .32-caliber, automatic handgun underneath the driver's seat. Another detective testified that after defendant's arrest, he recovered a pair of wire-rimmed glasses in a briefcase in the rear seat of defendant's vehicle.
Two witnesses subsequently testified for the defense that defendant in June and July of 1971 always wore a moustache and had a medium-length natural haircut. The State presented a rebuttal witness, who was the complaining witness in an indictment charging defendant with another rape, who testified that on July 8, 1971, at approximately 11 a.m., she received a ride from defendant in a two-door, black Impala on Sheridan Road in Chicago. Defendant stopped his car on a dirt road after 30 or 40 minutes where the witness was confined for the next 4 hours. It remained dark outside for three hours and was light outside for one hour. The witness later identified defendant as a black male, 5' 10" tall, 170 pounds, with a short Afro, small sideburns, pock marks on his face, gold-rimmed glasses, and no moustache. She testified that the next time she saw defendant at the Evanston police station on August 3, 1971, he was wearing a moustache. On cross-examination, the witness testified that before entering defendant's car, she had consumed one-half of a bottle of wine. She also stated that she originally told the police that defendant's car was a four-door hardtop, dark colored, possibly green, with a squeaky passenger door. On redirect examination, the witness testified that during the incident with defendant, he had a chrome-plated revolver in his hand.
The jury found defendant guilty of rape, deviate sexual assault, and aggravated kidnaping. Defendant was sentenced to three consecutive terms of 50-100 years', 50-100 years', and 10-14 years' imprisonment, respectively, on these convictions. His convictions and sentences were affirmed on direct appeal. Barksdale, 24 Ill. App. 3d 489.
Thereafter, defendant made attempts to obtain habeas corpus relief, which failed. Defendant filed his first petition for post-conviction relief in January 1985. The petition was dismissed as untimely. None of the issues raised in defendant's prior appeals of his convictions and sentences or in his initial post-conviction petition are at issue in the present appeal.
On January 11, 2000, *fn2 defendant filed his pro se petition for post-conviction relief in the present case. In the petition, defendant admitted that it was his "second Post Conviction Petition," but maintained that it was "based on Newly Discovered Evidence which could have proven [his] innocence." Defendant alleged that his constitutional rights were violated in the following manner:
"The Chicago Police Department distroyed [sic] trial evidence 'Ordered Impounded by the trial judge, after trial', [sic] which could prove defendant's innocence, in violation of Equal Protection and Due Process of Law."
Defendant further alleged the existence of a conspiracy by the State's Attorney's office and the Chicago police department to obstruct justice by destroying the "conclusive evidence that would have proven [his] innocence." According to defendant, his rights under the eighth and fourteenth amendments to the United States Constitution were violated, especially in light of the "fact" that the police "arrested and accepted guilty pleas from the very possible perpetrator of the alleged offense charged against [him under] indictment number 71-2375" and violated the trial court's "Impounding Order." As Exhibit "A" to his petition, defendant attached the "Impounding Order" issued by the trial court in case No. 71-2375, which stated:
"The Clerk of the Circuit Court of Cook County, Criminal Division is hereby ordered and directed to impound, preserve and protect the following articles of physical evidence which were introduced at the trial of the above indictment and maintain these articles for any future proceeding:
Victim's clothing including pants, shirt and pants belt[.]"
On February 10, 2000, the trial court summarily dismissed defendant's pro se petition for post-conviction relief. The trial court stated:
"All right. In reviewing the file, it was so old, and in looking at case law, I can't find anything. And there is a recent decision that kind of turns on whether there was bad faith or not.
As far as the petition, that will ...