Appeal from the Circuit Court of Cook County. Honorable Joseph Kazmierski Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
Following the denial by the trial court of defense counsel's motion to compel deoxyribonucleic acid (DNA) testing pursuant to the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 1998)) and the trial court's dismissal, following an evidentiary hearing, of Sylvester Henderson's petition for post-conviction relief, two appeals were filed. These appeals were consolidated. For the reasons that follow, we affirm dismissal of the defendant's post-conviction petition and we reverse the denial of defendant's motion to compel DNA testing.
Defendant and co-defendant James Sims were convicted in 1984 for offenses arising from the kidnap and rape of 26-year-old K.R. in Chicago. Both men were convicted, adjudicated as habitual offenders, and sentenced to natural life in prison.
Defendant's conviction was affirmed on direct appeal in 1987. People v. Sims, 166 Ill. App. 3d 289 (1987). His petition for leave to appeal to the Illinois Supreme Court was denied. People v. Henderson, 119 Ill. 2d 565 (1988). Defendant's petition for writ of certiorari to the United States Supreme Court was denied (Sims v. Illinois, 488 U.S. 844, 102 L. Ed. 2d 97, 109 S. Ct. 118 (1988)), as was his petition for writ of habeas corpus (United States ex rel. Henderson v. Gramley, 93 C 4202 (N.D. Ill. April 7 1994).
In 1990, defendant filed a post-conviction petition, which was denied. That denial was affirmed on appeal. People v. Henderson, 1- 90-3199 (1990)(unpublished order pursuant to Supreme Court Rule 23).
Defendant filed a motion to compel DNA testing (725 ILCS 5/116-3 (West 1998)) in 1998, which was denied on February 9, 1999.
Defendant subsequently filed a second post-conviction petition in 1999, asserting his life sentence was unconstitutional under Apprendi v. New Jersey, 539 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348,(2000). This petition was denied on August 18, 1999.
Defendant now appeals from the denial of his request for DNA testing and the summary dismissal of his successive post-conviction petition based on Apprendi.
Defendant and Sims were lifelong friends. In 1971, they were involved in a rape and robbery and were convicted for rape, aggravated kidnaping and robbery. People v. Henderson, 36 Ill. App. 3d 355 (1976). James Sims had only been paroled from prison six weeks prior to committing this offense.
The sequence of events began at 9 p.m. on September 21, 1983, when K.R. left her North Side apartment. K.R. testified to the following: As she approached an alley, James Sims stepped out and walked past her. A second later, Sims grabbed K.R. by the neck and put a knife to her throat. He started going through her pockets.
K.R. screamed, and Sims said, "Shut up, or I'll slit your throat." Sims knocked K.R. to the ground and repeatedly struck her face against the pavement, fracturing her left cheekbone. Sims dragged K.R. into the alley, where the 36-year-old defendant sat waiting in a maroon car. There were lights in the alley and streetlights and light from surrounding buildings. K.R. later described defendant to police as 5 feet 10 inches tall, 160 pounds, with a goatee and mustache, and dressed in a blue windbreaker and faded blue jeans with two small bloodstains between the knee and hip.
Defendant and Sims forced K.R. into the car. Sims pushed her down at knifepoint, so that her head and left hand were forced onto defendant's right leg. One of K.R.'s left-hand fingers was bleeding from her struggle with Sims, and it bled onto defendant's right thigh. When defendant noticed the blood on his pants, he gave K.R. a pink towel and told her to wipe it off. Defendant then placed the towel over K.R.'s head.
Defendant and Sims stopped at a liquor store. K.R. begged defendant to take her home, promising she wouldn't say anything. Defendant replied, "I can promise you won't be hurt, but that doesn't mean you won't be fucked."
After Sims returned with liquor, the men pulled over and forced K.R. into the backseat of the car with Sims. The ceiling light in the car illuminated when the car door was opened. The pink towel had fallen off K.R.'s face and was not replaced. K.R. asked Sims not to hurt her; he responded that she would be lucky if she saw the next day. Sims ripped off her pants and told her to remove the rest of her clothing. He licked her vagina and forced her to commit an oral sex act.
Defendant and Sims then changed places in the car. Defendant licked K.R.'s vagina, forced her to commit oral sex, and then raped her vaginally and attempted to commit anal rape. Defendant was in the backseat with K.R. for at least an hour.
Sims and defendant then changed places. Sims licked K.R.'s vagina and committed an act of vaginal rape. Defendant and Sims asked K.R. where she lived and started driving back to the North Side. They threw her clothing at her and told her to get dressed. K.R. put on her sweatpants and sweatshirt, but not her underwear.
Defendant and Sims then drove into an apartment building parking lot located at 4500 North Clarendon Street. K.R. was still in the backseat of the car. Both defendant and Sims got out of the car, and K.R. heard some mumbling. Then Sims returned to the backseat of the car, pulled his pants down, and got on top of K.R. Sims told K.R. that if she was ever attacked again, she should not scream because it only made things worse.
In the meantime, a security guard working at the apartment building reported to police that he saw a suspicious car in the building's garage. Police patrolling the area were only a few blocks away and responded quickly. As the officers entered the garage, they saw a black male, dressed in dark clothing, hop a wall in the garage and flee down an alley. While one of the officers pursued the man who fled, another approached a Buick that had been parked crosswise in a parking spot and was blocking two vehicles. The officer looked in the Buick and saw Sims lying on top of K.R., with his pants pulled down around his ankles.
A policeman pulled Sims out of the car, and someone else told K.R. to get out. K.R. grabbed an officer's arm and said, "Please don't let them hurt me anymore." The police saw that K.R. had been beaten; her eyes were closed, she bore cuts and bruises on her face, and her hands needed stitches. Asked what had happened, K.R. said she had been raped. Police placed Sims under arrest.
Among the items police found in the car was a navy blue shirt lying on the front seat, with two driver's licenses tucked inside a pocket. One license belonged to defendant and the other to Sims. In the photo on defendant's license, he wore a mustache and goatee, and his height, weight, and age were close to the description given by K.R. Police also found a razor knife and a knife blade in the backseat. Police ran a computer check and learned that the car was registered to defendant.
Having learned defendant's identity, police issued a flash message that defendant may have been the second offender in the case. Shortly thereafter, at 2 a.m., Chicago police officer David DeVogelear saw a man dressed in blue jeans and a blue nylon jacket sitting at a bus stop at the intersection of Sheridan, Montrose, and Broadway, a few blocks from the parking garage. Officer DeVogelear asked defendant what he was doing, and defendant replied that he had been visiting friends and was waiting for the bus, to take him to his home at 6400 South Kenwood. The address listed on defendant's driver's license was 6618 South Kenwood in Chicago. Officer DeVogelear asked him for identification, ...