Appeal from the Circuit Court of Lee County. No. 95--CF--130 Honorable John E. Payne, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Defendant, Joseph Price, appeals from the order of the circuit court of Lee County denying his motion pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2000)) for forensic testing not available at trial. We reverse and remand.
Defendant was charged with two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 1994)) against David Doll and three counts of aggravated criminal sexual assault (720 ILCS 5/12-13(a)(1), 12-14(a)(2) (West 1994)) against John Kien. In 1996, a jury convicted defendant of the three counts of aggravated criminal sexual assault against John Kien while defendant and Kien were inmates at the Dixon Correctional Center. The jury found him not guilty of the two counts of criminal sexual assault against David Doll. The trial court sentenced defendant to 35 years' imprisonment on each count, to be served consecutively. We affirmed the judgment. People v. Price, No. 2-97-1289 (1999) (unpublished order under Supreme Court Rule 23).
The evidence presented at trial established that on October 31, 1994, defendant beat and sodomized Kien. The State's first witness was co-defendant Richard Lonkert. Lonkert testified that he and defendant entered Kien's cell and beat him severely for 1½ to 2 hours. Lonkert further testified that after beating Kien, defendant inserted his penis into Kien's rectum and had anal sex with him for 5 to 10 minutes. Defendant then ordered Kien to perform oral sex on Lonkert and him. Kien complied, but shortly thereafter Lonkert stopped him. Lonkert then began sexually assaulting Kien, but then stopped, declaring it "just wasn't for me." Describing his actions, Lonkert said that he inserted his penis in Kien's anus but did not "actually penetrate John Kien anally." Defendant then continued to have anal sex with Kien for another 5 to10 minutes. Lonkert stated that, after defendant finished sexually assaulting Kien, he forced Kien to wash off defendant's penis. On cross- examination, Lonkert admitted that earlier in the day he drank a large amount of homemade wine and smoked marijuana. For his part in the attack on Kien, Lonkert pleaded guilty and received a four-year sentence.
Next, David Doll, Kien's cell mate, testified that earlier in the night defendant sexually assaulted him. Doll said that defendant inserted his penis in his anus three times and ejaculated in his rectum. Doll stated that, after defendant sexually assaulted him, he saw Lonkert and defendant enter Kien's cell. According to Doll, he heard Lonkert and defendant beat Kien, remaining in the cell with him from approximately 8:15 p.m. to 10:30 p.m. Upon entering the cell, Doll saw Kien sitting on the bed with the sheets soaked in blood. Defendant's counsel challenged Doll with a letter that Doll wrote two weeks after the attack wherein he retracted his accusation that defendant sexually assaulted him. However, Doll maintained that two other inmates forced him to make the retraction.
Another inmate, David Williamson, testified that he was in the cell next to Kien's cell. Doll asked Williamson to help Kien. Williamson said that he looked inside Kien's cell and saw Kien lying face down on the bed with defendant on top of him performing anal sex. He also saw Lonkert standing in the cell while the sexual assault occurred.
When Kien testified, he substantially corroborated the testimony of Lonkert, Doll, and Williamson. Kien said that defendant forced him to perform oral sex and to engage in anal sex with Lonkert and defendant. He stated that, as a result of the attack, he suffered multiple bruises and contusions, three broken ribs, and a punctured lung. Kien also identified a pair of weight-lifting gloves that defendant wore during the attack. The gloves had been discovered as part of a search of defendant's cell following the attack.
Correctional captain Sternes testified that, during an interview with defendant the next day, defendant denied sexually assaulting Kien. He told Sternes that he had been knocked unconscious by an unidentified assailant the prior evening by a blow to the back of the head and thought that he too had been sexually assaulted. Sternes noticed a small abrasion in the middle of defendant's forehead, but failed to see a bump or mark on the back of his head. A prison nurse then testified that defendant told him that he had been in a fight, but that defendant said nothing about being sexually assaulted.
In the early morning hours of November 1, 1994, Kien and Doll were taken to see nurse Barbara Fichtenmuller. Fichtenmuller took rectal swabs from both of them. At trial, the parties stipulated to the admission of an expert report that identified the material recovered on the rectal swabs during the medical examinations. The State and defendant stipulated that "Exhibit 1" was a rectal swab containing seminal fluid recovered from Doll's anus and "Exhibit 2" was a rectal swab containing one spermatozoa recovered from Kien's anus. The State submitted the report and exhibits for the purpose of showing that both Doll and Kien had been penetrated during their attacks. However, no one attempted to match the seminal fluid or spermatozoa to a specific person. Thus, the State did not argue that the seminal fluid or spermatozoa came from defendant. Alternatively, defendant did not scientifically establish that he was not the source.
On November 9, 1999, defendant filed his motion pursuant to section 116-3 of the Code (725 ILCS 5/116-3 (West 2000)) for forensic testing not available at trial. He seeks to have a deoxyribonucleic acid (DNA) test performed on the seminal fluid recovered from Doll and the spermatozoa sample recovered from Kien. The trial court denied the motion as untimely filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2000)).
Section 116-3 states as follows:
"(a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint or forensic DNA testing on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that:(1) identity
was the issue in the trial which resulted in his or her
and (2) 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 aspect.(c) The trial
court shall allow the testing under reasonable conditions
protect the State's interests in the integrity of the evidence and
the testing process upon a
(1) the result of the testing has the scientific
potential to produce new,
non-cumulative evidence materially relevant to the defendant's
assertion of actual innocence;(2) the testing requested
employs a scientific method generally accepted