Appeal from the Circuit Court of Lake County. No. 86-CF-106 Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Schostok concurred in the judgment and opinion.
¶ 1 Defendant, Bennie Starks, appeals from the trial court's dismissal of petitions he filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)). In his petitions, defendant alleged his actual innocence of aggravated battery of which he was convicted in 1986. On appeal, defendant argues that the trial court erred by: (1) dismissing his 2006 petition for lack of standing; and (2) holding that defendant needed leave to file his 2006 petition and his 2007 supplemental petition. We reverse and remand.
¶ 3 In 1986, after a jury trial defendant was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, ¶ 12-14(a)(2), (a)(5) (now 720 ILCS 5/12-14(a)(2), (a)(5) (West 2010))), one count of attempted aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, ¶ 8-4(a) (now 720 ILCS 5/8-4(a) (West 2010))), one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, ¶ 12-4(b)(10) (now 720 ILCS 5/12-3.05(d)(1) (West 2010))), and one count of unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, ¶ 10-3) (now 720 ILCS 5/10-3 (West 2010))), for the attack of complainant, a 68-year-old woman. The trial court vacated the unlawful restraint conviction and imposed concurrent extended terms of 60 years' imprisonment for the two aggravated criminal sexual assault convictions, 30 years' imprisonment for attempted aggravated criminal sexual assault, and 10 years' imprisonment for aggravated battery.
¶ 4 This matter is before this court for the fourth time. Other issues were addressed by this court in our decision on direct appeal in People v. Starks (Starks I), No. 2-86-1021 (1988) (unpublished order under Supreme Court Rule 23). In the second appeal, we reversed the trial court's dismissal of defendant's 2002 post-conviction petition and remanded the case for a new trial. People v. Starks (Starks II), 365 Ill. App. 3d 592, 601 (2006). In the third appeal, we affirmed the trial court's granting of defendant's motion in limine to exclude the prior testimony of the now-deceased complainant on retrial. People v. Starks (Starks III), 2012 IL App (2d) 110273, ¶ 16. We will provide only those facts necessary for an understanding of the issues raised on appeal. Further, we will provide factual details as necessary in the analysis portion of this opinion.
¶ 5 The indictment for aggravated battery alleged, in pertinent part, that "defendant *** caused bodily harm to [complainant], a person over the age of sixty (60) years, in that he choked her, hit her in the face, knocked her to the ground, and bit her."
¶ 6 During the trial, complainant testified that on the evening of January 18, 1986, defendant grabbed her neck, threw her to the ground, repeatedly punched her face, and pulled her, feet first, down a ravine, hitting her all over her body and biting her on the shoulder. At the bottom of the ravine, defendant took off complainant's underpants and put his penis in her vagina. Complainant testified that she believed that defendant ejaculated in her.
¶ 7 The State's forensic serologist, Sharon Thomas-Boyd, testified that test results indicated the presence of semen on the underpants that complainant wore during the alleged incident. Further, semen was present on the vaginal swab collected from complainant. Thomas-Boyd testified that, based on samples collected from defendant, she could not exclude him as a source of the semen.
¶ 8 Dentist and forensic odontologist Russell Schneider testified that he examined a large bite mark on complainant's shoulder and compared it to photos, X rays, and a model of defendant's teeth and bite. After comparing defendant's bite to the photo of the bite mark on complainant's shoulder, Schneider opined that defendant bit complainant.
¶ 9 During closing argument the prosecutor argued that defendant was the man who raped, beat, and bit complainant. The prosecutor stated the following.
"Now, the evidence clearly has shown that on January 18, 1986, [defendant] brutally beat and raped [complainant]." "[T]he defendant wanted to subject [complainant] to the most brutal and senseless beating and raping he could." "There is no doubt the [complainant] was brutally beaten that night. Now, who caused these injuries to [complainant]? Who put [her] through this hellish nightmare, this torture and pain? It was defendant, Bennie Starks. This man, on January 18th, 1986, for some reason, beat and raped [her]." "[W]e have [complainant], when asked to identify the person who raped [her] *** walked over to the defendant *** saying, 'This is the person who raped and beat me.' "
The prosecutor used the now-discredited scientific evidence to argue that defendant was guilty of all charges, stating:
"I ask you to look at that evidence. *** All that points to the defendant, that he was there, that he raped [complainant], and beat her. And then you have scientific evidence, the conclusion is the same. The defendant was there, he inflicted that bite mark, that semen was his. He was there, and on that night, he raped and beat [her]. ...