Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 99 CR 26852. Honorable Maura Slattery-Boyle, Judge Presiding.
Reversed and remanded with directions.
The trial court's denial of defendant's request for DNA testing of a sweatshirt and gloves discovered at the time of his arrest for first degree murder was reversed and the cause was remanded to allow the trial court to order such testing, since the sweatshirt and gloves were a central focus at defendant's trial, and in his appeal, the record showed defendant made no inculpatory statements, the State's case was largely circumstantial, and the requested testing is materially relevant to defendant's claim of actual innocence, especially if defendant's DNA is absent or another person's DNA is present.
For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Megan E. Ledbetter, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
For Appellee: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Christine Cook, Amy M. Watroba, Assistant State's Attorneys, Chicago, IL.
JUSTICE LAVIN delivered
the judgment of the court, with opinion. Presiding Justice Howse and Justice
Epstein concurred in the judgment and opinion.
[¶1] Defendant, Leshun Smith, appeals from an order of the circuit court of Cook County denying his motion for deoxyribonucleic acid (DNA) testing under section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2010)). He contends that the trial court erred in denying his motion because the testing requested has the potential to produce noncumulative evidence materially relevant to his claim of actual innocence. He thus requests that we reverse the trial court's order and remand his cause with instructions that the court order DNA testing on two items of clothing that were presented at trial.
[¶2] The record shows that defendant's 2001 conviction of first degree murder arose from events that transpired on October 28, 1999, near 1821 West 56th Street in Chicago, Illinois. On that date, Melvin Owens was fatally shot by a man wearing a gray sweatshirt, and, later that same day, police found defendant sitting on a gray sweatshirt in a van matching the description of the getaway vehicle and from which the murder weapon was thrown.
[¶3] At trial, Sheila Smith testified that about 1 p.m. on the day of the incident she was outside her apartment building at 1839 West 56th Street, unloading groceries from her car, when her friend Owens approached her. After a brief conversation, Owens walked to a store about 100 feet from her building. Shortly thereafter, she saw a man wearing a gray " hoody" approach
the entrance to her building, and although the hood was over his head, she was able to see his face from a distance of about five feet when he turned to peer inside. Sheila identified defendant in court as that man and further testified that she continued to watch as defendant walked away and " duck[ed]" behind a nearby garage. Soon thereafter, she saw defendant emerge from that garage when Owens exited the store and began walking in her direction. She yelled " watch out," then saw defendant shoot Owens numerous times before running toward Wolcott Street. Although she could not see defendant's face at that time, the shooting occurred a block away from her and nothing was obstructing her view. The following day, she viewed a lineup at the police station and identified defendant as the shooter. She also identified a picture of a hoody as the one she saw defendant wearing the previous day.
[¶4] Jean Turner testified that about 1 p.m. on the day of the incident, she was sitting on her porch at 5527 South Wolcott Street and saw a van park in front of her home. Shortly thereafter, she heard several gunshots, followed by a " click," and saw that the rear passenger side door of the van was now slightly ajar. She then saw a man running north on Wolcott in her direction. His hands were inside the pockets of the gray sweatshirt he was wearing, and he became briefly tangled in a wire fence in her yard as he entered the van. At that time, she was able to see his face from a distance of about six feet, and, because his hood was approximately an inch away from his forehead, she was also able to see the color of his hair. Turner identified defendant in court as that man and further testified that after the van sped away, she wrote down the license plate number of the van and gave it to police, along with a description of defendant. Later that day, she viewed a lineup at the police station and identified defendant as the man she had seen running down the street and jumping into a van shortly after she heard gunshots. Police also showed her a picture of a sweatshirt, and she identified it as the one worn by defendant.
[¶5] Lola Smith, Sheila's mother, testified that about 1 p.m. on the day of the incident, she was helping Sheila with groceries when Owens approached them and spoke briefly before walking to a nearby store. Shortly thereafter, she saw a man wearing a gray hooded sweatshirt peer into Sheila's apartment building, then walk away. She did not pay particular attention to him after that, but Sheila continued to watch him. A short while later, she heard a gunshot and saw Owens fall to the ground, then saw the man in the gray sweatshirt repeatedly shoot Owens before running toward Wolcott Street. Lola viewed a lineup at the police station the ...