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Sutton v. Pfister

United States Court of Appeals, Seventh Circuit

August 24, 2016

Darryl J. Sutton, Petitioner-Appellee,
Randy Pfister, Warden, Stateville Correctional Center, Respondent-Appellant.

          Argued May 26, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 C 8035 - Sharon Johnson Coleman, Judge.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.

          WOOD, Chief Judge.

         Daryl Sutton is serving a sentence in an Illinois prison for aggravated criminal sexual assault. He contends, in this habeas corpus proceeding under 28 U.S.C. § 2254, that the evidence connecting him with that crime was obtained by the state through a conceded violation of the Fourth Amendment in a different case-specifically, a court order unsupported by probable cause, requiring him to furnish a blood sample for DNA testing. The district court ruled that the writ should issue, but we conclude that it erred in doing so, because the blood (and thus the DNA) would inevitably have been produced under a state law that provided legal authority for collecting the sample. We therefore reverse.


         Sutton has been convicted of violent crimes in multiple separate prosecutions by the state of Illinois. Two of these convictions are relevant here: his 1991 conviction for attempted aggravated criminal sexual assault against A. Rac (the Rac prosecution), and his 1997 conviction for aggravated criminal sexual assault against P. Lally (the Lally prosecution). The facts relevant to this appeal (even if not the facts of those crimes) are largely uncontested: the state concedes that it unlawfully collected a sample of Sutton's blood during the Rac prosecution and then used that blood sample in the Lally prosecution. Sutton's petition relates to the Lally conviction.

         In March 1991, Rac was the victim of an attempted sexual assault in the alleyway behind her apartment building. Sutton was arrested and charged with the crime. On April 3, 1991, Sutton appeared at a preliminary hearing before Cook County Circuit Court Judge James F. Henry. Judge Henry granted the prosecutor's request to order that Sutton submit a blood sample as a condition of his bond, over Sutton's objection. But Sutton was not released on bond at that time, and therefore the ordered sample was never taken.

         On May 7, 1991, during a pre-trial hearing before a different judge, Judge Richard LaCien, the prosecution noted that the blood sample had not been taken and asked for an opportunity to "redraft" Judge Henry's order and have Judge LaCien sign it. Judge LaCien permitted the prosecution to do so and signed the order over Sutton's objection. The order stated:

It is hereby ordered pursuant to chpt 110A § 413 that the defendant submit a blood specimen and saliva sample as well as head and hair (pubic) samples. The defendant shall be taken to Cermak Hospital as soon as is practicable pursuant to this order.

         The statute to which he referred, 111. Rev. Stat., ch. 110A ¶ 413(a)(vii) (1991), allows a court to order a blood or other tissue sample "subject to constitutional limitations." This order, unlike the previous one, was not conditioned on Sutton's release on bond. Three months later, the state took Sutton's blood sample pursuant to the order and sent it to the state police lab and the FBI lab.

         At a jury trial in November 1991, Sutton was convicted on all counts and sentenced to ten years in prison. The prosecution presented no forensic evidence. Although an Illinois statute in effect at the time specified that any persons convicted of sex offenses "shall ... be required to submit samples of blood and saliva, " the court did not order Sutton to provide another sample. 111. Rev. Stat. ch. 38, ¶ 1005-4-3(A) (1991).

         On to the Lally proceedings. In 1990, Lally was the victim of a home invasion and sexual assault. The assault took place during the intruder's break-in into the home of another person, who ultimately testified as a witness. Both the witness and Lally were present in the home. The intruder tied up the witness, sexually assaulted Lally, and stole money from both of them. Following the attack, Lally permitted medical personnel to assemble a rape kit. At that time, Sutton was not a suspect, and neither Lally nor the other witness was able definitively to identify any suspect from the police photos or lineup. The other witness initially identified someone else as the assailant based on a photo display, but could not identify that person in a subsequent lineup.

         After the Rac prosecution, there was a break in the Lally case: the FBI lab matched Sutton's DNA (derived from the Rac blood sample) with physical evidence supplied by Lally. The witness was able to identify Sutton as the attacker, although Lally could not. Based on this new evidence, Sutton was charged for the attack.

         Before trial, Sutton moved to suppress the DNA evidence connecting him to the Lally crime on the ground that the blood sample had been taken in violation of the Fourth Amendment. At an evidentiary hearing, Sutton presented the transcript of the proceeding before Judge LaCien. Sutton also questioned John Haskins, the prosecutor responsible for postconviction proceedings in the Rac case. Haskins testified that Sutton's blood had "no evidentiary value" in the Rac case, because that case did not include any "testimony about ... blood[, ] ... semen or any fluid, " nor was any DNA testing done. Although a sweatshirt with bloodstains was collected at the scene, it was not used in the Rac case nor was any evidence related to the sweatshirt presented to Judge LaCien before he signed the order. The Lally judge responded, "I don't know what evidence the State and defense had at ...

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