Filed 11/21/08 NO. 4-08-0178
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County GREGORY L. BOATMAN, ) No. 97CF1076 Defendant-Appellant. ) ) Honorable ) John R. Kennedy, ) Judge Presiding. _________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant, Gregory L. Boatman, appeals the trial
court's dismissal of his fourth motion for forensic testing filed
pursuant to section 116-3 of Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/116-3 (West Supp. 2007)). We reverse.
On December 18, 1997, a jury found defendant, Gregory
L. Boatman, guilty of attempt (first degree murder of a peace
officer) (720 ILCS 5/8-4(a) (West 1996)), two counts of aggra-
vated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West
1996)), and unlawful possession of a stolen vehicle (625 ILCS
5/4-103(a)(1) (West 1996)). On January 30, 1998, the trial court
sentenced him to two consecutive 60-year prison sentences for the
aggravated-criminal-sexual-assault convictions to be served
concurrently with a 14-year prison sentence for unlawful posses-
sion of a stolen vehicle and 160 years for attempt. On direct
appeal, defendant's attempt sentence was reduced to 60 years. People v. Boatman, 312 Ill. App. 3d 340, 345, 726 N.E.2d 1178,
1182 (2000).
Initially, we note, this is the seventh time defen-
dant's case has been before this court on appeal. The record
shows he filed a direct appeal, appeals from denials of two
postconviction petitions, an appeal from the denial of a motion
to reduce his sentence, appeals from the denials of two previous
motions for forensic testing, and this current appeal.
At defendant's trial, B.M. testified in connection with
the aggravated-criminal-sexual-assault counts. She stated she
entered a car being driven by a man she identified as defendant.
She stated defendant sexually assaulted her while wearing a
condom. After the assault, she and defendant cleaned themselves
off with paper towels. B.M. reported the attack and was taken to
the hospital where she was examined and a "rape kit analysis" was
performed.
On October 25, 1999, defendant filed a pro se motion
for forensic testing not available at trial regarding actual
innocence pursuant to section 116-3 of the Code (725 ILCS 5/116-3
(West 1998)). He requested deoxyribonucleic acid (DNA) testing
on paper towels that were taken into evidence and hair-sample
analysis on exemplars taken from himself and B.M. On November
16, 1999, the State filed a motion to dismiss defendant's motion,
arguing it was deficient on its face because it failed to contain
- 2 - the allegation that the technology for the requested testing was
not available at the time of trial. On February 11, 2000, the
trial court granted the State's motion, stating defendant was
convicted in December 1997, and "the technology for the testing
contemplated by section 116-3 was available at the time of
trial."
On June 9, 2001, defendant filed a second pro se motion
for forensic testing pursuant to section 116-3. He asked for DNA
testing on his clothing and hair-sample analysis on exemplars
taken from himself and B.M. On June 13, 2001, the trial court
denied defendant's motion, finding it contained the same allega-
tions as his first motion for forensic testing and its order
denying the first motion was a final order. Defendant appealed
the court's decision. On appeal, the office of the State Appel-
late Defender (OSAD) moved to withdraw as appellate counsel.
This court granted OSAD's motion and affirmed the lower court's
judgment, stating as follows:
"DNA testing and hair-sample analysis
were available in 1997 when defendant was
tried, and defendant had the opportunity to
request those. He did not allege in his
motion that a new type of testing was now
available. Because defendant failed to al-
lege that the testing technology he now re-
- 3 - quests was unavailable at the time of trial,
the dismissal of defendant's motion was
proper. [Citation.]" People v. Boatman, No.
4-01-0616, slip order at 4 (October 23, 2002)
(unpublished order under Supreme Court Rule
23).
On June 28, 2004, defendant filed a third pro se motion
for forensic testing pursuant to section 116-3. He requested
testing on all of his and B.M.'s clothing and "also any certain
hair sample[,] blood sample[,] whatevers [sic] at the [S]tate[']s
request." On June 30, 2004, the State filed a motion to dismiss
defendant's motion, noting his previous two motions and asserting
DNA testing was readily available at the time of his trial. On
July 20, 2004, the trial court denied defendant's motion. It
noted he failed to allege the requested testing was unavailable
at the time of his trial. Defendant appealed the court's deci-
sion. On appeal, OSAD again moved to withdraw as appellate
counsel. This court allowed OSAD's motion to withdraw and
affirmed the lower court's judgment, stating "[d]efendant's third
motion for forensic testing was facially insufficient, as were
his first two." People v. Boatman, No. 4-04-0755, slip order at
6 (February 21, 2006) (unpublished order under Supreme Court Rule
On December 13, 2006, defendant filed his fourth pro se
- 4 - motion for forensic testing pursuant to section 116-3. He
requested DNA "testing type (STR-PCR)" of his and B.M's clothing
and the "rape kit," all of which he alleged were not subjected to
forensic testing at the time of his trial. On January 12, 2007,
the State filed a motion to dismiss defendant's motion, arguing
he failed to allege the requested testing was unavailable at his
trial and his motion is barred by the doctrine of res judicata.
On January 28, 2008, the trial court determined defendant failed
to state a claim for relief under section 116-3 because he did
not allege the requested testing was unavailable at the time of
his trial. It granted the State's motion to dismiss.
This appeal followed.
On appeal, defendant argues the trial court erred by
denying his fourth motion for forensic testing without first
determining whether the requested testing technology was avail-
able at the time of his trial.
Section 116-3 of the Code (725 ILCS 5/116-3 (West Supp.
2007)) permits a defendant to move for forensic testing of
evidence "secured in relation to the trial which resulted in his
or her conviction." The defendant must present a prima facie
case that identity was an issue at his or her trial and the
evidence to be tested was subjected to a sufficient chain of
custody. 725 ILCS 5/116-3(b)(1), (b)(2) (West Supp.
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Filed 11/21/08 NO. 4-08-0178
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County GREGORY L. BOATMAN, ) No. 97CF1076 Defendant-Appellant. ) ) Honorable ) John R. Kennedy, ) Judge Presiding. _________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant, Gregory L. Boatman, appeals the trial
court's dismissal of his fourth motion for forensic testing filed
pursuant to section 116-3 of Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/116-3 (West Supp. 2007)). We reverse.
On December 18, 1997, a jury found defendant, Gregory
L. Boatman, guilty of attempt (first degree murder of a peace
officer) (720 ILCS 5/8-4(a) (West 1996)), two counts of aggra-
vated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West
1996)), and unlawful possession of a stolen vehicle (625 ILCS
5/4-103(a)(1) (West 1996)). On January 30, 1998, the trial court
sentenced him to two consecutive 60-year prison sentences for the
aggravated-criminal-sexual-assault convictions to be served
concurrently with a 14-year prison sentence for unlawful posses-
sion of a stolen vehicle and 160 years for attempt. On direct
appeal, defendant's attempt sentence was reduced to 60 years. People v. Boatman, 312 Ill. App. 3d 340, 345, 726 N.E.2d 1178,
1182 (2000).
Initially, we note, this is the seventh time defen-
dant's case has been before this court on appeal. The record
shows he filed a direct appeal, appeals from denials of two
postconviction petitions, an appeal from the denial of a motion
to reduce his sentence, appeals from the denials of two previous
motions for forensic testing, and this current appeal.
At defendant's trial, B.M. testified in connection with
the aggravated-criminal-sexual-assault counts. She stated she
entered a car being driven by a man she identified as defendant.
She stated defendant sexually assaulted her while wearing a
condom. After the assault, she and defendant cleaned themselves
off with paper towels. B.M. reported the attack and was taken to
the hospital where she was examined and a "rape kit analysis" was
performed.
On October 25, 1999, defendant filed a pro se motion
for forensic testing not available at trial regarding actual
innocence pursuant to section 116-3 of the Code (725 ILCS 5/116-3
(West 1998)). He requested deoxyribonucleic acid (DNA) testing
on paper towels that were taken into evidence and hair-sample
analysis on exemplars taken from himself and B.M. On November
16, 1999, the State filed a motion to dismiss defendant's motion,
arguing it was deficient on its face because it failed to contain
- 2 - the allegation that the technology for the requested testing was
not available at the time of trial. On February 11, 2000, the
trial court granted the State's motion, stating defendant was
convicted in December 1997, and "the technology for the testing
contemplated by section 116-3 was available at the time of
trial."
On June 9, 2001, defendant filed a second pro se motion
for forensic testing pursuant to section 116-3. He asked for DNA
testing on his clothing and hair-sample analysis on exemplars
taken from himself and B.M. On June 13, 2001, the trial court
denied defendant's motion, finding it contained the same allega-
tions as his first motion for forensic testing and its order
denying the first motion was a final order. Defendant appealed
the court's decision. On appeal, the office of the State Appel-
late Defender (OSAD) moved to withdraw as appellate counsel.
This court granted OSAD's motion and affirmed the lower court's
judgment, stating as follows:
"DNA testing and hair-sample analysis
were available in 1997 when defendant was
tried, and defendant had the opportunity to
request those. He did not allege in his
motion that a new type of testing was now
available. Because defendant failed to al-
lege that the testing technology he now re-
- 3 - quests was unavailable at the time of trial,
the dismissal of defendant's motion was
proper. [Citation.]" People v. Boatman, No.
4-01-0616, slip order at 4 (October 23, 2002)
(unpublished order under Supreme Court Rule
23).
On June 28, 2004, defendant filed a third pro se motion
for forensic testing pursuant to section 116-3. He requested
testing on all of his and B.M.'s clothing and "also any certain
hair sample[,] blood sample[,] whatevers [sic] at the [S]tate[']s
request." On June 30, 2004, the State filed a motion to dismiss
defendant's motion, noting his previous two motions and asserting
DNA testing was readily available at the time of his trial. On
July 20, 2004, the trial court denied defendant's motion. It
noted he failed to allege the requested testing was unavailable
at the time of his trial. Defendant appealed the court's deci-
sion. On appeal, OSAD again moved to withdraw as appellate
counsel. This court allowed OSAD's motion to withdraw and
affirmed the lower court's judgment, stating "[d]efendant's third
motion for forensic testing was facially insufficient, as were
his first two." People v. Boatman, No. 4-04-0755, slip order at
6 (February 21, 2006) (unpublished order under Supreme Court Rule
On December 13, 2006, defendant filed his fourth pro se
- 4 - motion for forensic testing pursuant to section 116-3. He
requested DNA "testing type (STR-PCR)" of his and B.M's clothing
and the "rape kit," all of which he alleged were not subjected to
forensic testing at the time of his trial. On January 12, 2007,
the State filed a motion to dismiss defendant's motion, arguing
he failed to allege the requested testing was unavailable at his
trial and his motion is barred by the doctrine of res judicata.
On January 28, 2008, the trial court determined defendant failed
to state a claim for relief under section 116-3 because he did
not allege the requested testing was unavailable at the time of
his trial. It granted the State's motion to dismiss.
This appeal followed.
On appeal, defendant argues the trial court erred by
denying his fourth motion for forensic testing without first
determining whether the requested testing technology was avail-
able at the time of his trial.
Section 116-3 of the Code (725 ILCS 5/116-3 (West Supp.
2007)) permits a defendant to move for forensic testing of
evidence "secured in relation to the trial which resulted in his
or her conviction." The defendant must present a prima facie
case that identity was an issue at his or her trial and the
evidence to be tested was subjected to a sufficient chain of
custody. 725 ILCS 5/116-3(b)(1), (b)(2) (West Supp. 2007). The
trial court should grant a defendant's motion when the results of
- 5 - the testing would have "the scientific potential to produce new,
noncumulative evidence materially relevant to the defendant's
assertion of actual innocence" even if they may not completely
exonerate the defendant and "the testing requested employs a
scientific method generally accepted within the relevant scien-
tific community." 725 ILCS 5/116-3(c)(1), (c)(2) (West Supp.
2007). The court's denial of a section 116-3 motion for forensic
testing is subject to de novo review. People v. O'Connell, 227
Ill. 2d 31, 35, 879 N.E.2d 315, 317-18 (2007).
In between the time defendant filed his fourth motion
for forensic testing in December 2006, and the time the trial
court decided his motion in January 2008, section 116-3 was
amended. When defendant filed his motion, section 116-3(a)
provided as follows:
"A defendant may make a motion before
the trial court that entered the judgment of
conviction in his or her case for the perfor-
mance of *** forensic DNA testing *** on
evidence that was secured in relation to the
trial which resulted in his or her convic-
tion, but which was not subject to the test-
ing which is now requested because the tech-
nology for the testing was not available at
the time of trial." (Emphases added.) 725
- 6 - ILCS 5/116-3(a) (West 2006).
Section 116-3 was amended in Public Act 95-688 (Pub. Act 95-688,
eff. October 23, 2007 (amending 725 ILCS 5/116-3 (West 2006))).
It now provides as follows:
tion, and:
(1) was not subject to the
testing which is now requested at
the time of trial; or
(2) although previously sub-
jected to testing, can be subjected
to additional testing utilizing a
method that was not scientifically
available at the time of trial that
provides a reasonable likelihood of
more probative results." (Emphases
added.) 725 ILCS 5/116-3(a) (West
Supp. 2007).
The amended version of section 116-3(a) was in effect
- 7 - at the time the trial court denied defendant's motion. "In the
absence of legislative intent to the contrary, a court is to
apply the law in effect at the time of its decision, unless to do
so results in manifest injustice." People v. Hardin, 203 Ill.
App. 3d 374, 376, 561 N.E.2d 326, 327 (1990).
Here, defendant sought forensic testing of his and
B.M.'s clothing and the "rape kit." He alleged none of those
items was previously subjected to forensic testing at the time of
his trial. Following the October 2007 amendment to section 116-
3, it was sufficient for defendant to request forensic testing on
evidence secured in relation to his trial and allege only that
the evidence was not previously subject to the testing he was now
requesting. It was not necessary for him to allege the testing
was unavailable at the time of his trial unless he was seeking to
subject the evidence to additional testing. Defendant's fourth
motion for forensic testing was not insufficient for the reasons
determined by the trial court or alleged by the State.
Additionally, given the intervening change in section
116-3, defendant's motion for forensic testing is not barred by
the doctrine of res judicata.
For the reasons stated, we reverse the trial court's
judgment.
Reversed.
MYERSCOUGH and COOK, JJ., concur.
- 8 - - 9 -