People v. Horton

2020 IL App (4th) 170643-U

• Court: Appellate Court of Illinois
• Decided: March 3, 2020
• Docket: 4-17-0643
• Status: Unpublished

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 170643-U Court Rule 23 and may not be cited March 3, 2020 as precedent by any party except in Carla Bender NO. 4-17-0643 th the limited circumstances allowed 4 District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County JOSEPH T. HORTON, ) No. 04CF186 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.

ORDER ¶1 Held: (1) The trial court properly granted the State’s motion to dismiss defendant’s successive postconviction petition where defendant’s newly discovered evidence was not material and lacked conclusiveness and (2) defendant received reasonable assistance of postconviction counsel.

¶2 In August 2004, a jury convicted defendant, Joseph T. Horton, of first degree

murder (720 ILCS 5/9-1(a) (West 2002)), and the trial court later sentenced him to natural life in

prison. In July 2016, defendant, represented by counsel, filed his first motion for leave to file a

successive postconviction petition, asserting actual innocence based on newly discovered

deoxyribonucleic acid (DNA) evidence. In August 2016, the trial court granted defendant leave

to file his successive postconviction petition. Thereafter, the State filed a motion to dismiss

defendant’s successive postconviction petition, which the court granted on June 29, 2017. The court later denied defendant’s motion to reconsider the dismissal of his successive postconviction

petition.

¶3 Defendant appeals, arguing (1) the trial court erred by dismissing his successive

postconviction petition and (2) he was denied reasonable assistance of postconviction counsel.

We affirm.

¶4 I. BACKGROUND

¶5 A. Jury Trial

¶6 At defendant’s jury trial, the evidence showed the following. On January 29,

2004, at approximately 11:57 a.m., a Champaign police officer responded to a dispatch and

found Amy Smith’s body lying in a pool of blood in her basement apartment at 1003 North

Randolph Street in Champaign. An autopsy performed by Dr. Brian Mitchell showed Smith had

suffered 38 clusters of injuries due to blunt force trauma, and 15 stabbing injuries.

¶7 Michael Brown testified he and Smith had been friends for approximately two

years and he saw Smith daily. He last saw Smith on January 28, 2004, for approximately four

hours. During that time Smith received two telephone calls, the first at approximately 10 p.m.,

and the second shortly after the first. Brown left Smith’s apartment at approximately 11:15 p.m.

Brown and Smith planned Brown would meet Smith at her place of employment the following

morning. Brown often met Smith and her coworkers for coffee.

¶8 On the morning of January 29, 2004, Brown drove to Smith’s place of

employment. Smith was not there. Brown and a coworker of Smith’s telephoned Smith but she

did not answer. The two became concerned for Smith and Brown drove to Smith’s apartment.

Brown observed Smith’s car parked near her apartment door and approached Smith’s apartment.

Brown saw blood in the area of the doorway. Brown pushed the door open and saw more blood.

-2- He called Smith’s name but there was no answer. Brown returned to his car and drove to the

Champaign Police Department.

¶9 Brown identified defendant as an individual he had seen on approximately three

occasions, while with Smith.

¶ 10 Leigh Ann Borkowski testified she dated defendant for approximately six months.

She and defendant went to two bars on the evening of January 28, 2004. Defendant became

angry. Borkowski and defendant returned to her condominium where Borkowski ended her

relationship with defendant. Defendant left the condominium shortly after midnight. At

approximately 7 p.m., on January 29, 2004, defendant telephoned Borkowski telling her the

police found a body and thought he had something to do with it.

¶ 11 Borkowski identified various articles of clothing and a pair of work boots

defendant wore on January 28, 2004, now blood-stained and found by police officers in multiple

dumpsters following Smith’s murder.

¶ 12 Edward Chin testified he lived in a second story apartment at 1003 North

Randolph Street in Champaign. He was awakened at approximately 3 a.m. on January 29, 2004,

by a black male pounding on Smith’s door. He heard Smith’s voice and observed the individual

walk away from the house. At approximately 4 a.m., Chin heard two thumping sounds and later,

an individual gasping for air. Chin left his apartment at approximately 5:30 a.m.

¶ 13 Danielle Miller testified she lived in the first-floor apartment at 1003 North

Randolph Street in Champaign, with Margaret Ruch. Miller heard an individual pounding on

Smith’s door at approximately 2:30 a.m. on January 29, 2004, and again at approximately 3 a.m.

She observed a black male with very large, muscular hands. He wore dark pants and a dark

hooded jacket. Miller listened at a vent in her living room that led to Smith’s basement

-3- apartment. She heard Smith yelling at the individual to “get out.” Later, Miller and Ruch heard a

loud crashing sound coming from Smith’s apartment. Miller again listened at the vent and could

hear only a low muffled voice uttering what sounded like “unnh” over and over again. Ruch

telephoned Smith’s apartment at approximately 5 a.m. and Miller could hear the telephone

ringing through the vent. Smith did not answer. Miller next heard an individual moving swiftly

up the basement stairs and leaving through Smith’s apartment door. Miller climbed on her

kitchen counter and looked out a window. She saw a black male yelling and gesturing toward the

house as he walked away. She recognized the individual as someone she had seen at Smith’s

door approximately two weeks earlier.

¶ 14 Pearlie Mae Williams testified defendant came to her home on January 29, 2004,

at approximately 5:30 a.m. Williams lived with defendant’s brother, Dwayne Williams.

Defendant became ill while in the home. He took Williams’s trash bag and a pair of athletic

shoes when he left the home at approximately noon. Police officers found defendant’s blood-

stained boots in a dumpster behind Williams’s home.

¶ 15 James Powell testified he was a friend of defendant. Defendant came to Powell’s

home on January 29, 2004, at approximately 3 p.m. Defendant asked Powell if he could come in

and warm himself. Defendant wore a thin jacket and asked if he could have a coat. Powell did

not have an extra coat. Defendant left Powell’s home at approximately 3:40 p.m. to catch a bus.

Defendant returned shortly stating he missed the bus. Defendant left Powell’s home on two more

occasions but returned each time stating he missed the bus. Powell did not let defendant back

into his home after he left for the bus at approximately 5:40 p.m. because Powell had to rest

before work.

-4- ¶ 16 Larry McGowan testified he was a friend of defendant. Defendant came to

McGowan’s home on January 29, 2004, at approximately 5:45 p.m. Defendant asked McGowan

for a ride to his sister’s home. Defendant wore a thin coat and asked if he could have a coat but

McGowan did not have an extra coat. While McGowan was out of the car, defendant got rid of

his coat. Police officers later found the blood-stained coat in a nearby dumpster.

¶ 17 Dr. Brian Mitchell, a forensic pathologist, testified he conducted the autopsy of

Smith. In addition to 38 clusters of injuries due to blunt force trauma and 15 stabbing injuries,

Smith had internal injuries including a collapsed lung and significant trauma to the brain. Dr.

Mitchell stated a pattern abrasion on Smith’s scalp was consistent with the treads of defendant’s

boots. Dr. Mitchell also testified, as to the 15 stab wounds, there was not much evidence of

hemorrhage to suggest Smith’s heart was pumping at the time she received those wounds. He

described the wounds as received “perimortem, or even possibly after [Smith] passed.”

¶ 18 Dr. Mitchell testified he observed multiple injuries during his examination of

Smith, including abrasions to the left elbow, left inner forearm, outer left forearm, a “watch band

abrasion” which Dr. Mitchell opined would be consistent with the hand raised, injuries to the

back of the right hand, right wrist and forearm abrasions, a laceration to the right index finger

and abrasions to the right palm, right elbow, and right forearm. Dr. Mitchell stated many of the

abrasions were consistent with “defensive injuries,” which he defined as wounds to the forearms

and backs of the hands “that would be consistent with someone trying to ward off an attack from

either a blunt object, or to protect themselves from a sharp object.”

¶ 19 Dr. Mitchell acknowledged a victim in a physical altercation may attempt to

scratch or injure her attacker, but Smith suffered “defensive injuries” to her forearms and the

backs of her hands. According to Dr. Mitchell, Smith’s injuries were indicative of her attempt to

-5- shield her body from the objects used in her murder. Dr. Mitchell also testified there was no

evidence Smith had been sexually assaulted. He administered the sexual assault kit, gathering

samples of Smith’s hair, fingernail scrapings, and blood, because it was a “standard kit for this

type of incident.” The fingernail scrapings were not DNA tested at the time of trial.

¶ 20 Jennifer Aper, an Illinois State Police forensic scientist, testified she conducted

DNA analysis of blood samples from defendant and Smith and the bloodstains found on

defendant’s boots, left sock, and coat. Aper opined the DNA test results indicated the blood on

defendant’s boots, left sock, and coat matched Smith’s DNA profile.

¶ 21 Detective Mark Strzesak testified he interviewed Joseph Horton on January 29,

2004, at approximately 8:23 p.m. Defendant first told Strzesak he knew Smith but had not seen

or spoken to Smith for “a couple of weeks.” Later, defendant told Strzesak he may have

telephoned Smith that morning.

¶ 22 Strzesak testified defendant wore blue jeans, a grey sweatshirt, an off-white

jacket, a pair of athletic shoes, and a black knit stocking cap when arrested. Defendant told

Strzesak he had worn the clothes “all of last night.”

¶ 23 Defendant testified on his own behalf, admitting he lied during his interview with

Strzesak. He had been at Smith’s apartment on January 29, 2004, and wore different clothing

than when arrested. He telephoned Smith from a friend’s on January 29, 2004, at approximately

4:21 a.m., and asked Smith if he could “crash.” Defendant walked approximately five minutes to

Smith’s apartment. He arrived at Smith’s apartment at approximately 4:45 a.m. and found

Smith’s apartment door open. He walked down the stairs and found Smith lying on the floor in a

pool of blood. Defendant held Smith’s head in his hand and Smith whispered what defendant

believed was “Manuel.” He placed Smith’s head back on the floor and found his hands full of

-6- blood. Defendant shook his hands, wiped them on his pants, and ran from the apartment.

Defendant did not call police because he had blood on himself and he was on parole.

¶ 24 David Carter testified on rebuttal he is a crime-scene investigator field supervisor

with the Illinois State Police and has specialized in bloodstain pattern analysis. Carter examined

the boots worn by defendant on January 29, 2004, finding the bloodstain patterns on the boots

consistent with “impact spatter.” Carter testified impact spatter is a bloodstain pattern caused

when static blood is impacted or moved under force. Further, Carter examined 12 crime scene

photographs. The State posed two hypothetical questions to Carter concerning “blood flight” and

Carter identified evidence of blood flight in the photographs.

¶ 25 Based on the evidence presented, the jury convicted defendant of first degree

murder and the trial court sentenced him to natural life in prison. Defendant filed a direct appeal,

arguing (1) his due process rights were violated when the State failed to correct a false

impression that no witness could identify defendant; (2) alternatively, he was denied his right to

effective assistance of counsel; (3) the court abused its discretion by allowing certain rebuttal

testimony; (4) his shackling without a hearing constituted plain error; (5) the court erred when it

allowed photographs from the crime scene and autopsy into the jury room during deliberations;

(6) the State failed to prove him guilty beyond a reasonable doubt; and (7) the State failed to

prove the offense was accompanied by exceptionally brutal or heinous behavior indicative of

wanton cruelty, or the court abused its discretion by imposing a natural life sentence. This court

affirmed the lower court’s judgment. People v. Horton, 371 Ill. App. 3d 1224 (2007) (table)

(unpublished order under Supreme Court Rule 23).

¶ 26 B. Postconviction Petition

-7- ¶ 27 On November 2, 2007, defendant filed a pro se postconviction petition arguing

trial counsel was prejudiced against him and provided ineffective assistance of counsel. On June

27, 2008, defendant, with assistance of counsel, filed an amended postconviction petition adding

additional claims of ineffective assistance of trial counsel and due process violations. On

September 3, 2008, after a hearing on the State’s motion to dismiss, the trial court dismissed

defendant’s postconviction petition for failure to make a substantial showing of a constitutional

violation. This court affirmed the trial court’s judgment. People v. Horton, 396 Ill. App. 3d 1141

(2010) (table) (unpublished order under Supreme Court Rule 23).

¶ 28 C. Section 2-1401 Petition

¶ 29 On August 19, 2010, defendant filed a petition for relief from judgment pursuant

to section 2-1401 of the Code of Civil Procedure (Civil Procedure Code) (735 ILCS 5/2-1401

(West 2008)). In November 2010, the State filed a motion to dismiss, and the trial court

dismissed defendant’s petition on January 12, 2011. Defendant appealed and the Office of the

State Appellate Defender (OSAD) moved to withdraw as appellate counsel, arguing the appeal

presented no meritorious issues. This court agreed with OSAD and affirmed the trial court’s

dismissal of defendant’s petition for relief from judgment. People v. Horton, 2012 IL App (4th)

110086-U.

¶ 30 D. Motion for Forensic Testing

¶ 31 On April 2, 2012, defendant filed a petition for postconviction forensic testing

pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code)

(725 ILCS 5/116-3 (West 2010)). Defendant requested DNA testing of multiple items of

evidence, including Smith’s fingernail scrapings. On May 16, 2013, the trial court entered an

agreed order for forensic testing.

-8- ¶ 32 E. First Successive Postconviction Petition

¶ 33 On July 15, 2016, defendant, through counsel, filed a motion for leave to file a

first successive postconviction petition, in which he alleged actual innocence based on new DNA

evidence. In his successive petition, defendant outlined the new DNA evidence that he alleged

supported his position. Defendant attached to his petition an official report of Cellmark Forensics

stating, in relevant part, in a “partial Y-STR profile,” defendant was excluded as a contributor of

the male DNA obtained from Smith’s left-hand fingernail scrapings. (No Y-STR profile was

obtained from the right-hand fingernail scrapings.) Defendant also attached to his petition the

following three “scholarly exhibits”: (1) an article prepared by the Israeli National Center of

Forensic Medicine titled, “Evaluating the prevalence of DNA mixtures found in fingernail

samples from victims and suspects in homicide cases”; (2) an article prepared by the Centre of

Forensic Sciences, Biology Section, Toronto, Ontario, Canada, and titled, “Prevalence and

persistence of foreign DNA beneath fingernails”; and (3) an article prepared by two universities

and a forensic science laboratory, each located in Scotland, and titled, “The prevalence of mixed

DNA profiles on fingernail swabs.”

¶ 34 Defendant also filed a petition for relief from judgment under section 2-1401 of

the Civil Procedure Code (735 ILCS 5/2-1401 (West 2014)), making substantially the same

arguments and with the same attachments as in his successive postconviction petition.

¶ 35 On August 2, 2016, the trial court entered an order allowing defendant’s motion

for leave to file his first successive petition for postconviction relief and advanced defendant’s

petition to the second stage of postconviction proceedings. On December 1, 2016, the State filed

a motion to dismiss defendant’s successive petition, alleging in relevant part, the evidence was

not (1) material or (2) of such a conclusive character it would probably change the result on

-9- retrial. The State argued defendant failed to show the significance of the DNA evidence, “aside

from pure speculation that it might have come from the person who murdered Amy Smith.”

¶ 36 On June 9, 2017, postconviction counsel filed an amended certificate pursuant to

Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).

¶ 37 On June 29, 2017, the trial court entered a 17-page memorandum of opinion and

order granting the State’s motion to dismiss defendant’s successive postconviction petition and

denying defendant’s second section 2-1401 petition. The court first found defendant failed to

establish how Smith’s left-hand fingernail scrapings were material to his case. The court noted

“no evidence that [Smith] had any opportunity to scratch her attacker with her hands” and no

evidence Smith’s left-hand “fingers or fingernails had any sign of offensive injuries or any

defects that would be consistent with having scratched or gouged her assailant.” The court

detailed her review of each of the three “scholarly exhibits” defendant attached to his

postconviction petition. Regarding the exhibits, the court found the articles were inadmissible

under Illinois Rule of Evidence 703 (eff. Jan. 1, 2011), and noted the three articles made

inconsistent findings and discussed only the significance of finding high level DNA in fingernail

scrapings. Defendant’s DNA analysis was not high level but contained only a partial profile. The

court noted defendant failed to attach “any reports, opinions, or affidavits of any witness

concerning the interpretation or the significance of the DNA evidence.”

¶ 38 The trial court also found defendant’s “newly discovered evidence” was not of

such conclusive character as would probably change the result on retrial. The court noted this

court’s language in affirming defendant’s conviction on direct appeal. There, we stated the

following:

- 10 - “The evidence is not closely balanced. Defendant’s clothes and boots were stained

with Smith’s blood, and defendant testified that he was inside Smith’s apartment

on January 29, 2004, at approximately 4:45 a.m. Expert witness Carter opined that

the one-millimeter blood stains on defendant’s boots represented medium to high

velocity impact. Between Ruch’s two telephone calls to Smith’s apartment at 5:00

a.m. and 5:01 a.m., the loud noises from Smith’s apartment stopped and Miller

saw defendant yelling and gesturing toward the house as he walked away.”

¶ 39 On July 28, 2017, defendant filed a motion for reconsideration of the trial court’s

dismissal, asserting (1) the scholarly articles and “uncontradicted DNA findings” were given

insufficient consideration as the articles and DNA test results were “other evidence” as

referenced by section 122-2 of the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS

5/122-2 (West 2014)); (2) the court’s statement there was no evidence Smith had an opportunity

to scratch her attacker with her hands was contrary to the record; and (3) the court failed to

consider all the evidence presented at trial in support of defendant’s claims. On August 2, 2017,

the court denied defendant’s motion for reconsideration.

¶ 40 This appeal followed.

¶ 41 II. ANALYSIS

¶ 42 As an initial matter, defendant argues only the trial court erred by dismissing his

successive postconviction petition, stating “the proper vehicle for his actual innocence claim is

the Post-Conviction Hearing Act,” and not a petition for relief from judgment pursuant to section

2-1401 of the Civil Procedure Code.

¶ 43 A. Postconviction Act

- 11 - ¶ 44 The Postconviction Act provides a remedy for defendants who have suffered a

substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471,

861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the Postconviction Act

sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.

¶ 45 At the first stage, the circuit court independently reviews the defendant’s

postconviction petition and determines whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). If it finds the petition is frivolous or patently

without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2014). If the

court does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court

appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense

counsel may amend the defendant’s petition to ensure his or her contentions are adequately

presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also at the second stage, the State

may file a motion to dismiss the defendant’s petition or an answer to it. Pendleton, 223 Ill. 2d at

472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court denies such a

motion, the petition advances to the third stage, wherein the court holds a hearing at which the

defendant may present evidence in support of his or her petition. Pendleton, 223 Ill. 2d at 472-

73, 861 N.E.2d at 1008.

¶ 46 Additionally, the Postconviction Act contemplates the filing of only one petition

without leave of court. 725 ILCS 5/122-1(f) (West 2014). The defendant forfeits any claim not

presented in the original or amended petition. 725 ILCS 5/122-3 (West 2014). Our supreme court

has “identified two bases upon which the bar against successive petitions will be relaxed.”

People v. Sanders, 2016 IL 118123, ¶ 24, 47 N.E.3d 237. The first exception is when the

defendant satisfies the cause and prejudice test. 725 ILCS 5/122-1(f) (West 2014); People v.

- 12 - Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). The second is known as the

fundamental miscarriage of justice exception, requiring the defendant demonstrate actual

innocence. Sanders, 2016 IL 118123, ¶ 24.

¶ 47 B. Second Stage Dismissal of Defendant’s Successive Postconviction Petition

¶ 48 In this case, the State did file a motion to dismiss defendant’s successive

postconviction petition at the second stage of the proceedings, and the trial court granted that

motion. Defendant challenges the dismissal, asserting he had made a substantial showing of

actual innocence. The State disagrees.

¶ 49 At the second stage of the postconviction proceedings, the circuit court is

concerned only with determining whether the petition’s allegations sufficiently show a

constitutional infirmity that would necessitate relief under the Postconviction Act. People v.

Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, “the defendant bears

the burden of making a substantial showing of a constitutional violation” and “all well-pleaded

facts that are not positively rebutted by the trial record are to be taken as true.” Pendleton, 223

Ill. 2d at 473, 861 N.E.2d at 1008. “[T]he ‘substantial showing’ of a constitutional violation that

must be made at the second stage [citation] is a measure of the legal sufficiency of the petition’s

well-pled allegations of a constitutional violation, which if proven at an evidentiary hearing,

would entitle petitioner to relief.” (Emphasis in original.) People v. Domagala, 2013 IL 113688,

¶ 35, 987 N.E.2d 767. The court reviews the petition’s factual sufficiency as well as its legal

sufficiency in light of the trial court record and applicable law. People v. Alberts, 383 Ill. App.

3d 374, 377, 890 N.E.2d 1208, 1212 (2008). However, the court is prohibited from engaging in

any fact-finding. Coleman, 183 Ill. 2d at 380-81, 701 N.E.2d at 1071. When a defendant raises a

claim of actual innocence, the relevant inquiry at the second stage of postconviction review is

- 13 - whether the defendant has made a substantial showing of actual innocence to warrant an

evidentiary hearing. People v. Rivera, 2016 IL App (1st) 132573, ¶ 30, 64 N.E.3d 1. We review

de novo the trial court’s dismissal of a postconviction petition at the second stage. Pendleton,

223 Ill. 2d at 473, 861 N.E.2d at 1008.

¶ 50 “The evidence of actual innocence must be (1) newly discovered, (2) not

discoverable earlier through the exercise of due diligence, (3) material and not merely

cumulative, and (4) of such conclusive character that it would probably change the result on

retrial.” Sanders, 2016 IL 118123, ¶ 24. The “conclusiveness of the new evidence is the most

important element of an actual innocence claim.” Sanders, 2016 IL 118123, ¶ 47. The

defendant’s new evidence must be “so conclusive that it is more likely than not that no

reasonable juror would find him guilty beyond a reasonable doubt.” Sanders, 2016 IL 118123,

¶ 47. In its motion to dismiss, the State asserted defendant failed to make a substantial showing

of actual innocence because his new evidence was not (1) material and (2) of such conclusive

character that it would probably change the result on retrial.

¶ 51 Defendant contends the new DNA evidence clearly shows another male struggled

with Smith before her death leaving his DNA underneath Smith’s fingernails, and thus,

defendant is innocent of first degree murder. We clarify the new DNA evidence defendant

references is a partial Y-STR profile obtained from Smith’s left-hand fingernail scrapings,

excluding defendant as a contributor of the male DNA; no Y-STR profile was obtained from

Smith’s right-hand fingernail scrapings.

¶ 52 We note “DNA, in and of itself, does not confirm the commission of a crime;

rather, it confirms an individual’s identity.” People v. Rivera, 2011 IL App (2d) 091060, ¶ 31,

962 N.E.2d 53; see also People v. Hunter, 358 Ill. App. 3d 1085, 1093, 831 N.E.2d 1192, 1198

- 14 - (2005) (quoting People v. Hall, 352 Ill. App. 3d 537, 549, 736, 816 N.E.2d 703, 713-14 (2004)).

Thus, DNA evidence that does not match a defendant’s DNA does not exonerate the defendant.

Rivera, 2011 IL App (2d) 091060, ¶ 31; see also People v. Allen, 377 Ill. App. 3d 938, 944, 880

N.E.2d 223, 228 (2007) (stating that “[t]he absence of defendant’s DNA on the gun would not

conclusively establish that he did not handle the gun or that he did not commit the *** robbery”).

¶ 53 Defendant asserts the trial court “misread[ ] the record” when it found the new

DNA evidence was not material “because ‘there was no evidence that Smith had an opportunity

to scratch her attacker with her hands,’ nor were there any injuries to Smith’s hands that would

have established that she scratched her attacker.” Defendant asserts People v. Rozo, 2012 IL App

(2d) 100308, 970 N.E.2d 544, is instructive on the issue of “materiality of fingernail scrapings to

the question of the identity of the offender.” However, the issue in Rozo was whether the trial

court erred in denying defendant’s motion for DNA testing pursuant to section 116-3 of the

Criminal Procedure Code (725 ILCS 5/116-3 (West 2008)). Rozo, 2012 IL App (2d) 100308, ¶ 1.

Section 116-3 requires the defendant demonstrate that the result of the requested forensic DNA

testing “has the scientific potential to produce new, noncumulative evidence materially relevant

to the defendantʼs assertion of actual innocence even though the results may not completely

exonerate the defendant.” (Emphasis added.) 725 ILCS 5/116-3(c)(1) (West 2014). In Rozo, the

defendant requested the testing of “tissue and/or blood samples” that had been found under the

murder victim’s fingernails. The appellate court reversed the trial court’s denial of the

defendant’s motion finding the evidence “would tend to significantly advance defendant’s claim

of actual innocence such that testing should have been ordered.” Rozo, 2012 IL App (2d)

100308, ¶ 19.

- 15 - ¶ 54 In this case, the trial court entered an agreed order on May 16, 2013, for forensic

testing of fingernail scrapings “collected in sexual assault evidence collection kit of Amy Smith.”

Defendant is not challenging the denial of a motion for forensic testing as was the issue in Rozo;

he is challenging the dismissal of his successive postconviction petition claiming actual

innocence based on newly discovered evidence. Thus, defendant must make a substantial

showing of actual innocence so as to warrant an evidentiary hearing (Rivera, 2016 IL App (1st)

132573, ¶ 30) and the evidence of actual innocence must be “material and not merely

cumulative” (Sanders, 2016 IL 118123, ¶ 24). We find Rozo to be of limited application to the

instant case.

¶ 55 In support of his claim the new evidence is material, defendant contends Dr.

Mitchell testified: (1) Smith fought with her killer, (2) Smith suffered “defensive wounds” to her

arms and hands, (3) “that victims who struggle with their attackers often scratch them,”

(4) Smith “could have scraped her killer,” (5) Smith may have “clawed at or scratched” her

killer, (6) Smith “struggled with her attacker such that her killer’s DNA would be under her

fingernails” and (7) he “scraped under Smith’s fingernails for biological material because

victims who struggle with their attackers often scratch the offender.” (Emphasis in original.)

Contrary to defendant’s contentions, Dr. Mitchell testified he observed multiple injuries during

his examination of Smith, including abrasions to the left elbow, left inner forearm, outer left

forearm, a “watch band abrasion” which Dr. Mitchell opined would be consistent with the hand

raised, injuries to the back of the right hand, right wrist and forearm abrasions, a laceration to the

right index finger and abrasions to the right palm, right elbow, and right forearm. Dr. Mitchell

stated many of the abrasions were consistent with “defensive injuries,” which he defined as

wounds to the forearms and backs of the hands “that would be consistent with someone trying to

- 16 - ward off an attack from either a blunt object, or to protect themselves from a sharp object.”

According to Dr. Mitchell, Smith suffered “defensive injuries” to the backs of her hands and left

forearm.

¶ 56 On cross-examination, Dr. Mitchell acknowledged Smith “struggled” with her

attacker as evidenced by the photographs. The following colloquy ensued:

“Q. All right. When there’s a physical altercation or you’d think or believe that

may have been physical contact between the assailant and a victim, it is not

uncommon for victims to attempt to scratch or otherwise injure the attacker, isn’t

that true?

A. They may.

Q. Well, it’s part of your duties as forensic pathologist to check and scrape under

the fingernails for any possible evidence there, isn’t that correct?

A. That’s correct.

Q. And in this case you did in fact scrape the fingernails of Amy Smith, correct?

A. Yes, we did.”

¶ 57 The record does not support defendant’s contention Smith clawed, scraped, or

scratched her killer. Although Dr. Mitchell agreed a victim in an altercation may attempt to

scratch or injure her attacker, the evidence in the instant case showed only that Smith suffered

“defensive injuries” to the backs of her hands and left forearm. According to Dr. Mitchell,

Smith’s injuries were indicative of her attempt to shield her body from the objects used in her

murder. There was no evidence of Smith clawing or scratching her killer. Moreover, Dr. Mitchell

testified, although there was no evidence Smith had been sexually assaulted, he administered the

sexual assault kit, gathering samples of Smith’s hair, fingernail scrapings, and blood, because it

- 17 - was a “standard kit for this type of incident” and not because Smith may have clawed or

scratched her offender as defendant asserts.

¶ 58 Thus, we find the trial court did not err in finding the new DNA evidence was not

material because there was no evidence Smith had an opportunity to scratch her attacker with her

left-hand fingernails and there were no injuries to Smith’s hands that would establish she

scratched her attacker.

¶ 59 Defendant further argues the trial court should have ordered discovery or

appointed an expert to interpret the new DNA evidence, thus enabling the court to find the new

evidence material. Defendant cites three cases in support of his argument. In People v. Fair, 193

Ill. 2d 256, 263, 738 N.E.2d 500, 504 (2000), the supreme court found the trial court erred when

it denied defendant’s request for postconviction discovery to uncover the full extent of alleged

judicial corruption. In People v. Jakes, 2013 IL App (1st) 113057, ¶ 35, 2 N.E.3d 481, the

appellate court found the trial court erred when it denied defendant’s motion for postconviction

discovery alleging police misconduct. In People v. Wilson, 191 Ill. 2d 363, 382-83, 732 N.E.2d

498, 508 (2000), the supreme court found the trial court did not err in denying defendant’s

motion for postconviction appropriation of funds to hire an expert. Here, defendant did not file a

postconviction motion for (1) discovery or (2) the appointment of an expert. Thus, we find no

error.

¶ 60 Defendant next argues the trial court erred in finding he failed to make a

substantial showing of actual innocence because his new DNA evidence was not of such

conclusive character that it would probably change the result on retrial. As we stated above, the

“conclusiveness of the new evidence is the most important element of an actual innocence

claim.” Sanders, 2016 IL 118123, ¶ 47. As an initial matter, we clarify defendant’s new evidence

- 18 - must be “so conclusive that it is more likely than not that no reasonable juror would find him

guilty beyond a reasonable doubt.” Sanders, 2016 IL 118123, ¶ 47. We note further, at the

second stage of the postconviction proceedings, “all well-pleaded facts that are not positively

rebutted by the trial record are to be taken as true.” Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at

1008.

¶ 61 Defendant again contends the new DNA evidence clearly shows another male

struggled with Smith before her death, leaving his DNA underneath Smith’s left-hand

fingernails, and thus, he is innocent. He argues the evidence of his guilt was entirely

circumstantial and failed to establish motive for defendant to have so brutally murdered Smith.

¶ 62 We have already determined there was no evidence Smith scratched her attacker.

We note further there was no evidence of another male at the scene near the time of the murder.

Miller testified she heard a loud crashing sound coming from Smith’s apartment and a low

muffled voice uttering what sounded like “unnh” over and over again. Ruch telephoned Smith’s

apartment at approximately 5 a.m. and could hear the telephone ringing through the vent. Smith

did not answer. Miller next heard an individual moving swiftly up the basement stairs and

leaving through Smith’s apartment door. Through her apartment window, Miller saw a black

male yelling and gesturing toward the house as he walked away. She recognized the individual as

someone she had seen at Smith’s door two weeks earlier and identified defendant as that

individual.

¶ 63 Moreover, defendant admitted he was present in Smith’s apartment at

approximately 4:45 a.m., finding Smith lying on the floor in a pool of blood. Defendant testified

he held Smith’s head in his hand and found his hands full of blood. He shook his hands, wiped

them on his pants, and ran from the scene. However, expert witness Carter testified the

- 19 - bloodstain patterns on defendant’s boots were consistent with “impact spatter.” Carter also

examined 12 crime-scene photographs, identifying evidence of blood flight in the photographs.

¶ 64 Defendant’s testimony Smith was alive when he found her is contradicted by the

record. Defendant argues Dr. Mitchell’s statement the stab wounds were sustained “perimortem”

implies the stab wounds were made before Smith’s death. He defines “perimortem” as “taking

place at or around the time of death.” Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/medical/perimortem (last visited Jan. 8, 2020). However, the

timeframe, “around the time of death,” contradicts Dr. Mitchell’s testimony there was little

evidence to suggest Smith’s heart was pumping blood at the time she sustained the stab wounds.

At defendant’s sentencing hearing, the trial court found defendant’s explanation as to his

presence in Smith’s apartment on January 29, 2004, “preposterous,” noting defendant’s

“demeanor while testifying spoke volumes.”

¶ 65 Moreover, DNA test results indicated the blood on defendant’s boots, left sock,

and coat matched Smith’s DNA profile. When defendant was asked how Smith’s blood got on

the back of his coat, defendant replied, “Well, I couldn’t tell you. Maybe it flew up in the air and

came down.” Expert witness Carter opined the blood stains on defendant’s boots included stains

made at “medium to high impact,” which could not have been produced by defendant shaking

blood off his hands. In addition, the tread pattern on defendant’s boot was consistent with a

pattern abrasion on Smith’s skull. Defendant attempted to rid himself of these clothes after

leaving Smith’s apartment. In addition, when he was initially arrested, defendant told police he

had not seen Smith on January 28 or 29.

¶ 66 Given the overwhelming evidence establishing defendant’s guilt, we cannot find

the absence of defendant’s DNA underneath Smith’s left-hand fingernails to be of such

- 20 - conclusive character as would probably change the result on retrial. Accordingly, defendant

failed to make a substantial showing of actual innocence, and we affirm the trial court’s grant of

the State’s motion to dismiss.

¶ 67 B. Reasonable Assistance of Postconviction Counsel

¶ 68 Alternatively, defendant argues his postconviction counsel failed to comply with

Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Specifically, defendant argues

postconviction counsel failed to provide him a reasonable level of assistance where counsel

failed to support defendant’s successive postconviction petition with an affidavit from an expert

witness “explaining the significance of the DNA results which showed [defendant’s] DNA was

not recovered under murder victim Amy Smith’s fingernails.”

¶ 69 Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) “imposes specific

obligations on postconviction counsel to assure the reasonable level of assistance required by the

Act.” People v. Lander, 215 Ill. 2d 577, 584, 831 N.E.2d 596, 600 (2005). Under that rule,

postconviction counsel must (1) consult with the defendant either by mail or in person to

ascertain the contentions of deprivation of constitutional rights, (2) examine the record of the

trial court proceedings, and (3) make any amendments to the pro se petition necessary for an

adequate presentation of the defendant’s contentions. People v. Perkins, 229 Ill. 2d 34, 42, 890

N.E.2d 398, 403 (2007). Our supreme court has consistently held remand is required when

postconviction counsel fails to complete any one of the above duties, regardless of whether the

claims raised in the petition have merit. People v. Suarez, 224 Ill. 2d 37, 47, 862 N.E.2d 977, 982

(2007). Postconviction counsel’s filing of a Rule 651(c) certificate raises a presumption that

counsel provided reasonable assistance under the Postconviction Act, namely, that counsel

- 21 - adequately investigated, amended, and properly presented the defendant’s claims. People v.

Jones, 2011 IL App (1st) 092529, ¶ 23, 955 N.E.2d 1200.

¶ 70 Here, defendant argues postconviction counsel failed to comply with Rule 651(c)

by failing to attach to defendant’s successive postconviction petition an affidavit from an expert

witness explaining the significance of the newly discovered DNA evidence. However, despite

the trial court requiring postconviction counsel to file multiple Rule 651(c) certifications stating

he complied with the rule, “Rule 651(c) applies only to a postconviction petition initially filed by

a pro se defendant.” People v. Cotto, 2016 IL 119006, ¶ 41, 51 N.E.3d 802. As defendant’s

successive postconviction petition was initially filed by counsel, we do not address

postconviction counsel’s compliance with Rule 651(c).

¶ 71 Even without Rule 651, the Postconviction Act requires a defendant receive

reasonable assistance of postconviction counsel. See Lander, 215 Ill. 2d at 583-84, 831 N.E.2d at

600 (quoting People v. Owens, 139 Ill. 2d 351, 364, 564 N.E.2d 1184, 1189 (1990)).

“Reasonable assistance” is a lesser requirement than “effective assistance” described in

Strickland v. Washington, 466 U.S. 668 (1984). People v. Zareski, 2017 IL App (1st) 150836,

¶ 50, 84 N.E.3d 527. We note, “[s]trictly speaking, a defendant is entitled to less from

postconviction counsel than from direct appeal or trial counsel. The flip side of this principle is

that it should be even more difficult for a defendant to prove that he or she received unreasonable

assistance than to prove he or she received ineffective assistance under Strickland.” Zareski,

2017 IL App (1st) 150836, ¶ 50. Because the Postconviction Act generally requires a reasonable

level of assistance and applies to all petitions, both appointed and retained postconviction

counsel must provide a reasonable level of assistance to postconviction defendants at second-

stage proceedings. See Cotto, 2016 IL 119006, ¶ 41.

- 22 - ¶ 72 In this case, we cannot say defendant’s postconviction counsel failed to provide

him a reasonable level of assistance. Defendant focuses on his counsel’s failure to attach an

affidavit from an expert “explaining the significance of the DNA results.” As stated above, the

new DNA evidence presented by defendant does not show he did not commit the crime for

which he was convicted. The record does not support defendant’s contention Smith clawed,

scraped, or scratched her killer. Even if the newly discovered DNA evidence had been presented

with an expert affidavit as to its materiality, the overwhelming evidence against defendant would

not make it more likely than not no reasonable juror would find defendant guilty beyond a

reasonable doubt. Moreover, such evidence would not be of such a conclusive character as would

probably change the result on retrial. Thus, no prejudice has been demonstrated.

¶ 73 Although differences in DNA analysis testing results may be critical in many

instances, this is not one of them because the new DNA evidence defendant has presented does

not show defendant’s actual innocence in this case. Thus, we find defendant’s claim of

unreasonable assistance of postconviction counsel is without merit.

¶ 74 III. CONCLUSION

¶ 75 For the reasons stated we affirm the trial court’s judgment.

¶ 76 Affirmed.

- 23 -