2021 IL App (1st) 172998-U No. 1-17-2998 Order filed January 22, 2021 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 05 CR 12281 ) MARSHALL STEWART, ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s denial of defendant’s pro se postconviction motion for DNA testing because he failed to establish that further retesting of forensic evidence would provide a reasonable likelihood of more probative results or new, noncumulative evidence materially relevant to his claim of actual innocence.
¶2 Defendant Marshall Stewart appeals from the trial court’s order denying his pro se
postconviction motion, filed pursuant to section 116-3 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/116-3 (West 2016)), seeking deoxyribonucleic acid (DNA) testing of the No. 1-17-2998
sexual assault kit and semen found on the victim’s clothes. On appeal, defendant contends the
circuit court erroneously denied his motion where he presented a prima facie case for the DNA
testing, and the newly available, more sophisticated testing had the potential to produce new
evidence relevant to his claim of actual innocence. For the following reasons, we affirm.
¶3 Following a 2008 bench trial, defendant was found guilty of four counts of aggravated
criminal sexual assault and one count of aggravated kidnaping, and sentenced to an aggregate term
of 43 years’ imprisonment. We affirmed defendant’s convictions on direct appeal (People v.
Stewart, No. 1-08-2630 (2010) (unpublished summary order under Supreme Court Rule 23(c)(2)).
We recite only the facts necessary to resolve the issue raised on appeal.
¶4 At trial, N.M. testified that on July 26, 2004, she was walking on the 2000 block of North
Racine Avenue in Chicago, when she felt a person come behind her and place his arms around her
neck “in a choke hold.” The man dragged her to the ground, unzipped her pants and placed his
fingers inside her vagina. He then pushed her into a gangway, held a knife against her throat, pulled
her pants down, and proceeded to have vaginal intercourse with her. The man also attempted to
have anal intercourse with her, but “gave up on that” and had vaginal intercourse with her a second
time. She never saw the man. N.M. contacted the police, who drove her to the hospital. At the
hospital, the staff treated her injuries, and took a vaginal swab and a sample of pubic hair.
¶5 On cross-examination, N.M. acknowledged she never saw her attacker’s face, any
identifying features, and did not know the man.
¶6 Chicago police officer Michael Infelise testified that he was dispatched to the scene of the
incident. He interviewed N.M. and escorted her to the hospital.
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¶7 Memuna Eccles-James testified she was a registered nurse who was working the night shift
on July 26, 2004. She treated N.M., who told her that “she was dragged into the alleyway, pinned
down to the wall and somebody * * * pulled down her pants and attempted to rape her.” Eccles-
James observed scratch marks on N.M., in particular around her neck, and assisted Doctor Moretti,
the emergency room physician, with the specimen collection. Eccles-James identified the
specimen kit in court. After sealing the kit, Eccles-James handed it to Investigator Kawasaki from
the Chicago Police Department.
¶8 Roy Kawasaki testified he worked as an evidence technician with the forensic services
division of the Chicago Police Department. He photographed and recovered evidence from the
scene and took photographs of N.M. at the hospital. Kawasaki also collected the sexual assault kit
from the hospital and identified it in court. After he collected the kit, Kawasaki inventoried it at
his office and prepared it for shipment to the Illinois State Crime Lab.
¶9 Michael Conway testified he was a detective with the Chicago Police Department who
investigated N.M.’s case. Conway interviewed defendant on May 12, 2005 at the police station.
After reading defendant his Miranda rights, Conway questioned him about the incident that
occurred on July 26, 2005. Defendant admitted to committing the assault and told Conway that
“he had been frustrated at his life and home and he was drinking a lot” at the time. Defendant
stated that he was driving that evening while impaired when he saw N.M. walking down the street.
Defendant told Conway that N.M. “looked great” and was talking on her cellular phone when he
saw her. Defendant stated he “just wanted immediate gratification” and got out of the car, followed
her, and placed her “in a choke hold * * * to put her to sleep.” Defendant then stated he dragged
her into a gangway, put a serrated key to her throat, pulled down her pants, and sexually assaulted
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her. After the interview, an evidence technician arrived and took a buccal swab from defendant.
Defendant subsequently gave his handwritten statement to an assistant state’s attorney.
¶ 10 Kelly Navarro testified that she was an assistant state’s attorney in Cook County. Navarro
took defendant’s written statement on May 12, 2005 after reading him his Miranda rights. Navarro
identified the statement and published it on the record. The events of the statement are consistent
with Detective Conway’s recitation of his interview with defendant. Defendant signed each page
of the handwritten statement.
¶ 11 Manuel Sanchez testified he was the evidence collection technician for the state’s attorney
office, Sex Crimes Division, and collected a buccal swab from defendant. Sanchez identified the
buccal swab he collected on the record. On cross-examination, Sanchez stated that after he sealed
the sample, he gave it to Investigator Eileen Moran, who would either take it to the Illinois State
Police or the Chicago Crime Lab.
¶ 12 Moran testified she was an investigator with the Cook County State’s Attorney’s Office.
On September 14, 2004, she received defendant’s buccal swab from Sanchez and transported it to
the Chicago Police Department Crime Lab where she turned it over to Lori Lewis, who was in
charge of that department. Moran identified the buccal sample she transported and stated it
appeared in the same or substantially the same condition as when she received it.
¶ 13 Lewis testified she was a criminalist for the Chicago Police Department’s forensic services
section. On September 14, 2004, her lab received forensic evidence related to this case and held it
in a secure location.
¶ 14 Michael Cariola testified that he was the vice president of forensic operations at the Bode
Technology Group (Bode) and was a technical leader at the time of the incident. Bode had a
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contract with the Illinois State Police to assist with their DNA backlog, and as a result, received
evidence related to the present case. The evidence was tested at Bode and found the victim’s profile
was consistent with N.M.
¶ 15 On cross-examination, Cariola stated in 2005, the Illinois State Police cancelled the
contract with Bode with respect to “the sperm search portion contract.” The Illinois State Police
performed an audit of Bode’s serological work and found an error rate of approximately 22 percent
of the sperm searches which they audited. No sperm search was performed in this case.
¶ 16 Brian Schoon testified he was a forensic scientist at the Illinois State Police Forensic
Science Center. On April 20, 2005, Schoon received the buccal swab standard from defendant and
prepared it for forensic DNA analysis. As a part of the analysis, Schoon performed a Polymerase
Chain Reaction (PCR) test, which resulted in defendant’s DNA profile. Schoon then compared the
profile to the profile from N.M.’s vaginal swab, which was analyzed at Bode. After comparing the
profiles, Schoon concluded that the male DNA profile identified from the vaginal swabs matched
the DNA profile of defendant. He explained that “the profile would be expected to occur
approximately one in 3.3 quintillion blacks, one in 620 quadrillion white or one in 150 quadrillion
Hispanic unrelated individuals.”
¶ 17 On cross-examination, Schoon stated that when he extrapolated data from the DNA
sample, it looked like a “set of numbers at * * * 13 different spots” on the various chromosomes.
¶ 18 The court found defendant guilty of four counts of aggravated criminal sexual assault and
one count of aggravated kidnaping, and sentenced him to an aggregate term of 43 years’
imprisonment. In announcing its ruling, the court noted that the Illinois State Police’s audit
regarding Bode involved the accuracy of its testing of seminal fluid, which was not an issue in this
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case. The court found that along with the DNA evidence at issue, the statement given by defendant
at the police station was “overwhelming” in establishing him as the perpetrator of the assault.
¶ 19 On direct appeal, this court affirmed defendant’s convictions over his claims that he was
denied his right to confrontation because he did not have an opportunity to cross-examine the Bode
analysts who prepared the DNA profile at issue, and that the State failed to lay a proper foundation
for the Bode DNA profile. People v. Stewart, No. 1-08-2630 (2010) (unpublished summary order
under Supreme Court Rule 23(c)(2)).
¶ 20 Defendant subsequently filed a post-conviction petition under the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq. (West 2012)), arguing that his sixth amendment right to
confrontation was violated when the technician, who generated the male DNA profile from N.M.’s
vaginal swab, did not testify at trial. The court dismissed the petition at the second-stage of post-
conviction proceedings and this court affirmed the dismissal. People v. Stewart, No. 1-14-3565
(2016) (unpublished summary order under Supreme Court Rule 23(c)).
¶ 21 In 2016, defendant filed a motion pursuant to section 116-5 of the Code (725 ILCS 5/116-
5 (West 2016)), requesting the circuit court enter a DNA database search by the Department of
State Police and that the original sexual assault collection kit be made available for further forensic
testing by a privately retained laboratory under section 116-3 of the Code (725 ILCS 5/116-3 (West
2016)). 1 On June 24, 2016, the court denied the motion in a two-page written order, stating inter
alia that defendant had failed to satisfy the statutory requirements to obtain additional DNA testing
because he “has not demonstrated that it can be subjected to additional testing utilizing a method
1 This motion is not included in the record on appeal.
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that was not scientifically available at the time of trial that provides a reasonable likelihood of
more probative results.” 2
¶ 22 On February 17, 2017, defendant filed the pro se motion for additional DNA testing at bar.
In the motion, filed pursuant to section 116-3 of the Code, defendant requested the evidence, which
was previously tested by Bode and the Illinois State Police, be retested. He also requested that
forensic testing be performed on N.M.’s clothing which had not been previously tested. Defendant
argued that the previously tested material could be retested using a method that was not
scientifically available at the time of trial, would be more accurate than the method used during
his trial, and had the scientific potential to produce new, noncumulative evidence which was
materially relevant to his assertion of actual innocence.
¶ 23 On October 2, 2017, the circuit court denied defendant’s motion in a written order. In the
order, the court noted that defendant sought “to erode confidence in the lab and insinuate that Bode
might have made a mistake” which was not supported by the evidence. Further, in relevant part,
the court found that the retesting sought would not produce a reasonable likelihood of more
probative results, and the additional testing would not produce new, noncumulative evidence
material to a claim of actual innocence. The court noted that the original testing used a PCR
method, and the additional tests defendant sought were also forms of PCR testing, without
adequately differentiating the two forms of testing. Finally, the court pointed out that the strength
of the forensic evidence against defendant was “decisive” and therefore additional testing had no
reasonable likelihood of producing exonerating evidence.
2 Defendant filed two untimely notices of appeal regarding this order with the circuit court, in August 2016 and January 2017.
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¶ 24 On appeal, defendant argues the circuit court erred in denying his motion for additional
DNA testing, because he made a prima facie case for the testing, and the new testing would have
the potential to produce new, noncumulative evidence that would significantly advance his claim
of innocence.
¶ 25 “Section 116-3 of the Code delineates the prerequisites a defendant must meet in order to
establish that he is entitled to, inter alia, postconviction forensic DNA testing.” People v. Smith,
2014 IL App (1st) 113265, ¶ 19. Section 116-3(a) provides that a defendant may make a motion
in the trial court for DNA testing “on evidence that was secured in relation to the trial * * * which
resulted in his or her conviction” if the evidence was either (1) not subject at the time of trial to
the requested testing, or (2) previously tested but “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.” 725 ILCS 5/116-3(a) (West 2016). Defendants who seek to
retest genetic material have a greater burden to establish their case than defendants whose evidence
has not been tested at all. People v. Stoecker, 2014 IL 115756, ¶ 26.
¶ 26 In order to be entitled to DNA testing under the statute, a defendant must present a prima
facie case “that identity was the central issue at trial and that the evidence to be tested was subject
to a sufficiently secure chain of custody.” People v. Johnson, 205 Ill. 2d 381, 393 (2002); 725
ILCS 5/116-3(b) (West 2016). Once a defendant establishes a prima facie case, the trial court must
determine whether the testing will potentially produce new, noncumulative evidence which is
materially relevant to the defendant’s claim of actual innocence. Johnson, 205 Ill. 2d at 394; 725
ILCS 4/116-3(c) (West 2016). A trial court’s ruling on a motion brought under section 116-3 is
reviewed de novo. Stoecker, 2014 IL 115756, ¶ 21.
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¶ 27 In this case, defendant requested DNA testing of N.M.’s clothing which was not tested
prior to trial, and additional testing of the sexual assault kit which was previously tested. In this
court, defendant solely argues that the circuit court erred in denying additional testing of the sexual
assault kit.
¶ 28 The State does not dispute that identity was at issue in the case and that the evidence to be
tested was subject to a sufficiently secure chain of custody. Rather, the State responds that
defendant failed to show that retesting the sexual assault kit would produce new, noncumulative
or more probative results. We agree with the State.
¶ 29 We initially note that, with respect to the sexual assault kit defendant seeks to have retested,
he has failed to show that the testing methods mentioned in his motion were “not scientifically
available at the time of trial that provides a reasonable likelihood of more probative results” as
required by section 116-3(a)(2) of the Code. See 725 ILCS 5/116-3(a)(2) (West 2016). Rather,
defendant questions the basis for the DNA profile generated by Bode, and notes that the forensic
scientist who discovered the match of DNA testified as to the generalities regarding the science of
DNA testing, including the fact that the scientists “look at” 13 spots on a person’s DNA in making
the match. He argues that newer testing examines more of these loci and is therefore more accurate
than the original testing.
¶ 30 However, the additional DNA testing defendant requested was merely additional forms of
PCR testing, which were scientifically available at the time of the trial. At trial, forensic scientist
Brian Schoon testified that the analysis he initially performed on defendant’s buccal swab was a
PCR test. Other than defendant’s own conclusory claim that these newer PCR tests were not
scientifically available at the time of the trial, he does not provide any evidence of this claim.
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Defendant’s request for retesting of the sexual assault kit, therefore, fails to satisfy the statutory
requirements set forth in section 116-3(a)(2). See 725 ILCS 5/116-3(a)(2) (West 2016).
¶ 31 Further, even if defendant’s motion satisfied section 116-3(a)(2), we find the record
establishes defendant’s motion does not meet the section 116-3(c) requirement that retesting of the
sexual assault kit has the potential to produce new, noncumulative evidence materially relevant to
his claim of actual innocence.
¶ 32 Evidence that is “ ‘materially relevant’ to a claim of actual innocence is simply evidence
which tends to significantly advance that claim.” People v. Savory, 197 Ill. 2d 203, 213 (2001). To
determine whether evidence is materially relevant “requires a consideration of the evidence
introduced at trial, as well as an assessment of the evidence defendant is seeking to test.” Id. at
215.
¶ 33 At trial, N.M. testified that a man placed his arms around her neck “in a choke hold.” This
man dragged her to the ground, unzipped her pants and placed his fingers inside her vagina. He
then pushed her into a gangway, held a knife against her throat, pulled her pants down, and
proceeded to have vaginal intercourse with her. Defendant admitted to committing the assault and
told Conway that “he had been frustrated at his life and home and he was drinking a lot” at the
time. Defendant stated that he was driving that evening while impaired when he saw N.M. walking
down the street. Defendant told Conway that N.M. “looked great” and was talking on her cellular
phone when he saw her. Defendant stated he “just wanted immediate gratification” and got out of
the car, followed her, and placed her “in a choke hold * * * to put her to sleep.” Defendant then
stated he dragged her into a gangway, put a serrated key to her throat, pulled down her pants, and
sexually assaulted her. Schoon testified at trial that the male DNA profile from defendant’s buccal
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swab matched the profile from N.M.’s vaginal swab. In particular, Schoon explained “[t]he profile
would be expected to occur approximately one in 3.3 quintillion blacks, one in 620 quadrillion
white or one in 150 quadrillion Hispanic unrelated individuals.” Given this strong evidence of
defendant’s guilt, including his own confession, any additional DNA testing of the sexual assault
kit would likely not exonerate defendant, given such “decisive” DNA test results introduced into
evidence at trial. See Stoecker, 2014 IL 115756, ¶ 34 (holding additional testing would likely not
exonerate defendant where “the profile generated by her test results would be expected to occur in
1 in approximately 1.1 trillion Caucasians”).
¶ 34 Defendant nevertheless claims that the newer DNA tests would examine more loci than the
original PCR test which examined 13 loci and would therefore be more accurate. However,
defendant has not advanced any evidence showing inaccuracy in the original testing. While
defendant questions Schoon’s testimony, and specifically the use of the 13 loci, he merely asserts
that a test examining a greater number of loci would be more accurate, not that the original test
was inaccurate. See id., ¶ 35 (“ ‘Without having indicated some inaccuracy in the original testing,
the results of the Y-STR testing should be the same as the results of the PCR testing; those results
indicated that defendant could be included as a possible contributor to the semen stain found on
the victim’s pants.’ ”) (quoting People v. Stoecker, 2013 IL App (3d) 110300-U, ¶ 37 [Lytton, J.
dissenting]). Therefore, defendant has failed to show that the results from the first tests were
unreliable and that additional testing would significantly advance his claim of actual innocence
given the great statistical likelihood that his DNA was present on the vaginal swab. Accordingly,
defendant failed to show that retesting has the “potential to produce new, noncumulative evidence”
that is materially relevant under section 116-3(c).
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¶ 35 For the foregoing reasons, we affirm the trial court’s order denying defendant’s section
116-3 motion for testing and retesting of forensic evidence.
¶ 36 Affirmed.
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