People v. Grant

Citation2020 IL App (3d) 160758,172 N.E.3d 590,447 Ill.Dec. 67
Decision Date24 December 2020
Docket NumberAppeal No. 3-16-0758
CourtUnited States Appellate Court of Illinois
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew GRANT, Defendant-Appellant.

James E. Chadd, John M. McCarthy, Amy J. Kemp, and Susan M. Wilham, of State Appellate Defender's Office, of Springfield, for appellant.

Jodi Hoos, State's Attorney, of Peoria (Patrick Delfino, Thomas D. Arado, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Andrew Grant, appeals following the Peoria County circuit court's denial of his motion for new trial. He contends that the State's illegal posttrial destruction of forensic evidence in his case entitles him to a new trial under statutory and constitutional law. We reverse the ruling of the circuit court, vacate defendant's conviction, and remand for further proceedings.


¶ 3 The State charged defendant via indictment with aggravated criminal sexual assault ( 720 ILCS 5/12-14(a)(6) (West 2004)) and criminal sexual assault (id. § 12-13(a)(1)). The indictment alleged that defendant knowingly committed an act of sexual penetration upon Z.G. by force or threat of force, knowing Z.G. to be a physically handicapped person.

¶ 4 This court has previously set forth the facts of defendant's trial in great detail. See People v. Grant , 2016 IL App (3d) 140211, ¶¶ 4-9, 400 Ill.Dec. 515, 48 N.E.3d 802. The evidence showed that Z.G., who had cerebral palsy

and was legally blind, lived in a house with her parents, a sister, her brother Jeremy, and the defendant, her uncle. Z.G. testified that, one night, defendant entered her room and sexually assaulted her. He stopped and left the room when Jeremy came in. Jeremy testified that when he entered the room defendant was pulling up his pants and Z.G. was in her bed without clothes on. Jeremy testified that defendant told him not to tell anyone what he had seen. Defendant testified that Z.G. told him that she had had sex with Jeremy. When defendant confronted Jeremy, Jeremy woke up the other household members and accused defendant of assaulting Z.G.

¶ 5 Nurse Cathy Jackson Bruce performed an examination on Z.G., collecting a number of oral, rectal, and anal swabs. The parties stipulated that no semen was identified on the swabs. Jackson Bruce also collected a single hair in the course of the examination and took scrapings from underneath Z.G.'s fingernails. Neither the hair nor the scrapings were tested for DNA.

¶ 6 The jury found defendant guilty on both counts. The court merged the counts and sentenced defendant to a term of 14 years' imprisonment for aggravated criminal sexual assault. Defendant continued to maintain his innocence through a series of appeals and postconviction filings, though he failed to obtain any substantial relief.

¶ 7 In 2013, the Illinois Innocence Project filed on defendant's behalf a motion for forensic testing on the hair and fingernail scrapings. It later amended the motion to remove the request for testing on the scrapings. The circuit court denied the motion.

¶ 8 This court reversed the circuit court's ruling, determining that defendant had fulfilled the obligations of section 116-3 of the Code of Criminal Procedure of 1963 (Code), which governs postconviction motions for forensic testing ( 725 ILCS 5/116-3 (West 2012) ). Grant , 2016 IL App (3d) 140211, ¶¶ 14-28, 400 Ill.Dec. 515, 48 N.E.3d 802. Specifically, we found that "[t]he testing sought by defendant * * * has the potential to be materially relevant to a claim of actual innocence." Id. ¶ 26. We reasoned that, if the hair were found not to match defendant or Z.G., that fact, absent any other physical evidence directly tying defendant to the offense, would be highly probative. We also pointed out that if the hair were found to match Jeremy, defendant's credibility would be significantly bolstered while Jeremy's credibility would be undermined. Id. We also rejected the State's argument that the strength of the evidence against defendant would render DNA test results on the hair immaterial: "Although the State is correct that a nonmatch would not completely exonerate defendant of the sexual assault, it is arguable that such a result could advance defendant's claim that he is innocent of the crime." Id. ¶ 27.

¶ 9 On remand, counsel was appointed for defendant, and the court held a hearing relating to the motion for forensic testing. At that hearing, it was revealed that all of the forensic evidence in defendant's case had been destroyed in 2007 pursuant to Peoria Police Department policy. Defense counsel moved for a new trial or a judgment notwithstanding the verdict, on the grounds that law enforcement had failed in its duty to preserve evidence. The circuit court denied the motion, finding that the order for forensic testing could not be complied with. The court further stated: "I don't find that it was willful or there was a bad intent on the Sheriff Department [sic ]." Defendant appealed.

¶ 10 The Office of the State Appellate Defender (OSAD) was appointed to represent defendant on this appeal. OSAD initially filed a motion under Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), seeking to withdraw on the grounds that this appeal presented no issues of merit. We granted that motion in an opinion, with one justice dissenting. OSAD subsequently moved to vacate that opinion and to be reinstated as appellate counsel for defendant. We granted that motion.


¶ 12 Where a defendant is convicted of aggravated criminal sexual assault, section 116-4(a) of the Code mandates that a law enforcement agency securely retain any forensic evidence in the case. 725 ILCS 5/116-4(a) (West 2006). Section 116-4(b) dictates that the forensic evidence must be retained until the defendant has completed his sentence, including the period of mandatory supervised release (MSR). Id. § 116-4(b). The State concedes that the 2007 destruction of all forensic evidence in this case was in violation of section 116-4 of the Code. The present controversy concerns only a potential remedy for that violation.

¶ 13 A. Mootness

¶ 14 The State first argues that this appeal is moot and should be dismissed because "there is no rational remedy that defendant could possibly be afforded," because defendant has been discharged from the Illinois Department of Corrections and has completed his term of MSR.

¶ 15 However, defendant's completion of his sentence has no bearing on his ability to obtain relief. When a defendant who has completed his sentence challenges only that sentence, the claim will be moot. E.g. , In re Shelby R. , 2012 IL App (4th) 110191, ¶ 16, 362 Ill.Dec. 910, 974 N.E.2d 431. Here, defendant challenges his conviction, in which he has an ongoing interest, given the "obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction." People v. Davis , 39 Ill. 2d 325, 329, 235 N.E.2d 634 (1968). As our supreme court has explained: "the completion of a defendant's sentence renders a challenge to the sentence moot, but not a challenge to the conviction. [Citation.] Nullification of a conviction may hold important consequences for a defendant." In re Christopher K. , 217 Ill. 2d 348, 359, 299 Ill.Dec. 213, 841 N.E.2d 945 (2005).

¶ 16 B. Mandatory or Directory Construction

¶ 17 Section 116-4(b) says that a law enforcement agency must retain any forensic evidence in a case until defendant has completed his sentence and any term of MSR. 725 ILCS 5/116-4(b) (West 2006). It is silent as to the result of the government's failure to comply with that mandate. See id. However, section 33-5 of the Criminal Code of 1961 (Criminal Code), imposes a felony criminal offense for the intentional failure to comply with section 116-4. 720 ILCS 5/33-5(a), (b) (West 2006); 730 ILCS 5/5-8-1(a)(7) (West 2006).

¶ 18 1. Mandatory or Directory Language

¶ 19 As a threshold matter, we must consider whether the criminal consequences contemplated in section 33-5 render the provisions of section 116-4 mandatory, rather than directory. It is well settled that whether a statutory provision is mandatory or directory "concerns the consequences of a failure to fulfill an obligation." People v. Robinson , 217 Ill. 2d 43, 52, 298 Ill.Dec. 37, 838 N.E.2d 930 (2005). More specifically, our supreme court has frequently declared that "the mandatory/directory question "simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates." " In re M.I. , 2013 IL 113776, ¶ 16, 370 Ill.Dec. 785, 989 N.E.2d 173 (quoting Robinson , 217 Ill. 2d at 51-52, 298 Ill.Dec. 37, 838 N.E.2d 930, quoting Morris v. County of Marin , 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606, 610-11 (1977) ); see also People v. Delvillar , 235 Ill. 2d 507, 516-17, 337 Ill.Dec. 207, 922 N.E.2d 330 (2009).

¶ 20 The language employed in M.I. , Robinson , Delvillar , and myriad other cases makes clear that the question of a mandatory-directory analysis is whether the legislature intended the specific consequence of invalidating the governmental action at issue. The question is not whether any consequence exists. Here, while section 33-5 plainly prescribes a consequence for failure to comply with section 116-4, that consequence under section 33-5 does nothing to invalidate any governmental action. Indeed, the consequence is wholly ancillary; it has no direct impact on any individual defendant or upon any proceedings.

¶ 21 2. Intended Consequences for Violation

¶ 22 Although section 33-5 itself does not make section 116-4 mandatory, we must still decide whether the legislature nevertheless intended section 116-4 to be mandatory in nature. "[W]hether a...

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  • People v. Grant
    • United States
    • Illinois Supreme Court
    • April 21, 2022
    ...issues. The appellate court granted OSAD's Finley motion in an opinion, with one justice dissenting. See 2020 IL App (3d) 160758, ¶ 10, 447 Ill.Dec. 67, 172 N.E.3d 590. Subsequently, OSAD moved to vacate the opinion and to be reinstated as counsel for defendant. The 202 N.E.3d 237460 Ill.De......

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