People v. Grant

Decision Date21 April 2022
Docket NumberDocket No. 126824
Citation2022 IL 126824,202 N.E.3d 233,460 Ill.Dec. 691
Parties The PEOPLE of the State of Illinois, Appellant, v. Andrew GRANT, Appellee.
CourtIllinois Supreme Court

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Nicholas Moeller, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Catherine K. Hart, Deputy Defender, and Amy J. Kemp, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

¶ 1 In 2004, defendant, Andrew Grant, was convicted, by jury, of aggravated criminal sexual assault ( 720 ILCS 5/12-14(a)(6) (West 2004)) and criminal sexual assault (id. § 12-13(a)(1)). The trial court merged the counts and sentenced defendant to 14 years in prison. In 2013, defendant filed a motion for forensic testing of a hair that was discovered during a postassault examination of the victim. It was subsequently discovered that all the forensic evidence in defendant's case was destroyed in 2007, pursuant to Peoria Police Department (PPD) policy. Defense counsel moved for a new trial or for a judgment notwithstanding the verdict (judgment n.o.v. ) on the grounds of PPD's failure to fulfill its duty to preserve the forensic evidence as required by section 116-4 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/116-4 (West 2006) ). The Peoria County circuit court denied defendant's motion for a new trial or for a judgment n.o.v.

¶ 2 The appellate court reversed the judgment of the circuit court, vacated defendant's conviction, remanded for further proceedings, and ordered a jury instruction at any retrial that the State failed to preserve potentially exculpatory evidence as required and that the jury may construe that fact against the State. This court allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). For the following reasons, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.


¶ 4 On March 11, 2004, defendant was charged, by 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 the use of force or threat of force, knowing Z.G. to be a physically handicapped person.

¶ 5 A jury trial was conducted on September 28, 2004. Evidence at the trial showed that Z.G. suffered from cerebral palsy

and was legally blind, although she could discern some colors and shapes. Z.G. testified that in February 2004 she resided with her parents, her sister, her brother (Jeremy), and defendant—her uncle who was residing with her family. Z.G. testified that on the night of February 27, 2004, defendant "busted in the door, puts me down on the floor [sic ] and start raping me [sic ]." Z.G. testified that Jeremy heard some noise, "came busting in the door," and asked defendant, "What are you doing in her room?" Z.G. testified that "the only thing I seen [sic ], [defendant] jumped up, pulled up his pants [sic ]."

¶ 6 Jeremy testified that on the night in question he got up because he heard some noises in the house. He discovered that defendant was not on the couch where he usually slept and that Z.G.’s bedroom door was locked. Jeremy testified that he used a knife to unlock Z.G.’s bedroom door and, when he entered the room, Z.G. was undressed and defendant was pulling up his pants. Jeremy testified that defendant said, "Don't tell." Jeremy told his dad what happened, and defendant was ejected from the house.

¶ 7 Defendant testified that Z.G. told him that she had sex with Jeremy and, when he confronted Jeremy with "trying to have sex with your own sister," Jeremy awakened the other household members and accused defendant of having sex with Z.G. Defendant testified that he was forced to leave the house.

¶ 8 Cathy Jackson Bruce testified that she is a sexual assault nurse who examined Z.G. Several swabs were collected during the examination. The parties stipulated that no semen was found on the swabs. Jackson Bruce also collected a single hair from Z.G.’s vagina and obtained scrapings from underneath Z.G.’s fingernails. The record reflects that forensic testing was conducted on neither the hair nor the fingernail scrapings.

¶ 9 The jury found defendant guilty of both counts. The circuit court merged the counts and sentenced defendant to 14 years in prison for aggravated criminal sexual assault. Defendant asserted a claim of innocence through numerous appeals and postconviction filings but failed to obtain any significant relief.

¶ 10 On June 5, 2013, pursuant to section 116-3 of the Code ( 725 ILCS 5/116-3 (West 2012) ), the Illinois Innocence Project filed on behalf of defendant a motion for forensic testing of the hair and fingernail scrapings that were collected during the postassault examination of Z.G. At the hearing on the motion, defense counsel indicated that defendant was withdrawing the request for testing of the fingernail scrapings and wished to have testing conducted solely on the hair. The circuit court denied defendant's motion for forensic testing. The appellate court reversed and remanded, finding defendant satisfied the requirements of section 116-3. People v. Grant , 2016 IL App (3d) 140211, ¶¶ 14-28, 400 Ill.Dec. 515, 48 N.E.3d 802. The appellate court found that forensic testing had the potential to be materially relevant to defendant's claim of actual innocence, remarking that, if the hair were tested and matched Jeremy, defendant's credibility would be bolstered while Jeremy's credibility would be undermined. Id. ¶ 26. The appellate court indicated that, although a nonmatch would not completely exonerate defendant, it could arguably support his actual innocence claim. Id. ¶ 27.

¶ 11 On remand, defense counsel was appointed, and a hearing was conducted on the motion for forensic testing. At the hearing, it was discovered that all the forensic evidence in defendant's case was destroyed on February 28, 2007, pursuant to PPD policy. Defense counsel moved for a new trial or for a judgment n.o.v. , asserting that, pursuant to section 116-4 of the Code, PPD was required to preserve the forensic evidence until defendant completed his sentence, including any period of mandatory supervised release. Defendant argued that he was denied due process by PPD's failure to comply with section 116-4 of the Code and that PPD "inherently acted in bad faith by not following the law."

¶ 12 The State filed a motion to dismiss defendant's motion for a new trial or for a judgment n.o.v. , arguing that the motion was untimely, as it was filed more than 30 days after the jury's verdict, and that section 116-3 of the Code did not allow for an attack on the underlying conviction, which the State argued must be advanced in a separate collateral proceeding for postconviction relief.

¶ 13 The circuit court denied both the State's motion to dismiss and defendant's motion for a new trial or for a judgment n.o.v. , finding the destruction of the hair sample rendered it impossible to comply with the appellate court's order for forensic testing. Moreover, the circuit court did not find the destruction of the evidence "was willful or there was a bad intent on the Sheriff Department [sic ]."

¶ 14 On appeal, the Office of the State Appellate Defender (OSAD) was appointed to represent defendant. At the outset, OSAD filed a motion pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), seeking to withdraw on the grounds of the appeal presenting no meritorious 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 appellate court granted the motion, and the appeal proceeded. Id.

¶ 15 In a divided opinion, the appellate court majority observed that, although section 116-4 of the Code is silent of any consequences for the government's noncompliance with the mandate to preserve forensic evidence, section 33-5 of the Criminal Code of 1961 (Criminal Code) prescribes a felony penalty for intentional noncompliance with section 116-4. Id. ¶ 17 (citing 720 ILCS 5/33-5(a), (b) (West 2006)). The majority determined, however, that the criminal consequence in section 33-5 did not, by itself, render section 116-4 mandatory. Id. ¶¶ 20, 22.

¶ 16 The majority proceeded to apply the mandatory-directory analysis, which determines whether the legislature intended for noncompliance with a particular procedural step to have the consequence of invalidating the governmental action to which the procedural requirement relates. Id. ¶ 19 (citing In re M.I. , 2013 IL 113776, ¶ 16, 370 Ill.Dec. 785, 989 N.E.2d 173, People v. Robinson , 217 Ill. 2d 43, 51-52, 298 Ill.Dec. 37, 838 N.E.2d 930 (2005), and People v. Delvillar , 235 Ill. 2d 507, 516-17, 337 Ill.Dec. 207, 922 N.E.2d 330 (2009) ). The majority identified the "particular procedural step" in this case as the requirement to preserve forensic evidence set forth in section 116-4 ( id. ¶ 23 ) and identified the governmental action to which the procedural requirement relates as the continued incarceration of convicted defendants ( id. ¶ 26 ), reasoning that the requirement to preserve evidence "is explicitly linked to that action," as section 116-4 requires that the evidence be preserved only until a defendant's sentence is complete ( id. ). The majority stated that section 116-4 sets forth a procedural requirement of preserving forensic evidence "that relates to the government's continued imprisonment of convicted defendants" and, if 116-4 is construed as mandatory,...

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