People v. Perez
| Decision Date | 21 July 2016 |
| Docket Number | No. 3–13–0784.,3–13–0784. |
| Citation | 406 Ill.Dec. 113,59 N.E.3d 891 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jesse R. PEREZ, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier and Patrick Cassidy, both of State Appellate Defender's Office, of Chicago, for appellant.
James Glasgow, State's Attorney, of Joliet (Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
delivered the judgment of the court, with opinion.
¶ 1 Defendant, Jesse R. Perez, appeals from the trial court's order denying his motion for forensic testing. We reverse the judgment of the trial court and remand for forensic testing on the evidence identified in defendant's motion.
¶ 3 Defendant was charged by indictment with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1)
(West 2008)). The indictment alleged that defendant committed an act of sexual penetration on M.G. The matter proceeded to a jury trial on March 12, 2012.
¶ 4 M.G.—nine years old at the time of trial—testified that she was six years old when the incident in question took place. She testified that defendant was supposed to take her to his brother's house so that M.G. could play with the children of defendant's brother. Instead, M.G. testified, defendant took her to his own house. Once there, defendant instructed her to pull her pants down. M.G. testified that defendant then touched her “private” with his penis. M.G. testified that defendant put his penis inside her and “was going like forward and backward.” After defendant removed his penis, he put his tongue on her “private.” M.G. testified that defendant then put his penis in her “poop hole.”
¶ 5 M.G. testified that, afterward, she went to the bathroom. Defendant tried to wash M.G.'s underwear because there was blood on them. After washing the underwear with soap and water, defendant gave the still-wet underwear back to M.G. and instructed her to put them back on. Defendant took M.G. back to the house where M.G. lived with her mother (Judith), aunt, and grandparents. M.G. testified that before she and defendant entered the house, “he said if I tell he's going to F me up.” M.G. then took a bath, and Judith washed her clothes.
¶ 6 When defendant left the house that night, M.G. told Judith what had transpired. M.G. and her mother met with defendant's half-sister, Perla Perez, the next day at the library. M.G. told Perla what defendant had done. M.G. testified that a couple days later, she went to a hospital, where a doctor looked at her “private parts.”
¶ 7 Judith testified that she was nine months pregnant with defendant's child at the time of the incident. She testified that defendant and M.G. left her home around 5 or 6 p.m. and returned around 8:30 p.m. When M.G. and defendant returned to the house, Judith noticed that M.G. was unusually quiet. She had not been like that earlier in the day. Judith testified that M.G. went straight to sleep after taking a bath and that defendant was still in the house at that time. After defendant left the house, Judith went to the bathroom to pick up M.G.'s clothes. She noticed that there was blood on M.G.'s underwear. Judith knew the underwear to be the same that M.G. had been wearing earlier in the day. Judith put the underwear “on the side” and went back to her room. M.G.'s grandmother later discovered the underwear in the bathroom and gave them to Judith.
¶ 8 M.G. woke up around midnight that night, at which point Judith asked her what happened. Judith testified that M.G. told her that defendant had hurt her “private area.” M.G. told Judith that defendant had told her to remove her clothes. M.G. told Judith that when she was in the bed she felt pain in her private area, that she screamed and cried for defendant to stop, and that defendant spit “down there.”
¶ 9 After M.G. told Judith what defendant had done, Judith called Perla. She met with Perla the next day at the library where M.G. told Perla what defendant had done. Judith testified that M.G.'s description to Perla was the same as the description M.G. had provided the previous night. Perla then arranged for a ride to St. Joseph's hospital in Joliet. At the hospital, Judith delivered the underwear from the bathroom to a nurse. Judith also noticed blood on the underwear that M.G. was wearing. Upon instructions from doctors at St. Joseph's, Judith took M.G. to a hospital in Naperville the next day.
¶ 10 Doctor Dan Magdziarz examined M.G. in the emergency room. He observed a two-millimeter abrasion on the opening of M.G.'s vagina. Doctor George Kuburov examined M.G. three days after the alleged incident. He observed “a tear through the hymen that extended down into the lower part of [M.G.'s] genital area.” He also observed M.G.'s hymen to be swollen, red, and hemorrhagic.
¶ 11 Megan Hoholik testified that she was on duty as an emergency room nurse when M.G. came to the hospital. She conducted a sexual assault evidence collection kit on M.G. As part of the kit, Holohik collected a pair of underwear, which was described as the underwear M.G. was wearing at the time of the alleged assault. These were admitted at trial as People's exhibit No. 10. She also collected the pair of underwear that M.G. was wearing the day of the hospital visit. These were admitted at trial as People's exhibit No. 11.
¶ 12 Forensic biologist William Anselme testified that he worked on the sexual assault kit performed on M.G. The kit was admitted into evidence as People's exhibit No. 9. The kit contained a blood standard from M.G., vaginal swabs, oral swabs, anal swabs, head hair combings, fingernail scrapings, and two pairs of underwear. The kit also contained a hospital report detailing M.G.'s version of events and a police report, each of which Anselme used to determine what tests he should run.
¶ 13 Anselme ran tests on the swabs and the underwear to determine if semen or saliva was present. Those tests were negative. Anselme also used tape to collect hair and fibers from the underwear. He did not subsequently test the tape for any microscopic evidence, because that was outside his area of expertise. He agreed that the tape would still be testable. Anselme observed blood on the vaginal swab but did not determine the origin of the blood. Anselme conducted no DNA tests on any of the evidence collected.
¶ 14 The defense did not present any evidence in its case-in-chief. In closing arguments, defense counsel emphasized the lack of physical evidence directly linking defendant to the assault. Counsel argued: Counsel also argued that certain inconsistencies in M.G.'s recitations of her version of events rendered her incredible.
¶ 15 The jury found defendant guilty on both counts of predatory criminal sexual assault of a child. The trial court sentenced defendant to terms of 49 and 38 years' imprisonment, to be served consecutively. This court affirmed defendant's convictions and sentences on direct appeal. People v. Perez, 2014 WL 7044723, 2014 IL App (3d) 120837–U, 2014 WL 7044723
.
¶ 16 While defendant's direct appeal was pending, he filed a pro se motion for forensic testing pursuant to section 116–3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116–3 (West 2012)
). In the motion, defendant requested forensic DNA testing on the blood found on the two pairs of underwear in the sexual assault kit and on any hair recovered from Anselme's taping. Defendant argued that identity was the issue at his trial and that the evidence on which he sought testing had been collected by the State and remained in the State's control. He also argued: “Chain of custody is presumed because all evidence was collected by [p]olice officers and has been in State control ever since.” In an attached affidavit, defendant maintained his innocence and provided the names of registered sex offenders acquainted with Judith's sisters and having “full access” to M.G.
¶ 17 The State moved to dismiss defendant's motion, arguing that defendant had failed to show that testing had the potential to produce new evidence of his innocence. The trial court granted the State's motion.
¶ 19 On appeal, defendant argues that the trial court erred in denying his motion for forensic testing. Because defendant (1) has made a prima facie case that identity was at issue at trial, (2) has made a prima facie case that the evidence sought to be tested was subjected to a sufficient chain of custody, and (3) has shown that the testing has the potential to produce evidence relevant to his claim of actual innocence, he has complied with section 116–3 and is entitled to have forensic testing conducted on the evidence identified in his motion.
¶ 20 Section 116–3 provides that “[a] defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of * * * forensic DNA testing.” 725 ILCS 5/116–3(a)
(West 2012). To prevail on his or her motion, a defendant must present a prima facie case that:
(West 2012).
When a defendant makes such a prima facie case, the trial court shall allow testing only where, among other things, “the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence even though the results may not completely exonerate the defendant.” 725 ILCS 5/116–3(c)(1)
(West 2012). We review de novo the denial of a motion for forensic testing. People v. Stoecker, 2014 IL 115756, ¶ 21, 381 Ill.Dec. 434, 10 N.E.3d 843.
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People v. Campbell
...We review the trial court's denial of a motion for additional forensic testing de novo. People v. Perez, 2016 IL App (3d) 130784, ¶ 20, 59 N.E.3d 891.¶ 30 Here, defendant's appeal is moot because, following the trial court's denial of defendant's initial motion for forensic testing, defenda......