People v. Stewart, 012221 ILCA1, 1-17-2998

Docket Nº:1-17-2998
Opinion Judge:CONNORS JUSTICE
Party Name:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARSHALL STEWART, Defendant-Appellant.
Judge Panel:JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
Case Date:January 22, 2021
Court:Court of Appeals of Illinois, First District

2021 IL App (1st) 172998-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

MARSHALL STEWART, Defendant-Appellant.

No. 1-17-2998

Court of Appeals of Illinois, First District, Sixth Division

January 22, 2021

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County, No. 05 CR 12281 Honorable Alfredo Maldonado, Judge, presiding.

JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.

ORDER

CONNORS JUSTICE

¶ 1 Held: We affirm the trial court's denial of defendant'spro 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 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 We affirmed defendant's convictions on direct appeal (People v. Stewart, No. 1-08-2630 (2010) (unpublished summary order under Supreme Court Rule 23(c) (2)).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.

¶ 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 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 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...

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