Opinion
1-19-0984
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAMEN TOY, Defendant-Appellant.
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. 04 CR 17327 Honorable James Michael Obbish, Judge, presiding.
JUSTICE COBBS delivered the judgment of the court. Justices Howse and Lavin concurred in the judgment.
ORDER
COBBS, JUSTICE.
¶ 1 Held: The circuit court's judgment granting the State's motion to dismiss defendant's motion for DNA testing is affirmed where defendant has failed to show that such testing would produce new, noncumulative evidence materially relevant to his claim of actual innocence.
¶ 2 Defendant Damen Toy appeals from the denial of his pro se motion for forensic testing pursuant to section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2018)). On appeal, he contends that his motion should have been granted because the requested testing was not performed at the time of trial, identity of the offender was the central issue at his trial, the evidence to be tested had been subject to a sufficiently secure chain of custody, and the testing he requested had the potential to produce noncumulative evidence materially relevant to his claim of actual innocence. For the reasons that follow, we affirm.
¶ 3 Defendant's convictions arose from the events of June 27, 2004. After his arrest, he was charged with six counts of aggravated criminal sexual assault, two counts of attempted armed robbery, and one count of unlawful use of a weapon by a felon. Following a 2007 jury trial, at which defendant represented himself, he was convicted of two counts of aggravated criminal sexual assault with a firearm and two counts of attempted armed robbery. On direct appeal, we affirmed defendant's convictions. People v. Toy, 407 Ill.App.3d 272 (2011). Although we set forth the underlying facts of the case in our order on direct appeal, we repeat them here due to the nature of defendant's current claim.
¶ 4 At trial, B.H. testified that around 2:30 or 3 a.m. on the day in question, she was sitting on the porch of her family home with her friend, Paul Watkins-Lash. A man, whom she identified in court as defendant, walked back and forth in front of her house several times. She watched defendant as he did this, as he made B.H. "uneasy." Eventually, defendant approached and asked for a cigarette. B.H. testified that he was tall, had a medium complexion, and was wearing dark clothes and a hat. When asked to describe him further, B.H. stated that defendant was wearing a Cubs baseball hat, a dark "sports" windbreaker, "breakaway" pants with snaps down the side and light colored jeans underneath, and gym shoes. She also stated he had a "really flat, big nose." B.H. testified that although it was nighttime," [i]t was actually pretty bright," as there were three street lights in the vicinity.
¶ 5 Watkins-Lash gave defendant a cigarette and a lighter. Defendant lit the cigarette and walked away. A short time later, defendant returned with a gun. He walked up the porch steps, crouched down in front of Watkins-Lash, demanded money, and threatened to kill Watkins-Lash. B.H. and Watkins-Lash tried to reason with defendant. He searched their pockets, but found no money.
¶ 6 Defendant told Watkins-Lash to stay seated or he would shoot him. He put the gun in his waistband, grabbed B.H.'s wrist, and took her into the gangway. There, he made her face the wall with her arms up and pulled down her pants. B.H. felt something touch the back of her head. She assumed it was a gun because defendant was threatening to kill her. Defendant's penis entered her vagina and his penis also touched her anus, but did not enter it.
¶ 7 Eventually, Watkins-Lash left the porch and yelled at defendant to "get off" B.H. Defendant started running away. B.H. tried to tackle him, but he "smacked" her in the face, she fell, and he fled across the street. B.H. and Watkins-Lash went inside the house, woke her parents, and called the police. B.H. was taken to the hospital in an ambulance. There, she spoke with police and a sexual assault kit was performed.
¶ 8 Later that morning, the police came to B.H.'s house and showed her a photo array of six men. B.H. identified defendant as the "man who raped me." Thereafter, B.H. went to the precinct and identified defendant in a lineup. In court, B.H. identified several exhibits, including People's Exhibits Nos. 8, 9, and 10, which she stated were, respectively, the jacket, hat, and pants defendant had been wearing when he assaulted her.
¶ 9 On cross-examination, B.H. testified that the cigarette she and Watkins-Lash gave to defendant was a Marlboro Red.
¶ 10 Paul Watkins-Lash testified that around 3 a.m., he was sitting with B.H. on her porch when he noticed a tall African-American man walk by the house a couple of times. After a few passes, the man stopped and asked for a cigarette. Watkins-Lash had just purchased a pack of Marlboro Mediums and gave one to the man, who lit the cigarette and walked away. A few minutes later, the man returned, stepped up onto the porch and demanded that Watkins-Lash and B.H. give him money. The man "was holding a gun cupped in his jacket, like the barrel of the gun. He had the gun out." When Watkins-Lash was asked whether he had any doubt that what he saw was a gun, he answered, "That was a gun." Watkins-Lash said the gun was in front of his face, but pointed down toward the ground. The man searched his and B.H.'s pockets but found no money.
¶ 11 The man told Watkins-Lash to stay on the porch and not move. He then took B.H. by the arm and walked her down the porch and around to the side of the house. Watkins-Lash could hear them arguing. He rang the doorbell of B.H. 's house. When no one responded, he left the porch and saw the man sexually assaulting B.H. Watkins-Lash yelled at the man, who started running. The man hit B.H., who tackled him, and they both fell "right outside the gangway area." The man got up and fled across the street. That afternoon, Watkins-Lash went to the police station and viewed a lineup. He did not identify anyone.
¶ 12 On cross-examination, Watkins-Lash testified that he and B.H. "were smoking Reds at the time. But that night we had Mediums." He also stated that the police did not show him a photo array.
¶ 13 Christopher Palacios, a neighbor of B.H., testified that around 3 a.m. on the day in question, he heard a "loud scuffle" outside. He looked out his second-floor window and saw a white person and an African-American man arguing and scuffling. The African-American man, who was wearing a dark blue or black hoodie jacket and had something tucked under his arm, then ran away in a northwest direction. On cross-examination, Palacios stated that defendant was the man he saw. In response to questioning by the trial court, he stated that he never identified defendant in a photo array or a lineup. On re-direct, Palacios indicated he never viewed a photo array or a lineup.
¶ 14 B.H. 's father, Bruce Houser, testified that around 3 a.m., B.H. and Watkins-Lash woke him and told him what had happened. Houser went outside with a flashlight to look for the perpetrator. He found a key ring with a key about two feet from the entry of the gangway. Houser gave the key ring and key to the police when they arrived at the scene.
¶ 15 Chicago police officer Arcenio Cruz testified that he and his partner, Rene Magno, responded to the scene and spoke with B.H. and Watkins-Lash. B.H. described her attacker as a black man with a dark complexion, about six feet tall and 190 to 200 pounds, with a "big flat nose." She said he was wearing a dark Cubs hat, a black windbreaker, light blue jeans, snap-off basketball pants, and "black Jordan's." Cruz testified that the description sounded familiar to him because of" [P]ast contact with an individual." In court, he identified defendant as that individual. Cruz stated that he had made a "contact card" relating to defendant two months earlier.
¶ 16 Dr. Andrew Costello testified that he examined B.H. in the emergency room and that he and a nurse administered a sexual assault evidence collection kit. He stated that the abnormal findings were that B.H. had a small amount of white colored discharge and two small black hairs inside her vaginal vault. The hairs and a sample of the discharge were collected and placed in the kit, which was then sealed.
¶ 17 Chicago police detective Stephen Stratton testified that at the hospital, he spoke with B.H., Watkins-Lash, and Officers Cruz and Magno. As a result of his conversation with the officers, Stratton went to the police station and retrieved a contact card and accompanying photo of defendant. He then obtained photos of five other men "of similar description" and compiled a photo array. Around 8 a.m., he showed the array to B.H., who identified defendant as the man who assaulted her. Around noon, Stratton and two other detectives, Ward and Gillespie, went to the scene of the crime and traced the route they thought "the offender" may have taken. Around 3:30 p.m., Stratton was present when B.H. viewed a lineup and identified defendant as the person who sexually assaulted her. Watkins-Lash also viewed the lineup, but did not positively identify anyone. On July 16, 2004, Stratton was present when an evidence technician obtained a buccal swab from defendant.
¶ 18 Chicago police officer Paul J. Presnell, an evidence technician, testified that he arrived at the scene around 4:30 a.m. During his search for evidence, he recovered a half-burned Marlboro cigarette with a brown filter across the alley from B.H.'s house.
¶ 19 Chicago police detective Thomas Ward testified that sometime after 10:45 a.m. he went to defendant's address and placed him under arrest. Ward and two other detectives, Stratton and Gillespie, then searched the area between B.H.'s house and defendant's address. They recovered a navy blue Perry Ellis jacket from a Dumpster behind a grocery store and a Cubs baseball cap and a pair of Bulls "tear-away" pants from a residential garbage can. On July 6, 2004, Ward took the key recovered at the scene of the crime to defendant's residence. He tried the key on the vestibule door, the front door, and the rear door, "and it all worked."
¶ 20 Karri Broaddus, a forensic scientist with the Illinois State Police and expert in the field of biology and DNA analysis, testified that she examined evidence from the sexual assault kit conducted on B.H., the recovered cigarette butt, and the recovered Cubs hat. Her testing of the evidence in the sexual assault kit revealed no semen, and she forwarded a cutting of the cigarette butt and swabs of the Cubs hat to a private laboratory.
¶ 21 Michelle Eckardt, a DNA analyst with the Bode Technology Group and an expert in forensic DNA typing, testified that she received a cutting from a cigarette butt, two swabs from a baseball cap, and a buccal standard from defendant. As a result of testing, she obtained a full male profile from the cigarette butt, a full male profile from the baseball cap, and a complete reference profile from defendant's buccal standard. Eckardt explained that defendant was excluded as a potential contributor for the DNA found on the cigarette butt. She further testified that the DNA profile obtained from the baseball cap matched the DNA profile obtained from defendant's reference sample.
¶ 22 The parties stipulated that if called as a witness, Rae Inafuku, a forensic scientist with the Illinois State Police and expert in the field of trace evidence identification and comparison, would have testified that she received B.H.'s criminal sexual assault kit, which contained a blood standard, vaginal swabs, head hair combings, pubic hair combings, and trace evidence recovered from B.H.'s vagina. She did not examine the blood standard or vaginal swabs. The head hair combings contained one Caucasian head hair suitable for microscopic comparison purposes, one body type hair not suitable for microscopic comparison purposes, additional hairs not suitable for comparison purposes, and fibers and miscellaneous debris. The pubic hair combings contained fibers and miscellaneous debris. The trace evidence recovered from B.H.'s vagina consisted of hair fragments not suitable for comparison purposes, fibers, and miscellaneous debris. Inafuku examined the recovered hat and found animal hairs not suitable for comparison purposes, fibers, and miscellaneous debris. The examination of the recovered pants revealed hairs not suitable for comparison purposes, fibers, and miscellaneous debris.
¶ 23 The parties stipulated that if called as a witness, Christi Fischer, a forensic scientist with the Illinois State Police and an expert in latent print impression, detection, preservation, and comparison, would have testified that she examined the recovered key and keychain and found no latent print impressions suitable for comparison.
¶ 24 Defendant testified that the recovered clothing items and key belonged to him, but that they were stolen from his gym locker at a park two days prior to the offense.
¶ 25 Ernest Randall Jones testified on behalf of the defense that he had been roommates with defendant "off and on" for the previous six years and never knew him to have a knife, handgun, or any weapon. The police searched their apartment, but did not recover a handgun or Air Jordan shoes.
¶ 26 In rebuttal, the State presented a certified statement of conviction reflecting that defendant had been convicted of forgery in 2000.
¶ 27 The jury found defendant guilty of two counts of aggravated criminal sexual assault and two counts of attempted armed robbery. The jury also found that defendant was armed with a firearm during the commission of the aggravated criminal sexual assaults. The trial court sentenced defendant to consecutive prison terms of 45 and 30 years for the two counts of aggravated criminal sexual assault. Each of these sentences included a 15-year sentencing enhancement due to the jury's finding that defendant was armed with a firearm. The court also imposed concurrent terms of 10 years' imprisonment for each count of attempted armed robbery, and a consecutive term of 6 months' imprisonment for contempt of court, for an aggregate sentence of 75 years and 6 months' imprisonment. On direct appeal, this court affirmed. People v. Toy, 407 Ill.App.3d 272 (2011).
¶ 28 In November 2011, defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010), which the circuit court summarily dismissed. On appeal, this court found that defendant's sentences for aggravated criminal sexual assault violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), vacated the sentences, and remanded for resentencing on those two counts. People v. Toy, 2013 IL App (1st) 120580.
¶ 29 In March 2013, while the above appeal was pending, defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2- 1401 (West 2012)), duplicating the proportionate penalties argument raised earlier. In November 2013, the trial court appointed counsel to represent defendant for resentencing.
¶ 30 In September 2013 and February 2014, defendant filed additional pro se petitions for relief under section 2-1401. The circuit court found no merit in either petition and dismissed each petition sua sponte. This court affirmed both judgments on appeal. People v. Toy, 2016 IL App (1st) 141374-U; People v. Toy, 2016 IL App (1st) 141375-U.
¶ 31 In July 2014, the trial court resentenced defendant to consecutive terms of 30 years' imprisonment on the two aggravated criminal sexual assault convictions. On appeal, this court affirmed. People v. Toy, 2016 IL App (1st) 142253-U.
¶ 32 In June 2016, defendant attempted to file a successive pro se postconviction petition, alleging that his initial postconviction counsel failed to comply with Supreme Court Rule 651(c) (eff. Apr. 26, 2012). The circuit court denied leave to file. Later, the circuit court also denied defendant's motion for leave to file a "supplemental/amended" successive petition and his motion for reconsideration. On appeal, we granted counsel's motion to withdraw and affirmed. People v. Toy, No. 1-17-0106 (2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 33 On July 18, 2018, defendant filed the pro se pleading at issue in the instant appeal, titled "Motion for Fingerprint, Integrated Ballistic Identification System or Forensic Testing Not Available at Trial or Guilty Plea Regarding Actual Innocence." In the motion, defendant sought testing of purportedly previously untested evidence pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2018)). Specifically, defendant asked for testing of four items included in "inventory # 10363661": Exhibit 1A, a blood standard; Exhibit 1C, head hair combings; Exhibit 1D, pubic hair combings; and Exhibit 1E, "envelope said to contain hairs found in vagina." Defendant also asked for testing of "inventory # 10363894," which consisted of Exhibit 8, a "sealed bag said to contain 'navy blue Perry Ellis' jacket."
¶ 34 Defendant alleged in his motion that these items had not been examined by the Illinois State Police Division of Forensic Services and had been in the custody of law enforcement officials, thus establishing a chain of custody. He further asserted that the items were "not subjected to testing which is not being requested at the time of defendant's trial which is in accordance with section 116-3(a)(1) and this testing has the scientific potential to produce new, noncumulative evidence." Defendant attached to his motion a copy of a February 14, 2005, memorandum prepared by a forensic scientist with the Illinois State Police, listing the items identified in defendant's motion as "Not examined." The memorandum indicated that Exhibit 1 had been transferred to the Microscopy Section for further analysis and would be the subject of a separate report. It further indicated Exhibit 8 would be returned to the Chicago Police Department Evidence and Recovered Property Section.
¶ 35 On January 15, 2019, the State filed a motion to dismiss defendant's motion for forensic testing. The State argued that given the facts of defendant's case, no possible outcome of further DNA testing could produce evidence that was new, non-cumulative, or material to a claim of actual innocence, as required by section 116-3. The State attached seven documents to its motion, five of which are relevant here. First, the State attached a copy of the February 14, 2005, memorandum that defendant had attached to his motion.
¶ 36 Second, the State attached a copy of a March 2, 2005, supplemental report prepared by a forensic analyst with the Illinois State Police. The analyst reported that Exhibit 1A, the blood standard, and 1B, the vaginal swabs, were "not examined by this analyst." In Exhibit 1C, the head hair combings, the analyst observed one Caucasian head hair suitable for microscopic comparison purposes, one body type hair not suitable for microscopic comparison purposes, additional hairs not suitable for comparison purposes, fibers, and miscellaneous debris. In Exhibit 1D, the pubic hair combings, the analyst observed fibers and miscellaneous debris. In Exhibit 1E, the trace evidence recovered from the victim's vagina, the analyst observed hair fragments not suitable for comparison purposes, fibers, and miscellaneous debris. The analyst indicated that Exhibit 1 would be forwarded to the Chicago Police Evidence and Recovered Property Section.
¶ 37 Third, the State attached a copy of a March 31, 2005, forensic case report from The Bode Technology Group, Inc. The report indicated that the recovered hat contained defendant's DNA, and that defendant could be excluded as a contributor to DNA recovered from the recovered cigarette.
¶ 38 Fourth, the State attached a copy of an August 3, 2005, laboratory report prepared by a forensic scientist with the Illinois State Police. The report indicated that: the Forensic Science Center had received swabs from the recovered hat; The Bode Technology Group, Inc., had identified a DNA profile from the exhibit; the DNA profile had been searched against "the DNA Index"; and the DNA profile would continue to be compared to other profiles in the index. The report stated that the DNA evidence would be returned to the Chicago Police Department Evidence and Recovered Property Section.
¶ 39 Finally, fifth, the State attached a copy of a November 9, 2006, laboratory report prepared by a forensic scientist with the Illinois State Police. The report indicated that the Forensic Science Center had received Exhibit 5, a piece of metal pipe, and Exhibit 6, a key chain and key. The report stated that examination of the exhibits revealed no latent impressions suitable for comparison, and that they evidence would be returned to the Forensic Science Center at Chicago.
¶ 40 On April 11, 2019, following a hearing, the circuit court granted the State's motion to dismiss. In doing so, the court first commented to defendant that the items he was seeking to have tested were available for testing prior to trial, that he had chosen to represent himself at trial, and that he had not sought testing at that time. The court recounted that the police found defendant's clothing, which he later claimed had been stolen from him, in garbage cans in alleys located between the location where B.H. was assaulted and where defendant lived. Among that clothing was a hat in which defendant's DNA was found. Also, B.H.'s father found a key near the scene, which opened the door of defendant's residence, and B.H. identified defendant in a photo array and a lineup. In these circumstances, the circuit court concluded that "even if some other profiles were obtained by any of this [requested] testing, none of it would be material to your claim of actual innocence and would not change the result of your trial." Because additional testing would not tend to significantly advance a claim of actual innocence, the court granted the State's motion to dismiss.
¶ 41 On appeal, defendant contends that his motion for DNA testing under section 116-3 should have been granted because he met all of the statute's criteria for testing.
¶ 42 Section 116-3 sets forth the prerequisites that 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 or guilty plea 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 2018).
¶ 43 Under subsection 116-3(b), the defendant must present a prima facie case that (1) identity was the issue in the trial or guilty plea that resulted in his conviction, and (2) "the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect." 725 ILCS 5/116-3(b) (West 2018). Subsection 116-3(c) provides that the trial court shall allow the requested testing upon a determination that: (1) "the result of the testing has the scientific potential to produce new, noncumulative evidence" that is "materially relevant to the defendant's assertion of actual innocence when the defendant's conviction was the result of a trial, even though the results may not completely exonerate the defendant"; and (2) the requested testing "employs a scientific method generally accepted within the relevant scientific community." 725 ILCS 5/116-3(c) (West 2016). We review de novo the court's denial of a motion for forensic testing of evidence. People v. Stoecker, 2014 IL 115756, ¶ 21.
¶ 44 We initially note that the State concedes defendant has met most of the requirements for testing pursuant to section 116-3, as identity was an issue at trial and the evidence sought to be tested has been subjected to a sufficient chain of custody. Moreover, the State does not contest that defendant's request was for DNA testing, or that such testing had not been performed on the particular items identified in defendant's motion. As such, the issue on appeal is whether the testing that defendant requested had the potential to produce noncumulative evidence materially relevant to his claim of actual innocence.
¶ 45 Defendant argues that the DNA testing he requested has the potential to be "materially relevant" to his claim of actual innocence, as it tends to "significantly advance" that claim. He notes that Watkins-Lash was unable to identify him as the perpetrator and questions B.H.'s identification of him, as he was a stranger to B.H., the attack "occurred in the dark," and "[e]yewitness testimony should, as a general proposition, be viewed with caution." Defendant argues that aside from B.H.'s identification of him, the only other evidence tying him to the crimes was his clothing and keys, which were discovered near the scene. Noting that his defense was that these items were stolen from a gym locker two days prior, he asserts it was the jury's role to decide whether his defense was credible.
¶ 46 Defendant further argues that DNA on the recovered Marlboro cigarette butt did not match him, and that no DNA or other physical evidence was found on B.H.'s person linking him to the assault. Defendant concludes that given these circumstances, the results of DNA testing on the requested items could significantly advance his claim of actual innocence, even if such results could not exonerate him completely. Specifically, he posits that if DNA results were to indicate that his DNA was not present, but that the DNA of another man was, such results could significantly change a jury's view of B.H.'s identification of a stranger, as well as the credibility of his own testimony that his clothing and keys had been stolen from him.
¶ 47 We find it apparent from the record that dismissal of defendant's motion was appropriate because he cannot satisfy subsection 116-3(c). That is, given the voluminous evidence of defendant's guilt, DNA testing-of the Caucasian head hair observed in B.H.'s head hair combings, the fibers and debris observed in B.H.'s pubic hair combings, the hair fragments recovered from B.H.'s vagina, and the jacket-could not prove "materially relevant" or significantly advance his claim of innocence.
¶ 48 Our supreme court has instructed that "evidence which is 'materially relevant' to a defendant's claim of actual innocence is simply evidence which tends to significantly advance that claim." People v. Savory, 197 Ill.2d 203, 213 (2001). 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. "DNA evidence that plays a minor role and is a collateral issue is not materially relevant because it does not significantly advance a claim of actual innocence." People v. Gecht, 386 Ill.App.3d 578, 582 (2008) (citing Savory, 197 Ill.2d at 213).
¶ 49 Here, DNA testing of the requested evidence would not diminish the substantial evidence against defendant. Foremost among this evidence was B.H.'s consistent, positive, and detailed identification of defendant as her attacker. B.H. had ample opportunity to observe defendant and paid attention to him. She testified at trial that she watched defendant as he walked back and forth in front of her house several times, as he made her feel uneasy. Defendant then approached her and Watkins-Lash on the porch, asked for a cigarette, left the area briefly, and returned to attempt to rob B.H. and Watkins-Lash at gunpoint and sexually assault B.H. in the gangway. B.H. gave a detailed description of her attacker. She testified that he was tall, had a medium complexion, had a "really flat, big nose," and was wearing a Cubs baseball hat, a dark "sports" windbreaker, "breakaway" pants with snaps down the side and light colored jeans underneath, and gym shoes.
¶ 50 Moreover, contrary to defendant's assertion on appeal that the attack "occurred in the dark," B.H. testified that although it was nighttime," [i]t was actually pretty bright," as there were three street lights in the vicinity. Shortly after the assault, B.H. identified defendant in a photo array and a lineup, and she also identified him at trial. See People v. Faber, 2012 IL App (1st) 093273, ¶ 58 (factors to consider when determining the reliability of an identification include (1) the opportunity of witnesses to view the offender; (2) their degree of attention; (3) the accuracy of their description of the offender; (4) their level of certainty shown at the time of identification; and (5) the length of time between the crime and the identification).
¶ 51 Other evidence supported B.H.'s identification of defendant. After B.H. identified him in the photo array, the police searched the area between her house and his apartment and found clothing in a Dumpster and a garbage can that matched the description given by B.H.: a Cubs baseball hat, a pair of "tear-away" pants, and a navy blue jacket. B.H.'s father found a key ring with a key at the entry of the gangway where B.H. was assaulted. Defendant's DNA was recovered from the hat, and the police determined that the recovered key opened various doors at defendant's residence. Defendant admitted that the recovered clothing and key were his. Although he claimed that the clothing and key were stolen from his gym locker two days prior, the jury apparently rejected that version of events. Such rejection was reasonable as, in our view, it "would truly be an incredible sequence of coincidences" that a man matching defendant's physical description would steal his hat, pants, jacket, and house key from a gym locker, don all three of the clothing items to attempt to rob two people and sexually assault one of them, drop the house key at the scene of the crime, and then discard the clothing in a Dumpster and a garbage can located along the route between the crime scene and defendant's apartment. See People v. White, 2011 IL 109689, ¶ 136 (rejecting claim of misidentification based on coincidences).
¶ 52 Further, any DNA evidence discovered as a result of the requested testing would not be materially relevant to a theory of actual innocence. While testing of the Caucasian hair that was suitable for comparison might lead to identification of a Caucasian person, neither B.H. nor Watkins-Lash described the perpetrator as Caucasian, and B.H.'s neighbor testified that the man who fled from the scene was African-American. As such, DNA testing of the Caucasian hair would not point to a different suspect. The other hairs and hair fragments contained in the exhibits were characterized by the forensic analyst in the supplemental report as unsuitable for comparison purposes. Even if, arguendo, these hairs and hair fragments were suitable for DNA testing, or even if examination of the jacket revealed material suitable for DNA testing, we agree with the State that such testing would not have had any significance in determining the outcome of the trial. That is, given the voluminous evidence of defendant's guilt, DNA testing-of the Caucasian head hair, the one "body type" hair observed in B.H.'s head hair combings, the hair fragments recovered from B.H.'s vagina, or the jacket-could not prove "materially relevant" or significantly advance his claim of innocence. See People v. English, 2013 IL App (4th) 120044, ¶¶ 23-24 (finding that forensic testing under section 116-3 would not significantly advance a claim of actual innocence where, even if testing of the gun at issue revealed fingerprints of another party and not the defendant, it would not undermine any of the State's evidence and would have little to no impact on the defendant's case).
¶ 53 In reaching this conclusion, we find our supreme court's decision in Savory, 197 Ill.2d at 203, to be informative. In Savory, the defendant was convicted of the first degree murders of a brother and sister. Id. at 205. The defendant requested DNA testing on a bloodstain from a pair of pants recovered from the defendant's home. Id. at 207, 208-09. At his 1981 trial, the bloodstain was shown to be the same blood type as one of the victims. Id. at 207. Our supreme court concluded that DNA testing of the bloodstain was not materially relevant to the defendant's claim of actual innocence because "the testimony regarding the possible source of the bloodstain on the pair of trousers was only a minor part of the State's evidence in this case." Id. at 214-15. The majority of the State's case against the defendant was based on his knowledge of the crime scene that only the perpetrator could have known and his statements to others about the murders. Id. at 215. "Under these circumstances, a test result favorable to defendant would not significantly advance his claim of actual innocence, but would only exclude one relatively minor item from the evidence of guilt marshaled against him by the State." Id. at 215.
¶ 54 Here, as in Savory, the majority of the State's case was based on evidence that would not be made less compelling in the face of new DNA evidence. New DNA evidence would not exclude the strongest evidence of defendant's guilt, namely, B.H.'s positive and consistent identification of him as the offender and the discovery of defendant's house key and clothing, as described by B.H. as items worn by her attacker, along the route between her home and his. The best any new DNA testing could produce would be relatively minor evidence that another person had contact with B.H. at an unspecified time or that defendant's jacket, which was found in a Dumpster behind a grocery store, came into contact with another person's DNA at some point. As such, any results of DNA testing on the various hairs, hair fragments, and jacket would not be materially relevant to defendant's claim of actual innocence.
¶ 55 In light of the substantial evidence against defendant at trial and his failure to show that further forensic testing would produce new, noncumulative evidence materially relevant to his claim of actual innocence, we affirm the circuit court's judgment granting the State's motion to dismiss defendant's motion for DNA testing pursuant to section 116-3.
¶ 56 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 57 Affirmed.