On October 28, 1999, the victim was shot and killed by a male wearing a gray sweatshirt. Later that day the Chicago police found a man sitting on a gray sweatshirt in a vehicle matching the description of the vehicle identified leaving the vicinity of the shooting. As the police approached the vehicle, a weapon was thrown from a window. At trial a witness testified that on the day of the shooting she spoke with the victim and then saw a man with a gray hoody whom she identified as the defendant. The witness testified that she saw the defendant’s face the first time he walked by but did not see the shooters face. Nonetheless, she identified him as the shooter in a line up and she identified a picture of the hoody.
Another witness who was sitting on her porch heard several gunshots and saw a man running with a gray sweatshirt on. She also identified the defendant in a lineup, the gray sweatshirt, and wrote down the license plate of the van he got into.
A Chicago police officer testified that they stopped a van matching the description and as they approached the van a handgun was tossed out of the rear passenger window. The defendant was found in the van sitting on a gray sweatshirt which had a pair of gloves in the pouch.
A gunshot residue exam was conducted on defendant. A forensic scientist also examined the gun and the two cartridges found at the scene of the shooting. The forensic scientist gave the opinion that the cartridges were fired from the gun which was recovered thrown from the van to the exclusion of any other firearms. The gunshot residue test came back as negative, meaning that defendant did not discharge a weapon, or that the weapon did not discharge sufficient residue to cause a positive test, or that the defendant was able to remove any residue prior to being tested. A fingerprint examiner examined the gun, a magazine, four cartridges, and two shell casing and was unable to recover any prints suitable for examination.
The defendant basically testified that he was drinking in the van listen to music and that he was sitting on a gray sweatshirt when the van was stopped by Chicago police.
Defendant went to trial and the jury found him guilty. He was sentenced to 36 years in the Illinois Department of Corrections. After various post-trial motions he filed a post-conviction petition requesting DNA testing on the sweatshirt and gloves. The motion was denied by the trial court finding that the defendant failed to show that the DNA testing would reveal evidence that was material to his assertion of actual innocence in light of the eyewitness testimony.
In order to have post-conviction DNA testing conducted, the defendant must show that the evidence was obtained in relation to his trial and was either not tested at trial, or was previously tested but can now be further tested. (See, 725 ILCS 5/116-3).
The State opposed the testing despite the fact that defendant denied the shooting and denied that the sweatshirt or gloves were his. Defendant’s defense theory was that the driver of the van was the shooter and that he, the driver threw the gun from the van.