2022 IL App (1st) 210914-U
No. 1-21-0914
Order filed September 26, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 97 CR 13441
)
ANTHONY SMITH, ) Honorable
) Thomas J. Hennelly,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Presiding Justice Lavin and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: Trial court’s judgment denying motion for forensic DNA testing under section 116-
3 of the Code of Criminal Procedure (725 ILCS 5/116-3 (West 2020)) affirmed.
¶2 Defendant Anthony Smith appeals from the circuit court’s judgment denying his motion
for forensic DNA testing where eyewitness accounts indicated that objects handled by offender
were also touched by others and offender was wearing gloves. For the reasons stated below, we
affirm.
No. 1-21-0914
¶3 Pursuant to an “open” or non-negotiated guilty plea entered on April 7, 2003, defendant
was sentenced to natural life in prison on three counts of murder and 30 years of imprisonment on
three counts of attempt murder. Defendant filed a motion to withdraw his guilty plea, which was
denied by the trial court. The judgment of the trial court was affirmed on direct appeal. People v.
Smith, No. 1-04-0857 (2005) (unpublished order under Supreme Court Rule 23). On September
19, 2017, defendant filed a pro se Motion for Production of Forensic Evidence, which was denied
by the circuit court.
¶4 Defendant pled guilty to first degree murder of Charles Jones, Kevin Percy, and Ashley
Evans, and attempt first degree murder of Larry Ivy, Leroy Graham, and Laura Neal. According
to the stipulated factual basis for the plea, on November 27, 1996, Jones, Percy, Evans, Ivy,
Graham, and Neal were in a parked van when defendant approached and “pretended to sell a car
radio to the occupants of the van.” After handing the radio to the occupants, defendant shot Percy
in the head and climbed into the van. Inside, he shot Jones in the head, fired multiple shots at the
other occupants, exited the van, and continued shooting at the occupants before fleeing in another
vehicle.
¶5 Jones, Percy, and Evans died from their gunshot wounds. Ivy was shot in the head and jaw
and survived; Graham was shot in the back and survived; and Neal was not struck by any of the
shots fired. Defendant was arrested on December 2, 1996 and identified by Ivy, Graham, Neal,
Johnny Bell, and Tamika Evans.
¶6 In September 2003, following a sentencing hearing, the court declined to impose the death
penalty and sentenced defendant to natural life in prison on the three murder counts and 30 years’
imprisonment on each of the attempt murder counts.
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No. 1-21-0914
¶7 On August 19, 2017, defendant filed a pro se Motion for Production of Forensic Evidence,
alleging that he did not match the description given by “key eyewitness, Leroy Graham” of the
shooter. He also claimed that Graham had described one shooter and one gun, but the firearm
evidence showed that multiple firearms were used in the crime. He further argued that firearm
evidence and audio equipment recovered at the scene, as well as his clothing and the clothing of
others present at the scene was not tested for fingerprints or DNA.
¶8 Counsel was appointed for defendant, who filed an amended motion for DNA forensic
testing pursuant to section 116-3 of the Code on March 13, 2018. The motion alleged that based
on the accounts of the three victims and two eyewitnesses, the shooter’s DNA should be on the
“car-radio” the shooter was holding when he entered the van, handed the occupants the radio, and
shot them. Thus, the presence of DNA from someone other than defendant on the radio or in the
van would be relevant, potentially exculpatory, and “would significantly advance his claim of
innocence.”
¶9 Defendant further alleged that he would not have pled guilty if DNA testing had produced
exculpatory results because he would have had a reasonable probability of challenging the
eyewitness accounts, and that DNA testing “might be materially relevant.” Defendant
acknowledged that the section 116-3 standard of “a reasonable probability of acquittal in guilty
plea cases” is more stringent than the material relevance standard applicable in trial cases.
¶ 10 In July 2019, the State filed a motion to dismiss, arguing that forensic testing is available
when the results would significantly advance a claim of actual innocence, but only where testing
would shed new light on defendant’s conviction. The State also maintained that defendant had not
established that the victims’ clothing or swabs from the van were available for testing. As to the
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No. 1-21-0914
recovered audio equipment, it was tested unsuccessfully for usable fingerprints, but the methods
used – superglue, black powder, Ardrox, and Rhodamine – “could have” contaminated any DNA
present. Also, the presence of DNA other than defendant’s would not exculpate him because the
shooter handled the equipment with gloves and the occupants of the van also handled the
equipment prior to the shooting.
¶ 11 The court denied defendant’s motion, finding defendant’s claims to be “simply conjecture
and wishful thinking,” and that “there was no safeguard for any tampering or any preservation and
any results *** would be unreliable” and “tainted.”
¶ 12 On appeal, defendant contends that the court erred in denying his motion for DNA testing
of the audio equipment because identity was at issue, there was a prima facie showing of chain of
custody, and the requested DNA testing had the potential to produce new and noncumulative
evidence that would have raised a reasonable probability of acquittal had the results been available
prior to his plea.
¶ 13 Section 116-3 authorizes a defendant to file a motion in the circuit court where he or she
was convicted “for the performance of fingerprint, Integrated Ballistic Identification System, or
forensic 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 not previously subjected to the requested
testing and the defendant “presents a prima facie case that:
(1) identity was the issue in the trial or guilty plea which resulted in his or her conviction;
and
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No. 1-21-0914
(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 aspect.”
725 ILCS 5/116-3(a), (b) (West 2020).
¶ 14 Identity is at issue if the offender’s identity is disputed or in question. People v. Cocroft,
2020 IL App (1st) 180056, ¶ 21. A defendant may rely on presumptions and conclusory assertions
regarding chain of custody “because the evidence sought to be tested will almost surely have been
within the State’s safekeeping rather than the defendant’s.” Id.
¶ 15 If the defendant presents a prima facie case, the court must order testing if it finds that the
requested testing “employs a scientific method generally accepted within the relevant scientific
community” (id. § 116-3(c)(2)) and that:
“the result of the testing has the scientific potential to produce new, noncumulative
evidence (i) 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, or (ii) that would raise a reasonable probability that the defendant
would have been acquitted if the results of the evidence to be tested had been available
prior to the defendant’s guilty plea and the petitioner had proceeded to trial instead of
pleading guilty, even though the results may not completely exonerate the defendant.” Id.
§ 116-3(c)(1).
¶ 16 The “reasonable probability” standard in subsection (c)(1)(ii) governing a guilty plea is a
higher threshold than the “materially relevant” standard in subsection (c)(1)(i) governing a trial.
People v. Thomas, 2017 IL App (3d) 150542, ¶ 16. While test results are materially relevant if
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No. 1-21-0914
they significantly advance a claim of innocence, the results in a guilty plea case would have to
advance a claim of innocence so far that acquittal becomes a reasonable probability. Id.
¶ 17 The allegations in a section 116-3 motion are accepted as true unless contradicted by the
record. Cocroft, 2020 IL App (1st) 180056, ¶ 21. Our review of the disposition of a section 116-3
motion is de novo. Id.
¶ 18 Here, we find that the circuit court did not err in denying defendant’s forensic testing
motion. The record supports the court’s conclusion that defendant’s claim – finding DNA other
than his on the audio equipment could be potentially exonerating – was not meritorious.
Defendant’s assertion that “the shooter’s DNA could have been transferred to the audio equipment
through means other than his hands, or the shooter could have handled the audio equipment without
gloves prior to the shooting” is a double-edged sword: unless the shooter manufactured the
equipment by himself, it is unlikely that only he touched it before the shooting.
¶ 19 Moreover, defendant’s contention that “there was no indication that anyone in the van
actually handled the audio equipment besides the shooter” is contradicted by the record. Police
found the equipment inside the van, and the factual basis for the plea included the fact that the
shooter handed the equipment to the van occupants before shooting, not that he lobbed or dropped
it into the van. Also, Neal told police that the shooter was wearing gloves and that the equipment
was indeed handled by occupants of the van before the shooting. Under these circumstances,
finding DNA other than defendant’s on the equipment would be reasonably expected and not
inconsistent with defendant being the shooter.
¶ 20 Defendant alleges that “[i]f the testing produces results which exclude a defendant as being
the man who held the ‘car-radio’ or touched other surfaces inside the van immediately prior to the
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No. 1-21-0914
crime, such a result would significantly advance his claim of innocence.” However, neither result
desired by defendant – finding another person’s DNA on the equipment or not finding his DNA
thereon – would exclude defendant as being “the” man who held the equipment prior to shooting
when others clearly touched it and there is evidence that the shooter was wearing gloves. In other
words, even if DNA evidence from the audio equipment showed that defendant’s DNA was not
present and/or someone else’s DNA was present, we do not find a reasonable probability of
acquittal existed if the case had proceeded to trial. See 725 ILCS 5/116-3(c)(1)(ii) (West 2020).
The eyewitness accounts of Ivy, Graham, and Neal that defendant shot at them after handing them
a radio; of Neal that the shooter wore gloves and the van occupants passed the audio equipment
around; and of Tamika and Bell that defendant was present at the crime scene foreclose that
possibility.
¶ 21 Accordingly, the judgment of the circuit court is affirmed.
¶ 22 Affirmed.
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