People v. Gecht ( 2008 )

FIFTH DIVISION
November 26, 2008
No. 1-06-3487
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ROBIN GECHT, )
) Honorable
Defendant-Appellant. ) Eddie A. Stephens,
) Judge Presiding.
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Following a jury trial, defendant was convicted of attempted murder, aggravated
kidnapping, deviate sexual assault, and rape. He was sentenced to concurrent terms of
imprisonment for the crimes of aggravated kidnapping (30 years), deviate sexual assault (60
years) and rape (60 years), and to a consecutive term for the crime of attempted murder (60
years), for a total of 120 years in the Illinois state penitentiary. On direct appeal we noted that
the evidence of defendant’s guilt was “overwhelming” and affirmed his convictions and
sentences. People v. Gecht, No. 1-84-0319 (1989) (unpublished order under Supreme Court
Rule 23).
Defendant filed a post-conviction petition in 1991 asking for DNA testing, which was
denied in 1997. Defendant appealed. We affirmed the circuit court’s denial. People v. Gecht,
No. 1-97-2006 (1999) (unpublished order under Supreme Court Rule 23). We noted the victim
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was a prostitute engaged in her trade at the time of the attack and the victim testified that her
attacker did not ejaculate. Accordingly, we concluded that even if defendant’s DNA did not
match any DNA from the victim’s rape kit, that fact would be of no consequence. We concluded
DNA testing would have “no bearing on defendant’s guilt or innocence.” Gecht, slip op. at 1-2.
On August 13, 2002, defendant filed the successive pro se post-conviction petition and
motion for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963.
725 ILCS 5/116-3 (West 2002). That petition and motion were denied. This appeal follows.
BACKGROUND
Around 1 or 2 a.m. on October 5,1982, B.W., a 19-year-old African-American prostitute,
asked defendant if he wanted a date and entered defendant’s red Dodge van. Defendant pointed a
gun and butcher knife at the victim and ordered her to disrobe, which she did. Defendant
handcuffed her ankles and wrists, tied a cord around her breasts, and forced her to commit a
deviate sexual act by inserting his penis in her mouth. He did not ejaculate. Defendant forced
the victim to drink soda and take some pills. He put his penis into her vagina. B.W. testified
defendant did not ejaculate at any point. Eventually, B.W. lost consciousness. A few hours later
the victim was discovered lying naked in an alley. Her left breast was completely removed and
her right breast was severely cut. She was bleeding and in shock.
Expert testimony at trial demonstrated that the victim’s disfigurement had been caused by
a crude cutting with a knife. The victim described her assailant and the van to police, who
arrested defendant. While in the hospital, B.W. positively identified defendant in a photographic
show-up and a police lineup.
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H.C., also a young African-American prostitute, testified to a similar assault on June 12,
1982. While working as a prostitute H.C. was picked up by defendant in his red van. After
entering the van defendant told her to remove her clothing, handcuffed her wrists and ankles, and
forced her to commit a deviate sexual act by forcing his penis in her mouth. He told her if she
moved he would cut her with the knife he had in his hand. Defendant ordered H.C. to tightly
wrap pantyhose around her breasts and ordered her to stab herself in the left breast with a knife
while he held a gun. He cut the hole larger and committed a second act of deviate sexual assault,
by placing his penis in the hole in H.C.’s breast. Defendant then told her to get out of the van,
threw her clothes out of the van and drove away. H.C. identified defendant in a police lineup.
The testimony of H.C. was admitted for the purpose of showing modus operandi.
Defendant also made incriminating statements to the police following waiver of his
Miranda rights. He told the police that he had not killed anyone and said that he had “only cut a
black girl” and that he knew she was still alive because she identified him in a hospital lineup.
During further interrogation, after waiving his Miranda rights, defendant admitted to attacking
H.C. These statements regarding B.W. and H.C. were admitted against defendant at trial.
Both defendant and two members of his family testified that defendant was home with
family members at the times of the attacks. However, the alibi testimony of defendant’s wife at
trial was impeached. In a sworn affidavit filed by defendant’s wife in her divorce case, she
indicated that she and defendant had been living separate and apart on the night of the attack
upon B.W. Defendant was convicted and sentenced as previously noted. Those convictions and
sentences were affirmed on direct appeal. People v. Gecht, No. 1-84-0319 (1989) (unpublished
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order under Supreme Court Rule 23). Defendant’s first post-conviction petition seeking DNA
testing was denied. We affirmed the circuit court’s denial. People v. Gecht, No. 1-97-2006
(1999) (unpublished order under Supreme Court Rule 23). On August 13, 2002, defendant filed
the successive pro se post-conviction petition and motion for DNA testing pursuant to section
116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2002)). That
petition and motion were denied. This appeal follows.
ANALYSIS
Defendant contends the trial court erred in dismissing his motion for DNA testing. We
note that the ruling denying DNA testing pursuant to section 116-3 is reviewed de novo. People
v. Schutz, 344 Ill. App. 3d 87, 90 (2003). The 2002 version of section 116-3 (725 ILCS 5/116-3
(West 2002)) provides as follows:
“(a) A defendant may make a motion before the trial court
that entered judgment of conviction in his or her case for the
performance of fingerprint or forensic DNA testing on evidence
that was secured in relation to the trial which resulted in his or her
conviction, but which was not subject to the testing which is now
requested because the technology for the testing was not available
at the time of trial. Reasonable notice of the motion shall be
served upon the State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial which resulted
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in his or her 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 aspect.
(c) The trial court shall allow the testing under reasonable
conditions designed to protect the State’s interests in the integrity
of the evidence and the testing process upon a determination that:
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence
materially relevant to the defendant’s assertion of actual
innocence;
(2) the testing requested employs a scientific
method
generally accepted within the relevant scientific
community.” 725 ILCS 5/116-3 (West 2002).
Defendant argues that he demonstrated a “prima facie case for forensic testing because
identity was an issue at trial, and because, as of September 2005, several pieces of evidence
from trial remain impounded at the clerk’s office.” A defendant requesting DNA testing
pursuant to section 116-3 is required to demonstrate that the evidence to be tested was not
subject to the requested testing at the time of trial because the technology was not available.
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725 ILCS 5/116-3(a) (West 2002); People v. Franks, 323 Ill. App. 3d 660, 662 (2001). Upon
satisfying that requirement, the defendant is then required to provide a prima facie case for
DNA testing by showing that identity was the central issue at trial (725 ILCS 5/116-3(b)(1)
(West 2002)), and that the evidence to be tested has been subject to a secure chain of custody
(725 ILCS 116-3(b)(2) (West 2002)). People v. Shum, 207 Ill. 2d 47, 66 (2003).
After the above requirements are satisfied, defendant is entitled to DNA testing if the
result of the testing has the scientific potential to produce new, noncumulative evidence that is
materially relevant to the assertion of actual innocence. 725 ILCS 5/116-3(c)(1) (West 2002).
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. Savory, 197 Ill. 2d 203,
213 (2001).
Defendant established a prima facie case that identity was at issue in his trial (725 ILCS
5/116-3(b)(1) (West 2002)) and that the evidence which he seeks to test was subject to a secure
chain of custody (725 ILCS 5/116-3(b)(2) (West 2002)). Defendant further demonstrated that
the evidence to be tested was not subject to the requested testing at the time of trial because the
technology was not available. 725 ILCS 5/116-3(a) (West 2002).
The issue in the instant case is whether the evidence defendant seeks to test is materially
relevant to his claim of innocence. “[E]vidence which is ‘materially relevant’ to a defendant’s
claim of actual innocence is simply evidence which tends to significantly advance that claim.”
Savory, 197 Ill. 2d at 213. Whether DNA testing will provide materially relevant evidence of
actual innocence “requires a consideration of the evidence introduced at trial, as well as an
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assessment of the evidence defendant is seeking to test.” Savory, 197 Ill. 2d at 214.
In defendant’s motion he requests testing of the rape kit, knives, carpeting, and clothing
secured as evidence in relation to his trial. In support of the testing, he argues that if biological
material were found and the resulting DNA profile does not match defendant, that negative
result would support defendant’s claim that he did not assault the victim, B.W.
In resolving this issue, we consider the evidence introduced at trial and assess the
evidence defendant is seeking to test. A review of the record reflects that the convictions were
based on overwhelming evidence that did not include biological evidence. Even if the rape kit,
carpeting, clothing, and knives did contain biological evidence, DNA testing would not
significantly advance any claim of actual innocence. The knives in the van were implicated in
several other attacks. The carpeting was also mentioned as being present when other attacks
occurred.
Moreover, as noted in our Rule 23 order rejecting the previous DNA request, the victim,
B.W. was working as a prostitute when she was attacked. She had intercourse with four other
men before encountering defendant. Contact with these other men could explain any cells on
the victim’s clothing and absence of defendant’s DNA. We further note that defendant did not
ejaculate when he raped her. At trial both parties agreed that the rape kit contained no semen.
“ ‘Several reasons are offered to explain how a suspect can still be guilty when his or her DNA
does not match DNA found on a victim or at a crime scene, including the use of condoms, the
existence of multiple assailants, and the failure to ejaculate in sexual assault cases.’ ” People v.
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Henderson, 343 Ill. App. 3d 1108, 1121 (2003), quoting K. Christian, “And The DNA Shall Set
You Free: Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence”; 62
Ohio St. L.J. 1195, 1221-22 (2001).
Defendant’s reliance on People v. Johnson, 205 Ill. 2d 381 (2002), and People v.
Henderson, 343 Ill. App. 3d 1108 (2003), is not persuasive. In Johnson, the victim tentatively
identified the man who raped her one month after the attack. The Illinois Supreme Court
granted the DNA request, noting the identification was tentative, the defendant did not confess,
and although a vaginal swab was provided by the victim, it was never tested. Johnson, 205 Ill.
2d at 386, 391, 396-97. Unlike Johnson, in the instant case, two victims positively identified
defendant and his van, defendant admitted to attacking both victims, and the rape kit contained
no semen.
In Henderson, the defendant and another man were convicted of rape and kidnapping.
The defendant made no admissions, his alibi was supported by his wife and son, and the rape kit
tested positive for sperm. In that factual context, we held that the result of testing the bloodstain
on the pants recovered in the defendant’s bedroom had the potential of producing new evidence
materially relevant to the defendant’s assertion of actual innocence. Henderson, 343 Ill. App.
3d at 1119. Unlike Henderson, in the instant case, defendant made incriminating admissions,
the rape kit contained no semen, and his alibi was significantly undermined.
Moreover, as previously noted, on direct appeal the evidence in the instant case was
“overwhelming.” Gecht, slip op. at 7. We supported that conclusion with the following
discussion of the evidence:
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“The victim, B.W., positively identified defendant in a show-up, a
line-up, and at trial. She had ample opportunity to view her
attacker, and her account of the incident was clear, consistent, and
without contradiction. It is well established that the testimony of
an eyewitness, especially a victim who had ample opportunity to
view her assailant and gives an accurate account of the incident, is
sufficient to prove a defendant guilty beyond a reasonable doubt.
[Citations.] In addition, a second victim who was also a young
black prostitute, H.C., testified that she also had been assaulted in a
red Dodge van in a strikingly similar manner to that recounted by
B.W. This second victim also had ample opportunity to view her
assailant, positively identified defendant as her attacker, and gave
an account of the incident. We also note that both defendant’s wife
and a girlfriend testified to the effect that, when they refused
defendant’s requests to voluntarily submit to the same acts which
defendant later forced upon B.W. and H.C., the defendant
responded that he could satisfy his desires by using force upon
black prostitutes.” Gecht, slip op. at 7-8.
We find People v. Savory, 197 Ill. 2d 203 (2001), instructive. In Savory, the defendant,
after being found guilty of murder, asked the Illinois Supreme Court to allow DNA testing.
Savory, 197 Ill. 2d at 208-09. The Illinois Supreme Court denied the request because forensic
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evidence played only a minor role in the trial. Savory, 197 Ill. 2d at 215-16. The court held that
“evidence which is ‘materially relevant’ to a defendant’s claim of actual innocence is simply
evidence which tends to significantly advance that claim.” Savory, 197 Ill. 2d at 213. The court
noted that the bloodstains were only a “minor part” of the evidence and recognized that the
defendant’s guilt was based on his knowledge of the crime scene and his incriminating
statements. Savory, 197 Ill. 2d at 214-15. The court concluded that “a test result favorable to
defendant [on the bloodstained pants] 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.” Savory, 197 Ill. 2d at 215.
We are mindful that in deciding whether the evidence at issue in the DNA motion is
materially relevant, we must take into consideration the evidence introduced at trial and assess
the evidence defendant is seeking to test. In the instant case, biological evidence played no
significant role in defendant’s trial and the evidence of defendant’s guilt is overwhelming.
Accordingly, any DNA testing would not significantly advance defendant’s claim of actual
innocence or produce evidence materially relevant to defendant’s assertion of actual innocence.
For the reasons previously discussed, we affirm the order of the circuit court denying
defendant’s post-conviction petition and section 116-3 motion for DNA testing.
Affirmed.
FITZGERALD SMITH, P.J., and TOOMIN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee
v.
ROBIN GECHT,
Defendant-Appellant
No. 1-06-3487
Appellate Court of Illinois
First District, FIFTH DIVISION
November 26, 2008
Justice Margaret O'Mara Frossard authored the opinion of the court:
Presiding Justice Fitzgerald Smith and Justice Toomin concur.
Appeal from the Circuit Court of Cook County.
The Hon. Eddie A. Stephens, Judge Presiding.
COUNSEL FOR APPELLANT
Patricia Unsinn of the Office of the State Appellate Defender, Chicago, IL 60601
OF COUNSEL: Aliza R. Kaliski
COUNSEL FOR APPELLEE
Richard A. Devine, Cook County State's Attorney, Chicago, IL 60602
OF COUNSEL: James E. Fitzgerald, Douglas P. Harvath and Anastasia Nowacki Harper
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