People v. Boyce ( 2020 )

2020 IL App (1st) 17-0298-U
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
SECOND DIVISION
May 5, 2020
No. 1-17-0298
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the Circuit Court
Plaintiff-Appellee, ) of Cook County, Illinois,
) Criminal Division
v. )
)
JOSEPH BOYCE, ) No. 01 CR 0942604
)
Petitioner-Appellant. ) The Honorable
) Carol M. Howard,
) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the
court.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: The trial court properly dismissed the petitioner’s section 2-1401 petition for relief
from judgment (735 ILCS 5/2-1401 (West 2012)) where the petitioner failed to state a
meritorious claim of actual innocence based on newly discovered DNA testing. The results
of that new DNA testing were not of such conclusive character so as to have probably
changed the result on retrial.
¶2 The petitioner, Joseph Boyce, appeals from the dismissal of his petition for relief from
judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-
1401 (West 2012)). On appeal, the petitioner contends that the trial court erred when it
No. 1-17-0298
dismissed his petition both as untimely and on the basis that his claim of actual innocence
predicated on DNA testing was without merit. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 The underlying facts of this case have been set forth adequately in the orders concerning the
petitioner’s direct appeal (see People v. Boyce, No. 1-05-1448 (2007) (unpublished order
pursuant to Illinois Supreme Court Rule 23)) and the subsequent dismissal of his postconviction
petition (see People v. Boyce, No. 1-08 2363 (2010) (unpublished order pursuant to Illinois
Supreme Court Rule 23)). Accordingly, we set forth only those facts that are necessary to the
resolution of the issues raised in this appeal.
¶5 The petitioner was charged together with three codefendants (Donnell Hayes, Michael Boyce
and Jacky Burks) with first degree murder, attempted first degree murder, heinous battery,
aggravated arson and residential arson, resulting from a gang-related fire, which was set at 1330
North Parkside Ave. in Chicago on March 10, 2001. The fire resulted in the death of four-year-
old victim, Arman Kendley, and in severe injuries to his grandmother and cousin. The petitioner
and codefendant Burks were tried by way of simultaneous but separate trials. Codefendants
Hayes and Michael pleaded guilty to lesser charges in exchange for testifying for the State at
those two trials.
¶6 The following relevant evidence was adduced at the petitioner’s bench trial. The petitioner’s
cousin, Michael Boyce first testified that he, Burks and Hayes were members of the Body
Snatchers faction of the Four Corner Hustlers street gang. Michael and Burks sold drugs in the
area of Division St. and Parkside Ave. for Thomas Dean, who was a ranking member of the
Body Snatchers gang, and another of Michael’s cousins.
¶7 In March 2001, following a drug-sales dispute between the Body Snatchers and the Four
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Corner Hustlers, multiple shootings took place, resulting, among other things, in the death of
Thomas Dean. In the evening of March 10, 2001, a meeting of the Body Snatchers was held at a
local school playground to discuss retaliation for Thomas’ murder. Among about thirty people,
the meeting was attended by the petitioner, Burks, Michael, and Thomas’ brothers (Joseph,
Richard and Henry Dean). A plan was devised to avenge Thomas’ death by blowing up the
home of the person suspected of killing him, and Burks indicated that he knew where the killer
lived. The Deans could not be directly involved because that would be “too obvious,” so Burks
took the lead.
¶8 Michael averred that after the meeting Burks obtained a gun. Michael, Hayes, Burks and the
petitioner then discussed plans to procure bottles, fill them up with gasoline and throw Molotov
cocktails into a home located at 1330 N. Parkside Ave.
¶9 According to Michael, Burks retrieved a gasoline container from his own car, and then Hayes
drove Burks, Michael and the petitioner to a gas station where they purchased gas and retrieved
bottles to make the Molotov cocktails. Michael took a bandana form the glove compartment and
gave it to the petitioner and Burks. They then drove to an alley near 1330 N. Parkside Ave. The
petitioner and Burks exited the car and prepared the Molotov cocktails using the gasoline,
bottles, and ripped pieces of the bandana. According to Michael, the petitioner wore gloves
during this preparation. They agreed that Burks would throw his Molotov cocktail into the front
of the house and the petitioner would throw his into the back.
¶ 10 Michael averred that shortly after 10 p.m., the petitioner and Burks threw their Molotov
cocktails at the house. However, only Burks’ Molotov cocktail ignited. The house was
immediately engulfed in flames and Michael heard screaming from inside. He then watched
Burks standing in front of the house with his gun waiting to shoot anyone who fled from inside.
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¶ 11 Michael acknowledged that he was arrested together with Thomas Dean’s brother, Joseph,
inside Joseph’s car, which was found to contain red gasoline cans and clothing that tested
positive for gasoline residue. He also admitted that he initially lied that the police had coerced
him into implicating the petitioner and Burks, and that instead he had received a deal to testify
for the State.
¶ 12 Codefendant Hayes corroborated much of Michael’s testimony. He stated that he
had known the petitioner for about ten years and that the petitioner was a gang member. He
further averred that the petitioner was present at the schoolyard meeting with Burks where plans
were discussed for retaliation for Thomas’ killing. According to Hayes, it was the petitioner who
suggested that they blow up the home located at 1330 N. Parkside Ave., and it was Burks who
added that he would shoot anyone who tried to run out of the burning house.
¶ 13 Hayes further testified that he drove the petitioner, Burks and Michael to a gas station where
Burks and the petitioner obtained some large bottles and where Burks bought gasoline. Hayes
told Burks that there was a bandana in the glove compartment that they could use in making
Molotov cocktails and Michael reached into the glove compartment and handed the bandana to
Burks and the petitioner. Hayes then drove to 1330 N. Parkside Ave., where he let the petitioner
and Burks out of the car. When he returned to pick them up, the petitioner and Burks were both
out of breath. Burks told Hayes that his Molotov cocktail ignited, and the petitioner told him that
his had not.
¶ 14 The injured victims, as well as Arman’s father, also testified at trial, recounting that a
Molotov cocktail burst through the front window of the house and ignited, and that the fire
quickly spread throughout. The victims described their severe burn injuries and lengthy
hospitalizations. Arman’s father also described that Arman was trapped in the house while the
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No. 1-17-0298
fire burned, and that when he was finally able to locate him crying for help, he had to wrap
Arman in a coat to carry him outside because his skin was too hot to touch.
¶ 15 The medical examiner testified that Arman died shortly after arriving at the hospital, and that
his death was caused by inhalation injuries and thermal burns to 100 percent of his body. The
manner of death was homicide.
¶ 16 The fire investigator assigned to the case determined that the fire was arson caused by a
Molotov cocktail intentionally thrown into the living room.
¶ 17 The parties stipulated to a voluminous amount of physical evidence that was recovered at the
scene, inventoried by the police, and later analyzed by forensic scientists. Among the items
retrieved and inventoried were: a gasoline container, the glass bottle from the unignited Molotov
cocktail, shoes, a footprint impression at the scene, a recovered handgun, upholstery from Hayes’
car, clothing, and two pairs of gloves (one recovered from Joseph Dean’s vehicle and the other
from Hayes’ car). The parties further stipulated that: (1) the recovered clothing and gloves tested
positive for gasoline; (2) one of the containers contained gasoline; and (3) neither the bottle that
the petitioner threw nor the gasoline cans obtained from the scene had any fingerprints that were
suitable for comparison.
¶ 18 In the midst of trial, the parties litigated a motion to suppress inculpatory statements that the
petitioner had made while in police custody. The petitioner first testified that two weeks after
the fire, he arrived at the police station, accompanied by his attorney and an investigator, and
surrendered himself to the police.
¶ 19 Chicago police Sergeant Anthony Wojcik testified that, when the petitioner arrived at the
police station with his attorney, he was advised that he was being arrested for the arson-murder
of a four-year old boy, which took place on March 10, 2001. The petitioner was read his
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No. 1-17-0298
Miranda rights, and on the advice of his attorney, invoked his right to remain silent, at which
point the police stopped questioning him. The petitioner was placed in a lineup and subsequently
taken to a hospital for medical treatment of an ulcer. Later, when he returned to the police
station, the petitioner was led to the lock-up area. Sergeant Wojcik testified that as he was taking
the petitioner to the lock-up, the petitioner asked him what was going on. Sergeant Wojcik
advised the petitioner of his Miranda rights, and then informed him that he was being charged
with first degree murder and aggravated arson. The petitioner then asked, “[D]id he die from
breathing smoke?” Sergeant Wojcik stated that the boy died from being badly burned and then
showed the petitioner a morgue photograph of Arman. According to the sergeant, the petitioner
began shaking and crying and said “[I]t wasn’t supposed to be like this…No babies was
supposed to be hurt… I got babies of my own…We didn’t mean for this to happen.”
¶ 20 The petitioner denied making any of these statements to the sergeant or ever initiating a
conversation with him while being transported to the lock-up. Instead he claimed that after he
returned to the police station from the hospital, Sergeant Wojcik asked him whether he wanted to
make a statement, which he declined.
¶ 21 The trial court found Sergeant Wojcik’s testimony credible and denied the petitioner’s motion
to suppress the inculpatory statements. The court found both that the petitioner’s statements to
the sergeant were voluntary and that he had initiated the conversation with the officer. The
petitioner then stipulated to Sergeant Wojcik’s testimony for purposes of trial.
¶ 22 After the State rested, the petitioner did not testify or present any evidence in his defense.
The trial court found the petitioner guilty of first-degree murder, aggravated arson and two
counts of heinous battery. The court noted that in coming to its decision it had relied on: (1) the
testimonies of Michael and Hayes; (2) the numerous exhibits presented at the petitioner’s trial;
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No. 1-17-0298
and (3) the petitioner’s custodial statements, which the court dismissed as confessions, but
considered as acknowledgements by the petitioner that arson was intended to be used as
“revenge” for Thomas Dean’s killing.
¶ 23 With regard to Michael’s and Hayes’ credibility, the court recognized that because of
the deals they had made with the State, their testimonies were “subject to suspicion and should
be considered with caution.” The court, however, noted that it had done so, and ultimately found
that because both witnesses had testified consistently with their pretrial statements, and were
corroborative of each other, their testimony was sufficient to find the petitioner guilty beyond a
reasonable doubt.
¶ 24 The petitioner was subsequently sentenced to a total of 110 years imprisonment, including an
extended term of 70 years for first degree murder, two consecutive terms of 20 years for each of
the heinous battery convictions, and a concurrent term of 20 years for aggravated arson.
¶ 25 The petitioner appealed, contending that: (1) the trial court erred by admitting prior
consistent statements from Michael and Hayes because they had had a motive to lie; and (2) his
convictions violated the one-act, one-crime rule. People v. Boyce, No. 1-05-1448 (2007)
(unpublished order pursuant to Illinois Supreme Court Rule 23)). This court affirmed the
defendant’s convictions on appeal. Id. The petitioner’s request for leave to appeal to the
supreme court was subsequently denied. People v. Boyce, 225 Ill. 2d 642.
¶ 26 On September 10, 2007, the petitioner filed a “Motion for DNA testing,” and a “Petition for
Mandamus” wherein he sought DNA testing of the two pairs of gloves recovered at the scene of
the crime, in the hopes of establishing that they contained Joseph Dean’s and not his DNA, and
to prove his actual innocence. Although the report of the proceedings provided to us as part of
the record on appeal does not include any transcripts related to these motions, the common law
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record reveals, and the parties agree that the trial court denied both requests on November 9,
2007.
¶ 27 On April 15, 2008, the petitioner filed a postconviction petition, alleging a bevy of
constitutional errors. Among these, the petitioner argued ineffective assistance of trial counsel
for counsel’s failure to: (1) investigate the crime scene area where the Molotov cocktails were
made; (2) request DNA testing of the gloves found in Hayes’ car; (3) impeach Hayes with
inconsistent statements made in direct examination; and (4) properly cross-examine Michael.
The petitioner also argued that appellate counsel was ineffective for failing to raise these issues
on appeal. On June 13, 2008, the trial court summarily dismissed the petition as frivolous and
patently without merit.
¶ 28 We affirmed the trial court’s summary dismissal. People v. Boyce, No. 1-08 2363 (2010)
(unpublished order pursuant to Illinois Supreme Court Rule 23)), petition for leave to appeal
denied, 239 Ill. 2d 550 (2010). In doing so, we did not address the DNA issue as we found that
we lacked jurisdiction since the petitioner had never appealed the trial court’s denial of his
motion for DNA testing. Id. We nonetheless remanded to the trial court for resentencing based
upon the State’s position on appeal that the trial court had improperly ordered the petitioner’s
sentence for aggravated arson to run concurrently with his sentence for first degree murder. Id.¶ 29 On remand, on August 10, 2011, the trial court imposed a consecutive sentence for
aggravated arson, for a total of 130 years’ imprisonment. On remand, it was further discovered
that the State had never responded to the petitioner’s 2007 motion for DNA testing. The court
continued the matter for status to give the State an opportunity to review the motion and respond.
The State instead agreed to the DNA testing, and testing was ordered by the trial court on
February 8, 2012. The testing was completed in September 2012 and revealed that the
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No. 1-17-0298
petitioner’s DNA was not on either pair of gloves retrieved by the police. Instead, one pair of
gloves contained Richard Dean’s DNA and the other Hayes’.
¶ 30 On October 30, 2012, the petitioner, with the assistance of counsel, filed a petition for relief
from judgment (735 ILCS 5/2-1401(f) (West 2012)), arguing that: (1) the State committed a
Brady violation when it failed to tender to the defense the results of a second set of finger and
palm print testing from the Molotov cocktail bottle completed on August 14, 2002, that excluded
the petitioner from handling the evidence at the crime scene; and (2) the petitioner’s conviction
was void because the new DNA testing performed on the gloves, was a material piece of
evidence, which exonerated him. On December 18, 2012, the petitioner filed an updated version
of the same petition wherein he raised identical claims, namely that: (1) the State committed a
Brady violation; and (2) the petitioner had newly discovered DNA evidence of his actual
innocence. 1
¶ 31 On April 26, 2013, the State filed a motion to dismiss the petition for relief from judgment.
The State argued, among other things, that: (1) a section 2-1401 petition (735 ILCS 5/2-1401
(West 2012)) was not the proper vehicle for raising the petitioner’s constitutional claim of actual
innocence; (2) the petition was untimely as it was filed outside of the statutory two-year time
period; and (3) the petitioner’s DNA evidence did not constitute “newly discovered evidence”
since it was not sufficiently material and would not change the result on retrial.
¶ 32 On June 7, 2013, the petitioner filed a response to the State’s motion to dismiss,
1
On November 19, 2012, the petitioner also filed a motion to dismiss the charges against him pursuant to section
116-3 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/116-3 (West 2012)),
arguing that the DNA testing had excluded him as the source of DNA found on either glove pair. On December 24,
2012, however, the petitioner withdrew this motion.
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No. 1-17-0298
supplementing his previous claim of actual innocence with a new claim, namely that Michael’s
statement to the police implicating the petitioner in the crime was a result of police coercion. On
December 20, 2013, the petitioner filed his second amended response.
¶ 33 The State filed a second motion to dismiss the petitioner’s section 2-1401 petition on
February 28, 2014. The petitioner filed a response to the State’s second motion to dismiss,
arguing, inter alia, that his petition had not been untimely. In this regard, the petitioner
contended that because section 116-3 of the Code of Criminal Procedure (725 ILCS 5/116-3
(West 2012)) contains no limitation period for requesting DNA testing, “[t]he lack of a time
limitation,” in that section “must be read into section 2-1401 of the Code [of Civil Procedure
(735 ILCS 5/2-1401 (West 2012))] when such petitions involve DNA evidence.” The petitioner
further claimed that the DNA evidence was not available to him until after the two-year time-
limit set forth in section 2-1401 had already expired, because the State had failed to respond to
his initial request for DNA testing. Accordingly, he argued that he should not be penalized
where the delay was not caused by any lack of due diligence. The State filed its reply to the
petitioner’s response on July 18, 2014.
¶ 34 On February 20, 2015, the trial court heard arguments on the State’s motion to dismiss.2 On
March 13, 2015, in a written order, the trial court denied the petitioner’s motion for relief from
judgment, finding, among other things, that none of the petitioner’s claims were meritorious.
The petitioner now appeals solely from the dismissal of his actual innocence DNA claim.
II. ANALYSIS
2
At the hearing, the petitioner additionally argued that if the court found his section 2-1401 petition was not the
proper vehicle for his claims, the court should construe his pleading as a postconviction petition. The petitioner then
outlined his cause and prejudice argument in case the trial court chose to treat his pleading as a successive
postconviction petition.
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No. 1-17-0298
¶ 35 We begin by setting forth the well-established principles regarding petitions for relief from
judgment. Section 2-1401 of the Code represents a comprehensive statutory procedure by which
final orders, judgments, and decrees may be vacated or modified in civil or criminal proceedings
30 days from their entry. People v. Dodds, 2014 IL App (1st) 122268, ¶ 17; see also In re Dar.
C., 2011 IL 111083, ¶ 104; People v. Vincent, 226 Ill. 2d 1, 7 (2007); Warren County Soil and
Water Conservation Dist. v. Walters, 2015 IL 117783, ¶ 31. While section 2-1401 petitions are
ordinarily used to bring facts to the attention of the trial court which, if known at the time of
judgment, would have precluded its entry, they may also be used to challenge a purportedly
defective judgement for legal reasons. Warren County Soil, 2015 IL 117783, ¶ 31.
¶ 36 To be entitled to relief under section 2–1401, a defendant must set forth specific factual
allegations supporting each of the following elements: (1) the existence of a meritorious defense
or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original
action; and (3) due diligence in filing the section 2–1401 petition for relief. Dodds, 2014 IL App
(1st) 122268, ¶ 18; People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003); see also Vincent, 226 Ill. 2d
at 7–8. The quantum of proof necessary to sustain a section 2-1401 petition is preponderance of
the evidence. Vincent, 226 Ill. 2d at 7. The petition must be supported by affidavit or other
appropriate showing as to matters not of record. Dodds, 2014 IL App (1st) 122268, ¶ 18;
Vincent, 226 Ill. 2d at 6; 735 ILCS 5/2–1401(b), (d) (West 2012).
¶ 37 In addition, the petition must be filed within two years after entry of the judgment being
challenged. 735 ILCS 5/2–1401(a), (c) (West 2012); see also Dodds, 2014 IL App (1st) 122268,
¶ 19; Vincent, 226 Ill. 2d at 7. This two-year statute of limitations, however, does not apply to
petitions brought on voidness grounds or where a clear showing has been made that: (1) the
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No. 1-17-0298
person seeking relief was under legal disability or duress; or (2) the grounds for relief were
fraudulently concealed. See Dodds, 2014 IL App (1st) 122268, ¶ 19.
¶ 38 Our standard of review depends on whether the petitioner has presented a factual or legal
challenge to a final judgment or order. Warren County Soil, 2015 IL 117783, ¶ 31. If a petition
raises a purely legal issue that does not involve a factual dispute, and the trial court enters a
judgment on the pleadings, or dismissal for failure to state a cause of action, the reviewing court
applies a de novo standard of review. Id. ¶¶ 47-48. If, on the other hand, a section 2-1401
petition raises a fact-dependent challenge to a final judgment, our review is for an abuse of
discretion. Id. ¶ 50.
¶ 39 In the present case, on appeal, the petitioner makes two arguments regarding his actual
innocence claim. First, he asserts that the trial court erred in finding that the petition was
untimely because the DNA was obtained pursuant to section 116-3 of the Code of Criminal
Procedure (725 ILCS 5/116–3 (West 2010)), which lacks a time limitation and is therefore
exempt from the two-year statutory limitation period outlined in section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Second, the petitioner argues that the trial
court erred when it found that his actual innocence claim was without merit.
¶ 40 The first of these arguments involves a purely legal question and is subject to de novo
review. The second argument is fact-dependent and will therefore be reviewed for an abuse of
discretion.
¶ 41 As a threshold matter, we note that with respect to the timeliness argument, the State
concedes that section 2–1401(c) of the Code “explicitly exempts from its two-year statute of
limitations petitions based on newly discovered DNA evidence based on the rights to DNA
testing accorded in section 116–3 of the Code of Criminal Procedure.” People v. Davis, 2012 IL
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App (4th) 110305, ¶ 18 (citing 735 ILCS 5/2–1401(c) (West 2010)). The State agrees that under
this statute, because section 116–3 of the Code of Criminal Procedure is silent on any limitations
period during which motions for DNA testing may be filed (725 ILCS 5/116–3 (West 2012)) the
lack of any time limitation in that section must be read into section 2–1401 of the Code when
such petitions involve DNA evidence. Id. The State further points out that the trial court itself
agreed with this analysis and found that (unlike the petitioner’s Brady claim) his actual
innocence claim was not time-barred. Accordingly, since the issue of timeliness is undisputed,
we turn to the merits of the petitioner’s actual innocence claim.
¶ 42 It is axiomatic that in order to succeed on a claim of actual innocence, the petitioner had to
present “new, material, noncumulative evidence that is so conclusive it would probably change
the result on retrial.” People v. Coleman, 2013 IL 113307, ¶ 96. To be “new” the evidence must
have been discovered after trial and been undiscoverable to the petitioner despite his due
diligence. Id. To be “material” the evidence must be relevant and probative of the petitioner's
innocence. Id. To be “noncumulative” the evidence must add to what the jury heard. Id. Finally,
and most importantly, to be “conclusive” the evidence, when considered along with the trial
evidence, must be of such character that it would “probably lead to a different result.” Id.; see
also People v. Sanders, 2016 IL 118123, ¶ 47. “Probability, not certainty, is the key as the trial
court in effect predicts what another jury would likely do, considering all the evidence, both new
and old, together.” Coleman, 2013 IL 113307, ¶ 97; see also People v. Gonzalez, 2016 IL App
(1st) 141660, ¶28; People v. Davis, 2012 IL App (4th) 110305, ¶62 (“New evidence need not be
completely dispositive of an issue to be likely to change the result upon retrial.”). According to
our supreme court, for the new evidence to be conclusive we must find that “it is more likely
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No. 1-17-0298
than not” that no reasonable trier of fact would find the petitioner guilty beyond a reasonable
doubt. Sanders, 2016 IL 118123, ¶ 47.
¶ 43 In the present case, the parties appear to agree that the DNA evidence was new, noncumulative
and material to the petitioner’s cause. Their dispute is therefore focused on the conclusive
character of the evidence. In this respect, the petitioner asserts that because the trial court’s
guilty verdict was premised on Hayes’ and Michael’s testimonies, and the new DNA evidence
directly contradicts Michael’s statements that the petitioner wore gloves while preparing the
Molotov cocktails, this evidence “casts a shadow on the credibility” of the State’s key witnesses
and “impeaches their testimony.” According to the petitioner, the new DNA evidence now
makes clear that none of the physical evidence collected at the crime scene contained either the
petitioner’s DNA or his fingerprints. We disagree.
¶ 44 Contrary to the petitioner’s assertion, the new DNA evidence is not of such conclusive
character as would probably change the result upon retrial. On direct appeal, we already held
that the evidence against the petitioner was “overwhelming.” People v. Boyce, No. 1-05-1448
(2007) (unpublished order pursuant to Illinois Supreme Court Rule 23)), petition for leave to
appeal denied, 225 Ill. 2d 642. Specifically, two codefendants, Michael and Hayes, testified
consistently regarding the petitioner’s involvement in: (1) the meeting where the revenge-killing
for Thomas Dean’s death was planned; (2) the preparation of the Molotov cocktails; and (3) the
execution of the arson. In addition, the petitioner himself made an inculpatory statement to
Sergeant Wojcik acknowledging his participation in the crime. The petitioner offered no
evidence to the contrary at trial. As such, even if the trier of fact were to be presented with the
new DNA evidence, which shows that neither pair of gloves retrieved by the police contained the
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No. 1-17-0298
petitioner’s DNA, there nevertheless remains substantial unimpeached evidence proving the
petitioner’s guilt.
¶ 45 Our courts have repeatedly held that actual innocence means “total vindication,” or
“exoneration.” See People v. Evans, 2017 IL App (1st) 143268, ¶ 30; People v. Collier, 387 Ill.
App. 3d 630, 636 (2008); People v. Flowers, 2015 IL App (1st) 113259, ¶ 33 (“The focus of a
freestanding claim of actual innocence is on the new evidence itself, and whether it would totally
vindicate or exonerate the defendant”). It is a claim that the petitioner is free of any criminal
involvement, either in the crime for which he was convicted or any lesser included offense.
Evans, 2017 IL App (1st) 143268, ¶ 30; see also People v. Barnslater, 373 Ill. App. 3d 512, 520
(2007).
¶ 46 In the present case, the new DNA evidence by no means exonerates or vindicates the
petitioner. The presence of Hayes’ DNA on the gloves retrieved from Hayes’ car, and the
presence of Richard Dean’s DNA on the gloves that were recovered from his brother, Joseph
Dean’s car, are neither surprising nor prove that the petitioner did not participate in the crime.
This evidence does not negate the petitioner’s presence at the original playground meeting where
the revenge-killing was planned, inside Hayes’ car, at the gas station where the bottles and
gasoline were obtained, or at the victims’ residence where the attack was executed. Nor does it
preclude the possibility that the petitioner wore a pair of gloves that were never recovered by the
police. At best, this evidence impeaches Michael’s testimony that the petitioner wore gloves
while preparing the Molotov cocktails. This detail, in and of itself, even if known by the trier of
fact, is insufficient to negate the petitioner’s accountability for the crime. See People v. Gecht,
386 Ill. App. 3d 578, 582 (2008) (“DNA evidence that plays a minor role and is a collateral
issue*** does not significantly advance a claim of actual innocence.”); People v. Brown, 2013 IL
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App (1st) 091009, ¶ 54 (“DNA evidence that does not match a defendant’ DNA does not
exonerate the defendant.”); People v. Allen, 377 Ill. App. 3d 938, 944 (2007) (“The absence of
defendant's DNA on the gun would not conclusively establish that he did not handle the gun or
that he did not commit the * * * robbery”).
¶ 47 Moreover, even if, as the petitioner asserts, the presence of Richard’s DNA on the second
pair of gloves weakens Michael’s credibility, and further establishes his apparent motive to lie
and implicate the petitioner so as to protect Joseph Dean, Hayes’ unimpeached testimony and the
petitioner’s own inculpatory statements to police, alone, are more than sufficient for a
conviction. Thus, in light of the State's overwhelming evidence against the petitioner, the DNA
results do not have the probability to change the verdict on retrial. See Sanders, 2016 IL 118123,
¶ 53 (holding that the evidence was not so conclusive as to change the probable result on retrial
where it merely impeached or contradicted the testimony offered by the State’s witnesses).
¶ 48 III. CONCLUSION
¶ 49 Accordingly, for the aforementioned reasons, we affirm the judgment of the circuit court.
¶ 50 Affirmed.
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