People v. Gholston

Annotate this Case
FIRST DIVISION
JUNE 22, 1998



No. 1-95-3749

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

KENNETH GHOLSTON,

Defendant-Appellant. )
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) Appeal from the
Circuit Court of
Cook County

No. PC 4822

Honorable
Colleen McSweeney
Moore,
Judge Presiding.
OPINION UPON DENIAL OF REHEARING

JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Defendant Kenneth Gholston filed this appeal of the trial
court's dismissal of his petition to compel genetic marker (DNA)
testing and his supplemental postconviction petition. Defendant
challenges: (1) the trial court's refusal to order DNA testing of
a sexual assault victim's Vitullo kit based on his claim of
actual innocence, and (2) the trial court's refusal to correct
defendant's mittimus.
Following a jury trial, defendant was found guilty of
various sexual offenses, robbery, aggravated battery and
conspiracy to commit robbery stemming from the sexual assault of
a 15-year-old girl and an attack on her two male companions in
1981. Eight other defendants were prosecuted and convicted for
their involvement in these offenses; five of them were also
convicted of the sexual crimes along with defendant. Defendant's
convictions were affirmed on direct appeal, as were the
convictions of four codefendants. People v. Gholston, 124 Ill.
App. 3d 873, 464 N.E.2d 1179 (1984).

I. FACTS
The facts of this case are specifically detailed in the
court's opinion affirming defendant's convictions on direct
appeal; therefore, we will only discuss facts relevant to the
postconviction petitions. Gholston, 124 Ill. App. 3d at 877-82.
At trial, the 15-year-old victim, identified as D.T.,
testified that at least six males sexually assaulted her on an
"el" platform on December 27, 1980, at about 11:40 p.m.
Defendant was identified as the first to engage in forcible
vaginal intercourse with the victim, and he also attempted forced
anal intercourse on the victim. Next, Darrell King, Dennis King,
Anthony Gholston and Danny Gholston sexually assaulted the
victim. These offenders engaged in both forcible oral and
vaginal intercourse with the victim. David Love, the last
offender to sexually assault the victim, pushed her off the el
platform and forcibly engaged in vaginal intercourse with the
victim in the snow near the el tracks. The victim's two male
companions were beaten and robbed.
Following the sexual assault, the victim identified
defendant as one of the offenders who sexually assaulted her.
She also made an in-court identification of defendant.
Furthermore, one of the victim's male companions identified
defendant at a lineup but was unable to identify defendant in
court. The other male companion identified defendant in court.
In addition, during an interview with an assistant State's
Attorney, defendant admitted he was involved in the robbery and
battery of the two males on the el platform but denied committing
any offenses against the female victim.
Defendant was one of nine defendants prosecuted for the
sexual offenses and aggravated battery against the female victim,
and for robbery, aggravated battery and conspiracy to commit
robbery against the two male victims. Six defendants, including
defendant Kenneth Gholston, were alleged to have been principals
in the sexual assault and all six were convicted of the sexual
offenses and aggravated battery against the female victim. These
six defendants were also convicted of the charges against the two
male victims. The remaining three defendants were convicted only
of the crimes against the male victims.
The jury found defendant Kenneth Gholston guilty of rape,
deviate sexual assault, indecent liberties with a child, two
counts of robbery, three counts of aggravated battery and one
count of conspiracy to commit robbery. The trial court sentenced
defendant to a total term of 258 years' imprisonment. On direct
appeal, this court held that under section 5-8-2 of the Unified
Code of Corrections, defendant could not receive a sentence
greater than the sum of the two most serious felonies involved.
Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(2). Thus under
the existing law, the court found that the maximum term for rape
or deviate sexual assault was 60 years. Therefore, the court
modified defendant's sentence to provide for an aggregate term of
120 years. Gholston, 124 Ill. App. 3d at 897. Defendant's
mittimus was never amended pursuant to this court's modification
of defendant's sentence on direct appeal. In addition,
defendant's mittimus incorrectly reflects convictions and
sentences for two counts of indecent liberties with a child and
convictions and sentences for five counts of aggravated battery.
On March 3, 1993, defendant filed a petition to compel
genetic marker testing. In addition, in September 1995,
defendant filed a supplemental postconviction petition. In both
petitions, defendant requested that vaginal swabs and slides
contained in the victim's Vitullo kit be subjected to DNA genetic
marker testing. On September 6, 1995, the trial court denied and
dismissed defendant's original and supplemental petitions for
postconviction relief.

II. ANALYSIS
In order to obtain relief under the provisions of the Post-
Conviction Hearing Act, a defendant must establish that a
substantial deprivation of his or her constitutional rights
occurred in the trial or sentencing hearing. 725 ILCS 5/122-1 et
seq. (West 1996). A defendant is not entitled to an evidentiary
hearing on a postconviction petition as a matter of right;
rather, an evidentiary hearing is required only when the
allegations of the petitioner, supported by the record or
accompanying affidavits, make a substantial showing of a
violation of a constitutional right. People v. Olinger, 176 Ill. 2d 326, 680 N.E.2d 321 (1997). Upon review of a dismissal of a
postconviction petition without an evidentiary hearing, the trial
court's decision will not be disturbed absent an abuse of
discretion. People v. Madej, 177 Ill. 2d 116, 685 N.E.2d 908
(1997).
Defendant here characterizes his claim as a free-standing
claim of innocence based on newly discovered evidence. He
contends that the performance of genetic testing can establish
his actual innocence of the offense or, in the alternative,
demonstrate he was only an accomplice to the other offenders and
did not actually sexually assault the victim. We disagree and
hold that under the circumstances of this particular case, the
performance of genetic testing would not provide evidence that is
material to defendant's assertion of actual innocence and could
not provide evidence that would probably change the result on
retrial.
The Illinois Supreme Court has recently noted the viability
of a free-standing postconviction claim of innocence based on
newly discovered evidence. People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330 (1996). In Washington, the defendant
presented newly discovered evidence that the trial court
determined would have had significant impact on the jury, and a
new trial was granted. The supreme court affirmed the trial
court's decision and held that while the defendant's effort to
state a federal constitutional due process claim under the Post-
Conviction Hearing Act failed, his claim was cognizable under the
Illinois Constitution's due process protection.
"We therefore hold as a matter of Illinois constitutional
jurisprudence that a claim of newly discovered evidence
showing a defendant to be actually innocent of the crime for
which he was convicted is cognizable as a matter of due
process." Washington, 171 Ill. 2d at 489.
The Washington court noted that the supporting evidence of actual
innocence must be "new, material, noncumulative and, most
importantly, '"of such conclusive character"' as '"would probably
change the result on retrial."'" Washington, 171 Ill. 2d at 489,
quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987), quoting
People v. Molstad, 101 Ill. 2d 128, 134 (1984).
To obtain a new trial based on newly discovered evidence,
a defendant must establish the following: (1) the evidence was
not available at the defendant's trial and could not have been
discovered sooner through the exercise of due diligence; and (2)
the evidence must be of such conclusive character that it would
probably change the outcome of the trial. People v. Burrows, 172 Ill. 2d 169, 180, 665 N.E.2d 1319 (1996); People v. Edwards, 291
Ill. App. 3d 476, 484, 684 N.E.2d 802 (1997).
An allegation of newly discovered evidence of innocence is
not intended to question the strength of the State's case. An
allegation of newly discovered evidence of innocence seeks to
establish the defendant's actual innocence of the crimes for
which he has been tried and convicted. Washington, 171 Ill. 2d
at 495 (McMorrow, J., specially concurring). In general, genetic
testing of the type requested by defendant has the potential to
offer material evidence and, in some cases, evidence that could
exonerate a defendant if no match is found. However, this is not
true under the circumstances of the present case. Even if
defendant's DNA sample were found not to match the DNA taken from
the victim, this result would not be material to his claim of
actual innocence.
At trial, the State presented substantial evidence as to
defendant's participation in the sexual assault of the female
victim, in addition to his participation in the robbery of her
male companions. This evidence included in-court and lineup
identifications by the female victim, a lineup identification by
one of the two male companions of the victim and an in-court
identification by the second male companion. The State also
presented evidence from an assistant State's Attorney of
defendant's inculpatory statement in which he admitted to robbing
the males but denied any offenses against the female victim.
Additionally, a police officer testified he saw defendant on the
el platform following the attack.
Although no direct physical evidence connecting defendant to
the crimes was introduced at trial, the State did present
physical evidence that directly linked his companions to the
attack. Though defendant was not arrested until 10 days after the
incident, six of his codefendants were arrested immediately
following the crime and two others were arrested the following
day. The State introduced testimony that vaginal swabs from the
victim's Vitullo kit tested positive for semen, and clothing
removed from the first six offenders arrested was sent to the
Chicago crime lab for testing. A microanalyst testified that the
clothing of three of these men tested positive for sperm, and one
tested positive for the presence of mucous. The victim did not
testify that defendant ejaculated, and as he was arrested several
days after the commission of the crime, there was no evidence
available on his clothing to directly link him to the crime. At
a minimum, the scientific evidence offered against the
codefendants circumstantially corroborated the State's case
against defendant.
We note that defendant did not contest the sufficiency of
evidence establishing his guilt beyond a reasonable doubt in his
direct appeal. See Gholston, 124 Ill. App. 3d at 873. Despite
the lack of direct physical evidence linking defendant to the
sexual assault, the incriminating evidence introduced against
defendant at trial was overwhelming. Accordingly, based on the
totality of the circumstances, we must reject defendant's
argument that the newly available DNA results would change the
result of the trial.
To begin with, there was no testimony from the victim that
defendant Gholston ejaculated during the commission of the sexual
assault; therefore, the testing of the DNA from the victim's
Vitullo kit could not produce conclusive evidence to demonstrate
defendant's actual innocence. Ejaculation is not an element of
the sexual assault offenses of which defendant was convicted.
See Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3, 11-4(a)(1).
Consequently, the absence of defendant's DNA from the Vitullo kit
could establish that defendant did not ejaculate during the
sexual assault, but could not conclusively establish that
defendant did not sexually assault the victim.
The present case can be factually distinguished from Dabbs
v. Vergari, 149 Misc. 2d 844, 570 N.Y.S.2d 765 (1990), cited by
defendant. In Dabbs, the New York court ordered genetic testing
of DNA samples that were taken from a rape victim after the
attack and from the defendant convicted in the assault. As in
the present case, DNA testing was unavailable at the time of the
original trial, though the victim had identified the defendant as
her attacker. The victim also testified that the attacker, who
acted alone, had ejaculated and that she had not had sexual
relations with anyone else for at least 24 hours prior to the
assault. Therefore, the court noted that the semen samples
collected from the victim following the assault could only belong
to the attacker. Dabbs, 149 Misc.2d at 848, 570 N.Y.S.2d at
768. The court stated that if DNA testing could exclude that
semen as belonging to the defendant, it would strongly impeach
the credibility of the victim's identification of defendant. The
court stated that where evidence has been preserved which has
high exculpatory potential, that evidence should be discoverable
after conviction. Dabbs, 149 Misc.2d at 848, 570 N.Y.S.2d at
768.
In addition, the proposed test offers little or no
exculpatory potential. Here, there were multiple defendants who
participated in the sexual assault, one or more of whom may have
ejaculated. This is not a case where there is only one attacker
as in Dabbs, and there is no evidence defendant himself
ejaculated. Here, we cannot say that the semen samples collected
from the victim following the assault must match the defendant in
order to prove his guilt. The absence of DNA in the victim's
Vitullo kit that matches the DNA of defendant cannot provide
evidence of innocence sufficient to override the witness
identifications and self-incriminating statements defendant made
about his participation in the crime.
Hypothetically, even if the DNA test result could
demonstrate that defendant was not a principal participant in the
sexual assault, under the facts of this case such a result would
be insufficient to establish actual innocence. At trial, the
State presented as evidence defendant's confession in which he
admitted his presence at the el stop at the time of the sexual
assault and admitted to the robbery and aggravated battery of the
two male victims. Thus, by his own admission, defendant is
legally responsible for the sexual assault of the female victim
by his codefendants under a theory of accountability even if it
could be determined he did not actually rape the victim.
Like the court in Washington, we recognize that due process
requires that no person convicted of a crime should be deprived
of life or liberty given compelling evidence of actual innocence.
Washington, 171 Ill. 2d at 489. In fact, legislation was
recently enacted that codifies the use of forensic testing in
cases where the testing "has the scientific potential to produce
new, noncumulative evidence materially relevant to the
defendant's assertion of actual innocence." 725 ILCS 5/116-
3(c)(1) (West Supp. 1997). We note that in some cases, DNA
testing may yield conclusive information as to the actual
innocence of a wrongly accused criminal defendant. However, in
this case, a negative DNA match would not exculpate defendant
Gholston due to the multiple defendants involved, the lack of
evidence regarding ejaculation by the defendant Gholston and
defendant's own admission of guilt under a theory of
accountability.
Using the standard articulated in Washington, we hold that
any evidence that could be obtained via DNA testing would not be
material to this particular defendant's actual innocence and
would not be of such conclusive character as to probably change
the result on retrial. Defendant failed to present allegations
supported by the record or accompanying affidavits which
constitute a substantial showing of a violation of a
constitutional right sufficient to merit a hearing under the
Post-Conviction Hearing Act. Accordingly, the trial court's
denial of defendant's postconviction petition was not an abuse of
discretion and is affirmed.
Defendant also claims that his mittimus is incorrect and
should be amended. The State does not object to this correction
and we order that defendant's mittimus be amended pursuant to
this court's opinion on direct appeal.
Affirmed.
BUCKLEY, P.J., and O'BRIEN, J., concur.

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