People v. Winger

2016 IL App (4th) 131113-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK A. WINGER, Defendant-Appellant.

NO. 4-13-1113

NO. 4-14-0014

NO. 4-14-0488 cons.

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 8, 2016

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).

Appeal from Circuit Court of Sangamon County

No. 01CF798

Honorable Leo J. Zappa, Jr., Peter C. Cavanagh, Judges Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Harris and Appleton concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court's judgment in these consolidated cases relating to defendant's motion for forensic testing and his petitions for relief from judgment.

¶ 2 In June 2002, a jury found defendant, Mark A. Winger, guilty of first degree murder in connection with the deaths of Donnah Winger and Roger Harrington. In August 2002, the trial court sentenced defendant to a term of natural life in prison. In May 2004, this court affirmed his conviction and sentence. In March 2005, defendant filed a petition for postconviction relief. In November 2007, the trial court granted the State's motion to dismiss the postconviction petition. This court affirmed. Also in March 2005, defendant filed a motion for deoxyribonucleic acid (DNA) testing, which the trial court denied. This court affirmed. In December 2008, defendant filed a pro se motion to permit the release of evidence for low copy number "touch DNA" testing and, in December 2009, he filed a pro se petition for relief from judgment. In November 2013, the trial court denied both motions. In March 2014, defendant filed a pro se petition for relief from judgment. In April 2014, the trial court ruled it lacked jurisdiction to take any action on the petition.

¶ 3 In these consolidated appeals, defendant argues the trial court erred in (1) denying his motion for DNA testing, (2) dismissing his petition for relief from judgment, and (3) finding it lacked jurisdiction to consider his successive petition for relief from judgment. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In August 2001, a grand jury returned a six-count indictment against defendant for the first degree murders (720 ILCS 5/9-1(a)(1), (a)(2) (West 2000)) of his wife, Donnah Winger, and Roger Harrington. Defendant pleaded not guilty.

¶ 6 A. Jury Trial

¶ 7 In May 2002, defendant's jury trial commenced. As the parties are familiar with the testimony and evidence presented at trial, we will only set forth the relevant facts pertinent to this appeal. On August 29, 1995, defendant reported to police that he shot an intruder in his home after seeing the intruder hit his wife in the head with a hammer. After seeing the intruder attempt to get up, defendant shot him again in the forehead. Defendant called 9-1-1 and then attempted to help his wife. When defendant became annoyed at the intruder's "moaning and groaning," defendant struck him in the chest with a hammer several times "to shut him up."

¶ 8 The alleged intruder was Roger Harrington, a shuttle-service driver who had recently driven Donnah to Springfield from St. Louis. Donnah had indicated the trip made her uneasy as Harrington talked about a spirit named Dahm that would appear to him. On the date of the murders, a note in Harrington's vehicle read "Mark Winger, [2305 Westview Drive],Springfield, 4:30."

¶ 9 When police told defendant that Harrington was the intruder, he stated Harrington had been harassing them recently. Defendant had complained to the shuttle service, obtained Harrington's phone number, and told him that if he left them alone defendant would not file a police report.

¶ 10 Dr. Travis Hindman, a forensic pathologist, testified the cause of Harrington's death was "brain trauma due to the passage of bullets through the brain due to gunshot wounds to the left side of the head." He concluded Donnah's death was caused by "brain trauma due to multiple narrow[-]surface blunt[-]force injuries to the head, compatible with a hammer." Hindman also noted contusions on Harrington's chest caused by hammer strikes.

¶ 11 At trial, the State postulated defendant killed his wife and attempted to frame Harrington by claiming he found him beating his wife in the head with a hammer. Defendant, on the other hand, claimed he saw Harrington beating his wife, shot him twice in the head, and hit him in the chest with a bloody hammer out of anger. The State and defendant both presented a great deal of expert testimony regarding bloodstain patterns and blood-spatter analysis.

¶ 12 Tom Bevel, president of TBI, a consulting company, testified as the State's expert in bloodstain-pattern analysis. He identified two different pools of blood that were not connected in the area where Harrington's body was found. Bevel found this to mean independent events created the smaller and larger stains and noted a two-foot distance between the centers of the stains. He opined the stains and the distance between them were consistent with "Harrington being on his face with the left side of his head down toward the carpet and then at some juncture he is rolled from the smaller bloodstain" and "moved to a faceup direction in th[e] larger stain."

¶ 13 Bevel agreed Harrington's initial entry wound was in the top of his head and thesecond gunshot wound was to the forehead. He stated "the bullet path from the second bullet is traveling in a fairly close proximity to the first wound track that is filled with blood, and that will force the blood that is in the first wound track out." In addition, blood would be mixed with brain tissue "because the brain has been disrupted from the first bullet."

¶ 14 Bevel agreed that Donnah was found in a facedown position. Examining her shorts, Bevel did not find any high-velocity-impact bloodstaining pattern consistent with someone being shot in the head while directly over her body. On a picture of the south wall of the residence, Bevel found both blood "spatter," consistent from impact, and "cast off," that being blood flung off a bludgeoning-type object. Bevel opined that if the killer was wielding a hammer in an east-west fashion, the cast-off patterns would be found in an east-west direction. Bevel was not aware of any cast off consistent with the killer facing an east-west direction, but the evidence pointed to the killer facing the north-south direction. Bevel found the spatter and the cast off were "consistent with the person facing the wall at the time that they're actually swinging the hammer" and inconsistent with the attacker facing down the hallway. Bevel identified a blood-spatter pattern and cast-off stain on defendant's T-shirt consistent with Donnah's blood type. He found no evidence of any cast-off patterns on the shoulder areas of Harrington's shirt.

¶ 15 Terry Laber, a forensic scientist, testified for the defense as an expert in bloodstain-pattern analysis, DNA analysis, and serology. Based on his bloodstain-pattern analysis, Laber believed the bloodstains on Harrington's clothing could not have resulted from his gunshot wounds and the bloodstains on Donnah's jean shorts were believed to be "blood from probably two different individuals." As to the blood on the south wall, Laber opined the stains were caused by impact and not cast off. In looking at a line of stains in an east-westdirection on the ceiling, Laber stated such a pattern of blood "would be consistent with a weapon being swung in an east-west direction." As to "a large piece of solid material consistent with tissue" on the south wall, Laber indicated it could have been cast off from a person swinging a hammer in an east-west direction. In his opinion, the assailant would have been "swinging the weapon in an east-west direction at the time he was striking Donnah Winger."

¶ 16 Laber testified "several possibilities" existed for the two pools of blood where Harrington was found, including him being rolled over, moving on his own, or being moved by medical personnel. A DNA test of a stain on the inside of Harrington's left sleeve revealed a mixture of DNA belonging to Harrington and Donnah. A stain on the back-right shoulder of Harrington's T-shirt revealed Donnah's DNA. Laber opined that a hammer strike to Harrington's chest "could not deposit stains on his back" and would be "very difficult for a stain to get on the inside of the left sleeve." A "large tissue contact stain" on the front of Harrington's shorts "above the right pocket" matched Donnah's DNA. As to stains on Donnah's shorts, a DNA test matched one stain on the back left pocket with Harrington's blood. Laber opined the size of the stains on the back of Donnah's shorts were "consistent with back spatter from a gunshot *** to Roger Harrington." Laber's examination of the blood and tissue deposited on Harrington and his blood on Donnah led him to conclude it was consistent with defendant's version of the events given to Detective Charles Cox on August 29, 1995.

¶ 17 Evidence at trial also consisted of testimony from Deann Schultz. She worked with Donnah, and they became close friends. Over time, Schultz began having an affair with defendant. In August 1995, Schultz and defendant were talking in his driveway, and she testified defendant told her "it would be easier if Donnah just died." Defendant had thought about it for a while and told Schultz that "all you have to do is come in and find the body." Schultz found theidea "crazy" and did not agree to participate. Defendant and Schultz later had a conversation, wherein he told her he did not want his daughter "to grow up in hot, humid Florida" with Donnah's family and mentioned it would be easier if Donnah died. Schultz did not agree to participate and stated she was going to get a divorce and defendant would have to do the same.

¶ 18 On August 28, 1995, defendant spoke with Schultz about getting the shuttle-bus driver into his house. On the day of...