2023 IL App (1st) 210366-U 

No. 1-21-0366 

Order filed March 31, 2023

FIFTH 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 JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v. 

ANDREW REED, 

Defendant-Appellant. 

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Appeal from the 

Circuit Court of

Cook County.

No. 03 CR 21971 (01) 

Honorable 

Arthur F. Hill, 

Judge presiding. 

JUSTICE MITCHELL delivered the judgment of the court.

Presiding Justice Delort and Justice Lyle concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the circuit court’s order denying leave to file a successive postconviction petition where defendant failed to raise a colorable claim of actual innocence 

and failed to satisfy cause and prejudice related to the destruction of evidence. 

¶ 2 Defendant Andrew Reed appeals the circuit court’s order denying his motion for leave to 

file a successive post-conviction petition. Reed argues that the circuit court erred in denying leave 

to file because he sufficiently raised a claim of actual innocence and established cause and 

prejudice in his failure to previously assert a claim for a Brady violation. For the reasons explained 

below, we affirm. 
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¶ 3 BACKGROUND

¶ 4 In September 2003, Andrew Reed fired a gun at a group of people sitting on a porch, 

resulting in the death of one individual and a gunshot wound to another. After officers arrived on 

scene, a witness pointed officers to Reed’s mother’s house. While officers were at the house, Reed 

called his mother but refused to speak to officers. The officers determined that the phone call 

originated from 7213 South Evans Avenue in Chicago and proceeded to that location.1 Upon 

arrival, officers knocked on the door and then arrested Reed as he attempted to escape out of the 

back door. Reed confessed, stating that he was angry because he believed some individuals in the 

group had burglarized his brother-in-law’s home. Eyewitnesses also identified Reed as the 

assailant. After a bench trial, Reed was convicted of first-degree murder and aggravated battery. 

The court sentenced Reed to 56 years in prison. On direct appeal, we affirmed. People v. Reed, 

378 Ill. App. 3d 1123 (2008) (table) (unpublished order under Illinois Supreme Court Rule 23). 

¶ 5 Reed filed a pro se post-conviction petition in January 2009, which the circuit court

summarily dismissed as frivolous and patently without merit. 725 ILCS 5/122-1 et seq. (West 

2008). Reed moved to amend his petition and to reconsider the dismissal, both of which the circuit 

court denied. We affirmed the dismissal. People v. Reed, 402 Ill. App. 3d 1190 (2010) (table) 

(unpublished order under Illinois Supreme Court Rule 23). In 2010, Reed moved for leave to file 

a successive post-conviction petition based on his actual innocence. The circuit court denied leave,

and we affirmed. People v. Reed, 2012 IL App (1st) 110410-U.

¶ 6 In 2013, Reed filed a motion for DNA testing pursuant to section 116-3 of the Code of 

1

 The 2016 circuit court order states that Reed fled to Indiana and was subsequently arrested. However, the arrest 

report lists the address of arrest as 7213 South Evans Avenue. 
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Criminal Procedure, which the circuit court granted. 725 ILCS 5/116-3 (West 2012). A Chicago 

forensic science center tested DNA on a sweatshirt recovered from the apartment where police 

arrested Reed. The test concluded that Reed could not be excluded as a possible source of the 

DNA. In 2015, Reed filed another motion for DNA testing, requesting that the DNA be run through 

a DNA database search. 725 ILCS 5/116-5 (West 2014). The circuit court denied the motion, and 

we affirmed. People v. Reed, No. 1-16-0233 (2017) (unpublished summary order under Illinois 

Supreme Court Rule 23(c)). Later that same year, Reed moved for leave to file another successive 

post-conviction petition, asserting his actual innocence and a Brady violation. Brady v. Maryland, 

373 U.S. 83 (1963). As part of this motion, Reed cited forensic scientist Kelli Dorris’s reports in 

which she described decontaminating an “apparent blood spot” located “under the slide catch” of

the gun that police discovered inside the South Evans Avenue apartment. The circuit court denied 

leave to file the successive post-conviction petition, and we affirmed. People v. Reed, No. 1-16-

1591 (2018) (unpublished summary order under Illinois Supreme Court Rule 23(c)). In 2017, Reed 

filed a motion for DNA testing of the red spot on the gun (725 ILCS 5/116-3 (West 2016)), which 

the circuit court dismissed after the State submitted affidavits establishing that testing was 

impossible because Dorris washed the stain before conducting ballistics tests. 

¶ 7 In 2020, Reed filed his latest motion for leave to file a successive post-conviction petition

alleging his actual innocence and a due process violation based on the State’s destruction of the

red stain. Reed attached to his petition Kelli Dorris’s and her supervisor Peter Brennan’s affidavits. 

The circuit court concluded that Reed’s claims were barred by res judicata and also failed on the 

merits. The circuit court reasoned that Reed’s claim of a due process violation was speculative 

because the red spot on the gun may not have been blood, may not have been human blood, and 
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may not have been large enough to produce a DNA match. Moreover, Reed failed to show that the 

red spot was destroyed in bad faith. The court denied Reed’s motion and this timely appeal

followed. Ill. S. Ct. R. 651(a) (eff. July 1, 2017). 

¶ 8 ANALYSIS

¶ 9 A. Actual Innocence 

¶ 10 Reed argues first that the circuit court erred in denying his motion for leave to file a 

successive petition for post-conviction relief because he raised a colorable claim of actual 

innocence. We review the denial of leave to file a successive post-conviction petition alleging 

actual innocence de novo. People v. Robinson, 2020 IL 123849, ¶ 40. 

¶ 11 The Post-Conviction Hearing Act provides a statutory remedy to criminal defendants who 

assert claims for substantial violations of their constitutional rights at trial. 725 ILCS 5/122-1 et 

seq. (West 2020). Section 122-3 of the Act provides that any claim of substantial denial of 

constitutional rights not raised in the original or an amended petition is waived. 725 ILCS 5/122-

3. A ruling on an initial post-conviction petition has res judicata effect with respect to all claims 

that were raised or could have been raised in the initial petition. People v. Jones, 191 Ill. 2d 354, 

358 (2000). However, a defendant is not barred “from raising multiple claims of actual innocence 

where each claim is supported by newly discovered evidence.” People v. Ortiz, 235 Ill. 2d 319, 

333 (2009). Newly discovered evidence is evidence discovered after trial that could not been 

discovered earlier through due diligence. Id.at 333-34. 

¶ 12 Reed asserts that the affidavits from lab analysts Kelli Dorris and Peter Brennan are newly 

discovered and that the contents were not known in previous post-conviction proceedings. The 

affidavits attest to the fact that Dorris noted “a spot of apparent blood” on the firearm in her initial 
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examination. However, not only was the information about the apparent blood spot discoverable 

in prior post-conviction proceedings, but Reed used the same information contained in the 

affidavits to support his 2015 post-conviction petition. Reed cited Dorris’s original lab reports in 

which she noted her observation of an apparent blood spot that she later decontaminated. That the 

affidavits are new does not negate the fact that Reed knew about the firearm reports and the 

destruction of the red spot in 2015. See, e.g., People v. Wideman, 2016 IL App (1st) 123092, ¶ 53 

(the defendant’s affidavit could not be considered newly discovered when he failed to explain why 

the affidavit could not have been submitted in earlier petitions). Because Reed used this evidence 

in his prior petition to support another claim, the affidavits cannot be considered newly discovered 

evidence of his actual innocence. See People v. Orange, 195 Ill. 2d 437, 450 (2001), holding 

modified by People v. Pitsonbarger, 205 Ill. 2d 444 (2002) (dismissal of defendant’s successive

post-conviction petition was proper when the purported newly discovered evidence was used in 

support of defendant’s first post-conviction petition). 

¶ 13 Even if the evidence were newly discovered, the evidence must also be material and not 

cumulative. People v. Kraybill, 2021 IL App (1st) 190621, ¶ 26. Evidence is materially relevant if 

it “tends to significantly advance” the claim of innocence. Robinson, 2020 IL 123849, 

¶ 55. Evidence is noncumulative if it adds to what the jury heard. People v. Coleman, 2013 IL 

113307, ¶ 96. The affidavits regarding the existence of a red spot on the firearm cannot be 

categorized as material and noncumulative. Reed confessed to the crime shortly after his arrest. 

Moreover, two witnesses at trial testified to seeing Reed at the scene and believed that he had a 

gun. A red spot on the gun that was never tested cannot be said to significantly advance the claim 

of Reed’s innocence. The assertion that if the red spot had been tested, it would have identified the 
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real shooter, is speculative. 

¶ 14 Finally, the evidence must be so conclusive that it would “probably change the result on 

retrial.” Ortiz, 235 Ill. 2d at 333. The ultimate question is whether the evidence “places the trial 

evidence in a different light and undermines the court’s confidence in the judgment of guilt.” 

People v. Robinson, 2020 IL 123849, ¶ 56. Reed has not satisfied this element. Any conclusions 

made about the affidavits and the red spot are speculative. We cannot definitively say that the red 

spot was blood; if it were, that it belonged to the shooter; and, if it was tested, that it would have 

not belonged to Reed. Reed’s assertion that the red spot would have weakened the State’s case is 

a claim based on a series of hypotheticals and does not approach being conclusive. See, e.g., 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 commit the *** robbery” where there was positive 

eyewitness testimony linking defendant to the offense); People v. Rivera, 2011 IL App (2d) 

091060, ¶ 31 (“DNA evidence [that] does not match defendant’s DNA does not exonerate 

defendant” because DNA evidence does not trump all other evidence). 

¶ 15 B. Due Process Violation

¶ 16 Reed next argues the State committed a due process violation and that the circuit court 

erred in denying his motion for leave to file the successive post-conviction petition. In order for 

the court to grant leave to file a successive post-conviction petition, the defendant must establish 

cause and prejudice for failing to raise the claim in his original petition. People v. Simpson, 204 

Ill. 2d 536, 552 (2001). To show cause, the defendant must identify an objective factor that 

impeded his ability to raise a specific claim during his initial post-conviction proceedings. 725 

ILCS 5/122-1(f) (West 2020); People v. Bailey, 2017 IL 121450, ¶ 14. The defendant 
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shows prejudice by demonstrating that the claim not previously raised in his initial postconviction proceedings “so infected the trial that the resulting conviction or sentence violated due 

process.” 725 ILCS 5/122-1(f); Bailey, 2017 IL 121450, ¶ 14. 

¶ 17 Reed argues that he did not discover the State’s destruction of the red spot on the gun until 

2019, when the State submitted affidavits in support of its motion to dismiss Reed’s petition for 

further DNA testing. But, as explained above, Reed relied on this same evidence in his 2015 postconviction petition, also in support of a due process claim. In that petition, Reed argued that the 

State failed to turn over Kelli Dorris’s reports in which she described her observation and 

decontamination of the red spot. Reed’s claim cannot be classified as different merely because the 

evidence is now supported by additional affidavits recounting the same information. People v. 

Green, 2012 IL App (4th) 101034, ¶ 40 (the defendant failed to show cause and prejudice by 

supporting a claim raised in a prior post-conviction petition with additional evidence). Reed’s

claim that the evidence was destroyed in violation of Reed’s due process rights could have been, 

and was, raised in an earlier proceeding. Orange, 195 Ill. 2d at 450 (the defendant failed to show 

cause because the proffered evidence was already submitted in a previous post-conviction petition

in support of essentially the same claim). 

¶ 18 Further, Reed cannot establish prejudice. The State violates a defendant’s due process 

rights under Brady by failing to disclose favorable evidence that is material to guilt or punishment, 

“irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. Where the 

State has failed to preserve potentially exculpatory evidence, a defendant must show that the loss 

or destruction of the evidence resulted from the State’s “bad faith” to establish a due process 

violation. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). In Youngblood, the potential value 
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of the unpreserved DNA samples recovered from a sexual assault victim’s clothing was clear: had 

they been capable of testing and not matched the defendant’s DNA, the information would have 

advanced his defense at trial that the victim had erred in identifying the defendant as the assailant.

Id. at 54. Because the defendant had not shown that the state acted in bad faith, however, the Court 

held that the defendant's due process rights were not violated. Id. at 58 (limiting due process 

violations arising from the “failure to preserve potentially useful evidence” to “those cases in 

which the police themselves by their conduct indicate that the evidence could form a basis for 

exonerating the defendant”). 

¶ 19 Here, in contrast, the import of the unpreserved spot is unclear: the fact that the State used 

bleach to decontaminate the gun prior to conducting ballistics testing is not in and of itself 

exculpatory information. Nor is the information material to Reed’s guilt considering that the 

State’s case-in-chief relied, in no part, on DNA evidence or the gun. The State was barred from 

using evidence related to the gun after the trial court granted Reed's motion to suppress, and his 

conviction was based on his confession and the testimony of witnesses who identified him as the 

shooter. While Reed refers to the red spot definitively as “blood” and “genetic evidence,” that is

unknown. His argument that testing might have revealed the true shooter’s identity or contradicted 

the State’s evidence is speculation. Reed also did not allege any facts showing that the State, by 

cleaning the gun, acted nefariously or deviated from its standard procedures for ballistics testing.

On the contrary, the State’s forensic scientists, Dorris and Brennan, averred to decontaminating 

the gun so that it was safe for further examination. Accordingly, we affirm the circuit court’s order 

denying Reed leave to file his successive post-conviction petition.
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¶ 20 CONCLUSION 

¶ 21 For the reasons explained above, we affirm the circuit court’s judgment.

¶ 22 Affirmed.