APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
548 N.E.2d 527, 191 Ill. App. 3d 1046, 139 Ill. Dec. 142 1989.IL.1874
Appeal from the Circuit Court of Cook County; the Hon. Lester A. Bonaguro, Judge, presiding.
JUSTICE DiVITO delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO
Following a bench trial in 1983, petitioner-appellee Edward Ross was convicted of murder and sentenced to a term of 30 years' imprisonment. This court affirmed Ross' conviction (People v. Ross (1985), 132 Ill. App. 3d 498, 477 N.E.2d 1258); the Illinois Supreme Court denied leave to appeal; and the United States Supreme Court denied certiorari. In October 1987, Ross filed a nine-count petition in the trial court for post-conviction relief. Following an evidentiary hearing, the trial court dismissed all but two counts and granted a new trial on count IV pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401), based on newly discovered evidence. Because of its ruling on count IV, the trial court indicated that it was not necessary to consider count VI, which sought a new trial under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.), based on "extraordinary circumstances."
The State raises as issues on this appeal (1) whether, because the petition was filed four years after trial and Ross presented no evidence of fraudulent concealment by the State, the petition for relief under section 2 -- 1401 of the Code of Civil Procedure is barred by the two-year limitations period in the statute, even though the State failed to raise this defense in writing before bringing this appeal; and (2) whether a new trial was properly granted pursuant to section 2 -- 1401 based on "newly discovered" evidence that blood was found inside the barrel of the gun with which Mrs. Ross was shot. We reverse, holding that the petition was not barred by the two-year limitations period, but that the trial court abused its discretion in granting a new trial based on newly discovered evidence.
On November 4, 1981, four shots from Ross' gun were fired in Ross' bedroom. Ross was shot once in the right leg and Betty Ross, Ross' ex-wife, was killed by a single contact gunshot to the left temple. At trial, on direct appeal, and in post-conviction proceedings, Ross maintained that Mrs. Ross first shot him in the leg and then committed suicide. The State maintained that Ross shot Mrs. Ross and then shot himself in the leg to inflict a "cover wound." The trial court concluded, and the appellate court agreed, that the circumstantial evidence presented at trial established that Ross was guilty of murder and was inconsistent with Ross' suicide theory. Briefly, that evidence included Ross' experience with guns; the inconsistency between the location of the spent bullets and Ross' contention that Mrs. Ross fired "hesitation shots"; the wound on the left side of Mrs. Ross' head and Mrs. Ross' right-handedness and disabled left hand; Mrs. Ross' fear of guns; incriminating statements Ross made to Mrs. Ross' former husband; the lack of fingerprints on the gun; and characteristics of Ross' leg wound consistent with self-infliction. Details are recounted in this court's decision affirming defendant's conviction and will not be repeated here. See People v. Ross (1985), 132 Ill. App. 3d 498, 477 N.E.2d 1258.
The evidence adduced at trial particularly relevant to this appeal consists of People's exhibit 36, containing a cotton swab used to test Ross' gun for the presence of blood, and the testimony of Daniel Quealy and Michael Podlecki, who examined the gun for traces of blood. Quealy, an evidence technician, testified that Ross' .32 caliber revolver was found on the floor of Ross' bedroom near Mrs. Ross. Quealy examined the gun at the scene and found blood on both sides of the gun's "frame," but none on the barrel. He also examined the interior of the barrel and did not see any blood.
Quealy examined the gun a second time on the same date at the crime lab in Maywood. Regarding that examination, Quealy testified:
"Q. And what procedure did you follow with regard to the barrel of the gun when you were at the criminalistic lab?
A. After a second visual examination, I swabbed the length of the barrel.
Q. What did you use to swab the length of the barrel, Mr. Quealy?
Q. After using the swab, did you inspect that swab?
Q. And upon inspecting that swab, did you notice any type of stain or ...