Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois No. 77-CF-565 Honorable Robert A. Barnes Judge Presiding
The opinion of the court was delivered by: Justice Lytton
JUSTICE LYTTON delivered the opinion of the court:
A jury convicted defendant Johnny Lee Savory on two counts of murder. Defendant subsequently filed a motion for scientific testing under section 116-3 of the Code of Criminal Procedure of 1963 (Code)(725 ILCS 5/116-3 (West 1998)). The trial court denied the motion. Defendant appeals, claiming that polymerase chain reaction amplification (PCR) testing, unavailable at the time of his trial, will produce materially relevant evidence of his "actual innocence." We affirm.
James Robinson and Connie Cooper were siblings, living together with their parents. On the morning of January 18, 1977, James and Connie's parents left for work. Later that day, one of the parents discovered the bodies of James and Connie inside the home. Each of the victims had been stabbed to death.
Defendant had been an acquaintance of James and admitted to being in the home on the day of the killings. Defendant stated that he and James had been practicing karate techniques. Defendant had knowledge of the crime scene as it appeared on the morning of the murders e.g., he knew that a television set had been moved to the floor; he knew that Connie's two year old child was in a bedroom; and he also knew that James had eaten corn and hot dogs. Further, he admitted that he had "accidentally cut" James. Defendant owned a smooth blade knife, which the police recovered. The knife, which had blood stains on it, was consistent with the weapon used to kill James and Connie. The police also recovered a pair of blue pants from defendant's home. The pants had a type A blood stain on them, the same blood type as Connie. Defendant's father claimed that the pants were not defendant's, but instead belonged to him and that he was responsible for the stain.
Defendant was charged with two counts of murder, and he was convicted on both. The trial court sentenced defendant to the department of corrections for a term of forty to eighty years. On direct appeal, the second district appellate court affirmed defendant's convictions. Defendant then petitioned for post-conviction relief and for a writ of habeas corpus, both of which were denied.
In 1998, defendant filed a motion for scientific testing under section 116-3 of the Code. At the time of defendant's trial, in 1977, PCR testing was unavailable. Through PCR testing, which is now accepted in the scientific community as a reliable method of DNA testing (see People v. Pope, 284 Ill. App.3d 695, 703, 672 N.E.2d 1321, 1327 (1996)), defendant sought to establish that the blood on the pants could not have come from Connie. Defendant also moved for PCR testing of fingernail scrapings allegedly taken from the victims. He claimed that the testing would establish that any DNA recovered from under the victims' fingernails could not have come from him. The trial court denied the motion on both grounds.
Defendant argues that PCR testing of the blood stains on the pants recovered from his home and of the victims' fingernail scrapings will produce evidence materially relevant to his claim of actual innocence.
Initially, the State responds that this court does not have jurisdiction over defendant's appeal because neither the Illinois Constitution nor the supreme court has provided for the appeal of final orders. Substantively, the State contends that DNA testing of the blood stained pants will not produce new, non-cumulative evidence materially relevant to defendant's assertion of actual innocence. The State claims that even if the blood on the pants did not belong to Cooper, there is sufficient evidence to support defendant's conviction. Finally, the State argues that defendant has failed to make a prima facie showing that fingernail scrapings were ever taken from the victims and, if they were, that they are still in existence.
Final orders are appealable as of right. In re Marriage of Walters, 129 Ill. App.3d 1040, 1042, 473 N.E.2d 580, 582 (1985). The appealability of an order is determined by its substance, not its form. Branch v. European Autohaus, Ltd., 97 Ill. App.3d 949, 951, 424 N.E.2d 6, 8 (1981). An order is final and appealable if it disposes of the litigation. In re Marriage of Walters, 129 Ill. App. 3d at 1042, 473 N.E.2d at 582.
An order denying a motion for DNA testing which was unavailable at the time of trial terminates a defendant's right to that testing. Under these circumstances, a defendant is left with no additional means of vindication. In order to protect defendant's interests, a review of the trial court's determination is necessary. See Kahle v. John Deere Co., 104 Ill.2d 302, 306, 472 N.E.2d 787, 789 (1984)(Without review, "no court will be able to determine whether the trial judge * * * correctly entered an order dismissing ...