Appeal from the Circuit Court of Lake County. No. 87--CF--1848
The opinion of the court was delivered by: Justice Hutchinson
Honorable Stephen E. Walter, Judge, Presiding.
Defendant, John E. Love, appeals the trial court's denial of his motion for forensic testing not available at trial (see 725 ILCS 5/116--3 (West 1998)). He contends that, in presenting his motion, he was denied "a reasonable level of assistance of counsel." We affirm.
In May 1988 defendant was convicted of two counts of home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12--11 (now 720 ILCS 5/12--11 (West 1998))) and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A--2 (now 720 ILCS 5/33A--2 (West 1998))). He was sentenced to 3 concurrent prison terms of 45 years. On direct appeal, this court vacated his conviction of one count of home invasion and affirmed the balance of the judgment. People v. Love, No. 2--88--0642 (1989) (unpublished order under Supreme Court Rule 23). Defendant filed a post-conviction petition (see 725 ILCS 5/122--1 (West 1994)), which the trial court dismissed. On appeal, we affirmed. People v. Love, No. 2--95--0382 (1997) (unpublished order under Supreme Court Rule 23).
In March 1998 defendant filed his motion for forensic testing pursuant to section 116--3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/116--3 (West 1998)). He sought a DNA test of blood that was found at the crime scene. He alleged that such a test was unavailable at the time of trial; the perpetrator's identity was at issue at trial; the blood had not been altered; and a DNA test would establish defendant's innocence. The trial court ordered that defendant had 21 days to file a motion for the appointment of counsel and an affidavit of indigence "if he desire[d] appointment of counsel." Defendant did so, and the court appointed Patrick J. Quilty to represent him. Quilty filed an amended motion that basically restated the allegations in defendant's original motion.
At a status hearing conducted on July 17, 1998, Assistant State's Attorney Donald Morrison said:
"I have conducted an investigation to determine first of all the merits of the defendant's motion and whether or not there is any blood to be tested. There is not. Not only is there no blood to be tested, the blood was destroyed in this case prior to trial. That was the subject of a pretrial motion. It was the subject of an appeal as I understand it. And it was the subject of a *** post-conviction petition."
Quilty stated that Morrison had conveyed that information to him only that day. The court scheduled another status hearing for July 31, 1998. At that hearing, the court asked whether the existence of the blood had been litigated. The following exchange occurred:
"MR. MORRISON [Assistant State's Attorney]: It was litigated in the trial court, it was litigated in the Appellate Court and now it's being attempted to be litigated again. The fact of the matter is the blood is gone. The issue on whether or not forensic testing should be done is moot. There is nothing to be tested.
MR. QUILTY [defendant's attorney]: *** I don't have anything to say. It appears that the State has indicated there is no blood and the statute provides that we have to show a chain of custody and my client believed that there is or there still is blood and we filed a motion based on that.
THE COURT: Well, do we need a factual hearing to determine whether or not there is any blood? Or has that already been factually determined in the trial court and reargued in the Appellate Court?
MR. MORRISON: That fact has been determined.
MR. QUILTY: I believe so, ...