Appeal from the Circuit Court of Cook County. No. 87 CR 3858 Honorable Thomas M. Davy, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
Following a jury trial, defendant Anthony Jones was found guilty of murder and aggravated battery. Jones was sentenced to an extended term of 80 years' imprisonment for the murder and a concurrent term of 5 years for the aggravated battery. The judgments were affirmed on direct appeal in an unpublished order. People v. Jones, 187 Ill. App. 3d 1123 (1989). Jones has sought post-conviction relief numerous times pursuant to the Post Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)). His most recent appeal from the trial court's dismissal for post-conviction relief was denied by this court on March 30, 2001. His petition for rehearing was denied on April 24, 2001. People v. Jones, 321 Ill. App. 3d 515, 747 N.E.2d 1074 (2001). Jones now appeals the trial court's denial of his pro se motion for forensic testing not available at the time of trial (see 725 ILCS 5/116-3 (West 2000)). He contends that the results of the testing would be materially relevant to his claim of innocence and that he provided the trial court with documentation that the evidence was in the custody of the State.
Only the facts pertinent to this appeal, as stated in our 1989 decision, will be repeated here.
On September 26, 1986, the police found the body of 93-year-old Estella Small on her bedroom floor, with a knife embedded in her chest. Small's torn nightgown was covered in blood and her bedroom was in disarray. Sixty-one-year-old Dorothy Hill testified that she had been living with Small for approximately two years, working as her housekeeper and caregiver. At the time of the incident, the defendant, Small's great-grandson, was also living in the house. Hill testified that on the day of the crime, the defendant assaulted her and she (Hill) escaped from the house and retreated to a neighbor's home where she called the police. Before the police arrived, Hill, along with other neighbor witnesses, went to a window of the victim's house and called for the victim. They heard the victim mumble but were unable to make out what she was saying, because the defendant was making loud noises which sounded like a dog howling. The police arrived and knocked on the door of Small's house for approximately five minutes. The officers heard barking and howling noises coming from the house. They eventually entered the house and found the victim on the floor of a bedroom with a knife in her chest. The officers located the defendant and, after a struggle, the defendant was subdued, handcuffed and arrested.
Jones's defense at trial was that he left the house that morning and when he returned he heard fighting and screaming. He ran upstairs and saw Hill with a knife in her hand in the doorway of the victim's bedroom. Hill ran into her own bedroom and closed the door. When the defendant saw his great-grandmother covered in blood, he knocked down Hill's bedroom door and assaulted her. Hill ran outside, where defendant continued to assault her. Jones then ran back in the house to help the victim.
The jury found Jones guilty of the murder of his great-grandmother, Estella Small, and guilty of the aggravated assault of Dorothy Hill. The court sentenced Jones to an extended term of 80 years in the Illinois Department of Corrections for murder and a concurrent 5-year sentence for the aggravated battery. On August 30, 1999, defendant filed a motion for forensic testing not available at time of trial regarding actual innocence. Specifically, his motion alleges that the key issue at trial was the identity of the perpetrator. He also alleges that the murder weapon, a knife that was embedded in the victim's body, had been subject to a sufficient chain of custody. He further argues that the result of the DNA testing has the scientific potential to produce new, non-cumulative evidence relevant to his assertion of actual innocence. On August 24, 2000, the trial court denied his motion. The trial court did not address whether identity was at issue at trial. The court ruled that the defendant's motion failed to establish a prima facie case relating to the chain of custody of the evidence he seeks to have tested. Jones now appeals the denied of his motion.
A trial court's ruling on a motion brought pursuant to section 116-3 of the Illinois Code of Criminal Procedure of 1963 is reviewed by this court de novo. People v. Hockenberry, 316 Ill. App. 3d 752, 755, 737 N.E.2d 1088 (2000). Our review is de novo because the trial court's decision regarding such a motion is not based upon its assessment of the credibility of the witnesses but on its review of the pleadings and the trial transcripts. Hockenberry, 316 Ill. App. 3d at 755.
The statute provides the following:
"§ 116-3. Motion for fingerprint or forensic testing not available at trial regarding actual innocence.
(a) A defendant may make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint or forensic DNA testing on evidence that was secured in relation to the trial which resulted in his or her conviction, but which was not subject to the testing which is now requested because the technology for the testing was not available at the time of trial. Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that :
(1) identity was the issue in the trial which resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, ...