The opinion of the court was delivered by: Justice Thomas
Docket No. 92143-Agenda 10-September 2002.
The State has appealed an order of the circuit court of Cook County allowing the motion of defendant, Ronald Kliner, for mitochondrial DNA (mtDNA) testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2000)). For the reasons set forth below, we conclude that the State does not have authority to proceed with this appeal and therefore find that the appeal must be dismissed.
Following a jury trial, defendant, Ronald Kliner, was found guilty of the murder of Dana Rinaldi. Dana had been fatally shot five times in the face and head while seated in her car. Defendant, Michael Permanian and Dana's husband, Joseph Rinaldi, had been charged with the murder. Joseph Rinaldi eventually pled guilty and testified on behalf of the State at the trial of defendant and Permanian. Defendant and Permanian were tried together but before separate juries. At trial, the State presented evidence that Joseph Rinaldi had hired defendant and Permanian to kill his wife.
Defendant waived a jury for his death sentencing hearing. The trial court found defendant eligible for the death penalty on the basis that he committed the murder pursuant to contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder. Ill. Rev. Stat. 1987, ch. 38, par. 9-1(b)(5). After considering evidence in aggravation and mitigation, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death. This court affirmed defendant's conviction and sentence on direct appeal. People v. Kliner, 185 Ill. 2d 81 (1998).
After defendant's conviction and sentence were affirmed on direct appeal, defendant filed a petition for post-conviction relief (725 ILCS 5/122-1 (West 2000)), which the trial court denied during the pendency of this appeal. During the post-conviction proceedings, defendant filed a pro se motion for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2000)). Defendant's pro se motion requested DNA testing of hair evidence, as well as other testing not at issue in this appeal, in an attempt to prove his actual innocence. Attached to defendant's motion were reports from the Illinois State Police Division of Forensic Sciences. These reports reflected that hairs and other materials were observed on the sweater vest, blouse, jeans, leather gloves, sweater jacket, shoes and socks that Dana Rinaldi was wearing when she was shot. In addition, vacuum sweepings taken from the front seat of Dana's car included hairs and other materials. Defendant claimed that mtDNA testing of the hairs would prove that defendant did not murder Dana.
In response, the State noted that prior to trial, defendant had been excluded as a possible donor of the hair found on Dana's clothing. The State further explained that testing was not done on the hairs found within Dana's car because there was no evidence that the shooter ever entered Dana's car. Rather, the evidence indicated that defendant was outside Dana's car when he shot her. For example, all the shell casings were found outside Dana's car. Dana was found seated in the driver's side of her car, slumped over to the passenger side. The State argued that, given the lack of evidence that Dana came into contact with her killer, any mtDNA testing would not be materially relevant to defendant's claim of actual innocence.
On November 20, 2000, the trial court entered a written order denying defendant's motion. With regard to the hair evidence, the trial court held:
"The request for DNA testing on hair samples also is not appropriate under the statute. Assuming arguendo that the technology available today was not available at the time of trial, identification of the donor of the hair found in the vehicle would not be relevant to defendant's innocence. There was no evidence at trial that the killer was ever in the victim's car. Physical evidence and witness testimony showed that the killer approached the victim as she was exiting her car and shot her in the head. There was no opportunity for the killer to leave hair inside her vehicle. Even if donors of hairs found inside the vehicle could be identified, it does not prove that someone else committed the murder. Anyone who had been in the victim's car since it was manufactured could have left hair behind. It does not come close to proving that the defendant is innocent."
On January 3, 2001, defendant filed a motion to reconsider the trial court's order denying mtDNA testing. Defendant's motion claimed that the trial court had failed to address defendant's request to test "certain hairs found in the clutched hand of the victim and on her coat." Defendant further argued that "it is reasonable to conclude that where the hairs found clutched in the hands of the deceased are not those of [defendant], that this would be significant exculpatory evidence and may lead a reasonable trier of fact or reviewing court to the conclusion that [defendant] is innocent of the offense of capital murder."
At the hearing on defendant's motion to reconsider, the State again observed that comparison tests had been performed on the hairs found on Dana's glove. Those tests, which were performed prior to defendant's trial, excluded defendant and Michael Permanian as possible donors.
Following argument, the trial court granted defendant's motion to reconsider and entered an order allowing mtDNA analysis of hairs recovered from Dana's gloves. In entering its order, the trial court stated that:
"Well, when I made my original ruling, I was really considering my impression of the motion and of the evidence in the case that there was hair found in the vehicle and hair found in various places, like they're talking about her sweater vest and on her clothes, and, you know, I know if I looked at my clothes with a microscope, I would find my dog's hair, my children's hair and whoever else's hair. I might have sat in somebody's car, hair from their car. At that point, I did not feel it was provident. However, now that its brought to my attention that there were, in fact, hairs, although, you know, I doubt if its going to be fruitful for the defense ***; however, as we've seen, from the most recent case law and the most recent science that it is certainly not conclusive, and I believe we're talking about a DNA test on essentially one sample of hair, and I think just to be absolutely certain, which is what we are trying to do, we should, in fact, allow the testing of the hair on the leather gloves.
I understand that we don't have any eye witness testimony. I don't know if there was a struggle. My recollection of the evidence was that she was getting out of her car when the attack occurred, and I suppose it could be conceivable that she might ...