Appeal from the Circuit Court of Winnebago County. 93-CF-1174 Honorable Richard W. Vidal, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
After a jury trial, defendant, Patrick Pursley, was found guilty of first-degree murder (720 ILCS 5/9--1(a)(3) (West 1992)). Defendant was sentenced to natural life in prison. On direct appeal, this court affirmed defendant's conviction and sentence. See People v. Pursley, 284 Ill. App. 3d 597 (1996). In July 1997, defendant filed a petition for post-conviction relief under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1996)). The trial court dismissed defendant's petition as frivolous and without merit and this court affirmed the trial court's dismissal. See People v. Pursley, No. 2-- 97--0984 (1999) (unpublished order under Supreme Court Rule 23). Thereafter, in March 1999, defendant filed a second post-conviction petition, which was also dismissed. This court affirmed the trial court's dismissal of defendant's second petition for post-conviction relief. See People v. Pursley, No. 2--00--0551 (2001) (unpublished order under Supreme Court Rule 23).
Defendant now appeals from a judgment by the circuit court denying his motion for ballistics testing pursuant to section 116--3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116--3 (West 2000)). Specifically, defendant argues that section 116--3 permits ballistics testing under the Integrated Ballistics Identification System (IBIS). We affirm.
The facts relevant to this appeal are as follows. Becky George testified that she had been Andy Ascher's girlfriend. On April 2, 1993, at around 10 p.m., she and Ascher were parked in front of her brother's condominium when a man opened the driver's door where Ascher was sitting. The man pointed a gun at them and asked for money. Becky then heard two "noises that were like pops" and Ascher slouched down.
The police found two cartridge casings outside the vehicle in which Ascher was shot. Also recovered were two bullets, one from the dashboard of the vehicle and the other from beneath Ascher's shoulder. After an anonymous tip, the police searched the apartment shared by defendant and his girlfriend and seized a 9-millimeter Taurus semiautomatic handgun. Defendant was charged with shooting and killing Ascher while committing an armed robbery.
At trial, Daniel Gunnell, a specialist in firearm and tool mark identification for the Illinois State Police, testified for the State. Using the same type of cartridges found at the scene of the crime, Gunnell test fired two shots with defendant's Taurus handgun. Gunnell then compared his test firings to the recovered cartridges and bullets. Gunnell concluded that the two recovered cartridges had been fired by the Taurus handgun "to the exclusion of all others." With respect to the bullets, Gunnell also concluded that they had been fired by the Taurus gun "to the exclusion of all others."
Mark Boese, an expert in patterned impression evidence employed by Bri-Mar International Laboratories, testified for the defense. After examining the cartridges and bullets from the crime scene, as well as Gunnell's test firings, he test fired the Taurus gun. Boese concluded that the bullets had probably been fired by a 9-millimeter Taurus gun, but did not conclude that it was the one in evidence. Although Boese could not exclude the recovered Taurus gun as having fired the bullets, he did not feel he had sufficient correspondence of impressions to declare a match.
The jury found defendant guilty of first-degree murder and he was sentenced to natural life in prison. After exhausting all other forms of remedy, defendant filed a pro se motion for forensic testing pursuant to section 116--3 of the Code. Defendant requested, inter alia, that the Taurus handgun, as well as the recovered cartridges and bullets, be subjected to ballistics testing under IBIS.
The State filed a motion to dismiss arguing, inter alia, that section 116--3 does not pertain to ballistics testing. The trial court granted the State's motion to dismiss, finding that (1) defendant's claim was barred by res judicata; (2) section 116--3 pertains to fingerprints and DNA testing but not to ballistics; (3) IBIS is not a new test but a new system for cataloging ballistics information; (4) Gunnell was definite in his ballistics comparison whereas Boese's expert opinion was inconclusive; and (5) application of the IBIS would not produce new, non-cumulative evidence. Defendant's appeal timely followed.
On appeal, defendant argues that the court erred in denying his motion for forensic testing pursuant to section 116--3 of the Code. It is defendant's position that section 116--3 applies to ballistics testing and that he has fulfilled the prerequisites of the statute. Defendant contends that, if the two cartridges and bullets from both the crime scene and the Taurus handgun are analyzed under IBIS, the results may demonstrate that his Taurus gun was not the weapon used in the shooting. According to defendant, the computer may not find a match with his gun, or may indicate a match with another Taurus gun.
The State responds that defendant's section 116--3 motion is barred by res judicata or, in the alternative, that defendant has failed to present a prima facie case that IBIS testing should be allowed. The State also moves to strike two IBIS articles appended to defendant's brief. Arguing that they were not considered by the trial court and are not part of the record, the State objects to defendant's citation to these articles in his brief.
This case hinges upon the proper scope of section 116--3, which provides:
"Motion for fingerprint or forensic testing not available at trial ...