Appeal from the Circuit Court of Cook County. No. 70 C 124 Honorable Thomas R. Fitzgerald, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
In 1970, the defendant, Richard Schutz, was convicted of the murder of Cheryl Littlejohn and sentenced to an indeterminate term of 35 to 100 years' imprisonment. His conviction and sentence were affirmed on appeal. See People v. Schutz, 8 Ill. App. 3d 827, 291 N.E.2d 194 (1972). The defendant was released from prison after serving 14 years of his sentence.
On September 14, 1999, the defendant filed a petition pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/ 116-3 (West 1998)) seeking to have deoxyribonucleic acid (DNA) testing performed on certain physical evidence in his murder case.
On August 29, 2000, the circuit court dismissed the petition after being advised by the State that the evidence the defendant sought to have tested had been destroyed.
The defendant appeals, contending that the circuit court erred when it dismissed his petition without first determining if the State had destroyed the evidence in bad faith.
It is not disputed that forensic DNA testing was not available at the time of the defendant's trial in 1970. Effective January 1, 1998, the General Assembly enacted section 116-3, which explains the process defendants must follow to obtain fingerprint or forensic testing not available at trial regarding actual innocence. Pub. Act 90-141, §5, eff. January 1, 1998 (adding 725 ILCS 5/116-3).
Section 116-3 provides in pertinent part as follows:
"(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, replaced, or altered in any
material aspect." 725 ILCS 5/116-3 (West 1998).
In his pro se motion for forensic testing, the defendant alleged that the Cook County sheriff's police gathered the physical evidence and submitted it to the Chicago police department for analysis. At the defendant's bench trial, the State introduced evidence, including blood and sperm samples. Members of the Chicago police department testified as to a number of items of physical evidence, such as oral, anal, vaginal and rectal swabs which were positive for sperm and fingernail clippings from the victim.
The defendant then alleged that the policy of the Chicago police department was to retain all evidence related to murder investigations permanently. He further alleged that he had been informed by the records division of the Chicago police department that a box containing reports and photographs pertaining to his case had been located and that the physical evidence would have been retained by the Chicago police department crime laboratory.
Finally, the defendant alleged that it was later discovered that the defendant's blood type was not found at the crime scene. The defendant did acknowledge that he had given oral and written statements to the police, which he later recanted.
A trial court's ruling on a motion brought pursuant to section 116-3 is reviewed de novo. People v. Henderson, Nos. 1-99-1277, 1-99-3220 cons., ...