Appeal from the Circuit Court of Winnebago County. No. 93-CF-1174 Honorable Joseph G. McGraw, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Birkett concurred in the judgment and opinion.
Defendant, Patrick A. Pursley, appeals the circuit court order that denied his motion for post-conviction ballistics testing. Defendant has long pursued post-conviction ballistics testing related to the murder of Andrew Ascher,*fn1 even as the relevant statute has changed. At this time, we grant defendant the relief requested and reverse the trial court's denial of his motion for post-conviction ballistics testing and remand for further proceedings.
After a jury trial, defendant was found guilty of first-degree murder (720 ILCS 5/9-1(a)(3) (West 1992)) committed during the course of an attempted armed robbery (720 ILCS 5/8-4 (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 patently 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 See People v. Pursley, No. 2-97-0984 (1999) (unpublished order under Supreme Court Rule 23).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 See People v. Pursley, No. 2-00-0551 (2001) (unpublished order under Supreme Court Rule 23).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 next appealed from a judgment by the trial 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 argued that section 116-3 permitted ballistics testing under the Integrated Ballistics Identification System (IBIS). This court disagreed, holding that section 116-3 of the Code pertained only to fingerprint and forensic DNA testing. People v. Pursley, 341 Ill. App. 3d 230, 237 (2003). In 2007, the legislature amended section 116-3 of the Code to include IBIS testing. On April 6, 2008, defendant proceeded to file a pro se motion for ballistics testing under the amended section 116-3. At a hearing on October 24, 2008, pro bono counsel appeared on behalf of defendant. The court advised counsel that it sought answers to what specific forensic testing defendant was requesting, whether the evidence in the State's possession was amenable to such testing requested, and what the testing would demonstrate or potentially demonstrate. On January 5, 2009, counsel filed an amended motion for post-conviction testing pursuant to section 116-3 and a response to the court's questions.
On July 31, 2009, the court issued its decision denying defendant's motion. The order indicated that defendant requested IBIS ballistics testing, that such testing was authorized by section 116-3, that such testing was not available at the time of trial, and that the parties disputed whether IBIS testing would produce more probative results under the present circumstances. The court reasoned that even if IBIS testing were used, any potential match would still require hands-on comparison and testing by a ballistics expert. The court agreed that DNA and fingerprint analysis use computerized databases and also require expert comparisons. The court decided that IBIS testing is not comparable to DNA testing, because IBIS testing "provides a course or gross collection of specimens for purposes of later refined testing by a well-qualified expert using stereomicroscopy." The court determined that IBIS testing does not supersede the comparisons performed by ballistics experts, and in defendant's trial, "all the ballistics evidence was tested by firearms experts and nothing was left out." Even with the IBIS testing, defendant's gun could not have been ruled out, because IBIS testing is preliminary and the subsequent hands-on testing would have been needed to make a conclusive match, according to the court. Therefore, the court ruled that IBIS testing would not provide a reasonable likelihood of more probative results, and the evidence would not be materially relevant to defendant's claim of actual innocence.
Defendant timely appealed, arguing that IBIS testing under section 116-3 is mandatory once the conditions of the statute are met. Defendant argues that he has met those conditions. First, the statute provides that a defendant may move for testing if either of two requirements is met: (1) the evidence was not subject to the testing now requested at the time of trial; or (2) the evidence although previously subjected to testing can be subjected to additional testing using a method that was not scientifically available at the time of trial and that provides a reasonable likelihood of more probative results. Defendant argues that the trial court determined that IBIS testing was not available at the time of his trial, thus meeting the first prong of the first requirement. Second, it was undisputed that identity was an issue in defendant's trial and that the evidence to be tested was subject to a chain of custody sufficient to establish that it had not been altered. Finally, two more conditions must be met for the court to order the testing: (1) the result of the testing has the scientific potential to produce new, non-cumulative evidence materially relevant to defendant's assertion of actual innocence even though the results might not completely exonerate him; and (2) the testing requested employs a scientific method generally accepted within the relevant scientific community. Defendant argues that the second condition was not in dispute and that the trial court erred in its application of the first condition. Defendant argues that IBIS testing would potentially produce materially relevant evidence by placing both the test rounds and evidence from the crime scene into the IBIS system to determine if they would be considered a high-confidence or low-confidence match with each other. In addition to being compared to the test rounds, crime scene evidence could be compared to evidence from other crimes that have been entered into the database. According to defendant, IBIS testing could reveal that ballistics evidence from the crime scene might match a weapon that was used in a crime after defendant was incarcerated, which could be exonerating evidence as the State heavily relied upon the ballistics evidence produced at trial.
We review de novo a trial court's ruling on a motion under section 116-3 of the Code because the trial court's decision is based upon its assessment of the pleadings and trial transcripts rather than the credibility of any witnesses. Pursley, 341 Ill. App. 3d at 234. As stated, the trial court determined that IBIS testing would not provide a reasonable likelihood of more probative results and that any evidence obtained from the use of IBIS would not be materially relevant to defendant's claim of actual innocence. Defendant argues that these findings by the trial court were erroneous because it needed to consider only whether an IBIS search had the potential to produce new, non-cumulative evidence materially relevant to defendant's assertion of actual innocence even if the evidence would not completely exonerate him. The court, defendant argues, need not have considered whether the use of IBIS would provide a reasonable likelihood of more probative evidence.
Resolution of defendant's appeal requires us to interpret the language of section 116-3 of the Code. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Id. at 235. The language used by the legislature is the best indicator of legislative intent, and it must be given its plain and ordinary meaning. Id. When the terms used by the legislature are clear and unambiguous, it is not necessary to resort to other aids of construction. Id.
The current version of section 116-3 provides:
"Motion for fingerprint, Integrated Ballistic Identification System, 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, Integrated Ballistic Identification System, or forensic DNA testing, including comparison analysis of genetic marker groupings of the evidence collected by criminal justice agencies pursuant to the alleged offense, to those of the defendant, to those of other forensic evidence, and to those maintained under subsection (f) of Section 5-4-3 of the ...