Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois, Circuit No. 84--CF--74 Honorable Cynthia M. Raccuglia, Judge, Presiding
The opinion of the court was delivered by: Justice O'brien
JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
Justices Schmidt and Wright concurred in the judgment and opinion.
¶ 1 Defendant Ronald Barrow brought a motion under section 116-3 of the Code of the Criminal Procedure of 1963 (Code) seeking scientific testing of various items of physical evidence admitted against him in his 1985 trial for murder and other offenses relating to the murder. 725 ILCS 5/116-3 (West 2008). The trial court granted the motion in part and denied it in part. He appealed the denials. We affirm.
¶ 3 Defendant Ronald Barrow was charged with murder (Ill. Rev. Stat. 1983, ch. 38, ¶¶ 9- 1(a)(1)(a), (2)(a), (3)), armed robbery (Ill. Rev. Stat. 1983, ch. 38, ¶ 8-2(a)), residential burglary (Ill. Rev. Stat. 1983, ch. 38, ¶ 19-3) and burglary (Ill. Rev. Stat. 1983, ch. 38, ¶ 19-1), for the 1984 murder of Joseph O'Berto in his Cedar Point home. O'Berto was found in the basement with a fatal gunshot wound to his head. A seat cushion had been used to muffle the bullet shot. A piece of plywood with shoe print impressions was also found in the basement near O'Berto's body. The facts of this case are set forth in detail in People v. Barrow, 133 Ill. 2d 226 (1989). We will only repeat those necessary for the issues in this appeal and present the facts that have occurred subsequent to the appeal that are pertinent to our discussion.
¶ 4 The trial record reveals that in pretrial proceedings, Barrow moved for testing of a bloodstain from his shoes seized from his Maryland home two months after the murder, and for ballistics. The trial court granted Barrow's motion and appointed Louis Vitullo as an expert for blood, fibers, body fluids, tissues, fingerprints, and other like matters. The Illinois State Police (ISP) laboratory conducted a number of tests on the physical evidence. The lab reports demonstrated that there was no blood on a suit, raincoat, or gloves seized from Barrow's house. A pair of shoes that were also seized had a bloodstain on the heel of the left shoe. Tests on the seat cushion revealed hairs, fibers, and debris which did not match Barrow's clothes. Tests also indicated that the bullet hole was surrounded by "apparent blood staining." Hairs found on the cushion did not match either O'Berto or Barrow. Fibers on O'Berto's socks, pants and shirt did not match those from Barrow's clothes.
¶ 5 The first lab report on the plywood and Barrow's shoes, dated June 1984, stated that the impressions on the plywood and Barrow's shoes were a similar size and pattern but Barrow's shoes were noticeably more worn than the shoes that made the impression. The report also indicated that Barrow's left shoe showed damage on the sole in the shape of an arc that was not present on the plywood impression. A supplemental report in July 1984 concluded that two of the shoe print impressions could have been made by Barrow's shoes but no positive identification was possible. The test also concluded that Barrow's shoes could not be eliminated as a match. A May 1985 lab report on Barrow's shoes and the plywood stated that "additional examination of [the plywood] using analog/digital image processing revealed no discernible detail unavailable to routine visual examination." The blood spot on Barrow's left shoe was analyzed, which demonstrated that the blood matched O'Berto's and Barrow's same blood type.
¶ 6 Testimony at trial established that O'Berto's bedroom was ransacked and other rooms in the house appeared to have been searched. In the living room, a chair was missing the seat cushion and was moved from its usual position. A gray sock was on the dining room floor. Its mate was found on O'Berto's body, which was discovered lying in a pool of blood. A spent bullet was recovered near the body, along with the plywood. Money and a bank book were missing from the house. The State presented various evidence establishing that Barrow was in the LaSalle-Peru area at the time the murder occurred.
¶ 7 The State's witness, Harold Wrona, who was incarcerated in a Maryland prison with Barrow prior to the O'Berto murder, testified to various incriminating statements Barrow made to him regarding the crime. Wrona stated that Barrow said he whipped, slapped, and beat O'Berto before shooting him. A taped conversation between Wrona and Barrow about the murder, in which Barrow recounted how he committed the crime was played for the jury. In that conversation, Barrow stated that he handcuffed O'Berto immediately upon forcing his way into O'Berto's house and that he wore gloves the entire time he was in the house. He again stated that he whipped and beat O'Berto.
¶ 8 The State offered into evidence the plywood from O'Berto's basement and the shoes recovered from Barrow's home. The State presented Robert Hunton, a forensic scientist with the Bureau of Scientific Services of the Illinois Department of Law Enforcement, as an expert witness. He examined the seat cushion and photographs of the footwear impressions on the plywood. Hunton testified the size and pattern of Barrow's shoes matched two impressions on the plywood. The shoes that made the impressions on the plywood were not well worn while Barrow's shoes were worn and had a damaged sole in that one shoe had an arc mark on it. He could not offer a positive identification. There were other unmatched impressions on the plywood. The left shoe had a bloodstain on its heel which matched both Barrow's and the victim's blood type. An autopsy report entered into evidence concluded that O'Berto died as a result of a gunshot wound his head, that he suffered no other injuries, and had no defensive wounds. The defense rested without presenting a case. In its closing argument, the State suggested that a struggle had ensued at the murder scene while the defense contended that the evidence did not support the occurrence of a struggle.
¶ 9 The jury found Barrow eligible for the death penalty and the trial court sentenced him death for the murder convictions, and to terms of imprisonment of 30 years for armed robbery and 15 years for residential burglary. No sentence was entered on the burglary conviction. Following his convictions, Barrow filed a posttrial motion, arguing his rights to effective assistance and due process were denied. He contended, in part, that his attorney was ineffective for failing to call an expert to exclude his shoes based on a comparison with the impressions found on the plywood. The trial court denied his motion. Barrow filed a direct appeal from his conviction and sentence, in which he argued, in part, that his trial attorney was ineffective for failing to present a defense, and that had his attorney presented a defense, Barrow intended to call a witness who could testify that the shoe impression found at the murder scene could not have been made by the shoes recovered from his house. The supreme court rejected Barrow's ineffective assistance and other claims and affirmed his conviction and sentence. Barrow, 133 Ill. 2d at 286. His death sentence was later commuted to a term of natural life.
¶ 10 In 1991, Barrow filed a post-conviction petition, and in June 1992 and May 1993, he filed motions to obtain temporary custody of his seized shoes and the plywood in order to obtain testing. Barrow submitted that the State's forensics expert at trial, Hunton, testified that one of Barrow's shoe had damage on the sole in the form of an arc, and that if the arc was a manufacturing defect, Barrow's shoe could not have made the impression on the plywood. The State responded that the shoes had already been tested and that trial counsel's failure to introduce expert testimony regarding the testing had been determined on direct appeal not to be ineffective assistance of counsel. In reply, Barrow submitted that the shoes and plywood were never examined. The trial court denied Barrow's motion, finding that the shoes and plywood had been previously examined. Barrow moved for reconsideration and attached to his motion an affidavit from Vitullo, the forensics expert appointed to assist the defense, in which he attested that he did not examine the footprint evidence and that shoe print analysis was beyond the scope of his expertise. Barrow also attached an affidavit from counsel who had been appointed to assist in pretrial proceedings who averred that the defense rested before the shoes could be examined and compared to the plywood.
¶ 11 Barrow filed an amended post-conviction petition in October 1993, pointing to inconsistencies in the testimony of the State's witness, Wrona, regarding Barrow's account of the murder as support for his claims of error. He submits that while he "bragged" to Wrona that he hit and whipped O'Berto, as heard on the overhear, the autopsy concluded the only injury O'Berto received was the gunshot wound to his head. He also highlighted Hunton's trial testimony where he admitted that he could not compare Barrow's seized shoes to the plywood impressions because the shoes at the time of seizure were worn and damaged. Barrow argued his trial counsel was ineffective for failing to offer evidence that the fibers collected from O'Berto's clothes and the seat cushion did not match those from Barrow's clothes, and that prints at the scene did not match Barrow. The trial court dismissed O'Berto's amended post-conviction petition and its dismissal was affirmed on appeal. People v. Barrow, 195 Ill. 2d 506 (2001).
¶ 12 In September 2008, Barrow filed a motion for scientific testing of fingerprint, shoe print, ballistic and deoxyribonucleic acid (DNA) evidence pursuant to section 116-3 of the Code. 725 ILCS 5/116-3 (West 2008). In his motion, Barrow alleged that the sole issue at trial was the perpetrator's identity and that, at the time of trial, the requested evidence had either not been tested or that the requested testing was not yet available. He further alleged that there was a sufficient chain of custody. In his motion, Barrow sought testing on all the blood, hair and saliva found at the scene, and submission to the federal database. He also requested DNA testing of the bloodstain found on his shoe, the seat cushion, and O'Berto's shirt, pants and socks. Barrow further sought to have three unidentified fingerprints from the scene submitted to the Integrated Automated Fingerprint Identification System (IAFIS) and the bullet found at the scene submitted to the Integrated Ballistic Identification System (IBIS). Barrow requested that a defense expert in Michigan be permitted to examine his shoes and to compare them with shoe impressions on the plywood found near O'Berto's body. He also requested that the shoe prints be sent to a shoe print database in England that was not available at the time of ...