Appeal from the Circuit Court of Lake County. No. 96-CF-3449 Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.
¶ 1 Defendant, Louis C. Rozo, appeals from the trial court's denial of his motion for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/116-3 (West 2008)). We affirm in part, reverse in part, and remand for further proceedings.
¶ 2 Following a jury trial, defendant was convicted of two counts of murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)) in the death of Christy Shervanian and sentenced to concurrent extended terms of 75 years in prison. This court vacated one of the convictions and one of the sentences as improperly arising from the same physical act but affirmed the other conviction and sentence. See People v. Rozo, 303 Ill. App. 3d 787 (1999).
¶ 3 In December 2008, defendant filed a motion for DNA testing pursuant to section 116-3 of the Code, seeking: (1) the testing of tissue and/or blood samples that had been found under Shervanian's fingernails but had not been tested before defendant's trial; (2) the testing of previously tested blood samples recovered from a glove found at the murder scene and from defendant's leather jacket "using the current, best practice technology, DNA-STR analysis," which was not used in the prior testing; and (3) the testing of DNA samples of Rudolph Zink, a State witness at defendant's trial, and Bruce Derrickson, Zink's roommate and paramour at the time of Shervanian's murder. According to defendant, these tests would "produce new, non-cumulative evidence materially relevant to his assertion of actual innocence in this case." Defendant further averred that Zink's attorney in a prior criminal matter had information relevant to Zink's commission of perjury at defendant's trial and other information implicating both Zink and Derrickson in Shervanian's murder; defendant asserted that this information could now be accessed because of Zink's death. The trial court denied defendant's motion and his subsequent motion to reconsider, and this appeal followed.
¶ 4 Section 116-3 provides in relevant part:
"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 Unified Code of Corrections, on evidence that was secured in relation to the trial which resulted in his or her conviction, and:
(1) was not subject to the testing which is now requested at the time of trial; or
(2) although previously subjected to testing, can be subjected to additional testing utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results. 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 court 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, ...