People v. Hockenberry

• Decision Date: 13 October 2000
• Docket Number: No. 2-99-0744.,2-99-0744.
• Citation: 250 Ill.Dec. 111,316 Ill. App.3d 752,737 N.E.2d 1088
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard P. HOCKENBERRY, Sr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

737 N.E.2d 1088

316 Ill. App.3d 752

250 Ill.Dec. 111

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard P. HOCKENBERRY, Sr., Defendant-Appellant.

No. 2-99-0744.

Appellate Court of Illinois, Second District.

October 13, 2000.

Richard P. Hockenberry, Sr., Chicago, appellant pro se.

Gary W. Pack, State's Attorney, Woodstock (Martin P. Moltz, John X. Breslin, and Rita Kennedy Mertel, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice GEIGER delivered the opinion of the court:

The defendant, Richard P. Hockenberry, Sr., appeals from the order of the circuit court of McHenry County denying his motion pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 1998)) for forensic testing not available at trial.

In 1988, the defendant was charged with aggravated criminal sexual assault of his ex-wife (Ill.Rev.Stat.1987, ch. 38, par. 12-14(a)(2) (now 720 ILCS 5/12-14(a)(2) (West 1998))) and home invasion (Ill.Rev.Stat. 1987, ch. 38, par. 12-11(a)(2) (now 720 ILCS 5/12-11(a)(2) (West 1998))). At trial, the defendant testified that he had been in his ex-wife's home at the time alleged, but he claimed that he entered the home with her consent and that he did not sexually assault her. The jury convicted the defendant of both charges, and the court sentenced him to consecutive 12-year prison terms. This court affirmed the judgment. People v. Hockenberry, No. 2-89-0779, 214 Ill.App.3d 1115, 190 Ill.Dec. 612, 621 N.E.2d 1065 (1991) (unpublished order under Supreme Court Rule 23).

In 1999, the defendant filed a pro se motion for forensic DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/116-3 (West 1998)). The petition alleged the following. During the investigation of his criminal case, "samples" from which DNA could be obtained were collected from the defendant and his ex-wife. Also, because the defendant was convicted of a sex offense, the Illinois State Police maintained his DNA profile. The defendant further alleged that the identity of the perpetrator was an issue at his trial. The DNA testing the defendant now sought had been available in 1989; however, the State's expert witness during the trial testified that no laboratories in Illinois were conducting DNA testing at that time. The defendant alleged that the samples were still in the possession of a police crime laboratory and had not been replaced, altered, or tampered with in any way. The defendant alleged that the requested DNA testing was relevant to his assertion of innocence.

The trial court denied the defendant's motion, explaining that "[d]efendant's identity was not an issue in his trial and the defendant has provided no prima facie evidence thereof." The court denied the defendant's motion to reconsider, and he timely appealed. On appeal, the defendant argues that the denial of his motion must be reversed because the trial court erred in ruling that identity was not at issue at trial.

The State asserts that this court lacks jurisdiction to hear this appeal because the denial of the defendant's motion was not a final judgment. However, we agree with People v. Savory, 309 Ill.App.3d 408, 411-12, 242 Ill.Dec. 731, 722 N.E.2d 220 (1999), appeal allowed, 188 Ill.2d 578, 246 Ill.Dec. 129, 729 N.E.2d 502 (2000), that the denial of a section 116-3 motion is final and immediately appealable. The denial of a section 116-3 motion ends a distinct proceeding on the merits by holding that the defendant has no right to the relief he seeks. See generally Flores v. Dugan, 91 Ill.2d 108, 112, 61 Ill.Dec. 783, 435 N.E.2d 480 (1982) (final order is one that determines litigation on the merits). Without a right to appeal, the defendant would be without an opportunity to seek review of the trial court's determination. Savory, 309 Ill.App.3d at 411-12, 242 Ill. Dec. 731, 722 N.E.2d 220. We turn to the merits. The defendant's appeal hinges on the application of section 116-3, which provides:

"(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.

(c) The trial court shall allow the testing under reasonable conditions designed to protect the State's interests in the integrity of the evidence and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence;

(2) the testing requested employs a scientific method generally accepted within the relevant scientific community." 725 ILCS 5/116-3 (West 1998).

The defendant argues that, contrary to the court's ruling, identity was the issue at his trial. The defendant reasons that, to obtain a conviction on either charge, the State had to prove the defendant's "identity as the perpetrator" and not merely "the personal identification of a given criminal defendant."

When reviewing a trial court's ruling on a motion brought pursuant to section 116-3 of the Code, the appropriate standard of review is de novo. Savory, 309 Ill.App.3d at 412, 242 Ill.Dec. 731, 722 N.E.2d 220. Such a standard is appropriate because the trial court's decision on such a motion is necessarily based upon its review of the pleadings and the trial transcripts and is not based upon its assessment of the credibility of the witnesses. Savory, 309 Ill.App.3d at 412, 242 Ill.Dec. 731, 722 N.E.2d 220. Accordingly, the trial court is not in a better position than the reviewing court to decide the merits of the defendant's motion. Savory, 309 Ill. App.3d at 412, 242 Ill.Dec. 731, 722 N.E.2d 220.

In construing section 116-3 of the Code, we are obliged to give the statutory language its plain and ordinary meaning. People v. Stevens, 315 Ill.App.3d 781, 784, 248 Ill.Dec. 285, 733 N.E.2d 1283 (2000). The goal of statutory construction is to effectuate the intent of the legislature, which is best demonstrated by the statute's plain language. People v. Frieberg, 147 Ill.2d 326, 345, 168 Ill.Dec. 108, 589 N.E.2d 508 (1992). In determining intent, a court may also consider the reason and necessity of the law, the evil sought to be remedied and the purpose to be achieved. Frieberg, 147 Ill.2d at 345, 168 Ill.Dec. 108, 589 N.E.2d 508.

Section 116-3(b)(1) requires a defendant who seeks DNA testing to present a prima facie case that "identity was the issue" in the trial that led to his conviction. 725 ILCS 5/116-3(b)(1) (West 1998). Customarily, when courts speak of "identity" in a criminal case, they are referring to whether the defendant was indeed the perpetrator or whether somebody else committed the crime. See, e.g., People v. Howard, 303 Ill.App.3d 726, 730-31, 237 Ill.Dec. 172, 708 N.E.2d 1212 (1999); People v. Miller, 254 Ill.App.3d 997, 1012, 193 Ill.Dec. 799, 626 N.E.2d 1350 (1993). We therefore believe that, in order to invoke section 116-3, a defendant must make a prima facie showing that there was an issue at trial as to whether the defendant or somebody else committed the crime.

Initially, we reject the defendant's assertion that the identity of the perpetrator was an issue as to the charge of home invasion. At trial, the defendant acknowledged that he had entered the victim's residence at the time in question. Additionally, the victim testified that the defendant entered the back door of her residence without her consent and that the defendant beat her. The police found that the back door to the victim's residence was broken, corroborating the victim's testimony. In light of such evidence, there was no dispute at trial as to the defendant's identity as the individual who entered the victim's residence. Therefore, DNA testing would not have the potential of establishing the defendant's actual innocence as to the charge of home invasion. We therefore do not believe that the trial court erred in denying the defendant's motion for DNA testing as it related to his conviction of home invasion.

We therefore turn to a consideration of the defendant's conviction of aggravated criminal sexual assault. At trial, the defendant acknowledged that he was present in the victim's residence but denied that he engaged in any sexual act with the victim. However, seminal stains were found on the victim's panties and bed sheet following the alleged offense. Vaginal swabs taken from the victim following the alleged offense also contained the presence of semen. The State's forensic expert conducted testing on the vaginal swabs and stains and testified at trial that the defendant could not be eliminated as the possible source of the seminal material. Given the defendant's denial that he had any sexual contact with the victim, we believe that the identity of the perpetrator was necessarily an issue at trial. The State was obligated to prove that the defendant was indeed the individual who had committed an act of sexual penetration upon the victim.

The State asserts that identity was not an issue in the case because the victim identified the defendant as her attacker. The State also notes that, when the police went to the victim's residence, they found the defendant naked and asleep at the victim's kitchen table. Although such evidence certainly...