People v. Barrow ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Barrow, 2011 IL App (3d) 100086Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RONALD BARROW, Defendant-Appellant.
District & No. Third District
Docket No. 3-10-0086
Filed September 7, 2011
Rehearing denied September 26, 2011
Held In an appeal from the denial of defendant’s motion under section 116-3
(Note: This syllabus of the Code of Criminal Procedure for scientific testing of various items
constitutes no part of of physical evidence admitted in his 1985 trial for murder and other
the opinion of the court offenses, the appellate court affirmed the denial of defendant’s requests
but has been prepared for testing of a seat cushion, the victim’s clothes and his shoes and it held
by the Reporter of that allowing the State to call a witness at the hearing on the motion was
Decisions for the not error.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of La Salle County, No. 84-CF-74; the
Review Hon. Cynthia M. Raccuglia, Judge, presiding.
Judgment Affirmed.
Counsel on Allen H. Andrews (argued), of State Appellate Defender’s Office, of
Appeal Springfield, for appellant.
Brian Towne, State’s Attorney, of Ottawa (Terry A. Mertel and Justin A.
Nicolosi (argued), both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Schmidt and Wright concurred in the judgment and opinion.
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.
¶2 FACTS
¶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
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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 to 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.
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¶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 postconviction 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 postconviction 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’s. The trial court dismissed
O’Berto’s amended postconviction 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.
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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 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 trial. The State objected to Barrow’s requests for further testing of
the seat cushion, O’Berto’s clothes, Barrow’s shoes, and the shoe impressions on the
plywood. The State had no objections to the requests to further test the bloodstain on
Barrow’s shoe or to submit the fingerprints or projectile to the appropriate databases.
¶ 13 A hearing ensued on Barrow’s motion. The State presented William Anselme as a
witness. He was a forensic biologist who conducted DNA tests at an ISP laboratory. He
testified as follows. He briefly reviewed the original lab reports concerning the cushion
which indicated an initial examination had been performed on it. Anselme assumed it had
been examined for blood, body fluids and hair. There was no finding of blood in the reports
and he was not certain any blood testing was done in 1984, although the reports indicated
the cushion was examined for “biology.” He viewed the cushion the day of the hearing but
did not perform a laboratory examination of it. He saw a stain around the bullet hole that
could be blood but did not see anything else he would test. In Anselme’s opinion, only
O’Berto’s blood would be found on the cushion, which would not be probative of who
murdered him. He admitted he was not an expert at identifying stains on pieces of evidence.
If this case were new, he would defer testing of the cushion unless he had evidence that the
perpetrator had bled or left DNA on the cushion from a struggle. He considered it possible
that another person’s DNA would be on the cushion but that it would not necessarily be
linked to the murder and could be from anyone who had handled or used the cushion. If he
were to test the cushion, he would test random areas of it.
¶ 14 Anselme also expressed reservations about testing O’Berto’s clothes. He explained that
because of its huge workload, the ISP lab refuses to test all the evidence submitted to it by
the police. According to Anselme, if this case were new, the lab would not accept or test
O’Berto’s clothes unless it had information that the perpetrator had bled, for example, from
a struggle at the scene. Without such information, test results would not be probative.
Anselme also expressed concerns that he would be unable to identify what stains on
O’Berto’s clothes would be from a suspect and which would be from O’Berto, although he
acknowledged that he had not examined O’Berto’s clothes for stains before the hearing. He
stated such an examination would be time consuming, expensive, and could be like looking
for a needle in a haystack. He would need help identifying whether any stains had
evidentiary value. The ISP lab employed blood spatter experts and people who would be able
to examine the clothes and cushion to determine whether there were any stains with
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evidentiary value.
¶ 15 The trial court ordered testing of the items to which the State had not objected, including
DNA testing of the bloodstain on Barrow’s shoe and submission of the fingerprints and
bullet to the databases. The State agreed to search for hair samples that had been submitted
for testing at the time of trial. The trial court denied Barrow’s request for testing of the seat
cushion and O’Berto’s clothes but stated it would reconsider the requests if Barrow could
offer specifics concerning what probative value testing of the items would produce. The trial
court also denied Barrow’s request for further testing of the shoes, finding the requested
testing was not available under the statute. Barrow filed a motion to reconsider, which the
trial court denied. In this motion, Barrow argued that testing on the shoes by his expert, a
former product development manager of the manufacturer who had agreed in 1984 to
examine the shoes, could establish that the arc damage on one of his shoes was a
manufacturing defect. Barrow also argued the State contended at trial that a struggle had
occurred at the scene. He points to Wrona’s testimony, the taped conversation he had with
Wrona, and the State’s closing argument as support for his argument. The trial court denied
the motion to reconsider. Barrow appealed the denial of his motion for section 116-3 testing.
¶ 16 ANALYSIS
¶ 17 There are three issues for our consideration on appeal: whether the trial court erred when
it allowed the State to offer a witness at the section 116-3 hearing; whether the trial court
erred when it denied Barrow’s section 116-3 motion for testing of the seat cushion and
O’Berto’s clothes; and whether the trial court erred in denying Barrow’s request for further
testing of his shoes.
¶ 18 We begin with the first issue, whether it was error for the trial court to allow the State
to present a witness at the section 116-3 hearing. Barrow argues that the presentation of
witnesses is not contemplated by the statute and that the trial court’s decision to allow the
State to call a witness at the section 116-3 hearing was in error. He asserts that the statute
discusses pleadings, not witnesses, and thus its plain language prohibits the use of witnesses
in determining a motion. He submits that prior interpretations of the statute consistently
maintain that courts should not expand it beyond its plain language.
¶ 19 Section 116-3 is entitled, “Motion for fingerprint, Integrated Ballistic Identification
System, or forensic testing not available at trial regarding actual innocence.” It states:
“(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
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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 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 interest 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 even though the results may not completely exonerate the defendant;
(2) the testing requested employs a scientific method generally accepted within
the relevant scientific community.
(d) If evidence previously tested pursuant to this Section reveals an unknown
fingerprint from the crime scene that does not match the defendant or the victim, the
order of the Court shall direct the prosecuting authority to request the Illinois State
Police Bureau of Forensic Science to submit the unknown fingerprint evidence into the
FBI’s Integrated Automated Fingerprint Identification System (AIFIS) [sic] for
identification.” 725 ILCS 5/116-3 (West 2008).
¶ 20 The cardinal rule of statutory construction is to ascertain and give effect to the
legislature’s intent. People v. Savory, 197 Ill. 2d 203, 212 (2001). The language of the statute
is the best indicator of legislative intent and it must be given its plain and ordinary meaning.
Savory, 197 Ill. 2d at 212-13. A court should not read into a statute limitations that the
legislature did not choose to include. People v. McClure, 218 Ill. 2d 375, 382 (2006). We
review issues of statutory construction de novo. People v. Whitney, 188 Ill. 2d 91, 98 (1999).
¶ 21 As support for his argument that the use of witnesses at a section 116-3 hearing is not
permitted, Barrow points to other decisions in which section 116-3 was at issue and their
determination that de novo review is appropriate when reviewing the denial of a defendant’s
request for testing. In People v. Hockenberry, 316 Ill. App. 3d 752, 755 (2000), and People
v. Pursley, 341 Ill. App. 3d 230, 234 (2003), the courts stated that de novo review is
appropriate when reviewing a trial court’s ruling on a section 116-3 motion because the trial
court’s decision is based upon its review of the pleadings and the trial transcripts and is not
based upon its assessment of witness credibility. According to Barrow, because review is
based on the pleadings, it necessarily follows that calling witnesses is improper.
¶ 22 Barrow distinguishes People v. Gibson, 357 Ill. App. 3d 480, 484 (2005), where the
defendant testified at a section 116-3 hearing on the grounds that the State did not object to
his testimony. However, whether the State objected does not address the question of whether
it was permissible under the statute to call a witness. There is nothing in the plain language
of the statute that prohibits the use of witnesses. Other courts that have construed the statute
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have not employed a restrictive interpretation. In People v. Bailey, 386 Ill. App. 3d 68, 72
(2008), the court determined that the language of the statute did not limit the number of
motions for testing that a defendant could file and held that the defendant’s second section
116-3 motion was permissible. The reviewing court noted that “ ‘[i]t is not the prerogative
of this court to read into the statute limitations that the legislature chose not to include.’ ”
Bailey, 386 Ill. App. 3d at 72 (quoting People v. Rokita, 316 Ill. App. 3d 292, 303 (2000)).
In People v. Henderson, 343 Ill. App. 3d 1108, 1115 (2003), the reviewing court determined
that section 116-3 does not include language evincing a legislative intent to impose a time
limit for filing a motion for forensic testing. In People v. Travis, 329 Ill. App. 3d 280, 285
(2002), the reviewing court expressed that limited discovery on chain-of-custody issues may
be ordered by the trial court when appropriate.
¶ 23 In accord with other interpretations of the statute, we conclude that the statute does not
prohibit the use of witnesses, although it does not expressly permit the use. Moreover, the
statute’s requirement that the defendant establish a prima facie case and that the court
determine both that the testing result has the “scientific potential” to produce evidence
relevant to the defendant’s innocence and that the testing “employs a scientific method
generally accepted” suggests that the use of witnesses would assist both the defendant in
sustaining his burden and the trial court in making its determinations. 725 ILCS 5/116-3(c)
(West 2008). Here, the witness, Anselme, testified whether the requested testing had the
scientific potential to produce relevant evidence as to Barrow’s claim of actual innocence
and the ability of the lab to perform the testing. Under a reasonable interpretation of section
116-3, we find that the State was not precluded from presenting him as a witness and that
the trial court did not err in allowing Anselme to testify.
¶ 24 The next issue for our consideration is whether the trial court erred when it denied
Barrow’s section 116-3 motion for testing of the seat cushion and O’Berto’s clothes. Barrow
argues that because he established a prima facie case under the statute, the trial court should
have granted his request for testing of the cushion and clothes. He submits that the trial court
improperly considered whether there would be anything to test on the items, rather than
whether the tests would produce evidence materially relevant to his claim of innocence.
¶ 25 To successfully bring a motion under the statute, the evidence to be tested must not have
been subjected to the now-requested testing at the time of trial, or if it was tested, it is
capable of additional testing using a previously unavailable method. 725 ILCS 5/116-3(a)
(West 2008). To be entitled to testing, the defendant must present a prima facie case that
identity was at issue at trial and an adequate chain of custody has been established. 725 ILCS
5/116-3(b) (West 2008). A trial court’s ruling on a section 116-3 motion is reviewed de
novo. Hockenberry, 316 Ill. App. 3d at 755.
¶ 26 At the time of Barrow’s original trial, DNA testing was not available and the shoes and
plywood had not been submitted to the defense expert for testing. The record indicates that
identity was at issue in Barrow’s original trial and that there was a sufficient chain of
custody of the physical evidence. Thus, we consider that the statute was applicable and that
Barrow established a prima facie case. The next step in the statutory procedure required the
trial court to determine that the result of the testing has the “scientific potential” to “produce
new, noncumulative evidence materially relevant to the defendant’s assertion of actual
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innocence” and the testing employs a method generally accepted in the scientific community.
725 ILCS 5/116-3(c) (West 2008). In making its determination, the court should allow
testing “under reasonable conditions designed to protect the State’s interest in the integrity
of the evidence.” 725 ILCS 5/116-3(c) (West 2008). Here, there is no issue regarding the
integrity of the State’s evidence or that the tests requested by Barrow are generally accepted
in the scientific community. The State challenged, and the trial court agreed, that Barrow did
not demonstrate that testing of the cushion and O’Berto’s clothes would produce evidence
probative to his claim of actual innocence.
¶ 27 Evidence which is materially relevant is evidence which tends to “significantly advance”
a defendant’s claim of actual innocence. Savory, 197 Ill. 2d at 215. “[T]he term ‘actual
innocence’ limits the scope of section 116-3 to allow for scientific testing only where it has
the potential to exonerate a defendant.” People v. Stevens, 315 Ill. App. 3d 781, 785 (2000).
The strength of the State’s evidence is not a hurdle the defendant must overcome to meet the
statute’s requirements. People v. Urioste, 316 Ill. App. 3d 307, 312 (2000). In determining
whether testing would reveal materially relevant evidence, the trial court considers evidence
from the trial and an assessment of the evidence to be tested. Bailey, 386 Ill. App. 3d at 75
(quoting Travis, 329 Ill. App. 3d at 284).
¶ 28 In denying Barrow’s request to test O’Berto’s clothes and the seat cushion, the trial court
stated that it would need some specifics as to what probative value the testing would reveal,
such as evidence of a struggle which would indicate some stains on the evidence could be
the perpetrator’s blood. Barrow submits that the evidence presented in his trial demonstrated
that a struggle ensued at the crime scene and that the State argued as much in its case against
him. He maintains that there is sufficient evidence to establish the likelihood that the
perpetrator’s DNA is on the cushion and O’Berto’s clothing.
¶ 29 Initially, Barrow asserts that his inculpatory statements not be considered in reviewing
whether the testing would further his claim of actual innocence. His assertion should be
rejected. Indeed, his account of the crime to Wrona as evidenced through Wrona’s testimony
and the recording of the conversation demonstrates that no struggle ensued. He stated that
he and his accomplice handcuffed O’Berto immediately upon entry into the house. The crime
scene evidence he points to as indicative of a struggle is reasonably explained consistent
with his account to Wrona. The bedroom was ransacked in an attempt to find money and
other valuables. The living room chair that was minimally out of place could have been
moved when O’Berto was dragged to the basement. O’Berto’s sock found in the dining room
may have slipped off when he was dragged downstairs. Moreover, the State did not rely on
evidence of a struggle in prosecuting Barrow, despite its references to a struggle in closing
argument. In presenting its case, the State relied heavily at trial on Barrow’s own account
of the crime as offered through Wrona’s testimony and the overhear of Wrona and Barrow’s
conversation about the murder.
¶ 30 Barrow also challenges the trial court’s assessment of Anselme’s testimony. His
characterization of the testimony is that Anselme did not say there were no useful stains but
that he could not identify them. According to Barrow, the trial court should have ordered
testing rather than mistakenly accepting Anselme’s testimony that the clothes and cushion
had no evidentiary value. Barrow’s argument is misplaced. The statute does not provide a
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general means to discover evidence but rather an avenue to test targeted items that have the
potential to provide materially relevant evidence as to a defendant’s claim of actual
innocence. People v. Johnson, 205 Ill. 2d 381, 396-97 (2002) (finding DNA test on Vitullo
rape kit had the potential to produce materially relevant evidence); Hockenberry, 316 Ill.
App. 3d at 759 (DNA testing of samples recovered from defendant and victim would be
“materially relevant” to defendant’s claim of actual innocence); People v. Henderson, 343
Ill. App. 3d 1108, 1121-22 (2003) (ordering testing of bloodstain on defendant’s pants and
swabs in rape kit).
¶ 31 Here, as provided by Anselme’s explanatory testimony, neither the cushion nor the
clothes reached even the low standard for testing. Anselme opined that the seat cushion may
yield DNA evidence of anyone who ever handled it and that such DNA would not
necessarily be linked to the crime. His cursory examination of the cushion revealed blood
around the bullet hole which he reasonably assumed would be the victim’s blood. He did not
see any other stains that he would normally test. In discussing testing of O’Berto’s clothes,
Anselme indicated that he could not differentiate what stains, if any, were from the
perpetrator as opposed to the victim, and that it would be time consuming and expensive to
test every stain. Anselme stated that the lab generally would refuse to test such items without
information that a suspect had bled, such as when a crime involved a struggle. As discussed
above, the evidence does not support the occurrence of a struggle. In addition, Barrow told
Wrona that he wore gloves during the entire commission of the crime; thus, it is unlikely his
DNA would be on items he handled, including the cushion and O’Berto’s clothes.
¶ 32 The absence of Barrow’s DNA on the items sought to be tested would not be materially
relevant to his claim of actual innocence, particularly in light of the overwhelming evidence
of his guilt. Barrow’s admissions, which recount specific details of the crime, as well as the
circumstantial evidence placing him in the LaSalle-Peru area at the time the crime occurred,
constituted the majority of the case against him. Any physical evidence from the items that
Barrow seeks to have tested would not significantly advance his claim of actual innocence.
Savory, 197 Ill. 2d at 215 (section 116-3 motion denied where physical evidence played
“minor” role in case against defendant); Bailey, 386 Ill. App. 3d at 76-77 (request for section
116-3 testing denied where majority of case was based on defendant’s confession and
knowledge of the crime scene); but see Henderson, 343 Ill. App. 3d at 1121-22 (testing
ordered in spite of overwhelming evidence of guilt because results favorable to defendant
would significantly advance his claim of actual innocence). The trial court did not err when
it denied Barrow’s request for testing of the seat cushion and O’Berto’s clothes.
¶ 33 The final issue we must determine is whether the trial court erred in denying Barrow’s
request for further testing of the shoes. Barrow argues that the trial court should have ordered
testing of his shoes. He acknowledges that testing was available at the time of his trial but
submits that the items were not tested. He further concedes that the testing he requests is not
new technology that was unavailable at the time of trial but submits that the shoes were not
examined because his defense counsel did not refer them for testing. He maintains that
allowing testing of the shoes would conform to the purpose of the statute and would be
probative of his claim of actual innocence.
¶ 34 The statute provides for the “performance of fingerprint, Integrated Ballistic
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Identification System, or forensic DNA testing, including comparison analysis of genetic
marker groupings of the evidence collected by criminal justice agencies” on evidence which
was “not subject to the testing which is now requested at the time of trial.” 725 ILCS 5/116-
3(a) (West 2008). Section 116-3 provides for limited forms of fingerprint, forensic DNA, and
ballistic testing. People v. Pursley, 407 Ill. App. 3d 526, 528 (2011).
¶ 35 The trial court denied Barrow’s request for testing on the shoes because the statute does
not allow the requested tests. The statute provides for the “performance of fingerprint,
Integrated Ballistic Identification System, or forensic DNA testing.” Barrow did not request
any of those specific tests in his motion but rather sought an analysis comparing the soles
of his shoes to the plywood impression. The plain language of the statute does not provide
for the test Barrow is requesting. In Pursley, 341 Ill. App. 3d at 234-35, the reviewing court
considered whether ballistic testing was covered under the version of the statute in effect at
that time. Based on the plain language of section 116-3, the reviewing court held that the
statute indicated an intent by the legislature to restrict testing to those based on genetic
material. Pursley, 341 Ill. App. 3d at 235. The Pursley court noted, however, that the statute
may eventually include additional forensic tests, such as ballistics testing. Pursley, 341 Ill.
App. 3d at 235. The statute was later expanded to include ballistics testing but does not
provide for any other types of tests. 725 ILCS 5/116-3 (West 2008); Pursley, 407 Ill. App.
3d at 528. We find Barrow was not entitled to additional testing of his shoes and the
plywood. The trial court properly denied his request.
¶ 36 Morever, the expert Barrow is seeking to have examine the shoes now is the same expert
he contacted in 1985 during the trial. It appears that the shoes were scheduled to be
examined when Barrow’s trial attorney rested without presenting a defense. The tests sought
by the defense were never performed as supported by affidavits in the record. However, the
State’s expert examined and compared Barrow’s shoes with the impressions on the plywood
and presented his findings at trial. Hunton testified that the size and the pattern of the shoe’s
sole “could have made the footwear impressions” in the plywood recovered from O’Berto’s
basement. Because the shoes were previously subjected to some testing and Barrow does not
assert that they can be subjected to further testing that was unavailable at the time of trial,
the trial court did not err in denying Barrow’s request for testing of the shoes on this ground
as well.
¶ 37 In his direct appeal, Barrow argued that his trial counsel was ineffective for failing to
present a defense, part of which included Barrow’s intention to call a witness to testify that
the shoe impression found at the scene could not be made by the shoes found in his house.
Barrow, 133 Ill. 2d at 246-47. The supreme court rejected Barrow’s ineffective assistance
claim, finding, in part, that even if he presented evidence that weakened the testimony
regarding the shoe impression match, “the evidence would [not] have had an appreciable
effect on the jury.” Barrow, 133 Ill. 2d at 250. Based on that ruling, it follows that additional
testing on the shoes would not produce materially relevant evidence that significantly
advances Barrow’s claim of actual innocence. As noted above, the physical evidence was
a small part of the case against Barrow, which focused primarily on his admissions to
Wrona. More significantly, despite Barrow’s claims in his direct appeal, the witness he
sought then, and now, to test the shoes did not conclude that Barrow’s shoes could not have
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made the impression on the plywood since he never examined the shoes. The record
indicates that the witness suggested that the unusual arc mark on the sole of one shoe could
have been a manufacturing defect, not that it was, in fact, a manufacturing defect.
¶ 38 In summary, we hold that the trial court did not err in allowing the State’s use of a
witness at the section 116-3 hearing, or in denying Barrow’s requests for testing of the seat
cushion, victim’s clothes, and his shoes.
¶ 39 For the foregoing reasons, the judgment of the circuit court of La Salle County is
affirmed.
¶ 40 Affirmed.
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