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SECOND DIVISION
November 18, 2003

No. 1-01-1239

JUSTICE BURKE delivered the opinion of the court:

Defendant Charles Dodds appeals from an order of the circuitcourt dismissing, without an evidentiary hearing, his petition forpostconviction relief filed pursuant to the Post-Conviction HearingAct (Act) (725 ILCS 5/122-1 et seq. (West 2000)). Defendant alsoappeals from the same order in which the trial court denied hismotion for a new trial pursuant to section 2-1401 of the Code ofCivil Procedure (Code) (735 ILCS 5/2-1401 (West 2000)). On appeal,defendant contends that the trial court erred in dismissing hispostconviction petition because new DNA evidence establishes thathe was not physically connected to the crime scene in any way and,therefore, demonstrates his actual innocence. Defendant alsocontends that the trial court erred in denying his motion for a newtrial because the State presented false evidence and made falsearguments to the jury. For the reasons set forth below, we reverseand remand.

Defendant was charged with the murders of Shirley Glenn andThomas O'Connor based on events that occurred on February 5, 1985.The matter is before this court for a third time. The facts wereset out partially in our decision on direct appeal. People v.Dodds, 190 Ill. App. 3d 1083, 547 N.E.2d 523 (1989). Due to pagelimitations, only those facts relevant to the DNA issue are setforth here.

In addition to the testimony at defendant's jury trial of theinvestigating and arresting police officers, the detectivesassigned to the case, defendant's friend who was a police officer,the assistant State's Attorney who obtained defendant's confession,and various witnesses who observed defendant and his conduct on theday in question, including the fact that he was present at thebuilding where the victims were murdered on at least one occasionthat day with Erwin Lewis, defendant's uncle, the State presentedthe testimony of Pamela Fish. Fish testified that she was acriminologist in the serology unit of the crime lab for the ChicagoPolice Department. Fish was asked to test certain evidence samplestaken from the crime scene. Fish stated that a stain recoveredfrom the exterior side of the apartment door contained blood thatwas of human origin, but she was not able to determine the bloodtype because the sample was insufficient. The same was true withrespect to a stain on defendant's gray, white, and black stripedsweater. Fish also tested defendant's black pants, blue shorts(worn as underwear), and a brown sweater jacket. Although none ofthese items had visible bloodstains on them, Fish stated thatpreliminary chemical tests indicated traces of blood scattered allover the items. However, again, because of an insufficientquantity, she was not able to type the stains and she could nottell whether the blood was of human or animal origin. No presenceof blood was found on defendant's fingernail clippings, his shoes,socks, another sweater, and a shirt, nor on the knife recoveredfrom the scene. Fish further testified that if the clothespreviously had blood on them and they were not properly cleaned,traces of blood would show up on testing.

After defendant's motion for a directed finding was denied,defendant presented the testimony of Officer Theatris Patterson. Patterson, a latent print examiner, testified that defendant'sfingerprints were not found on anything taken from the apartmentfollowing the murders, i.e., shot glasses, a tequila bottle, or acoffee cup. However, Lewis' prints were found on the coffee cup. On cross-examination, Patterson admitted that defendant could havetouched the bottle or a shot glass and not left a print and thefact that no comparisons were made to defendant did not mean thatdefendant had not been present in the apartment.

Defendant also presented testimony from his mother that herbrother, Erwin Lewis, confessed to her that he had committed themurders, as well as his own testimony in which he denied murderingGlenn or O'Connor.

The jury found defendant guilty of both murders and he wassentenced to natural life imprisonment. Defendant appealed, and weaffirmed. Dodds, 190 Ill. App. 3d 1083. Thereafter, defendantfiled a petition for postconviction relief, which the trial courtsummarily dismissed as being frivolous and patently without merit. Defendant appealed, and we granted defense counsel's motion forleave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551,95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and affirmed the judgmentof the circuit court. People v. Dodds, No. 1-92-1655 (1992)(unpublished order under Supreme Court Rule 23). Defendant thenfiled a second postconviction petition, which the trial court againdismissed.

On January 25, 1999, defendant filed a motion for DNA testingpursuant to section 116-3 of the Code of Criminal Procedure of1963. 725 ILCS 5/116-3 (West 2000). The trial court granted themotion and defendant's bloodstained sweater, along with forensicblood samples from defendant, the victims, and Lewis were sent tothe Illinois State Police Division of Forensic Services. On May 8,2000, forensic scientist Edgardo Jove reported that DNA extractedfrom defendant's sweater was consistent with originating fromdefendant and at least one unknown contributor, which could nothave been Glenn, O'Connor, or Lewis. Also sent to the lab weredefendant's striped sweater, a brown sweater jacket, blue shorts,a turtleneck sweater, a pair of socks, black pants and belt, and apair of shoes. On July 22, Jove reported that no blood-like stainswere noted on the shorts, socks, pants, or shoes. In addition, noblood was indicated on the visible stains of the striped sweater,brown sweater, or turtleneck sweater.

Thereafter, on September 29, defendant filed a thirdpostconviction petition, contending that he did not receive a fairtrial because the State presented false testimony from Pamela Fishand made false arguments to the jury based on Fish's testimony. Defendant also filed a motion for a new trial pursuant to section2-1401 of the Code, contending that he was entitled to a new trialbecause the State presented false testimony through Fish. OnJanuary 18, 2001, the State filed a motion to dismiss defendant'spetition, contending that DNA evidence was not exculpatory and,therefore, defendant failed to demonstrate any prejudice asrequired for the court to consider a successive postconvictionpetition. The State noted in this motion that the case involvedone of first impression, i.e., that there were no reported caseswhere section 116-3 of the Code of Criminal Procedure had been usedto bring a successive postconviction petition.

At a hearing on the State's motion to dismiss defendant'spostconviction petition on February 21, the trial court concludedthat defendant had not made an affirmative showing of evidence thatwas of such conclusive character that it was likely to change theoutcome of his trial. According to the trial court, a negativematch to the victims' blood on defendant's clothing did notexonerate defendant. The court further concluded that a negativematch did not provide evidence sufficient to override thewitnesses' testimony at defendant's trial and his own confession. Accordingly, the trial court granted the State's motion to dismissdefendant's postconviction petition. In addition, the trial courtdenied defendant's motion for a new trial, concluding that therehad been no showing by defendant that Fish's testimony was of suchconclusive character as to deprive him of a fair trial. Thisappeal followed.

Defendant contends that the trial court erred in dismissinghis postconviction petition because the new DNA evidencedemonstrates that the result upon a retrial would be different. Inthis regard, defendant argues that, at trial, the State reliedheavily upon the blood evidence but, now, it maintains that theblood evidence was only of minor importance. Defendant maintainsthat the only evidence presented against him was his confession andthe physical evidence, neither of which was strong. Ultimately,defendant maintains that the evidence at his trial was closelybalanced as demonstrated by his testimony and the fact that therewas no other physical evidence found linking defendant to themurder scene. According to defendant, had the jury heard that theblood on defendant's clothes, particularly his sweater, was notthat of the victims, the result of his trial would have beendifferent. Thus, defendant maintains that the trial court erred indismissing his postconviction petition.

The State contends that simply because none of the victims'blood was on defendant does not exonerate him of the crimes. TheState argues that the new DNA evidence does not exculpate defendantbecause his conviction was not dependent solely upon the bloodevidence. Rather, the State maintains that it merely argued attrial that the presence of blood on defendant was one of theindications of his guilt. The State reiterates that it did notsolely rely upon the blood evidence to convict defendant. According to the State, even without the blood evidence, theevidence against defendant was overwhelming.

The issue presented by this case, after posttrial DNA testinghas been ordered and analyzed, what legal significance does theresult have on the case in postconviction proceedings, has not yetbeen addressed by Illinois' courts.⁽¹⁾ Specifically, when is anevidentiary hearing required to determine whether a defendant isentitled to a new trial where postconviction DNA evidence isinvolved? More specifically, what impact does a negative or non-match DNA result have on a defendant's postconviction petition?⁽²⁾

Because the use of posttrial DNA evidence is of relativelyrecent origin and there is no extensive case law or analysis on theissue, this opinion will detail the different stages of proceedingsinvolving posttrial DNA evidence, the relevant inquiries andstandards applicable, and the appropriate analysis to beundertaken. Pursuant to section 116-3 of the Code of CriminalProcedure, a defendant may bring a motion for DNA testingsubsequent to his trial and conviction. 725 ILCS 5/116-3 (West2000). To be entitled to DNA testing, the defendant must establisha prima facie case showing that "identity was [a] central issue attrial and that the evidence to be tested was subject to asufficiently secure chain of custody." People v. Johnson, 205 Ill.2d 381, 393, 793 N.E.2d 591 (2002). The trial court, at this time,must determine whether the evidence is new and materially relevantto the defendant's claim of actual innocence (Johnson, 205 Ill. 2dat 393), i.e., whether the evidence will tend to significantlyadvance that claim (Johnson, 205 Ill. 2d at 395; Savory, 197 Ill.2d at 213). To determine this, the trial court must evaluate theevidence introduced at the defendant's trial as well as the newevidence the defendant seeks to test. Johnson, 205 Ill. 2d at 396. The focus at this time is on the State's use of DNA evidence at thedefendant's trial, i.e., was the DNA evidence significant orcollateral/minor at the trial compared to other evidence presented. Johnson, 205 Ill. 2d at 396; Savory, 197 Ill. 2d at 215. Clearly,at this time, the court and the parties could only speculate as tothe nature of the results of testing and could not compare theactual results to the evidence offered at the defendant's trial. After undertaking its evaluation, if the trial court determinesthat testing is appropriate, it should order same.

Once the testing is complete, the nature of the resultsdictate whether any further course of action should be undertaken. If the DNA results are inculpatory, no relief is available for thedefendant. See People v. Peeples, 205 Ill. 2d 480, 538-39, 793N.E.2d 641 (2002) (if DNA results show the source of a sample isfrom the victim, there is no postconviction relief available forthe defendant). Conversely, if DNA evidence is truly exculpatory,a defendant's conviction should be vacated and the defendant shouldbe released, or some other similar resolution should be had. See,e.g., A. Cohen, Innocent After Proven Guilty: More Inmates BeingSet Free Thanks to DNA Tests and a Pioneering Legal Clinic, Time,September 13, 1999, at 26, 28. If the results are neither trulyexculpatory nor inculpatory, i.e., they are somewhere in-between orare a non-match, which is the situation in the instant case, thismay provide a basis for a defendant to file a postconvictionpetition asserting a claim of actual innocence based on newlydiscovered evidence. Henderson, slip op. at 21. The legalsignificance of a non-match, the subject of this case, is rarelyaddressed in case law. See Henderson, slip op. at 23. See also 31Cap. U. L. Rev. at 245 (noting that "[t]he standard to use indetermining the significance of the postconviction DNA tests is not*** well established").

If the DNA results are in-between, the question then becomes,what happens once a postconviction petition is filed based on newlydiscovered evidence? To raise a claim based on actual innocence,a defendant must submit new, noncumulative evidence that could nothave been obtained during the defendant's trial with due diligence. The evidence must also be so conclusive that it would probablychange the result upon retrial. Johnson, 205 Ill. 2d at 392; Henderson, slip op. at 22. "This is the standard to be employed bya trial court when considering whether to grant postconvictionrelief based on a 'non-match' between a defendant-petitioner andthe blood evidence that was secured in relation to the defendant'strial." Henderson, slip op. at 22. In other words, the trialcourt must consider the actual results of the DNA testing anddetermine the legal significance of the non-match. Henderson, slipop. at 22.

There are three stages of review provided for under the Act. At the first stage, the trial court may dismiss, without any inputfrom the State, the defendant's postconviction petition asfrivolous or patently without merit. People v. Boclair, 202 Ill.2d 89, 99, 789 N.E.2d 734 (2002). If a petition survives thisstage, it proceeds to the second stage. At the second stage, thetrial court may appoint counsel for the defendant, who will thenhave an opportunity to amend the petition. Boclair, 202 Ill. 2d at100. At this stage, the State may also file a motion to dismissthe defendant's petition. Boclair, 202 Ill. 2d at 100. If theState fails to file a motion to dismiss, or the trial court deniessame, and the trial court thus has concluded that the petitionsupported by the trial record and any accompanying affidavits makesa substantial showing of a constitutional violation, the petitionproceeds to the third stage at which time the trial court conductsan evidentiary hearing on the merits. Johnson, 205 Ill. 2d at 389;Boclair, 202 Ill. 2d at 100. "The inquiry into whether apostconviction petition sufficiently alleges a substantialviolation of petitioner's constitutional rights [the second stage]does not require the trial court to engage in any fact-finding orcredibility determinations." People v. Fair, 193 Ill. 2d 256, 260,738 N.E.2d 500 (2000). More specifically, as the court stated inPeople v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998):

"At the dismissal stage of a post-convictionproceeding, all well-pleaded facts that arenot positively rebutted by the original trialrecord are to be taken as true. The inquiryinto whether a post-conviction petitioncontains sufficient allegations ofconstitutional deprivations does not requirethe circuit court to engage in anyfact-finding or credibility determinations. The Act contemplates that such determinationswill be made at the evidentiary stage, not thedismissal stage, of the litigation. Due tothe elimination of all factual issues at thedismissal stage of the post-convictionproceeding, a motion to dismiss raises thesole issue of whether the petition beingattacked is proper as a matter of law." Coleman, 183 Ill. 2d at 385.

At both the first and second stages, the trial court's decision isa ruling upon the legal sufficiency of the allegations of thepetition and, therefore, our review is de novo. Johnson, 205 Ill.2d at 389. At the third stage, the trial court must determinewhether the evidence introduced at the evidentiary hearingdemonstrates that the defendant is entitled to relief, i.e., in thecase of DNA non-match evidence, whether the DNA evidence is soconclusive that it would probably change the outcome on a retrial. The trial court should not collapse the second and third stages ofpostconviction proceedings. See Henderson, slip op. at 23.

Initially, in the case sub judice, there appears to be someconfusion on the part of the State at what stage this case wasdismissed. On one page of its brief before this court, the Statemaintains that it filed a motion to dismiss defendant'spostconviction petition, which the trial court granted. However,on the next page of its brief, the State indicates that the trialcourt summarily dismissed defendant's postconviction petition. Similarly, at oral argument before this court, when asked whatstage the case was dismissed at, the State responded that it wasthe first stage. When this court commented that defendant hadcounsel and the State had in fact filed a motion to dismiss, theState conceded it was a second stage dismissal. Accordingly, thequestion before this court is whether defendant's petition made asubstantial showing of a constitutional violation warranting athird stage evidentiary hearing. People v. Edwards, 197 Ill. 2d239, 246, 757 N.E.2d 442 (2001).

Before we determine whether defendant was entitled to anevidentiary hearing, we consider defendant's argument that becausethe State agreed to DNA testing, it conceded that defendantpresented a prima facie case under section 116-3 for DNA testing,i.e., the State acknowledged that DNA results could materiallyadvance his claim of actual innocence. Defendant maintains that,in other words, the State conceded that a physical tie between himand the crime scene was crucial. The State responds that, even ifit agreed to testing, this does not equate to an admission that theresults of such testing would meet the requirements for newlydiscovered evidence, i.e., it did not concede that the results areof such conclusive character as to change the outcome on a retrial. As the State points out, the record is silent with respect toits position. Defendant filed his motion for DNA testing.⁽³⁾ According to the half sheets, defendant's attorney and an assistantState's Attorney were present in court on the 23rd of some unknownmonth in 1999. At this time, the State apparently indicated thatonly one item was suitable for testing. However, there is noreport of proceedings from this court date. Thereafter, onNovember 15, 1999, the trial court ordered testing. There is noevidence that the trial court conducted a hearing on defendant'smotion. Thus, the record is unclear as to whether the State agreedto DNA testing or not.

Even assuming, arguendo, that the State agreed to suchtesting, we do not find that its concession has an impact on theissue before this court. The fact that the State agreed or failedto object to testing only means that the State conceded that theresults may be materially relevant and may significantly advancedefendant's claim, i.e., it conceded that defendant had made aprima facie case and was entitled to testing. The State'sconcession at the motion stage does not equate to a concession atthis second postconviction stage that the results warrant anevidentiary hearing. This is so because the nature of the resultsthemselves dictate whether an evidentiary hearing is warranted. For example, if the results are inculpatory and, thus, thedefendant would not be entitled to any postconviction relief, itwould be illogical to require an evidentiary hearing on the solebasis that the State agreed, or failed to object, to DNA testing. Nor does the State's concession equate to a concession that theresults are so conclusive that they warrant a new trial. The Statecould not make such a concession at the motion stage because it didnot know the results of the testing. Thus, the State's concession,if any, at the motion stage merely begins our inquiry into thesignificance or impact of the results at this stage. The Statehere does not contest the propriety of the testing and, therefore,its concession below does not determine whether defendant wasentitled to an evidentiary hearing based on those results.

Having resolved the above issue, we now determine whether thetrial court erred in dismissing defendant's postconviction petitionwithout a third stage evidentiary hearing, since not every caseinvolving postconviction DNA testing will warrant an evidentiaryhearing. As stated above, the results of the DNA testing, not thesimple fact that testing was allowed, nor the State's failure toobject to testing, dictate the course of action that should befollowed at postconviction proceedings since only exculpatory orin-between results could possibly warrant relief.

In the instant case, we find that the trial court erred indismissing defendant's postconviction petition without a thirdstage evidentiary hearing. We hold that once DNA testing isordered and the results are favorable, at least in part, to adefendant, such as where a non-match is revealed, an evidentiaryhearing is necessary to determine the legal significance of theresults because such results would make a substantial showing of aconstitutional violation. In other words, the trial court isobligated to conduct an evidentiary hearing to determine whetherthe DNA results would or would not likely change the results upona retrial. See K. Christian, "And the DNA Shall Set You Free":Issues Surrounding Postconviction DNA Evidence and the Pursuit ofInnocence, 62 Ohio St. L. J. 1195, 1195 (2001) (advocating that ifpostconviction DNA results are favorable to a defendant, thedefendant should receive a hearing to determine whether he or sheis entitled to a new trial). See also National Institute ofJustice, Postconviction DNA Testing: Recommendations for HandlingRequests 1, 50 (1999) (stating that "if DNA testing results seem toexculpate the defendant because of an exclusion, an evidentiaryhearing should be set to determine if there is a reasonableprobability of a change in the verdict or judgment of conviction"). In this regard, the court's comments in State v. DelReal, 225 Wis.2d 565, 593 N.W.2d 461 (App. 1999), are relevant. In DelReal, thecourt stated that while "negative evidence may not disprove adefendant's guilt, *** it certainly has a 'tendency' to make it'less probable.' [Citation.]" DelReal, 225 Wis. 2d at 574, 593N.W.2d at 465. In addition, the court noted that while a negativeresult does not rule out admissibility of the test results, it doesgo toward the weight of the evidence and such "was relevant,exculpatory evidence because the negative test result would havesome weight and its tendency could have supplied a favorableinference of [the defendant's] innocence to the jury." DelReal,225 Wis. 2d at 571-72, 593 N.W.2d at 464-65. Here, as in DelReal,although not conclusive exculpatory evidence, the non-match for DNAevidence on the bloodstains on defendant's clothing could havesupplied a favorable inference of defendant's innocence. It is forthe trial court, upon remand, to so determine.

Upon remand, the trial court must apply the proper standardfor evaluating newly discovered evidence and determine, in thethird stage evidentiary hearing, whether defendant is entitled toa new trial. At the evidentiary hearing, the trial court mustconsider the trial evidence in light of the new DNA results todetermine whether those DNA results are so conclusive to warrant anew trial. C.f. Savory, 197 Ill. 2d at 214. See also 31 Cap. U.L. Rev. at 264 ("The newly tested DNA evidence must be weighedagainst the other evidence presented in the case to show that thedefendant deserves to have the case heard again"). The trial courtalso must determine whether the DNA evidence was a significantfactor at defendant's trial and, thus, whether such evidence wasmore likely than not to have affected the jury's determination. See Henderson, slip op. at 16-17. Only upon an evaluation of theweight of the evidence and credibility of same will the trial courtbe able to determine whether the DNA results are so conclusive towarrant a new trial. While this weighing of evidence is similar tothe weighing of evidence with respect to the section 116-3 motionfor DNA testing, it nonetheless clearly differs. Here, the trialcourt has the actual DNA results, whereas at the time of the motionfor testing, the trial court could only speculate as to the natureof the results. The determinations to be made at the third stageevidentiary hearing require factual and credibility findings.

We note that in the instant case, the trial court made suchfactual and credibility determinations at the second stage of thepostconviction proceedings. Specifically, the last two paragraphsof the trial court's order read like those of a trier of fact madeafter a third stage evidentiary hearing. Because this case was atthe second stage, the trial court's factual and credibilitydeterminations were improperly made. Coleman, 183 Ill. 2d at 385;People v. Faraone, 316 Ill. App. 3d 897, 899-900, 738 N.E.2d 571(2000). More specifically, a comprehensive review of the evidenceto determine the legal significance of the new DNA evidence is notproper at the second stage of postconviction proceedings; it mustbe undertaken at a third stage evidentiary hearing. Accordingly,we conclude that the trial court erred in dismissing defendant'spostconviction petition without an evidentiary hearing. Wetherefore remand this cause for an evidentiary hearing and suchfurther proceedings consistent with this opinion.

Defendant next contends that the trial court erred in denyinghis motion for a new trial because the State presented false orperjured evidence and made false arguments at his trial. Based onour conclusion above with respect to defendant's postconvictionpetition, we need not address this issue as it will be decided inthe further proceedings conducted upon remand.

For the reasons stated, we reverse the judgment of the circuitcourt of Cook County and remand this cause for further proceedings.

Reversed and remanded.

CAHILL and GARCIA, JJ., concur.

1. The only cases discussing postconviction DNA testing haveaddressed the propriety of the trial court's denial of posttrialtesting. See People v. Savory, 197 Ill. 2d 203, 756 N.E.2d 804(2001); People v. Henderson, Nos. 1-99-1277, 1-99-3220 (Cons.)(September 25, 2003); People v. Travis, 329 Ill. App. 3d 280, 771N.E.2d 489 (2002).

2. Negative or non-match results are those, as in the instantcase, where the results show that the victim was not the source ofa certain sample (defendant's clothing here), but which results donot necessarily exclude the defendant as the perpetrator. In otherwords, although defendant here may have shown that the blood on hisclothing was not that of the victims, this does not rule him out asthe murderer. See, e.g., Comment, Motions for Postconviction DNATesting: Determining the Standard of Proof Necessary in GrantingRequests, 31 Cap. U. L. Rev. 243, 264 (2003) (the "absence of DNAdoes not necessarily mean the perpetrator was not in contact withthe crime scene or victim. Similarly, the absence of a victim'sDNA on a perpetrator or his property does not mean there was nocontact between the two").

3. This motion is not contained in the record on appeal.