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No. 3--02--0832

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The defendant, Jason Shelton, was convicted of first degreemurder (720 ILCS 5/9--1(a)(1) (1996)) and concealment of ahomicidal death (720 ILCS 5/9--3.1(a) (1996)). He was sentencedto concurrent terms of fifty and five years' imprisonment,respectively. The conviction was affirmed by this court. Peoplev. Shelton, No. 3--98--0317 (2000) (unpublished order underSupreme Court Rule 23). Subsequently, the defendant filed aposttrial motion requesting deoxyribonucleic acid (DNA) testing,pursuant to section 116--3 of the Code of Criminal Procedure of1963 (the Code) (725 ILCS 5/116--3 (West 2002)). The trial courtdenied that motion, and we affirm.

I. FACTS

At trial, the evidence established that the body of ElijahThomas was discovered in a Kankakee trash dumpster on May 29,1997. It was later determined that Thomas had died fromstrangulation, suffocation, and blunt cerebral trauma. Evidenceintroduced against the defendant indicated that he and QuincyJones beat and strangled the victim. The two then carried thebody to a nearby dumpster.

In addition to this and other testimony, forensic evidencewas introduced. Fingernail scrapings from the victim's 10fingernails were subjected to DNA testing. All but one yieldedpositive results for human DNA. However, more specific resultsproved inconclusive. The State's expert explained that everytime DNA analysis was performed, a series of control tests werealso performed. If any one of the control tests revealed thepresence of DNA, then the entire result was consideredinconclusive. In this case, the expert testified that one of thecontrol tests indicated the presence of DNA. Therefore, theentire test was determined to be inconclusive. The problem hadoccurred because the tests had not been run "clean enough" toyield reliable results.

Thereafter, the defendant was convicted and sentenced. Theconviction was upheld on appeal. Subsequently, the defendantfiled a posttrial motion asking for new DNA testing. The trialcourt denied that motion, finding that: (1) the defendant did notallege or request testing that was not available at the time ofthe trial, and (2) any test result would not significantlyadvance the defendant's claim of innocence. The defendant timelyappealed.

On appeal, the defendant argues that the trial court erredin denying his motion for DNA testing. Because we find that thedefendant failed to allege or request DNA testing that was notavailable at the time of the trial, we affirm the trial court'sruling.

A trial court's ruling on a motion brought pursuant tosection 116--3 of the Code is reviewed de novo. People v.Savory, 309 Ill. App. 3d 408, 722 N.E.2d 220 (1999), aff'd, 197Ill. 2d 203, 756 N.E.2d 804 (2001). In construing section 116--3of the Code, we give the statutory language its plain andordinary meaning. People v. Stevens, 315 Ill. App. 3d 781, 733N.E.2d 1283 (2000). A court may also consider the reason andnecessity of the law, the evil sought to be remedied and thepurpose to be achieved. People v. Frieberg, 147 Ill. 2d 326, 589N.E.2d 508 (1992).

Section 116--3(a) of the Code provides that, "[a] defendantmay make a motion before the trial court *** for the performanceof fingerprint or forensic DNA testing on evidence that wassecured in relation to the trial which resulted in his or herconviction, but which was not subject to the testing which is nowrequested because the technology for the testing was notavailable at the time of trial." (Emphasis added.) 725 ILCS5/116--3(a) (West 2002). Thus, as was noted by the FifthDistrict, "[t]he clear and unambiguous language of subsection (a)of section 116--3 requires that a defendant show that theevidence in question was not subject to the requested testing atthe time of the trial and that the reason it was not subjected tothe requested testing is that the technology for such testing wasunavailable at the time of the trial." People v. Franks, 323Ill. App. 3d 660, 662, 752 N.E.2d 1274, 1276 (2001). Moreover,the legislature enacted this statute because it "recognized thatadvances in scientific technology harbored the potential tocorrect injustice through the highly reliable use of genetics." People v. Urioste, 316 Ill. App. 3d 307, 310, 736 N.E.2d 706, 710(2000).

The instant evidence was subjected to DNA testing beforetrial, but the results obtained were deemed inconclusive becausethe control tests were not "clean enough." The defendant'smotion seeks to have the evidence retested in hopes of obtaininga conclusive result. However, nowhere in the motion does thedefendant allege that the DNA tests he is seeking were notavailable at the time of trial. Indeed, he admits that DNAtesting--albeit testing that did not yield a conclusive result--was performed before his trial. The defendant simply seeks tohave the process repeated.

The trial court correctly denied the defendant's motion. Tohave granted the defendant's request would have been contrary toboth the express language of the statute and the intent of thelegislature. The defendant's circumstances are simply not akinto those contemplated by the legislature in enacting section 116--3. Because the defendant has failed to overcome this thresholdissue, we need not address his additional contentions.

III. CONCLUSION

For the reasons stated, we affirm the judgment of thecircuit court of Kankakee County.

Affirmed.

LYTTON and O'BRIEN, JJ., concur.