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Docket No. 88786-Agenda 12-September 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHNNY LEE SAVORY, Appellant.

Opinion filed May 24, 2001.

JUSTICE McMORROW delivered the opinion of the court:

The defendant, Johnny Lee Savory, filed a motion in thecircuit court of Peoria County pursuant to section 116-3 of theCode of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West1998)), in which he sought to obtain scientific testing of certainevidence introduced at his murder trial 20 years ago. The circuitcourt denied defendant's motion, and the appellate court affirmed.309 Ill. App. 3d 408. For the reasons that follow, we affirm thejudgment of the appellate court.

BACKGROUND

The offenses for which defendant was convicted occurred inPeoria on January 18, 1977. The victims, Connie Cooper, 19 yearsold, and her brother, James Robinson, 14 years old, were foundmurdered in their home. They had been stabbed repeatedly, andthere were no signs of forced entry to the residence. Defendant,also 14, was a friend of James and was known to have been at thehouse the night before the offenses. Defendant was questioned bypolice a week after the victims' bodies were discovered. Aftermaking several exculpatory statements concerning his activities onJanuary 17 and 18, 1977, defendant eventually confessed to thecrimes.

Defendant was convicted of the two murders following a jurytrial in 1977. On appeal, the appellate court concluded thatdefendant's confession was inadmissible and reversed theconvictions. People v. Savory, 82 Ill. App. 3d 767 (1980). Thecause was remanded for a new trial, which was conducted in 1981,following a change of venue to Lake County.

At defendant's second trial, the State introduced evidence ofcertain admissions made by defendant to several of his friends onthe day of the offenses. One of these friends, Ella Ivy, testified thatdefendant made inculpatory statements before 4:30 p.m., the timethe victims' bodies were discovered. Ella stated that, atapproximately 2:30 p.m. on January 18, defendant told her that heand James Robinson had been playing karate and that he hadaccidentally cut James. Ella also testified that she saw defendantagain a little more than an hour later, around 4 p.m., and that hetold her that Robinson and his sister were dead. That night,defendant told Ella that he was planning to take flowers to thevictims' mother, and Ella saw a knife fall out of defendant'swallet.

Ella's brother, Frankie Ivy, testified that, at approximately 8 p.m.on January 18, defendant said that he had accidentally stabbedJames Robinson and his sister.

Tina Ivy, sister of Ella and Frankie, testified that, atapproximately 7 p.m. on January 18, defendant told her that "twokids had got killed." Defendant also told her that he and Robinsonhad been practicing karate earlier that day and that he hadaccidentally cut Robinson. Tina further testified about aconversation she had with defendant the day after the murders, onJanuary 19. On that occasion, defendant told her that whoevercommitted the offenses must have known the victims, because thefamily dog, a German shepherd, would not have allowed a strangerin the house. Defendant also told Tina that the victims had beenbrutally stabbed.

At the second trial, the State also introduced evidence ofstatements that defendant made to police prior to making hisinadmissible confession. In these statements, defendant said that,on January 17, the night before the victims were killed, he andJames had prepared cooked corn and hot dogs in the kitchen andhad played karate games in the living room. Defendant also saidthat they had moved the television set to the floor so that it wouldnot get knocked over during their play. The State argued that thecontents of these statements revealed a knowledge of the crimescene that only the offender would have had, and that whatdefendant said occurred on the evening of January 17 actually tookplace on January 18 and resulted in the deaths of the two victims.The State supported this argument with testimony from thevictims' mother and stepfather. This testimony showed that Jamesand the defendant had not eaten anything during the defendant'svisit on the evening of January 17. The testimony also showedthat, when the victims' mother and stepfather left for work on themorning of January 18, the kitchen was clean and the television setwas in its customary place on a stand. The victims' mother furtherstated that she prepared corn and hot dogs for the children thatmorning and left the food on the stove for them. The parentsreturned home at approximately 4:30 p.m. and discovered thevictims' bodies. At that time, the kitchen was in disarray and thetelevision set was on the living room floor.

The State also presented physical evidence connectingdefendant to the offenses, including evidence that hairs consistentwith defendant's were found in the bathroom sink and tub, that aknife from defendant's home had blood on it, and that a bloodstainfound on a pair of trousers recovered from the defendant's homewas of the same blood type as Connie Cooper's.

Defendant presented evidence of an alibi and also attemptedto show that the victims' stepfather and former boyfriends ofConnie might have committed the crimes. Regarding thebloodstained trousers, defendant's father testified that theybelonged to him, and that the bloodstain was from a cut he hadreceived on his leg.

At the conclusion of the second trial, a jury again founddefendant guilty of the murders of Connie Cooper and JamesRobinson. The trial judge later sentenced defendant to concurrent,indeterminate sentences of 40 to 80 years' imprisonment for thetwo offenses. Defendant's convictions and sentences wereaffirmed on appeal. People v. Savory, 105 Ill. App. 3d 1023(1982). Defendant's subsequent post-conviction petitions, whichincluded his claim that Tina and Frankie had purportedly recantedtheir testimony, were denied. His request for habeas corpus reliefwas also denied. No. 3-84-0008 (unpublished order underSupreme Court Rule 23); No. 3-90-0059 (unpublished orderunder Supreme Court Rule 23); Savory v. Lane, 832 F.2d 1011(7th Cir. 1987).

Defendant initiated the present proceeding in 1998 by filinga motion in the circuit court of Peoria County pursuant to section116-3 of the Code of Criminal Procedure of 1963 (725 ILCS5/116-3 (West 1998)). Section 116-3 allows a defendant to havephysical evidence subjected to scientific testing that was notavailable at the time of trial if certain requirements are met. Toobtain testing, a defendant must present a prima facie case thatidentity was the issue at his trial and that the evidence to be testedhas been under a secure chain of custody. Testing is permitted if,among other requirements, "the result of the testing has thescientific potential to produce new, noncumulative evidencematerially relevant to the defendant's assertion of actualinnocence." 725 ILCS 5/116-3(c)(1) (West 1998).

In the present case, defendant's motion requested that DNAtesting be performed on the bloodstained trousers that the Statecontended defendant had been wearing at the time of the offenses.Defendant maintained that he is innocent of the murders. Healleged that the test results would show that the blood did notmatch that of Connie Cooper, and would thus eliminate one of thepieces of physical evidence introduced by the State at trial. Themotion also requested testing of material found under ConnieCooper's fingernails⁽¹⁾

After a hearing, the circuit court denied defendant's motion.With respect to the bloodstained trousers, the court concluded thatdefendant had satisfied the first two requirements of the statute,namely, that identity was the issue at his trial, and that theevidence had been subject to a sufficient chain of custody. Thecourt determined, however, that the test results would not bematerially relevant to defendant's assertion of actual innocence.After reviewing the transcript of defendant's second trial, as wellas the various opinions rendered in the different proceedings, thejudge concluded that, even if DNA testing of the blood on thetrousers showed that it was not Connie Cooper's, that evidencewould not significantly affect the State's case. Therefore, theblood evidence was not materially relevant to defendant's claim ofactual innocence.

With one justice dissenting, the appellate court affirmed thecircuit court judgment, though on different grounds. 309 Ill. App.3d 408. The appellate court concluded that the remedy provided bysection 116-3 of the Code of Criminal Procedure is available onlyin cases where the proposed scientific testing will, by itself,completely vindicate a defendant. The appellate court determinedthat in this case, even a test result favorable to defendant could notcompletely vindicate him, because a favorable test result wouldstill be consistent with a conclusion of guilt.

The dissenting justice disagreed with the majority'sinterpretation of the statute, finding it too narrow. 309 Ill. App. 3dat 416-17 (Holdridge, P.J., dissenting).

We allowed defendant's petition for leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

As a preliminary matter, the State argues that this court doesnot have jurisdiction over the present appeal. The State contendsthat there is no avenue of appeal for a defendant from an adverseruling on a motion for testing under section 116-3. We disagree.

Article VI, section 6, of the Illinois Constitution provides, inpertinent part:

"Appeals from final judgments of a Circuit Court are amatter of right to the Appellate Court in the JudicialDistrict in which the Circuit Court is located except incases appealable directly to the Supreme Court ***. TheSupreme Court may provide by rule for appeals to theAppellate Court from other than final judgments of Circuit Courts." Ill. Const. 1970, art. VI,