THIRD DIVISION

                                    Date Filed: October 29, 2003

No. 1-00-3494

THE PEOPLE OF THE STATE OF ILLINOIS,   ) Appeal from the 

                                       ) Circuit Court of

           Plaintiff-Appellee,         ) Cook County.

                                       )

           v.                          ) No. 70 C 124

                                       )

RICHARD SCHULTZ,                        ) Honorable

                                       ) Thomas R. Fitzgerald,

           Defendant-Appellant.        ) Judge Presiding.

     JUSTICE HALL delivered the opinion of the court:

     In 1970, the defendant, Richard Schultz, was convicted of the

murder of Cheryl Littlejohn and sentenced to an indeterminate

term of 35 to 100 years' imprisonment.  His conviction and

sentence were affirmed on appeal.  See People v. Sc00hultz, 8 Ill. App. 3d 827, 291 N.E.2d 194 (1972).  The defendant was released

from prison after serving 14 years of his sentence.

     On September 14, 1999, the defendant filed a petition

pursuant to section 116-3 of the Code of Criminal Procedure of

1963 (725 ILCS 5/116-3 (West 1998)) seeking to have

deoxyribonucleic acid (DNA) testing performed on certain physical

evidence in his murder case.  

     On August 29, 2000, the circuit court dismissed the petition

after being advised by the State that the evidence the defendant

sought to have tested had been destroyed.

     The defendant appeals, contending that the circuit court

erred when it dismissed his petition without first determining if

the State had destroyed the evidence in bad faith.

     It is not disputed that forensic DNA testing was not

available at the time of the defendant's trial in 1970. 

Effective January 1, 1998, the General Assembly enacted section

116-3, which explains the process defendants must follow to

obtain fingerprint or forensic testing not available at trial

regarding actual innocence.  Pub. Act 90-141, §5, eff. January 1,

1998 (adding 725 ILCS 5/116-3).

     Section 116-3 provides in pertinent part as follows:

	     "(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."  725 ILCS 5/116-3

(West 1998).

     In his pro se motion for forensic testing, the defendant alleged that the Cook County sheriff's police gathered the

physical evidence and submitted it to the Chicago police

department for analysis.  At the defendant's bench trial, the

State introduced evidence, including blood and sperm samples. 

Members of the Chicago police department testified as to a number

of items of physical evidence, such as oral, anal, vaginal and

rectal swabs which were positive for sperm and fingernail

clippings from the victim.   

     The defendant then alleged that the policy of the Chicago

police department was to retain all evidence related to murder

investigations permanently. He further alleged that he had been

informed by the records division of the Chicago police department

that a box containing reports and photographs pertaining to his

case had been located and that the physical evidence would have

been retained by the Chicago police department crime laboratory. 

     Finally, the defendant alleged that it was later discovered

that the defendant's blood type was not found at the crime scene. 

The defendant did acknowledge that he had given oral and written

statements to the police, which he later recanted.

	Analysis

	I.  Standard of Review

     A trial court's ruling on a motion brought pursuant to

section 116-3 is reviewed de novo.  People v. Henderson, Nos. 1- 99-1277, & 1-99-3220 cons., slip op. at 12 (September 25, 2003).

	II.  Discussion

	A.  Waiver

     The State points out that the defendant never raised his

claim of bad faith in the circuit court and therefore, it is

waived.  However, this court is not bound by the principle of

waiver, and in the interest of a just result, we may elect to

address a waived issue.  Keefe-Shea Joint Venture v. City of Evanston, 332 Ill. App. 3d 163, 170, 773 N.E.2d 1155, 1161 (2002). Therefore, we will not reject the defendant's claim on

the basis of waiver.

	B.  Incarceration Requirement

     The State then argues that section 116-3 does not apply to

defendants who have already served their sentences.  The State

maintains that the legislature's use of the term "actual

innocence" in the caption of section 116-3 indicates that the

legislature intended that DNA testing be afforded only to those

defendants who remain deprived of their liberty.  

     The State points out that the phrase "actual innocence"

originated in People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330 (1996), wherein our supreme court held that a claim of "actual innocence" was cognizable under Illinois constitutional

jurisprudence and therefore could be asserted in a postconviction

petition.  

     The State submits that the Washington court's statement that "no person *** should be deprived of life or liberty given

compelling

 evidence of actual innocence" indicates that a claim of "actual innocence" is tied to a deprivation of liberty. 

Washington, 171 Ill. 2d at 489, 665 N.E.2d at 1336-37.  The State then reasons that the legislature's use of the term "actual

innocence" in section 116-3, coming after the decision in

Washington, suggests that the legislature intended that DNA testing be available only to those defendants still incarcerated. 

See Burrell v. Southern Truss, 176 Ill. 2d 171, 176, 679 N.E.2d 1230, 1233 (1997) ("'Where statutes are enacted after judicial

opinions are published, it must be presumed that the legislature

acted with knowledge of the prevailing case law.' [Citation.]").  

     The State also relies on the statutory construction

principle that a statute should be construed so that no term is

rendered superfluous or meaningless.  People v. Maggette, 195 Ill. 2d 336, 350, 747 N.E.2d 339, 347 (2001).  The State insists

that, "[U]nless the term 'actual innocence' refers to the concept

defined by the Court in Washington, use of the term 'actual' to modify 'innocence' is completely superfluous."  

     The State's argument ignores the basic principle of

statutory construction.  The cardinal principle of statutory construction is to ascertain and give effect to the intention of

the legislature.  People v. Savory, 197 Ill. 2d 203, 212, 756 N.E.2d 804, 810 (2001).  The language used by the legislature is

the best indicator of legislative intent, and thus a court's

inquiry appropriately begins with the statutory text.  Savory, 197 Ill. 2d at 212-13, 756 N.E.2d at 810.  The statutory language

must be given its plain and ordinary meaning, and when the terms

used by the legislature are clear and unambiguous, it is not

necessary to resort to other aids of construction.  Savory, 197 Ill. 2d at 213, 756 N.E.2d at 213. 

     The plain language of section 116-3 does not require that a

defendant be incarcerated in order to seek forensic testing.  See

Savory, 197 Ill. 2d at 213, 756 N.E.2d at 811 (the supreme court concluded that "an examination of the language in section 116-3

reveals that it did oes not contain the restriction the appellate

court imposed on it").  

     We are unpersuaded by the State's argument that, because the

caption to section 116-3 uses the term "actual innocence," the

legislature had the liberty concerns expressed by the Washington court in mind when it drafted section 116-3.   

     In Washington, the court was dealing with a postconviction relief petition. The statutory schemes for postconviction relief and

forensic DNA testing are completely different.  People v. Jones, 334 Ill. App. 3d 61, 65, 777 N.E.2d 449, 453 (2002).  The Post- Conviction Hearing Act (the Act) specifically provides that postconviction relief is available to persons imprisoned in the

penitentiary.  725 ILCS 5/122-1 (West 1998); but see People v. Luna, 211 Ill. App. 3d 390, 570 N.E.2d 404 (1991) (the defendant, facing deportation based on his guilty plea, could seek relief

under the Post-Conviction Hearing Act even though he had

completed his probation, given the severity of the consequences

of deportation).  As we noted above, the plain language of

section 116-3 does not limit it to incarcerated defendants. 

Moreover, the Act also sets forth time limitations for filing

postconviction petitions.  725 ILCS 5/122-1(c) (West 1998).  In

contrast, section 116-3 has no time limitations for motions

brought pursuant to it.  People v. Rokita 316 Ill. App. 3d 292, 303, 736 N.E.2d 205, 213 (2000)         

     In its opinion, the Washington court first concluded that procedural due process required that a claim of actual innocence

by a convicted person be recognized and then that "[Ii]mprisonment of the innocent would also be so conscience shocking as to trigger operation of substantive due process. [Citation.]"

(Emphasis added.)  Washington, 171 Ill. 2d at 487-88, 665 N.E.2d at 1336.  The Washington court's use of the term "convicted" as opposed to "incarcerated" persuades us that the legislature's decision to use the term "actual innocence" in section 116-3, if

influenced by the decision in Washington, was not based on a denial of liberty but on the conviction of an innocent person. 

     Finally, the clear purpose of section 116-3 was to provide

convicted defendants, with a means by which to establish actual innocence through advances in forensic technology.  People v. Urioste, 316 Ill. App. 3d 307, 313, 736 N.E.2d 706, 712 (2000).  The evidence sought to be tested must be "materially relevant" to

the defendant's claim of actual innocence.  Savory, 197 Ill. 2d at 214, 756 N.E.2d at 811.  The claim of "actual innocence" is

related to the relevance of the evidence to be tested, not to the

fact of a defendant's continued incarceration.  

     Rokita further supports the conclusion that the legislature did not intend to limit section 116-3 to incarcerated defendants. 

The State acknowledges Rokita but argues that Rokita involved a different issue.

     In Rokita, the State argued that a request for forensic testing was properly considered only in connection with a timely

postconviction petition or one that was excusably late, citing

People v. Dunn, 306 Ill. App. 3d 75, 713 N.E.2d 568 (1999) (although the court upheld the dismissal of Dunn's postconviction

petition, it reviewed his request for genetic testing under the

fundamental fairness rule and remanded the case to determine if

Dunn had made out a prima facie case for testing).

     The Rokita court rejected the State's argument, stating as follows:

	     "Contrary to the State's assertion, nothing in Dunn implies that the proper time for filing a section 116-3 motion is during a postconviction review.  As noted above,

when interpreting a statute, courts should give effect to

the intent of the legislature, and that intent is best

ascertained from the language of the statute itself.  There

is no language in section 116-3 indicating any legislative

intent to impose a time limit for filing a motion for

forensic testing.  Had the legislature wished to impose a

time limit on the filing of a section 116-3 motion, it could

easily have done so.  It is not the prerogative of this

court to read into the statute limitations that the

legislature chose not to include.  Moreover, were we to go

beyond the clear and unambiguous language of the statute,

the legislative history of section 116-3 clearly

demonstrates that the legislature did not intend to impose a

time limit for filing a motion. [Citations.]1"  Rokita, 316 Ill. App. 3d at 303, 736 N.E.2d at 213.

See also People v. Barksdale, 327 Ill. App. 3d 422, 762 N.E.2d 669 (2001) (citing Rokita, the court noted that even if a postconviction petition were untimely filed, a defendant could

file a petition for relief directly under section 116-3).

     As we stated above, section 116-3 contains no language

limiting its availability to incarcerated defendants.  If the legislature had intended section 116-3 to apply only to

incarcerated defendants, it clearly could have done so.  Section

116-3 simply does not contain the restriction the State wishes to

impose on it.  Compare Savory, 197 Ill. 2d at 214, 756 N.E.2d at 811 (supreme court rejected the State's argument that section

116-3 was restricted to testing of evidence that would completely

exonerate a defendant).

     We conclude that relief under section 116-3 is not limited

to incarcerated defendants but is also available to defendants

who have completed their sentences and who are no longer

incarcerated.

	C.  Bad Faith

     Initially, we note that section 116-3 requires that the

defendant present a prima facie case that the evidence sought to be tested has been subject to a chain of custody sufficient to

establish its reliability.  725 ILCS 116-3(b)(2) (West 1998).

     In this case, the defendant alleged that evidence had been

gathered by the Cook County sheriff's department, turned over for

testing to the Chicago Ppolice Ddepartment and introduced at trial. 

The defendant concludes that since it was the policy of the

Chicago police department to retain all evidence related to

murder investigations, the evidence should still be in the

custody of the Chicago police.  

     In People v. Johnson, 205 Ill. 2d 381, 793 N.E.2d 591 (2002), our supreme court held that a defendant had alleged a prima facie showing of a sufficient chain of custody.  Although the defendant did not know where the evidence was located, the

court acknowledged that the location of the evidence would not

have been available to the defendant.  However, the evidence the

defendant sought to have tested and which had been admitted at

trial, would have remained in the custody of the circuit court

clerk after the defendant's conviction.  See Johnson, 205 Ill. 2d at 394, 793 N.E.2d at 600; but see Jones, 334 Ill. App. 3d at 65- 66, 777 N.E.2d at 453 (the defendant's request for evidence did

not establish that the evidence was ever collected, transported

or stored, distinguishing Johnson).

     The purpose of the chain of custody requirement is to ensure

the reliability of the evidence to be tested.  However, where, as

in this case, the evidence to be tested has been destroyed,

relief under section 116-3 is no longer available to the

defendant.  See Urioste, 316 Ill. App. 3d at 311, 736 N.E.2d at 710 (court could affirm dismissal of a section 116-3 motion where

the defendant alleged only that it was customary for the police

to preserve blood samples, and there was nothing in the record

from which to conclude that the evidence still existed, much less

that a proper chain of custody had preserved its integrity).  

     Nonetheless, the defendant contends that he is entitled to a

hearing to determine if the evidence he sought to be tested was

destroyed in bad faith, relying on Barksdale.

     In Barksdale, the defendant filed a postconviction petition seeking testing of certain physical evidence pursuant to section

116-3.  The circuit court summarily denied the petition.  The

defendant appealed.  In its brief on appeal, the State admitted

that the evidence had been destroyed.

     The reviewing court held that in order to show a due process

violation, the defendant was required to show that the State

acted in bad faith where the evidence that the defendant was

seeking to have tested has been destroyed.  Because the defendant

had attached to his petition an order requiring the preservation

of the evidence entered at the time of his conviction, the

defendant had made a sufficient showing of a meritorious

constitutional claim to advance to the second stage of the

postconviction proceedings.  Barksdale, 327 Ill. App. 3d at 440- 41, 762 N.E.2d at 684.

     Contrary to the defendant's argument, the Barksdale court did not hold that a defendant was entitled to a bad-faith hearing

just because the evidence had been destroyed.  Rather, the court

held that the defendant's allegation that the evidence was

destroyed, despite an order for its preservation, stated the gist

of a constitutional violation. In the present case, the defendant

alleged only that it was the "policy" of the Chicago Ppolice  

Ddepartment to retain such evidence, not a requirement.2, 3  

     In People v. Adams, 333 Ill. App. 3d 171, 775 N.E.2d 197 (2002), a somewhat similar situation to the one before us arose. 

While Mr. Adams's petition for postconviction relief was pending,

he filed a motion for fingerprint testing using techniques not

available at the time of his trial.  After the trial court was

informed that the fingerprint evidence no longer existed, the

court denied Mr. Adams's motion for the testing on the basis that

he failed to meet the chain of custody requirement of section

116-3.  The trial court also denied Mr. Adams's motion for an

evidentiary hearing to determine the reason the fingerprint

evidence was missing.  

     On appeal, the appellate court affirmed the trial court's

order.4  With regard to the chain of custody, the court stated as follows:

	"Second, there was no court order requiring the preservation

of the fingerprints, and there certainly appeared to be no

evidentiary need for retaining them.  A mere showing of

negligence by the police in losing evidence, if we can even

say that was the case here, is insufficient to prove any due

process violation. [Citations.]'"  Adams, 333 Ill. App. 3d at 175, 775 N.E.2d at 201.

     In the present case, the defendant was tried over 30 years

ago. At the time he filed his petition, the defendant did not

know whether the evidence was even in existence after so many

years.  Unlike the defendant in Barksdale, the defendant here does not contend that at the time of his conviction, an order was

entered requiring that the evidence he now seeks for testing be

retained.  Barksdale teaches that it is the defendant's burden to establish that the evidence was destroyed in bad faith.  In this

case, after it was revealed that the evidence did not exist any

more, the defendant did not move to amend his petition with any

allegations that the evidence he sought to be tested had been

destroyed in bad faith.       

     In summary, we hold that relief under section 116-3 is

available to both defendants presently incarcerated and to

defendants who have completed their sentences.  We further hold

that the fact that the evidence sought to be tested has been

destroyed does not singularly entitle a defendant to a hearing as

to whether the evidence was destroyed in bad faith.  In the

absence of any allegations of bad faith in connection with the

destruction of the evidence in this case, the defendant was not

denied due process, and his motion for DNA testing was properly

denied for lack of prima facie evidence of a chain of custody.

     In light of our determination in this case, we need not

address the defendant's argument that the evidence was 

materially relevant to his claim of actual innocence.

     The judgment of the circuit court is affirmed.

     HOFFMAN, P.J., and KARNEZIS, J., concur.