Illinois Official Reports

Appellate Court

People v. Whalen, 2020 IL App (4th) 190171

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, 

v. DONALD WHALEN, Defendant-Appellee.

District & No. Fourth District 

No. 4-19-0171

Filed March 3, 2020

Decision Under 

Review

Appeal from the Circuit Court of McLean County, No. 91-CF-344; the 

Hon. Scott D. Drazewski, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David 

J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Tara Thompson and Elliot Slosar, of The Exoneration Project, of 

Chicago, for appellee.

Panel JUSTICE TURNER delivered the judgment of the court, with opinion.

Presiding Justice Steigmann and Justice Holder White concurred in 

the judgment and opinion.
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OPINION

¶ 1 On February 13, 2019, the trial court allowed defendant Donald Whalen’s petition for relief 

from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Civil Procedure 

Code) (735 ILCS 5/2-1401 (West 2018)), vacated defendant’s murder conviction, and ordered 

a new trial. The State appeals, arguing (1) defendant’s claims related to a palm print on a pool 

cue stick are time-barred and should have been dismissed, (2) the trial court’s decision was 

based on an incorrect standard put forth by this court in People v. Davis, 2012 IL App (4th) 

110305, 966 N.E.2d 570, and (3) the trial court’s decision to grant defendant’s petition for 

relief from judgment following the evidentiary hearing was manifestly erroneous. We reverse 

the trial court’s order granting defendant’s section 2-1401 petition and vacating defendant’s 

conviction. We remand this case for further proceedings so the trial court can determine 

whether a different result would be “probable” or “more likely than not” based on the new 

evidence in this case when considered alongside the original trial evidence. 

¶ 2 I. BACKGROUND

¶ 3 The body of William Whalen, defendant’s father, was discovered at the Twenty Grand Tap 

in Bloomington, Illinois, on the morning of April 6, 1991. He had been beaten and stabbed 

numerous times. William Whalen and his wife, Colleen Whalen, had owned the tavern for 23 

years before William was murdered. 

¶ 4 On May 31, 1991, nearly two months later, defendant was arrested and charged with his 

father’s murder. 

¶ 5 In its initial discovery response, the State disclosed evidence of an alleged match between 

a bloody latent palm print found on a broken pool cue and defendant. Eight days before his 

trial was scheduled to begin, defendant filed a supplementary discovery response disclosing 

his intent to call an expert witness. He did not initially disclose the nature or content of his 

expert’s proposed testimony. The State contacted the expert who told the State he was not sure 

what he would be asked to testify about but indicated he was an expert in fingerprint analysis.

¶ 6 The State asked the trial court to bar the expert witness because the witness was not 

disclosed in a timely manner. The court granted the State’s motion. However, in response to 

defendant’s motion to reconsider, the court noted a firm trial date had been set for over 60 days 

and stated the only way to mitigate the situation was for defendant to request a continuance. 

Defendant said he did not want the case continued. As a result, the court denied the motion to 

reconsider. 

¶ 7 At defendant’s trial, evidence showed the victim was found at the tavern around 4:30 a.m. 

on Saturday, April 6, 1991. The tavern closed that morning around 2 or 2:15. The jury heard a 

significant amount of money was left at the tavern after the murder, including but not limited 

to $240 in the tavern’s two cash registers and $630 in the victim’s pocket. The jury also heard 

the tavern’s safe was open and empty. At the section 2-1401 evidentiary hearing, the trial court 

noted a total of $1128 was left at the tavern after the murder.

¶ 8 A broken bar stool, two broken pool cues, and several knives were found near the victim’s 

body. A bloody shoeprint containing the letters “CONS” was found on the tavern’s floor. 

¶ 9 Randall McKinley, a crime scene investigator at the Bloomington Police Department who 

worked the murder scene, recovered a piece of a broken pool cue stick from the floor by the 
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victim’s body. He testified the piece of the cue stick “was laying near *** wet blood.” He also 

testified “there was blood all over this particular piece of pool cue stick, some of which was in 

a dried state and some of which was still damp and drying.” McKinley further testified he 

observed what he knew to be “ridge detail from what could be a fingerprint or a palm print or 

some type of *** a fingerprint in the red blood substance on this pool cue.” 

¶ 10 John Dierker, a latent print examiner at the Illinois State Police crime lab in Morton, 

testified defendant’s palm print was on part of a pool cue found at the crime scene and collected 

as evidence. He described the palm print, which appeared to be in blood, as a “put-down” 

impression. Dierker opined defendant had blood on his palm before he grabbed the cue stick. 

Dierker explained to the jury the difference between a “put-down” print and a “take-away” 

print.

“This impression is what we refer to as a put-down impression instead of a take-away, 

and I’ll explain that a little bit here in a second. But these dark areas that you see that I 

have marked characteristics on is reproduction of the ridges on this particular ink palm 

print. So if I had—a good analogy for a put-down impression would be that if I had 

flour on my hand it would adhere to the ridge portion of the—on the hand. And then if 

I placed my hand on the object I’d have a reproduction of the ridge portion because 

that’s where the flour was and it was transferred there. However, if there had been 

blood on this item and then handled, I believe we’d see a take-away impression ***. 

What I mean by take-away impression, if I have flour all over the object and pick it up 

or put my hand down and pick it up, I have got flour on the ridges, but what’s left on 

the object is furrows, or the detail would be of the furrow portion instead of the actual 

ridges. So it appears to me that this is a put-down impression instead of a take-away.” 

¶ 11 With regard to the blood evidence, the jury was told blood found on the pool cue with the 

latent print was consistent with the victim’s blood type, but not defendant’s. The State’s 

witnesses testified the blood taken from the cue stick came from an area away from the latent 

print so as not to interfere with the print’s integrity. The jury was also told defendant could be 

excluded as the source of all blood taken from the crime scene that had been tested, including 

several pieces of broken pool cue sticks. 

¶ 12 In addition to the palm print, the State presented evidence regarding defendant’s shoes to 

bolster its case against defendant. The jury heard evidence defendant regularly wore a 

particular model of Converse shoes, which had a distinctive sole with the letters “CONS.” The 

tread on this style of shoe matched a bloody shoeprint found on the tavern floor. 

¶ 13 After defendant’s arrest, his shoes were examined and determined to be the same length, 

width, brand, and model as the shoe that made the bloody shoe print at the crime scene. 

However, the jury heard defendant’s shoes were not a match for the shoeprint because 

defendant’s shoes had more wear than the shoe that left the print at the tavern. Further, no 

blood was detected on defendant’s shoes. Although the jury heard this evidence regarding 

defendant’s shoes, which were tested, it also heard evidence defendant told the police two days 

before his arrest that he had recently disposed of another pair of this same style of Converse 

shoes. 

¶ 14 The State theorized defendant had a poor relationship with his father and killed him, in 

part, to support his $100 per day cocaine habit. His father had kicked defendant out of the 

family residence, but defendant returned home after his father’s death. Two days before his 

arrest, defendant told the police he had a fight with his father a month before the murder and 
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had previously borrowed $350 from his father and was trying to avoid him. The jury also heard 

after the murder, but before defendant’s arrest, defendant had cashed numerous checks from 

his mother, sold his car, and sold the family’s lawn mower for $500, which his mother and 

brother later reported as stolen. 

¶ 15 William Craig Elliot testified defendant was involved in a $3000 cocaine purchase in April 

1991, just three days after his father’s murder. According to Elliot’s testimony, defendant said 

he had approximately $5000 and wanted to go to Chicago to buy drugs. Elliot testified 

defendant paid $3000 for four ounces of cocaine in Chicago. The jury was instructed to only 

consider this evidence for the purpose of showing defendant’s intent and motive. Defendant 

denied the allegations and knowing Elliot. 

¶ 16 Defendant testified on his own behalf and presented two alibi witnesses. According to 

defendant’s testimony, he was at the tavern on Friday, April 5, 1991, around 11 a.m. His father 

was not at the tavern at the time. He ate lunch, played pool, and borrowed $50 from his mother. 

He left the tavern and returned to the house where he was living about 2 p.m. or 3 p.m. and 

stayed at the house the rest of the day. Todd Aeschleman, who also lived at the house, woke 

defendant around 1:15 a.m. on April 6 and talked to defendant for a while. Defendant testified 

he did not leave the house until he received a telephone call summoning him to the tavern. 

¶ 17 Aeschleman testified he got home around 1 a.m. or 1:30 a.m. on April 6, 1991. Defendant 

was sleeping on the couch. According to Aeschleman, he woke defendant, and the two men 

talked for about 45 minutes. Defendant then went to bed about 2 a.m. Aeschleman stayed up 

until about 3 a.m. He testified he did not hear defendant leave the house at any time that night. 

¶ 18 Pamela Hall, defendant’s other housemate, testified she returned to the house around 8 or 

8:30 on the evening of April 5. Defendant was at the house at that time. She later left but 

returned home around 3 a.m. or 3:30 a.m. on April 6. The other bedroom doors were closed. 

She saw defendant later that morning at 6:30 or 7 when she woke him to take a telephone call. 

¶ 19 Defendant presented other witnesses who testified they had seen defendant and his father 

together in the weeks before the murder. The two appeared to be getting along. The defendant’s 

brother and sister-in-law testified defendant and his father would have disagreements but were 

able to resolve them. Additional witnesses testified they saw defendant soon after the murder 

and did not notice anything unusual. 

¶ 20 The jury found defendant guilty of murder, and the trial court sentenced him to a term of 

60 years’ imprisonment.

¶ 21 In his direct appeal, People v. Whalen, 238 Ill. App. 3d 994, 999, 605 N.E.2d 604, 608 

(1992), this court held defendant could not complain he was not allowed to use his expert 

witness because defendant refused the trial court’s offer to continue the trial to a later date. 

This court also ruled the trial court did not abuse its discretion in allowing the State to present 

evidence regarding defendant purchasing drugs in Chicago shortly after the murder. Finally, 

this court held the trial court did not err by prohibiting defendant from introducing evidence 

regarding Robert McElvaney, whom defendant contended may have committed the murder. 

¶ 22 According to an offer of proof provided by defendant at his trial, McElvaney had been 

asked to leave the tavern by the victim the same night the victim was murdered because 

McElvaney was in a confrontation with two other customers. McElvaney left the tavern 

without incident and told the decedent he would see him the next day. McElvaney told the 

police he was a friend of the decedent and was not upset with decedent for asking him to leave 
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the tavern. While investigating decedent’s murder at 7 a.m. the morning of the murder, two 

detectives went to McElvaney’s residence before any news reports had been released about the 

murder. The detectives found it unusual McElvaney was dressed based on prior contacts with 

him. After the detectives told McElvaney a disturbance had occurred at the tavern, McElvaney 

responded, “I wouldn’t hurt Bill Whalen. Bill Whalen is my buddy. What did I do?”

¶ 23 This court noted no evidence linked McElvaney to the crime scene other than the fact one 

of a number of empty beer cans found at the tavern was the brand McElvaney drank. No 

evidence showed any animosity between McElvaney and the victim. Instead, the evidence 

pointed to an amicable relationship. With regard to McElvaney’s statement to the detectives, 

this court found this evidence was far too uncertain to find the trial court abused its discretion 

in not allowing defendant to introduce this evidence. Our supreme court affirmed this court’s 

decision in People v. Whalen, 158 Ill. 2d 415, 431, 634 N.E.2d 725, 733 (1994). 

¶ 24 On March 10, 2003, defendant filed a pro se motion for DNA testing pursuant to section 

116-3 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/116-

3 (West 2002)). He filed amended motions on July 24, 2003, and November 19, 2004. 

Defendant asked for DNA testing to be done on nine blood swabs from various areas of the 

crime scene, hair found in the victim’s hands, hair found on a table near the body, bloody 

knives found at the scene, and blood and hair samples from both the victim and defendant. 

¶ 25 On February 16, 2005, the trial court conducted a hearing on defendant’s second amended 

motion. During the hearing, the judge, defense counsel, and an assistant state’s attorney visited 

the evidence vault to view the condition of the exhibits from defendant’s trial. The assistant 

state’s attorney noted it appeared several of the knives and parts of the cue sticks were just 

lying in the box together, unsealed. The parties agreed to consult with forensic-testing experts 

to determine whether testing could yield reliable results considering the storage conditions of 

the evidence. 

¶ 26 At a hearing on March 14, 2005, the State noted personnel at the crime lab in Morton 

declared reliable testing could not be provided because the contamination factor was too high 

based on the condition of the knives as described by the State. Defense counsel contacted Dr. 

Karl Reich, who said it would be difficult to determine whether testing would provide a 

reasonable result without him examining the knives. 

¶ 27 In May 2005, the parties and their experts met to examine the condition of the knives. On 

June 6, 2005, personnel at the Morton crime lab filed a report noting the crime lab had received 

the knives for testing analysis in 1991. In 1991, bloodstains were removed from the knives but 

not tested. After the bloodstains were removed from the knives, the knives were analyzed for 

latent prints using a variety of techniques. The knives were then returned to the Bloomington 

Police Department in sealed packages on October 2, 1991. During defendant’s trial, the sealed 

packages containing the knives were opened. The report presumed the knives were placed back 

into the box without packaging after the trial was over. The report concluded the knives were 

subjected to outside influences once removed from their original packaging and the integrity 

of that evidence had been compromised. However, the bloodstains, which were removed from 

the knives before the knives were tested for latent prints, had been returned to the Bloomington 

Police Department in sealed packaging in May 2004. According to the report: 

“It is strongly recommended that the original blood stain evidence from the knives and 

the scene swabs, which is located at the Bloomington Police Department, be analyzed 

since its integrity has not been violated. The stains have remained in a sealed condition 
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intact and unaltered all of these years. In our opinion, the knives and scene swab boxes 

should not be reanalyzed due to the possibility of contamination.” (Emphasis in 

original.)

¶ 28 On June 7, 2005, defendant filed an argument in support of his second amended motion for 

DNA testing, stating as follows:

“Petitioner’s arguments as to why the evidence sought by the requested testing are 

materially relevant to his claim of innocence are not complex. Essentially the 

arguments, as set forth in Petitioner’s Second Amended Motion[,] are that if DNA 

testing of the blood evidence on the knives, blood samples from various areas of the 

crime scene, or the hair evidence does not produce a match to the victim’s DNA profile, 

that would both undermine important evidence presented by the State at trial to the 

effect that the blood and hair were all from the victim, and at the same time support

Petitioner’s arguments at trial that some unknown third party was the assailant and 

not Petitioner. Because the different pieces of evidence requested to be tested could 

conceivably come back with a result favorable to Petitioner in any sort of combination, 

the potential exculpability of those results should not be pre-judged by the Court in 

deciding whether to order the testing, under the principles set forth above. A favorable 

result on few of the items of evidence might be determined to be as probative as to 

Petitioner’s claim of actual innocence as a favorable result only as to the other items. 

For example, there would be no reasonable explanation consistent with the State’s 

arguments at trial as to how the victim had hair from an unknown third party in both of 

his hands. If blood shed on the five knives and at numerous areas of the crime scene 

also matched the DNA from the hair of the unknown person in the victim’s hands, 

Petitioner’s assertion of innocence would be extremely hard to refute. For these 

reasons, the Court should not hesitate to order all of the testing requested.” (Emphasis 

added.)

¶ 29 Dr. Karl Reich’s report was also filed on June 7, 2005. According to his report, 

representatives of the Morton crime lab revealed the swabs used to collect blood evidence from 

the knives and different areas of the crime scene collected during the original processing of the 

evidence had been stored by the lab and then returned to the Bloomington Police Department 

in May 2004, but the police department had not located the swabs. After the date the evidence 

was examined, the missing swabs were located. Dr. Reich recommended these swabs be 

analyzed by DNA STR methods because it would provide important evidence to compare with 

DNA testing being requested on the knives themselves. 

¶ 30 As for the knives, Dr. Reich’s report acknowledged the possibility court personnel could 

have contaminated the evidence during or directly after defendant’s trial. However, Dr. Reich 

recommended DNA analysis would need to be performed on the knives to determine whether 

contamination occurred and how probative testing results might be. Dr. Reich’s report stated:

“DNA STR analysis of a ‘contaminated’ sample could be indicated by a mixed profile. 

Given the size of the stains on the exhibits (large) and the amount of potential 

contamination by simple handling (small), it is most likely that ‘contamination’ of the 

sort discussed *** would be present as a minor component to a major profile upon 

DNA STR analysis.” 

¶ 31 Dr. Reich recommended first testing the knives for human blood and then performing DNA 

STR analysis on stains that tested positive for blood. He noted information was not available 
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“as to the reliability and sensitivity” of blood-testing methods “on biological samples that have 

been prepared for latent print examination and subsequently stored for 15 years.”

¶ 32 In July 2005, the trial court entered an order finding defendant met his burden in 

establishing a prima facie case for ordering DNA STR testing of the blood samples taken at 

the crime scene, hair samples, and blood samples taken from the five knives found at the crime 

scene. The trial court denied defendant’s request to test the actual knives, finding defendant 

failed to meet the “chain of custody” requirement found in section 116-3 of the Criminal 

Procedure Code (725 ILCS 5/116-3 (West 2004)). 

¶ 33 In October 2005, Dr. Reich submitted a supplement to his original report. In the 

supplement, Dr. Reich opined DNA results from a sample that only contained the victim’s 

DNA would “provide little scientific evidence of use for the defense.” However, a mixed 

profile of the DNA of the victim and an unknown third party would provide strong scientific 

evidence for the defense. According to the report:

“Of all the evidence requested to be DNA tested, the hair samples in particular, 

both the preserved slides and the hair in the victim’s hands are the most sensitive 

samples and provide the most likely route to obtaining the results required for pursuing 

postconviction relief under the current Illinois state statute. However, all of the 

evidence requested (including the knives) has the scientific potential to further Mr. 

Whalen’s claim of actual innocence. All of our efforts and arguments are directed at 

preserving these samples and insuring the most robust scientific results of their 

analysis.” 

¶ 34 On October 5, 2007, defendant filed a third amended motion to allow DNA testing. He 

alleged the Morton crime lab had tested 47 exhibits taken from the crime scene. Defendant 

asserted none of the items tested, other than his own representative samples, contained DNA 

profiles that matched his profile. Defendant asked to be allowed to independently examine and 

retest certain items of evidence. He also requested forensic testing of additional items of 

evidence, including beer cans, drinking glasses, a piece of cloth with a red stain, and a partial 

ceiling tile with apparent blood transfer. He also renewed his request to test the five knives 

found at the scene.

¶ 35 On February 4, 2009, defendant filed a supplemental memorandum in support of his third 

amended motion to allow DNA testing. With regard to his request the knives themselves (and 

not just swabs previously taken from the knives) be tested for DNA, defendant made the 

following argument:

“As Defendant’s expert, Dr. Reich has previously opined, the swabs taken from the 

blades of the knives do not necessarily represent a representative sample of all the 

possible relevant DNA evidence on the blades, much less the knife handles, because 

the police who gathered the swab evidence did not likely take the sample with the 

possibility of DNA testing in mind. Given the bent and broken nature of the knives, it 

is highly likely that epithelial cells from the person using the weapon exist in fairly 

large quantity due to the large amount of force that must have been used to stab the 

victim so many times.” 

Defendant continued his argument, stating “given the probability that the victim’s attackers 

left a large amount of epithelial cells on the knives, denying Defendant the right to test the 

knives themselves violates Defendant’s due process rights *** because such evidence has a 

‘reasonable probability’ of showing Defendant is innocent.” 
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¶ 36 On July 1, 2009, the trial court entered an order on all of defendant’s pending amended 

motions to allow DNA testing. The court denied defendant’s request for DNA testing on a 

Marlboro cigarette butt (exhibit 45A), a Cambridge cigarette butt (exhibit 45B), an Old 

Milwaukee beer can (exhibit 55), shot and rock glasses (exhibits 56 and 58), an Old Milwaukee 

beer can from a cooler (exhibit 59), a portion of a ceiling tile (exhibit 80), and a Pabst Blue 

Ribbon can (“BPD Ex. 10”). The court also denied defendant’s request for the court to 

reconsider its decision to deny testing on the actual knives. The court noted the parties had 

agreed to testing at an independent lab of hair samples and two blood samples from knife swabs 

(exhibits 47Q1 and 48Q1). The court reserved its ruling with regard to another sample taken 

from one of the knives (exhibit 18Q1). The court later ordered testing on exhibits 18Q1 and 

18Q2 in January 2011. 

¶ 37 Defendant appealed the trial court’s decision. While the appeal was pending, on March 31, 

2011, Orchid Cellmark’s laboratory examination report was filed in the trial court. According 

to the results stated in the report, two stains (47Q1 and 48Q1) from a serrated knife with a bent 

blade were tested. DNA detected in one stain was consistent with the victim’s, and DNA 

detected in the other sample was identified as the victim’s. The hair found in the victim’s hand 

was identified as originating from the victim in the absence of an identical twin. Other hair 

tested by the lab was determined to have either originated from the victim or was consistent 

with the victim’s hair. Two other blood samples (18Q1 and 18Q2) from a knife were tested, 

and the DNA profile obtained was identified as originating from the victim. 

¶ 38 In September 2011, this court reversed the trial court’s denial of defendant’s request to 

have the actual knives tested. People v. Whalen, 2011 IL App (4th) 090563-U, ¶ 28. According 

to this court’s holding:

“Although the knives, after initial testing at the time of trial, had been stored for 15 

years in an open box with other evidence and it is possible they were contaminated with 

the DNA of a person unrelated to the commission of the crime, it is also possible a third 

person could be identified who committed the crime. A ‘mixed DNA sample’ is 

accepted in the scientific community to reliably reveal the number of contributors to a 

DNA sample and major versus minor contributors. Further, testing may materially 

advance defendant’s claim of innocence as defendant raised at trial, through an offer of 

proof, a specific named individual committed the murder and he was prevented from 

presenting testimony from an expert witness challenging the reliability of comparison 

evidence of defendant’s palm print at the scene due to late disclosure of the expert.” 

Whalen, 2011 IL App (4th) 090563-U, ¶ 1.

According to this court’s decision, it was setting aside the understandable concern for 

efficiency and finality to allow the DNA tests then available to be conducted based on its 

review of the case and what had transpired since the murder. Whalen, 2011 IL App (4th) 

090563-U, ¶ 34. This statement was made after this court earlier in the decision noted 

“[d]efendant acknowledges in his brief that his ‘strongest case for exoneration or a new trial 

rests in the possibility that some or all of the evidence requested to be tested shows a third 

party committed or was involved in the murder.’ ” Whalen, 2011 IL App (4th) 090563-U, ¶ 27.

¶ 39 In August 2017, defendant filed a petition for relief from judgment and a new trial pursuant 

to section 2-1401 of the Civil Procedure Code (735 ILCS 5/2-1401 (West 2016)). According 

to the petition, “Nearly fourteen years after he first sought forensic testing and more than 

twenty-six years after his wrongful conviction, DNA testing has provided the answers that 
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Donald Whalen has always maintained it would: testing shows that he is innocent of his 

father’s 1991 murder.” The petition noted four knives left at the scene of the murder had been 

tested and defendant’s DNA was not found. Instead, the victim’s DNA was found and a 

mixture of the victim’s DNA and another DNA profile was found. Defendant alleged the lack 

of defendant’s DNA on the knives proved he did not kill his father. 

¶ 40 One knife (exhibit 19A) contained a DNA profile of a mixture of at least two individuals 

on the blade. The victim could not be excluded as a possible contributor. Results from the knife 

handle were inconclusive. Another knife (exhibit 21A) had a partial DNA profile originating 

from at least one individual, and the victim could not be excluded as a possible contributor of 

the DNA. A third knife (exhibit 26A) had a DNA profile mixture of at least two individuals on 

the knife blade. Again, the victim could not be excluded as a contributor. Tests from the knife 

handle were inconclusive due to an insufficient amount of DNA. A fourth knife (exhibit 27A) 

had a DNA profile mixture of at least two individuals on the blade. Again, the victim could not 

be excluded. A DNA profile mixture of two individuals was detected on the knife handle. Once 

again, the victim could not be excluded. Defendant was excluded as the source of any DNA 

found on the knives. 

¶ 41 Defendant’s petition noted the trial court on July 13, 2015, ordered Dr. Karl Reich to 

perform an analysis of the Cellmark Forensics DNA results and attempt to deduce a combined 

DNA profile by analyzing the data from the DNA testing performed on the three knives 

(exhibits 19A, 26A, and 27A) where a combined DNA mixture of at least two people was 

found. On December 30, 2015, Dr. Reich issued a report detailing his analysis of the underlying 

data from the DNA testing. Dr. Reich believed combining DNA data from the three knives to 

determine a potential perpetrator was appropriate because the knives were related to the same 

incident, same victim, and likely were used by the same assailant. Dr. Reich created a summary 

of the data in an allele table. The Illinois State Police conducted a keyboard search for the 

combined profile generated from the DNA on the three knives. The keyboard search did not 

produce a hit. 

¶ 42 Defendant also alleged in the petition Dierker’s testimony regarding a link between 

defendant and the partial palm print found on the broken pool cue was suspect. Dierker testified 

the partial palm print could not have been made by anyone other than defendant. The petition 

noted the State, prior to trial, did not provide defendant with records related to a telephone 

conversation between Dierker and Bloomington police officers, which defendant argued 

significantly impacted the opinions testified to by Dierker at defendant’s trial. According to 

the petition, the telephone logs revealed Dierker’s opinion the palm print could not have been 

made by anyone other than defendant was demonstrably false. In the April 30, 1991, telephone 

log, Dierker noted the latent print was inconclusive as to the victim. 

¶ 43 Defendant further requested leave to obtain discovery relating to the underlying opinions 

issued by Dierker so his own expert could perform an analysis of the prints at issue. If the 

discovery request was granted, defendant noted he would supplement his section 2-1401 

petition with any new opinions related to the latent prints at issue. 

¶ 44 Defendant also argued his exclusion as the source of DNA at the crime scene was bolstered 

by forensic testing done prior to trial, which showed defendant was not the source of blood on 

a number of items taken from the crime scene, including swabs and two bloody towels. Blood 

tests were performed on 36 items before defendant’s trial, and defendant was excluded as a 
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source of the blood. Defendant’s tennis shoes were also tested for blood, and none was 

detected. 

¶ 45 Defendant contended he had presented evidence he is not guilty and two other individuals

may be. Defendant noted no jury had ever been presented with any evidence implicating an 

alternate suspect in the murder, including Robert McElvaney. 

¶ 46 In April 2018, defendant filed a supplement to his section 2-1401 petition, submitting a 

report from Michele Triplett, a latent print expert. Triplett noted a test was never performed to 

determine whether the latent palm print on the pool cue was in blood. As a result, defendant 

argued Dierker’s trial testimony the latent print on the pool cue was left in blood was without 

any evidentiary or scientific basis. Triplett also opined no scientific means exists to determine 

when a latent print was deposited. As a result, she said the print could have been left on the 

pool cue before the murder. 

¶ 47 In November 2018, the State filed an amended motion to dismiss defendant’s section 2-

1401 petition pursuant to both section 2-615 (735 ILCS 5/2-615 (West 2018)) and section 2-

619 (735 ILCS 5/2-619 (West 2018)) of the Civil Procedure Code, which the trial court denied. 

A ground for dismissal argued by the State, which is pertinent to this appeal, was that the parts 

of defendant’s petition relating to the latent print on the pool cue stick should be dismissed 

because defendant had discovered Dierker’s telephone logs in 2007 but did not file his section 

2-1401 petition until 2017. The State also argued Michele Triplett’s potential testimony 

regarding the palm print evidence should not be considered and instead stricken from 

defendant’s petition because it was untimely and also because of res judicata principles.

¶ 48 In late January 2019, the trial court held an evidentiary hearing on defendant’s section 2-

1401 petition. Colleen Whalen, the victim’s wife and defendant’s mother, testified her practice 

was to clean the knives at the tavern at the end of her shift and no one had any reason to use 

the knives after she left. She worked on April 5, 1991, until 5 p.m. She cleaned the knives per 

her usual practice at the end of her shift and would have thrown away any damaged knives, 

including bent knives. She testified defendant came into the tavern that day and “banged” 

around on the pool table. 

¶ 49 McElvaney was called as a witness and invoked his fifth amendment right not to answer 

any questions. 

¶ 50 McKinley, the crime scene investigator, was called as a witness and questioned about the 

palm print found on the broken pool cue. McKinley was shown an exhibit that he agreed was 

an outline prepared by the state’s attorney’s office for his potential trial testimony. McKinley 

agreed neither his crime-scene report nor his evidence receipts mentioned a latent print 

impression as described on page three of the trial-prep outline. McKinley also acknowledged 

neither his report nor his evidence receipts mentioned the “ridge detail” he described in his 

trial testimony. However, McKinley maintained he always testified truthfully and the ridge 

detail he saw on the pool cue stick was “vivid and very clear.” On redirect, defense counsel 

established McKinley’s observation was detailed enough for McKinley to form a belief on how 

the print was left on the cue stick. McKinley was asked what his trial testimony (see infra ¶ 9) 

meant when he stated the print was left in blood. McKinley answered his trial testimony meant 

“the hand, the finger, whatever—went onto the bloody pool cue.” However, defense counsel 

further elicited McKinley’s acknowledgment it would be left to the laboratory, not McKinley, 

to make that determination.
- 11 -

¶ 51 McKinley also acknowledged his own handwritten note on page three of the trial-prep 

outline. The handwritten note stated “go ahead and say it’s blood,” and the handwriting was 

immediately next to the outline’s typed words “apparent blood stains on edge of door” and 

“stains on side of building east of door.” When asked why he wrote this note, McKinley offered 

the following explanation: “It’s very typical when I testify to say it’s a red substance that 

appears to be blood, because I can’t testify that it is blood. So when the State’s Attorney says 

just go ahead and say it’s blood, then that’s what I wrote down ***.”

¶ 52 Dierker testified he retired from his position at the Morton crime lab at the end of 2017. 

Defense counsel asked Dierker whether it would have been his practice in 1991 to document 

the need for more legible standards in his latent print worksheets if he compared latent prints 

to an alternate suspect and was not able to either identify or exclude the alternate suspect as 

the person who left the prints. Dierker answered, “Yes, if they were compared and my 

determination was that I needed additional prints in order to form a conclusion as to whether 

that print was made or not made by a certain individual, I would document that in my notes.” 

¶ 53 Defense counsel then asked Dierker about notes he wrote for telephone conversations that 

took place on April 22 and April 30, 1991. The April 22 phone call was 12 days after Dierker 

received the physical evidence in the case. The note for the April 22 phone call stated the call 

was to inform Detective McKinley of a “possible palmprint on exhibit 11.” Dierker testified 

he was informing McKinley it appeared Dierker would need palm prints from the particular 

individuals the police wanted him to compare. Dierker testified he may have included the word 

“possible” in the note because he was not sure he had a print suitable for comparison. However, 

Dierker also stated:

“I’m not sure that—it might be a poor choice of words on my part, but it could have 

been I suppose a situation where I wasn’t sure if it was a finger or a palm, and that it 

would more than likely be a palmprint if I said possible, and that I was just informing 

them that in order to make any determination I would need palmprints of the particular 

people. So it might have been just a situation where because many times they don’t 

submit palmprints without basically being requested to or knowing that there’s a 

possibility that we might have a latent impression that is a palm, that many times it’s a 

courtesy of the agency that we say could you please submit palmprints also so that we 

have everything that we need to examine the case.” 

Dierker had no independent memory why he wrote the word “possible.”

¶ 54 Dierker testified he finished processing the palm print on the pool cue on April 17, 1991, 

which was before his April 22, 1991, phone call with Detective McKinley. Defense counsel 

and Dierker then had the following exchange regarding why Dierker would say he had a 

“possible” palm print after he had finished processing the print:

“[DEFENSE COUNSEL]: So by April 22nd, 1991, even after fully processing the 

latent print on exhibit 11 you still only considered it to be a possible print, correct?

[DIERKER]: Well, when I’m processing a large case many times I will be 

processing a large number of items at a time and I’m attempting to find latent prints on 

many different items at a time. We can photograph an item and then set the photograph 

aside until we have time to sit down and actually do an evaluation and determine if we 

feel the latent print is suitable for comparison. A case that’s large many times I would 

be examining multiple items and attempting to process all of those during a period of 

time as well.” 
- 12 -

Dierker later testified “the process of determining whether the print is suitable for comparison 

is usually done after my processing is completed.” 

¶ 55 Defense counsel then questioned Dierker about his note regarding his April 30, 1991, 

telephone call with Detective McKinley where he informed the detective the palm print on the 

pool cue was inconclusive to the victim. Even though Dierker had compared the victim’s print 

with the latent print found on the pool cue and could neither identify nor exclude the victim as 

the source of the print, Dierker made no mention of this in his report. 

¶ 56 According to Dierker’s testimony, he did not compare the print to any other standards or 

get a different sample from the police for the victim to compare to the palm print after he 

determined the latent print belonged to defendant. Dierker testified it is a practical 

impossibility for the print to belong to someone other than defendant after it was identified as 

defendant’s print. 

¶ 57 Dierker testified he knew defendant was a suspect in the crime when he matched 

defendant’s palm print to the latent palm print on the pool cue. Detective McKinley provided 

Dierker with defendant’s standards on May 30, 1991. Dierker identified defendant as the 

source of the palm print the same day. On June 10, 1991, an assistant state’s attorney told 

Dierker she did not think it was necessary for him to compare any other elimination prints, 

other than defendant’s and the victim’s, to latent prints found at the scene.

¶ 58 Dierker acknowledged the reddish-brown substance the latent palm print was left in was 

never tested to determine if it was blood. He concluded the substance was blood based on what 

he learned from the serologist. A reddish-brown substance on another part of the pool cue did 

test positive for blood. Dierker did not know where the substance tested was located on the 

cue. Dierker also conceded he knew of no peer-reviewed study to support his assertion at trial 

a latent print already on the pool cue would repel blood coming in contact with the print. 

¶ 59 Michele Triplett, an expert in the field of latent fingerprint processing, analysis, and 

examination, testified the reddish-brown substance at the latent palm print was never tested to 

determine if it was blood. Further, serology testing could not be done on the latent print now 

because amido black had been used on the latent print and contaminated the area. She testified 

if the substance was not the victim’s blood, it was possible the palm print could have been on 

the pool cue prior to the victim’s murder. According to her testimony on direct examination, 

she could not tell from the photographs she was provided whether the palm print was a “putdown” or “take-away” print. 

¶ 60 On cross-examination, the State challenged her testimony that she could not tell whether 

the palm print was a “put-down” or “take-away” print in the following exchange:

“[THE STATE]: Can you tell looking at the photos now if it was a put-down or a 

take-away print?

[TRIPLETT]: Well, the ridges are dark, but ridges on a fingerprint are a raised 

portion, so when you touch something there’s pressure that goes down. So it’s not just 

light or dark. They call them tonal reversals, so there are shifts. Primarily you can 

follow or I can follow the dark ridges to make an identification, but without seeing 

color pictures it would be—it leads me to believe that they were put-down prints. The 

dark ridges are an indication of put-down prints. Can I tell that for sure? Not from the 

black and white photo. 

* * *
- 13 -

[THE STATE]: I’m sorry. Earlier today when you were testifying, I just want to 

make sure that I’m understanding you correctly, did you tell us that you could not tell 

if this was a put-down or a take-away? Earlier today did you say that to the Court?

[TRIPLETT]: I cannot tell for sure, yes. What I can say is there’s support for it’s 

more likely that it’s probably a put-down print because of the dark ridges, but I can’t 

tell for sure.” 

¶ 61 On further cross-examination, Triplett confirmed the digital copies of the latent palm print 

recovered from the pool cue were suitable for comparison purposes:

“[TRIPLETT]: I received digital copies that were said to be of comparison value 

and that they came from the Illinois State lab, so I believe that they were. Yes, they 

were in black and white.

[THE STATE]: So they were of a high enough quality that you could have 

conducted the comparison between the latent prints and Donald Whalen’s standards if 

defense counsel had asked you to do that; is that right?

[TRIPLETT]: Yes.”

Triplett also further stated defendant could not be excluded as the source of the palm print in 

the following exchange:

“[THE STATE]: Can you tell for sure whether the latent print matches 

[defendant’s]? Can you tell us whether that latent prints excludes [defendant]?

[TRIPLETT]: Those are two separate questions. Which one?

[THE STATE]: Can you tell for sure whether the latent prints excludes [defendant]?

[TRIPLETT]: No.”

¶ 62 On re-direct examination, Triplett testified Dierker’s testimony the latent palm print was 

in blood had no scientific foundation or evidentiary support. However, neither her testimony 

regarding the suitability of the palm print for comparison value nor her opinion defendant could 

not be excluded as the source of the latent print were challenged by defense counsel. 

¶ 63 Dr. Reich testified the knives were not preserved in an ideal way before he examined them 

in 2005. According to his testimony, the way the knives were stored did not “negate the ability 

to sample and test them.” However, he noted “[i]t might influence the interpretation of the 

data.” Dr. Reich stated the knives had been examined for latent prints and were also swabbed 

by the laboratory to collect biological evidence in 1991. Although he had no personal 

knowledge, he believed the knives had been handled in some way during defendant’s trial 

based on the way they ended up in the storage box. According to Dr. Reich, given the way the 

victim died and the murder scene, Reich would have expected to see the DNA of the victim 

and the attackers at the scene. 

¶ 64 The knives and the swabs taken from the knives were forensically tested. During Dr. 

Reich’s testimony, the court admitted defendant’s exhibits 69, 70, and 71. Exhibits 69 and 70 

were laboratory examination reports from Orchid Cellmark dated January 30, 2010, and 

February 28, 2011, respectively. These reports showed all the DNA obtained from the items 

tested was consistent with the victim. Exhibit 71 was a laboratory examination report from 

Cellmark Forensics dated November 29, 2013. It was prepared as a result of this court’s order 

allowing the knives to be tested. Only after the knives were tested did the mixed DNA profiles 

appear. 
- 14 -

¶ 65 Dr. Reich testified he expected to find the assailant’s DNA on the knives used to attack the 

victim in this case given the nature of the attack, noting an assailant using a knife without a 

blade guard is very likely to cut himself. Defendant’s DNA was not found on the knives, but 

the victim’s DNA was. Some other unidentified DNA was found on the knives, but the amount 

of this DNA was not sufficient to identify anyone other than the victim. Dr. Reich conceded 

one explanation for the unidentified DNA was contamination. When asked to explain what 

contamination means in the DNA testing context, Dr. Reich stated:

“The simplest explanation is that contaminating DNA is DNA that makes its way on 

the item of evidence and then is identified by genetic profiling as not coming from a 

probative source. So it could be DNA that’s irrelevant to the sample but was deposited 

there by first responders, by the ambulance, by the scene technician, by the analyst, by 

anybody else who is not really associated with the item or the event. Contamination is 

a fact of life in forensic DNA laboratories.” 

Dr. Reich testified he was confounded by the lack of DNA evidence at the scene of this murder. 

¶ 66 Jennie Hahn, a retired forensic scientist in the area of biology at the Morton crime lab, 

testified she worked on the investigation of William Whalen’s death in 1991. She removed part 

of a reddish-brown stained area on the pool cue with a Q-tip from an area where Dierker 

directed her to avoid compromising the site of a latent print. She identified the substance she 

tested as human blood. She did not know how far the latent print was from the stain she 

sampled. She could not give any scientific testimony as to what other substances might have 

been on the pool cue. 

¶ 67 On February 13, 2019, the trial court issued its ruling on defendant’s section 2-1401 

petition. The court noted the State did not have any eyewitness testimony. Further, defendant 

did not make a confession or any statements against his interests. According to the court, the 

State’s case was based almost entirely on circumstantial evidence and centered around the

blood and print evidence.

¶ 68 The trial court noted the State argued defendant’s motive for murdering his father was to 

fund his drug habit but noted the evidence to support this claim was entirely circumstantial. In 

addition, the court stated the person who killed decedent left a large amount of money at the 

crime scene. 

¶ 69 While noting no new evidence was presented about the shoe print found at the crime scene, 

the court stated evidence at the trial indicated defendant had a pair of Converse shoes when he 

was arrested approximately two months after the murder. Defendant’s shoes were the same 

length and width as the shoe that left the print at the murder scene. However, the court noted 

the wear pattern on defendant’s shoes, on which no blood was detected, could not be matched 

to the shoeprint at the murder scene. The court also stated the type of shoe and size of shoe 

was not uncommon for the time when the murder occurred. 

¶ 70 The trial court indicated it could not consider McElvaney’s testimony in the context of the 

section 2-1401 hearing, as it was not newly discovered evidence.

¶ 71 With regard to the DNA evidence, the trial court noted five or six knives were found at the 

crime scene. The court noted three of the knife blades contained a total of four different 

combined blood mixtures that could include the victim but would exclude defendant. The court 

stated defendant had been excluded from every sample of blood provided. The court found the 

lack of defendant’s DNA on any of the knives, as well as other items examined, constituted 
- 15 -

new and relevant evidence. The court also stated the DNA evidence potentially implicated an 

unknown assailant. However, the court also recognized Dr. Reich’s testimony the unknown 

DNA could have resulted from contamination. Regardless, according to the trial court, this 

DNA evidence would have changed the way defendant’s jury considered the evidence at 

defendant’s trial. 

¶ 72 As to the palm print on the cue stick, the trial court discussed Dierker’s telephone logs, 

particularly the two logs from April 22 and April 30, 1991. The April 22, 1991, telephone log 

indicated Dierker said there was a possible palm print on the pool cue. The April 30, 1991, 

telephone log noted Dierker said the palm print was inconclusive as to the victim. The court 

noted the telephone logs were never made available or provided to the defense and constituted 

new evidence. According to the court, if the palm print was not suitable to compare to the 

victim, Dierker’s opinion the palm print matched defendant’s profile was called into question. 

¶ 73 In addition to the telephone logs, the trial court found defendant introduced new evidence 

challenging the scientific basis for Dierker’s expert testimony and the State’s argument the 

palm print was in the victim’s blood because the substance the palm print was in was never 

tested to verify it was blood. A visual examination of the reddish-brown substance on the pool 

cue was not sufficient to scientifically establish the substance was blood. However, the court 

noted a trier of fact could draw an inference the substance was blood. 

¶ 74 The trial court also commented on the summary or outline provided to McKinley by the 

assistant state’s attorney to prepare McKinley to testify at defendant’s trial, which was not 

available to defendant at his trial. The court noted the summary commented on how the palm 

print was placed on the cue stick as a “take away” print, even though McKinley never wrote 

any kind of report providing a basis for his trial opinion. While noting McKinley testified he 

never tailored his testimony to anything but the truth, the court found the summary was relevant 

as to the weight McKinley’s testimony should have been given. 

¶ 75 In conclusion, the trial court stated:

“So, there is new evidence and the court hereby finds that after taking all of the 

evidence at the trial, together with the newly discovered DNA evidence, the additional 

notes from John Dierker indicating that the palm print found on the pool cue stick was 

inconclusive as to the victim, that both blood and fingerprint evidence were significant 

factors at the defendant’s trial based on the state’s theory presented that the defendant 

was the sole assailant who stabbed the decedent over 30 times and struck the [decedent] 

with a pool cue and a bar stool several times, and that the palm print on the pool cue 

could only be the defendant’s and only have been deposited during the commission of 

the crime, that this evidence was more likely than not to have affected the jury’s 

determination, and the court further finds the likelihood of a different result is great 

enough to undermine the confidence in the outcome of the original trial. As a result, 

the Petitioner’s 2-1401 petition is allowed, his convictions are hereby vacated, and a 

new trial is ordered.” 

¶ 76 This appeal followed.
- 16 -

¶ 77 II. ANALYSIS

¶ 78 In People v. Coleman, 2013 IL 113307, ¶ 96, 996 N.E.2d 617, our supreme court stated:

“Substantively, in order to succeed on a claim of actual innocence, the defendant 

must present new, material, noncumulative evidence that is so conclusive it would 

probably change the result on retrial. [People v. Washington, 171 Ill. 2d 475, 489, 665 

N.E.2d 1330 (1996)]. New means the evidence was discovered after trial and could not 

have been discovered earlier through the exercise of due diligence. [Citation.] Material 

means the evidence is relevant and probative of the petitioner’s innocence. [Citation.] 

Noncumulative means the evidence adds to what the jury heard. [Citation.] And 

conclusive means the evidence, when considered along with the trial evidence, would 

probably lead to a different result.”

The trial court in this case allowed defendant’s petition pursuant to section 2-1401 of the Civil 

Procedure Code (735 ILCS 5/2-1401 (West 2018)), finding the new evidence presented by 

defendant “was more likely than not to have affected the jury’s determination, and the court 

further [found] the likelihood of a different result [was] great enough to undermine the 

confidence in the outcome of the original trial.” 

¶ 79 On appeal, the State argues the claims related to the latent palm print on the pool cue stick 

were time-barred and should not have been considered. Further, the State argues the trial 

court’s decision granting defendant’s petition for relief from judgment pursuant to section 2-

1401 of the Civil Procedure Code (735 ILCS 5/2-1401 (West 2018)) was manifestly erroneous 

and should be reversed outright. In the alternative, the State contends the trial court relied on 

this court’s decision in Davis, 2012 IL App (4th) 110305, ¶ 63, where, according to the State, 

this court erred in equating “the phrase ‘probably change the result’ to a ‘reasonable 

probability’ that is merely enough to undermine confidence and need not be ‘more likely than 

not.’ ” Thus, if an outright reversal is not justified, the State argues we should reverse the trial 

court’s decision to grant defendant’s section 2-1401 petition and remand this case and order 

the trial court to reconsider its decision under the proper standard.

¶ 80 A. Palm Print Claim

¶ 81 We first address the State’s argument the trial court should have dismissed defendant’s 

claim related to the latent palm print on the pool cue stick because defendant did not make the 

claim within two years of defendant receiving Dierker’s telephone logs. Even assuming, 

arguendo, the State is correct a claim based on Dierker’s telephone logs would not have been 

timely on its own, the State agrees defendant could proceed with his section 2-1401 petition 

pursuant to section 116-3 of the Criminal Procedure Code (725 ILCS 5/116-3 (West 2018)) 

because of the new DNA evidence in this case. Moreover, in its reply brief and at oral 

arguments, the State further posited the telephone log evidence would be admissible in the 

present section 2-1401 litigation even if defendant had based a prior section 2-1401 petition on 

this same evidence. 

¶ 82 Section 116-3 allows a defendant, in some situations, to have forensic DNA testing 

performed on evidence secured in relation to a trial or guilty plea that resulted in the 

defendant’s conviction. 725 ILCS 5/116-3 (West 2018). Section 2-1401(c) of the Civil 

Procedure Code states:
- 17 -

“Except as provided in Section 20b of the Adoption Act [(750 ILCS 50/20b (West 

2018))] and Section 2-32 of the Juvenile Court Act of 1987 [(705 ILCS 405/2-32 (West 

2018))] or in a petition based upon Section 116-3 of the Code of Criminal Procedure 

of 1963, the petition must be filed not later than 2 years after the entry of the order or 

judgment. Time during which the person seeking relief is under legal disability or 

duress or the ground for relief is fraudulently concealed shall be excluded in computing 

the period of 2 years.” 735 ILCS 5/2-1401(c) (West 2018).

The results of the DNA tests performed on the knives in this case are the primary bases for 

defendant’s section 2-1401 petition as written. 

¶ 83 In the case sub judice, defendant received Dierker’s telephone logs approximately 15 years 

after his trial, and he sought to present the log evidence along with the DNA evidence. Pursuant 

to Coleman, we find Dierker’s telephone logs were “new” evidence, and given the unique 

circumstances of this case, we are not persuaded the trial court erred in considering the 

telephone log evidence simply because a section 2-1401 claim based only on the telephone 

logs might have been untimely.

¶ 84 B. Trial Court’s Order Granting Defendant’s Section 2-1401 Petition

¶ 85 We next address the State’s arguments (1) the trial court erred by granting defendant’s 

section 2-1401 petition for relief from judgment and (2) this court erred by equating the phrase 

“probably change the result” of a new trial with a “reasonable probability” the result of a new 

trial would be different. The State asks this court to reverse the trial court’s decision outright 

or reverse the trial court’s decision and remand the case for the trial court to determine whether 

it is more likely than not a new trial would lead to a different result. 

¶ 86 In announcing its decision to vacate defendant’s conviction and order a new trial, the trial 

court found the “new” DNA evidence would likely change how a jury in a new trial would 

consider the evidence at defendant’s original trial. However, we note this is not a case where 

defendant was convicted based on biological evidence left by him at the crime scene. In fact, 

at defendant’s trial, evidence was presented excluding defendant as the source of any blood 

found at the crime scene. 

¶ 87 As a result, the situation in this case is distinguishable from what occurred in Davis. In 

Davis, the State spent considerable time explaining how the serological evidence available at 

the time of trial included the defendant as someone who could have committed the crime. 

Davis, 2012 IL App (4th) 110305, ¶ 53. However, the newly discovered DNA evidence in 

Davis excluded the defendant as the donor of the blood and semen left on bedding where the 

victim’s rape and murder had occurred. 

¶ 88 Here, contrary to defendant’s assertion in his section 2-1401 petition, the fact defendant’s 

DNA evidence was not found at the murder scene, on its own, does not establish he did not 

commit the crime. Dr. Reich noted in the October 2005 supplement to his original report to the 

court that DNA results from samples only containing the victim’s DNA would provide little 

scientific evidence of use for the defense. As noted, defendant was found guilty without any 

biological evidence tying him to the murder. 

¶ 89 Since defendant’s trial, no one other than the victim has been identified as a source of DNA 

found at the crime scene. In late 2006 and early 2007, the Morton crime lab tested many items 

of evidence in this case for DNA evidence, including (1) boxes in which blood swabs from the 
- 18 -

crime scene had been stored in, (2) swabs from the crime scene containing blood, and 

(3) bloodstains, indicated bloodstains, and stain samples from (a) knives, (b) a piece of broken 

pool cue, (c) the door to the tavern, and (d) a bar stool. As to the DNA found, the victim could 

not be excluded as the source with two exceptions. The Morton crime lab did find a DNA 

profile on a cigarette butt attributable to neither defendant nor the victim. However, the trial 

court did not order the cigarette butt retested because it was found in a public bar and did not 

advance defendant’s innocence claim. The crime lab also detected a mixed profile on a filet 

knife (exhibit 18). One of the DNA profiles matched the victim. An additional DNA type was 

found at one locus. However, it appears when a blood sample from the filet knife was later 

tested, only the victim’s DNA was identified. 

¶ 90 According to Cellmark Forensic’s supplemental report dated November 29, 2013, all of 

the DNA Orchid Cellmark found on the items it examined in 2009 and 2010 was either 

identified as originating from the victim (in the absence of an identical twin) or was consistent 

with the victim. The items tested included blood stains from a serrated knife with a bent blade, 

hair found in the victim’s right hand, other hair found at the crime scene, and two blood 

samples from a knife. Cellmark Forensics only identified a mixed DNA profile, including the 

DNA of someone other than defendant and the victim, on the knives which this court ordered 

tested even though they had been stored together unsealed for 15 years and were possibly 

contaminated with the DNA of persons unconnected with the murder. No one was identified 

from the DNA not associated with the victim. 

¶ 91 Dr. Reich did note in his October 2005 supplement to his original report that a mixed profile 

of the DNA of the victim and an unknown third party would provide strong scientific evidence 

for the defense. However, Dr. Reich also conceded contamination could explain the DNA 

found on the knives that was not associated with the victim. 

¶ 92 Dr. Reich was confounded by the lack of DNA evidence found at the murder scene. 

According to Dr. Reich, he would expect to find DNA from the assailant on the knives used in 

a brutal knife attack like the one at issue in this case. Further, he testified it was very unlikely 

defendant handled any of the items tested in the violent assault on decedent because defendant 

was excluded as being a source of DNA on the items. However, the DNA left at the scene did 

not identify anyone other than the victim, and the victim clearly did not kill himself. As a result, 

regardless of Dr. Reich’s testimony, whoever murdered the victim in this case may have done 

so without leaving behind any DNA evidence. The situation would be much different if the 

DNA test results showed DNA found on the murder weapons originated from McElvaney or 

some other individual who could be linked to the murder. 

¶ 93 Even though defendant did not present any new evidence regarding the shoeprint left in 

blood at the crime scene, the trial court commented on the trial evidence, stating:

“We know that the defendant had shoes at the time of his arrest that were of the same 

length and width as the shoe prints that were left at the murder scene. We know that 

the defendant’s shoes could not be matched to the shoes that left the impressions at the 

murder scene. We know that the defendant’s shoes that were retrieved from him at the 

time of this arrest had no blood on them.” 

The trial court pointed out the type and size of the shoe that made the shoeprint was not 

uncommon for the time when the murder occurred. While true, we also note defendant told 

police officers he had recently thrown away a pair of the same model of Converse shoes prior 

to his arrest. 
- 19 -

¶ 94 As previously stated, the trial court commented on the summary or outline the assistant 

state’s attorney provided to McKinley so he could prepare for his testimony. Supra ¶ 74. Here, 

we note McKinley never opined at trial whether the latent print was a “put-down” or “takeaway,” and he was never asked for his opinion on that issue. Moreover, the summary or trialprep outline did not make any reference to the latent prints as “take-away” or “put-down.”

¶ 95 The trial court correctly recognized the importance the State placed on the evidence 

regarding the “bloody” palm print at defendant’s trial. The court noted the State argued the 

evidence indicated defendant’s bloody palm print was not on the pool cue stick prior to the 

attack on the victim. In announcing its decision to vacate defendant’s conviction and order a 

new trial, the trial court stated the following:

“If the palm print secured from Exhibit 11, the pool cue, was unsuitable for comparison 

to the victim, William Whalen, then the court finds that that [sic] casts doubt on the 

opinion that the palm print was a match to the defendant; in the alternative, if the palm 

print was unsuitable for comparison to the victim, then that casts doubt on whether the 

print could not have been made by anyone except the defendant as it could have been 

the victim’s if, as testified to by Mr. Dierker, a better print was available or a better 

print standard for comparison purposes was available.” 

¶ 96 However, Michele Triplett, defendant’s expert witness, testified she had compared 

defendant’s print to the palm print on the pool cue. Triplett was never asked by defense counsel 

whether defendant’s palm print did not match the print on the cue either on direct or redirect 

examination. Further, Triplett’s testimony corroborated Dierker’s that the print on the pool cue 

was suitable for comparison. Additionally, Triplett testified the palm print appeared to be a 

“put-down” print, although she could not say for certain. Finally, it does not appear defendant 

presented any new evidence this was not defendant’s palm print on the pool cue. 

¶ 97 The trial court correctly noted the substance on the pool cue in which the palm print was 

left was never scientifically determined to be blood. While accurate, this is not new evidence. 

The State’s 1991 trial evidence was quite specific the substance in which the palm print was 

found was not scientifically tested. In fact, the State emphasized it did not test the substance to 

avoid compromising the latent print. 

¶ 98 At defendant’s trial, the State told the jury “the evidence indicates to you that the manner 

in which that print was on there was in such a way that it only got there when it was used to 

kill Bill Whalen. That print *** was not on there at any time prior to Bill Whalen being killed 

***.” Defendant argues the State’s failure to scientifically establish the print was left in blood 

would allow a jury in a new trial to conclude the print was left on the cue stick in some 

unknown substance at some unknown time prior to the murder. Hence, without scientific 

testing to prove the substance was blood, the State would need to rely on the jury drawing an 

inference the substance was the victim’s blood. In response, the State argues the totality of the 

evidence “overwhelmingly” supports such an inference. 

¶ 99 Here, we note defendant at trial never raised any question or concern about the absence of 

testing during cross-examination of Dierker or Hahn, nor in closing argument. Defendant, like 

the State, appeared to accept the inference the reddish-brown substance was blood. A similarly 

colored substance was tested from a different part of the pool cue stick with the latent print and 

was found to be blood. Similarly colored substances were also tested on other pieces of the 

broken cue sticks and were indicated to be blood. Defendant’s strategy was never to challenge 
- 20 -

whether the substance containing the print was blood until defendant submitted Triplett’s 

report approximately 27 years after the murder. 

¶ 100 In rendering its judgment, the trial court noted the evidence was “more likely than not to 

have affected the jury’s determination,” and it found “the likelihood of a different result is 

great enough to undermine the confidence in the outcome of the original trial.” It is apparent 

the court, understandably and justifiably, applied the “reasonable probability” standard this 

court set out in Davis, 2012 IL App (4th) 110305, ¶¶ 62-63, where we stated: 

“New evidence need not be completely dispositive of an issue to be likely to change 

the result upon retrial. It need only be conclusive enough to probably change the result 

upon retrial. [Citation.]

It is important to clarify what is meant by the phrase ‘probably change the result’ 

upon retrial. In the context of a Brady violation (Brady v. Maryland, 373 U.S. 83 

(1963)), the Supreme Court of the United States recently explained, ‘A reasonable 

probability does not mean that the defendant “would more likely than not have received 

a different verdict with the evidence,” only that the likelihood of a different result is 

great enough to “undermine[ ] confidence in the outcome of the trial.” ’ [Citation.] The 

phrase is also explained or clarified in the same way in Strickland v. Washington, 466 

U.S. 668, 694 (1984), in the context of an ineffective assistance of counsel claim.” 

(Emphases in original.)

Even though the author in the instant case concurred in the Davis opinion, we now conclude 

this court erred by equating the language “probably change the result on retrial” with a 

“reasonable probability” the result would change on retrial. Notably, the former standard 

places a higher burden on a defendant than does the latter. 

¶ 101 The rationale for the standard applied by the United States Supreme Court in Brady and 

Strickland, which this court relied on in Davis, does not apply to a defendant’s request for a 

new trial based on newly discovered evidence. According to the Supreme Court, a defendant 

claiming ineffective assistance of counsel did not need to show his attorney’s deficient 

representation “more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 

693. The Court then explained:

“This outcome-determinative standard has several strengths. It defines the relevant 

inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but 

precise. The standard also reflects the profound importance of finality in criminal 

proceedings. Moreover, it comports with the widely used standard for assessing 

motions for new trial based on newly discovered evidence. [Citation.] Nevertheless, 

the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, 

the newly discovered evidence standard is not an apt source from which to draw a 

prejudice standard for ineffectiveness claims. The high standard for newly discovered 

evidence claims presupposes that all the essential elements of a presumptively accurate 

and fair proceeding were present in the proceeding whose result is challenged. 

[Citation.] An ineffective assistance claim asserts the absence of one of the crucial 

assurances that the result of the proceeding is reliable, so finality concerns are 

somewhat weaker and the appropriate standard of prejudice should be somewhat lower. 

The result of a proceeding can be rendered unreliable, and hence the proceeding itself 
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unfair, even if the errors of counsel cannot be shown by a preponderance of the 

evidence to have determined the outcome.” Strickland, 466 U.S. at 693-94. 

This language from Strickland instructs a “more likely than not” standard should be applied in 

cases like this one.

¶ 102 Our supreme court in Coleman did cite Davis with approval. However, the supreme court 

did not specifically adopt this court’s definition for the language “probably change the result.” 

In fact, the supreme court indicated the actual innocence standard is extraordinarily difficult to 

meet. Coleman, 2013 IL 113307, ¶ 94. In addition, the supreme court cited People v. Edwards, 

2012 IL 111711, 969 N.E.2d 829. In Edwards, the supreme court equated the phrase “probably 

change the result” with “it is more likely than not that no reasonable juror would have 

convicted” the defendant. (Internal quotation marks omitted.) Edwards, 2012 IL 111711, ¶ 40. 

Subsequent to Davis, this court in People v. Merriweather, 2017 IL App (4th) 150407, ¶ 25, 

80 N.E.3d 127, cited Edwards for the proposition relief on an actual innocence claim should 

be granted only when it is more likely than not no reasonable juror would have convicted the 

defendant in light of newly discovered evidence. Finally, our supreme court in People v. 

Sanders, 2016 IL 118123, ¶¶ 24, 47, 47 N.E.3d 237, cited Edwards for this same proposition. 

¶ 103 Based on the record in this case, it is unclear whether the trial court would have vacated 

defendant’s conviction and ordered a new trial if the court had not followed the “reasonable 

probability” standard erroneously put forward by this court in Davis. As a result, we reverse 

the trial court’s order vacating defendant’s conviction and direct the trial court to determine 

whether it is “probable” or “more likely than not” a jury would acquit defendant after a new 

trial where the new evidence in this case is considered alongside the original trial evidence.

¶ 104 III. CONCLUSION

¶ 105 For the reasons stated, we reverse the trial court’s order granting defendant’s section 2-

1401 petition and vacating defendant’s conviction. We remand for further proceedings so the 

court can determine whether a different result after a new trial would be “probable” or “more 

likely than not” based on the new evidence in this case considered alongside the original trial 

evidence.

¶ 106 Reversed and remanded.