a\								Docket No. 92143–Agenda 10–September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								RONALD KLINER, Appellee.

Opinion filed December 19, 2002.

	JUSTICE THOMAS delivered the opinion of the court:

	The State has appealed an order of the circuit court of Cook

County allowing the motion of defendant, Ronald Kliner, for

mitochondrial DNA (mtDNA) testing pursuant to section 116–3 of

the Code of Criminal Procedure of 1963 (725 ILCS 5/116–3 (West

2000)).   For the reasons set forth below, we conclude that the State

does not hav3e e quthauthority to preoceed with this appeal and therefore

find that the appeal must be dismissed.

	Following a jury trial, defendant, Ronald Kliner, was found

guilty of the murder of Dana Rinaldi.   Dana had been fatally shot

five times in the face and head while seated in her car. 

 Defendant,

Michael Permanian and Dana’s husband, Joseph Rinaldi, had been

charged with the murder.   Joseph Rinaldi eventually pled guilty and

testified on behalf of the State at the trial of defendant and

Permanian.   Defendant and Permanian were tried together but

before separate juries.   At trial, the State presented evidence that

Joseph Rinaldi had hired defendant and Permanian to kill his wife.

   	Defendant waived a jury for his death sentencing hearing.   The

trial court found defendant eligible for the death penalty on the

basis that he committed the murder pursuant to contract,

agreement or understanding by which he was to receive money or

anything of value in return for committing the murder.   Ill. Rev.

Stat. 1987, ch. 38, par. 9–1(b)(5).   After considering evidence in

aggravation and mitigation, the trial court found no mitigating

factors sufficient to preclude imposition of the death penalty and

sentenced defendant to death.   This court affirmed defendant’s

conviction and sentence on direct appeal.   People v. Kliner,  185 Ill. 2d 81 (1998).

	After defendant’s conviction and sentence were affirmed on

direct appeal, defendant filed a petition for post-conviction relief

(725 ILCS 5/122–1 (West 2000)), which the trial court denied

during the pendency of this appeal.   During the post-conviction proceedings, defendant filed a pro se motion for DNA testing pursuant to section 116–3 of the Code of Criminal Procedure of

1963 (725 ILCS 5/116–3 (West 2000)).   Defendant’s pro se motion requested DNA testing of hair evidence, as well as other testing

not at issue in this appeal, in an attempt to prove his actual

innocence.   Attached to defendant’s motion were reports from the

Illinois State Police Division of Forensic Sciences. 

 These reports

reflected that hairs and other materials were observed on the

sweater vest, blouse, jeans, leather gloves, sweater jacket, shoes

and socks that Dana Rinaldi was wearing when she was shot.   In

addition, vacuum sweepings taken from the front seat of Dana’s

car included hairs and other materials. 

 Defendant claimed that

mtDNA testing of the hairs would prove that defendant did not

murder Dana.

	In response, the State noted that prior to trial, defendant had

been excluded as a possible donor of the hair found on Dana’s

clothing.   The State further explained that testing was not done on

the hairs found within Dana’s car because there was no evidence

that the shooter ever entered Dana’s car.   Rather, the evidence

indicated that defendant was outside Dana’s car when he shot her.  

For example, all the shell casings were found outside Dana’s car.  

Dana was found seated in the driver’s side of her car, slumped over

to the passenger side.   The State argued that, given the lack of

evidence that Dana came into contact with her killer, any mtDNA

testing would not be materially relevant to defendant’s claim of

actual innocence.   

	On November 20, 2000, the trial court entered a written order

denying defendant’s motion.   With regard to the hair evidence, the

trial court held:

		“The request for DNA testing on hair samples also is not

appropriate under the statute.   Assuming arguendo that the technology available today was not available at the time of

trial, identification of the donor of the hair found in the

vehicle would not be relevant to defendant’s innocence. 

There was no evidence at trial that the killer was ever in

the victim’s car.   Physical evidence and witness testimony

showed that the killer approached the victim as she was

exiting her car and shot her in the head.   There was no opportunity for the killer to leave hair inside her vehicle. 

Even if donors of hairs found inside the vehicle could be

identified, it does not prove that someone else committed

the murder.   Anyone who had been in the victim’s car since

it was manufactured could have left hair behind.   It does

not come close to proving that the defendant is innocent.”

	On January 3, 2001, defendant filed a motion to reconsider the

trial court’s order denying mtDNA testing.   Defendant’s motion

claimed that the trial court had failed to address defendant’s

request to test “certain hairs found in the clutched hand of the

victim and on her coat.”   Defendant further argued that “it is

reasonable to conclude that where the hairs found clutched in the

hands of the deceased are not those of [defendant], that this would

be significant exculpatory evidence and may lead a reasonable trier

of fact or reviewing court to the conclusion that [defendant] is

innocent of the offense of capital murder.”   

	At the hearing on defendant’s motion to reconsider, the State

again observed that comparison tests had been performed on the

hairs found on Dana’s glove.   Those tests, which were performed

prior to defendant’s trial, excluded defendant and Michael

Permanian as possible donors.   

	Following argument, the trial court granted defendant’s

motion to reconsider and entered an order allowing mtDNA

analysis of hairs recovered from Dana’s gloves.   In entering its

order, the trial court stated that:

			“Well, when I made my original ruling, I was really

considering my impression of the motion and of the

evidence in the case that there was hair found in the

vehicle and hair found in various places, like they’re

talking about her sweater vest and on her clothes, and, you

know, I know if I looked at my clothes with a microscope,

I would find my dog’s hair, my children’s hair and

whoever else’s hair.   I might have sat in somebody’s car,

hair from their car.   At that point, I did not feel it was

provident.   However, now that its brought to my attention

that there were, in fact, hairs, although, you know, I doubt

if its going to be fruitful for the defense ***; however, as

we’ve seen, from the most recent case law and the most recent science that it is certainly not conclusive, and I

believe we’re talking about a DNA test on essentially one

sample of hair, and I think just to be absolutely certain,

which is what we are trying to do, we should, in fact,

allow the testing of the hair on the leather gloves.

			I understand that we don’t have any eye witness

testimony.   I don’t know if there was a struggle.   My

recollection of the evidence was that she was getting out

of her car when the attack occurred, and I suppose it

could be conceivable that she might have been able to

reach up and grab the hair of the assailant.”

As noted, the State has appealed the trial court’s order to this

court.   

	At the outset, we must address whether an order allowing

DNA testing pursuant to section 116–3 is a final and appealable

order from which the State can seek review.   After the State filed

its notice of appeal in this case, defendant filed a motion to strike

the notice of appeal and to dismiss the appeal on the ground that

it was an impermissible interlocutory appeal.   This court denied

defendant’s motion.   In his brief, defendant again contends that the

State’s appeal is an impermissible interlocutory appeal because the

order allowing DNA testing was not a final order.

	Upon reexamining the issue, we find that the instant appeal

does not fit within the range of State appeals authorized by our

rules.   No rule expressly permits the State to bring an appeal from

an order similar to the one entered here.

	Our supreme court rules provide for appeals by the State as

follows:

			“(1) When State May Appeal.   In criminal cases the State may appeal only from an order or judgment the

substantive effect of which results in dismissing a charge

for any of the grounds enumerated in section 114–1 of the

Code of Criminal Procedure of 1963 [725 ILCS 5/114–1

(West 2000)]; arresting judgment because of a defective

indictment, information or complaint; quashing an arrest

or search warrant; or suppressing evidence.

			(2) Leave to Appeal by State.   The State may petition for leave to appeal under Rule 315(a).”   188 Ill. 2d Rs.

604(a)(1), (a)(2).

	The State did not petition this court for leave to appeal under Supreme

Court Rule 315(a) (177 Ill. 2d R. 315(a)), so Rule 604(a)(2) does

not provide this court with jurisdiction over the State’s appealy.   Likewise, the trial court’s order granting defendant’s

motion pursuant to section 116–3 does not fall within any of the

categories set forth in Rule 604(a)(1). 

 Therefore, Rule 604(a)(1)

does not provide the State with authority to proceed with the

instant appeal.

	The State responds that we need not look to Rule 604(a)(1)

to

determine

our

jurisdiction

becabecause the order in this case was a final order, and Rule 604(a)(1)

applies only to nonfinal orders.   The State notes that in People v. Savory, 197 Ill. 2d 203 (2001), this court observed that a section 116–3 motion “seeks to initiate a separate proceeding, independent

of any claim for post-conviction or other relief.”   Savory, 197 Ill. 2d at 210.   Consequently, we held that the denial of a defendant’s

motion for DNA testing under section 116–3 was a final judgment.  

Savory, 197 Ill. 2d at 211.   The State contends that it follows that an order granting a section 116–3 motion, like an order denying

such a motion, is a final judgment. 

	Accepting the State’s characterization of the instant order as

a final order does not establish that the State has the right to appeal

the order to this court.   The State cites Supreme Court Rule 603

(134 Ill. 2d R. 603) as providing authority for its appeal of the trial

court’s final order.   Supreme Court Rule 603 provides:

		`	“Appeals in criminal cases in which a\ statute of the

United States or of this State has been held invalid and

appeals by defendants from judgments of the circuit courts

imposing a sentence of death shall lie directly to the

Supreme Court as a matter of right.   All other appeals in

criminal cases shall be taken to the Appellate Court.”   134

Ill. 2d R. 603.

Rule 603 does not provide a basis to appeal the order to this court.

The circuit court did not invalidate a statute on constitutional

grounds. Rule 603 only provides the State a basis to appeal a

circuit court'’s finding of unconstitutionality. See People v. Miller,, No. 89795 (November 21, 2002). This court previously has noted, however, that rRule 603 “was not

intended to create an independent basis for appellate review.   It

merely specifies which court should hear a case that is otherwise

appealable.”   People v. Truitt, 175 Ill. 2d 148, 151 (1997).   aAs discussed , however, thoe order State has not shown that the order at issue

is otherwise appealable.   aA Accordingly, contrary to the

State’s claim, the State does not have authority to proceed with

this appeal based upon Rule 603.

	We further note that in light of this court’s finding in Savory that a section 116–3 motion is a proceeding independent of any

claims for post-conviction or other relief, the State cannot look to

Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)) to provide this court with jurisdiction overas a basis for

the instant appeal.   Supreme Court Rule 651(a) provides:

			“An appeal from a final judgment of the circuit court in

any post-conviction proceeding involving a judgment

imposing a sentence of death shall lie directly to the

Supreme Court as a matter of right.”   134 Ill. 2d R. 651(a).

	Because the order at issue here does not fall within any of the

Ssupreme Ccourt Rrules allowing the State to appeal directly to this

court, the State does not have the right to appeal the trial court’s

order granting defendant’s motion for DNA testing pursuant to

section 116–3.   According, the State’s appeal must be dismissed

for

lack of

jurisdiction.

	As a final matter, we note that in his brief and during oral

argument, defense counsel insisted that the trial court’s order

granting defendant’s motion must be affirmed and that to refuse to

test the hairs would be to “stand in the way of the pursuit of

justice.”   Defense counsel also likened the State’s objection to the

testing of the hairs as “turning a blind eye and deaf ear to Illinois’

shameful history of mistake and caprice in death penalty case.”   We

caution, however, that justice and integrity are demanded of both

defense counsel and the State under our criminal justice system. 

	To that end, we note that defense counsel repeatedly

mentioned that DNA testing was required of the hairs found

“clutched” in Dana Rinaldi’s hand.   Despite this characterization of

the hairs, defense counsel has failed to point to a record citation

indicating that the hairs were in fact found clutched in Dana’s hand.  

Our review of the record reveals only that hairs were found on

Dana’s glove as well as on the other items of clothing she was

wearing when she was murdered.   Indeed, the references to the

hairs do not even indicate whether those hairs were found on the

palm side or the back side of the glove.

	To the extent that any shortcomings in our criminal justice

system relate to convictions secured through questionable

prosecutorial practices, the answer certainly is not to give equal

time to questionable practices of defense counsel.   Rather, the key

to insuring that criminal justice in Illinois is administered in a fair

and equitable manner is to demand the highest level of advocacy

and integrity from every participant in the system. 

 This court

requires that both the State and defense counsel accurately present

the facts of a case.

	For the foregoing reasons, the State’s appeal is dismissed for lack of

jurisdiction.

									Appeal dismissed.