No. 2--02--0236

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Winnebago County.

	)

	Plaintiff-Appellee,	)

	)

v.	)	93--CF--1174

	)

PATRICK A. PURSLEY,	)	Honorable

	)	Richard W. Vidal,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	After a jury trial, defendant, Patrick Pursley, was found

guilty of first-degree murder (720 ILCS 5/9--1(a)(3) (West 1992)). 

Defendant was sentenced to natural life in prison.  On direct

appeal, this court affirmed defendant’s conviction and sentence. 

See People v. Pursley, 284 Ill. App. 3d 597 (1996).  In July 1997, defendant filed a petition for postconviction relief under the

Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1996)).  The trial court dismissed defendant’s petition as

frivolous and without merit and this court affirmed the trial

court’s dismissal.  See People v. Pursley, No. 2--97--0984 (1999) (unpublished order under Supreme Court Rule 23).  Thereafter, in

March 1999, defendant filed a second postconviction petition, which

was also dismissed.  This court affirmed the trial court’s

dismissal of defendant’s second petition for postconviction relief.  See People v. Pursley, No. 2--00--0551 (2001) (unpublished order under Supreme Court Rule 23).  

	Defendant now appeals from a judgment by the circuit court

denying his motion for ballistics testing pursuant to section 116--

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

-3 (West 2000)).  Specifically, defendant argues that section 116--

3 permits ballistics testing under the Integrated Ballistics

Identification System (IBIS).  We affirm.

	The facts relevant to this appeal are as follows.  Becky

George testified that she had been Andy Ascher’s girlfriend.  On

April 2, 1993, at around 10 p.m., she and Ascher were parked in

front of her brother’s condominium when a man opened the driver’s

door where Ascher was sitting.  The man pointed a gun at them and

asked for money.  Becky then heard two "noises that were like pops"

and Ascher slouched down. 

	The police found two cartridge casings outside the vehicle in

which Ascher was shot.  Also recovered were two bullets, one from

the dashboard of the vehicle and the other from beneath Ascher’s

shoulder.  After an anonymous tip, the police searched the

apartment shared by defendant and his girlfriend and seized a 9-

millimeter Taurus semiautomatic handgun.  Defendant was charged

with shooting and killing Ascher while committing an armed robbery.

	At trial, Daniel Gunnell, a specialist in firearm and tool

mark identification for the Illinois State Police, testified for

the State.  Using the same type of cartridges found at the scene of

the crime, Gunnell test fired two shots with defendant’s Taurus

handgun.  Gunnell then compared his test firings to the recovered cartridges and bullets.  Gunnell concluded that the two recovered

cartridges had been fired by the Taurus handgun "to the exclusion

of all others."  With respect to the bullets, Gunnell also

concluded that they had been fired byin the Taurus gun "to the

exclusion of all others."  

	Mark Boese, an expert in patterned impression evidence

employed by Bri-Mar International Laboratories, testified for the

defense.  After examining the cartridges and bullets from the crime

scene, as well as Gunnell’s test firings, he test fired the Taurus

gun.  Boese concluded that the bullets had probably been fired byin

a 9-millimeter Taurus gun, but did not conclude that it was the one

in evidence.  Although Boese could not exclude the recovered Taurus

gun as having fired the bullets, he did not feel he had sufficient

correspondence of impressions to declare a match.

	The jury found defendant guilty of first-degree murder and he

was sentenced to natural life in prison.  After exhausting all

other forms of remedy, defendant filed pro se a pro se motion for forensic testing pursuant to section 116--3 of the Code.  Defendant

requested, inter alia, that the Taurus handgun, as well as the recovered cartridges and bullets, be subjected to ballistics

testing under IBIS.  

	The State filed a motion to dismiss arguing, inter alia, that section 116--3 does not pertain to ballistics testing.  The trial

court granted the State’s motion to dismiss, finding that (1) 

defendant’s claim was barred by res judicata; (2) section 116--3 pertains to fingerprints and DNA testing but not to ballistics; (3) IBIS is not a new test but a new system for cataloging ballistics information; (4) Gunnell was definite in his ballistics comparison

whereas Boese’s expert opinion was inconclusive; and (5)

application of the IBIS would not produce new, noncumulative

evidence.  Defendant’s appeal timely followed.

	On appeal, defendant argues that the court erred in denying

his motion for forensic testing pursuant to section 116--3 of the

Code.  It is defendant’s position that section 116--3 applies to

ballistics testing and that he has fulfilled the prerequisites of

the statute.  Defendant contends that, if the two cartridges and

bullets from both the crime scene and the Taurus handgun are

analyzed under IBIS, the results may demonstrate that his Taurus

gun was not the weapon used in the shooting.  According to

defendant, the computer may not find a match with his gun, or may

indicate a match with another Taurus gun.    

	The State responds that defendant’s section 116--3 motion is

barred by res judicata or, in the alternative, that defendant has failed to present a prima facie case that IBIS testing should be allowed.  The State also moves to strike two IBIS articles appended

to defendant’s brief.  Arguing that they were not considered by the

trial court and are not part of the record, the State objects to

defendant’s citation to these articles in his brief.

	This case hinges upon the proper scope of section 116--3,

which provides:

		"Motion for fingerprint or forensic testing not available

at trial regarding actual innocence.

		(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.

		(c) The trial court shall allow the testing under

reasonable conditions designed to protect the State’s

interests in the integrity of the evidence and the testing

process upon a determination that:

			(1) the result of the testing has the scientific

potential to produce new, noncumulative evidence

materially relevant to the defendant’s assertion of

actual innocence;

			(2) the testing requested employs a scientific

method generally accepted within the relevant scientific

community." 725 ILCS 5/116--3 (West 2000).              

     We review de novo a trial court’s ruling on a motion under section 116--3 of the Code de novo.  People v. Hockenberry, 316 Ill. App. 3d 752, 755 (2000).  This standard is appropriate because the trial

court’s decision is based upon its assessment of the pleadings and

the trial transcripts rather than the credibility of the witnesses. 

Hockenberry, 316 Ill. App. 3d at 755.  Thus, the trial court is in no better position than the reviewing court to decide the merits of

such a motion.  Hockenberry, 316 Ill. App. 3d at 755-56.  

	As stated previously, the trial court found that section 116--

3 applies to fingerprints and DNA testing but not to ballistics

testing.  Thus, the dispositive issue in this case is whether

section 116--3 pertains to ballistics testing under IBIS.  Upon

reviewing the plain language of section 116--3, we hold that it is

not applicable here.

	We believe the language in section 116--3 is clear and

unambiguous.  While the section is entitled "Motion for fingerprint

or forensic testing not available at trial regarding actual

innocence," subsection (a) then states that a defendant may make a 

motion "for the performance of fingerprint or forensic DNA

testing."  725 ILCS 5/116–--3 (West 2000).  Defendant argues that

the single reference to "fingerprint or forensic DNA testing"

should not limit the application of the statute to those two forms

of testing.  We disagree.

	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 (2001).  The language used by the legislature is the best indicator of legislative intent, and it must be given its plain and ordinary meaning.  Savory, 197 Ill. 2d at 213.  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.  

	Our review of the statute reveals an intent by the legislature

to restrict the scope of section 116--3 to tests based on "genetic

material" such as fingerprints and DNA.

  		"When our legislators enacted section 116--3, they intended to provide an avenue for convicted defendants who

maintained their innocence to test available genetic material capable of producing new and dramatic evidence materially

relevant to the question of innocence.  The legislature

recognized that advances in scientific technology harbored the

potential to correct injustice through the highly reliable use

of genetics."  (Emphasis added.)  People v. Urioste, 316 Ill. App. 3d 307, 310 (2000).

		While it is clear that the legislature has provided for fingerprint

and forensic DNA testing, we find nothing in the language of the

statute to support defendant’s assertion that it is intended to

encompass all advances in forensic technology and testing.  We note

that, had the legislature intended to broaden the scope of section

116--3 to include different forms of forensic testing beyond

that of

fingerprint and DNA testing, it could have expressly done so. 

Thus, we hold that section 116--3 pertains only to fingerprint and

forensic DNA testing, exactly as it states.                       

	Finally, commentary regarding section 116--3 lends support to

this conclusion by noting that additional forensic tests, such as

ballistics testing, may eventually be added to the statute.

		"Other forensic tests might someday be added to the

Illinois law as the courts and the legislature recognize their

reliability.  For instance, new computerized technology

similar to [the Automated Fingerprint Identification System

(AFIS)] can compare a bullet’s characteristics to a range of

bullet profiles in a database, matching the gun used in one

case to another case and possibly tying the crime for which a

person was convicted to another crime committed by someone

else."  G. O’Reilly, A Second Chance for Justice: Illinois’ Post-Trial Forensic Testing Law, 81 Judicature 114, 116 (1997).

	Defendant argues in the alternative that, if section 116--3 is

found not to apply to other forms of forensic testing, it violates

due process and equal protection of the law.  Defendant concedes

that this claim is subject to a rational basis test.  According to

defendant, there is no rational reason to treat those who may be

exonerated by a new forensic test, such as ballistics testing under

IBIS, differently from those who may be exonerated through new DNA

or fingerprint tests.  In other words, advances in fields such as

ballistics should accrue to defendants who have been convicted in

the same way as advances in fingerprint and DNA testing.   	

	Statutes carry a very strong presumption that they are

constitutional as written, and the party challenging the

constitutionality of a statute bears the burden of rebutting this presumption.  People v. Kimbrough, 163 Ill. 2d 231, 237 (1994).  In construing a statute, we have a duty to affirm the statute’s

validity and constitutionality if reasonably possible.  Kimbrough, 163 Ill. 2d at 237.  If the statute’s construction is doubtful, we

must resolve all doubts in favor of the statute’s validity. 

Kimbrough, 163 Ill. 2d at 237.  

	The constitutional right to equal protection of the law

guarantees that the State must treat similarly situated persons in

a similar manner.  Kimbrough, 163 Ill. 2d at 237.  A law that does not implicate either a suspect classification or a fundamental

right is subject to the rational basis test.  People v. Shephard, 152 Ill. 2d 489, 500 (1992).  Under this test, the statute need

only be rationally related to a legitimate State goal.  Shephard, 152 Ill. 2d at 500.  Further, our review under the rational basis

standard is limited and generally deferential.  Shephard, 152 Ill. 2d at 500.  

	The standards used to determine the constitutionality of a

statute under the due process and equal protection clauses are

identical.  Kimbrough, 163 Ill. 2d at 242.  As in the case of equal protection, legislation challenged on due process grounds will be

upheld if it is rationally related to a legitimate statutory

objective.  Kimbrough, 163 Ill. 2d at 242.  Under the rational basis test, the statute is constitutional if any state of facts can

reasonably be conceived to justify the classification.  Kimbrough, 163 Ill. 2d at 238. 

	As previously noted, the purpose of the statutory scheme we

are considering is "to provide an avenue for convicted defendants who maintained their innocence to test available genetic material

capable of producing new and dramatic evidence materially relevant

to the question of innocence."  Urioste, 316 Ill. App. 3d at 310.  Balanced with this interest in exonerating innocent persons wrongly

convicted is the interest in promoting the finality of criminal

judgments.  See 81 Judicature 114.  Conceivably, the legislature restricted forensic testing to genetic material because the

reliability of such tests has been established.  This limit ensures

that a motion for forensic testing will not be filed alongside

every scientific advancement in the years to come.  Thus, it cannot

be said that section 116--3 is unreasonable or arbitrary simply

because it does not provide for other types of forensic testing

such as ballistics testing under IBIS.  

	Without presuming to know why the Illinois legislature chose

to limit section 116--3 to fingerprint and forensic DNA testing, we

need only conceive of one potential basis for the legislation. 

People v. McLaughlin, 324 Ill. App. 3d 909, 916.  Moreover, " ' "[i]t is entirely irrelevant for constitutional purposes

whether [our] conceived reason for the challenged distinction," ' "

namely, promoting the finality of judgments, " ' "actually

motivated the legislature." [Citation.]' [Citation.]"  McLaughlin, 324 Ill. App. 3d at 915.  Accordingly, defendant’s argument that

section 116--3 violates equal protection and due process must fail.

	Because we hold that section 116--3 pertains only to

fingerprint and forensic DNA testing, and not to ballistics testing

under IBIS, we need not consider whether defendant’s motion is

barred by res judicata or whether defendant has satisfied all of the requirements of section 116--3.  For the same reason, we need

not reach a determination regarding the State’s motion to strike

the IBIS articles appended to defendant’s brief. 

	For the foregoing reasons, we affirm the judgment of the

circuit court of Winnebago County dismissing defendant’s motion for

ballistics testing under IBIS pursuant to section 116--3 of the

Code.

	Affirmed.

	O’MALLEY and CALLUM, JJ., concur.