                       Illinois Official Reports

                              Appellate Court



                   People v. Kines, 2015 IL App (2d) 140518



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOHN E. KINES, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-14-0518



Filed             July 24, 2015



Decision Under    Appeal from the Circuit Court of Du Page County, No. 88-CF-90; the
Review            Hon. Robert G. Kleeman, Judge, presiding.



Judgment          Reversed and remanded with direction.


Counsel on        Jon Loevy, Russell R. Ainsworth, and David B. Owens, all of Loevy
Appeal            & Loevy, and Tara Thompson, of Exoneration Project, both of
                  Chicago, for appellant.

                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa A. Hoffman,
                  Assistant State’s Attorney, of counsel), for the People.


Panel             JUSTICE HUTCHINSON delivered the judgment of the court, with
                  opinion.
                  Justices Burke and Spence concurred in the judgment and opinion.
                                             OPINION

¶1       This case concerns a criminal defendant’s statutory right to the postconviction DNA
     testing of evidence as provided for in section 116-3 of the Code of Criminal Procedure of
     1963 (Code) (725 ILCS 5/116-3 (West 2012)). The criminal defendant in this case, John E.
     Kines, filed a section 116-3 petition for DNA testing, which the trial court denied on two
     grounds. First, because Kines filed a petition for testing in 2002, the trial court found that
     Kines’ new petition was barred under res judicata principles. Second, the trial court found
     that Kines’ present petition failed to satisfy the statutory criteria to warrant testing. We
     reverse and remand.

¶2                                        I. BACKGROUND
¶3       In 1988, Kines was found guilty of several offenses in connection with the murder of
     11-year-old Taneka Jones. We summarize the relevant evidence from Kines’ bench trial.
¶4       Taneka’s body was discovered on the morning of January 10, 1988, in the basement of an
     apartment complex in Hinsdale. Witnesses testified that Kines was dropped off at the
     apartment complex around 1 a.m. so that he could visit his “girlfriend.”
¶5       Cornell Finley, who was 11 years old at the time of trial, testified that he and his mother
     lived in the apartment complex, as did Taneka and her mother. The children’s mothers went
     out at around 6 p.m. and left the children in the living room in the Finley apartment, where
     Cornell and Taneka watched television together. Neighbors Clayton Jordan and Saul Berry
     briefly visited the Finley apartment that night and left. Cornell testified that he overheard
     Berry say to Jordan, “we should kidnap these two,” before they left.
¶6       Later, Kines, a friend of the Finley family, whom Cornell knew as “Uncle John,” came to
     the apartment and watched television with Cornell and Taneka. Jordan returned to the
     apartment and spoke with Kines in the dining room; Cornell overheard Jordan tell Kines that
     he “would see him later.” Kines went into Cornell’s mother’s room to sleep and Cornell fell
     asleep on the couch where he and Taneka were watching television.
¶7       Cornell was awoken by a noise in the middle of the night; he saw Jordan put something
     around Taneka’s face and drag her into the bedroom. Cornell approached the bedroom door
     and peered inside. He saw Taneka naked on the bed. Berry was holding Taneka’s head while
     Jordan was moving up and down on top of her with his pants unzipped. Kines was standing
     in the room, shirtless, looking on. Cornell heard Taneka say, “Stop[,] that hurt[s].”
¶8       Cornell briefly went back to the living room and pretended to be asleep. When he
     returned to the bedroom door and looked inside, he saw Taneka on a blanket on the floor.
     Berry was holding Taneka’s head, Jordan was holding her legs, and Kines was strangling her
     with a “cloth” around her neck. Cornell saw Taneka’s hands shaking; then she stopped
     moving. Berry, Jordan, and Kines wrapped Taneka in the blanket and carried her down to the
     building’s basement.
¶9       Cornell followed them down to the building’s basement. There, he saw Berry and Kines
     laughing as Jordan masturbated while standing over Taneka. Jordan was holding a white
     tissue or tissues in his other hand. Cornell ran back upstairs and pretended to be asleep on the
     couch. Berry, Jordan, and Kines returned to the apartment; the three men sat next to Cornell


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       and told him that if he told anyone what had happened it “would be the same way” for him
       and his mother.
¶ 10       Taneka’s mother returned the following morning. She discovered her daughter’s body in
       the basement and called the police. The police initially interviewed Cornell in the apartment,
       in Kines’ presence. Cornell testified that, because he was afraid of Kines, he told the police
       that he did not see anything because he was asleep, that he did not see Kines strangle Taneka,
       and that an unknown man entered the Finley apartment sometime that night. Cornell also
       denied being promised anything in exchange for his testimony.
¶ 11       Taneka’s body was found in a mesh storage locker in the basement of the apartment
       building. The locker was constructed of chicken wire and wood, and the basement was
       described as “filthy” by several witnesses. Taneka was found wearing a shirt and a sweater,
       but unclothed from the waist down; her jeans and her underwear were found nearby. Taneka
       had bruises and abrasions on her face, and paint chips from the basement were found inside
       her mouth. A ligature–later determined to be the left sleeve of a blouse that belonged to
       Jordan’s sister–was found tied onto Taneka’s neck. Police removed the ligature and Taneka’s
       clothing and secured those items as evidence. A forensic pathologist determined that Taneka
       died as a result of ligature strangulation. There was dirt on the inside of the ligature knot.
       Police also recovered three white tissues near the body. Serological testing matched semen
       stains on the tissues to Jordan’s blood type, to the exclusion of Kines and Berry. In addition,
       Berry’s fingerprints were found on a locked door near the location of the body. The State
       introduced into evidence Taneka’s clothing, the ligature, and the semen-stained tissues. The
       parties stipulated that Kines’ hair was not found on or near Taneka’s body or her clothing.
       During closing argument, Kines asserted that Taneka was killed in the basement by Jordan
       and Berry, and not in the Finley apartment as the State had argued.
¶ 12       The trial court found Kines guilty of intentional first-degree murder based on
       accountability (see Ill. Rev. Stat. 1985, ch. 38, ¶ 5-1 (explaining that a criminal defendant
       charged by accountability is liable for the actions of his or her codefendants)), concealment
       of a homicidal death, and one count of intimidation (for threatening Cornell). (Jordan and
       Berry were also found guilty. People v. Jordan, 205 Ill. App. 3d 116 (1990); People v. Berry,
       No. 2-88-1259 (1990) (unpublished order under Supreme Court Rule 23).) The trial court
       sentenced Kines to a 50-year aggregate prison term.
¶ 13       Kines appealed his conviction and this court affirmed. People v. Kines, No. 2-88-1176
       (1991) (unpublished order under Supreme Court Rule 23). His petition under the
       Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) was unsuccessful
       (People v. Kines, No. 2-98-1060 (1999) (unpublished order under Supreme Court Rule 23)),
       as was his request for habeas corpus relief in federal court (Kines v. Godinez, 7 F.3d 674 (7th
       Cir. 1993)).
¶ 14       In 2002, Kines, pro se, filed a petition for “DNA testing” of the State’s evidence under
       section 116-3 of the Code. The trial court denied the petition because the requested “DNA
       testing” was “technology [that was] available at the time [of Kines’ trial and] had been
       available for a number of years.” Kines appealed and this court affirmed. People v. Kines,
       No. 2-02-0930 (2003) (unpublished order under Supreme Court Rule 23) (Kines I). We
       interpreted request for the testing of Taneka’s clothing and the ligature as a “narrow”
       request for the testing of hairs recovered from those items, and we held that this evidence
       would be cumulative of the parties’ stipulation that Kines’ hair was not found at the scene.

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¶ 15        In 2013, Kines, through counsel, filed the instant petition for DNA testing under section
       116-3 of the Code (725 ILCS 5/116-3 (West 2012)). In it, Kines sought DNA testing of the
       ligature, the victim’s clothing, and the tissues, all of which he alleged were never previously
       subjected to DNA testing. In contrast to his earlier petition, this time, Kines requested a
       specific type of DNA test–“PCR-STR testing,” or short tandem repeat testing (STR) wherein
       any present DNA is amplified by a polymerase chain reaction (PCR). Kines further requested
       that any eligible results, i.e., those yielding at least 13 core loci, be uploaded to CODIS, the
       FBI’s Combined DNA Index System. Kines also alleged that the petition was not barred by
       the filing of his first section 116-3 petition, because (1) in contrast to the Post-Conviction
       Hearing Act (see 725 ILCS 5/122-1(f) (West 2012) (only one postconviction petition may be
       filed without leave of court)), nothing in section 116-3 of the Code barred successive
       petitions for testing, and (2) since his first request in 2002, there had been significant
       “advancements in DNA science” such as the ability to obtain “touch DNA” from evidence
       and a five-fold increase in the size of CODIS.
¶ 16        The State filed a response asserting that Kines’ 2013 request for testing was barred by our
       decision in Kines I under the doctrine of res judicata. The State “t[ook] exception” to what it
       perceived as Kines’ failure to preemptively argue against the application of res judicata, an
       affirmative defense. The State further faulted Kines for failing to show that “advancements in
       DNA science since the 2002 motion” (emphasis added) would have affected Kines’ initial
       request for testing. The State did not dispute the facts alleged in Kines’ section 116-3 petition
       and it did not otherwise contest the petition on the merits.
¶ 17        After a hearing, the trial court denied Kines’ petition for DNA testing. In its oral ruling,
       the court characterized the petition as asserting that touch DNA “might detect matters [that]
       weren’t detected [when the evidence] had been previously tested.” (Emphasis added.) The
       trial court then found that (1) Kines’ petition was barred by res judicata, and (2) if
       res judicata did not apply, then Kines had failed to establish that DNA testing offered “a
       reasonable likelihood of more probative results.” (Emphasis added.)
¶ 18        Kines filed a motion to reconsider. The court held a hearing on the motion where, for the
       first time, the State acknowledged that the evidence in question had not previously been
       tested. The trial court denied Kines’ motion to reconsider, stating that, even if “somebody
       else’s” DNA were found on the evidence, it would not “change the evidence indicating the
       defendant’s guiltiness.” Kines timely appealed.

¶ 19                                        II. ANALYSIS
¶ 20       We first address Kines’ contention that the trial court erred when it determined that, in
       light of our decision in Kines I, res judicata barred his present request for forensic DNA
       testing. Res judicata is an equitable doctrine that bars the relitigation of issues that were
       raised and adjudicated in a prior proceeding. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 44.
       “Res judicata bars not only what was actually decided in the first action but also whatever
       could have been decided.” Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008). This
       doctrine results “from the practical necessity that there be an end to litigation and that
       controversies once decided on their merits *** remain in repose.” Hughey v. Industrial
       Comm’n, 76 Ill. 2d 577, 582 (1979). Whether a claim is barred by res judicata is a question
       of law, which we review de novo. Lutkauskas, 2015 IL 117090, ¶ 43.


                                                   -4-
¶ 21        Under res judicata, “[(1)] a final judgment on the merits rendered by a court of competent
       jurisdiction operates to bar a subsequent suit between [(2)] the same parties and involving
       [(3)] the same cause of action. [Citations.]” Id. ¶ 44. By virtue of this framework, the State
       argues that res judicata applies, and, if rote application of those factors were our only
       concern, we would agree that res judicata bars Kines from relitigating this issue. But
       res judicata is first and foremost an equitable doctrine, which “may be relaxed where justice
       requires.” Cload v. West, 328 Ill. App. 3d 946, 953 (2002). In other words, the question is not
       solely whether the doctrine of res judicata applies; we must also ask whether it should be
       applied.
¶ 22        Kines’ claim comes within a well-established exception to the general rule of
       res judicata: a second action is not barred when “the judgment in the first action was plainly
       inconsistent with the equitable implementation of a statutory scheme.” Rein v. David A.
       Noyes & Co., 172 Ill. 2d 325, 341 (1996) (citing Restatement (Second) of Judgments § 26(1)
       (1980)). In this case, the statutory scheme that we are concerned with is section 116-3 of the
       Code, which sets forth the procedures for requesting and obtaining postconviction DNA
       testing. Kines filed his first petition for DNA testing under section 116-3 of the Code in
       2002. At that time, section 116-3 did not distinguish between previously tested and untested
       evidence. See 725 ILCS 5/116-3(a) (West 2002). Rather, in all instances, a defendant was
       required to show that “the technology for the [requested] testing was not available at the time
       of trial.” Id. Citing this requirement, the trial court denied Kines’ first section 116-3 petition
       because the requested “DNA testing” was technology that was available at the time of Kines’
       trial in 1989 (see People v. Wardell, 230 Ill. App. 3d 1093, 1097 (1992) (noting that DNA
       testing became available for use in criminal trials in October 1987)), and we affirmed the
       petition’s dismissal in Kines I.
¶ 23        In 2007, however, the legislature amended section 116-3(a) of the Code. See Pub. Act
       95-688 (eff. Oct. 23, 2007). Section 116-3(a) now distinguishes between evidence that has
       previously undergone DNA testing and evidence that has never been tested, as follows:
                    “(a) A defendant may make a motion before the trial court that entered the
                judgment of conviction in his or her case for the performance of *** forensic DNA
                testing, *** on evidence that was secured in relation to the trial [or guilty plea] which
                resulted in his or her conviction, and:
                        (1) was not subject to the testing which is now requested at the time of trial; or
                        (2) although previously subjected to testing, can be subjected to additional
                    testing utilizing a method that was not scientifically available at the time of trial
                    that provides a reasonable likelihood of more probative results.” 725 ILCS
                    5/116(a) (West 2012).
       As our supreme court has noted, the amended statute imposed “a more stringent obligation
       on defendants seeking re-testing of evidence.” People v. Stoecker, 2014 IL 115756, ¶ 24.
       Conversely, the amended statute also removed the requirement that defendants seeking initial
       DNA testing establish that the “technology” for the requested testing was unavailable at the
       time of trial. In other words, “[f]ollowing the October 2007 amendment to section 116-3, it
       was sufficient for defendant to request forensic testing on evidence secured in relation to his
       trial and allege only that the evidence was not previously subject[ed] to the testing he was
       now requesting.” People v. Boatman, 386 Ill. App. 3d 469, 472 (2008).


                                                    -5-
¶ 24        In 2002, the trial court’s denial of Kines’ section 116-3 petition was based solely on a
       condition, i.e., the unavailability-of-testing requirement, that the legislature removed from
       the statute in 2007. We decline to hold Kines I against Kines’ 2013 petition. Given the
       change in the statute with respect to as-yet-untested evidence, we determine that reliance on
       our decision in Kines I would be inconsistent with the equitable implementation of section
       116-3 of the Code. See Gurga v. Roth, 2011 IL App (2d) 100444, ¶ 17 (stating that
       “[r]es judicata should be applied only as fairness and justice require”). Accordingly, the trial
       court erred when it held that the present litigation was barred by our decision in Kines I.
¶ 25        We next address Kines’ contention that the trial court erred when it denied his section
       116-3 petition on the merits. A ruling on a motion for postconviction testing under section
       116-3 is based on the pleadings, so we review it de novo. Stoecker, 2014 IL 115756, ¶ 21;
       People v. Rozo, 2012 IL App (2d) 100308, ¶ 4. Kines argues that his petition met all of the
       elements under section 116-3 to warrant postconviction DNA testing. We agree. Section
       116-3 is divided into three subsections and we address each subsection in turn.
¶ 26        As noted above, section 116-3(a) requires that the evidence the defendant seeks to have
       tested either (1) was not subjected to the testing that is now requested at the time of trial (725
       ILCS 5/116-3(a)(1) (West 2012)); or, (2) although previously subjected to testing, can be
       subjected to additional testing utilizing a method that was not scientifically available at the
       time of trial that provides a reasonable likelihood of more probative results (725 ILCS
       5/116-3(a)(2) (West 2012)). In the trial court, the State conceded that Taneka’s clothing, the
       ligature, and the tissues were never tested. Therefore, section 116-3(a)(1) has been satisfied.
¶ 27        We note that in its oral ruling the trial court repeatedly referenced the requirements of
       section 116-3(a)(2); it stated that the evidence “had been previously tested” and thrice stated
       that Kines had failed to show that there was a “reasonable likelihood of more probative
       results.” Aside from res judicata, it appears that the trial court’s sole basis for denying the
       petition was that Kines had failed to satisfy the elements of section 116-3(a)(2), which was
       inapplicable. Neither party called this mistake to the trial court’s attention or addresses it in
       their appellate briefs. We reiterate that Kines’ petition met the requirements of section
       116-3(a)(1).
¶ 28        Section 116-3(b) requires the defendant to present a prima facie case that (1) identity was
       the issue at the defendant’s trial, and (2) the evidence to be tested has been subject to a chain
       of custody to ensure its integrity. 725 ILCS 5/116-3(b)(1), (b)(2) (West 2012). At trial, Kines
       argued that Cornell Finley’s testimony was not credible and that his identification of Kines
       was mistaken. Kines also argued that Taneka was not killed in the bedroom of the Finley
       apartment as Cornell testified, but that she was killed in the basement by Jordan and Berry.
       Accordingly, there was a sufficient prima facie case concerning identity. See People v. Shum,
       207 Ill. 2d 47, 66 (2003) (finding that identity was the central issue at trial, despite the
       strength of the State’s eyewitness identification, because defendant had “consistently denied
       involvement in the crimes”).
¶ 29        In his appellate brief, Kines asks us to remand this case to the trial court so that he can
       conduct limited discovery on the issue of chain of custody. See, e.g., People v. Travis, 329
       Ill. App. 3d 280, 285 (2002) (holding that the trial court may allow limited discovery on the
       evidence’s chain of custody). Although the State has acceded to this request, we are not
       bound by the State’s concession. See People v. Horrell, 235 Ill. 2d 235, 241 (2009). In
       People v. Johnson, 205 Ill. 2d 381 (2002), our supreme court held that a defendant is excused

                                                   -6-
       from establishing a chain of custody for evidence that was admitted at his or her trial, since,
       presumably, the admitted evidence would have remained within the custody of the circuit
       court clerk. Id. at 393. Therefore, the chain-of-custody requirement has been satisfied and the
       prima-facie-case requirement of section 116-3(b) has been fulfilled.
¶ 30        Finally, section 116-3(c) states that the court shall allow the requested testing, provided
       that it determines 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
       even though the result might not completely exonerate him, and (2) the requested testing is
       generally accepted in the scientific community. 725 ILCS 5/116-3(c) (West 2012). DNA
       testing is, of course, generally accepted in the scientific community, and so we turn to the
       material-relevance requirement.
¶ 31        “Evidence which is materially relevant to a claim of actual innocence is evidence which
       tends to significantly advance that claim, and, pursuant to the express terms of the statute,
       need not completely exonerate a defendant.” People v. Smith, 2014 IL App (1st) 113265, ¶ 24
       (citing People v. Savory, 197 Ill. 2d 203, 213-14 (2001)). In determining whether testing
       would reveal materially relevant evidence, we consider the trial evidence and assess the
       evidence that the defendant seeks to acquire through testing. Rozo, 2012 IL App (2d) 100308,
       ¶ 11. We emphasize that this is an independent determination; the strength of the State’s
       evidence is not a hurdle that the defendant must overcome to meet the requirements of the
       statute. Id. (citing People v. Barrow, 2011 IL App (3d) 100086, ¶ 27).
¶ 32        There was little direct evidence in this case. The State’s primary evidence came from
       11-year-old Cornell Finley. While perhaps reasonable in light of Kines’ threats, Cornell still
       made several inconsistent statements to the police, including that he slept through Taneka’s
       murder, saw an unknown person enter the apartment that night, and did not see Kines
       strangle Taneka. Kines maintained that he had no connection to the murder and that Taneka
       died in the basement at the hands of Jordan and Berry.
¶ 33        We note that Kines was convicted of first-degree murder based on a theory of
       accountability and, thus, any DNA evidence linking Jordan and Berry to the crime would
       tend to inculpate defendant as well. See People v. Rodriguez, 229 Ill. 2d 285, 294 (2008)
       (stating that, when codefendants are charged by accountability, the act of any one defendant
       is attributed to all, and all of the defendants “must answer for the result” (internal quotation
       marks omitted)). However, we cannot dismiss the very real possibility that DNA testing
       might result in a viable third-party suspect, particularly in light of Cornell’s statement to the
       police that an unknown man entered the Finley apartment on the night of the murder. As our
       supreme court has said, “if the legislature had intended to limit application of the statute to
       the instances in which a test result favorable to the defendant would, standing alone, lead to
       his complete vindication, it would have chosen a different way of expressing the statutory
       requirements.” Savory, 197 Ill. 2d at 213.

¶ 34                                      III. CONCLUSION
¶ 35       In Rozo, we said that there was “no reason not to test the already extant DNA evidence of
       the two other men whom defendant alleges were actually involved in the murder.” Rozo,
       2012 IL App (2d) 100308, ¶ 21. Here, there is no reason not to test key physical evidence
       that was admitted at Kines’ trial in 1989. Kines met all of the requirements under section
       116-3 of the Code and his petition for postconviction DNA testing should have been granted.

                                                   -7-
       For these reasons, the judgment of the circuit court of Du Page County is reversed and the
       cause is remanded for the trial court to enter an order granting Kines’ petition for DNA
       testing.

¶ 36      Reversed and remanded with directions.




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