                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Rozo, 2012 IL App (2d) 100308




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    LOUIS C. ROZO, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0308


Filed                      May 21, 2012
Rehearings denied          July 13, 2012


Held                       The motion for DNA testing pursuant to section 116-3 of the Code of
(Note: This syllabus       Criminal Procedure of material found under the fingernails of the person
constitutes no part of     defendant was convicted of murdering was improperly denied by the trial
the opinion of the court   court, since it was possible, based on the evidence presented about the
but has been prepared      struggle that resulted in the victim’s death, that the victim could have
by the Reporter of         gotten the murderer’s skin or blood under his fingernails while trying to
Decisions for the          protect himself, the new evidence could advance defendant’s claim of
convenience of the         innocence if the DNA matched that of the person defendant claimed to be
reader.)
                           the real murderer, and under the circumstances, section 116-3(a) allowed
                           for comparative testing of the new evidence to the DNA evidence
                           previously obtained from two other men defendant alleged to have
                           actually been involved in the murder.


Decision Under             Appeal from the Circuit Court of Lake County, No. 96-CF-3449; the
Review                     Hon. John T. Phillips, Judge, presiding.


Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Thomas A. Lilien and Yasemin Eken, both of State Appellate Defender’s
Appeal                      Office, of Elgin, for appellant.

                            Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                            and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Burke and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1           Defendant, Louis C. Rozo, appeals from the trial court’s denial of his motion for DNA
        testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (Code) (725
        ILCS 5/116-3 (West 2008)). We affirm in part, reverse in part, and remand for further
        proceedings.
¶2           Following a jury trial, defendant was convicted of two counts of murder (720 ILCS 5/9-
        1(a)(1), (a)(2) (West 1996)) in the death of Christy Shervanian and sentenced to concurrent
        extended terms of 75 years in prison. This court vacated one of the convictions and one of
        the sentences as improperly arising from the same physical act but affirmed the other
        conviction and sentence. See People v. Rozo, 303 Ill. App. 3d 787 (1999).
¶3           In December 2008, defendant filed a motion for DNA testing pursuant to section 116-3
        of the Code, seeking: (1) the testing of tissue and/or blood samples that had been found under
        Shervanian’s fingernails but had not been tested before defendant’s trial; (2) the testing of
        previously tested blood samples recovered from a glove found at the murder scene and from
        defendant’s leather jacket “using the current, best practice technology, DNA-STR analysis,”
        which was not used in the prior testing; and (3) the testing of DNA samples of Rudolph Zink,
        a State witness at defendant’s trial, and Bruce Derrickson, Zink’s roommate and paramour
        at the time of Shervanian’s murder. According to defendant, these tests would “produce new,
        noncumulative evidence materially relevant to his assertion of actual innocence in this case.”
        Defendant further averred that Zink’s attorney in a prior criminal matter had information
        relevant to Zink’s commission of perjury at defendant’s trial and other information
        implicating both Zink and Derrickson in Shervanian’s murder; defendant asserted that this
        information could now be accessed because of Zink’s death. The trial court denied
        defendant’s motion and his subsequent motion to reconsider, and this appeal followed.
¶4           Section 116-3 provides in relevant part:
             “Motion for fingerprint, Integrated Ballistic Identification System, or forensic testing not


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         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, Integrated Ballistic
         Identification System, or forensic DNA testing, including comparison analysis of genetic
         marker groupings of the evidence collected by criminal justice agencies pursuant to the
         alleged offense, to those of the defendant, to those of other forensic evidence, and to
         those maintained under subsection (f) of Section 5-4-3 of the Unified Code of
         Corrections, on evidence that was secured in relation to the trial 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. 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 court 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 demonstration 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 results may not completely exonerate the defendant;
                  (2) the testing requested employs a scientific method generally accepted within
             the relevant scientific community.” 725 ILCS 5/116-3 (West 2008).
     Testing pursuant to section 116-3 is not limited to situations in which the requested testing
     would completely exonerate a defendant. People v. Savory, 197 Ill. 2d 203, 214 (2001).
     Rather, the testing must have the potential to produce evidence that “tends to significantly
     advance” the claim of actual innocence. Savory, 197 Ill. 2d at 213. Whether such evidence
     would be materially relevant requires an evaluation of the trial evidence and the evidence that
     the defendant seeks to acquire through the testing. People v. Pursley, 407 Ill. App. 3d 526,
     534 (2011). We review de novo the trial court’s ruling on a motion brought under section
     116-3, as the court’s decision is based on its assessment of the pleadings and trial transcripts
     as opposed to the credibility of any witnesses. Pursley, 407 Ill. App. 3d at 529.
¶5       We will consider each requirement of section 116-3 in turn. We first note that there is no
     dispute that identity was at issue in this case or that a proper chain of custody was
     maintained; thus, the prima facie case requirement of section 116-3(b) has been fulfilled.
¶6       Section 116-3(a) requires that the evidence that defendant seeks to have tested either: (1)

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       was not subjected to the testing that 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 5/116-3(a)(1), (a)(2) (West 2008). The tissue/blood
       samples found under Shervanian’s fingernails were never tested. See Rozo, 303 Ill. App. 3d
       at 792. Clearly, this fits within section 116-3(a)(1).
¶7          Defendant also seeks the testing of previously tested blood samples recovered from a
       glove found at the murder scene and from defendant’s leather jacket “using the current, best
       practice technology, DNA-STR analysis,” which was not used in the prior testing. Defendant,
       citing to this court’s decision in Pursley, argues that, while this evidence was previously
       tested, it was not subjected to the now-requested DNA-STR testing, and such testing should
       then be allowed under subsection (a)(1). The State argues that, in order to obtain new testing
       of the jacket and glove, defendant must establish that DNA-STR testing was not available
       at the time of his trial, under subsection (a)(2). We agree with the State.
¶8          In Pursley, the trial court denied the defendant’s motion for Integrated Ballistic
       Identification System (IBIS) testing pursuant to section 116-3. The ballistics evidence had
       been tested by firearms experts before trial but had not been tested under the IBIS system.
       Pursley, 407 Ill. App. 3d at 528. The State argued that IBIS was available but not used on a
       widespread basis at the time of trial; thus, subsection (a)(1) was inapplicable. Pursley, 407
       Ill. App. 3d at 531. However, the “expert comparison of evidence to the thousands of
       available pieces of evidence contained in the IBIS database” had not been available to the
       defendant, as the Bureau of Alcohol, Tobacco, Firearms and Explosives did not begin
       administering automated ballistics imaging technology for partner agencies until 1999, after
       the defendant had been convicted. Pursley, 407 Ill. App. 3d at 531.
¶9          In interpreting a statute, we are to give the language used by the legislature its plain and
       ordinary meaning. Pursley, 407 Ill. App. 3d at 530. Further, we construe a statute as a whole,
       so that no part is rendered meaningless or superfluous. People v. Dalton, 406 Ill. App. 3d
       158, 163 (2010). Section 116-3 was amended in 2007 to specifically allow a defendant to
       seek firearm testing under the IBIS system (see Pursley, 407 Ill. App. 3d at 528); it was not
       amended to merely allow a defendant to seek generic firearm forensic testing. The defendant
       in Pursley requested a specific, statutorily enumerated test that had not been conducted at the
       time of trial. Thus, the request clearly fit within the purview of subsection (a)(1). Here, the
       evidence from the jacket and the glove had been subjected to generic (nonstatutorily
       enumerated) forensic testing at the time of trial, and defendant now seeks additional generic
       (nonstatutorily enumerated) forensic testing of that same evidence. There is no statutory
       reference allowing a defendant to specifically request DNA-STR genetic testing if such a test
       had not been previously conducted on the evidence. Concluding that previously tested blood
       samples do not fit under the subsection (a)(2) requirements for evidence previously subjected
       to testing would be nonsensical and would require us to disregard the language of that
       subsection. This, we shall not do. Defendant’s request for DNA-STR testing of the blood
       samples recovered from the glove and from defendant’s leather jacket must be analyzed
       under subsection (a)(2).
¶ 10        Under subsection (a)(2) defendant must show that the evidence “can be subjected to

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       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 2008). The State argues that DNA-STR testing was already available at the time of
       defendant’s 1997 trial, citing to People v. Barker, 403 Ill. App. 3d 515, 525 (2010), which
       noted that DNA-STR testing “was not widely adopted until the mid to late 1990s.” (Internal
       quotation marks omitted.) However, at trial, the State presented the testimony of Sarah
       Thibault, a forensic scientist working in the area of DNA analysis for the Illinois State Police
       (ISP). Thibault testified that she was “currently involved in a research project which
       implements STR’s [sic] or short tandem repeats as new methodology in the area of forensic
       DNA analysis.” Defendant attached to his motion for DNA testing the affidavit of Pravatchai
       W. Boonlayangoor, Ph.D., and Karl A. Reich, Ph.D., of Independent Forensics of Illinois,
       who were hired as experts to review the scientific analysis portion of the trial transcript. In
       their opinion, the ISP laboratory did not use DNA-STR testing for the blood from the glove
       and the jacket; however, they also opined:
                “16. That in our opinion, any forensic DNA analyst or forensic institution with a
            moderate or high degree of scientific acumen and experience would be aware that at the
            time ISP conducted the DNA-based tests on the evidence samples in this case, another,
            more specific, sensitive, discriminating and superior test technology, DNA-STR analysis,
            was in fact available and in use.” (Emphases added.)
       The burden is on defendant to show that the requested testing was “not scientifically
       available at the time of trial.” 725 ILCS 5/116-3(a)(2) (West 2008). The standard is not
       whether the lab that tested the evidence had fully implemented that particular test but
       whether the test was “not scientifically available.” (Emphasis added.) Defendant’s own
       experts clearly opined that the requested test “was in fact available and in use” at the time
       of trial. Thus, defendant has not sustained his burden as to additional testing of the
       bloodstains found on the glove and the jacket.
¶ 11        Even after showing that the nail evidence was not tested, defendant must still
       demonstrate that the result of such testing:
            “has the scientific potential to produce new, noncumulative evidence materially relevant
            to the defendant’s assertion of actual innocence even though the results may not
            completely exonerate the defendant.” 725 ILCS 5/116-3(c)(1) (West 2008).
       Materially relevant evidence is that which tends to significantly advance a defendant’s claim
       of actual innocence. People v. Barrow, 2011 IL App (3d) 100086, ¶ 27. However, such
       evidence need not exonerate the defendant. People v. Johnson, 205 Ill. 2d 381, 395 (2002).
       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.
       Johnson, 205 Ill. 2d at 396. However, the strength of the State’s evidence is not a hurdle that
       the defendant must overcome to meet the requirements of the statute. Barrow, 2011 IL App
       (3d) 100086, ¶ 27.
¶ 12        There was little direct evidence in this case. At about 3:50 p.m. on December 1, 1996,
       one of Shervanian’s neighbors heard two men screaming at each other, as if arguing, in
       Shervanian’s house. Several minutes later, as she drove away with her mother, she saw a red


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       Firebird parked nearby; no one was in or standing near the car. Her mother, who had seen
       Zink’s gold Jaguar parked in Shervanian’s driveway many times, testified that it was not in
       the driveway at that time. At about 5:25 p.m., another neighbor saw flames coming from
       Shervanian’s house. Shervanian was found in his bedroom, his face covered with red tape.
       The piping of a lamp was bent around his head, and the lamp cord and a blood pressure cuff
       were wrapped around his neck. A latex glove was found near his head. Shervanian died from
       a combination of injuries, including blunt and sharp force injuries and strangulation. He had
       also sustained a number of cuts on his hands that may have been defensive wounds.
¶ 13        Defendant spoke with officers and gave an account of his activities that was evasive and
       full of contradictions, even as to whether he knew where Shervanian lived and whether he
       had been in that neighborhood on the day of the murder. However, he always denied any
       involvement in Shervanian’s death. He also denied being a homosexual and denied being
       anything more than friends with Zink. Officers noted scratches on defendant’s face and
       hands. At first, defendant said that he had cut his hands cleaning a filter in his fish tank; he
       later said that he had cut his hands while repairing part of his car with plastic zip-ties.
¶ 14        Zink testified that he had had sexual relationships with both Shervanian and defendant,
       but not during the same period of time. (Another witness testified that Shervanian and Zink
       were still intimate at the time of the murder but that Shervanian had told him that the
       relationship would soon be over.) While defendant knew that Zink and Shervanian were
       friends, he did not know of Zink’s prior sexual relationship with Shervanian. Zink had been
       to brunch with Shervanian on the day of the murder, dropping him off at his house between
       3 and 4 p.m.
¶ 15        Defendant testified that, on the day of Shervanian’s death, he had gone to Shervanian’s
       house to drop off newspapers to be used to pack items for shipping. Zink’s car was in the
       driveway. Defendant entered the house through an open sliding door and eventually saw Zink
       exiting Shervanian’s bedroom covered in blood. Zink told him that there had been a small
       accident but that everything was all right. Zink was nervous and angry; he put his hand on
       defendant’s jacket, zipped it up, and guided defendant out of the house. Defendant did not
       tell the police about this incident, either when he first heard on the radio that Shervanian was
       killed or when he was questioned by the police, because he did not think that there could be
       a connection between the two events.
¶ 16        At defendant’s home, police found a box of latex gloves similar to the glove found near
       Shervanian’s head. They also found a leather jacket and a pair of shoes that had recently been
       washed. Officers also recovered plastic nylon ties and a roll of masking tape.
¶ 17        Forensic testing revealed a fingerprint inside the glove found near Shervanian’s head.
       While one expert testified that the print was a definite match to defendant, the expert
       admitted that the print contained two “bifurcations” that were not on defendant’s known
       prints. Another expert testified that, because of the bifurcations, the evidence was
       inconclusive as to whether the print matched defendant. Testing of blood discovered on the
       jacket and the glove revealed various results. Some of the threads tested revealed a mixture
       of DNA profiles that “could have originated from Shervanian and Rozo.” Other threads
       revealed a mixture that included Shervanian as “a possible donor” and included “a second


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       donor also identified who was present yet the results were uninterpretable.” Another thread
       contained a mixture that matched Shervanian’s profile but not defendant’s. Yet another
       thread showed a mixture of DNA profiles that included Shervanian’s and a second profile
       that was uninterpretable because it was present “in such a low level.” In all the tests done on
       the jacket and the glove, no “foreign DNA type” different from that of Shervanian or
       defendant was found.
¶ 18        Evidence was presented tying defendant to two recent crimes committed against
       Shervanian. Defendant was seen twice driving past Shervanian’s home after an arson fire had
       been set there. Less than two weeks before the murder, a bomb had been attached to
       Shervanian’s van with plastic ties similar to those found in defendant’s home. An expert
       testified that tape used on the bomb came from the roll of tape recovered from defendant’s
       home. Two witnesses testified that defendant had spoken to them about a book that contained
       information about building bombs; pages of this book were found scattered in Shervanian’s
       driveway.
¶ 19        Considering this trial evidence, we conclude that testing the evidence found under
       Shervanian’s fingernails would tend to significantly advance defendant’s claim of actual
       innocence such that testing should have been ordered. Again, the strength of the State’s
       evidence is not a hurdle that the defendant must overcome to meet the requirements of the
       statute. Barrow, 2011 IL App (3d) 100086, ¶ 27. The evidence of Shervanian’s murder
       showed that a violent struggle occurred; Shervanian sustained multiple types of trauma and
       sustained defensive wounds trying to protect himself. It is not inconceivable that Shervanian
       could have gotten the blood or skin of his murderer under his fingernails while attempting
       to protect himself from attack. If DNA found under Shervanian’s fingernails were found not
       to be a match to defendant’s, such evidence would certainly advance defendant’s claim of
       actual innocence, even more so if it matched the DNA of Zink, thus making his trial
       testimony regarding Zink’s bloody exit from Shervanian’s bedroom more credible. This
       evidence clearly is the type of evidence that should be tested under section 116-3. Thus, the
       trial court erred in denying defendant’s motion for the testing of the material under
       Shervanian’s nails.
¶ 20        Defendant also seeks to have the results of any such testing of the tissue/blood samples
       found under Shervanian’s fingernails compared to the DNA profiles of Zink and Derrickson.
       Defendant argues that such a test was not available at the time of trial, because “the statutory
       provision allowing for such comparative analysis and DNA database searches, 725 ILCS
       5/116-3 (2004), did not become effective until November 19, 2003.” However, this argument
       misses the point. It is not the availability of the statutory postconviction remedy that is in
       question; it is the lack of testing or the scientific unavailability of the testing method at the
       time of trial that is in question. See 725 ILCS 5/116-3(a) (West 2008). The lack of this
       statutory remedy at the time of trial is irrelevant; section 116-3 is a posttrial remedy, and it
       would not have applied to defendant’s trial.
¶ 21        However, section 116-3(a) allows for comparison analysis of evidence not subjected to
       testing at the time of trial to “other forensic evidence” and genetic marker evidence
       “maintained under subsection (f) of Section 5-4-3 of the Unified Code of Corrections.” 725
       ILCS 5/116-3(a) (West 2008). Defendant alleged in his motion that Zink submitted to DNA

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       testing pursuant to section 5-4-3 while in prison and that a private investigator had obtained
       oral swabs containing Derrickson’s DNA for testing. The State argues that, in determining
       whether to order such comparative testing, this court should not consider the allegations
       regarding the possible roles of Zink and Derrickson contained in defendant’s motion, because
       they were not supported by affidavit or other evidence. We disagree. The ultimate question
       is whether the testing sought has the “potential to produce new, noncumulative evidence
       materially relevant to the defendant’s assertion of actual innocence.” 725 ILCS 5/116-3(c)(1)
       (West 2008). Whether evidence is materially relevant requires evaluation of the trial
       evidence as well as the evidence that the defendant seeks to acquire through the testing.
       Pursley, 407 Ill. App. 3d at 534. Under the testing that we have already ordered herein,
       defendant seeks to acquire DNA evidence from the material found under Shervanian’s
       fingernails. That testing may reveal DNA evidence that either excludes defendant or is a
       mixture of DNA profiles that includes defendant’s DNA profile as well as that of another
       person, as occurred in the testing of the blood from defendant’s jacket. There is no reason
       not to test the already extant DNA evidence of the two other men whom defendant alleges
       were actually involved in the murder. This evidence would be materially relevant to
       defendant’s claim of innocence. Based upon the totality of the present record, we need not
       wait for another motion to request such comparison testing at a later date. Thus, the results
       of the testing of the tissue/blood samples found under Shervanian’s fingernails shall also be
       compared to the genetic information of Zink and Derrickson.
¶ 22       For these reasons, the judgment of the circuit court of Lake County is affirmed in part and
       reversed in part, and the cause is remanded for further proceedings.

¶ 23      Affirmed in part and reversed in part; cause remanded.




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