                             No. 2--04--0297
_________________________________________________________________________
_____

                                         IN THE

                            APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____

THE PEOPLE OF THE STATE                     )   Appeal from the Circuit Court
OF ILLINOIS,                                )   of Lake County.
                                            )
      Plaintiff-Appellee,                   )
                                            )
v.                                                 )   No. 84--CF--188
                                            )
HECTOR SANCHEZ,                             )
                                      Honorable
                                        ) Christopher C. Starck,
     Defendant-Appellant.               ) Judge, Presiding.
_________________________________________________________________________
______

      JUSTICE BOWMAN delivered the opinion of the court:

      Following a jury trial in 1986, defendant, Hector Sanchez, was convicted of murder,

attempted murder, aggravated kidnaping, rape, and deviate sexual assault. Defendant was

sentenced to death for the murder conviction, but in January 2003, defendant's death

sentence was commuted. On October 27, 2003, defendant filed a pro se motion for

deoxyribonucleic acid (DNA) testing under section 116--3 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/116--3 (West 2002)). In an ex parte hearing in

which the State claimed that the evidence to be tested no longer existed, the trial court

denied defendant's motion for DNA testing. Defendant appeals, arguing that it was error to

deny his motion at a hearing where he was not present or provided an opportunity to
contest the State's representations. We reverse the denial and remand the cause for

consideration of defendant's motion for DNA testing under section 116--3.

                                     I. BACKGROUND

       A full recitation of the facts of this case appears in the supreme court's 1986 decision

affirming defendant's convictions and sentences on direct appeal (see People v. Sanchez,

115 Ill. 2d 238 (1986)), but we briefly summarize them here. Defendant's conviction

stemmed from the abduction and slaying of Michelle Thompson and the attempted murder

of Rene Valentine in February 1984. Valentine, an acquaintance of Thompson, testified

that on the evening of February 3, he and Thompson left a nightclub and got into

Valentine's car in the parking lot. Defendant and another man, later identified as Warren

Peters, Jr., entered Valentine's car from opposite sides. Defendant escorted Valentine at

gunpoint to a more secluded area of the parking lot and shot him twice in the chest but did

not kill him.

       Further evidence against defendant was provided by codefendant Peters, who

testified on behalf of the State. According to Peters, defendant instructed him to take

Thompson to his car while defendant went off with Valentine. After Peters heard what

sounded like a gunshot, defendant returned to Peters' car, produced a pair of handcuffs

from his coat, and put them on Thompson. They then proceeded to defendant's home and

defendant took Thompson inside. By the time Peters entered the house, Thompson was

nude from the waist down. Defendant then raped Thompson on the floor, produced a nylon

strap, tied Thompson's still-handcuffed wrists to her feet, and dragged her behind a chair.

       Thompson tried to escape, and defendant's neighbor, Gene Gonyo, testified that he

heard pounding on his back door around 1:30 a.m. on February 4. Gonyo saw a man and
No. 2--04--0297


woman outside his house, and the woman was naked below the waist. Shortly after that,

Gonyo saw the man and woman walk toward defendant's house.                 Defendant soon

appeared alone at Gonyo's door and apologized for any disturbance.

       Peters testified that defendant then carried Thompson to the basement. Peters went

down several minutes later and observed Thompson leaning over the washing machine

with defendant behind her. Thompson had been gagged with a strip of cloth. Defendant

then announced that he would "have to kill her" and strangled her with a nylon strap.

       When defendant and Peters began to move the body, Peters noticed that Thompson

had defecated on the basement floor. After defendant cleaned up the excrement, they

dragged the body upstairs and placed it in the backseat of defendant's car. Defendant and

Peters then drove to an isolated location in Wisconsin and disposed of the body. As

defendant drove away, he ran over the body.

       The doctor who performed the autopsy testified that the cause of death was

strangulation with a fairly wide ligature. Other bruises and abrasions that were found were

consistent with the events described by Peters. Although the examination revealed

evidence of anal penetration, there was no trace of excrement or injury to the genitalia, as

is commonly found in rape victims. Swabs were taken from all of Thompson's body

cavities, but only the vaginal area showed the presence of semen. Chemical factors in the

semen were consistent with defendant's blood type and the vaginal swabs were admitted

into evidence.

       A microscopic analysis expert with the Federal Bureau of Investigation (FBI) testified

that his investigation involved comparisons of hairs, fibers, and other materials collected

from Thompson's body and the scene of the crime. Fibers found on her body were


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No. 2--04--0297


consistent with fibers from a number of sources in defendant's house and car. In addition,

Thompson's hair was consistent with hair found in defendant's house and car as well as

Peters' car. Buttons and fibers consistent with Thompson's clothing were also found in

defendant's house.     Items admitted into evidence included head hair samples from

Thompson, hundreds of plastic bottles containing hair and fiber, and eight or nine boxes of

numerous microscopic slides containing hair and fiber.

       The jury found defendant guilty of murder, attempted murder, aggravated kidnaping,

rape, and deviate sexual assault. Defendant was sentenced to death for the murder

conviction, and the supreme court affirmed his convictions and sentences on direct appeal.

See Sanchez, 115 Ill. 2d 238. Consolidated with the case was the appeal in a separate

proceeding defendant had initiated under section 2--1401 of the Code of Civil Procedure

(Ill. Rev. Stat. 1983, ch. 110, par. 2--1401). While the supreme court remanded the case

for an evidentiary hearing on one of the contentions raised in the section 2--1401 petition, it

later affirmed the trial court's denial of the claim. People v. Sanchez, 131 Ill. 2d 417 (1989).

After the United States Supreme Court denied defendant's petition for certiorari (Sanchez

v. Illinois, 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240 (1987)), defendant filed a pro

se postconviction petition, which the trial court dismissed without an evidentiary hearing.

Our supreme court affirmed the dismissal of defendant's postconviction petition. People v.

Sanchez, 169 Ill. 2d 472 (1996).

       On October 27, 2003, based on "semen and hair specimens secured during the

investigation of the death" of Thompson, defendant filed a motion for DNA testing (725

ILCS 5/116--3 (West 2002)). Defendant's motion stated, among other things, that the sole

issue at trial was identity and that the evidence to be tested had been in the "continuous


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possession of law enforcement agencies, thereby satisfying the requirement of a sufficient

chain of custody."

      On October 30, 2003, the court informed the State of defendant's motion and

continued the matter to December 12, 2003, for a status hearing to allow the State to

respond. On December 12, 2003, the State informed the court that it had contacted the

FBI to determine if the semen samples from 1984 still existed. Because the FBI had not

provided a definitive answer, the court continued the matter to January 9, 2004.

      On January 9, 2004, the State appeared in court for a status hearing regarding

whether the samples still existed. The State noted that defendant was not present in court

and was not represented by counsel. According to the State, it had been working with

Assistant Special Agent Brian Beane, who was in charge of the Rolling Meadows FBI

office, which had handled defendant's case. Beane informed the State that, 20 years ago,

the samples had been submitted to the FBI's crime lab in Washington for testing. Beane

contacted the Washington crime lab, which had moved to Quantico one year earlier, and

was informed that the samples were no longer there. Beane also contacted the medical

examiner's office where the autopsy was conducted and found that the samples were not

there. Beane further told the State that the samples were not at the FBI offices in Rolling

Meadows or Chicago. According to the State, "[Beane] says it appears the samples do not

exist any longer. General policy of the FBI is not to keep samples anywhere close to the 20

years that was involved in this case." The State also noted that defendant never requested

that the samples be preserved.

      When the court asked whether the State or the State Police crime lab had ever

possessed the samples, the State responded that it did not believe so, because the "results


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No. 2--04--0297


weren't introduced into evidence." According to the State, it did not retain any evidence on

its own because the samples needed to be refrigerated and the State's office did not have

the necessary facilities. The State also said that neither the State Police crime lab nor the

Northern Illinois Police crime lab possessed the samples, because the testing in

defendant's case was done exclusively by the FBI crime lab. The court then denied

defendant's motion for DNA testing, stating the following:

              "I believe under the statute [defendant] has to allege that the samples still

       exist so they can be tested under the DNA - the new DNA exclusions or exceptions

       to the filing of late post-conviction petitions and requests for samples. There

       appearing that the samples no longer exist after 20 years and quite frankly, the FBI

       having no reason to keep them at that point because further testing was not

       available [defendant's] motion for DNA testing of the samples is denied."

The trial court did not address whether identity was at issue at trial, but ruled that defendant

was unable to establish a prima facie case relating to the chain of custody. A written order

was entered stating that, "[t]his matter coming on for status of the existence of the physical

evidence sought to be tested" by defendant, "the court finds that such evidence no longer

exists and dismisses and/or denies the defendant's petition pursuant to 725 ILCS 116--

3(b)(2)." Defendant's timely notice of appeal followed.

                                        II. ANALYSIS

          Defendant asserts that the trial court erred by denying in an ex parte hearing his

motion for DNA testing. According to defendant, he was not granted the opportunity to

respond to the State's representations that the evidence no longer existed; the State's

representations were based on "unsworn hearsay information of an FBI agent"; and no


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No. 2--04--0297


explanation was given regarding the procedures that are normally taken when the State

prosecutes a crime while "using an outside laboratory." For example, defendant states that

he was denied the opportunity to allege that the samples were lost or destroyed in bad

faith. Defendant concludes that the denial of his motion, without notice and an opportunity

to meaningfully contest the factual matters asserted by the State, violates basic concepts of

due process.

       The State responds that the manner in which the trial court disposed of defendant's

motion for DNA testing was proper. According to the State, defendant does not contend

that there was an order requiring the evidence to be retained, there is no indication that the

evidence was lost or destroyed in bad faith, defendant could have filed an amended or

successive motion under section 116--3 in response to the State's representations, and

section 116--3 does not specifically provide for any type of hearing.

       Section 116--3 permits a defendant to obtain forensic testing of physical evidence

when such testing was not available at the time of trial and when certain statutory

requirements have been met. People v. Gibson, 357 Ill. App. 3d 480, 484 (2005). "Its

purpose is to provide an avenue for convicted defendants who maintained their innocence

to test available genetic material capable of providing new and dramatic evidence materially

relevant to the question of the defendant's actual innocence." People v. Henderson, 343 Ill.

App. 3d 1108, 1114 (2003). Section 116--3 provides:

               "(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


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No. 2--04--0297


      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 2002).




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Thus, in order to present a prima facie case for forensic testing under section 116--3, the

defendant must show that identity was the central issue at trial and that the evidence to be

tested was subject to a sufficiently secure chain of custody. People v. Johnson, 205 Ill. 2d

381, 393 (2002).

       A trial court's decision to deny a motion for DNA testing is subject to de novo review.

People v. Shum, 207 Ill. 2d 47, 65 (2003). "Our review is de novo because the trial court's

decision regarding such a motion is not based upon its assessment of the credibility of the

witnesses but on its review of the pleadings and the trial transcripts." People v. Jones, 334

Ill. App. 3d 61, 63 (2002).         As previously indicated, the State argues that the trial

court's denial was proper because section 116--3 does not specifically provide for any type

of hearing. Although cited by neither party, our research has revealed two cases in which

the trial court summarily denied the defendant's motion for forensic testing under section

116--3. In People v. Franks, 323 Ill. App. 3d 660 (2001), the defendant argued that the trial

court erred by summarily denying his motion where he had alleged a prima facie case that

(1) identity was at issue at trial and (2) the evidence to be tested had been subject to a

sufficient chain of custody. Franks, 323 Ill. App. 3d at 661-62. The defendant in Franks

also relied on the fact that the State had not yet filed a response at the time the trial court

denied his motion. Franks, 323 Ill. App. 3d at 662. The Appellate Court, Fifth District,

affirmed the denial because the defendant's motion failed to allege that the technology for

the requested testing was unavailable at the time of trial, as required under subsection (a).

Franks, 323 Ill. App. 3d at 662. In other words, the court determined that the defendant's

motion for DNA testing was wholly insufficient on its face to satisfy the requirements of

section 116--3(a). Franks, 323 Ill. App. 3d at 662.


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No. 2--04--0297


       Similarly, in People v. Stevens, 315 Ill. App. 3d 781, 784 (2000), the defendant

argued that the trial court erred by summarily denying his motion without a hearing. The

trial court in Stevens found section 116--3 inapplicable, based on its finding that identity

was not the issue in the defendant's case. Stevens, 315 Ill. App. 3d at 784. The Appellate

Court, Fourth District, affirmed the summary denial on three grounds: (1) section 116--3

does not require that the trial court conduct a hearing on a motion for forensic testing; (2)

despite the defendant's assertion otherwise, identity was not the issue in the trial that

resulted in the defendant's conviction; and (3) the blood he sought to have tested would not

produce new, noncumulative evidence materially relevant to the defendant's assertion of

innocence. Stevens, 315 Ill. App. 3d at 784.



       Franks and Stevens appear to hold that a trial court may summarily deny a motion

under section 116--3 as a matter of law, without a hearing of any kind. See Stevens, 315

Ill. App. 3d at 784 (section 116--3 does not state that a defendant is entitled to a hearing

and courts will not interpret a statute to guarantee a hearing as a matter of right without

such language in the statute). As a result, these cases arguably support the State's

assertion that section 116--3 does not entitle defendant to a hearing as a matter of right.

However, we need not comment on the propriety of Franks and Stevens, as they are

distinguishable. First, the case at bar differs from Franks in that defendant's motion for

DNA testing is not facially insufficient. For reasons we discuss below, defendant's motion

has sufficiently alleged a prima facie case regarding chain of custody. Second, unlike in

Stevens, defendant's motion was not summarily denied, without a hearing, based on the

pleadings and the trial transcript. Rather, an ex parte hearing was conducted in which the


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No. 2--04--0297


State made unsworn representations that the evidence to be tested no longer existed.

Thus, while Franks and Stevens considered whether a court may summarily deny a motion

for DNA testing under section 116--3, the question here is whether a court may deny a

facially-sufficient section 116--3 motion at a hearing where the defendant is not present or

provided an opportunity to contest the State's assertions.       Defendant's pro se motion

requested the court to order DNA testing using the polymerase chain reaction (PCR)

procedure on the semen found in Thompson's vaginal area and the hair found on her body

and at the crime scene. Specifically, his motion alleged that (1) the sole issue at trial was

identity; (2) the State's case was based entirely on circumstantial evidence; (3) defendant

has proclaimed his innocence at all times; (4) the result of the testing has the scientific

potential to produce new, noncumulative evidence materially relevant to his claim of

innocence; (5) if DNA testing on the semen samples and hairs found on Thompson's body

excluded defendant as the source, he would be exonerated; (6) the evidence was not

subject to DNA testing at trial because PCR technology was not available in Illinois in the

mid-1980s; and (7) "since the conclusion of [his] trial, the evidence to be tested has been in

[the] continuous possession of law enforcement agencies, thereby satisfying the

requirement of a sufficient chain of custody to establish the integrity of the evidence."

       As stated, defendant's motion for DNA testing has sufficiently alleged a prima facie

case regarding chain of custody. In other words, defendant's motion under section 116--3

is facially sufficient with respect to the chain-of-custody requirement. Our conclusion is

supported by the supreme court's decision in Johnson, where the defendant sought DNA

testing of a Vitullo rape kit. Johnson, 205 Ill. 2d at 393. In Johnson, the State argued that

the defendant failed to present a prima facie case that the kit was subject to a sufficiently


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secure chain of custody. Johnson, 205 Ill. 2d at 394. The court rejected the State's

argument, reasoning:

       "Though the State contends that the defendant has presented no evidence of the

       kit's location since his 1984 trial, such evidence would not be available to the

       defendant. The Vitullo kit, as a piece of real evidence admitted at trial, would have

       remained in the custody of the circuit court clerk after the defendant's conviction."

       Johnson, 205 Ill. 2d at 394.

The court in People v. Travis, 329 Ill. App. 3d 280 (2002), made a similar observation:

              "For future reference, we note the parties engaged in some dispute over

       chain-of-custody issues before the trial court. The court did predicate dismissal on

       these grounds; indeed, the court evinced a willingness to allow [the defendant] some

       limited amount of discovery on the issue, all else being equal. We find this course to

       be a sound one. It asks too much to require petitioning defendant in these cases to

       plead and prove proper chain of custody at the outset, for the evidence at issue will

       undoubtedly have been within the safekeeping of the State, not the defendant. The

       trial court may allow limited discovery in an appropriate case." Travis, 329 Ill. App.

       3d at 285.

       In this case, the State did not file a written response challenging defendant's ability

to establish a prima facie case regarding chain of custody. Rather, the State advised the

court at a status hearing of its investigation into whether the evidence to be tested still

existed. According to the State, FBI agent Beane advised that the samples had been

submitted to the crime lab in Washington 20 years ago, but were no longer there. The

State further advised the court that the FBI's general policy was not to keep samples


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No. 2--04--0297


anywhere close to 20 years. Based on the State's unsworn factual representations, the trial

court determined that defendant was unable to present a prima facie case that the

evidence had been subject to a sufficient chain of custody and denied the motion.

       However, defendant was not present at the status hearing and had no notice of the

State's position that the evidence to be tested no longer existed. Indeed, defendant was

given neither notice nor an opportunity to be heard on the issue upon which the trial court

based its denial. For example, defendant was not given the opportunity to contest the

State's assertion that the State Police crime lab never had the samples. Defendant points

out that, while the State relayed to the trial court that the "results weren't introduced into

evidence," the record appears to show otherwise. According to the trial transcript, items

entered into evidence included vaginal swabs showing the presence of semen, head hair

samples from Thompson, hundreds of plastic bottles containing hair and fiber, and eight or

nine boxes of numerous microscopic slides containing hair and fiber. If real evidence

admitted at trial would have remained in the custody of the circuit court clerk after

defendant's conviction (see Johnson, 205 Ill. 2d at 394), defendant should have been given

an opportunity to contest the State's assertion that it never had the samples.

       Rather than filing a written response to defendant's motion for DNA testing, the State

was allowed to argue in an ex parte hearing that the evidence to be tested no longer

existed.   Because defendant had no notice or opportunity to contest the State's

representations, and because the State's representations formed the basis of the trial

court's denial, defendant was denied procedural due process. Once defendant sufficiently

alleged a prima facie case regarding chain of custody, and once the State appeared in

court to challenge defendant's ability to satisfy the chain-of-custody          requirement,


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fundamental fairness required that defendant be permitted to participate in that hearing.

See People v. Alexander, 136 Ill. App. 3d 1047, 1052 (1985) (ex parte hearings were

improper because fundamental fairness and orderly procedure demand that both parties be

permitted to participate and one-sided hearings may unduly prejudice the petitioner). In

People v. Kitchen, 189 Ill. 2d 424 (1999), for example, our supreme court vacated the trial

court's denial of the defendant's postconviction petition.        The court agreed with the

defendant that the trial court's failure to give the defendant notice that it intended to make a

substantive ruling on the petition and its failure to hear arguments on the petition denied the

defendant procedural due process. Kitchen, 189 Ill. 2d at 434-35; see also People v.

Smith, 312 Ill. App. 3d 219, 225 (2000) (the court determined that the defendant was

denied her right to due process of law when her pro se postconviction petition was

dismissed at a status court date without due notice being given to the defendant's counsel

and without defense counsel's presence).

       The purpose of the chain-of-custody requirement is to ensure the reliability of the

evidence to be tested. People v. Schutz, 344 Ill. App. 3d 87, 94 (2003). If it is determined

that the evidence to be tested has been destroyed, however, relief under section 116--3 is

no longer available to the defendant. Schutz, 344 Ill. App. 3d at 94. It is preferable that this

requirement be addressed by the parties in the trial court. Henderson, 343 Ill. App. 3d at

1116. As the Henderson court stated:

       "If the State wishes to object to the section 116--3 request based on insufficient

       evidence relating to the chain of custody, it should raise that matter in the trial court.

        Similarly, if the defendant asserts that he is unable to plead and prove the proper

       chain of custody because the evidence at issue has been in the safekeeping of the


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       State or the clerk of the circuit court, the trial court may allow limited discovery in the

       appropriate case." Henderson, 343 Ill. App. 3d at 1116.

       As defendant here has alleged a prima facie case regarding chain of custody under

section 116--3, we remand the matter to the trial court to address this issue. On remand,

the State shall file a written response with supporting documents in support of its position

that the evidence no longer exists and raise any other ground for challenging defendant's

motion. Proper notice of the State's written response shall be provided to defendant. If

warranted, the trial court may allow limited discovery on the chain-of-custody requirement.

In addition, we note that, if it is determined that the evidence has been destroyed, this fact

alone does not entitle defendant to a hearing as to whether the evidence was destroyed in

bad faith. See Schutz, 344 Ill. App. 3d at 96 (the fact that the evidence sought to be tested

has been destroyed does not singularly entitle a defendant to hearing as to whether the

evidence was destroyed in bad faith).

                                      III. CONCLUSION

       In short, the trial court shall determine whether defendant is able to satisfy the chain-

of-custody requirement. If defendant is unable to do so, the trial court shall deny the

motion. If defendant succeeds in this respect, the trial court must also determine whether

identity was the issue in the trial that resulted in his conviction. 725 ILCS 5/116--3(b) (West

2002). Provided that these two criteria are met, the trial court is also required to determine

whether the result of the testing has the scientific potential to produce new, noncumulative

evidence materially relevant to his assertion of actual innocence and whether the requested

testing employs a scientific method generally accepted within the relevant scientific




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community. 725 ILCS 5/116--3(c) (West 2002). If all of these requirements are satisfied,

the court is mandated to order the testing. People v. Dunn, 306 Ill. App. 3d 75, 81 (1999).

       We reverse the Lake County circuit court's judgment and remand the cause for

proceedings consistent with this opinion.

       Reversed and remanded.

       HUTCHINSON and BYRNE, JJ., concur.




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