People v. Brooks

Docket No. 99293.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

CLAUDE BROOKS, JR., Appellee.

Opinion filed May 18, 2006.

JUSTICE FREEMAN delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, McMorrow,

Fitzgerald, Kilbride, Garman, and Karmeier concurred in the

judgment and opinion.

OPINION

Following a bench trial in the circuit court of Cook County,

defendant, Claude Brooks, Jr., was convicted of the predatory

criminal sexual assault of his eight-year-old stepdaughter. After

the appellate court affirmed his conviction, defendant filed a

pro se petition under the Post-Conviction Hearing Act (725

ILCS 5/122B1 et seq. (West 2002)) as well as a motion for DNA

testing pursuant to section 116B3 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/116B3 (West 2002)). The

circuit court summarily dismissed defendant=s postconviction

petition as frivolous and lacking merit and denied the motion for

DNA testing. The appellate court affirmed in part, reversed in

part, and remanded the matter for further proceedings. We

granted the State=s petition for leave to appeal (177 Ill. 2d R.

315) and now affirm in part and reverse in part the judgment of

the appellate court.

Background

At defendant=s trial, the victim, L.N., testified that in 1997

she lived with her mother, brother, and defendant. On the

evening of October 17, 1997, she was at the family=s apartment

alone with defendant. Before going to bed, L.N. took a bath

and put on her two-piece pajamas. She then went into the

dining room and lay down on a cot to watch television.

Defendant, who was sitting in a chair near L.N.=s room,

approached her and pulled down her pajama pants. Then,

defendant pulled down his pants and climbed on top of L.N.

L.N. testified that defendant=s Aprivate part@ touched her

Aprivate part.@ L.N. testified that defendant was Apumping@ on

her and Agoing in and out@ of her for about five minutes when

her mother walked into the dining room. Defendant jumped up

and pulled up his pants.

L.N. further testified that one morning, several days before

her birthday, defendant entered the bedroom L.N. shared with

her brother. Defendant woke her up and took off her pajamas.

Defendant then disrobed and climbed on top of L.N. L.N. stated

that defendant put his Aprivate part@ inside her Aprivate part@

and started Apumping@ her. L.N. testified that after a few

minutes, something came out of defendant=s private part. L.N.=s

brother was asleep at the time. L.N. did not shout or scream

-2-

when defendant was on top of her because she was afraid that

he would hurt her. On October 19, 1997, L.N. went with her

mother to the hospital and told doctors what had occurred

between defendant and her. During cross-examination, L.N.

admitted that she could not recall the dates of these events

without her mother=s help.

L.N.=s mother, LaDell, testified that she was married to

defendant and lived with him and her two children at the time of

the incidents in question. On October 17, 1997, LaDell left the

apartment at about 8 p.m. At that time, defendant was in the

master bedroom, and L.N. was taking a bath. L.N.=s brother

was spending the night at a friend=s house. LaDell returned to

the apartment around 45 minutes later and discovered

defendant on top of L.N. The child=s legs were up in the air,

and defendant was positioned between her legs. LaDell

screamed for the defendant to get away from L.N. LaDell took

her daughter into the master bedroom and asked L.N. whether

this was the first time defendant had engaged in such behavior.

L.N. responded in the negative. That night, LaDell slept in a

chair by L.N.=s bedroom. LaDell could not call police because

the family did not have a telephone in the apartment. LaDell did

not leave the apartment until two days later when her best

friend came to the apartment to pick her up. LaDell took L.N.

with her. LaDell told her friend what had occurred, and they

drove to the police station.

LaDell admitted to using crack cocaine after she had

witnessed the incident between defendant and L.N. She further

admitted that she had left the apartment to purchase cocaine to

use with defendant.

Dr. Gail Allen, an assistant professor of pediatrics at the

University of Chicago Children=s Hospital, testified that on

October 19, 1997, she was assigned to the emergency room

where L.N. was admitted. Dr. Allen conducted an evaluation of

L.N. for sexual assault. In a preliminary interview, L.N. told Dr.

Allen that after she took a bath, defendant Abegan feeling on@

her. L.N. stated that she pushed defendant away, but that he

returned and Astarted doing it to@ her. However, L.N. told Dr.

Allen that she had not been vaginally penetrated at that time,

but she had been in the past.

-3-

Dr. Allen performed a general physical examination of L.N.,

which revealed the presence of Awhitish@ or Ayellowish@

secretions just outside of L.N.=s vagina. Although L.N.=s hymen

was intact, Dr. Allen found it significant that during her

examination, she discovered the development of Awhitish@ scar

tissue on the right side of L.N.=s hymen. Such a finding is

consistent with chronic abuse. Dr. Allen collected physical

evidence for analysis and recommended that L.N. be admitted

to the chronic care facility of the hospital.

On cross-examination, Dr. Allen admitted that she was

unable to find any acute evidence of sexual abuse aside from

the abnormal secretions. She explained that the term Aacute@

referred to evidence of sexual abuse occurring within 72 hours

after the alleged incident.

The parties stipulated that Jennifer Shultz, a forensic

scientist, received the vaginal swabs taken from L.N. and

determined that they contained semen. The parties further

stipulated that Amy Rehemstrom, a forensic scientist,

compared the DNA from defendant=s blood samples to the

DNA from the vaginal swabs and determined that no

conclusion could be drawn as to the source of the semen.

Defendant=s sole witness was Sergeant Kenneth Burke, a

youth investigator for the Chicago police department. Burke

had observed, on October 20, 1997, a victim-sensitive

interview of L.N. at the hospital. He described L.N. as being

very alert and articulate. He recalled L.N. telling the social

worker that defendant Akept messing@ with her and that he

touched her private part while she was in the bathtub. L.N.

denied that defendant touched her with his private part.

The circuit court found defendant guilty. Although the court

acknowledged the chronological inconsistencies in L.N.=s

testimony, he found her description of the events to be

credible. The court also found LaDell=s testimony credible as

well despite her admitted use of cocaine. The court found the

medical evidence of scar tissue to L.N.=s hymen to be

consistent with sexual abuse and that the presence of semen

suggested some contact. The court sentenced defendant to 22

years= imprisonment.

-4-

The appellate court affirmed the conviction, finding

defendant=s insufficiency of the evidence argument to be

unpersuasive. People v. Brooks, No. 1B00B1176 (2002)

(unpublished order under Supreme Court Rule 23).

Defendant thereafter sought postconviction relief. To that

end, he filed a petition in which he asserted that his trial

attorney was ineffective for failing to call two witnesses,

defendant=s mother and his brother. Defendant alleged in his

petition that their trial testimony would have called into question

LaDell=s credibility. Defendant also alleged that his appellate

counsel, who was also his trial counsel, was ineffective for

failing to raise his own ineffectiveness on direct appeal.

Defendant=s petition was supported by affidavits from both his

mother and his brother. After reviewing the affidavits, the circuit

court summarily dismissed the petition as being without merit.

Defendant also filed with his postconviction petition a pro se

motion to compel polymerase chain reaction DNA testing (PCR

DNA testing) of the vaginal swab taken from L.N. This motion

was made pursuant to section 116B3 of the Code of Criminal

Procedure (725 ILCS 5/116B3 (West 2002)). The circuit court

denied the motion.

Defendant appealed. The appellate court reversed the

circuit court=s summary dismissal of the postconviction petition

because it found that the circuit court rendered the order more

than 90 days after the date the petition was filed and docketed,

in contravention of section 122B2.1 of the Post-Conviction

Hearing Act (725 ILCS 5/122B2.1 (West 2002)). No. 1B03B0586

(unpublished order under Supreme Court Rule 23). With

respect to defendant=s request for new DNA testing, the

appellate court affirmed the circuit court=s denial of the request,

holding that defendant did not establish, as required under the

statute, that the vaginal swab was not subjected to PCR DNA

testing at the time of trial. Other pertinent facts will be

discussed within the body of the analysis.

Analysis

I

-5-

The State assigns error to the appellate court=s conclusion

that the circuit court=s order of summary dismissal was void

because it was rendered more than 90 days after the date the

petition was filed and docketed. The State argues that the

docketing requirement of section 122B2.1 of the Post-

Conviction Hearing Act (725 ILCS 5/122B2.1 (West 2002)) is

fulfilled on the date when the clerk of the court places it on the

docket call of a trial judge with the authority to rule on it.

Defendant, on the other hand, argues that the requirement is

satisfied when the clerk of the court receives the petition.

The issue, as framed by the parties, involves the

interpretation of a statute, which is a question of law that we

review de novo. People v. Donoho, 204 Ill. 2d 159, 172 (2003).

This court=s primary objective when undertaking to interpret a

statute is to give effect to the intent of the legislature, and the

most reliable indicator of that intent is the language of the

statute. People v. Phelps, 211 Ill. 2d 1, 15 (2004); People v.

Hanna, 207 Ill. 2d 486, 497 (2003).

Section 122B1 of the Post-Conviction Hearing Act (the Act)

provides that a postconviction proceeding Ashall be

commenced by filing with the clerk of the court in which the

conviction took place a petition *** verified by affidavit.@ 725

ILCS 5/122B1(b) (West 2002). This same section also states

that the Aclerk shall docket the petition for consideration by the

court pursuant to Section 122B2.1 upon his or her receipt

thereof and bring the same promptly to the attention of the

court.@ 725 ILCS 5/122B1(b) (West 2002). Section 122B2.1

provides:

A(a) Within 90 days after the filing and docketing of

each petition, the court shall examine such petition and

enter an order thereon pursuant to this Section.

***

(b) If the petition is not dismissed pursuant to this

Section, the court shall order the petition to be docketed

for further consideration in accordance with Sections

122B4 through 122B6.@ 725 ILCS 5/122B2.1 (West

2004).

-6-

This court has previously recognized that the time requirement

contained in section 122B2.1(a) is mandatory, not directory,

and that a trial court=s noncompliance with the time

requirement renders any summary dismissal void. People v.

Porter, 122 Ill. 2d 64, 86 (1988).

In this case, the record reveals that defendant placed his

petition in the institutional mail at Centralia Correctional Center

on September 9, 2002. The notice of filing accompanying

defendant=s petition was stamped AReceived@ by the clerk of

the circuit court, criminal division, on September 13, 2002. That

same notice of filing was also stamped AFiled@ by Dorothy

Brown, clerk of circuit court, on September 20, 2002.

Defendant=s actual pro se petition was stamped AFiled@ by

Dorothy Brown, clerk of circuit court, on September 20, 2002.

On that same date, the clerk=s office entered the following

notation on the Ahalf-sheet@ of the case, numbered 97 CR

29342B01: A9/20/02 Petition for Post-Conviction Relief, Filed

Hearing Date Set: 9/30/02.@ The half-sheet notation reveals

that the case was assigned to Judge Dernbach from Judge

Wood on September 30, 2002. Judge Dernbach summarily

dismissed the case on December 18, 2002.

As noted above, the Act requires that within 90 days Aafter

the filing and docketing@ of the petition, the circuit court shall

examine the petition. 725 ILCS 5/122B2.1(a) (West 2002). In

this case, the parties focus on the meaning of the word

Adocketing.@ Defendant maintains, as did the appellate court,

that the plain language of the Act establishes that the 90-day

review period begins to run when a postconviction petition is

received by the clerk of the circuit court, which in this case was

on September 13, 2002. The State contends that the 90-day

review period begins to run when the clerk of the court places

the case on the call of a judge with authority to rule on it, which

in this case was on September 30, 2002, the day on which the

case was placed on the call of Judge Dernbach. Thus, the

parties give different meanings to the word Adocketing@ as it is

used in section 122B2.1(a) of the Act.

The Act does not define the word Adocketing.@ As such, we

must interpret it, and in so doing, we must give the word its

plain, ordinary, and popularly understood meaning. Carver v.

-7-

Sheriff of La Salle County, 203 Ill. 2d 497, 507 (2003). When a

term used by the legislature is clear and unambiguous, it is not

necessary to resort to other aids of construction. Michigan

Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504

(2000). According to Black=s Law Dictionary, the word Adocket,@

when used in its verb form, means Ato make a brief entry in the

docket of the proceedings and filings in a court case *** to

abstract and enter in a book *** or to schedule (a case) for trial

or some other event.@ Black=s Law Dictionary 517 (8th ed.

2004). The standard dictionary meaning of the verb Adocket@ is

Ato make a brief abstract of (a legal matter) and inscribe it in a

list.@ Webster=s Third New International Dictionary 666 (1993).

Clearly, then, the verb Adocket@connotes more than the mere

act of receiving the petition, as defendant suggests. To

Adocket@ requires that the cause be entered in an official

record. Nevertheless, we do not believe that the word Adocket@

entails that the case be placed on a specific call of a judge, as

the State maintains. The plain meaning of the word connotes

that the cause is entered on the court=s official docket for

further proceedings. The record here reveals that defendant=s

postconviction petition was Adocketed@ within the commonly

understood meaning of the word on September 20, 2002, when

the clerk of the court entered the petition into the case file and

set it for a hearing. Thus, in this case, the clock began to run

for purposes of the time requirement contained in section

122B2.1 on September 20, 2002.

In view of the above, we cannot agree with the appellate

court that the summary order of dismissal entered by the circuit

court was void. The circuit court entered the summary

dismissal order on December 18, 2002, and the petition was

docketed on September 20, 2002. As such, the circuit court=s

ruling occurred within the statutory time span allowed in section

122B2.1. The appellate court=s conclusion to the contrary was

erroneous.

II

In a request for cross-relief, defendant contends that the

appellate court erred in affirming the circuit court=s denial of his

motion for DNA testing pursuant to section 116B3 of the Code

-8-

of Civil Procedure. In his motion to allow DNA testing,

defendant had stated that none of the DNA material collected

from him Awas subjected to test [sic] requested. Now

[defendant] request [sic] forensic (PCR DNA) testing.@ The

defendant had also stated that AThe DNA technology available

today was not available at the time of trial.@ The circuit court

denied the motion. The appellate court rejected defendant=s

claim of error on the grounds that defendant could not show

that his evidentiary sample had not been previously subjected

to PCR DNA testing at the time of his trial. No. 1B03B0568

(unpublished order under Supreme Court Rule 23).

In this court, defendant maintains that he made his prima

facie case as required by section 116B3 by asserting that

identity was at issue at the trial; that the vaginal swab was not

subject to testing at the time of the trial; and that the evidence

to be tested had been subject to a chain of custody sufficient to

establish that it had not been substituted, tampered with,

replaced, or altered in any material respect.

Section 116B3 of the Code provides:

A(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. ***

(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

-9-

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; [and]

(2) the testing requested employs a scientific

method generally accepted within the relevant

scientific community.@ (Emphasis added.) 725 ILCS

5/116B3 (West 2002).

The denial of a request made pursuant to section 116B3 is

subject to de novo review upon appeal. People v. Shum, 207

Ill. 2d 47, 65 (2003).

We agree with the appellate court=s conclusion that to have

granted defendant=s request for retesting under these

circumstances would have been contrary to both the express

language of the statute and the intent of the legislature. The

plain language of subsection (a) of section 116B3 requires that

a defendant show (i) that the evidence in question was not

subject to the requested test at the time of the trial and, (ii) that

the reason it was not subject to testing is because the

technology for the requested test was unavailable at the time of

defendant=s trial. People v. Lamming, 358 Ill. App. 3d 1153,

1156 (2005), quoting People v. Franks, 323 Ill. App. 3d 660,

662 (2001); People v. Price, 345 Ill. App. 3d 129 (2003). In his

motion, defendant requested PCR DNA testing. The record

indicates that the circuit court ordered the genetic samples

collected from the victim tested for DNA analysis on November

8, 1999. Defendant=s trial took place in January 2000. At the

time of defendant=s trial, the technology for PCR DNA testing

was available and the method itself was recognized by the

judiciary nationwide, including Illinois. See People v. Pope, 284

Ill. App. 3d 695, 703-05 (1996) (noting that PCR testing

accepted by the scientific community and collecting cases);

see also United States v. Beasley, 102 F.3d 1440, 1448 (8th

Cir. 1996) (concluding that courts in the Eighth Circuit can take

judicial notice of the general reliability of PCR DNA testing);

Harmon v. State, 908 P.2d 434, 440 (Alaska App. 1995)

(holding that there is little question concerning the scientific

-10-

acceptance of the theory underlying PCR DNA testing); State

v. Brown 949 S.W.2d 639, 641 (Mo. App. 1997) (same); Wood

v. State, 959 P.2d 1 (Okla. 1998); Spencer v. Commonwealth,

240 Va. 78, 393 S.E.2d 609 (1990). Thus, if the requested test

was not done on the genetic samples collected from the victim,

the reason it was not done was not because the technology for

the testing was unavailable at the time of defendant=s trial.

However, that is the only reason the statute allows for granting

a request. We hold that the circuit court did not err in denying

defendant=s request.

Conclusion

In light of the foregoing, we reverse that portion of the

appellate court=s judgment which held the circuit court=s

summary dismissal of defendant=s postconviction petition void.

Consequently, we remand the matter to the appellate court in

order for it to consider the remainder of defendant=s appellate

challenges to the circuit court=s summary dismissal of his

postconviction petition. We affirm the appellate court=s

judgment in all other respects.

Appellate court judgment affirmed

in part and reversed in part;

cause remanded.

-11-