In People v. Whalen, 2019 IL App (4th) 190171, the State appealed the trial court’s order granting defendant Donald Whalen’s 2-1401 petition vacating his murder conviction and ordering a new trial. The State argued that Whalen’s claims were time barred and should have been dismissed, the trial court’s decision was made on an incorrect standard set forth in People v. Davis, 2012 IL App (4th) 110305, and that the decision was manifestly erroneous. The Fourth District ultimately reversed the trial court’s order and remanded for further proceedings to determine whether a different result would be “probable” based on new evidence in the case.
Whalen was charged with and convicted of the murder of his father, William Whalen, and sentenced to 60 years’ imprisonment. Id. at ¶ 20. At trial, the State disclosed evidence of an alleged match between a bloody latent palm print on a broken pool cue and Whalen. Id. at ¶ 5. A latent print examiner testified that the print left a “put-down” impression and opined that Whalen had blood on his palm prior to grabbing the cue stick. In addition to the palm print, the State presented evidence regarding Whalen’s shoes. The jury was presented with evidence that Whalen regularly wore a model of Converse shoes with a distinctive sole, matching that of the bloody shoe print at the scene. Id. at ¶ 12. The jury heard further evidence that Whalen had disposed of a pair of shoes, matching the print left at the scene, in the days preceding his arrest. Whalen testified on his own behalf and presented two alibi witnesses. Id. at ¶ 16.
On direct appeal, the appellate court held that defendant could not complain about the court’s refusal to allow his expert witness testimony and that the court had not abused its discretion in allowing the State to present evidence regarding the purchase of drugs, by Whalen, shortly following the murder. The court also held that the trial court did not err by prohibiting defendant from introducing evidence about an additional suspect in the murder. Id. at ¶ 21. The court noted that no evidence linked McElvaney, the other alleged perpetrator, to the crime scene. Id. at ¶ 23.
Whalen then filed a pro se motion (and supplemental amended motions) for DNA testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963, asking for DNA testing to be done on nine blood swabs from various areas of the crime scene, hair found in the victim’s hand and on a nearby table, and bloody knives found at the scene. Id. at ¶ 24. The evidence in question was stored in a box, unsealed, and was determined, by forensic testing experts, to be in a state which would not yield reliable results because contamination was too high. Id. at ¶ 26.
However, after testimony by Dr. Reich, the defense’s forensic expert, the trial court entered an order finding that Whalen met his burden in establishing a prima facie case for ordering DNA STR testing of the blood samples taken at the crime scene, hair samples, and blood samples taken from the knives found at the crime scene. Id. at ¶ 32. The court denied the request to test the actual knives, for chain of custody reasons. Following multiple amended motions and appeals, the court reversed the trial court’s denial of defendant’s request to have the actual knives tested, holding that “a mixed DNA sample is accepted in the scientific community to reliably reveal the number of contributors to a DNA sample and major versus minor contributors. Further, testing may materially advance defendant’s claim of innocence as defendant raised at trial, through an offer of proof, a specific named individual committed the murder and he was prevented from presenting testimony from an expert witness.” Id. at ¶ 38.
After testing, defendant was excluded as the source of any DNA found on the knives. Id. at ¶ 40. Further, telephone logs of calls between Bloomington police officers and an expert witness, Dierker, revealed the link between Whalen and the partial palm print found on the broken pool cue was “inconclusive as to the victim” and overall, “suspect.” Id. at ¶ 42. In a supplement to his initial section 2-1401 petition, defendant noted that a test was never performed to determine whether the latent palm print on the pool cue was in blood, and thus Dierker’s testimony was without evidentiary or scientific basis. A latent print expert, Michele Triplett, reported that the print could have been left on the pool cue before the murder. Id. at ¶ 46.
In a motion dismiss filed in response to Whalen’s 2-1401 petition, the State argued that parts of the petition relating to the latent print should be dismissed because Dierker’s telephone logs had been provided via discovery in 2007 but were not the subject of a 2-1401 petition until 2017. The State further argued that Triplett’s potential testimony should be stricken from the petition because it was untimely and barred by res judicata principles. Id. at ¶ 27. An evidentiary hearing was held, where Drs. Reich, Dierker and Triplett provided testimony.
The trial court ultimately determined that the State’s case was based almost “entirely on circumstantial evidence and centered around the blood and print evidence,” which the aforementioned experts had reviewed and provided unimpeached testimony on. Id. at ¶ 67. The court further determined that the State’s argument regarding defendant’s motive was also entirely circumstantial. The trial court ultimately found that a potentially unknown assailant was implicated by the DNA evidence on the knives and this evidence, had it been available to defendant at trial, and would have changed the way the defendant’s jury considered the evidence. Id. at ¶ 71.
The court also agreed with Whalen’s arguments related to Dierker’s telephone calls and testimony. In conclusion, the trial court stated: “the likelihood of a different result [at trial] is great enough to undermine the confidence in the outcome of the trial” and as such, allowed the section 2-1401 petition, vacated his convictions and ordered a new trial. Id. at ¶ 75. This appeal followed.
On appeal, the State argued that the claims related to the latent palm print on the pool cue stick were time-barred and should not have been considered and that the order granting the 2-1401 petition was manifestly erroneous and should be reversed outright. Id. at ¶ 79. In the alternative, the State argued the trial court applied the wrong standard, and the appellate court should remand the case to the trial court to reconsider its order under the proper standard.
On the palm print claim, the appellate court noted that the State had conceded that the defense could proceed with the section 2-1401 petition because of the new DNA evidence in the case. Further, the appellate court pointed to the State’s own brief and oral arguments, which posited that the telephone log evidence would be admissible in section 2-1401 litigation. The court found that the DNA tests performed on the knives were the primary basis for the petition as written, thereby rejecting the State’s argument related to the palm print claim being time-barred. Id. at ¶ 83.
As to the trial court’s order granting the 2-1401 petition, the appellate court found this case distinguishable from previous cases that relied upon biological evidence, which would typically justify a ruling like the trial court’s. In fact, Whalen was found guilty without any biological evidence tying him to the murder. Moreover, the court noted the fact that “DNA evidence was not found at the murder scene, on its own, does not establish [defendant] did not commit the crime.” Id. at ¶ 88. Further, the court highlighted that nobody was identified from the DNA testing other than defendant– despite testing revealing mixed samples that, according to Dr. Reich’s testimony, could have resulted from contamination. Id. at ¶ 91.
The appellate court shared Dr. Reich’s befuddlement at the lack of DNA evidence left behind by the assailant, but acknowledged that it was possible that no DNA was left behind. Id. at ¶ 92. The appellate court agreed with the State that, up until the filing of the petition, the defense had seemingly agreed with the inference that the substance on the pool cue was blood, despite a lack of testing of the substance in which the palm print was left. Id. at ¶ 99. Further, the court agreed that the trial court mistakenly equated the standards “probably change the result of retrial” with a “reasonable probability” standard established in precedent. Id. at ¶ 100.
Ultimately, based on the record in this case, the appellate court held it was unclear whether the trial court would have vacated defendant’s conviction and ordered a new trial if the court had not followed the “reasonable probability” standard erroneously and, as a result, the appellate court reversed the trial court’s order vacating the conviction and directed the trial court to determine whether it was “probable” or “more likely than not” a jury would acquit after a new trial. Id. at ¶ 103.
The Appellate Court of Illinois Fourth District ultimately reversed the decision of the Circuit Court of McLean County and remanded for further proceedings.