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

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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.

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 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.

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 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

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 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).

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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.

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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

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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

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 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

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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.

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