People v. Johnson ( 2010 )

FIRST DIVISION
December 20, 2010
No. 1-07-0715
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
LORELL JOHNSON, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN1 delivered the opinion of the court:
Faced with overwhelming DNA evidence, the defense in this
sexual assault and aggravated kidnapping case attempted to
persuade the jury the State could not prove the defendant’s
sexual contact with the alleged victim was forcible. The defense
did not succeed. Defendant Lorell Johnson was convicted of two
counts of aggravated criminal sexual assault and one count of
1
This opinion was originally authored by Justice Warren
Wolfson. Justice Lampkin was appointed to the Illinois Appellate
Court by the Illinois Supreme Court on September 25, 2009,
replacing Justice Wolfson, retired, as a member on the panel
assigned to review this case. Justice Lampkin, along with the
other members of the panel, has reconsidered this case pursuant
to a supreme court supervisory order. People v. Johnson, 237
Ill. 2d 574, 934 N.E.2d 1005 (2010).
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aggravated kidnapping. He was sentenced to two consecutive 25-
year prison terms.
On appeal, defendant contends: (1) the trial court erred in
admitting the inculpatory DNA evidence because sufficient
foundation was not established for the forensic scientist’s
opinion testimony on the matter; (2) the forensic scientist’s
opinion testimony violated the defendant’s sixth amendment
confrontation rights; and (3) the trial court erred in allowing
the State to present evidence of an uncharged sexual assault,
under section 115-7.3 of the Code of Criminal Procedure (Code)
(725 ILCS 5/115-7.3(c) (West 2006)), to prove defendant had a
propensity to commit sexual offenses. We affirm defendant’s
convictions and sentences.
FACTS
At trial, the victim, T.W., testified she was walking past
an alley at around 9:30 p.m. on March 2, 2002, when defendant
grabbed her and said “if you do what I say, you won’t get hurt.”
T.W. said defendant did not have a weapon. Defendant then led
T.W. through an alley to a large abandoned building, dragged her
into an L-shaped corridor, and pushed her down some stairs. T.W.
said defendant threatened to kill her if she did not do what he
said.
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T.W. said defendant told her to “suck his dick.” After T.W.
pulled defendant’s penis out of her mouth and told him she was so
scared that she might bite him, defendant pressed her against a
brick wall, placed a finger in her vagina, and then put his penis
inside her vagina. Once finished, defendant hopped over a fence
and fled. T.W. was not anally penetrated.
T.W. went back to the street, flagged down a police officer,
and told him that she had been raped. After T.W. led the police
back to the abandoned building, she was taken to St. Bernard’s
Hospital, where she provided a blood sample and vaginal and oral
swabs for a sexual assault evidence collection kit. The oral and
vaginal swabs were sent to the Illinois State Police Forensic
Science Center in Chicago. After the vaginal swabs tested
positive for the presence of semen, they were sent to Orchid
Cellmark, a private lab in Maryland, for DNA testing.
Cellmark prepared a male DNA profile from the vaginal swabs.
Cellmark also prepared a DNA profile for the victim. The male
DNA profile was entered into the Illinois State Police DNA
database. In June 2004, the database reported an association
between the male DNA profile prepared by Cellmark and defendant’s
DNA profile.
After defendant was arrested, T.W. identified him as her
attacker in a lineup on January 25, 2005.
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Following a jury trial, defendant was found guilty of two
counts of aggravated criminal sexual assault and one count of
aggravated kidnapping. The trial court sentenced defendant to
two consecutive 25-year prison terms.
DECISION
I. Other-Crimes Evidence
Defendant contends evidence of his involvement in an
uncharged sexual assault was inadmissible to prove his propensity
to commit sexual offenses under section 115-7.3 of the Code.
Specifically, defendant contends the unfairly prejudicial effect
of the other-crimes evidence clearly outweighed its probative
value in this case because the charged and uncharged offenses
were not substantially similar.
Before trial, the State filed a motion to allow other-crimes
evidence to show defendant’s propensity pursuant to section 115-
7.3 of the Code, defendant’s intent, and lack of consent.
Specifically, the State sought to introduce evidence of three
uncharged sexual assaults involving defendant–-the sexual assault
of F.F. on January 12, 2003; the sexual assault of C.V. on
November 9, 2003; and the sexual assault of O.W. on January 19,
2005.
Following a hearing, the trial court, over defense counsel’s
objection, granted the State’s motion. In reaching its ruling,
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the court said:
“THE COURT: There’s evidence to show
propensity on the part of Lorell Johnson to
commit sexual crimes, and I’m not sure how
you’d word the limiting instruction, they
might even say that, if there’s admission to
show propensity. That could be argued out as
far as the wording itself, but the case law
indicates they’re admissible for that
purpose, propensity. *** And I think the
cases sort of suggest or even say that
they’re admissible to show the likelihood or
lack or likelihood that more than one woman
would have consent to having sex under the
same circumstances months to years or
different times apart. So I’m not a big fan
of the statute, but the law requires me to
follow it. And I think under the
circumstances of these cases, the evidence of
other sexual assaults alleged to be committed
by Lorell Johnson are admissible in the
[T.W.] case March of 2002, which show what
the statute refers to in the case law is
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[sic] propensity in sexual assault. *** The
facts are sufficient enough to show arguably
a propensity to commit sex crimes by Lorell
Johnson, so those crimes will be admitted
with a limiting instruction.
At trial, C.V., the witness in the uncharged sexual assault,
testified that around 5 p.m. on November 10, 2003, she was
walking home from the grocery store when a car pulled into an
alleyway and blocked her path. A man, whom C.V. identified as
defendant in open court, got out of the passenger side of the car
and asked C.V. for directions. Defendant then pulled C.V. into
the backseat of the car and started removing her clothes. When
C.V. tried to get out of the car, defendant hit her on the temple
and said “don’t scream or else I’m going to kill you.” The car
then started to drive down the alley.
Defendant and the black male driver pulled C.V. from the
car, dragged her inside a dark abandoned building, and closed the
door. After defendant removed C.V.’s clothes, the driver put his
penis inside C.V.’s mouth while defendant put his penis inside
her anus. Defendant orally, anally, and vaginally penetrated
C.V. during the assault. At some point during the assault C.V.
had an asthma attack and blacked out. When she awoke, she was
alone in the abandoned building. C.V. returned home and called
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the police. C.V. was then taken to a hospital where the staff
collected biological samples. C.V. admitted she told police
defendant had blown cocaine in her face and given her alcohol
during the assault.
On January 25, 2005, while C.V. was in the hospital
receiving treatment for an unrelated medical problem, Detective
Hagan showed C.V. four photographs and asked if she could
identify her attacker. C.V. testified she immediately identified
defendant as the attacker from the photographs.
The State did not present evidence at trial regarding
defendant’s involvement in the uncharged sexual assaults of F.F.
on January 12, 2003, or of O.W. on January 19, 2005.
Following closing arguments, the jury was given the
following instruction regarding other-crimes evidence:
“Evidence has been received that the
defendant has been involved in an offense
other than that charged in the indictment.
This evidence has been received on the issue
of the defendant’s propensity to commit
criminal sexual assault and may be considered
by you only for that limited purpose. It’s
for you to determine whether the defendant
was involved in that offense, and if so, what
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weight should be given to this evidence on
the issue of propensity to commit criminal
sexual assault.”
A trial court’s decision to admit other-crimes evidence will
not be reversed absent an abuse of discretion. People v. Donoho,
204 Ill. 2d 159, 182, 788 N.E.2d 707 (2003); People v. Childress,
338 Ill. App. 3d 540, 552, 789 N.E.2d 330 (2003). We will find
an abuse of discretion if the trial court’s evaluation is
unreasonable, arbitrary, or fanciful, or where no reasonable
person would adopt the trial court’s view. Donoho, 204 Ill. 2d
at 182.
Under the common law, other-crimes evidence normally is
inadmissible if offered only to demonstrate the defendant’s
propensity to commit the charged crime. Donoho, 204 Ill. 2d at
169; People v. Manning, 182 Ill. 2d 193, 213, 695 N.E.2d 423(1998). Evidence regarding other crimes generally is admissible
only if offered to prove intent, modus operandi, identity,
motive, absence of mistake, or any relevant fact other than
propensity. Donoho, 204 Ill. 2d at 170; People v. Illgen, 145
Ill. 2d 353, 364-65, 583 N.E.2d 515 (1991).
However, section 115-7.3 of the Code provides an exception
to the general rule in criminal cases, where, as here, a
defendant is accused of criminal sexual assault. 725 ILCS 5/115-
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7.3(a)(1) (West 2006). In such cases, “evidence of the
defendant’s commission of another offense or offenses set forth
in paragraph (1), (2), or (3) of subsection (a), or evidence to
rebut that proof or an inference of that proof, may be admissible
(if that evidence is otherwise admissible under the rules of
evidence) and may be considered for its bearing on any matter to
which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2006).
In Donoho, our supreme court held the legislature enacted
section 115-7.3 of the Code to “enable courts to admit evidence
of other crimes to show defendant’s propensity to commit sex
offenses if the requirements of section 115-7.3 are met.”
Donoho, 204 Ill. 2d at 176.
Where other-crimes evidence meets the preliminary statutory
requirements, the evidence is admissible if it is relevant and if
its probative value is not substantially outweighed by its
prejudicial effect. Donoho, 204 Ill. 2d at 182-83. “The key to
balancing the probative value of other crimes evidence to prove
propensity against its possible prejudicial effect is to avoid
admitting evidence that entices a jury to find defendant guilty
‘only because it feels he is a bad person deserving
punishment.’ ” (Emphasis in original.) People v. Holmes, 383
Ill. App. 3d 506, 515, 890 N.E.2d 1045 (2008), quoting Childress,
338 Ill. App. 3d at 548.
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In weighing the probative value of the evidence against the
undue prejudice to the defendant, a court may consider:
“(1) the proximity in time to the
charged or predicate offense;
(2) the degree of factual similarity to
the charged or predicate offense; or
(3) other relevant facts and
circumstances.” 725 ILCS 5/115-7.3(c) (West
2006).
Donoho, 204 Ill. 2d at 182-83.
Looking at the other side of the scale, undue prejudice
“speaks to the capacity of some concededly relevant evidence to
lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged.” Old Chief v. United
States, 519 U.S. 172, 180, 136 L. Ed. 2d 574, 588, 117 S. Ct.
644, 650 (1997); People v. Boyd, 366 Ill. App. 3d 84, 94, 851
N.E.2d 827 (2006). Other-crimes evidence, when relevant, must
not become a focal point of the trial. Boyd, 366 Ill. App. 3d at
94. “That is, the trial court should not permit a ‘mini-trial’
of the other, uncharged offense, but should allow only that which
is necessary to ‘illuminate the issue for which the other crime
was introduced.’ ” People v. Bedoya, 325 Ill. App. 3d 926, 938,
758 N.E.2d 366 (2001), quoting People v. Nunley, 271 Ill. App. 3d
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427, 432, 648 N.E.2d 1015 (1995).
The record reflects defendant raised a no-force defense at
trial. During opening statements, defense counsel said: “The
evidence you will hear will show that there was sexual conduct
between [T.W.] and [defendant]. The evidence will show you that
this conduct was mutual conduct and it was consensual.” Defense
counsel returned to the no-force defense during closing argument:
“It’s not a rape. I don’t care how much everyone gets up and
tells you rape, rape, rape. It’s not a rape. *** But the
reality is there has been no evidence of force.”
The State specifically asked the trial court to allow the
other-crimes evidence to “show intent and lack of consent,” as
well as defendant’s propensity. Although the trial court never
ruled on whether the other-crimes evidence was relevant to prove
lack of consent, we find defendant’s no-force defense at trial
increased the probative value of C.V.’s other-crime testimony.
In Boyd, we recognized that in cases where a defendant
claims the victim consented to the sexual assault, “courts have
found other-crime evidence relevant to prove defendant’s criminal
intent or lack of an innocent frame of mind.” Boyd, 366 Ill.
App. 3d at 91-92, citing People v. Luczak, 306 Ill. App. 3d 319,
324-25, 714 N.E.2d 995 (1999) (other-crimes evidence relevant to
show defendant’s intent was to sexually assault the victim);
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People v. Harris, 297 Ill. App. 3d 1073, 1086, 697 N.E.2d 850(1998) (evidence admissible to establish lack of innocent intent
where defendant claimed consent). We saw no reason why
“propensity evidence could not be used to meet the defendant’s
consent defense” under section 115-7.3 of the Code. Boyd, 366
Ill. App. 3d at 93.
Moreover, although the trial court in this case found all
three uncharged sexual assaults were relevant to establish
defendant’s propensity, the State limited the other-crimes
evidence at trial to C.V.’s uncharged sexual assault. In
addition, the State made only one passing reference to propensity
evidence in each of its two final arguments. The State’s
decision to limit the amount of other-crimes evidence reduced the
possible prejudicial effect of such evidence at defendant’s
trial. See People v. Cardamone, 381 Ill. App. 3d 462, 497-98,
885 N.E.2d 1159 (2008) (Although “perhaps a few instances of
uncharged conduct” would have been relevant to show propensity
under section 115-7.3, “the volume of the other-crimes evidence
was overwhelming and undoubtedly more prejudicial than
probative”).
C.V.’s uncharged assault also bore a number of general
factual similarities to T.W.’s assault allegations against
defendant. At the same time, there are some distinct differences
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between the two assaults.
Other-crimes evidence must have “ ‘some threshold similarity
to the crime charged’ ” to be admissible. Donoho, 204 Ill. 2d at
184, quoting People v. Bartall, 98 Ill. 2d 294, 310, 456 N.E.2d
59 (1983). As factual similarities increase, so does the
relevance, or probative value, of the other-crimes evidence.
Donoho, 204 Ill. 2d at 184, citing Bartall, 98 Ill. 2d at 310.
Conversely, as the number of dissimilarities increase, so does
the prejudicial effect of the other-crimes evidence.
The general similarities between T.W.’s assault and C.V.’s
assault: (1) both victims were abducted while walking past
alleys; (2) both victims were taken to an abandoned building
before being assaulted; (3) the assailant used physical force and
threatened to kill both victims if they did not comply with his
demands; (4) defendant vaginally and orally penetrated both
victims with his penis; and (5) both victims were adults when the
assaults occurred–-C.V. was 42 and T.W. was 33.
Although defendant contends the similarities between the
assaults were insufficient because they are generic and common to
many sexual crimes, our supreme court has held “where such
evidence is not being offered under the modus operandi exception,
‘mere general areas of similarity will suffice’ to support
admissibility.” Donoho, 98 Ill. 2d at 184, quoting Illgen, 145
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Ill. 2d at 372-73. The existence of some differences between the
offenses does not defeat admissibility, however, “because no two
independent crimes are identical.” Donoho, 204 Ill. 2d at 185,
citing Illgen, 145 Ill. 2d at 373.
One of the most telling differences between the two assaults
was the number of perpetrators involved in each instance. C.V.
testified she was sexually assaulted by defendant and an
unidentified black male. T.W., on the other hand, testified
defendant was the only attacker during her assault. C.V.
testified defendant used a car during the assault, blew cocaine
in her face and gave her alcohol during the assault, and anally
penetrated her--three circumstances that differ from T.W.’s
assault testimony. Neither victim testified at trial to seeing a
weapon.
In Holmes, this court held the trial court properly excluded
evidence regarding the defendant’s 1996 conviction for attempted
forcible rape because the details of that assault were not
similar enough to the charged offense. Holmes, 383 Ill. App. 3d
at 518-19. Unlike the charged assault, during the 1996 assault:
there was a second person present when the victim was attacked;
the victim went into the defendant’s bedroom voluntarily and
engaged in some level of intimacy; defendant did not threaten the
victim with a weapon; the victim escaped from defendant; and
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there was no actual penetration. The court held the attacks did
not share enough general similarities to make the 1996 conviction
sufficiently probative to prove propensity under section 115-7.3.
Holmes, 383 Ill. App. 3d at 518-19.
There is another problem with the propensity evidence here:
the trial judge analyzed only the probative value of the other-
crimes evidence during the pretrial hearing on the State’s motion
to admit. The record reflects the trial court never considered
the other side of the scale referred to in Bedoya--whether the
risk of unfair prejudice substantially outweighed the probative
value of the evidence. See Bedoya, 325 Ill. App. 3d at 938. Our
supreme court has urged trial courts “to be cautious in
considering the admissibility of other-crimes evidence to show
propensity by engaging in a meaningful assessment.” Donoho, 204
Ill. 2d at 186. Here, there was no assessment at all.
The existence of significant dissimilarities between the two
assaults, combined with the trial court’s failure to conduct any
sort of “meaningful” analysis of the prejudicial effect of the
other-crimes evidence, leads us to say the trial court erred in
admitting the other-crimes evidence to establish defendant’s
propensity to commit sexual offenses. See Donoho, 204 Ill. 2d at
186; Holmes, 383 Ill. App. 3d at 518-19.
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A trial court’s failure to conduct a “meaningful assessment”
may be considered harmless, however, if it is unlikely the error
influenced the jury. Boyd, 366 Ill. App. 3d at 95, citing People
v. Nieves, 193 Ill. 2d 513, 530, 739 N.E.2d 1277 (2000) (improper
admission of other-crimes evidence is harmless error when a
defendant is neither prejudiced nor denied the right to a fair
trial). To determine whether the trial court’s error was
harmless in this case, we must first address defendant’s
contention that the DNA evidence linking him to T.W.’s alleged
assault was improperly admitted at trial.
II. DNA Evidence
Defendant contends evidence regarding the male DNA profile
prepared by Cellmark amounted to testimonial hearsay, in
violation of defendant’s constitutional right to confrontation,
because none of the analysts who actually prepared the profile
were presented for cross-examination. Defendant also contends
the trial court erred in admitting the DNA evidence produced by
Cellmark because a sufficient foundation was not established to
demonstrate the equipment used was adequately calibrated and
functioning properly.
At trial, Alissa Ginglesberger, a forensic scientist
employed by Orchid Cellmark (Cellmark), testified as a DNA
analysis expert regarding the procedures Cellmark used to analyze
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the DNA on T.W.’s vaginal swabs. Ginglesberger testified
Cellmark was an American Society of Crime Laboratory Directors’
accredited laboratory, which requires a laboratory to “follow
specific procedures and undergo specific training and proficiency
testing to abide by their guidelines.”
Ginglesberger admitted she did not examine or perform any
physical testing of the samples herself; instead, she based her
opinion on her review of the records of other Cellmark employees’
testing of the vaginal swabs. Ginglesberger testified her role
in this case was to serve as a “technical reviewer,” which meant:
“Once I receive the records and I receive all
of the paper work generated from the work
that was done in the case, I then did an
independent technical review of the work to
make sure all of the procedures were followed
correctly and the correct conclusions were
drawn. I also generated my own opinions and
my own interpretations of the data that was
present in the records and therefore I’m
going to testify to the conclusions based on
my review.”
Defendant objected to Ginglesberger’s testimony, arguing:
“The objection is foundational with regard to
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this witness. She’s a reviewer, basically
just reviewing the records of Cellmark. She
did not personally perform analysis in this
case. I object to the foundation and
hearsay.”
Overruling defendant’s objection, the court found:
“She can testify to the tests as an expert in
the field of DNA analysis. Ask her if those
records are commonly used by people in the
field. If she says yes she can testify and
use the records, if necessary.”
After Ginglesberger testified the records she reviewed were
kept in the ordinary course of business by Cellmark, she was
allowed to use the records while testifying. Defendant did not
object to the remainder of Ginglesberger’s testimony.
Ginglesberger testified Cellmark received T.W.’s blood
standard and vaginal swabs from the Illinois State Police crime
laboratory for analysis on May 21, 2002. The goal was to obtain
a male DNA profile from the swabs. Cellmark obtained a sperm
fraction from the swabs that generated a full male DNA profile at
13 locations. Cellmark used the polymerase chain reaction
procedure, which Ginglesberger testified is commonly accepted in
the scientific community to identify the DNA profile. After
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generating a male DNA profile, Cellmark wrote a report based on
its conclusions and interpretations of the data and sent the
report back to the Illinois State Police for use in criminal
litigation. Ginglesberger said approximately 10 Cellmark
analysts were involved in the laboratory work in this case and
that all of their methods, conclusions, and results were to a
reasonable degree of scientific certainty.
Nicholas Richert, a forensic scientist employed by the
Illinois State Police, testified he received the results of
Cellmark’s analysis of T.W.’s vaginal swabs. Richert said the
male DNA profile Cellmark generated from the swabs was entered
into the DNA database in May 2002. In June 2004, Richert
received information from the database that the male DNA profile
from T.W.’s vaginal swab matched defendant’s DNA profile.
Richert admitted a DNA match does not indicate whether consensual
or nonconsensual contact occurred. Defendant did not object to
Richert’s testimony.
After defendant was arrested, he consented to the collection
of a bucal swab to obtain his DNA profile. Brian Schoon, a
forensic scientist employed by the Illinois State Police,
testified he obtained a full DNA profile from defendant’s buccal
swab. He compared defendant’s DNA profile obtained from the
buccal swab to the male profile generated by Cellmark from T.W.’s
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vaginal swabs. Schoon concluded, to a reasonable degree of
medical certainty, that the DNA profiles matched. Schoon
conducted a statistical analysis of the DNA match and concluded
the DNA profile was likely to occur in approximately 1 in 710
quadrillion black, 1 in 550 quadrillion white, and 1 in 430
quadrillion Hispanic unrelated individuals. Defendant did not
object to Schoon’s testimony.
A. Forfeiture
The State contends defendant forfeited any right to
challenge the DNA evidence on sixth amendment confrontation or
lack of foundation grounds by failing to properly object at trial
or raise the issues in his posttrial motion.
In order to properly preserve any alleged error for
appellate review, “a defendant must both specifically object at
trial and raise the issue again in a posttrial motion.” People
v. Woods, 214 Ill. 2d 455, 470, 828 N.E.2d 247 (2005); People v.
Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).
Defendant raised a general hearsay and foundation objection
to Ginglesberger’s testimony regarding the Cellmark DNA profile
at trial and in his amended posttrial motion. However, the
objections raised below were clearly based on theories different
than those defendant presents here. Defendant never challenged
the admission of Ginglesberger’s testimony as a confrontation
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clause violation in the trial court; nor did he make a foundation
objection to the Cellmark DNA profile on the ground that there
was no proof the equipment used to generate the profile was
adequately calibrated and functioning properly. He raises those
issues for the first time on appeal.
Defendant forfeited the confrontation and lack of foundation
issues raised here. See People v. Woods, 214 Ill. 2d 455, 470,
828 N.E.2d 247 (2005) (“This rule is particularly appropriate
when a defendant argues that the State failed to lay the proper
technical foundation for the admission of evidence, and a
defendant’s lack of a timely and specific objection deprives the
State of the opportunity to correct any deficiency in the
foundational proof at the trial level”); People v. Eastling, 386
Ill. App. 3d 884, 887-88, 897 N.E.2d 340, 344 (2008) (defendant
waived confrontation clause challenge by failing to object at
trial or raise the issue in his posttrial motion).
Defendant contends the issues should be reviewed for plain
error. The plain-error doctrine allows a reviewing court to
reach a forfeited error when either (1) the evidence in the case
is closely balanced, regardless of the seriousness of the error,
or (2) the error is so serious that the defendant was denied a
substantial right, regardless of the closeness of the evidence.
People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005).
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The first step in conducting a plain-error analysis is to
determine whether an error occurred at all. People v. Hudson,
228 Ill. 2d 181, 191, 886 N.E.2d 964 (2008).
B. Foundation
In Wilson v. Clark, 84 Ill. 2d 186, 417 N.E.2d 1322 (1981),
our supreme court adopted the then-existing Federal Rule of
Evidence 703, holding that an expert may offer an opinion based
upon facts not in evidence if those facts are “of a type
reasonably relied upon by experts in the particular field.”
People v. Raney, 324 Ill. App. 3d 703, 706, 756 N.E.2d 338(2001), citing Wilson, 84 Ill. 2d at 193. Where expert testimony
is based upon an electronic or mechanical device, however, the
expert must provide some foundational proof that the device is
functioning properly at the time it was used. Raney, 324 Ill.
App. 3d at 706 (proper foundation was lacking where expert failed
to provide any testimony that the machine used was calibrated and
working properly or how she knew the results were accurate).
Raney recognized, however, that it may not be feasible to require
an expert to personally test the instrument relied on for making
relevant determinations. Raney, 324 Ill. App. 3d at 710.
Recently, in People v. Williams, 238 Ill. 2d 125 (2010), the
Illinois Supreme Court held that despite the DNA analyst’s
inability to testify to the precise conditions of the equipment
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and testing used to analyze the DNA samples, the analyst provided
a sufficient foundation for her testimony. The analyst “did not
merely regurgitate results generated by a machine, as the witness
in Raney did. [The analyst] conducted an independent evaluation
of data related to samples of genetic material, including items
processed at both Cellmark and the ISP Crime Lab.” Williams, 238
Ill. 2d at 140. The supreme court further distinguished Raney
because the analyst repeatedly testified that Cellmark, the
testing facility, was an accredited laboratory required to follow
specified guidelines in order to perform DNA analysis. The State
laid a proper foundation to show that the analyst also testified
that Cellmark’s testing and analysis methods were generally
accepted in the scientific community. The analyst was qualified,
without objection, as an expert in forensic DNA analysis.
Although she admitted she had not performed the actual tests on
the evidence, the analyst used her own expertise to determine
that, upon examination, the blood and semen samples indicated a
DNA match with the defendant. Williams, 238 Ill. 2d at 140.
The supreme court further noted that it was the defendant’s
burden to “elicit facts underlying the expert opinion.”
Williams, 238 Ill. 2d at 140, citing Wilson, 84 Ill. 2d at 194.
The record demonstrated “substantial cross-examination” of the
analyst’s opinion regarding the genetic match between the DNA
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samples. The supreme court ultimately concluded that “the issue
of [the analyst’s] reliance on Cellmark’s report went to the
weight of her opinion and not its admissibility.” Williams, 238
Ill. 2d at 140-41.
The foundational grounds presented in this case are stronger
than the grounds presented in Williams.
Ginglesberger--an employee of the laboratory that generated
the DNA profile--was qualified as an expert in DNA analysis,
without objection. She specifically testified Cellmark was an
American Society of Crime Laboratory Directors’ accredited
laboratory, which required the laboratory to “follow specific
procedures and undergo specific training and proficiency
testing.” Ginglesberger explained Cellmark used the polymerase
chain reaction procedure, which is commonly accepted in the
scientific community, to identify the DNA profile. Although
Ginglesberger admitted she did not perform any physical testing
herself, she said she conducted an “independent technical review
of the work to make sure all of the procedures were followed
correctly and the correct conclusions were drawn.”
Based on this court’s holding in Williams, Ginglesberger
provided a sufficient foundation upon which to partially base her
assessment and conclusion. There is no foundational error to
review in this case.
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C. Confrontation Clause
The sixth amendment’s confrontation clause provides that,
“[i]n all criminal prosecutions, the accused shall enjoy the
right *** to be confronted with the witnesses against him.” U.S.
Const., amend. VI. In Crawford v. Washington, 541 U.S. 36, 68,
158 L. Ed. 2d 177, 203, 124 S. Ct. 1354, 1374 (2004), the Supreme
Court held the confrontation clause bars the admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a
prior opportunity for cross-examination. The Court declined to
specifically define what constitutes a “testimonial” statement.
The Court did say, however, “the [confrontation] clause also does
not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Crawford, 541
U.S. at 59 n.9, 158 L. Ed. 2d at 191 n.9, 124 S. Ct. at 1369 n.9.
In Williams, the supreme court considered whether a DNA
analyst’s expert testimony, which referred to a report of the
results of a laboratory’s DNA testing and analysis, violated the
defendant’s constitutional right to confrontation where no
representative of Cellmark, the testing laboratory that generated
the report, was presented for cross-examination regarding the
report. The court held determination of the issue depended, in
part, on whether the report was testimonial in nature. Williams,
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238 Ill. 2d at 141.
The supreme court recognized that although the rule against
hearsay generally prohibits the introduction of an out-of-court
statement offered to prove the truth of the matter asserted,
“[u]nderlying facts and data, however, may be disclosed by an
expert, not for the truth of the matter asserted, but for the
purpose of explaining the basis for his opinion.” Williams, 238
Ill. 2d at 143, citing People v. Lovejoy, 235 Ill. 2d 97, 143,
919 N.E.2d 843 (2009). Moreover, the court noted “it is well
established that an expert may testify about the findings and
conclusions of a nontestifying expert that he used in forming his
opinions.”2 Williams, 238 Ill. 2d at 143, citing Lovejoy, 235
Ill. 2d at 143.
2
This “well established” principle is based on our supreme
court’s adoption of Federal Rule of Evidence 703 in Wilson, 84
Ill. 2d at 192-93. We note Federal Rule 703 was amended in 2000,
however, to provide “[f]acts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent
of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial
effect.” Fed. R. Evid. 703 (amended 2000). The advisory
committee notes reflect the 2000 amendment “provides a
presumption against disclosure to the jury of information used as
the basis of an expert’s opinion and not admissible for any
substantive purpose, when the information is offered by the
proponent of the expert.” Fed. R. Evid. 703, Advisory
Committee’s Note. The amended version of Federal Rule 703 has
not been adopted in Illinois.
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The Illinois Supreme Court held the Cellmark report was not
offered for the truth of the matter asserted. “The State
introduced this testimony, rather, to show the underlying facts
and data [the analyst] used before rendering an expert opinion in
this case.” Williams, 238 Ill. 2d at 145. The court noted the
analyst “testified to her conclusion based upon her own
subjective judgment about the comparison of the Cellmark report
with the existing ISP profile.” Williams, 238 Ill. 2d at 145.
Moreover, the supreme court emphasized the Cellmark report was
not admitted into evidence at all. The court further
distinguished the case from the U.S. Supreme Court opinion in
Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314,
129 S. Ct. 2527 (2009) because the analyst’s opinion was based on
her own statistical analysis and not just a “bare bones”
regurgitation of Cellmark’s report. Williams, 238 Ill. 2d at
149. Because the report was not offered to prove the truth of
Cellmark’s findings, the supreme court concluded the
Confrontation Clause was not violated. Williams, 238 Ill. 2d at
149.
Here, as in Williams, the report was not offered to prove
the truth of Cellmark’s findings; instead, Ginglesberger
testified regarding the report to provide a basis for her own
opinion.
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Moreover, Ginglesberger--unlike the DNA expert in Williams--
was an actual Cellmark representative, subject to cross-
examination by defense counsel. Accepting defendant’s
contentions as true in this case would require each and every
individual involved in the testing and analysis of DNA to testify
at trial.
Because the report was not offered to prove the truth of
Cellmark’s findings, the confrontation clause was not violated.
See Williams, 238 Ill. 2d at 149. There is no Crawford error to
review here.
III. Harmless Error
We now turn to the issue of whether the trial court’s
improper admission of the other-crimes evidence in this case
amounted to harmless error. “[I]mproper introduction of other-
crimes evidence is harmless error when a defendant is neither
prejudiced nor denied a fair trial based upon its admission.”
Nieves, 193 Ill. 2d at 530.
Here, T.W.’s testimony at trial that defendant grabbed her
while walking past an alley, dragged her into the corridor of an
abandoned building, and sexually assaulted her was not attacked
or challenged, except in statements by defense counsel. T.W.’s
identification of defendant as her attacker in a lineup and in
court went unchallenged. After T.W. flagged down a police
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officer and reported the rape, she was taken to an emergency room
for treatment. Dr. Joseph Knight testified that when he
interviewed and examined T.W. in the emergency room, she told him
that she had been sexually assaulted orally and vaginally in a
vacant building. Dr. Knight noted a thin white discharge around
T.W.’s vagina during a pelvic exam. He administered a sexual
assault evidence collection kit, which obtained miscellaneous
debris, oral swabs, vaginal swabs, pubic hair combings, head hair
combings, and a blood standard from T.W. The scientific evidence
collected from T.W.’s vaginal swabs after the assault provided a
male DNA profile that matched defendant’s DNA profile. Based on
T.W.’s testimony, combined with the medical evidence, a rational
trier of fact easily could have found the sexual intercourse took
place by force and against T.W.’s will. See People v. Le, 346
Ill. App. 3d 41, 50-51, 803 N.E.2d 552 (2004), citing People v.
Morrow, 104 Ill. App. 3d 995, 433 N.E.2d 985 (1982) (unequivocal
testimony of complainants was sufficient to sustain conviction in
rape prosecution, even without physical evidence to corroborate
their assertion with respect to the defendant’s use of force).
Given the strength of the evidence presented against
defendant, mixed with the fact that the State did not put undue
emphasis on the other-crimes evidence during its opening or
closing arguments, we cannot say the outcome of his trial would
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have been different had C.V.’s testimony regarding defendant’s
involvement in her assault been excluded. See People v.
Gonzalez, 379 Ill. App. 3d 941, 952, 884 N.E.2d 228 (2008). The
error in admitting C.V.’s testimony to establish defendant’s
propensity to commit sexual assault was harmless. See Nieves,
193 Ill. 2d at 530-31; Gonzalez, 379 Ill. App. 3d at 952.
CONCLUSION
We affirm defendant’s conviction and sentences.
Affirmed.
HALL, P.J., and R. GORDON, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LORELL JOHNSON,
Defendant-Appellant.
No. 1-07-0715
Appellate Court of Illinois
First District, FIRST DIVISION
December 20, 2010
Justice Bertina E. Lampkin authored the opinion of the court:
Presiding Justice Hall and Justice R. Gordon concur.
Appeal from the Circuit Court of Cook County.
The Hon. Stanley J. Sacks, Judge Presiding.
COUNSEL FOR APPELLANT
Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
Patricia Unsinn, Deputy Defender
OF COUNSEL: Brian E. Koch
COUNSEL FOR APPELLEE
Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
OF COUNSEL: James E. Fitzgerald, Alan J. Spellberg
and Amy Watroba Kern
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