People v. Johnson ( 2010 )

Sixth Division
December 10, 2010
No. 1-07-3372
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of Cook County
Plaintiff-Appellee, )
)
v. ) 05 CR 4414
)
LORELL JOHNSON, )
) Honorable
Defendant-Appellant. ) Rosemary Higgins-Grant,
) Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court:
Pursuant to the supervisory order issued by the Illinois Supreme Court in People v.
Johnson, 237 Ill. 2d 574 (2010), we vacated our previous opinion and reconsider our decision in
light of People v. Williams, 238 Ill. 2d 125 (2010).
Following a jury trial which included deoxyribonucleic acid (DNA) evidence, defendant
Lorell Johnson was found guilty of aggravated criminal sexual assault and not guilty of
aggravated kidnaping and the trial court sentenced him to a term of 30 years to run consecutive to
defendant’s prior conviction. Defendant appeals, arguing that the admission of inculpatory DNA
evidence violated his sixth amendment confrontation rights and that the trial court erred in
admitting this DNA evidence because a sufficient foundation was not established for the forensic
scientist’s opinion testimony.
The following evidence was admitted at defendant’s jury trial. Shortly after midnight on
July 12, 2003, the victim, F.F., was standing in line at Maxwell’s, a neighborhood hot dog stand
on the south side of Chicago. At the time, F.F. was addicted to drugs. Defendant approached
F.F. as she stood in line. F.F. had never seen defendant before that moment. F.F. and defendant
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spoke. He told her that he had drugs at his house. F.F. got out of the line and followed defendant
to get the drugs. She followed him down an alley into the backyard of an abandoned building.
F.F. wanted to leave, but defendant grabbed her body and dragged her up the stairs of the building
to the top floor. F.F. yelled, “stop,” and “no,” but defendant continued to carry her up the stairs.
F.F. scraped her arm on the railing while trying to reach for it.
When they reached the top of the stairs, defendant pulled F.F. into a dark room and threw
her against the wall. F.F. hit her head on a low part of the ceiling. He pushed her against the
window, put his hand around her throat and told her to be quiet or he would throw her out the
window. Defendant pulled down F.F.’s pants and then his own pants. He then had vaginal
intercourse with F.F. F.F. described the assault as violent and that he “jammed” his penis into her
vagina. Defendant removed his penis from F.F.’s vagina, turned to the side and ejaculated on the
floor.
Defendant then pulled up his pants and ran down the stairs. F.F. waited until she could no
longer hear defendant on the stairs. She left and went to the nearest pay phone at 51st Street and
Ashland to call the police. She saw defendant running across the street and pointed him out to a
group of nearby men, who then chased defendant. When the police arrived at F.F.’s location, she
was incoherent, screaming and pointing in several directions. A police officer suggested she seek
treatment for the scrape on her arm that was bleeding. F.F. refused and tried to tell the police that
defendant was running by across the street, but the officer did not give chase and the group of
men did not catch him. F.F. led the police officer to the abandoned building and told him that
defendant had ejaculated on the floor. The officer called for an evidence technician to come to
the scene and recover the stain. The stain was recovered on two swabs and was later submitted
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for biological testing. F.F. became frustrated with the police officer because she felt he was not
trying to catch defendant so she left the scene and stayed with a friend for several days.
Later, in 2004, F.F. entered a drug rehabilitation facility. In January 2005, a detective
located F.F. at the facility. The detective spoke with F.F. about the sexual assault. After
receiving information from the Illinois State Police crime lab (ISP lab), defendant was arrested.
F.F. viewed a lineup at Area One and immediately identified defendant as the man who sexually
assaulted her.
During the trial, defendant’s attorney filed a “Motion in limine to Exclude Testimony of
Reviewing Expert as Lacking Foundation and Improper Hearsay.” The motion asserted that the
State would seek to introduce DNA evidence through an analyst, Charlotte Word, who had
reviewed the file, but did not participate in any of the actual testing. Defense counsel argued that
“[i]ntroduction of this evidence solely through this witness fails to lay a proper foundation for the
testing conditions and procedures” and “violates defendant’s rights to confrontation” under the
sixth amendment and article I, section 8, of the Illinois Constitution. The trial court heard
argument on the motion and denied the motion. The court held that the testimony about the DNA
profile was admissible if it was the sort of information reasonably relied on by experts in the field.
Charlotte Word testified as a DNA analysis expert. Defendant made no objection to her
qualification as an expert. She stated that she worked at Orchid Cellmark in Germantown,
Maryland, from 1990 to 2005, when the facility closed. In 2004, Cellmark had a contract with the
ISP lab to complete overflow testing. Cellmark was accredited by the American Association of
Blood Banks and by the American Society of Crime Laboratory Directors. Word worked as a
laboratory director in 2004.
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Word stated that she did not participate in the testing of the swab recovered from the
crime scene and the preparation of a DNA profile, but she was able to testify as to the results.
Her testimony was based on her review of the notes and documentation kept in the lab folder.
She said that through her review of the case file, she was able to determine that the proper
procedures were followed with the appropriate control tests. The results showed a single male
donor of the semen from the swab. Based on her independent review, Word concluded that the
results were correct. She observed no discrepancies in the case folder.
The results and the swab were sent to the ISP lab. Following defendant’s arrest, a buccal
swab was taken from defendant and sent to the ISP lab for testing. ISP lab forensic scientist
Brian Schoon testified at trial that he received defendant’s buccal swab in June 2005. He
performed tests and prepared a DNA profile from the buccal swab. Schoon compared
defendant’s DNA profile with the single male donor DNA profile obtained from the swab and
concluded that the profiles matched. Schoon conducted a statistical analysis and found that the
DNA profile from the swab would be expected to occur in 1 in 710 quadrillion black, 1 in 550
quadrillion white or 1 in 430 quadrillion Hispanic individuals. Schoon stated all of his results and
conclusions were to a reasonable degree of scientific certainty.
Defendant did not offer any evidence in his case-in-chief. Following deliberations, the jury
found defendant guilty of aggravated criminal sexual assault and not guilty of aggravated
kidnaping. Defendant filed a motion for a new trial, which included claims that the trial court
erred in overruling defense counsel’s objections for foundation and confrontation to the testimony
about the Cellmark DNA profile. The trial court denied the motion and subsequently sentenced
defendant to 30 years in prison to be served consecutive to his sentence for a prior conviction.
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This appeal followed.
On appeal, defendant argues that the DNA profile prepared by Cellmark was inadmissible
because (1) it was testimonial hearsay and violated his rights under the confrontation clause
because defendant did not have an opportunity to cross-examine any of the analysts who prepared
the profile, and (2) the State failed to lay a proper foundation for this evidence as there was no
evidence that the equipment used to prepare the profile was adequately calibrated and functioning
properly.
Initially, the State points out that defendant did not raise any objection that Schoon’s
testimony violated his confrontation rights in his motion in limine nor in his motion for a new
trial, and therefore, any error in Schoon’s testimony is forfeited. To preserve an issue for review,
defendant must both object at trial and in a written posttrial motion. People v. Woods, 214 Ill. 2d
455, 470 (2005), citing People v. Enoch, 122 Ill. 2d 176, 186 (1988). If a defendant fails to
satisfy either prong of this test, his challenge is considered waived on appeal. Woods, 214 Ill. 2d
at 470. “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.” Woods, 214 Ill. 2d at 470. Thus, any issue regarding
Schoon’s testimony is forfeited.
However, in his reply brief, defendant asserts that should we find that he forfeited any
error in respect to Schoon’s testimony, then we should review that issue for plain error.
Defendant also contends that he may raise plain error for the first time in his reply brief, despite
the fact that Supreme Court Rule 341(h)(7) holds that “[p]oints not argued are waived and shall
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not be raised in the reply brief.” 210 Ill. 2d R. 341(h)(7). Defendant cites to the supreme court’s
decision in People v. Williams, 193 Ill. 2d 306, 347-48 (2000), in which the supreme court found
that it was not precluded from reviewing the defendant’s plain error argument despite her failure to
raise it in her opening brief.
Supreme Court Rule 615(a) states that “[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill.
2d R. 615(a). “Under the plain error rule, issues not properly preserved may be considered by a
reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so as
to preclude argument that an innocent person was wrongfully convicted; or (2) where the alleged
error is so substantial that it affected the fundamental fairness of the proceeding, and remedying
the error is necessary to preserve the integrity of the judicial process.” People v. Hall, 194 Ill. 2d
305, 335 (2000). “However, before invoking the plain error exception, ‘it is appropriate to
determine whether error occurred at all,’ because without error, there can be no plain error.”
People v. Smith, 372 Ill. App. 3d 179, 181 (2007), quoting People v. Wade, 131 Ill. 2d 370, 376
(1989). Therefore, we will review the issue to determine if there was any error before considering
it under plain error.
The sixth amendment to the United States Constitution provides that: “In all criminal
prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against
him ***.” U.S. Const., amend. VI. This part of the sixth amendment is known as the
Confrontation Clause and applies to the states through the fourteenth amendment. People v.
Stechly, 225 Ill. 2d 246, 264 (2007). In Crawford v. Washington, the Supreme Court held
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“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford
v. Washington, 541 U.S. 36, 68-69, 158 L. Ed. 2d 177, 203, 124 S. Ct. 1354, 1374 (2004).
“However, the Crawford Court explicitly declined to define what exactly makes a statement
‘testimonial.’ ” Stechly, 225 Ill. 2d at 266; see Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,
124 S. Ct. at 1374. The hearsay rule generally prohibits the introduction of an out-of-court
statement used to prove the truth of the matter asserted. People v. Spicer, 379 Ill. App. 3d 441,
449 (2007). But the Crawford Court pointed out that “[t]he [Confrontation] Clause also does not
bar the use of testimonial statements for purposes other than establishing the truth of the matter
asserted. See Tennessee v. Street, 471 U.S. 409, 414[, 85 L. Ed. 2d 425, 430-31, 105 S. Ct.
2078, 2081-82] (1985).” Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at1369 n.9. Here, defendant asserts that the DNA profile prepared by Cellmark was testimonial
hearsay in violation of the confrontation clause since no one who worked on its analysis testified
at his trial.
Recently, the Illinois Supreme Court in People v. Williams, 238 Ill. 2d 125 (2010),
considered the issue raised by defendant. In that case, the defendant was convicted of aggravated
criminal sexual assault, aggravated kidnaping and aggravated robbery. At the bench trial, a
forensic scientist with the ISP lab testified that the victim’s sexual assault kit was sent to Cellmark
for analysis and a DNA profile was prepared. The scientist compared the Cellmark DNA profile
with the defendant’s DNA profile and concluded that they were a match. The scientist admitted
that she did not perform any of the physical testing on the samples herself. Williams, 238 Ill. 2d at
131. On appeal to the supreme court, the defendant argued that the State introduced the
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Cellmark report to prove the truth of the matter asserted and the report amounts to hearsay as the
State’s expert would not have been able to match defendant’s DNA profile without the Cellmark
report. The State responded that the expert’s testimony showed that she only used the Cellmark
report to explain how she reached her own conclusion. Williams, 238 Ill. 2d at 143.
The Williams court noted that it “has long held that prohibitions against the admission of
hearsay do not apply when an expert testifies to underlying facts and data, not admitted into
evidence, for the purpose of explaining the basis of his opinion.” Williams, 238 Ill. 2d at 143,
citing People v. Lovejoy, 235 Ill. 2d 97, 142 (2009). The supreme court concluded that the
expert’s testimony about the Cellmark report was not admitted for the truth of the matter
asserted, but instead to establish the underlying facts and data used to reach her expert opinion in
the defendant’s case. Williams, 238 Ill. 2d at 145. As the court pointed out, the evidence against
the defendant was the expert’s opinion, not the Cellmark report, and the expert testified about her
conclusions on the witness stand. Williams, 238 Ill. 2d at 145-46. The expert testified based on
her own expertise in comparing the two profiles, one from a blood sample and the other from
semen prepared by Cellmark, and did not observe any problems in the chain of custody or any
signs of contamination or degradation of the evidence. The supreme court held that the Cellmark
report was not used to show the truth of the matter asserted and was not hearsay. Williams, 238
Ill. 2d at 147.
We reach the same conclusion as the supreme court in Williams. Word, a Cellmark
analyst, testified about the laboratory’s procedures and practices regarding DNA testing, though
she did not participate in the testing. She used the report that was prepared as the basis of her
expert opinion that the proper procedures were followed in the analysis. Defendant’s attorney
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was able to cross-examine Word about the basis of her opinion and called attention to the fact
that she did not participate in the testing and that she assumed that the analysts properly
documented each part of the testing, as required by Cellmark. The same reasoning holds true for
Schoon. He used the Cellmark report as the basis for part of his opinion that the male DNA
profiled obtained from the crime scene matched defendant’s DNA. The Cellmark report was not
offered to prove the truth of its contents, but was used as part of the bases for two experts’
opinions. Accordingly, we find no Crawford violation in this case, and thus, no error.
After briefing had concluded in this case, the United States Supreme Court issued its
decision in Melendez-Diaz v. Massachusetts, 557 U.S. ____, 174 L. Ed. 2d 314, 129 S. Ct. 2527(2009), which revisited the confrontation clause under Crawford. Thus, we consider what impact,
if any, this case has on the present case. In Melendez-Diaz, the defendant was charged with
distributing and trafficking cocaine. Rather than offer live testimony to prove that the substance
was cocaine, the prosecution “submitted three ‘certificates of analysis’ showing the results of the
forensic analysis performed on the seized substances. The certificates reported the weight of the
seized bags and stated that the bags ‘[have] been examined with the following results: The
substance was found to contain: Cocaine.’ [Citation.] The certificates were sworn to before a
notary public by analysts *** as required under Massachusetts law.” Melendez-Diaz, 557 U.S. at
___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. Massachusetts law permitted the use of such
affidavits to provide prima facie evidence of the analyzed substance's composition, quality, and
net weight. Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. At trial,
the defendant objected to the admission of these certificates, but his objection was overruled and
the jury found the defendant guilty. On appeal, the defendant challenged this admission as a
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violation of his sixth amendment rights, but the appellate court rejected the defendant’s claim,
relying on a Massachusetts Supreme Court decision which held that “the authors of certificates of
forensic analysis are not subject to confrontation under the Sixth Amendment.” Melendez-Diaz,
557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. The state supreme court denied
review.
The Supreme Court found that “[t]he ‘certificates’ are functionally identical to live,
in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Melendez-Diaz,
557 U.S. at ___, 174 L. Ed. 2d at 321, 129 S. Ct. at 2532, quoting Davis v. Washington, 547
U.S. 813, 830, 165 L. Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). Accordingly, the Court
held that “under our decision in Crawford the analysts’ affidavits were testimonial statements, and
the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the
analysts were unavailable to testify at trial and that petitioner had a prior opportunity to
cross-examine them, petitioner was entitled to ‘ “be confronted with” ’ the analysts at trial.”
(Emphasis omitted.) Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321-22, 129 S. Ct. at
2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. “The Sixth
Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits,
and the admission of such evidence against [the defendant] was error.” Melendez-Diaz, 557 U.S.
at ___, 174 L. Ed. 2d at 332, 129 S. Ct. at 2542.
In Williams, the supreme court also addressed the applicability of Melendez-Diaz to this
factual situation and concluded that it did not change the court’s findings.
“In Melendez-Diaz, the disputed evidence was a
‘bare-bones statement’ that the substance was cocaine, and the
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defendant ‘did not know what tests the analysts performed, whether
those tests were routine, and whether interpreting their results
required the exercise of judgment or the use of skills that the
analysts may not have possessed.’ Melendez-Diaz, 557 U.S. at
___, 174 L. Ed. 2d at 327, 129 S. Ct. at 2537. Here, [the expert]
testified about her own expertise, judgment, and skill at
interpretation of the specific alleles at the 13 loci, and confirmed her
general knowledge of the protocols and procedures of Cellmark.
[The expert] also conducted her own statistical analysis of the DNA
match. She did not simply read to the judge, sitting as a fact finder,
from Cellmark's report. This is in contrast to Cellmark's report,
which did not include any comparative analysis of the
electropherograms or DNA profiles and was not introduced into
evidence. Cellmark's electropherogram, rather, was part of the
process used by [the expert] in rendering her opinion concluding
that the profiles matched. Thus, [the expert’s] opinion is
categorically different from the certificate in Melendez-Diaz.”
Williams, 238 Ill. 2d at 149-50.
The holding in Melendez-Diaz is distinguishable from the instant case as well. Word,
though not the analyst who performed the tests, was a supervisor at Cellmark and testified at
defendant’s trial about the lab process and the tests performed on the DNA profiles. The State
presented more than a “bare bones statement” about the procedures employed at Cellmark.
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Based upon all of the above, we conclude that no error occurred as a result of the introduction of
Word’s testimony. Accordingly, there was no plain error.
Next, defendant contends that the State failed to establish a proper foundation for
admission of the Cellmark DNA profile because there was no evidence that the equipment used to
prepare the profile was adequately calibrated and functioning properly.
In Wilson v. Clark, the Illinois Supreme Court adopted Rule 703 of the Federal Rules of
Evidence, allowing an expert to give his opinion based on facts not in evidence if those facts are
“ ‘of a type reasonably relied upon by experts in the particular field.’ ” Wilson v. Clark, 84 Ill. 2d
186, 193 (1981), quoting Fed. R. Evid. 703. However, where the expert testimony is based upon
an electronic or mechanical device, the expert must provide some foundational proof that the
device was functioning properly at the time it was used. People v. Raney, 324 Ill. App. 3d 703,
710 (2001); see also People v. Bynum, 257 Ill. App. 3d 502 (1994). In Raney, the defendant
contended that the State failed to establish a proper foundation for the admission of scientific
results from the gas chromotography mass spectrometer (GCMS) machine. The reviewing court
found that the record contained no evidence regarding whether the GCMS machine was
functioning properly at the time it was used to analyze the substance. Raney, 324 Ill. App. 3d at
710. The Raney court did recognize that “[i]t may not be feasible for each expert to personally
test the instrument relied upon for purposes of determining what is a suspected controlled
substance.” Raney, 324 Ill. App. 3d at 710.
This issue was also resolved in Williams. In that case, no Cellmark representative
testified, but the DNA expert from the ISP lab stated that Cellmark was an accredited laboratory
and was required to follow specified guidelines in order to perform DNA analysis. The expert
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“maintained that Cellmark necessarily met the threshold of proper DNA analysis because Cellmark was an
accredited laboratory and followed guidelines that she had personally developed.” Williams, 238 Ill.
2d at 140. The supreme court distinguished between the testing of narcotics, as done in Raney,
and the analysis done in its case. The court found that “the testing of narcotics using a GCMS
machine is not comparable to the scientific process at issue in this case.” Williams, 238 Ill. 2d at
140. The expert in the defendant’s case did not “regurgitate results generated by a machine,” but
instead conducted her own independent examination of the data related to the samples of genetic
material, including items from Cellmark and from the ISP crime lab. Williams, 238 Ill. 2d at 140.
The Williams court further noted that the burden is on the adverse party to challenge the
facts underlying the opinion on cross-examination. Williams, 238 Ill. 2d at 140. Therefore, “the
issue of [the expert’s] reliance on Cellmark's report went to the weight of her opinion and not its
admissibility.” Williams, 238 Ill. 2d at 141, citing Melendez-Diaz, 557 U.S. at ___ n.1, 174 L.
Ed. 2d at 322 n.1, 129 S. Ct. at 2532 n.1 (2009) (stating that it was not the case that “anyone
whose testimony may be relevant in establishing the chain of custody, authenticity of the sample,
or accuracy of the testing device, must appear in person as part of the prosecution's case”).
This case presents a stronger foundational grounds as a Cellmark director testified at
defendant’s trial. Word testified as a DNA expert, without objection, and she worked at Cellmark
as a laboratory director. She testified extensively about Cellmark’s accreditations and the
thorough review required to attain such accreditations. She stated that the proper procedure
mandated specific notations and the subject case file indicated that those procedures were
followed. Her opinion was based on this review of the case file. Under Williams, any challenge
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to Word’s testimony went to its weight, not its admissibility. Therefore, we find no foundational
error in this case.
Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
Affirmed.
GARCIA, P.J., and CAHILL, J., concur.
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