People v. Chaban , 2013 IL App (1st) 112588 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Chaban, 2013 IL App (1st) 112588Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIAM CHABAN, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-11-2588
Filed August 6, 2013
Held Defendant’s conviction for the first-degree murder of his mother-in-law
(Note: This syllabus was upheld over his contentions that his wife’s opinion about his guilt or
constitutes no part of innocence was improperly admitted, that the prosecutor’s closing
the opinion of the court argument included misstatements of fact not based on the evidence, and
but has been prepared that his guilt was not proved beyond a reasonable doubt, since any
by the Reporter of prejudice arising from his wife’s testimony as a lay witness that she
Decisions for the originally believed defendant killed her mother was reduced by her trial
convenience of the testimony that she believed he did not kill her, the prosecutor’s closing
reader.)
arguments were based on reasonable inferences from the evidence and
did not amount to error, and the ambiguities in the testimony concerning
the DNA evidence did not create a reasonable doubt about defendant’s
guilt.
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-20512; the
Review Hon. Neera Walsh, Judge, presiding.
Judgment Affirmed.
Counsel on Kathleen T. Zellner & Associates, P.C., of Downers Grove (Nicholas
Appeal Curran, of counsel), for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Janet C. Mahoney, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant, William Chaban, appeals his conviction after a jury trial for first-degree
murder and his sentence of 45 years’ imprisonment. On appeal, Chaban contends (1) the trial
court erred in admitting a lay witness’s opinion on his guilt or innocence; (2) the trial court
erred in denying Chaban’s motion in limine to bar evidence of his alleged consciousness of
guilt; (3) the prosecutor in closing argument made several misstatements of fact not based
on the evidence which denied him a fair trial; and (4) the State did not prove him guilty
beyond a reasonable doubt. For the following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court sentenced Chaban on August 3, 2011. He filed a notice of appeal on
August 19, 2011. Accordingly, this court has jurisdiction pursuant to article VI, section 6,
of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals
from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art.
VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶4 BACKGROUND
¶5 Chaban was convicted of first-degree murder in the death of his mother-in-law, Irena
Opalinska.1 Prior to his trial, defense counsel filed a motion in limine to preclude the State
from presenting evidence tending to show that Chaban and his wife, Dorota Opalinska, did
not respond to police inquiries. The motion referred specifically to two episodes: the first
episode took place from June 18, 2007, to June 29, 2007, during which time detectives made
several phone calls to either Chaban or his wife but received no response in return; the
1
Although the State refers to the victim as “Irena” in the record, in its brief it refers to her
as “Irina.”
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second episode occurred in September of 2007, after DNA evidence purportedly connected
Chaban to the victim. On several occasions police made appointments to meet with Chaban
but he never kept those appointments. Defense counsel argued that the trial court should not
admit this evidence since at the time Chaban was unaware that he was the focus of the
investigation. The State responded that Chaban was not the focus at the time because he
initially lied to police, but nevertheless the evidence is probative of Chaban’s consciousness
of guilt. The court determined that the probative value of the evidence on the issue of
Chaban’s consciousness of guilt outweighed any unfair prejudice to him and allowed
admission of the evidence.
¶6 At trial, Julie Mack testified for the State. Mack stated that in June of 2007, she and the
victim, Irena, worked in the office of Dr. Neil Hagen. Dr. Hagen was an oral and
maxillofacial surgeon, and Irena worked as his surgical assistant. Mack was the office
manager. Mack testified that she trained Irena for the job, which involved preventing cross-
contamination, ensuring the cleanliness of the office, setting up the necessary instruments,
and prepping patients. Mack described Irena as “very particular and meticulous.” Mack stated
that she and Irena socialized outside of the office and talked on the phone “a couple times
a week.”
¶7 On Friday, June 15, 2007, Mack worked at Dr. Hagen’s office until 1:30 to 2 p.m. When
she left, Irena was still at work. Before leaving, Irena told Mack that she would call her later
because they had made plans for her to visit Mack at her home around 9 a.m. on Saturday.
Mack called Irena’s home phone around 8 p.m. on June 15, and she left a message on Irena’s
answering machine. When Irena did not come to Mack’s house on Saturday, Mack tried
calling her home again but received no answer. She did not hear from Irena on Sunday or on
Monday, June 18.
¶8 Dr. Hagen testified that he first met Irena in 1990 when she helped clean his home. After
10 years, Irena told Dr. Hagen that she could no longer do this kind of work and he offered
to train her to work as a surgical assistant in his office. In June of 2007, Irena had been
working in his office as a surgical assistant for about seven years. He described her as “the
best assistant [he had] ever had.” Irena was a diligent worker who never missed work without
first contacting him. Dr. Hagen testified that although his office is not an operating room, it
“function[s] in the same sterile fashion.” Thus, he requires his surgical assistants “to, first
thing in the morning, when they come in, wash their hands, forearms, fingernails. Be sure
everything is thoroughly clean.” Prior to each surgical procedure, the assistants must wash
their hands before putting on gloves. After taking off the gloves, they wash their hands again
because the gloves leave a “sticky film.”
¶9 Dr. Hagen stated that Irena assisted him in two surgeries on June 14, 2007, and on June
15, 2007, she assisted him in five surgeries. He recalled that on June 15, 2007, Irena
“uncharacteristically asked to leave early that day.” Dr. Hagen said yes and she left around
3:30 p.m. When she left, she wore a sweater draped across her back with the sleeves crossed
in the front. Dr. Hagen testified that he did not have office hours on June 16 or 17 so Irena
was not scheduled to come into work on those days. However, Irena was scheduled to work
on Monday, June 18. Dr. Hagen testified that Irena “always shows up by 7:00” on work days
but on June 18, 2007, she did not show up for work. Dr. Hagen asked his wife to check on
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Irena, since they were “quite close,” and he subsequently learned that Irena was found dead
in her condominium.
¶ 10 Detective Adam Katz testified that he is a violent crimes detective with the Chicago
police department. On June 18, 2007, he was assigned to a death investigation at 6505 North
Nashville. He walked into a bedroom and observed dark stains that appeared to be dried
blood on the carpet. He saw a chair “that looked out of place” and noticed the bed had been
moved because it appeared crooked. He saw pieces of hard black plastic and a black purse
on the ground. He also observed some books and one slipper on the ground.
¶ 11 Detective Katz then went into the adjacent bathroom where he saw the victim, Irena, in
the bathtub. He noticed the shower curtain “laying across the commode and the top of the
bath.” Irena was lying on her right side with her left arm over her head. Detective Katz also
observed “a lot of blood in the bathtub” and blood on the ceramic tile walls of the bathroom.
Detective Katz next walked through the condominium and noticed no unusual damage to the
front door or sliding door to the patio. When crime lab technicians arrived on the scene,
Detective Katz asked them to place bags on the victim’s hands in order to preserve any DNA
evidence from them.
¶ 12 The State asked Detective Katz to identify photographs of the crime scene. In one
photograph, he identified Irena in the bathtub and noted that she was wearing a slipper on her
right foot. He also noted the black sweater that was around her neck.
¶ 13 Detective Katz testified that he spoke with Irena’s daughter, Dorota, when he was at the
crime scene. Chaban was also at the scene. On July 20, 2007, he received information from
forensic services that male DNA was recovered from Irena’s fingernails. The police asked
Chaban for a buccal swab, which he agreed to give. The swab was submitted for testing, and
after receiving the test results, Detective Katz contacted Chaban by phone and set up an
appointment for them to meet. Chaban, however, did not show up at the scheduled time so
Detective Katz contacted him again to reschedule the meeting. Chaban did not show up for
the rescheduled meeting either. Detective Katz testified that he attempted to contact Chaban
by phone several more times but was unable to reach him. He stated that his “[m]essages
weren’t returned.” On September 5, 2007, Detective Katz arrested Chaban as he was walking
to the condominium at 6505 North Nashville.
¶ 14 On cross-examination, Detective Katz stated that no prints were taken from the front door
or the patio door on June 18, 2007. Detective Katz stated that he did not form the opinion
that the black sweater around Irena’s neck was the murder weapon. He acknowledged that
Chaban at the time was a resident of the Joliet area.
¶ 15 Detective Dino Amato testified that he works in the Chicago police department and
primarily deals with violent crimes. On June 18, 2007, he was assigned to the second watch
of an investigation at 6505 North Nashville. When he arrived at the scene, he observed that
the condominium “appeared very normal. It was neat. The items within the apartment
appeared to be largely undisturbed.” He noticed valuables such as televisions and VCRs, and
also noticed jewelry atop the bedroom dresser that “didn’t appear disturbed.” The dresser
drawers were closed. He also observed that the front door and sliding door appeared normal,
with no signs of damage or forced entry. The windows also appeared normal.
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¶ 16 Around 4:20 p.m. that afternoon, he returned to the police station accompanied by Dorota
and Chaban. He interviewed them separately in his office. He asked both their whereabouts
around June 12, 2007. Chaban answered that on June 12, they had returned from their
vacation in Las Vegas, where they were married. On June 13, 2007, he and Dorota went to
Irena’s condominium and informed her of their marriage in Las Vegas. Chaban told him that
when she learned of the marriage, Irena became very upset because it happened without her
knowledge or consent. Irena told Chaban to sit in the hallway while she spoke privately to
her daughter. Chaban also told Detective Amato that Irena did not like him because he was
not of Polish descent. Irena and Dorota settled the matter in their conversation and he and
Dorota left the condominium that night. Chaban told him that on June 14, 2007, he spent the
entire day working at his auto detailing business in Lockport, Illinois. On June 15, he went
to pick up Dorota from Northeastern University, where she attended school. They returned
to Lockport and spent the evening watching movies with his family. When asked whether
Chaban told him he was in Irena’s condominium at any time on June 15, 2007, Detective
Amato answered, “No, ma’am.”
¶ 17 On June 16 and 17, Chaban worked with his father selling goods at a flea market, which
he did on the weekends. Chaban told him that on June 18, 2007, he picked up Dorota at
Northeastern and she told him that she had not heard from her mother and was concerned.
After stopping to get a sandwich, they drove to Irena’s condominium to check on her. They
found her in the bathtub. After he interviewed Dorota and Chaban, Detective Amato drove
them back to the condominium at 6505 North Nashville. On cross-examination, Detective
Amato stated that Chaban was cooperative and answered his questions. On redirect,
Detective Amato reiterated that Chaban never told him that he was at the condominium on
June 15, 2007, or that his wife was there on that day. Detective Amato later learned that
Chaban was in fact in the condominium on June 15, 2007.
¶ 18 Detective Tim McDermott testified that he works in the Chicago police department as
a detective in the homicide unit. On June 18, 2007, he and his partner were assigned to assist
the investigation at 6505 North Nashville. When he arrived on the scene, he observed no
signs of forced entry. From June 18 to June 29, 2007, he tried to contact Dorota and Chaban
by making daily phone calls. He received no response and his voicemails were not returned.
After failing to contact them for two weeks, on June 29, 2007, he and two other detectives
went to Irena’s wake, where he found Dorota. While speaking to her about why she has not
returned his calls, Chaban approached them. He was irate and demanded to know why
Detective McDermott was interviewing Dorota. Detective McDermott explained that they
needed to follow up with their investigation and contact family members, who were
“important [in] bringing this matter to a conclusion.” Chaban explained that he had not
passed on the messages to Dorota because his wife was upset over her mother’s death.
Detective McDermott then gave them his contact information, as well as that of the two other
detectives with him, before leaving the wake. Detective McDermott testified that from June
29, 2007, to the date Chaban was arrested, neither Chaban nor Dorota contacted him or the
other detectives.
¶ 19 On cross-examination, Detective McDermott acknowledged that he did not submit his
report of his interview with Dorota on June 29, 2007, until December of 2007. He also
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testified that his report did not contain any statements about Chaban not contacting detectives
from June 29 to the date of his arrest.
¶ 20 Dr. Joseph Cogan testified that he works as a pathologist at the Cook County medical
examiner’s office. On June 19, 2007, Dr. Cogan performed Irena’s autopsy and recorded his
findings in a protocol report. He performed both an external and internal examination of the
body. The external examination revealed “a lot of bruises” and a set of injuries on her upper
back, “over the scapula, on the right and left sides.” The injuries to the back were
symmetrical, which Dr. Cogan found “a little bit strange.” He observed 12, maybe 13, points
of injury including contusions and abrasions on the top of the head, as well as on the left side
and back of the head, and the forehead area. He stated that these injuries were associated with
a fair amount of hemorrhage. Dr. Cogan also observed an internal injury to the brain, a
subarachnoid hemorrhage. Such hemorrhaging occurs when there is some trauma that breaks
the blood vessels in the thin arachnoid layer that covers the brain, and blood leaks into that
area. Dr. Cogan found that Irena’s major organs, such as her heart and lungs, were in good
shape.
¶ 21 Dr. Cogan testified that Irena’s injuries were found on the upper chest, neck and head
area, which raised “a great deal of suspicion” in his mind. He explained that injuries from
an accidental fall would generally be confined to one surface of the body, like a bruise to a
knee or elbow. When these injuries occur in different locations as on Irena’s body, it is an
indication of an inflicted injury consistent with being attacked. Dr. Cogan stated that he
suspected homicide at the time, but he reserved until later his ruling on the cause of death.
Although Irena’s inflicted injuries were serious, “they didn’t seem to be the striking blow or
the killing–a killing injury.”
¶ 22 Since he was not clear on the cause of death, Dr. Cogan wanted to consult with the
police. Dr. Cogan reviewed police photographs of Irena as she was found at the scene of the
crime. In the photographs, Dr. Cogan saw the sweater wrapped around Irena’s neck and it
came to him that “the sweater explains the cause of death.” He also had the opportunity to
examine the sweater. The silk sweater was “very elastic and soft, and could be used as a
ligature to the neck.” In that case, it would leave very little to no injury in the soft tissue of
the neck where normally one observes injuries from strangulation. An attacker using the
sweater to strangle Irena also explained the symmetrical bruises found across the scapula.
The injuries “would be consistent with somebody pulling from behind, possibly using her
own body to get that tension on the sweater around her neck.”
¶ 23 He explained that these types of strangulations with no external markings on the neck are
often found in jail hangings “where people use pieces of their garments or torn up sheets to
make a noose.” No deep hemorrhaging occurs. However, one does often find petechiae
hemorrhaging, which occurs when strangulation stops the blood from coming out of the head
and toward the heart. The resulting pressure builds in the small blood vessels, which burst,
leaving “just a small pinhead size of blood.” Petechiae hemorrhaging can be seen in people
with fair skin or in the conjuctiva of the eyes. However, Dr. Cogan did not observe this
hemorrhaging in Irena because her body was in a state of decomposition where the blood had
been broken down. Dr. Cogan could not give a precise time of death; however, he determined
that “from the state of decomposition, [it] looks like it’s probably more than 24 hours.”
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¶ 24 Based on all of this information, Dr. Cogan formed an opinion within a reasonable degree
of medical certainty that the cause of Irena’s death was strangulation, with blunt force
injuries as contributing factors. The manner of death was homicide.
¶ 25 On cross-examination, Dr. Cogan was presented with the initial death certificate issued
for Irena. It listed her cause of death as status asthmaticus, which would indicate the person
died in a severe asthmatic attack. Dr. Cogan stated that the death certificate listed an
incorrect cause of death. He also stated that he informed the police that the cause of death
was strangulation. Dr. Cogan testified that he found no horizontal circular wound from
strangulation on Irena’s neck, and no damage to the larynx or hyoid bone. When asked about
a report which showed that a homicide occurred on June 18, 2007, at 12:40 p.m., Dr. Cogan
responded that the time indicates when “the body is found.”
¶ 26 On redirect examination, Dr. Cogan was presented with the handwritten death certificate
he issued on September 5, 2007, listing the cause of death as strangulation. He did not issue
the other death certificate, which was typed, listing the cause of death as status asthmaticus.
He explained that when a cause of death is indicated, a clerk will look for it on a list of codes
and type in the corresponding code number when typing out the certificate. When the code
is typed, “the cause of death will appear typed out, on the death certificate.” Dr. Cogan stated
that the code for status asthmaticus is 0246 and the code for strangulation is 0249. He stated
that the clerk made a typographical error in entering the code for cause of death on the first
certificate. On recross, Dr. Cogan acknowledged that the date of death listed on the
certificate was June 18, 2007.
¶ 27 The State then proceeded by way of stipulations. First, the parties stipulated that if called
to testify, forensic investigators Susan Wolverton and Thomas Mander would state that they
arrived at the crime scene at 6505 North Nashville around 3:20 p.m. on June 18, 2007. They
photographed the scene, collected and inventoried evidence, and took swabs of stains and
blood. “They would testify that they followed the proper police procedures and maintained
a proper chain of custody at all times.” Next, the parties stipulated that if called to testify,
Chicago police evidence technician Victor Rivera would state that on June 19, 2007, he
received an assignment to transport evidence from the medical examiner’s office. He would
testify that he inventoried the evidence after following proper procedures and maintained a
proper chain of custody at all times.
¶ 28 The parties also stipulated that if called to testify, Mike Skorek would state that he works
for the Chicago police and is trained in obtaining buccal swabs. He would testify that on July
31, 2007, he took a buccal swab from Chaban at 6505 North Nashville. He followed proper
police procedures by swabbing the inside of Chaban’s mouth and sealing the swabs in an
envelope. He inventoried the swabs and sent the sealed swabs to the crime lab for testing and
analysis. He would testify that he maintained a proper chain of custody at all times.
¶ 29 The State then called its next witness. Megan Neff testified that she works as a forensic
scientist for the Illinois State Police. She performs biological testing of evidence received
from police agencies and issues a report based on her findings. As part of her duties, she
conducts DNA analysis on materials she receives. In forensic DNA analysis, she obtains
DNA profiles from the material as well as from standards obtained from persons involved
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in the case. She then compares the profiles and determines whether a person could or could
not be the donor of the material.
¶ 30 Neff testified that she conducted blood testing on the following exhibits: a metal bracket,
and swabs from stains found on the bedroom carpet, the west bathroom wall by the water
control handle, the west bathroom wall by the faucet, and the south bathroom wall. She also
collected material from Irena’s fingernail clippings. She received a standard from Irena and
a standard from Chaban.
¶ 31 Neff found that the swabs collected from the carpet contained a partial human female
profile, and Irena could not be excluded from that profile, meaning the DNA could have
belonged to Irena. The swabs taken from the bathroom walls matched the DNA profile of
Irena. Neff also tested the material in Irena’s fingernails from her left and right hands. The
amount of material from the left hand was not sufficient to develop a DNA profile, although
Neff did detect a male profile in the sample. The material from the right hand contained a
“[m]ixture of DNA profiles,” which Neff separated into a major and a minor profile. Major
means that the profile is at a “much higher level” than the minor profile. Neff testified that
she identified the major profile as a male profile which matched the DNA profile of Chaban.
The minor profile was a partial female profile from which Irena could not be excluded. Neff
stated that in testing fingernail clippings from an individual, she would expect to find the
individual’s profile on that sample. Neff determined that “the major human male DNA
profile identified [from fingernail clippings of the right hand] would be expected to occur in
approximately 1 in 3.8 quadrillion black, 1 in 2.1 quadrillion white or 1 in 12 quadrillion
hispanic unrelated individuals.”
¶ 32 Neff testified that since the male profile was the major profile, it “was at a more
significant level than the minor profile,” indicating “close personal contact of some sort.”
She opined that “it’s possible that the DNA got there from a struggle.”
¶ 33 On cross-examination, Neff stated that “[i]t is possible that the cells can get there through
non violent contact as well.” Neff acknowledged that the DNA material found under the nails
could have been present for a day or a month. Neff further stated that “[i]t is possible that
normal hand washing can remove DNA, but there are no rules on this. There are no rules that
state if you wash your hands X amount of times the DNA will be removed from the nails. It’s
possible after hand washing the DNA can still be there.” On redirect, Neff stated that once
DNA has been transferred under the fingernails through contact, “[i]t is possible over time
that the DNA could come out. It’s possible for it to stay there as well.” When asked whether
repeated hand washing could remove DNA from underneath the fingernails Neff responded,
“It is possible.”
¶ 34 The parties stipulated that if called to testify, Peggy Konrath, a forensic scientist with the
Illinois State Police crime lab, would state that she conducted a latent fingerprint analysis on
one piece of metal and four pieces of black plastic. Her examination did not reveal any latent
impressions suitable for comparison.
¶ 35 The State then called Dorota as a witness. She stated that she is the daughter of Irena and
is married to Chaban. She also acknowledged that she was charged, prosecuted and convicted
of perjury and obstruction of justice in Irena’s murder investigation. Dorota testified that her
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mother was killed on June 15, 2007, and that she lied to police during the investigation.
When asked whether she lied to protect Chaban because “back in June of 2007 you believed
your husband murdered your mother” Dorota answered, “In 2007, yes, I believed.” When
asked whether she now believed her husband killed her mother Dorota responded, “No, I
don’t believe that he did it.” Dorota explained that in 2007, she was pressured by the police
and confused. She stated that she was still in shock over her mother’s death.
¶ 36 Dorota stated she and Irena had “a normal mother and daughter relationship.” When she
first began dating Chaban, Irena did not approve. However, after talking to him and getting
to know him, she came to accept him. When Dorota and Chaban decided to marry, they did
not inform Irena. Instead, they took Irena’s car without telling her and drove to the airport
for a flight to Las Vegas. They came home on June 12, 2007, and saw Irena on June 13 at her
condominium. They told her about their marriage and she was “a little bit upset” and angry.
Chaban was asked to leave while she and Irena had a discussion. Dorota testified that her
mother was upset that she got married without telling her and felt that Dorota was too young
to be married. Irena was also upset that they took her car, which left her without one. After
the conversation, Dorota and Chaban again took Irena’s car and left the condominium.
¶ 37 Dorota stated that she did not see her mother on June 14 or 15. She testified that on June
15, she went to school and then came back to the condominium to pack some of her things
so she could stay with Chaban. She acknowledged that when first interviewed, she said that
she was not at the condominium on June 15. Although Dorota stated that on June 15, Chaban
and her mother were getting along, when confronted with her testimony that she believed her
husband was angry with her mother on June 15, Dorota agreed she gave that response.
¶ 38 While at the condominium on June 15, Dorota spoke by phone to Jenny Jurczak, a
community college friend. She spoke a bit about the fact Irena and Chaban did not get along.
Dorota acknowledged that she had called her mother “[a] fucking bitch” because Irena and
Chaban were not getting along. Dorota stated that she expected Chaban at the condominium
on June 15 because he was to help “get [her] stuff out of the condominium.” She did not
remember at what time he arrived at the condominium, or whether she was on the phone with
Jurczak when he arrived. When confronted with her earlier testimony, Dorota acknowledged
that when asked whether Chaban was in the condominium after 2 p.m., and whether he spoke
briefly with Jenny on the phone, Dorota answered, “Yes.” Dorota stated that after they left
the condominium, she and Chaban checked into a motel. She acknowledged that on
September 6, 2007, in her testimony before the grand jury, she stated that she could not
remember anything that happened on June 15, 2007, after 2 p.m., or on June 16 or 17. She
did remember the events of June 18, however.
¶ 39 On Monday, June 18, 2007, Dorota returned to the condominium around noon to check
on her fish and because she could not get a hold of her mother. She could not remember how
long it had been since she last had contact with her. Dorota was aware that her mother
worked on Mondays but she did not check on Irena at work. She stated that blood was found
in her bedroom where she had been with Chaban on June 15 to pack up her things. Her
mother’s body was found in Dorota’s bathroom. Dorota acknowledged that she and Chaban
moved into the condominium shortly after her mother’s death. Dorota stated that she did not
contact police to inquire about the investigation because she was scared and “shaken up.”
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Dorota acknowledged that in earlier testimony when asked whether she stood to gain “[a] lot
of money” from Irena’s estate she answered, “I believe so, yes.” During cross-examination,
Dorota stated that when she and Chaban first walked into the condominium on June 13,
2007, to tell Irena of their marriage, Irena embraced both Dorota and Chaban.
¶ 40 Jennifer Jurczak testified that in June of 2007, she lived in Illinois and attended Oakton
Community College, where she met Dorota. She sometimes visited Dorota in the
condominium on Nashville, where Dorota lived with Irena. On June 15, 2007, around 1:45
p.m., Jurczak spoke on the phone with Dorota, who called Jurczak from the condominium’s
landline. They spoke for about 40 minutes before hanging up. They spoke again by phone
later, around 3:30 p.m. While they were speaking, Dorota had to put down the phone so she
could answer the door. Jurczak could hear a male voice she recognized as Chaban’s, as well
as Dorota’s voice in the background. When Dorota got back on the phone, Jurczak asked to
speak with Chaban. They spoke a few minutes about setting up a double date with one of
Chaban’s single friends. While Jurczak was speaking with Chaban, she heard Dorota tell him
that they “have to take care of something” after which she and Chaban said good-bye and
hung up the phone.
¶ 41 The State rested and defense counsel moved for a directed finding. The trial court denied
the motion. The defense rested its case without calling any witnesses or presenting any
evidence, and renewed the motion for a directed finding. The trial court denied the motion.
Before closing arguments, defense counsel renewed its prior objection to testimony elicited
from Dorota about her prior belief that Chaban killed her mother. The trial court denied the
motion, finding the testimony goes to Dorota’s motive, bias, and interest in testifying. The
trial court then allowed the State to reopen its case to enter a stipulation. The parties
stipulated that Dorota testified at trial under a grant of immunity by the State’s Attorney’s
office. The order was read to the jury. The jury found Chaban guilty of first degree murder
against a person 60 years of age or older, and the trial court subsequently sentenced him to
45 years’ imprisonment. Chaban filed this timely appeal.
¶ 42 ANALYSIS
¶ 43 Chaban first contends that the trial court erred in allowing opinion testimony Dorota gave
in June of 2007 indicating she believed Chaban had killed her mother. Generally, a lay
witness must testify only to facts of which she has personal knowledge. People v. Brown, 200
Ill. App. 3d 566, 578 (1990). Therefore, a lay witness may not testify as to her opinion or
make inferences from the facts. People v. Crump, 319 Ill. App. 3d 538, 542 (2001). If a lay
witness does offer improper opinion testimony, it is considered “especially improper and
prejudicial when it goes to the ultimate question of fact to be decided by the jury.” People
v. McClellan, 216 Ill. App. 3d 1007, 1013 (1991). The determination of whether evidence
is relevant and admissible is within the trial court’s discretion and this court will not overturn
that decision absent an abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 455 (2001).
An abuse of discretion occurs when the trial court’s determination is arbitrary, fanciful or
unreasonable. Id.¶ 44 In Crump, a case on which Chaban relies, the prosecutor asked a police officer whether,
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during the course of the investigation, he had reason to believe that the defendant committed
the offense and the officer answered, “ ‘Yes, I did.’ ” Crump, 319 Ill. App. 3d at 540. The
court held that the opinion testimony was improper and prejudicial because it addressed the
ultimate fact question that the jury alone should decide. Id. at 544. It found the officer’s
statement especially prejudicial because “as an authority figure he was informing the jury that
it should believe a portion of the prosecution’s case.” Id. The court reversed the defendant’s
conviction and remanded for a new trial. Id.
¶ 45 Crump is distinguishable from the case at bar. Here, no police officer testified that he
believed Chaban killed Irena. Instead, Chaban challenges Dorota’s testimony that in 2007
she believed he murdered Irena. This case is analogous to People v. Hanson, 238 Ill. 2d 74(2010).
¶ 46 In Hanson, the defendant’s sister, Jennifer, testified that when she spoke with Detective
Nilles she told him that she believed defendant murdered their parents, their sister and her
husband. Hanson, 238 Ill. 2d at 101. Detective Nilles also testified that when he spoke to
defendant he told defendant, “ ‘Jennifer thinks you did this.’ ” Id. The defendant challenged
both witnesses’ testimony as improper opinion testimony. Id. The supreme court disagreed,
reasoning that neither Jennifer nor Detective Nilles testified at trial that Jennifer believed
defendant was guilty. Instead, they “testified to a statement which indicated, at the time the
statement was made, that Jennifer thought defendant had caused the victim’s deaths. At no
time was any testimony offered as to Jennifer’s present opinion of defendant’s guilt or
innocence.” Id. Although it acknowledged that the defendant could arguably challenge the
testimony based on relevancy and hearsay concerns, the supreme court “reject[ed his]
argument that this testimony constituted improper opinion testimony.” Id. The supreme court
subsequently found the testimony admissible because it was relevant to provide a context for
the police investigation and to show the defendant’s state of mind in responding to police
questioning, and it did not overly prejudice him. Id. at 102-03.
¶ 47 Here, the prosecutor questioned Dorota as follows:
“Q. And you lied to protect your husband. Correct?
A. I do believe I lied to the police officers, yes.
Q. Because back in June of 2007 you believed your husband murdered your mother.
Correct?
A. In 2007, yes, I believed.
Q. And you believed he killed her in cold blood in her home. Correct?
A. If I may ask, is it right now that you are asking?
Q. Do you believe that?
A. That he killed her you are asking me?
Q. Yes.
A. No, I don’t believe that he did it.”
Defense counsel objected to this line of questioning and, after presentation of the evidence,
moved to strike this portion of Dorota’s testimony. The trial court denied the motion, finding
that the testimony “goes to her motive, bias and interests in testifying.”
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¶ 48 Chaban specifically takes issue with the admission of Dorota’s grand jury testimony that
at the time she believed Chaban had killed her mother “in cold blood.” Like the challenged
statement in Hanson, this statement is not opinion testimony but rather indicates only that
at the time Dorota made the statement in 2007, she believed Chaban had killed her mother.
She never testified at trial that she now believes Chaban killed Irena. Therefore, the evidence
is admissible if its relevance, or probative value, outweighs its prejudicial effect on Chaban.
Hanson, 238 Ill. 2d at 101-02.
¶ 49 Dorota’s credibility as a witness is a relevant concern. Her testimony in front of the grand
jury differed at times from her testimony at trial, and some of her testimony was contradicted
by the testimony of Jennifer Jurczak. The prosecutor elicited the testimony to show that
Dorota had a motive to lie (to protect her husband) and that she did lie to police officers in
2007. In fact, Dorota was convicted of perjury and obstruction of justice. A witness’s
partiality is always relevant in determining his or her credibility and what weight to give the
testimony. People v. Sharrod, 271 Ill. App. 3d 684, 689 (1995) (citing Davis v. Alaska, 415
U.S. 308, 316 (1974)).
¶ 50 We are also not persuaded that the testimony unduly prejudiced Chaban. Dorota testified
at trial that in 2007 she stated that she believed Chaban killed Irena, but she now believes he
did not kill Irena. Any prejudicial effect of Dorota’s 2007 statement was lessened by her
contradictory testimony at trial that she now believes that Chaban did not kill Irena.2 The trial
court’s admission of the testimony as relevant was not an abuse of discretion.
¶ 51 Chaban disagrees, arguing that even if the testimony was relevant to show Dorota’s bias,
the trial court should have excluded it because the prejudicial testimony was cumulative of
other properly admitted testimony. As support, he cites to People v. Harris, 262 Ill. App. 3d
35 (1994). However, the issue in Harris involved the trial court’s exclusion of testimony
indicating bias due to the witness’s gang affiliation. Id. at 47. The court noted that
“[e]vidence of gang membership is highly prejudicial and inflammatory.” Id. Since the
witness’s gang affiliation was marginally relevant, the trial court properly excluded the gang
affiliation testimony where its prejudicial effect outweighed its probative value, and
defendant had used other evidence to discredit the witness’s testimony. Id. Gang affiliation
testimony is not an issue here.
¶ 52 Chaban argues, though, that the prosecutor increased the prejudicial effect of the 2007
statement in closing argument when he stated, “Dorota does not want you to know what she’s
always known and she told you. She was asked. Do you believe that man killed your mother
in her home? She didn’t want to say yes today.” However, the prosecutor made these remarks
in rebuttal only after defense counsel stated in his closing argument, “What we do know is
[Dorota] is immunized. She was immunized. She could have said anything today and what
2
Although Dorota’s statement at trial that she does not believe Chaban killed Irena may
qualify as opinion testimony, Chaban does not specifically challenge this statement in his brief and
therefore has waived consideration of this issue on appeal pursuant to Illinois Supreme Court Rule
341(h)(7) (eff. July 1, 2008) (“[p]oints not argued are waived and shall not be raised in the reply
brief, in oral argument, or on petition for rehearing”).
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she did was tell the truth.” When defense counsel’s closing argument provokes a response,
“defendant cannot complain that the prosecutor’s reply denied him a fair trial.” People v.
Hudson, 157 Ill. 2d 401, 445 (1993).
¶ 53 In footnote 2 of Chaban’s main brief, he puts forth an additional argument that
impeachment of Dorota using her 2007 statement is improper because a party may only
impeach its own witness through use of a prior inconsistent statement when the testimony
does “affirmative damage” to the party’s case. As support he cites People v. Cruz, 162 Ill.
2d 314 (1994), for the proposition that “[i]t is insufficient that a witness merely disappoints
the State by failing to incriminate defendant.” Chaban does not elaborate on this argument
or provide any further citations. We emphasize that “ ‘[a] reviewing court is entitled to have
the issues on appeal clearly defined with pertinent authority cited and a cohesive legal
argument presented. The appellate court is not a depository in which the appellant may dump
the burden of argument and research.’ ” In re Marriage of Auriemma, 271 Ill. App. 3d 68,
72 (1994) (quoting Thrall Car Manufacturing Co. v. Linquist, 145 Ill. App. 3d 712, 719
(1986)). An issue not clearly defined or adequately presented may be deemed waived. Id. In
any event, testimony that does “ ‘affirmative damage’ ” to the examiner’s case renders the
case “worse off than if the witness had not testified.” Cruz, 162 Ill. 2d at 360. Here, Dorota’s
testimony that she now believes Chaban is innocent renders the State’s case worse off than
if she had not made that statement.
¶ 54 Chaban next argues that the trial court erred in denying his motion in limine to exclude
evidence that he failed to return phone calls from the police and did not keep appointments
to meet with the police. The trial court’s ruling on a motion in limine goes to its discretion
to include or exclude evidence. People v. Williams, 188 Ill. 2d 365, 369 (1999). This court
will not overturn the trial court’s grant or denial of a motion in limine absent an abuse of
discretion. Id.¶ 55 Chaban contends that an inference of guilt may be drawn from evidence of his flight, but
only if he had knowledge at the time that he was a suspect, citing People v. Harris, 23 Ill. 2d
270, 273 (1961), and People v. Lewis, 165 Ill. 2d 305, 350 (1995). He argues there is no
evidence he was aware at the time that he was a suspect in Irena’s death. However, Harris
involved the defendant’s flight to Georgia and Lewis involved a defendant who abruptly
moved out of his apartment and could not be located. Unlike the defendants in Harris and
Lewis, Chaban never fled the jurisdiction and was in fact found at Irena’s condominium
when police arrested him. Testimony that Chaban failed to return police phone calls or keep
appointments to meet with the police more likely evidences an attempt to obstruct an
investigation. Such evidence is relevant to show a defendant’s consciousness of guilt. People
v. Rojas, 359 Ill. App. 3d 392, 404 (2005).
¶ 56 Chaban disagrees, arguing that his actions did not indicate a conscious attempt to avoid
police. He points out that he did voluntarily speak with police on the day Irena’s body was
found, and police successfully contacted him a number of times. He voluntarily submitted
to a buccal swab. Furthermore, detectives scheduled the meetings to take place on the
northwest side of Chicago and Chaban resided in Joliet. He argues that his “absence at the
meetings is just as likely a product of the great distance he had to travel to get to the station
as any consciousness of guilt.” Although Chaban has provided alternative explanations for
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his actions, or inaction, they do not render the evidence less relevant on the issue of Chaban’s
consciousness of guilt. It is the function of the fact finder to weigh the evidence, assess
witness credibility, resolve conflicts in the evidence, and make inferences therefrom. People
v. Williams, 193 Ill. 2d 306, 338 (2000). The trial court did not abuse its discretion in denying
the motion in limine and admitting the evidence as relevant to show consciousness of guilt.
¶ 57 Chaban also challenges some of the prosecutor’s remarks made during closing argument.
He acknowledges that he has preserved review of only one of the comments by objecting to
the remark at trial and including it in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176,
186 (1988). Generally, this court can consider forfeited errors if (1) the evidence is so closely
balanced that the error threatens to tip the scales of justice against the defendant; or (2) the
error is so serious that it affects the fairness of defendant’s trial. People v. Sargent, 239 Ill.
2d 166, 189 (2010). Chaban contends that this court should consider his claims of error
because the evidence was closely balanced and the challenged remarks addressed “the only
direct evidence of [Chaban’s] guilt.” However, we must first determine whether any error
occurred. People v. Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 58 A prosecutor has wide latitude in closing arguments and may comment on the evidence
and any reasonable inferences therefrom. People v. Perry, 224 Ill. 2d 312, 347 (2007).
Furthermore, upon review this court considers the challenged remarks in the context of the
entire record, particularly the closing arguments of both sides, as a whole. People v.
Williams, 313 Ill. App. 3d 849, 863 (2000). If the prosecutor made the challenged comment
in rebuttal, a defendant cannot complain if defense counsel comments clearly invited a
response. People v. Brown, 172 Ill. 2d 1, 43 (1996). We note that our supreme court in
People v. Wheeler, 226 Ill. 2d 92, 121 (2007), applied a de novo standard in reviewing the
issue of prosecutor comments in closing argument. However, in People v. Blue, 189 Ill. 2d
99, 128 (2000), a case cited by Wheeler, our supreme court applied an abuse of discretion
standard of review. We need not resolve the issue of the appropriate standard of review at
this time since our determination would be the same under either standard.
¶ 59 Chaban takes issue with the following prosecutor comments made during closing
argument:
“What’s more important is his DNA is the significant DNA under her own fingernails
which means there is more of his DNA under her fingernails than her own DNA.
***
It happens that he is the significant DNA underneath her fingernails because he is the
last person that she touches before she drops dead in that tub ... And her nails are going
up against part of his body and she is getting his cells underneath her nails. That’s how
you get significant portion of DNA underneath her nails.
***
Remember when you go back there and you examine that evidence, there is the
significant DNA underneath her nails. He can’t get away from that. His is the significant
portion underneath her own nails and he didn’t have contact with her from the
Wednesday all the way to the Friday?
***
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She was obtaining a significant portion of his DNA, a significant portion of DNA that
would remain underneath her nails and that’s something he can’t get away from.”
¶ 60 Chaban argues that these comments misstate the evidence by claiming that a significant
amount of his DNA was recovered from under Irena’s fingernail where no evidence of the
actual amount of DNA obtained was presented at trial. He further argues that the comments
improperly infer that the significant amount of DNA found was indicative of a struggle.
¶ 61 However, a careful reading of the comments shows that the prosecutor was simply
arguing that Chaban’s DNA was the majority profile in the sample obtained from under
Irena’s fingernail, using the word “significant” because Neff used that word in her testimony.
Neff testified that the material from the right hand contained a “[m]ixture of DNA profiles”
which she separated into a major and a minor profile. Major means that the profile is at a
“much higher level” than the minor profile. She identified the major profile as a male profile
which matched that of Chaban. The minor profile was a partial female profile from which
Irena could not be excluded. Neff stated that in testing fingernail clippings from an
individual, she would expect to find the individual’s profile on that sample. Furthermore, she
stated that since the male profile was the major profile, it “was at a more significant level
than the minor profile” indicating “close personal contact of some sort.” She opined that “it’s
possible that the DNA got there from a struggle.” We find no error since the prosecutor
simply commented on the evidence at trial. See Perry, 224 Ill. 2d at 347.
¶ 62 Chaban also challenges the following prosecutor comments made during rebuttal
argument:
“The fingernail clippings, the fingernail clippings, that had his DNA underneath
them, significant amounts of DNA. How do you think using your common sense a person
would get more DNA from someone else other than yourself underneath your
fingernails? A struggle? Maybe if you are fighting for your life? Someone is attacking
you and you are trying to save your life so you are fighting. (Chaban objected to this
comment, and the trial court overruled the objection)
***
You don’t need to be an expert from the Illinois State Police crime lab to use your
common sense, to know how someone else’s DNA in that amount would get under a
person’s fingernails. It was the human male DNA profile would be expected to occur in
1 in 3.8 quadrillion black, 1 in 2.1 quadrillion white and 1 in 12 quadrillion Hispanic
unrelated individuals; 15 zeros behind 1 quadrillion. That’s how much of his DNA was
underneath her fingernails.
***
She is neat. You are telling me that this magical DNA that he’s got from some
possible embrace that we don’t even know what it was 48 hours earlier and 6 surgeries
before that is stuck underneath her fingernails to the point there is more of that than even
her own DNA? That defies common sense.”
¶ 63 Although the prosecutor in rebuttal does refer to the amount of DNA as significant, a
review of the closing arguments as a whole shows that he was responding to defense
counsel’s comments about the amount of DNA obtained from Irena’s fingernails. Defense
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counsel argued in closing argument that Chaban’s DNA found under Irena’s fingernail was
deposited there on June 13, and not on June 15, the alleged date of Irena’s death:
“Then why is there so little DNA on one hand? Obviously that degraded away. That
went away from the washing. The fact that this tiny, tiny, smaller than a cell was present
in her hand, in her nails, if you look at People’s 49, you will see pictures of the longer
nails. The fact that it’s present [at all] is proof that this is the DNA from the 13th, in my
humble opinion.”
Prosecutors may respond when defense counsel’s arguments clearly invite a response. People
v. Evans, 209 Ill. 2d 194, 225 (2004). Furthermore, in closing argument a prosecutor may
challenge the defense’s characterizations of the evidence, and comment on the
persuasiveness of the defense. People v. Jones, 156 Ill. 2d 225, 252 (1993). We do not find
these comments by the prosecutor improper.
¶ 64 Chaban also argues that the following prosecutorial comment was improper because it
was not based on competent evidence:
“How about the fact that she (Dorota) was to profit from the life insurance policy; not
him but Dorota. Isn’t that what she testified to? Indirectly, isn’t he going to get that
money?...There’s plenty of motive in this case, folks.”
At trial, Dorota was questioned as follows:
“Q. And you stood to gain a lot of money from your mother when she died, didn’t
you?
A. I don’t know.
Q. You don’t know that you were supposed to get money from your mother if she
died?
A. No.
Q. Counsel, page 31, line 12. ‘Question: You stand to gain money though, isn’t that
right, from her estate? Answer: Yes. Question: A lot of money. Right? Answer: I believe
so, yes.’ Those were the questions you were asked and those were the answers you gave
under oath. True?
A. Yes.”
¶ 65 Chaban argues that the prosecutor’s reference to life insurance policy proceeds as a
possible motive for Irena’s murder was not based on the evidence and improperly bolstered
the State’s case. Although the testimony at trial did not refer specifically to life insurance
policy proceeds, it did refer to “a lot of money” from Irena’s estate that would go to Dorota
if Irena died. The trier of fact may reasonably infer that life insurance proceeds are a portion
of a deceased’s estate. In any event, the testimony at trial was that Dorota stood to gain “a
lot of money” upon Irena’s death and whether that money comes from life insurance
proceeds or from some other aspect of Irena’s estate is irrelevant. The same inference that
Chaban had a financial motive to kill Irena exists in both instances. A prosecutor may make
reasonable inferences arising from the evidence, even if the inferences reflect negatively on
defendant. Perry, 224 Ill. 2d at 347.
¶ 66 We find that the challenged comments were proper and therefore no error occurred.
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¶ 67 Chaban’s final contention is that the State’s evidence was not sufficient to prove him
guilty beyond a reasonable doubt. In reviewing a challenge to the sufficiency of the evidence,
this court determines whether, after viewing the evidence in the light most favorable to the
State, a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). It is the function of the fact
finder to assess the credibility of witnesses, determine the weight given to testimony, and
resolve conflicts or inconsistencies in the evidence. People v. Naylor, 229 Ill. 2d 584, 614
(2008). Expert witness testimony is subject to the same weight and credibility rules applied
to evidence elicited from other witnesses. People v. Horne, 247 Ill. App. 3d 192, 198 (1993).
Furthermore, it is not the function of this court to retry defendant or substitute its judgment
for that of the trier of fact. People v. Collins, 214 Ill. 2d 206, 217 (2005). A reviewing court
will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory
that it creates a reasonable doubt of defendant’s guilt. People v. Siguenza-Brito, 235 Ill. 2d
213, 225 (2009).
¶ 68 The evidence at trial, viewed in the light most favorable to the prosecution, is as follows:
Irena worked as a surgical assistant to Dr. Hagen. He testified that he kept his office in “the
same sterile fashion” as an operating room, and thus required his assistants to “wash their
hands, forearms, fingernails” prior to each surgical procedure. They also washed their hands
after each surgical procedure to wash away the “sticky film” left by the surgical gloves they
wore. Irena was a diligent worker who did not miss work without first notifying Dr. Hagen.
¶ 69 Irena did not approve of Dorota’s relationship with Chaban. When they decided to marry,
they did not inform Irena but instead took Irena’s car without permission and drove to the
airport to catch a flight to Las Vegas. They married and returned home on June 12, 2007. On
June 13, they visited Irena and informed her of their marriage. Irena was upset and asked to
speak with Dorota alone. Dorota returned to the condominium on June 15 to pack some of
her things. She expected Chaban to come to the condominium that day to help “get [her] stuff
out.” She called her friend, Jenny Jurczak, while she was at the condominium. Jurczak
testified that Dorota first called her from the condominium around 1:45 p.m. and they spoke
for about 40 minutes before hanging up. Dorota spoke about how her mother and Chaban did
not get along, and she called Irena “[a] fucking bitch.” Dorota spoke to Jurczak again from
the condominium around 3:30 p.m. While they were speaking, Jurczak heard a male voice
in the background and asked if she could speak with Chaban. They spoke a few minutes
about setting up a double date with one of Chaban’s friends. Jurczak heard Dorota in the
background telling Chaban they “have to take care of something” and Chaban said good-bye
and hung up the phone.
¶ 70 On the last days Irena worked, she assisted in two surgeries on June 14, 2007, and five
surgeries on June 15, 2007. On June 15, a Friday, Irena uncharacteristically asked to leave
early, around 3:30 p.m. She also made arrangements to call Julie Mack, the office manager,
that evening to confirm plans for Mack to visit the next morning. Irena never called Mack
on June 15, nor did Mack reach her by phone when she tried calling Irena on the 15th, 16th,
or 17th.
¶ 71 When Irena did not show up for work on Monday, June 18, Dr. Hagen became concerned
and asked his wife to check on Irena. Irena was found dead in her condominium. Dr. Cogan
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performed the autopsy on Irena and found inflicted injuries consistent with being attacked.
However, these injuries did not seem to be “killing” injuries and after viewing photographs
of Irena as she was found in the bathtub, he noticed the black sweater around her neck. He
testified that strangulation using the sweater would leave very little to no injury visible in the
soft tissue of the neck, and would also explain the symmetrical bruises he observed on
Irena’s back. The injuries “would be consistent with somebody pulling from behind.” He
formed an opinion within a reasonable degree of scientific certainty that the cause of Irena’s
death was strangulation, with blunt force injuries as contributing factors.
¶ 72 While investigating Irena’s death on June 18, 2007, Detective Katz went into a bedroom
in Irena’s condominium and observed dark stains on the carpet. He saw a chair “that looked
out of place” and the bed had also been moved because it appeared crooked. He observed
pieces of black plastic, a black purse, and a slipper on the ground. In the bathroom where
Irena was found, the shower curtain was “laying across the commode and the top of the
bath.” There was blood in the bathtub and on the walls in the bathroom. Irena was in the tub,
wearing a slipper on her right foot, with a black sweater around her neck. Detective Amato
testified that valuables found in the condominium appeared undisturbed, and the dresser
drawers were closed. He noted that the front door and sliding door showed no signs of
damage or forced entry.
¶ 73 Megan Neff testified that she tested samples taken from the stain on the carpet, the blood
on the bathroom walls and in the tub, and from Irena’s fingernails. Swabs taken from the
bathroom matched Irena’s DNA profile. The carpet stain contained a partial female profile
from which Irena could not be excluded, meaning the DNA could have belonged to Irena.
Material from fingernail clippings of Irena’s right hand contained a mixture of DNA profiles
which Neff separated into a major and a minor profile. A profile that is major is at a “much
higher level” than the minor profile. Neff testified that the major profile matched the DNA
profile of Chaban and the minor profile was a partial female profile from which Irena could
not be excluded.
¶ 74 Neff further testified that since the male profile was the major profile, it indicated “close
personal contact of some sort.” She stated that “it’s possible that the DNA got there from a
struggle.” The bedroom with blood stains on the carpet showed signs that Irena struggled
with her attacker, as did the bathroom where Irena was found. Neff testified that DNA under
the fingernails could be removed through repeated hand-washing.
¶ 75 The jury could reasonably infer from the evidence that Irena was killed some time after
3:30 pm on June 15, 2007. She was supposed to call Mack that evening about a visit the
following day but Mack never heard from Irena. Mack tried to contact Irena on June 16 and
June 17 but she never responded. The jury also could reasonably infer from Neff’s testimony
that since Irena had assisted in two surgeries on June 14, and five surgeries on June 15,
thoroughly washing her hands before and after each surgery, the majority male DNA profile
detected in the material from Irena’s nails was deposited during Irena’s struggle with her
attacker some time after she left work at 3:30 pm on June 15. Dorota’s and Jurczak’s trial
testimony placed Chaban in Irena’s condominium some time after 3:30 pm on June 15, and
Neff identified Chaban’s profile as the significant DNA profile found under Irena’s
fingernails. Viewed in the light most favorable to the State, the evidence at trial supports a
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finding of Chaban’s guilt beyond a reasonable doubt.
¶ 76 Chaban disagrees, pointing to Neff’s testimony at trial that DNA under the fingernails
could be present for days or weeks, and is not necessarily removed by handwashing. Neff
also acknowledged that DNA could collect under fingernails through nonviolent contact as
well. Irena’s body did not have defensive wounds indicative of a struggle. Chaban argues that
his DNA could have been left from June 13, 2007, when he claimed he last had contact with
Irena after he and Dorota returned from Las Vegas. Since no eyewitnesses identified Chaban
as Irena’s attacker, and Chaban made no inculpatory statements, he contends that this
ambiguous DNA evidence is insufficient to support his conviction.
¶ 77 “Circumstantial evidence alone is sufficient to sustain a conviction where it satisfies
proof beyond a reasonable doubt of the elements of the crime charged.” People v. Pollock,
202 Ill. 2d 189, 217 (2002). Furthermore, any ambiguities in Neff’s testimony does not
render the evidence so unsatisfactory or unreasonable as to create reasonable doubt of
Chaban’s guilt. Rather, such infirmities go to the weight accorded her testimony which is a
determination for the trier of fact. People v. Peterson, 171 Ill. App. 3d 730, 734 (1988).
Although portions of Neff’s testimony and other evidence supports Chaban’s theory of the
case, the jury “is not required to disregard inferences which flow normally from the evidence
and to search out all possible explanations consistent with innocence and raise them to a
level of reasonable doubt.” People v. Hall, 194 Ill. 2d 305, 332 (2000). As discussed above,
we find that the evidence was sufficient to prove Chaban guilty beyond a reasonable doubt.
¶ 78 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 79 Affirmed.
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