People v. King ( 2018 )

2018 IL App (2d) 151112 No. 2-15-1112
Opinion filed August 21, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-1229
)
SHADWICK R. KING, ) Honorable
) James C. Hallock,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
OPINION
¶1 Defendant, Shadwick R. King, appeals his conviction of first-degree murder (720 ILCS
5/9-1(a)(1) (West 2014)) and sentence of 30 years’ incarceration, following a jury trial in the
circuit court of Kane County. Because defendant was prejudiced by the improper introduction of
a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new trial.
¶2 I. BACKGROUND
¶3 The common-law record, trial transcripts, photographs, and videos in evidence show the
following. We will supplement the facts as necessary in the analysis section of the opinion.
¶4 A. The Body on the Railroad Tracks
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¶5 On July 6, 2014, between 6:02 and 6:05 a.m., an eastbound Union Pacific freight train
passed through Geneva Station. Locomotive engineer Devin Satchell saw no one on or near the
railroad tracks. The tracks were surrounded by heavy brush, although there were access points at
breaks in the brush.
¶6 An eastbound Metra passenger train traveling on track 1 approached Geneva Station at
6:36 and left it at 6:37 a.m. The train was under the Route 25 overpass when student engineer
Alex Perez informed engineer Robert Soto Jr. of a “body, or something” on track 2. Perez began
blowing the train’s horn. Soto saw a woman lying awkwardly on the track. She had a blank stare
and was not moving.
¶7 At approximately 6:39 a.m., the train came to an emergency stop, and crew members Dan
Mongelli and Joel Cavender stepped out to investigate. Cavender observed that the woman’s
shirt was halfway up her back and that she did not move or breathe. Mongelli saw the woman’s
shirt lift, and he informed his dispatcher, “I believe this broad’s still breathing.” However, when
he got within a foot of the woman and squatted down to look at her, he saw that she was not
breathing. He determined that her shirt had lifted in the breeze. Mongelli noticed that her neck
was “laid” across the track “in a perfect manner” so that an oncoming train would strike it. He
also noticed a purple color around her mouth, brush (described by another witness as dried leaves
and a blade of grass) in her hair, a cell phone nearby, and “spotting” on her leg. This “spotting”
was later determined by paramedic Gary Grandgeorge and deputy coroner Lisa Gilbert, who also
responded to the scene, to be “lividity.” Mongelli realized at the scene that the woman was
deceased. Mongelli and Cavender waited for the police to arrive.
¶8 Geneva police sergeant George Carbray arrived on the scene at approximately 6:55 a.m.
According to Carbray, the body was lying on its left side, facing west. The head and neck were
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positioned over the northern rail. A pink iPhone was placed against a couple of railroad spikes on
the opposite side of the rail from the body. It would later be determined that there were no
fingerprints on the phone.
¶9 The body was clad in a gray top, black running shorts with no spandex liner, and black
and pink running shoes. The shorts were loose, and there were no underpants beneath them. A
dried leaf was on the lower abdomen, just above the pubic area. A Maidenform underwire bra
was pulled up, half exposing the breasts.
¶ 10 Carbray found no pulse. He believed that the woman had been dead for some time, but he
wanted a medical opinion, so he called for paramedics. They attached a heart monitor to the body
but found no heartbeat. Grandgeorge testified that the monitor detected “pulseless electrical
activity,” which can carry on “for some time” after a person dies. The paramedics did not make
resuscitation efforts, because it appeared that the woman had been deceased for “quite some
time.” EMT Michael Antenore noted that the woman’s skin was a “cyanotic purple” color and
that the pupils were “fixed and dilated.” Antenore also noted that the paramedics had mud on
their shoes, due to an overnight rain, but that the woman’s running shoes were clean.
¶ 11 The woman was later identified as 32-year-old Army reservist Kathleen King,
defendant’s wife. Their home was located 1200 to 1300 feet from where she was found. People
who were in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see
anyone running or see any cars in nearby Esping Park. Esping Park was just north of the tracks
and had walking paths providing access to the tracks. Defendant’s neighbors did not see him or
his SUV out between 6 and 6:30 a.m.
¶ 12 Defendant’s and Kathleen’s 10-year-old son, Brandon, testified that Kathleen ran in
Esping Park. According to Brandon, when running Kathleen customarily wore an armband into
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which she tucked her iPhone. She also wore either glasses or contact lenses and earbuds. When
her body was found, she was not wearing contacts or glasses. Her contacts, armband, and
earbuds were found in her home during a later search.
¶ 13 B. The Fourth of July Party
¶ 14 At approximately 6 p.m. on July 5, 2014, Kathleen, defendant, and their three boys, then
ages 9, 7, and 5, arrived at the home of her father, Kurt Kuester, in Elk Grove Village for a
Fourth-of-July celebration. During the evening, defendant drank three or four beers, and
Kathleen drank a bottle and a half of wine. According to Kathleen’s younger sister Kristine,
Kathleen demonstrated a maneuver to render someone unconscious, which she had learned in the
Army. At about 10:30 or 10:45 p.m., Kathleen and defendant left the party. The boys stayed
overnight with Kurt. According to Kristine, Kathleen did not have any injuries or bruises that
night.
¶ 15 The next morning, Kristine learned from the Geneva police that Kathleen had died. At
approximately 10:40 a.m. on July 6, Kristine telephoned Kurt and told him that Kathleen was
dead. In a second phone call that morning, Kristine told Kurt not to allow defendant to have the
boys.
¶ 16 Kurt testified that he frantically started screaming, “What are you talking about?” when
Kristine broke the news to him of Kathleen’s death. At about that time, defendant was
approaching the front door, which Kurt thought was unusual because defendant “never” picked
up the children. Kurt asked defendant, “Where is Kathleen?” Defendant replied, “We were
fighting and she went running at 6:30 to clear her head.” Kurt told defendant: “Kathleen is dead,
Shad.” Defendant bent over and said: “I didn’t do anything. I didn’t do anything.” According to
Kurt, defendant did not ask what had happened to Kathleen or where she was.
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¶ 17 C. Police Interviews of Defendant
¶ 18 Elk Grove Village police officers Angela Garza and Eric Perkins responded to a call at
Kurt’s residence on July 6 at 11:44 a.m. Defendant told Garza that Kurt would not allow him to
take his children, because Kathleen was deceased. Defendant stated that he and Kathleen had an
argument over her seeing a man whom she met in the military and that defendant told her to
choose between the other man and him. Then, according to defendant, Kathleen went running by
the river at 6:30 a.m. Defendant stated that he came to Kurt’s home to pick up the children but
that no one was home, so he drove to Kathleen’s grandmother’s house in Chicago. He arrived
between 9 and 9:30 a.m. but no one was there, so he drove back to Kurt’s house. Defendant
asked if Kathleen was okay. Garza and Perkins transported defendant to the Geneva police
station. Garza testified that defendant was so upset and anxious that it was not safe for him to
drive himself. According to Garza, 20 minutes into the ride, defendant asked how Kathleen had
died, but the officers did not have those details.
¶ 19 At 1 p.m., Geneva police detectives Robert Pech and Brad Jerdee interviewed defendant.
The video of the interview is in evidence. Defendant explained to the detectives that Kathleen
was away in basic training from February 7 to June 14, 2014. Defendant took a leave of absence
from his insurance job to take care of the children while Kathleen pursued her Army career.
According to defendant, when Kathleen returned home, he learned of her relationship with a man
he called “Keno,” whom she met in the military. Defendant stated that he mentioned divorce but,
he said, Kathleen refused to consider it. Defendant also stated that he agreed that Kathleen could
move out of state with the children to be with Keno as long as she agreed that defendant could
have the boys during the summer. Defendant further stated that he told Tim Casey, Kristine’s
fiancée, that he might miss their wedding because of marital problems.
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¶ 20 Casey (Kristine’s husband at the time of trial) confirmed what defendant said that he had
told him. Casey also testified that he had helped cover up Kathleen’s affair by lying to defendant
about Kathleen’s whereabouts on one occasion.
¶ 21 Defendant told Detectives Pech and Jerdee that he and Kathleen went to a bar in Geneva
after they left Kurt’s party the night of July 5. According to the bartender, she served defendant
five bottles of Miller Lite and Kathleen four glasses of wine. A man named Chad joined the
Kings and bought them each a shot. Chad testified that he did not see any bruises on Kathleen’s
face.
¶ 22 Defendant told the detectives that he and Kathleen left the bar at approximately 1:45 a.m.
and got home at about 2 a.m. Defendant was brushing his teeth while Kathleen was texting
someone on her iPhone. When Kathleen put the phone down where defendant would be sure to
see the message she had written, he saw that she was sending a romantic text to Keno.
¶ 23 The record shows that the man’s name was Billy Keogh. The record also shows that he and
Kathleen had exchanged over 3000 text messages. In one message, Kathleen asked Keogh to
marry her. Kristine was aware of her sister’s relationship with Keogh and had helped Kathleen
keep it from defendant.
¶ 24 Defendant told the detectives that, when he saw Kathleen’s text to Keogh, he picked up
her phone and texted Keogh to leave her alone. Defendant stated that he also texted Keogh that
he was going to bed with Kathleen.
¶ 25 The record shows that 11 texts about defendant and Kathleen having sex were sent to
Keogh from Kathleen’s phone between 4:18 and 4:57 a.m. The record also shows that, after
defendant took Kathleen’s phone from her that morning, she used another device to communicate
with Keogh.
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¶ 26 According to defendant’s statement to the detectives, he and Kathleen stayed up until 5
a.m. on July 6 talking about her desire to attend officers’ school. Defendant denied that he and
Kathleen argued about Keogh. Throughout the interview, defendant expressed that he accepted
that his wife was having an affair. Defendant stated that he went to bed and slept for about an
hour and that Kathleen was also in the bed. According to defendant, Kathleen went running at
about 6:30 a.m. Defendant said that she usually ran by the river. Defendant stated that Kathleen
was wearing black and pink running shoes but that he could not remember what else she was
wearing.
¶ 27 At times during the interview, defendant was tearful. He ventured that Kathleen must
have been hit by a car. One of the detectives told him that Kathleen’s death was not accidental.
Defendant repeatedly stated, sometimes indignantly, that he did not, and could not, have harmed
her.
¶ 28 According to defendant, after Kathleen went running, he left the house to get donuts, as
was his Sunday habit. At 9:30 a.m., he called and texted Kathleen to find out Kurt’s phone
number so that he could pick up the boys. Defendant stated that he left the house at about 9:30
a.m., waved to the neighbors, and went to Kurt’s house. No one was home, so he drove to
Kathleen’s grandmother’s home in Chicago. No one was there, so he drove back to Kurt’s home.
¶ 29 One of the detectives asked defendant how he got a “fat” lip. Defendant rubbed the right
side of his bottom lip but denied that his lip was “fat.” At trial, Pech testified that defendant’s
right bottom lip was slightly swollen.
¶ 30 The detectives took defendant home, where he gave them permission to search and
photograph his house. Pech described a messy house, with leaf fragments on the kitchen floor.
Police again searched defendant’s home on July 8, 2014, pursuant to a search warrant. Among
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the items collected was dried vegetation matter throughout the house and on a still-wet comforter
that was in the washing machine. At trial, the State did not produce evidence forensically linking
the vegetation found in the house and the vegetation that was found on Kathleen’s body. During
the search, police also found earbuds and an armband into which a phone could be inserted.
Police also noted the presence of assorted sports bras.
¶ 31 On July 8, 2014, Pech and Jerdee conducted a second videotaped interview with
defendant, this time after Miranda warnings. Pech informed defendant that Kathleen died of
asphyxiation. Throughout the interview, the detectives presented defendant with various
scenarios in which he accidentally killed Kathleen. Defendant repeatedly denied doing anything,
or even being capable of harming Kathleen. Defendant denied knowing what happened to her.
When Pech falsely informed defendant that his fingerprints were found on Kathleen’s neck,
defendant denied knowing how they got there. He suggested that he might have touched her.
¶ 32 D. The Charge and Pretrial Motions
¶ 33 On July 11, 2014, the Kane County state’s attorney charged defendant by information
with two counts of first-degree murder related to Kathleen’s death. Following a preliminary
hearing and a finding of probable cause, the case was assigned to Judge James C. Hallock. On
September 15, 2014, the information was superseded by a two-count indictment for first-degree
murder.
¶ 34 On July 14, 2014, the State moved pursuant to a federal statute (18 U.S.C. § 2703(d)) for
an order for the disclosure of registration records pertaining to defendant’s and Kathleen’s cell
phones for July 5 and 6, 2014. Defendant made an oral motion, which the court denied, to
declare the statute unconstitutional on the ground that the fourth amendment requires a warrant
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rather than a court order. On July 17, 2014, the court granted the State’s motion to obtain the cell
phone records.
¶ 35 On July 18, 2014, defendant moved for substitution of judge as of right (725 ILCS
5/114-5(a) (West 2014)). In a written order dated September 3, 2014, the court, identified only as
“Judge 42,” denied the motion on the ground that Judge Hallock made a substantive ruling in
denying defendant’s motion to declare the federal statute unconstitutional, making the motion for
substitution of judge untimely. The matter then remained in Judge Hallock’s courtroom.
¶ 36 On January 15, 2015, the State filed its motion in limine No. 1, seeking leave to call Mark
Safarik as an expert witness in crime-scene analysis. The motion stated that Safarik was a “crime
scene and behavioral analyst” for a private company known as Forensic Behavioral Services.
The motion further stated that Safarik had 23 years’ experience with the FBI, including as a
supervisor with the Behavioral Analysis Unit (BAU). Safarik had been, in the vernacular, an FBI
profiler. The substance of Safarik’s proposed testimony was contained in a written report that he
authored, which apparently was submitted separately to the trial court but is not in the record.
¶ 37 The record shows that Safarik worked as a police officer handling violent crimes for
seven years before joining the FBI. While in the FBI, Safarik attended training courses in various
disciplines, including forensic pathology, death investigation, and criminal behavior.
¶ 38 The court granted the motion in limine over defendant’s objection. In ruling that Safarik’s
testimony would be admissible if Safarik were qualified as an expert at trial, the court noted that
Safarik’s opinions would have to be rendered “pursuant to his qualifications” and that he would
not be permitted to identify “the defendant as the killer by direct testimony.” Nor, the court
ruled, would Safarik be allowed to give profiling testimony. The court found that Safarik’s
“specialized knowledge” was “reliable” and “relevant” and that the general subject matter of his
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testimony would assist the jury to understand the evidence and to determine the facts.
Specifically, the court found that the positioning of Kathleen’s body on the railroad tracks was “a
matter beyond the common experience of most jurors and is [a] subject of difficult
comprehension.”
¶ 39 E. The Trial
¶ 40 The jury trial commenced on March 2, 2015. In addition to the evidence detailed above,
the following testimony was presented.
¶ 41 1. Dr. Mitra Kalelkar
¶ 42 The State called forensic pathologist Dr. Mitra Kalelkar. Dr. Kalelkar performed an
autopsy on Kathleen on July 7, 2014. Dr. Kalelkar noted the clothing on the body, as described
above. Dr. Kalelkar also noted that the heel of one sock was twisted around the ankle and that
one of the bra straps was twisted. Dr. Kalelkar testified to the presence of antemortem (before
death), postmortem (after death), and perimortem (at the time of death) abrasions and bruises,
some of which were inconsistent with Kathleen having fallen or collapsed on the train tracks.
Specifically, she testified that an antemortem bruise under the chin was consistent with
someone’s hands having been around Kathleen’s neck or Kathleen having tried to pry someone’s
hands off her neck. Dr. Kalelkar opined that an antemortem bruise on the upper left arm was
consistent with someone grabbing her. Dr. Kalelkar noted a red mark on the neck that did not
contribute to Kathleen’s death and a trail of saliva mixed with stomach contents on the cheek.
According to Dr. Kalelkar, the stomach contained a minimal amount of brown fluid, and a
toxicology report showed the presence of caffeine. At the time of the autopsy, Kathleen’s blood
alcohol concentration was 0.15.
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¶ 43 Dr. Kalelkar filled in her autopsy protocol with “asphyxiation” as the cause of death. In
her trial testimony, she expanded on that to include manual strangulation. She testified that she
found petechial hemorrhages in the eyes and epiglottis mucosa 1 and that she also found focal
hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.
¶ 44 2. Mark Safarik
¶ 45 Safarik, a former police officer and FBI profiler with no medical training, testified, over
objection, that the lividity on Kathleen’s body was inconsistent with her having died on the train
tracks. Over objection, Safarik testified to his opinion that the cause of death was manual
strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as
listed by Dr. Kalelkar, and then eliminated all but manual strangulation as fitting the facts.
Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was
killed in her residence, and that someone close to her, not a stranger, staged the scene. Safarik’s
testimony will be examined in more detail in the analysis section of the opinion.
¶ 46 3. Dr. Larry William Blum
¶ 47 Following the denial of his motion for a directed verdict, defendant presented his case.
He called Dr. Blum, a forensic pathologist, who testified that Kathleen died of a cardiac event
brought on by stress, alcohol intoxication, 2 lack of sleep, and caffeine consumption. Dr. Blum
opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail,
and expired. According to Dr. Blum, her bruises and lividity were consistent with that scenario.
Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes and focal
1
The epiglottis is cartilage that projects upward behind the tongue. Webster’s Third New
International Dictionary 763 (1993).
2
Dr. Blum testified that Kathleen’s blood alcohol concentration was 0.26 at its peak.
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hemorrhages at the base of the tongue, but he opined that those findings, standing alone, did not
support a conclusion that Kathleen was manually strangled. Dr. Blum also testified that Dr.
Kalelkar’s autopsy report was incomplete because “asphyxiation” as a cause of death was
nonspecific.
¶ 48 Defendant’s testimony essentially mirrored the statements that he gave to the police.
¶ 49 In rebuttal, Dr. Kalelkar testified that her autopsy findings led her to conclude that
Kathleen died of asphyxiation due to pressure applied to her neck. She testified that Dr. Blum’s
diagnosis of a cardiac event ignored evidence of strangulation. Kristine testified in rebuttal that
her family’s medical history could not account for Kathleen’s premature demise.
¶ 50 During the prosecution’s rebuttal closing argument, the prosecutor argued that it was
“okay” for the jurors to have questions about the evidence and “still convict the defendant.”
¶ 51 The jury found defendant guilty of first-degree murder, and, after denying his posttrial
motion, the court sentenced defendant to 30 years’ incarceration. This timely appeal followed.
¶ 52 II. ANALYSIS
¶ 53 Defendant raises six arguments: (1) the court erred in denying his motion for substitution
of judge, (2) the court erred in admitting Safarik’s testimony, (3) the court erred in permitting
Kathleen’s family to dwell on their suffering at her loss, (4) the prosecution improperly defined
reasonable doubt in its closing argument, (5) defendant was not proved guilty beyond a
reasonable doubt, and (6) the cumulative effect of the trial errors requires reversal.
¶ 54 A. The Motion for Substitution of Judge
¶ 55 The day after the court granted the State’s motion for disclosure of defendant’s and
Kathleen’s cellular telephone records, defendant filed a motion for substitution of judge as of
right, pursuant to section 114-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
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5/114-5 (2014)). A defendant is entitled to an automatic substitution of his or her trial judge if he
or she meets the following requirements: (1) the motion is made within 10 days after the case is
assigned to the judge, (2) the motion names only one judge, unless the defendant is charged with
a Class X felony, in which case he or she may name two judges, (3) the motion is in writing, and
(4) the motion alleges that the judge is so prejudiced against the defendant that he or she cannot
receive a fair trial. People v. Tate, 2016 IL App (1st) 140598, ¶ 13. Section 114-5 also provides
for naming two judges where the offense charged may be punished by death or life
imprisonment. 725 ILCS 5/114-5(a) (West 2014). Additionally, the motion must be made before
the judge makes a substantive ruling. Tate, 2016 IL App (1st) 140598, ¶ 13. Where a motion for
substitution of judge is improperly denied, all of the court’s actions subsequent thereto are void.
People v. Klein, 2015 IL App (3d) 130052, ¶ 79. We review de novo a ruling on a motion for
substitution of judge as of right. In re D.M., 395 Ill. App. 3d 972, 977 (2009).
¶ 56 Here, the question is whether Judge Hallock made a substantive ruling when he (1)
denied defendant’s motion to declare the federal statute granting access to cellular records
unconstitutional and (2) granted the State’s motion for access to those records. Defendant argues
that Judge Hallock ruled merely on a discovery matter that was not substantive, because it was
collateral to the merits of the case. A ruling that does not go to the merits or relate to any issue of
the crimes charged is not a substantive ruling. See People v. Ehrler, 114 Ill. App. 2d 171, 178-79
(1969).
¶ 57 The federal statute on required disclosure of customer communications or records
provides that a court order for disclosure of electronic communications shall issue “only if” the
governmental entity seeking such disclosure offers “specific and articulable facts” showing that
there are “reasonable grounds” to believe that the contents of the records sought are “relevant
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and material” to an ongoing criminal investigation. 18 U.S.C. § 2703(d) (2012). In its motion,
the State alleged the following facts to show “reasonable grounds”: (1) Kathleen’s cell phone
was found near her body, (2) Kathleen was not murdered where her body was found, (3)
defendant had been in possession of Kathleen’s cell phone, (4) cadaver dogs alerted on the
backseat of defendant’s car, and (5) defendant at all times had his own cell phone with him. The
State argued that those facts supported its contention that the cell phone records were necessary
to pinpoint the locations of defendant and Kathleen during the relevant time periods.
¶ 58 In considering whether the State presented “specific and articulable” facts supporting its
request for the records, Judge Hallock necessarily considered aspects of the merits of the case.
The State’s motion was not a routine motion for “court-ordered discovery,” pursuant to Illinois
Supreme Court Rule 412 (eff. Mar. 1, 2001), as defendant maintains, but was brought pursuant to
a federal statute limiting the disclosure of electronic communications to situations in which
reasonable cause is shown. That showing depends upon the underlying facts of the case.
¶ 59 Defendant also argues that Judge Hallock’s constitutional ruling was not substantive,
because he ruled only on the procedural matter of whether a warrant, rather than a court order,
was required. Defendant distinguishes People v. Wilfong, 17 Ill. 2d 373, 375 (1959), where a
motion for substitution of judge was properly denied after the defendant unsuccessfully
challenged the constitutionality of the statute under which he was indicted. Defendant in our case
points out that he did not challenge the constitutionality of the statute under which he was
charged but brought a procedural challenge to the federal statute’s method of disclosure of
electronic communications.
¶ 60 At oral argument, we granted the State’s motion for leave to cite Carpenter v. United
States, 585 U.S. ___, 138 S. Ct. 2206 (2018), in which the United States Supreme Court held that
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a warrant is required before a governmental entity can seize electronic communications pursuant
to 18 U.S.C. § 2703(d). We are not persuaded of Carpenter’s relevance. Nevertheless, we
believe that the ruling in our case was substantive. It went to the State’s ability to acquire
evidence to use in prosecuting defendant. Consequently, we hold that the court did not err in
denying the motion for substitution of judge.
¶ 61 B. Reasonable Doubt
¶ 62 We next consider defendant’s argument that he was not proved guilty beyond a
reasonable doubt. Because we determine that defendant is entitled to a new trial based upon an
evidentiary error, to prevent the risk of double jeopardy, we must also consider this argument.
See People v. Macon, 396 Ill. App. 3d 451, 458 (2009). When a defendant challenges the
sufficiency of the evidence, the reviewing court must determine whether, viewing all of the
evidence in the light most favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. People v. Collins, 214 Ill. 2d 206,
217 (2005).
¶ 63 Defendant asserts that Dr. Kalelkar’s testimony, contradicted as it was by Dr. Blum, was
insufficient to prove that Kathleen’s death was a homicide. The corpus delicti in a murder case
consists of two essential elements: (1) the fact of death and (2) the fact that the death was caused
by the criminal agency of some person. People v. Jones, 22 Ill. 2d 592, 595 (1961). Here, Dr.
Kalelkar testified that Kathleen died as a result of asphyxiation due to manual strangulation. Dr.
Blum disagreed, testifying that Kathleen’s death resulted from a cardiac event, that is, natural
causes. When confronted with a “battle of the experts” (see People v. Smith, 253 Ill. App. 3d
443, 446-47 (1993) (classic battle of the experts is different experts examining roughly the same
information and arriving at opposite conclusions)), it is for the trier of fact to evaluate each
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expert’s testimony and weigh its relative worth in context. People v. Sims, 374 Ill. App. 3d 231,
251 (2007).
¶ 64 Here, aside from contrasting the testimony of the two experts, defendant also maintains
that Dr. Kalelkar did not complete her autopsy protocol with “any indication” of the cause of
death, calling it only “asphyxiation.” That determination, defendant argues, is too equivocal to
support a conclusion that the manner of death was homicide. Defendant relies on People v.
Ehlert, 211 Ill. 2d 192 (2004), which also involved an opinion rendered by Dr. Kalelkar.
¶ 65 In Ehlert, the defendant was convicted of the first-degree murder of her newborn child.
Ehlert, 211 Ill. 2d at 194. The issue was whether the child was born alive. Ehlert, 211 Ill. 2d at
194. Dr. Kalelkar performed the autopsy, found no unusual cause of death, and later told a police
officer that she could not tell for sure whether the baby was born alive. Ehlert, 211 Ill. 2d at 199.
She left blank the space on the death certificate where she would normally fill in the manner of
death and instructed the police to investigate further. Ehlert, 211 Ill. 2d at 199. After the police
advised her of their investigation, which included witnesses’ statements, she concluded that the
baby had been born alive. Ehlert, 211 Ill. 2d at 199. Dr. Kalelkar then filled in the manner of
death on the certificate as “homicide.” Ehlert, 211 Ill. 2d at 208. At trial, however, Dr. Kalelkar
testified that the manner of death could have been natural causes. Ehlert, 211 Ill. 2d at 209. The
appellate court reversed the defendant’s conviction, and our supreme court affirmed, holding that
there was reasonable doubt as to the defendant’s criminal agency. Ehlert, 211 Ill. 2d at 209-10.
¶ 66 Ehlert is inapposite. Here, contrary to defendant’s contention, Dr. Kalelkar did not
equivocate on the cause or manner of death. “Asphyxiation” certainly encompasses a killing (see
Webster’s Third New International Dictionary 130 (1993)), and at trial, relying on her autopsy
findings, the doctor was clear and specific that Kathleen’s neck had been compressed.
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Accordingly, we conclude that any rational trier of fact could have found that Kathleen’s death
was caused by some person’s criminal agency. Consequently, we also hold that retrial is not
barred by double jeopardy.
¶ 67 C. Safarik’s Testimony
¶ 68 As noted, the trial court granted the State’s motion in limine No. 1, allowing Safarik’s
testimony over defendant’s objection. We will not reverse a trial court’s ruling on a motion in
limine absent an abuse of discretion. People v. Holman, 257 Ill. App. 3d 1031, 1033 (1994).
Also, the court made evidentiary rulings during Safarik’s testimony. The admission of evidence
is within the trial court’s sound discretion and will not be reversed unless that discretion was
clearly abused. Snelson v. Kamm, 204 Ill. 2d 1, 33 (2003).
¶ 69 Safarik testified that, as director of Behavioral Services International, he conducts
“analyses and interpretations” of complex violent crime scenes and violent crimes to “understand
essentially what happened in the crime, how it happened[,] and why the events unfolded the way
that they did.” Safarik testified that he also conducts “equivocal death evaluations” in cases where
the “manner of death is not well established.” According to Safarik, the Kane County State’s
Attorney’s Office asked him to examine the evidence from the scene where Kathleen’s body was
found, to determine (1) whether the scene was staged, (2) the offender’s risk level, (3) a general
offender motive, and (4) the “behavioral manifestations at the scene,” meaning the offender’s
modus operandi, ritual behavior, and staging behavior.
¶ 70 Safarik testified that he typically reviews crime reports, criminal investigation reports,
crime scene photographs, autopsy protocols, autopsy photographs, diagrams and sketches of the
crime scene, and witness statements. He also reviews any toxicology reports. If he needs the
information, Safarik will ask to see the statements of witnesses who talked to the police about the
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victim’s habits. Safarik testified that he will also consider, as he did in the present case, an
accused’s statements, if they contribute to an understanding of the timeline of events leading up to
a murder. In the present case, Safarik considered Brandon’s statements as to where Kathleen
usually ran and the app on her iPhone that recorded that she usually ran in Esping Park, but not
near the railroad tracks.
¶ 71 From his review of the case, Safarik concluded the following: (1) Kathleen did not usually
run on the railroad tracks; (2) defendant’s statement to police that Kathleen left the house to go
running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an hour
later, when the death-scene photographs were taken, which indicated that she died prior to 6:30
a.m.; (3) the lividity on Kathleen’s right leg was inconsistent with her position on the railroad
tracks; (4) if she had been running, her shorts would have been tied and not loose; (5) the absence
of an undergarment or a liner in Kathleen’s running shorts was inconsistent with her being out for
a run; (6) because Kathleen had “fairly large” breasts, running in an underwire bra would have
been painful; (7) Kathleen had a large selection of sports bras, so she would not have been running
in an underwire bra; (8) the presence of the underwire bra was inconsistent with defendant’s
statement that Kathleen possessed running gear; (9) Kathleen’s twisted bra strap would have been
“very uncomfortable” and was inconsistent with the way she would have put on the bra; (10) there
was no sexual motive to the crime, because Kathleen’s bra was covering half her breasts; (11) it
was unlikely that Kathleen would have put on her left sock with the heel twisted toward the top of
her foot; (12) a clump of hair in her right sock was inconsistent with the way a person would dress
herself; (13) Kathleen was not wearing an armband, which was inconsistent with witnesses’
statements that she wore one when running; (14) the absence of earbuds was inconsistent with
witnesses’ statements that Kathleen listened to music while running; (15) the leaf material on
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Kathleen’s body was inconsistent with that in the area where the body was found; (16) Kathleen’s
iPhone was placed on the tracks by someone; (17) a trail of dried saliva mixed with blood running
down Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks,
indicating that she was on the tracks after the saliva had dried; (18) Kathleen was moved onto the
tracks after she died in a different location; (19) Kathleen died as a result of manual strangulation;
(20) a red mark on Kathleen’s neck was consistent with hands having been around her neck; (21) a
bruise under Kathleen’s chin was consistent with someone having strangled her; (22) every form
of asphyxiation except manual strangulation was ruled out; (23) Kathleen’s injuries were
inconsistent with a fall on the tracks; (24) scrapes on Kathleen’s shins were postmortem because
there was no blood; (25) Kathleen was incapacitated by alcohol and did not see the attack coming;
(26) the attack came on very quickly; (27) strangers do not stage crime scenes; (28) a staged crime
scene indicates that the killer was someone close to the victim; (29) the offender attempted to make
Kathleen’s death look like an accident; (30) the leaf material found on Kathleen’s body was from
her residence; and (31) based on the timeline defendant gave to the police, Kathleen was killed in
her residence.
¶ 72 Defendant argues that Safarik was improperly allowed to give an opinion as to the cause
of death in a close case where the cause and manner of death were contested by two
well-qualified, board-certified, forensic pathologists. Defendant additionally contends that
Safarik improperly opined on matters that were within the ken of the jurors when he testified that
the death scene was staged. Defendant asserts that Safarik essentially gave the State’s closing
argument.
¶ 73 Expert testimony such as Safarik’s falls under the general rubric of “crime scene
analysis,” which involves the “gathering and analysis of physical evidence.” See Simmons v.
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State, 797 So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an
expert in the cause and manner of death as well as the habits or characteristics of people who
stage crime scenes. Profiling evidence usually involves a witness describing common practices,
habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687
(2002). Thus, Safarik also proffered profiling evidence.
¶ 74 At oral argument, we asked the State what was Safarik’s area of expertise. That question
was perspicacious, because the State could not readily answer it. Indeed, Safarik’s opinions
ranged from forensic pathology, to botany, to the sartorial. Under the guise of expert “crime
scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was
sufficient to convict defendant. As the State admitted at oral argument, the purpose of Safarik’s
testimony was to “plug the holes” in the State’s case.
¶ 75 Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that, “[i]f scientific, technical or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.” “Crime-scene
analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d at 1151; State v.
Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized knowledge” and
offers “subjective observations and comparisons based on the expert’s training, skill, or
experience.” Simmons, 797 So. 2d at 1151. Therefore, such testimony is not subject to the test
outlined in Frye v. United States, 239 F. 1013 (D.C. Cir 1923). Simmons, 797 So. 2d at 1151.
¶ 76 We first consider defendant’s argument that Safarik was not competent to testify to
Kathleen’s cause of death. Defendant asserts that an expert’s opinion cannot exceed the area of
his or her expertise, relying on People v. Perry, 229 Ill. App. 3d 29 (1992). In Perry, the
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defendant was convicted of killing her infant son by lying on top of him and smothering him
with a pillow. Perry, 229 Ill. App. 3d at 30-31. The appellate court reversed that conviction and
remanded for a new trial where the State’s pathologist opined that the child’s death was not an
accident, because a sleeping mother would not roll on top of an active child without the child
making its distress known. Perry, 229 Ill. App. 3d at 32. The court held that the pathologist’s
expertise did not extend to determining the ability of a sleeping mother to “feel” her child. Perry,
229 Ill. App. 3d at 33. While we agree that an expert cannot express an opinion on a subject
beyond his or her qualifications (see Bachman v. General Motors Corp., 332 Ill. App. 3d 760,
784 (2002) (mechanical engineer with 35 years’ experience could not testify to the cause of a
collision)), the question here is whether the cause of a person’s death is the subject of only expert
medical testimony or whether a lay person can so opine.
¶ 77 The rule in Illinois is that medical testimony is not necessary to prove the cause of death
where the facts proved are such that every person of average intelligence would know from his
or her own knowledge or experience that a wound was mortal. Waller v. People, 209 Ill. 284,
288 (1904); People v. Davidson, 82 Ill. App. 2d 245, 250 (1967). Thus, in Davidson, the
coroner’s testimony that the victim was dead, coupled with other testimony establishing a
criminal agency causing her death, was sufficient to sustain the murder verdict, notwithstanding
the lack of medical testimony as to the cause of death. Davidson, 82 Ill. App. 2d at 250. In Jones,
a corpus delicti case (supra ¶ 63), the evidence of the cause of death was sufficient without
medical testimony where the evidence showed that the defendant shot the victim, the victim fell
and was found lying in a pool of blood, and the victim was immediately removed to a mortuary.
Jones, 22 Ill. 2d at 597.
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¶ 78 Here, medical evidence of the cause of Kathleen’s death was necessary, because a lay
person of average intelligence would not know what killed her. She was found lying on the
railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The
body was warm, and there was no immediate evidence of foul play. Consequently, Safarik—no
matter how many crime scenes he had attended as a police officer, how much study he had done
on violent crime scenes as an FBI profiler, or how many courses he had attended—was not
qualified by knowledge, skill, experience, training, or education to opine on the cause and
manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is admissible if the
proffered expert is qualified by knowledge, skill, experience, training, or education to render an
opinion).
¶ 79 For the court to allow Safarik to opine that Kathleen died of manual strangulation was
especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s cause
of death and presented his own equally well-qualified forensic pathologist to testify that she died
of natural causes. Through Safarik’s inadmissible testimony, the State essentially “broke the tie”
by presenting a second opinion to corroborate Dr. Kalelkar’s. We hold that Safarik’s opinion as
to the cause of death was so highly prejudicial that we must reverse defendant’s conviction.
¶ 80 We also note that it was beyond Safarik’s expertise to opine on the effects of lividity. As
a veteran of violent-crime-scene investigations, Safarik could doubtless identify the presence of
lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s body
on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity correlates
to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038, ¶ 6 (forensic
pathologist pinpointed time of death in part by analyzing lividity on victim’s body).
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¶ 81 In the same vein, Safarik should not have been permitted to testify that the vegetation on
Kathleen’s body came from her home, because such an opinion was beyond his expertise and the
State presented no evidence of such a correlation. To be admissible, an expert’s opinion must
have an evidentiary basis, or else it is nothing more than conjecture and guess. City of Chicago v.
Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.
¶ 82 Next, we consider defendant’s contention that the remainder of Safarik’s testimony was
prejudicial because it consisted of conclusions that the jurors could draw for themselves. A
requirement of expert testimony is that it will assist the trier of fact in understanding the
evidence. Snelson, 204 Ill. 2d at 24. Expert testimony addressing matters of common knowledge
is not admissible unless the subject matter is difficult to understand and explain. People v.
Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when it involves
knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72 (2005). Here,
Safarik testified to conclusions that the ordinary juror could draw: an experienced runner would
not have dressed in the garments in which the body was found; Kathleen would not have left her
contacts, earbuds, and armband at home when she went running; she would not have been
running on the railroad tracks when her habit was to run in the park; and she would not have put
on a sock with the heel twisted to the top of her foot. We agree with the Superior Court of New
Jersey’s conclusion in State v. Lenin, 967 A.2d 915, 925 (N.J. Super. Ct. App. Div. 2009), that
none of this type of testimony should have been admitted.
¶ 83 In Lenin, the court held that Safarik’s testimony about the “characteristics of the victim
and the crime scene” was inadmissible because he was “simply testifying about logical
conclusions the ordinary juror could draw from human behavior.” Lenin, 967 A.2d at 927. The
court also held that behavioral-science testimony, such as Safarik’s, must be evaluated under the
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test for admission of scientific evidence. Lenin, 967 A.2d at 926. We disagree with the latter
holding, because, as discussed, we believe that the better view is that crime-scene-analysis
testimony is not scientific. See Simmons, 797 So. 2d at 1151.
¶ 84 Further, in our case, Safarik ventured beyond “crime scene analysis” into profiling when
he testified to the characteristics of persons who stage crime scenes. Profiler testimony has been
excluded by other states’ supreme courts as unreliable. Mertz, 218 Ill. 2d at 72-73. In Mertz, our
supreme court declined to opine on the admissibility of such evidence, holding that any error in
admitting a profiler’s testimony comparing three distinct crime scenes, with a view as to whether
they could be connected, was harmless because police officers had testified to the similarities
that they had observed. Mertz, 218 Ill. 2d at 73-74. The court emphasized that the profiler did not
explicitly opine that the defendant committed the uncharged offenses that the profiler had
studied. Mertz, 218 Ill. 2d at 72.
¶ 85 Here, in testifying that a staged scene indicates that the killer is someone close to the
victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer, because, under
the circumstances, no one else fit that profile. Our case is more like People v. Brown, 232 Ill.
App. 3d 885 (1992), than Mertz. In Brown, the First District held that the defendant, who was
charged with possession of a controlled substance with intent to deliver, was prejudiced by
profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill. App. 3d at 898.
The court noted that the testimony “consisted of a complete profile of a drug dealer which
corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown, 232 Ill. App. 3d
at 899-900.
¶ 86 Trial courts are obliged to balance the probative value of expert testimony against its
prejudicial effect. Lerma, 2016 IL 118496, ¶ 23. Here, the court performed this analysis in ruling
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on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying defendant
as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say indirectly
what he could not say directly. We follow Brown and hold that such profiling evidence is
inadmissible.
¶ 87 The State argues that the admission of Safarik’s testimony was harmless error, because
(1) he drew conclusions that the jurors could have drawn on their own and (2) his testimony was
cumulative. In Mertz, the court held that the admission of profiling testimony was harmless
because “any inferences drawn by [the profiler] were commonsense ones that the jurors no doubt
had already drawn for themselves.” Mertz, 218 Ill. 2d at 74. That reasoning does not apply in our
case, where one of the claimed errors is that Safarik’s testimony was inadmissible precisely
because it was within the knowledge of the average juror. Ironically, the court’s discussion in
Mertz supports defendant’s argument.
¶ 88 We also reject the argument that Safarik’s testimony was cumulative. While Dr. Kalelkar
opined that Kathleen died of manual strangulation and also opined on the staging of the death
scene, her testimony was undermined by the fact that she did not complete her autopsy protocol.
As the State forthrightly conceded at oral argument, Safarik’s testimony was designed to “plug
the holes.”
¶ 89 Also, unlike in Brown, where the error was found to be harmless, the evidence of guilt in
the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and
conclusions. There was no eyewitness, no confession, and no forensic evidence connecting
defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s
motion in limine No. 1 and to permit the testimony at defendant’s trial.
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¶ 90 On retrial, the arguments that defendant raises concerning evidence of Kathleen’s
family’s suffering and the State’s rebuttal closing argument are likely to arise, so we briefly
address them.
¶ 91 Kristine testified that she was close to Kathleen (that Kathleen was like her mother) and
that Kathleen had shopped for Kristine’s wedding gown. Kristine described how upset she was
when she was told of Kathleen’s death and that she was pacing and crying. Kurt testified that he
was frantic and screaming when he heard the news of Kathleen’s death. The court overruled
defendant’s objections to this testimony. While some reference to the victim’s family is proper
and inevitable (People v. Campos, 227 Ill. App. 3d 434, 449 (1992)), evidence that dwells on the
victim’s family is unduly prejudicial. People v. Bernette, 30 Ill. 2d 359, 371 (1964). Here, the
evidence of the family’s emotional attachments and reactions went beyond anything that was
relevant and was introduced solely for its emotional impact. On retrial, such testimony is
inadmissible.
¶ 92 In his rebuttal closing argument, the prosecutor told the jurors that it was “okay” for them
to have “questions” about the evidence and still convict defendant. The prosecutor gave an
example of a permissible question dealing with what point of access defendant took to get the
body onto the railroad tracks. He then reiterated that the jurors could have questions, “as long as
those questions don’t amount to a reasonable doubt.” This argument was an improper attempt to
define and dilute the State’s burden of proof (see People v. Evans, 2016 IL App (3d) 140120, ¶
59 (prosecutor’s rebuttal remarks improperly conflated the beyond-a-reasonable-doubt standard
with a question of whether the defendant’s actions were reasonable, lessening the State’s burden
of proof)), and nothing close to it is permitted on retrial. It is well established in Illinois that
“reasonable doubt” needs no definition. People v. Amos, 46 Ill. App. 3d 899, 902 (1977).
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¶ 94 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and
the cause is remanded for a new trial.
¶ 95 Reversed and remanded.
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