People v. Williams , 2013 IL App (1st) 111116 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Williams, 2013 IL App (1st) 111116Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CRANDALL WILLIAMS, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-11-1116
Filed December 13, 2013
Held In a prosecution for first degree murder, home invasion and armed
(Note: This syllabus robbery where there were no eyewitnesses, defendant was arrested
constitutes no part of the three years later as a result of information provided by a jailhouse
opinion of the court but informant, no one testified he was near the scene, he made no
has been prepared by the statement to the police, and identification based on DNA evidence was
Reporter of Decisions the issue at trial, defendant’s convictions were reversed and the cause
for the convenience of was remanded for a new trial, since the trial court found defendant
the reader.) guilty by mistakenly recalling that defendant’s DNA expert agreed
with the conclusion of one of the State’s experts that “certainly it was”
defendant and that mistake was not harmless beyond a reasonable
doubt.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-7754; the
Review Hon. Frank Zelezinski, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Katherine M. Donahoe, all
Appeal of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fisher, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justice Hall concurred in the judgment and opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶1 Defendant Crandall Williams was convicted, after a bench trial, of (1) first degree murder,
(2) home invasion and (3) armed robbery. After hearing factors in aggravation and mitigation,
the trial court sentenced him to consecutive terms of 80 years for first degree murder, 20 years
for home invasion, and 20 years for armed robbery, for a total of 120 years in the Illinois
Department of Corrections (IDOC).
¶2 On this direct appeal, defendant raises only one issue for our consideration. He argues that
he was denied due process of law when the trial court based its finding of guilt at his bench trial
on a mistaken recollection of the testimony of the defense’s DNA expert. For the following
reasons, we reverse and remand for a new trial.
¶3 I. Background
¶4 In the case at bar, someone broke into the home of 82-year-old Walter Pinianski,
burglarized his house and stabbed him to death. The only issue at trial was the identity of the
perpetrator. There were no eyewitnesses, and defendant was not arrested at the crime scene but
rather three years later.
¶5 The State’s identification evidence consisted solely of: (1) DNA evidence; and (2) the
testimony of a jailhouse informant. The DNA evidence was obtained from a pair of bloody
gloves found inside the victim’s home. The blood came only from the victim, but a swab of the
inside of the gloves revealed a mixture of DNA material which was contributed by at least
three different individuals. Thus, at least three different people had worn the gloves.
¶6 The DNA evidence was reviewed by two laboratories that did the original tests and
generated the data and by two experts retained by each side to review the already-generated
data and offer additional interpretations of it. The two laboratories were operated by the Illinois
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State Police and Bode Laboratories (Bode); and the two experts were Dr. Rick Staub of
Cellmark Laboratory (Cellmark), for the State; and Dr. Karl Reich of Independent Forensics
Laboratory, for the defense. Of these four laboratories–the Illinois State Police, Bode,
Cellmark and Independent Forensics–only Dr. Staub of Cellmark concluded that defendant
was a match. Dr. Staub disagreed with all the other laboratories, including the Illinois State
Police.
¶7 Of the three laboratories engaged by the State, not one agreed with the other. All three–the
Illinois State Police, Bode Laboratories, and Cellmark–interpreted the data differently and
reached different conclusions about which alleles from the mixture could be attributed to the
major contributor. Although acknowledging that he disagreed with the other experts, the
State’s expert, Dr. Staub of Cellmark, testified that he alone interpreted the data to identify the
alleles belonging to the major contributor in such a way that they matched defendant’s profile.
Dr. Staub admitted that he had defendant’s profile in his possession, as he was trying to
determine the profile of the major contributor, and that he did not rely on mathematical
calculations in determining which alleles belonged to the major contributor, although he
admitted that “[g]enerally, there is a mathematical relationship.” However, on rebuttal, he
testified that he made some calculations while the defense expert was testifying.
¶8 The defense expert, Dr. Karl Reich of Independent Forensics, explained why the mixture
made an identification impossible and why all that could be concluded was that defendant
could not be excluded as a possible contributor.
¶9 At the close of the bench trial, the trial court found that the testimony of James Worthem,
the jailhouse informant, “must be viewed with extreme caution” and that it was merely
“corroborati[ve] [of the] other evidence.” No other witness placed defendant in the
neighborhood where the offense occurred, and there was no statement by defendant to the
police. However, relying primarily on the DNA evidence, the trial court found defendant
guilty. In describing the DNA evidence, the trial court mistakenly stated: “regardless of all, Dr.
Reich did, through laborious cross-examination, have to indicate that certainly it was still the
defendant.” It is this mistake in recalling the testimony of defendant’s sole witness that is at
issue on appeal.
¶ 10 A. The State’s Evidence
¶ 11 The State’s first witness was Patricia Pinianski, the victim’s daughter. She testified that
Walter lived at 12500 South Paulina Street in Calumet Park for 48 years. In 2005, Patricia’s
husband was suffering from brain cancer, and Patricia called Walter every couple of days to let
him know how her husband was doing. On February 9, 2005, when Patricia was unable to
reach her father, she called the Calumet Park police to request a wellness check.
¶ 12 Patricia testified that Walter’s house was very neat and uncluttered. He kept a lot of cash in
various places in the house, such as in an envelope in a closet above the doorway; in a
compartment of an old desk in the living room; and in a drawer in his bedroom.
¶ 13 The State’s second witness, Angela Sanchez, testified that, on February 4, 2005, she
worked as a bank teller at the Great Lakes Bank located at 13057 South Western Avenue in
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Blue Island. At 1:51 p.m. on that day, Walter Pinianski made a deposit of two checks totaling
$1,660.99 into his account, and withdrew $800 in cash.
¶ 14 The State’s third witness was Judith Boyer, an assistant vice president of security at Great
Lakes Bank, who identified a Great Lakes Bank savings deposit slip with Walter Pinianski’s
name on it. The automated stamp on the back of the slip indicated that the deposit was made on
February 4, 2005, at 1:51 p.m., and that the bank teller who processed the transaction was
Angela Sanchez, whose teller identification number was 718. The automated stamp was done
in the ordinary course of business of Great Lakes Bank.
¶ 15 The State’s next witness was Judith Chapan, a 911 dispatch operator at the Calumet Park
police department, who identified call records from February 6, 2005, that had been authored
by her partner. 1 The records documented 911 calls by Walter Pinianski and indicated that
Walter’s first call was at 1:34 a.m. on February 6, 2005. The record of this call stated: “[a] male
subject was knocking on the door asking for $5.00. Last seen walking southbound on Paulina
from address.” Walter’s next call was at 1:36 a.m. and concerned “a male subject banging on
the door.”
¶ 16 The State’s next witness, John Shefcik, was a patrol officer at the Calumet Park police
department in February 2005. On February 9, 2005, at 9:18 p.m., he was assigned to do a
wellness check on Walter Pinianski at his residence. While Shefcik had been to Walter’s
residence to check on his well-being several times before, he had not been there that week.
¶ 17 Shefcik testified that Walter’s house is a small brick ranch home on a pie-shaped double lot
with a large yard which wraps around the house. There is no garage. To the north is an alley
which also borders the Metra train tracks. To the east is Paulina Street. To the west, behind the
house, is an alley, and then Page Street. Thus, the only neighbor is located to the south of
Walter’s house.
¶ 18 Shefcik further testified that, when he arrived at Walter’s residence, it was snowing outside
and the house was completely dark, which was unusual. Shefcik knocked on the front door, but
received no response. He walked around the house and noticed that, on the north side of the
house, the basement window had been broken. There were no footprints in the snow leading to
the broken window and there was no broken glass in the yard. Shefcik returned to the front
door and turned the doorknob, which was unlocked. When he had been to Walter’s house on
previous occasions, the door had always been locked, and Walter had opened the door for him.
¶ 19 Prior to entering the house, Shefcik called for backup. He did not enter the house until
Sergeant Jones arrived, and they both entered together. Just inside the front door was a large
living room with couches and a television set. Shefcik observed that the cushions from the
couch were on the floor. After one walked through the living room, there was a small hallway
with a bedroom to the immediate left and another bedroom to the immediate right. The kitchen
was located in the back of the house. When Shefcik looked in the kitchen, he observed the
victim, Walter Pinianski, lying on the kitchen floor. As Shefcik and Jones performed a
1
Chapan did not testify that she was a custodian of these records. However, no objection was made
at trial to Chapan testifying about the records created by her partner.
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protective sweep for possible offenders, Shefcik observed envelopes and papers strewn about
Walter’s bedroom.
¶ 20 Illinois State Trooper James Gainer testified that he was the crime scene investigator
assigned to this case and that he arrived at 12500 South Paulina at 10:28 p.m. on February 9,
2005. He entered the residence through the front door and went into the living room area. The
area looked ransacked, with couch cushions on the floor and papers strewn about. Gainer
walked through the living room and the hallway and entered the kitchen, where he observed
the victim, Walter Pinianski, lying on the floor in a pool of dried blood. Gainer then went
downstairs to the basement and observed that the window on the north side of the basement
had been broken. There were glass fragments on the floor below the window and in the laundry
tub below the window.
¶ 21 Gainer photographed the scene and processed the scene for fingerprints. Specifically, he
developed latent prints from a PVC pipe located directly below the broken window and from a
washing machine also in the basement. The prints on the PVC pipe and on the washing
machine both showed a pattern of small black dots. While he was in the living room, he noticed
and collected a pair of white gloves that contained black rubber dots in a pattern resembling the
patterns in the prints obtained from the PVC pipe and the washing machine.
¶ 22 The next morning, on February 10, 2005, Gainer went to the Cook County medical
examiner’s office to attend Walter’s autopsy. He photographed and documented the autopsy
and obtained Walter’s fingerprints and created a blood card for him. A blood card contains a
sample of the victim’s blood. It is a small three-by-five index card, on which is placed five
droplets of the victim’s blood for future testing. Gainer was able to collect a set of fingerprints
only from Walter’s right hand, as Walter’s left hand was too decayed. Gainer returned to the
scene on February 10, 2005, to photograph a telephone box on the west side of Walter’s
residence, and observed that the wires to the box had been cut.
¶ 23 Gainer further testified that, on March 25, 2008, he went to 12415 South Honore Street in
Calumet Park with several police officers from the Illinois State Police and the South Suburban
Major Crimes Task Force. They met defendant there who agreed to return to the police
department with them. At the police department, Gainer collected a buccal swab from the
inside of both of defendant’s cheeks.
¶ 24 The medical examiner who performed the autopsy did not testify, but a certified “Report of
Postmortem Examination,” a self-authenticating document, was admitted into evidence
pursuant to section 115-5.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5.1
(West 2010)). According to the report, Walter died from multiple stab wounds. Walter’s death
certificate was also admitted into evidence, but only for the limited purpose of establishing the
date of his death, the identity of the decedent, and his age at the date of his death.
¶ 25 James Worthem, an inmate at IDOC, testified about several conversations he had with
defendant while Worthem was in custody at Cook County jail. On April 18, 2008, defendant,
whom Worthem knew as “Little C,” approached him and asked if he knew anything about
burglaries and DNA. During their conversation, defendant mentioned some houses in Calumet
Park which all looked the same and that he often asked people in these houses if they needed
help because the houses often flood.
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¶ 26 On the following day, April 19, 2008, defendant approached Worthem again, when
Worthem was in his cell with his cellmate. This time the conversation concerned DNA.
Worthem told defendant what he knew about DNA, including that “if you are locked up, they
do a cotton swab in your mouth and if you did do that while you were incarcerated, that you are
registered on the data as a certain DNA.” 2 Defendant told Worthem that he had burglarized a
house two blocks away from his mother’s house and that he may have left inside the house a
pair of white canvas gloves which he had received from his father.
¶ 27 On the next day, April 20, 2008, defendant approached Worthem a third time. Their
conversation was about the glove and the burglary. According to Worthem, defendant stated
that he used the glove to break the basement window, that the glove had blood on it, and that he
had left it inside the house. Defendant told Worthem that the glove was made of white canvas
with a bunch of little black rubber grips on the outside. The house was down the street from the
Chicago borderline of “Cal Park.” Defendant also told Worthem how he and his partner,
Pierre, entered the house. They knocked on the door and nobody answered, so they went down
to the basement windows. Defendant punched a hole through the glass, and then they crawled
through the broken window into the basement. They went upstairs and heard someone say, “Is
anybody there?” Defendant then noticed an old man coming toward them and waving his arms.
Defendant did not know if the man was coming to attack him, so he took out his knife and
began stabbing him. Defendant said that “it [felt] like a pin stabbing a cushion.” 3 Defendant
stabbed the man for a few seconds, and the victim was screaming. Defendant kept stabbing
until the victim lay quiet on the floor. After the stabbing, defendant and his partner ransacked
the house. Defendant discovered some military pennants in a closet and kept them as
souvenirs. He also took cash, but he did not tell Worthem how much. Worthem asked
defendant for his full name, and defendant stated that his full name was Crandall Williams.
¶ 28 Worthem testified that he was not promised anything in exchange for his testimony and
that he came forward voluntarily and made all the contacts with the State because he has a lot
of family members in the military, including a cherished grandfather, and he felt sorry for the
victim and felt it was “the right thing to do.” Worthem was aware that the State can do favors
for witnesses because he had previously cooperated with federal law enforcement officers in
drug stings in 2005 and 2006. At the time of his trial testimony, Worthem had a pending
postconviction petition and a petition under section 2-1401 of the Code of Civil Procedure
(735 ILCS 5/2-1401 (West 2010)), but he told the State’s Attorney’s office that he did not want
its help. Worthem admitted that he had previously been convicted for robbery and armed
robbery and that he “practiced law” pro se and had used aliases in the past.
¶ 29 Worthem testified on cross-examination that he made a statement on a videotape on May 6,
2008, about this incident. The statement was taken at IDOC in the presence of Assistant State’s
2
However, as stated above, State Trooper Gainer testified that defendant agreed to go with the
officers to the police station so that they could obtain a buccal swab from him.
3
Later, on cross-examination, Worthem testified that defendant said that on May 6, 2008.
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Attorney (ASA) D’Angelo 4 and police investigators. At that time, Worthem did not volunteer
that his cellmate was also present during his conversations with defendant. In addition,
Worthem may have mentioned on the videotape that defendant told him that he hurt his hand
when he broke the window, and that he was bleeding inside the glove. 5 Further, Worthem
testified that defendant had told him on May 6, 2008, instead of April 20, 2008, that stabbing
the old man felt like a pin stabbing a cushion.
¶ 30 Katherine Sullivan testified that she was a forensic biologist with the Illinois State Police
(ISP) at the Joliet Forensic Science Laboratory, and the parties stipulated that she was an
expert in the field of forensic DNA. She testified both about the basics of DNA science as well
as what she did in this particular case. She explained that everyone except identical siblings has
different DNA, and that polymerase chain reaction (PCR) is a process to make copies of DNA.
Further, she explained the procedures that she uses in her DNA analysis. First, the DNA has to
be extracted from the material that it is in and placed in a liquid solution. Then the amount of
DNA needs to be quantified, and the PCR process is used to tag the areas of DNA to be
profiled. She uses an instrument to detect those tags, and she uses some software to develop the
DNA type from the sample and to make a comparison to the standard that is submitted for the
case.
¶ 31 After describing the DNA process in general, Sullivan then testified about the DNA
analysis she did for this case. She received the gloves from the crime scene in a brown paper
bag and collected hair and fiber from the outside of the gloves and swabbed the inside. These
swabs were dried and placed in a separate envelope that she labeled Exhibit 1-A. She also
prepared a portion of the blood standard for the victim. She removed five circles with dark red
stains from the victim’s blood card and placed them in a separate envelope that she labeled
Exhibit 10-A. The swabs and blood standard were ultimately sent to Bode Technology Group
(Bode) for analysis.
¶ 32 On March 26, 2008, Sullivan received defendant’s buccal swab. She then performed a
DNA analysis on the swab and developed a DNA profile from it for defendant, which she then
sent to Cellmark along with (1) Bode’s original data from the swabs of the gloves, (2) a profile
that Bode had developed from the swabs of the gloves, and (3) Walter’s original blood
standard.
¶ 33 Sullivan also did an analysis of the gloves for the presence of bloodstains, and they tested
positive for the presence of blood. She then removed a portion of that stain so a DNA analysis
could be performed on it. She developed a profile from the bloodstain and compared it to the
DNA profile for Walter that Bode had developed from Walter’s original blood standard.
Sullivan interpreted the data and concluded with a reasonable degree of scientific certainty that
the DNA profile which she had recovered from the bloodstain matched Walter’s DNA profile.
4
Worthem did not provide a first name for the ASA.
5
Worthem’s testimony was later contradicted by the testimony of Katherine Sullivan, one of the
State’s experts, who testified that the blood appeared to be only from the victim. Although the defense
flagged this contradiction in its brief to this court, the State did not try to explain it away.
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The DNA profile from the bloodstain on the glove would be expected to occur in
approximately 1 in 610 quadrillion blacks, 1 in 15 quadrillion Hispanics or 1 in 5.9 quadrillion
white unrelated individuals. The bloodstain appeared to have originated from the outside of the
glove, because it was visible from both sides but covered more area on the outside of the fabric
than on the inside.
¶ 34 On cross-examination, Sullivan testified that, prior to 2006, she had received additional
standards from Quinten Campbell, Edward Bell, and Calvin Truitt, which she submitted to
Cellmark for comparison. Further, the result from the bloodstain on the glove appeared to be
from a single contributor, since there was no evidence of a mixture of multiple contributors. 6
Where there is a mixture, the order of the contributors cannot be determined.
¶ 35 The parties stipulated that, if called to testify, Abby Mulkenez would be accepted as an
expert in forensic DNA analysis. She would testify that from May 24, 2005, through August
11, 2005, she was a DNA analyst for Bode Technology Group, Inc., and that Bode was a
subcontractor for the Illinois State Police Forensic Sciences Command performing forensic
DNA analysis. On May 24, 2005, Bode received Exhibits 1-A and 10-A from the Illinois State
Police in Joliet. These exhibits were processed for DNA typing and for analysis of the 13
CODIS Short Tandem Repeat Loci. Exhibit 1-A contained a mixture of multiple donors, while
Exhibit 10-A produced a complete profile of Walter Pinianski, the victim. Walter was not one
of the contributors to the profile obtained from Exhibit 1-A. Although this was not stated in the
stipulation, we observe that Exhibit 1-A contained the swabs from the inside of the glove
prepared by Sullivan and that Exhibit 10-A was the victim’s blood standard also prepared by
Sullivan.
¶ 36 The State’s next witness was Dr. Rick Staub, whom the parties stipulated was an expert in
the field of forensic DNA analysis. Dr. Staub testified that he was employed as the laboratory
director of scientific operations at Cellmark in Dallas, Texas, which did contract work for the
Illinois State Police. The Illinois State Police asked Cellmark to compare: (1) Bode’s data
concerning an unknown DNA sample and (2) a known DNA profile developed by the Illinois
State Police for defendant. Thus, when reviewing Bode’s data to determine whether it revealed
a major profile and, if so, what the major profile was, Dr. Staub already had in front of him
defendant’s profile. When asked whether it was common among experts in the field of DNA
analysis to refer to and rely on other experts’ data, he replied that it was “not uncommon.”
¶ 37 Dr. Staub did not perform any tests on the items, and only interpreted the data generated by
Bode and the Illinois State Police. According to Dr. Staub, the unknown sample from Bode
contained a mixture of multiple individuals, but he believed he was able to identify a major
contributor. As part of his review, he looked at an electropherogram which he explained is a
chart with peaks and lows that looks comparable to an EKG. This chart is generated by “a laser
detection instrument that runs the sample through a very thin glass capillary. When it comes
6
As we previously observed, Sullivan’s testimony that the blood found on the glove came from a
single contributor, that the blood was from the victim and that the blood originated from the outside of
the glove contradicted Worthem’s videotaped statement that defendant told him that defendant hurt his
hand when he broke the window and that he was bleeding inside the glove.
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out at the end, a laser light hits the sample through the window and the DNA molecules have
fluorescent tags on them that then will light up.” Dr. Staub explained that “every time we see a
peak [on the chart] that’s where a DNA fragment has come through the instrument.”
¶ 38 Dr. Staub testified that he was aware that the unknown sample came from swabs from a
pair of gloves, and that the known profile came from defendant’s buccal swab. The known
profile was very clear because it was a “single source profile.” Dr. Staub opined that the
standard from defendant matched the major profile from the gloves with a reasonable degree of
scientific certainty. In his opinion, the statistical probability of a match between the major
profile and a random individual was only 1 in 196.6 quadrillion.
¶ 39 On cross-examination, Dr. Staub explained that the test he performed was called short
tandem repeats (STR), which refers to areas of DNA in which there are small molecule
combinations that repeat a certain number of times. The numbers on an electropherogram
represent the number of repeats, and the number of repeats differs from person to person. At
each location, a person inherits one number from his mother, and one number from his father.
Sometimes, the electropherogram shows just one number at a certain location, which indicates
the person inherited the same allele from both parents at that locus. When a sample shows
more than two numbers at one of the locations on the electropherogram, it indicates a mixture
of DNA. However, when the peaks on the electropherogram have a certain mathematical
proportion to each other, it is possible to say that they go together. Sometimes, it is possible to
determine a major profile from a minor profile, as evidenced by the peak heights on the
electropherogram. Dr. Staub agreed with Bode’s conclusion that there were at least three
contributors to the unknown sample from the glove.
¶ 40 Dr. Staub acknowledged that the profile determined by the Illinois State Police did not
agree with his profile at one locus.
¶ 41 Dr. Staub was shown defendant’s Exhibit 1, which he identified as the electropherogram
showing Bode’s results from the “profiler plus” test on the swabs from the gloves; and
defendant’s Exhibit 2, which he identified as the electropherogram showing Bode’s results
from the “cofiler” test. The “profiler plus” test reveals nine loci, plus gender; while the cofiler
test reveals six loci. Two of the loci from the cofiler test overlap with two of the loci from the
profiler test, yielding a total of thirteen loci. Each locus has a different name. For example, the
first locus, which appears on the top left of defendant’s Exhibit 1, is called D-3, and Dr. Staub
circled it and labeled it. He also circled and labeled the locus called D-13. For D-3, Dr. Staub
testified that two peaks were very high, as compared to three much smaller peaks. Turning to
D-13, Dr. Staub testified that the chart showed three peaks, which were labeled 11, 12 and 13.
Dr. Staub concluded that the peaks labeled 11 and 13 were the major contributor. Dr. Staub
further testified that, although the peak labeled 12 was smaller, it was not nearly as small as the
small peaks in D-3.
¶ 42 Dr. Staub explained that, since the 12 was between the 11 and the 13, the 12 peak could be
accounted for by a “phenomenon called stutter.” Dr. Staub concluded that “often times when
you have a peak between two other peaks, it is even emphasized even more.” However, Dr.
Staub testified that the same phenomenon could also account for the height of the eleventh
peak, which he had concluded was part of the major profile.
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¶ 43 Dr. Staub concluded that his “feeling was that the most likely major profile [at D-13] was
an 11, 13.” He testified that he did not perform any mathematical calculations with regard to
the peak heights. He testified that “just by looking at it, and rationalizing it, I determined that.”
Dr. Staub admitted that “[g]enerally, there is a mathematical relationship.”
¶ 44 Dr. Staub also testified that he had not reviewed any of the lab validation from Bode for the
purpose of this case analysis; that there will be variances from instrument to instrument; and
that there will be certain peak height differences from instrument to instrument within one lab
and from lab to lab.
¶ 45 Dr. Staub was then shown defense Exhibit 2, which was the chart showing the results from
the cofiler test, and he circled and labeled D-3 on the top left of the chart. D-3 was one of the
loci that appeared on both charts. Dr. Staub then circled and labeled T-POX, which was located
at the center of defense Exhibit 2.
¶ 46 Dr. Staub acknowledged that, at T-POX, Bode concluded that only the peak labeled 9
belonged to the major contributor. Dr. Staub disagreed with Bode’s conclusion and concluded
that both the peaks labeled 9 and 11 belonged to the major contributor. When asked whether he
had mathematically calculated the ratios between the peak heights, he stated that he “may have
done it like in passing,” but he testified that he did not “have those documented.” Dr. Staub
relied on Bode’s electropherogram, but not on its interpretation.
¶ 47 Dr. Staub testified that he was familiar with the concept of coincidental matches and he
was familiar with the study that determined that loci in DNA profiles of different individuals
will coincide at 9, 10 and even 11 loci. Also he could not determine, with respect to major and
minor contributors, when a particular contribution was added to a sample. Thus, he could not
determine whether the major contributor was the first or last contributor.
¶ 48 On redirect examination, Dr. Staub testified that he was asked to compare the unknown
sample from the swabs of the gloves to the known profile developed by the Illinois State Police
from defendant’s buccal swab. His interpretation of locus D-13 was that 11 and 13 constituted
the major profile. When he reviewed defendant’s DNA profile at locus D-13, the alleles were
also 11and 13. In addition, it was his opinion that the profile developed from defendant’s
buccal swab coincided with what he found to be the major profile at 13 loci. Thus, he believed
defendant’s DNA profile to be a match.
¶ 49 On recross, Dr. Staub testified that, when he was determining the major profile from the
unknown sample, he had the results for defendant’s DNA profile.
¶ 50 The State rested, and the defense moved for a directed finding, which was denied.
¶ 51 B. The Defense’s Evidence
¶ 52 The defense then called Dr. Karl Reich, the chief scientific officer of Independent
Forensics Laboratory in Hillside, Illinois, who the parties stipulated was an expert in DNA
testing. Dr. Reich testified that he was asked to review the DNA mixture obtained from the
swabs of the gloves in this case. He explained that mixture interpretation is “quite
complicated” for several reasons. First, the reagents used to develop a DNA profile were
originally developed for the analysis of a single source, so “the original intent” for this type of
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analysis was only to analyze DNA material from a single source. Second, the number of
contributors adds to the complexity. Third, the amounts of DNA material contributed to the
mixture by the different individuals can vary. Fourth, the different contributors may share
common alleles at a particular locus, which can cause the peaks on the electropherogram for
that locus to be higher.
¶ 53 In this case, Dr. Reich reviewed reports from Bode, the Illinois State Police and Cellmark,
which each provided different interpretations of the same electropherogram. Although they
were looking at the same electropherogram, each lab made its own determinations concerning
the major and minor contributors.
¶ 54 Dr. Reich testified that, with respect to the D-13 locus, Bode concluded that the 11 peak
and the 13 peak on the chart were both from the major contributor, and the 12 peak was from a
minor contributor. By contrast, with respect to the same D-13 locus, the Illinois State Police
concluded that it was not possible to resolve whether the 11, 12 and 13 peaks belonged to a
major or minor contributor. When it is not possible to resolve a mixture, such as this one, with
three alleles at one locus, there are at least six possible options for a major contributor at that
locus: (1) 11, 12; (2) 11, 13; (3) 11, 11; (4) 12, 13; (5) 12, 12; and (6) 13,13.
¶ 55 With respect to the T-POX locus, Dr. Reich testified that Bode concluded that only the 9
peak was from the major contributor and that the 8, 10 and 11 peaks were from minor
contributors. By contrast, with respect to the same T-POX locus, the Illinois State Police
concluded that both the 9 and 11 peaks were from the major contributor. Dr. Staub agreed with
Bode with respect to the D-13 locus but disagreed with them with respect to the T-POX locus;
and he agreed with the Illinois State Police with respect to the T-POX locus but disagreed with
them with respect to the D-13 locus. Dr. Staub’s agreements and disagreements aligned with
defendant’s profile.
¶ 56 Dr. Reich testified that he was familiar with the concept of coincidental matches, which
referred to “the demonstrated ability” of nonrelated individuals to have DNA profiles that
coincide at 9, 10 or 11 loci. This concept affects how the results shown on the
electropherogram can be interpreted in this case. Dr. Reich explained:
“Because there are two loci, *** T-POX and D-13, that have at least two possible
interpretations maybe three, *** that the final decision as to what the major profile
might be, has some ambiguity and that ambiguity coupled with the understanding that
non-related individuals can match at high numbers of alleles *** introduces much
more doubt into *** one of the final conclusions that has been reached.
***
Any alteration from the profile of an individual will exclude that profile as
identifying that person. So, a full profile of 13 loci under current scientific conclusions
is sufficient to identify one person from all others. That profile has a number of results.
An alteration of even one of those results, excludes that individual from being that
contributor. Even one allele out of the whole thirteen.”
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When asked whether, in light of the possible alternate profiles put forth by Bode and the
Illinois State Police, the case presented profiles that would not match defendant, Dr. Reich
replied: “Absolutely.”
¶ 57 Dr. Reich further testified that it is impossible to determine the order of contributors to a
mixture, even when the major and minor contributors can be determined. He explained:
“The major and minor contributor refer exclusively to the rough approximation of how
much nucleic acid of each the contributors might have added into the sample. They do
not speak to the timing or the order of any of the body fluids or skin cells that were
added to the evidentiary item.”
¶ 58 On cross-examination, the State asked Dr. Reich, locus by locus, whether the alleles listed
in defendant’s profile appeared anywhere on the electropherogram, without regard to whether
they were from the major or minor contributors. For each question, the State asked simply “do
you see” the alleles on the chart. The State did not ask him to interpret or explain what he could
“see.” The defense objected to this line of questioning as “misleading” and “improper” and
was overruled both times. When Dr. Reich tried to answer in scientific terms, the prosecutor
told him to answer just yes or no, and the defense objected but it was overruled. Later, the
prosecutor stated: “I am going to strike that [answer], because there is no question pending.
Doctor, when I ask you a question answer it. Don’t volunteer any information.” However, the
trial court overruled the prosecutor’s statement and let that particular answer stand, which was
that the 11 peak at the T-POX locus from the unknown sample was from the minor contributor,
while defendant’s profile was both 9 and 11 at the T-POX location.
¶ 59 On redirect, Dr. Reich testified that the State had not asked him about which alleles
belonged to the minor contributors and that, if one changed one’s interpretation of what
constituted the major profile, it could include or exclude other profiles. On recross, Dr. Reich
testified that defendant could not be excluded.
¶ 60 The defense moved to admit into evidence defendant’s Exhibits 1 and 2, which were the
electropherograms for the swabs of the gloves, and they were admitted. Defendant was
admonished by the trial court concerning his right to testify, and the defense rested.
¶ 61 C. State’s Rebuttal Evidence
¶ 62 The State called Dr. Staub in rebuttal who testified that he had made some mathematical
calculations while Dr. Reich was testifying. He testified that, if you added up “the peak heights
at each locus, [for] what I’m calling the major contributor,” then the major contributor
accounts for “anywhere from 75 to 85 percent of the total DNA.” With respect to the D-13
locus, if the alleles for the major contributor were 11, 11, then the major contributor would be
contributing only 39% at that locus, and if the alleles were 11, 12, then he would be
contributing only 62%. However, Dr. Staub failed to provide the percentage for an 11, 13,
which is what he believed were the alleles from the major contributor at that locus, so the
record is silent on whether this percentage fell within the 75% to 85% range that he had
delineated.
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¶ 63 Dr. Staub testified that, with respect to the T-POX locus, that a 9, 9 or an 11, 11 “would not
make sense” because they would “come[ ] out to maybe 58% or 28% of the total.” By contrast,
“if he is 9, 11, which I called, he is 86%.” However, Bode determined that the minor
contributors included not only an 11, but also an 8 and a 10, and Dr. Staub provided no
percentages for a 9, 8, or a 9, 10. Thus, the record is silent as to whether the percentages for a 9,
8, or a 9, 10 would have also fallen into the percentage range that Dr. Staub delineated. A
profile with these combinations would have excluded defendant.
¶ 64 II. Trial Court’s Findings
¶ 65 At the conclusion of the bench trial, the trial court made the following findings. A
horrendous crime had been committed against an 82-year-old man in his home when someone
broke in and stabbed him to death. The victim was in the habit of keeping money in his house
and had been to the bank shortly before the crime. The perpetrator had entered the victim’s
residence through a basement window, and then had come up the stairs, where he encountered
the victim and stabbed him and left him on the kitchen floor. The victim’s entire residence was
ransacked and the phone lines had been cut. Much of the evidence in this case “revolves around
a pair of gloves” recovered from the crime scene. The gloves had patterns on them that
matched the prints found on the PVC pipe and the washing machine underneath the broken
basement window. The gloves had the victim’s blood on the outer surface, which indicated that
“the person wearing those gloves was involved in the bloodying of the victim which lead [sic]
to his death.” Expert witnesses from both sides agreed that DNA material from at least three
people was found on the inside of the gloves. The trial court then stated:
“[Dr.] Staub testified on behalf of the State that the major contributor of the DNA,
above all other individuals who at some point may have wore these gloves, was a
standard which matched the defendant, unquestionably.
The defendant refuted him through Dr. Reich. However, regardless of all, Dr. Reich
did, through laborious cross examination, have to indicate that certainly it was still the
defendant, who through every standard taken, was one of the individuals whose DNA
was on those gloves, though he disputes whether or not he was a major contributor.
***
There is no question by the Court that he was a contributor of DNA to those gloves.
[Dr.] Staub did testify that he was a major contributor, by the evidence that I have.
Furthermore, in this case, it certainly does support Dr. Staub’s finding, that evidence
which the Court looks at is the testimony of the State’s jailhouse witness.”
¶ 66 The trial court then found that the testimony of Worthem “must be viewed with extreme
caution.” Worthem was a convicted felon, and serving time in IDOC. He was aware that if he
cooperated, he could receive a deal from the State. Therefore, he “probably would do anything
to have that happen.” However, Worthem’s testimony provided information that coincided
with the evidence presented and explained other questionable facts in this case:
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“[Worthem] testified that the defendant admitted during the course of their
conversation that he entered Mr. Pinianski’s house through breaking in a window, as
the evidence technician’s evidence indicates.
He indicates that the defendant talked about leaving a glove, or gloves, there, which
we do have gloves which ultimately the DNA establishes the defendant had been
wearing. During these conversations defendant also admitted [to] taking property from
the victim after [he] stabbed him numerous times, as he indicated like stabbing a
cushion with a knife that the defendant had.”
¶ 67 The trial court concluded that the facts presented by Worthem’s testimony were “so similar
to other evidence here, they become more than just coincidences and they come to a point
where the Court has to look at them as they are corroborating other evidence and find, in fact,
that certainly there is only one person who this information could have come from, and that is
the defendant.”
¶ 68 Based on these findings, the trial court found defendant guilty on March 14, 2011, of first
degree murder, home invasion, and armed robbery. On April 11, 2011, defendant moved for a
new trial, which was denied. After hearing factors of aggravation and mitigation, the trial court
sentenced defendant to 80 years for first degree murder, 20 years for home invasion, and 20
years for armed robbery, with all sentences running consecutively. Defendant then filed a
motion to reconsider the sentence, which was also denied. This appeal followed.
¶ 69 ANALYSIS
¶ 70 On this direct appeal, defendant claims that he was denied due process of law when the trial
court based its finding of guilt at his bench trial on a mistake in recalling the testimony of
defendant’s sole witness. In support, defendant relies primarily on two cases: People v.
Mitchell, 152 Ill. 2d 274 (1992); and People v. Bowie, 36 Ill. App. 3d 177 (1976). The State
does not discuss or cite these cases in its brief to this court, nor does the State make any attempt
to distinguish the facts of these cases from the facts in the case at bar.
¶ 71 Instead, the State treats defendant’s claim as a claim of insufficient evidence, and also
argues that defendant has waived this issue by failing to object at trial and in a posttrial motion.
First, as we discuss in more detail below, a claim of insufficient evidence is different from a
claim that a trial court affirmatively made a mistake in its decision-making process. Second, a
claim of insufficient evidence is not waived even if defendant does not raise it in the court
below. People v. Enoch, 122 Ill. 2d 176, 190 (1988) (holding that the doctrine of waiver does
not apply when a defendant challenges the sufficiency of the evidence).
¶ 72 The State also argues that the trial court’s recollection was not faulty, because the defense
expert’s statement that defendant could not be excluded is the same as concluding that
“certainly it was” defendant. However, there is an exponential difference between a conclusion
that someone could not be excluded based on a consideration of some loci, and a certain
identification based on a full 13-loci match. People v. Wright, 2012 IL App (1st) 073106,
¶¶ 82-84, 101.
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¶ 73 For the following reasons, we reverse and remand for a new trial.
¶ 74 I. Standard of Review
¶ 75 Our supreme court has held that the failure of the trial court to recall and consider evidence
that is crucial to a criminal defendant’s defense is a denial of the defendant’s due process.
People v. Mitchell, 152 Ill. 2d 274, 323 (1992); see also People v. Simon, 2011 IL App (1st)
091197, ¶ 91; People v. Carodine, 374 Ill. App. 3d 16, 28-29 (2007); People v. Morgan, 44 Ill.
App. 3d 730, 734 (1976) (conviction reversed where the trial court failed to recall defendant’s
witnesses); People v. Bowie, 36 Ill. App. 3d 177, 180 (1976) (conviction reversed where the
trial court failed to recall crucial evidence of the defense). A trial judge sitting as a trier of fact
must consider all the matters in the record before deciding the case. People v. Bowen, 241 Ill.
App. 3d 608, 624 (1993); Bowie, 36 Ill. App. 3d at 180. Where the record affirmatively shows
that the trial court failed to recall crucial defense evidence when entering judgment, the
defendant did not receive a fair trial. Simon, 2011 IL App (1st) 091197, ¶ 91; Bowen, 241 Ill.
App. 3d at 624; Bowie, 36 Ill. App. 3d at 180. Whether a defendant’s due process rights have
been denied is an issue of law and, thus, our review is de novo. People v. K.S., 387 Ill. App. 3d
570, 573 (2008). Under the de novo standard of review, this court owes no deference to the trial
court. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154 (2007).
¶ 76 While a question of law is decided de novo, a trial court’s credibility determinations are
entitled to great deference, and they will rarely be disturbed on appeal. People v.
Siguenza-Brito, 235 Ill. 2d 213, 224 (2009); Bowie, 36 Ill. App. 3d at 179. In a bench trial, it is
the job of the trial judge, sitting as the fact finder, to make determinations about witness
credibility. Siguenza-Brito, 235 Ill. 2d at 228; Bowie, 36 Ill. App. 3d at 179.
¶ 77 In the case at bar, the trial court made a credibility determination about the jailhouse
informant, finding that his testimony “must be viewed with extreme caution” and that the court
would use it merely as “corroborating [the] other evidence.” The trial court’s conclusion that
Worthem’s testimony must be viewed with suspicion is well supported by the record.
Worthem was a self-described jailhouse lawyer who had struck deals before in return for
information, and parts of his testimony contradicted the record. For example, in his videotaped
statement, Worthem mentioned that defendant told him that defendant hurt his hand when he
broke the window and that he was bleeding inside the glove. However, one of the State’s
experts testified that the blood originated from the outside of the glove and that this blood
belonged only to the victim. Thus, the trial court described the informant’s testimony only as
evidence that “support[s] Dr. Staub’s finding.” As the trial court itself observed, the only other
evidence was the DNA evidence.
¶ 78 As for the DNA evidence, the trial court could have made a credibility determination
between the dueling DNA experts, finding one more credible than the other. However, it did
not do so. In fact, the trial court found: “The defense refuted [Dr. Staub] through Dr. Reich.”
Instead, the trial court mistakenly recalled the defense expert as agreeing with the State expert
on the ultimate issue: that “certainly it was” defendant. Due to the trial court’s mistaken
recollection, there was hardly any credibility determination for it to resolve between the two
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testifying experts. Cf. Mitchell, 152 Ill. 2d at 323 (rejecting the State’s argument that the trial
court did not find a witness credible where the trial court never said that).
¶ 79 In sum, with respect to the standard of review, we will review de novo the legal question of
whether defendant’s due process rights were denied, while deferring to the trial court’s
credibility determination that the jailhouse informant’s testimony was merely corroborative.
¶ 80 II. Mistaken Recall of the Evidence
¶ 81 As noted above, in the case at bar, defendant relies primarily on People v. Mitchell, 152 Ill.
2d 274 (1992), and People v. Bowie, 36 Ill. App. 3d 177, 180 (1976). In Mitchell, our supreme
court stated: “We find the trial court’s failure to recall defendant’s testimony [is] a violation of
defendant’s due process rights and error.” Mitchell, 152 Ill. 2d at 321. In Bowie, this court held
that the defendant did not receive a fair trial because the trial judge did not remember or
consider the crux of the defense when entering judgment. Bowie, 36 Ill. App. 3d at 180. See
also People v. White, 183 Ill. App. 3d 838, 841 (1989) (“the trial judge erred in considering
facts not in evidence,” and “[g]iven that fact and the overall weight of the evidence, we cannot
find that the error was harmless and must therefore reverse the trial court’s decision”).
¶ 82 The error in Mitchell occurred at a pretrial suppression hearing rather than at trial. The
issue was whether the defendant was free to leave an interrogation at the police station. The
defendant testified that, prior to the interrogation, when he and the officers were standing
outside his home, he told the officers that he wanted to go back inside to dress in warmer
clothes. The defendant testified that the officers refused to let him go and “drag[ged]” him into
the police vehicle and that, after arriving at the police station, one of the officers told him:
“ ‘We [are] not going to let you go until we get what we want out of you.’ ” Mitchell, 152 Ill.
2d at 306. At the end of the suppression hearing, the trial court denied the defendant’s motion
to suppress his confession, stating: “There was no testimony that I recall that said the defendant
at any time said he felt he could not leave, or that he was asked–or that he asked whether he
could leave and denied that permission.” (Internal quotation marks omitted.) Mitchell, 152 Ill.
2d at 307.
¶ 83 In Mitchell, the State argued, first, “that the trial court did not base its findings solely on the
absence of such testimony.” Mitchell, 152 Ill. 2d at 323. Our supreme court rejected this
argument, stating: “the trial court clearly did not base its decision on all of the circumstances,
as it failed to recall the testimony most crucial to defendant’s argument.” Mitchell, 152 Ill. 2d
at 323.
¶ 84 The State argued, second, that the trial court simply did not find the defendant credible.
Mitchell, 152 Ill. 2d at 323. 7 Rejecting this second argument, the supreme court stated that the
trial court never “state[d] that defendant was not a credible witness.” Mitchell, 152 Ill. 2d at
323. The supreme court observed: “The State’s argument rests upon the fact that the [trial]
7
The supreme court in Mitchell also rejected defendant’s waiver argument, which we discuss below
in section IV of this opinion. Mitchell, 152 Ill. 2d at 324-26.
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court found against defendant. However, while the court found against defendant, it also failed
to recall the crux of defendant’s testimony in doing so.” Mitchell, 152 Ill. 2d at 323. 8
¶ 85 Similar to Mitchell, the trial court in the case at bar recalled the opposite of what was
stated. The trial court recalled the defense expert as saying that “certainly it was” defendant,
when the defense expert emphasized repeatedly and throughout his testimony that certainty
was not possible. As in Mitchell, the State argues here that the trial court did not base its verdict
solely on this error. Like our supreme court, we reject this argument, since “the trial court
clearly did not base its decision on all of the circumstances, as it failed to recall the testimony
most crucial to defendant’s argument.” Mitchell, 152 Ill. 2d at 323. As in Mitchell, the State
argues here that the trial court simply found the witness less credible. Like our supreme court,
we reject this argument, since the trial court never stated that the defense witness “was not a
credible witness” or that the State expert was more credible. Mitchell, 152 Ill. 2d at 323. In fact,
the trial court’s reliance on what it perceived to be the defense expert’s testimony showed that
the trial court did, in fact, find him to be a credible witness.
¶ 86 Like our supreme court did in Mitchell and for the same reasons, we find that the trial
court’s failure to recall crucial testimony from the only defense witness was a due process
violation.
¶ 87 Our conclusion is bolstered by our consideration of Bowie, in which this court held that the
defendant did not receive a fair trial because the trial judge did not recall the crux of the
defense case when entering judgment. Bowie, 36 Ill. App. 3d at 180.
¶ 88 Bowie involved a bench trial in which the defendant was accused of hitting a police officer.
Bowie, 36 Ill. App. 3d at 178-79. The main issue was who hit whom first. Bowie, 36 Ill. App.
3d at 179. On that issue, the defendant testified: “ ‘[the police officer] had a tight grip on my
arm and I told him that it wasn’t necessary, that I wasn’t going anywhere and he said, I don’t
tell him what to do, and he hit me up beside my head and I grabbed my head and blood started
rushing down and he hit me again.’ ” (Emphasis in original.) Bowie, 36 Ill. App. 3d at 180.
During closing argument, defense counsel stated that the defendant testified he was bleeding,
and the trial court interjected: “ ‘I didn’t hear that. I heard nothing about that the defendant
stating anything about that he was bleeding, strike that out.’ ” (Emphasis in original.) Bowie,
36 Ill. App. 3d at 180. This court held that the trial court’s statement constituted affirmative
evidence that it “did not remember or consider the crux of the defense when entering
judgment.” Bowie, 36 Ill. App. 3d at 180. As a result, we reversed and remanded for a new
trial. Bowie, 36 Ill. App. 3d at 180.
¶ 89 The facts of our case present an even stronger case for reversal than the facts of Bowie. In
Bowie, the mistakenly recalled evidence concerned whether the defendant was bleeding, which
was not the main issue in the case. As stated above, the main issue in Bowie was who hit whom
first. Whether the defendant hit the officer first, or the officer hit the defendant first, the Bowie
8
The Mitchell court held that, even if one reversed the outcome of the proceeding in which the error
occurred and suppressed the confession at trial, the other evidence at trial was “so overwhelming” as to
make the due process violation harmless. Mitchell, 152 Ill. 2d at 326. We discuss harmless error in the
next section of this opinion.
- 17 -
defendant could still have ended up bleeding. Thus, whether the defendant bled was neither the
main issue in the Bowie case nor a fact that would prove the main issue. However, the appellate
court still found that the trial court’s statement constituted affirmative evidence that it failed to
consider “the crux” of the defendant’s case, where the defendant’s testimony about bleeding
was part of the same sentence that the officer hit him first. Bowie, 36 Ill. App. 3d at 180. Also,
the appellate court found the trial court’s statement to be affirmative evidence that the court
failed to consider evidence “when entering judgment,” even though the statement occurred
during closing argument and not during the trial court’s statement of its findings and reasons
for its judgment. Bowie, 36 Ill. App. 3d at 180.
¶ 90 The facts of our case present an even stronger case for reversal than the facts of Bowie
because, first, the mistakenly recalled fact concerned the primary issue in the case: was it
“certainly” defendant who committed the crime? Second, the mistakenly recalled fact occurred
during the trial court’s ruling so we know that it was actually a part of its decision-making
process.
¶ 91 Thus, pursuant to Mitchell and Bowie, we find that a due process violation occurred, and
we proceed in the next section to determine whether this error was harmless.
¶ 92 III. Harmless Error
¶ 93 After finding a due process violation, an appellate court must still consider whether the
violation was harmless. Mitchell, 152 Ill. 2d at 326. Even due process violations are subject to
a harmless error review. Mitchell, 152 Ill. 2d at 326. However, we may affirm only if, after
considering all the other evidence, we can find that the error was harmless beyond a reasonable
doubt. White, 183 Ill. App. 3d at 841 (conviction must be reversed where the trial court’s error
in considering facts not in evidence was not harmless, in light of “the overall weight of the
evidence”). An error is harmless only if the State can demonstrate, beyond a reasonable doubt,
that the error did not contribute to the verdict. People v. Patterson, 217 Ill. 2d 407, 428 (2005)
(“The State bears the burden of proof.”). In the case at bar, the State has failed to demonstrate,
beyond a reasonable doubt, that the error did not contribute to the verdict.
¶ 94 As noted above, the only issue at trial was one of identification. There were no
eyewitnesses, and defendant was not arrested at the crime scene but, rather, was arrested three
years after the offense. No one testified that he had observed defendant in the neighborhood at
any time, either before or after the offense, and there was no statement by defendant to the
police.
¶ 95 The State’s identification evidence consisted solely of: (1) DNA evidence; and (2) the
testimony of a jailhouse informant. The trial court found that the informant’s testimony “must
be viewed with extreme caution” and that it was merely “corroborati[ve] [of the] other
evidence.” As stated above, this conclusion is well supported by the record, and we will not
disturb the trial court’s credibility determination.
¶ 96 The only other identification evidence was the DNA evidence obtained from a pair of
bloody gloves found in the victim’s home. Although the blood was solely from the victim, a
swab of the inside of the gloves revealed additional DNA material.
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¶ 97 All the experts in this case agreed that the DNA material at issue was a mixture of DNA
from at least three individuals, maybe more. The defense expert testified the mixture revealed
six possible DNA profiles. Thus, at least three people had worn those gloves, and both the
State and defense experts agreed that, with a mixture, the order of contributors cannot be
determined. All three laboratories engaged by the State in this case–the Illinois State Police,
Bode and Cellmark–disagreed on how to interpret the results of the mixture. Although
acknowledging his disagreement with the other laboratories, Dr. Staub of Cellmark testified
that he was nonetheless able to identify a major contributor that matched defendant’s profile.
¶ 98 While the trial court could have resolved the dispute between Dr. Staub and Dr. Reich, the
defense expert, by finding Dr. Staub more credible, the court was not so persuaded. Instead, the
trial court found defendant guilty by mistakenly recalling that Dr. Reich agreed with Dr. Staub
on the most important question before the court: “certainly it was” defendant. We cannot find
that a mistake concerning the most important question facing the trial court was harmless
beyond a reasonable doubt.
¶ 99 IV. State’s and Dissent’s Arguments
¶ 100 As a final matter, we address the State’s main arguments: that this is really a claim of
insufficient evidence and that defendant waived the issue.
¶ 101 First, the State treats defendant’s claim of mistaken recall as merely a claim of insufficient
evidence, although they are very different claims, subject to completely different standards of
review.
¶ 102 When reviewing a claim of insufficient evidence in a bench trial, we presume that the trial
court accurately recalled and considered all the evidence. Simon, 2011 IL App (1st) 091197,
¶ 91 (we presume, in a bench trial, that the trial court “considered only competent evidence in
reaching its verdict”); Mitchell, 152 Ill. 2d at 323 (the trial court must consider “all of the
circumstances”); Bowie, 36 Ill. App. 3d at 180 (“the trial judge must consider all the matters in
the record before deciding the case”). As a result, its determination is entitled to a great deal of
deference on appeal. We will not reverse its determination unless, after viewing the evidence
in the light most favorable to the State, we find that no rational trier of fact could have reached
the same conclusion as the trial court. People v. Baskerville, 2012 IL 111056, ¶ 31.
¶ 103 By contrast, with a claim of mistaken recall, the record contains affirmative evidence that
the trial court made a mistake in its decision-making process, thereby undercutting the
presumption that serves as the very foundation for the deferential standard of review in an
insufficient evidence claim–that the trial court accurately recalled and considered all the
evidence. Simon, 2011 IL App (1st) 091197, ¶ 91 (where a record contains affirmative
evidence that the trial court did not accurately recall or consider crucial defense evidence when
deciding judgment, defendant did not receive a fair trial); Bowen, 241 Ill. App. 3d at 624
(“where the record affirmatively shows the trial judge did not consider the crux of the defense
when entering judgment, the defendant did not receive a fair trial”); Bowie, 36 Ill. App. 3d at
180 (same).
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¶ 104 As a result, the claim of mistake must be reviewed under a completely different standard of
review. Instead of the highly deferential standard applied to a trial court’s ruling in an
insufficient evidence claim, we review de novo the question of whether the record reveals that
the trial court made an affirmative mistake in its decision-making process. Cf. People v. K.S.,
387 Ill. App. 3d 570, 573 (2008) (although “[a]trial court’s decision on whether to limit
discovery is reviewed for an abuse of discretion,” we “review[ ] de novo whether a defendant
was denied due process and, if so, whether that denial was prejudicial”).
¶ 105 Thus, we are not persuaded by the State’s treatment of defendant’s claim as merely a claim
of insufficient evidence.
¶ 106 Second, the State argues that defendant waived his claim by failing to object at trial and to
raise it in a posttrial motion. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007) (generally, to
preserve error for review on appeal, a defendant must both object at trial and in a posttrial
motion). Even if we accepted the State’s waiver argument, it would not change our decision,
because the error rises to the level of plain error. Piatkowski, 225 Ill. 2d at 565 (a defendant
must show a clear error and that the error alone severely threatened to tip the scales of justice
against him); People v. White, 2011 IL 109689, ¶ 133 (a defendant must show that the verdict
may have resulted from the error and not the evidence). As we explained above, the evidence
in the case at bar was not overwhelming, and this error could have been the piece of evidence
that tipped the scales of justice against defendant.
¶ 107 However, we are not persuaded by the State’s waiver argument for the same reasons that
our supreme court rejected the identical argument in Mitchell. As stated above, in Mitchell, the
trial court denied the defendant’s suppression motion stating that it did not recall any testimony
by the defendant that he was not free to leave, when the defendant had, in fact, testified that the
police had dragged him to a police vehicle and told him at the police station that they were not
going to let him go until they had obtained what they wanted. Mitchell, 152 Ill. 2d at 306-07.
On appeal, the State argued that the defendant waived the issue when he failed to object during
the trial court’s ruling. Mitchell, 152 Ill. 2d at 306-07. The supreme court rejected this
argument, stating “a defendant need not interrupt a trial court to correct a trial court’s
misapprehension, after defense counsel has just argued the same to the court.” Mitchell, 152
Ill. 2d at 324. Similarly, in the case at bar, defense counsel had just argued, through Dr. Reich’s
testimony, that the DNA evidence was inconclusive and thus he was not required to interrupt
the trial court to point out that the court was wrong. As a result, we do not find that the defense
waived this claim by not objecting during trial.
¶ 108 The defense also did not waive this claim when it stated in its posttrial motion simply that
“defendant was denied due process of law.” 9 Similarly, in Mitchell, the defendant’s posttrial
motion contained only a general objection to the trial court’s failure to suppress evidence,
without specifying the trial court’s mistaken recall of the evidence. Mitchell, 152 Ill. 2d at 325.
Nonetheless, the supreme court rejected the State’s claim of waiver, stating “[t]he trial court’s
9
In its brief to this court, the State claims that the defense conceded in its brief that it failed to object
both at trial and in a posttrial motion. In fact, the defense made this concession only with respect to
trial.
- 20 -
failure to recall crucial evidence is of the type of constitutional error which may be later raised
in a post-conviction hearing, and we thus do not find the matter waived” by the defendant’s
failure to raise it with specificity in his posttrial motion. Mitchell, 152 Ill. 2d at 325. Thus, the
defense did not waive this claim by not objecting during the trial court’s ruling or with greater
specificity in its posttrial motion.
¶ 109 The dissent contains a number of factual inaccuracies. However, we will address here only
the most salient ones.
¶ 110 First, the dissent stated that, “although [Dr. Reich’s] report criticized the ISP concerning
the 11, 12 and 13 alleles at the D-13 locus for not conducting a search of the database that
included all of the alleles, he acknowledged [on cross-examination] at trial that the ISP’s
search of 11, 12 and 13 actually did include all the alleles.” Infra ¶ 130. That statement is
factually incorrect. The dissent is confusing “alleles” with “profiles.”
¶ 111 On direct examination, Dr. Reich explained that the ISP had found three peaks or alleles at
the D-13 locus and had not been able to resolve which ones belonged to a major or minor
contributor. When it is not possible to resolve a mixture, such as this one, with three alleles at
one locus, there are at least six possible profiles for a major contributor at that locus: (1) 11, 12;
(2) 11, 13; (3) 11, 11; (4) 12, 13; (5) 12, 12; and (6) 13, 13. On cross-examination, the
prosecutor read from the portion of Dr. Reich’s report in which Dr. Reich had criticized the
Illinois State Police laboratory for not running a database search for all six profiles possible at
that location. While Dr. Reich stated that all three alleles appeared on the Illinois State Police’s
report, he observed on cross-examination that the report did not indicate that a “wild card
search” had been done at that location for all six possible profiles. Thus, the dissent’s statement
that he had acknowledged a search had been done is factually inaccurate.
¶ 112 Second, the dissent states that “Dr. Reich identified the alleles of defendant that were
present at each one of the 13 separate loci.” Infra ¶ 131. That statement is factually incorrect.
Alleles come in pairs. For defendant’s alleles to be present, the pair would have to be present at
each location, as part of a particular contributor. In other words, if defendant’s alleles at a
location are 9 and 11, and there is a 9 from a major contributor and an 11 from a minor
contributor at the same location, then those alleles cannot possibly come from defendant. One
cannot take a 9 from one person and an 11 from another person to make a match, because
defendant is only one person. Alleles from two different people can never be a match and to
indicate that it can is patently incorrect.
¶ 113 What Dr. Reich was asked to do on cross-examination was to read numbers off a chart, as
though it was an eye exam. He was asked to read the numbers, without any reference to pairs of
alleles or whether a particular number belonged to a major or minor contributor. For example,
the following exchange occurred during cross-examination:
“ASA: What about at T-POX, what is the defendant’s alleles?
DR. REICH: Nine and 11.
ASA: And do you see 9 and 11 in the Bode chart?
DR. REICH: There is 9 and 11 in the Bode chart.”
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However, on direct examination, Dr. Reich explained that Bode concluded that only the 9 peak
was from the major contributor, while the 8, 10 and 11 peaks were from minor contributors.
Thus, for defendant’s alleles to be present at the T-POX location, he would have to be two
people–taking the 9 from the major contributor and the 11 from a minor contributor! Dr. Reich
did not testify to that and, as a result, the dissent’s statement that Dr. Reich identified “the
alleles of defendant” as “present at each one of the 13 separate loci” is factually inaccurate.
¶ 114 It is significant that, in the portion of the testimony quoted by the dissent, the prosecutor
asks Dr. Reich if “defendant’s alleles” are present, and he answers only that “the alleles” are
present, refusing to adopt the prosecutor’s characterization of the alleles as “defendant’s.” On
redirect examination, defense counsel clarified that Dr. Reich’s statements on
cross-examination were made without reference to major and minor contributors which could
change the interpretation.
¶ 115 Third, the dissent emphasizes the “omission” in Dr. Reich’s report, in that the report,
prepared two years prior to trial, did not discuss the T-POX location. However, when asked
about it on cross-examination, Dr. Reich testified that it was not in “this” two-year old report.
When asked about it again, Dr. Reich reiterated that it was “not corrected” in the two-year old
report, and the prosecutor failed to ask a follow-up question about whether it had since been
“corrected” in another document. The lack of a follow-up question possibly explains why this
alleged omission had no effect on the trial court’s findings.
¶ 116 Fourth, the dissent’s characterization of the defense’s closing argument leads to the
impression that the defense conceded the DNA issue. However, the defense began its argument
with the observation that the DNA evidence was “inconclusive [as to] who was the major
contributor.” The defense then made arguments in the alternative that, even if one assumed that
defendant had worn the glove, there was a mixture of three people and there was no way of
knowing when he wore it or whether he was the last person. While there were other
inaccuracies, we took the time here to address only the most significant.
¶ 117 V. Double Jeopardy
¶ 118 Since we are remanding this case for a new trial, we must consider whether another trial
would violate the double jeopardy clause. People v. Ward, 2011 IL 108690, ¶ 50. If the totality
of the evidence presented at defendant’s first trial was sufficient for a rational trier of fact to
find that the essential elements of the crime were proved beyond a reasonable doubt, then there
is no double jeopardy violation on retrial. Ward, 2011 IL 108690, ¶ 50. As discussed above,
the trial court was not so persuaded by the State’s expert as to choose between the two experts
and find the defense expert less credible. However, the State’s evidence, if believed, was
sufficient to establish defendant’s guilt beyond a reasonable doubt. Ward, 2011 IL 108690,
¶ 50. Thus, there is no double jeopardy impediment to retrial here. Ward, 2011 IL 108690,
¶ 50.
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¶ 119 CONCLUSION
¶ 120 For the foregoing reasons, we find that defendant’s due process rights were violated and
that the error was not harmless beyond a reasonable doubt. Thus, we must reverse and remand
for a new trial.
¶ 121 Reversed and remanded.
¶ 122 JUSTICE LAMPKIN, dissenting.
¶ 123 I respectfully dissent and would affirm defendant’s convictions. I do not agree with the
majority’s conclusion that the trial court based its finding of guilt on a mistaken recollection of
Dr. Reich’s testimony. Defendant has argued on appeal that the trial court incorrectly stated
that Dr. Reich conceded that defendant’s DNA was on the gloves and disputed only whether
defendant was a major or minor contributor. Defendant asserts that Dr. Reich disputed whether
the DNA evidence was sufficient to link defendant to the gloves at all. A review of the record
establishes that the trial court’s recollection of all the evidence, including Dr. Reich’s
testimony, was completely accurate.
¶ 124 Defendant acknowledges that he failed to object to the trial court’s recollection of the
testimony. Moreover, the record establishes that defendant failed to raise this specific issue in
his posttrial motion. Defendant argues, however, that the rule of forfeiture is relaxed in this
instance because an objection by the defense “would have fallen on deaf ears” and the defense
“was not required to interrupt the trial court to repeat arguments that had just been made in
closing.” I do not agree with defendant’s characterization of the defense’s closing argument.
According to the record, the defense did not argue that defendant’s DNA profile was not found
on the gloves but, rather, that at least two other people also wore the gloves and no evidence
established beyond a reasonable doubt that defendant was the last person to wear the gloves
during the murder. Moreover, at the hearing on defendant’s motion for a new trial, the defense
argued that the DNA mixture found in the gloves included two other people’s DNA besides
defendant’s DNA and thus was not sufficient to prove his guilt of the crime beyond a
reasonable doubt. Nevertheless, whether defendant’s “mistaken recollection” argument is
considered on the merits or under a plain error analysis, the first step is to determine whether
error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). For the reasons that follow, I
would find no error here to excuse defendant’s forfeiture of this issue.
¶ 125 A trial court’s failure to recall and consider testimony crucial to a defendant’s defense may
result in a denial of the defendant’s due process rights. People v. Mitchell, 152 Ill. 2d 274, 323
(1992). In a bench trial, the trial court is presumed to have considered only competent evidence
in reaching its verdict, unless that presumption is rebutted by affirmative evidence in the
record. People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977). Where the record affirmatively
indicates that the trial court did not remember or consider the crux of the defense when
entering judgment, the defendant did not receive a fair trial. People v. Bowie, 36 Ill. App. 3d
177, 180 (1976). In a bench trial, the trial court is not required to mention everything that
contributed to its findings. People v. Curtis, 296 Ill. App. 3d 991, 1000 (1998). A reviewing
court may take into account any facts in the record which support an affirmance of the trial
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court’s findings, even where the trial court does not explicitly state that it relied on those facts.
Id.¶ 126 Before conducting an analysis of this issue, an accurate summary of the relevant testimony
and court proceedings is necessary. According to the record, Dr. Staub, the State’s witness,
testified that he deduced a major profile from the DNA mixture sample that had come from the
gloves. At least three unknown individuals contributed to that DNA mixture. When Dr. Staub
compared the reference standard that had come from defendant’s buccal swab with the profile
of the DNA mixture found in the gloves, Dr. Staub concluded that defendant’s reference
standard matched the major profile deduced from the DNA mixture. He determined that the
statistical likelihood of the match was 1 in 196.6 quadrillion. Dr. Staub’s conclusions agreed
with the conclusions by Bode Laboratories except for one difference. Specifically, at the
T-POX site, Bode called the 9 marker as a major contributor, but Dr. Staub called the 9 and 11
markers as a major contributor because it was very clear that the major profile was a very
significant portion of the entire DNA in that sample and if it was not included, then the analysis
would attribute too much of the rest of the DNA to the minor contributors. Moreover, the
Illinois State Police (ISP) deduced a profile for search purposes, so at the D-13 locus, it had an
additional allele in comparison to Dr. Staub’s deduced profile. Concerning electropherograms
and DNA mixture interpretations, high peaks at various loci indicated a major profile whereas
other peaks indicated minor contributors. However, sometimes a minor contributor could share
an allele with the major contributor and that potentially could make one of the taller peaks go
even higher.
¶ 127 Dr. Staub was aware of a study that determined there could be coincidental matches in
DNA database searches of up to 9, 10 or even 11 locations of profiles between individuals, but
that study used a very different standard of methodology than a forensic database search,
which finds a profile from a piece of evidence and compares it to the database. A forensic
database search looks for one profile in a database, not any profile. When asked if he was
aware that there could be coincidental matches between a deduced profile and an individual
profile at 9, 10, 11 or more locations, Dr. Staub responded:
“Well, you can actually determine the exact probability of that. In this particular
case when there are 13 markers, the likelihood of a random match, is one in seven
quadrillions. So, basically, for all intent and purposes, it means you won’t find a match
unless you actually have the same person.”
Dr. Staub testified that when one looks at the 13 separate and distinct loci that are used to
determine a DNA profile, the standard from defendant appeared at each one of the 13 loci that
Dr. Staub had developed in his major profile. At every one of the 13 loci that Dr. Staub
developed in his major profile, the defendant’s DNA was an exact match.
¶ 128 For the defense, Dr. Reich testified that a full profile of 13 loci is sufficient under the
scientific standard to identify one person from all others. However, DNA mixture
interpretation can be complicated because multiple contributors can share common alleles at a
particular locus. Dr. Reich stated that because the D-13 and T-POX loci here had at least two
and maybe three possible interpretations, there was some ambiguity in the conclusions reached
in the interpretations of Bode, the ISP, and Dr. Staub concerning the components of the major
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profile. If a profile of 13 loci has a number of alternate results, then an alteration of even 1
allele out of the whole 13 would exclude that individual from being a contributor. Dr. Reich
stated that the possibility of nonrelated individuals having DNA profiles that can match at up to
9, 10, or sometimes 11 loci casts further doubt on the conclusions reached in the interpretations
of Bode, ISP and Dr. Staub. Dr. Reich asserted that the alternate interpretations by Bode, ISP
and Dr. Staub concerning the D-13 and T-POX locations meant there was a possibility of there
being alternate profiles that would match the major profile. Because there were at least three
contributors to the mixed DNA sample found in the gloves, then at least three individuals left
either body fluid or cells or both behind in the gloves. Defendant, however, could not be
excluded from the DNA profile from the swab taken from the inside of the gloves.
¶ 129 Concerning the interpretations of the electropherogram by Bode, the ISP, and Dr. Staub,
Dr. Reich noted that the ISP at the D-13 location did not distinguish 12 as a minor contributor
and thus did not resolve the mixture at that location. Consequently, according to Dr. Reich,
there were six possible profiles as the contributors, taking into account the opportunities for
both homozygous and heterozygous results. Moreover, it was impossible to make any
determination concerning the timing or order that each contributor made to the mixed DNA
sample.
¶ 130 On cross-examination, Dr. Reich acknowledged that his report failed to mention the
T-POX location. Furthermore, although his report criticized the ISP concerning the 11, 12 and
13 alleles at the D-13 locus for not conducting a search of the database that included all of the
alleles, he acknowledged at trial that the ISP’s search of 11, 12 and 13 actually did include all
the alleles. He acknowledged that, aside from the D-13 and T-POX loci, he agreed with Dr.
Staub’s interpretation for the 11 remaining loci.
¶ 131 Initially, when the prosecutor asked if Dr. Reich would “agree with the statement that
[defendant’s] alleles appear at each one of the 13 separate loci that [were] tested,” Dr. Reich
responded that he “would say it a little differently.” Consequently, the prosecutor questioned
Dr. Reich concerning each one of the 13 sites, and Dr. Reich identified the alleles of defendant
that were present at each one of the 13 separate loci. When the prosecutor again asked if
“defendant’s alleles are present at each one [of] the 13 loci,” Dr. Reich responded:
“The scientific response is he is not excluded. That is the correct approach–***
That is the correct wording.”
The prosecutor continued:
“Q. Doctor, listen to my question. It’s [sic] calls for a simple look at each one of the
charts. As we went through it, each one of the defendant’s alleles are present in the
Bode chart, correct?
A. Each one of the numbers is present on both charts.
Q. The numbers came from the electropherogram from the defendant’s [DNA]
standard, correct?
A. Correct.
Q. So, the defendant’s alleles are on each one of the 13 loci on the [DNA] profile
determined by Bode, coming from the swabs of the gloves, correct?
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A. The alleles are present, that is correct.
Q. Okay. And each of the 13 loci, correct?
A. We have gone through them one by one and they are, correct.” (Emphases
added.)
¶ 132 In the State’s rebuttal case, Dr. Staub countered Dr. Reich’s testimony that questioned Dr.
Staub’s interpretation that called the 11 and 13 markers at the D-13 location as the major
profile. Specifically, Dr. Staub explained that Dr. Reich was incorrect in speculating that the
major contributor could be a homozygous 11, 12 or 13. In adding up peak heights at each locus,
Dr. Staub determined that the major contributor was 75% to 85% of the total DNA.
Consequently, it would not make sense for the major contributor to be homozygous at any of
the markers because then he would be contributing too low of a percentage to the total DNA.
The same analysis held true for the T-POX location, where Dr. Staub called the 9 and 11
markers as the major profile, which was 86% of the total DNA. Bode’s conclusion for D-13
was the same as Dr. Staub’s. Moreover, ISP chose not to resolve the mixture at D-13 because it
was searching the database for a profile and thus chose to be conservative and use the 11, 12
and 13 markers so ISP would not miss it. ISP’s purpose to search for an individual in the
database was completely different from Dr. Staub’s purpose to try to identify someone by
comparing defendant’s known standard with the unknown standard.
¶ 133 According to the record, the experts testified on the same day and were the last witnesses to
testify before the hearing concluded on a Friday. Instead of proceeding to closing argument,
the trial court continued the matter to Monday afternoon so the trial court could review all its
notes that were spread over a number of days.
¶ 134 At closing argument, the defense argued, inter alia, that the State was relying on sympathy
for the victim to win this case and ignoring and avoiding the substandard circumstantial
evidence that failed to connect defendant to this offense. The defense argued that the State was
“hinging [its] case on the fact that [defendant’s] DNA may possibly be connected to a piece of
evidence that cannot be excluded, from an inside glove that was found inside of a house where
[the victim] was found dead.”
¶ 135 Concerning the DNA evidence, the defense argued that the experts agreed that the DNA
taken from the glove was a mixture of at least three sources, so at least three people wore that
glove at some point. The defense argued that the DNA evidence was inconclusive as to who
was the major contributor at the D-13 and T-POX loci because the different labs that tested the
DNA had different conclusions and it can be very complicated to determine who was the major
or minor contributor to a DNA mixture. “[W]hile there may be doubts as to whether or not
[defendant] is a major contributor at the D-13 and T-POX locations, there is no definitive
evidence that either the major contributor of DNA or the minor contributor of that DNA
committed that crime.” Even if a person was determined to be a major contributor, it did not
mean he owned the gloves or was the one that stabbed the victim because it was scientifically
impossible to determine whether the major DNA contributor was the last person to have worn
the gloves.
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¶ 136 The defense argued that the State ignored all other leads and evidence once defendant was
established as a potential DNA contributor to the mixture found in the gloves. No reliable
evidence connected defendant to the crime because, although evidence showed that defendant
and other people wore the gloves, there was no explanation as to how the gloves got in the
victim’s house, how defendant brought the gloves into the house, when defendant had the
gloves on, or who else had the gloves on. “The only thing that you could plausibly take from
this evidence, and it’s still not proof beyond a reasonable doubt, is that at some point in his
lifetime, [defendant] touched that glove.”
¶ 137 The prosecutor argued, inter alia, that there was no question that the major profile in the
DNA mixture found in the gloves was defendant’s DNA. Although the defense had argued that
defendant merely could not be excluded as a contributor, the evidence established that
defendant’s DNA was present at every one of the 13 loci tested in CODIS. Dr. Staub testified
that defendant was the donor of the major profile in the gloves and that match could occur only
once in 196.6 quadrillion. The prosecutor argued that Dr. Staub’s testimony was credible and
was not impeached. Dr. Reich, in contrast was not credible and was impeached by the
omissions in his report, which failed to discuss the T-POX site and inaccurately claimed that
the ISP had failed to conduct a database search using all the alleles present at the D-13 site.
¶ 138 The prosecutor recounted how, when he started to cross-examine Dr. Reich about the
profile that was developed and the comparison made by Dr. Staub, Dr. Reich “refused to even
acknowledge that the defendant’s DNA is present at all 13 loci.” Notably, the defense objected
on the ground that the argument misstated the evidence and the court sustained that objection.
The prosecutor then recounted how he had to go through each of the 13 loci and make Dr.
Reich read the markers listed in the Bode chart and the chart of defendant’s DNA standard.
“Clearly, Dr. Reich wanted to fight on each and every level until, finally, I had to go
through and ask him at each site did he see it at one si[t]e–it was almost like Ses[a]me
Street. What do you see here and what did you see there.”
¶ 139 The trial court’s oral ruling finding defendant guilty spans about nine pages in the
transcript. The trial court recounted the evidence, which included the cut telephone wires, the
broken glass of the basement window, the fingerprint standards recovered from the PVC pipe
and washing machine, and the pattern on the prints that matched the rubber-grip dot pattern on
the gloves that were recovered at the scene and stained with the victim’s blood. The trial court
stated that at least three people contributed to the DNA evidence recovered from inside the
gloves. Dr. Staub testified that the profile of the major contributor of the DNA, above all other
individuals who at some point may have worn those gloves, unquestionably matched
defendant. Dr. Reich was called to refute Dr. Staub, but after a “laborious” cross-examination,
“[Dr. Reich had] to indicate that certainly it was still the defendant, who through every
standard taken, was one of the individuals whose DNA was on those gloves, though he
disputes whether or not [defendant] was a major contributor.
The Court looks at the fact that it was only the defendant who was testified to as
being the one who left his DNA standards throughout every portion testified to and
there’s no question in this Court’s mind that the defendant’s DNA was within those
gloves.
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There is no question by the Court that he was a contributor of DNA to those gloves.
Doctor Staub did testify that he was a major contributor, by the evidence that I
have.”
¶ 140 Furthermore, the trial court concluded that the testimony of Worthem, the State’s jailhouse
witness, supported Dr. Staub’s finding. The court stated, “in this case it certainly does support
Dr. Staub’s finding, that evidence which the Court looks at is the testimony of the State’s
jailhouse witness.” The court went on to note that, although Worthem’s testimony had to be
viewed with extreme caution due to potential bias, his testimony coincided with the evidence
presented and included information that he could only have received from defendant, such as
defendant’s entry into the victim’s home, leaving his gloves behind at the scene, the type of
property taken from the victim, and the victim’s injuries. Those facts,
“because they are so similar to other evidence here, they become more than just
coincidences and they come to a point where the Court has to look at them as they are
corroborating other evidence and find, in fact, that certainly there is only one person
who this information could have come from, and that is the defendant.
***
The Court has viewed all facts here, looked at any other hypothesis of why this
occurred and how it occurred and I am convinced beyond a reasonable doubt that [it]
was the defendant who perpetrated an[d] completed these crimes and killed the victim
and, therefore, as to all charges, I find the defendant guilty.”
¶ 141 The trial court’s comments did not demonstrate an erroneous recollection of the evidence,
but rather, reflected the court’s observation concerning Dr. Reich’s attempt to cast doubt on
Dr. Staub’s interpretations at the D-13 and T-POX loci by suggesting that at least two other
interpretations were possible at those loci. Specifically, the trial court observed that, after a
laborious cross-examination where the prosecutor took Dr. Reich through a series of questions
concerning each of the 13 loci, Dr. Reich did finally acknowledge that defendant’s alleles were
present on each one of the 13 loci on the DNA profile taken from the swab of the gloves. The
trial court correctly observed that, although Dr. Reich asserted that his alternative possible
interpretations at the D-13 and T-POX loci introduced some ambiguity as to what the major
profile was, Dr. Reich had conceded that a full profile of 13 loci was sufficient under scientific
standards to identify an individual as a match.
¶ 142 The record here does not affirmatively demonstrate that the trial court incorrectly recalled
Dr. Reich’s testimony. Dr. Reich testified right after Dr. Staub on the last day of the hearing,
which occurred on a Friday, and the trial court scheduled closing argument for the following
Monday afternoon in order to review all the evidence before ruling. Thus, there is affirmative
evidence that the trial court reviewed the testimony at issue immediately prior to making its
ruling. Moreover, during closing argument, when the State argued that Dr. Reich “refused to
even acknowledge that the defendant’s DNA is present at all 13 loci,” the trial court sustained
defendant’s objection on the ground that the argument misstated the evidence.
¶ 143 Additionally, the trial court’s statements were not inconsistent with Dr. Reich’s testimony
and the other evidence presented. Defendant takes issue with the trial court’s statement that Dr.
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Reich had to acknowledge that defendant was one of the individuals whose DNA was on the
gloves. Although the trial court did not use the same words used by Dr. Reich, defendant
cannot credibly dispute that Dr. Reich conceded, during cross-examination, that defendant’s
alleles were present at all 13 loci of the DNA profile taken from the gloves. In addition, Dr.
Staub refuted Dr. Reich’s testimony that tried to cast doubt on Dr. Staub’s conclusions
concerning the D-13 and T-POX loci. Specifically, Dr. Staub explained how the peak heights
determined the percentage range of DNA contributed by the major profile and ultimately
refuted Dr. Reich’s speculations about a homozygous contributor. Dr. Staub also explained
that the ISP’s decision not to resolve the mixture at D-13 was due to the fact that the ISP was
searching the database for a profile and did not cast doubt on Dr. Staub’s and Bode’s consistent
conclusions concerning D-13.
¶ 144 I disagree with the majority’s assumption that the trial court did not find Dr. Staub’s
testimony more credible than Dr. Reich’s testimony. The record established that Dr. Reich’s
testimony concerning the D-13 and T-POX loci was impeached by omissions in his report.
Moreover, where the trial court accurately summarized the evidence and stated that there was
“no question in this Court’s mind that the defendant’s DNA was within those gloves,” the
majority’s assumption that the trial court found Dr. Reich just as credible as Dr. Staub is not
reasonable. Contrary to the law, the majority would penalize trial courts that do not articulate
findings in accordance with a particular word choice that is to the majority’s liking. See Curtis,
296 Ill. App. 3d at 1000 (in a bench trial, the trial court is not required to mention everything
that contributed to its findings). Even though the trial judge did not utter the words: “I find Dr.
Staub’s testimony credible and Dr. Reich’s testimony not credible,” there is no doubt, based on
the judge’s statements in his ruling, that the judge found credible Dr. Staub’s conclusion that
defendant was a 13-loci match to the majority profile recovered from the gloves, and found not
credible Dr. Reich’s attempts to cast doubt on that conclusion.
¶ 145 I also disagree with the majority’s attempt to minimize the weight the trial court accorded
Worthem’s testimony. The trial court noted that Worthem’s testimony had to be considered
with caution, but the trial court ultimately found that Worthem’s testimony contained certain
facts of the crime that corroborated Dr. Staub’s findings and Worthem’s conversations with
defendant were the only likely source of Worthem’s knowledge. When considered in context,
it is apparent that the trial court neither misstated nor misrecollected Dr. Reich’s testimony or
any of the evidence presented by the parties.
¶ 146 Defendant further argues that the trial court’s incorrect recollection goes to the crux of the
theory of the defense at the trial court level. I disagree. According to the record, during closing
argument, the defense no longer disputed the fact that the testimony of both Drs. Staub and
Reich had established that defendant’s alleles were found at 13 loci of the profile taken from
the gloves. Rather, the defense argued that, even if the court was not convinced by Dr. Reich’s
assertions concerning ambiguity at the D-13 and T-POX loci, defendant still was not
connected to the crime scene because at least three individuals contributed to the DNA mixture
recovered from the gloves at the crime scene and no evidence established that defendant was
the last person to have worn those gloves before they were abandoned at the crime scene.
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Defendant’s argument on appeal is not entirely consistent with the theory he argued before the
trial court, and he cannot claim error on appeal by arguing an alternate and inconsistent theory.
¶ 147 I cannot find that the trial court improperly recalled Dr. Reich’s testimony. Moreover, there
was other testimony that supported the trial court’s verdict. No error occurred here, and I
would affirm the trial court’s decision.
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