People v. Barner

2015 IL 116949
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 116949)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN BARNER,
Appellant.
Opinion filed April 16, 2015.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke
concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Defendant John Barner was convicted of two counts of aggravated criminal
sexual assault (720 ILCS 5/12-14(a)(1) (West 1998)) following a jury trial in the
circuit court of Cook County and sentenced to natural life in prison. His convictions
and sentence were affirmed on appeal. People v. Barner, No. 1-06-3738 (2009)
(unpublished order under Supreme Court Rule 23). Following defendant’s initial
appeal to this court, we vacated the appellate court’s judgment and remanded the
cause to that court for reconsideration in light of People v. Williams, 238 Ill. 2d 125
(2010). People v. Barner, No. 109320 (Ill. Sept. 29, 2010) (supervisory order). The
appellate court again affirmed defendant’s convictions and sentence. People v.
Barner, No. 1-06-3738 (2011) (unpublished order under Supreme Court Rule 23).
That decision was then vacated pursuant to a new supervisory order from this court
to reconsider in light of People v. Leach, 2012 IL 111534. People v. Barner, No.
112094 (Ill. Jan. 30, 2013) (supervisory order). After reconsideration, the appellate
court once again affirmed. 2013 IL App (1st) 063738-U. This court then allowed
defendant’s petition for leave to appeal under Supreme Court Rule 315. (Ill. S. Ct.
R. 315 (eff. July 1, 2013)).
¶2 At issue is whether defendant’s right to confrontation under the sixth
amendment of the United States Constitution (U.S. Const., amend. VI), as held in
Crawford v. Washington, 541 U.S. 36 (2004), and its progeny, was violated when
three State witnesses were allowed to testify concerning the DNA laboratory work
and conclusions of nontestifying scientists.
¶3 For the reasons that follow, we affirm the judgment of the appellate court.
¶4 BACKGROUND
¶5 On July 14, 2002, defendant was arrested and charged by criminal complaint
with the aggravated criminal sexual assault of F.M. The criminal conduct at issue
occurred on the evening of March 13, 1999, and continued until the next morning.
¶6 Prior to defendant’s trial in November 2006, the State filed motions for leave to
present forensic DNA evidence against defendant through the testimony of three
experts: Greg DiDomenic, Jennifer Reynolds, and Edgardo Jove. The State
recognized that some of the laboratory analysis in this case was completed by
nontestifying scientists working at the Illinois State Police (ISP) crime laboratory
and Orchid-Cellmark (Cellmark), a private laboratory located in Maryland.
Nevertheless, the State asserted that it was permissible for these three witnesses to
testify to the technical review each did of the work completed by the nontestifying
DNA analysts.
¶7 In response, defendant claimed that the analysts who completed the actual DNA
laboratory work were required to testify concerning their analysis. According to
defendant, any admission into evidence of the results of their work through the
testimony of others would violate his constitutional right to confrontation. After a
hearing, the trial court concluded that the testimony of the expert witnesses would
not contravene Crawford and allowed the State’s motions. The trial court held that
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the witnesses could testify to their review, analysis, and opinion regarding the work
they had supervised relating to the underlying DNA work of the nontestifying
scientists.
¶8 At trial, F.M. testified that on March 13, 1999, at approximately 8 p.m., she was
walking from her sister Brenda’s home on the south side of Chicago to another
sister’s home when she stopped to watch a young “prostitute girl” who was
smoking drugs in the street and taking her clothes off. After approximately 30 to 40
minutes, F.M. heard movement behind her. Defendant grabbed her by the neck and
dragged her toward a nearby abandoned building. As he pulled her into the
building, F.M. grabbed a banister on the porch and defendant told her “ ‘[l]et go
[of] the porch, bitch. Bitch, I’m going to break your neck.’ ” Defendant
subsequently dragged her through the dark building, up a flight of stairs, then up
some more stairs, pushed her into a room, and placed a couch in front of the door.
¶9 F.M. further testified that after they entered the room, defendant ordered her to
remove her clothes and to sit on a mattress on the floor. At first she refused, but
ultimately obeyed. F.M. testified that defendant repeatedly forced her to engage in
oral and vaginal intercourse until morning. She testified that they had vaginal
intercourse about four times and that she was forced to perform oral sex on him
twice. She further testified that he forced her to have vaginal intercourse one more
time in the morning. Defendant then led her out of the building and let her go. As he
was helping her out of a window, she saw defendant’s face from a couple of inches
away. After leaving defendant, F.M. ran to her sister’s house and was taken to
Provident Hospital for treatment. At the hospital, a doctor swabbed her mouth and
vagina and police took her underwear, bra, T-shirt, and long underwear.
¶ 10 On May 30, 2002, more than three years after the assault, the police showed
F.M. a photo array at her house and she made a tentative identification of
defendant. On July 13, 2002, she viewed a lineup at the police station and identified
defendant as her attacker after each lineup participant stated the phrase, “Bitch, if
you don’t let go, I’ll break your neck.” She also positively identified defendant in
court. F.M. testified that she had been convicted in May 2006 for possession of a
controlled substance and received a sentence of probation. 1
1
At the time of defendant’s trial, F.M. was being held in custody for a violation of probation and
on a warrant for failure to appear in court in this case. F.M. testified that she had failed to appear
because she did not want to see defendant again.
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¶ 11 On cross-examination, F.M. testified that defendant did not let her go to the
bathroom, that she urinated on the floor, and that she had lost her keys during the
attack. Defense counsel also questioned her concerning some inconsistencies on
the exact number of times each sex act was performed.
¶ 12 F.M.’s sister, Brenda J., testified that around 8 a.m. on March 14, 1999, F.M.
arrived at her house “hysterical.” Brenda testified that her sister was crying,
screaming, dirty, and beaten up. F.M. told Brenda that she had been raped.
¶ 13 Sharon Smith, a registered nurse at Provident Hospital, testified that she treated
F.M. at approximately 8:45 a.m. on March 14, 1999. F.M. appeared scared and
looked disheveled. Smith testified that Dr. Bhatt took swabs of F.M.’s vagina and
mouth and that she sealed those swabs in a sexual assault evidence collection kit.
She gave the kit to a police officer along with, among other items, F.M.’s
underwear. Smith further testified that she observed blood in F.M.’s vaginal canal
and that she had an abrasion on her right thigh. Smith did not observe any scratches,
bruises, or other marks on F.M.’s body other than the one on the thigh.
¶ 14 Chicago police officer Gerald Ostafin testified that he received the sexual
assault kit from Smith on March 14, 1999. He kept the items in his continuous
custody and control and inventoried the kit under inventory No. 2105348.
¶ 15 Chicago police detective Paulette Wright testified that she interviewed F.M. at
the hospital at approximately 10:45 a.m. on March 14, 1999. F.M. was very upset
and agitated. The following morning, she took F.M. to the abandoned building
where the incident occurred to investigate and locate the set of keys she had lost.
Wright observed a green couch in the third floor room and testified that F.M.
became visibly upset when they entered the space. Wright did not see urine on the
floor or locate any keys. On August 23, 1999, the ISP crime lab informed Wright
that the semen recovered from the item in F.M.’s sexual assault kit produced a
match. Wright tried to contact F.M. by going to her home and that of her sister, but
was unsuccessful for almost three years.
¶ 16 Wright further testified that on May 29, 2002, she again went to F.M.’s home.
Wright showed her a photo array at that time and F.M. made a tentative
identification of defendant as her attacker. She informed Wright, however, that she
needed to see him in person. Wright sent out an “investigative alert” for defendant
who was ultimately taken into custody on July 12, 2002. The following day, F.M.
viewed a physical lineup. She tentatively identified defendant and mentioned that
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he looked thinner to her. F.M. then asked to hear each lineup participant speak.
After hearing defendant’s voice, F.M. said that defendant was “definitely” her
attacker.
¶ 17 The State called G.W. as an “other crimes” witness. At the time of trial, G.W.
had been convicted for possession of a controlled substance and forgery and was in
custody. On the evening of March 23, 2002, G.W. was walking within blocks of the
abandoned building where the assault in this case had occurred. G.W. testified that
defendant approached her and attempted to engage her in small talk. He then
grabbed her by the hood of her coat and said, “Shut up bitch before I kill you.” He
then dragged her into an abandoned building and ordered her down the rear stairs.
When she refused, he struck her over the head with a bottle of beer. He pushed her
down the stairs and ordered her to take her clothes off. Defendant had vaginal sex
with G.W. and forced her to perform oral sex on him repeatedly before he let her
leave in the morning.
¶ 18 Forensic Evidence
¶ 19 All of the DNA work at issue in this case was conducted between 1999 and
2001.
¶ 20 Brian Hapack, a forensic scientist with ISP, testified that he received F.M.’s
sexual assault kit that was submitted to ISP’s crime lab on March 23, 1999, and
inventoried under inventory No. 2105348. He tested the items in the kit for the
presence of sperm using the acid phosphatase test and slide examination. He
determined that there was semen on F.M.’s underwear, as well as the rectal and
vaginal swabs, but not the oral swabs. Hapack sealed and placed the items into a
secured freezer for future DNA analysis.
¶ 21 Chicago police detective Delores Myles testified that on April 26, 1999, she
took defendant to Provident Hospital where she observed a nurse take a blood
specimen from him. She sealed the specimen in a blood specimen kit and
inventoried it under No. 2111323.
¶ 22 The record establishes that defendant’s blood standard was collected by police
in relation to the unrelated murder case of Cheryl Cross.
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¶ 23 RFLP DNA Testing
¶ 24 Greg DiDomenic, a forensic DNA analyst at the ISP crime lab, testified that he
received the sexual assault kit containing the vaginal and rectal swabs taken from
F.M., her underwear which was stained by semen, and a sample of her blood. In
July 1999, he isolated F.M.’s DNA profile from the vaginal swab, but was unable to
produce a profile for the donor of the sperm found on the vaginal or rectal swabs
because each sample was of insufficient quantity to do so. A DNA profile of the
sperm donor, however, was obtained from the semen stain on F.M.’s underwear.
DiDomenic compared “five locations of DNA” using the “restriction fragment
length polymorphism” (RFLP) analysis method. He explained that at the time he
conducted his analysis, it was established in the scientific community “that there
were five genetic markers used in forensics and those were the ones we used [for
our testing].” DiDomenic further testified that he entered the DNA profile he
created into the Combined DNA Index System (CODIS), ISP’s DNA database, and
discovered that it was associated with a standard from defendant.
¶ 25 DiDomenic testified, over defense counsel’s objection, that subsequent to the
CODIS “hit” he reasonably relied on the work of two other analysts, Tanis
Wildhaber and Joanne Olson. DiDomenic reviewed the laboratory notes produced
by Wildhaber, which indicated that on April 28, 1999, she received defendant’s
blood sample which had been inventoried under No. 2111323. She preserved a
portion of that sample, dried it down on filter paper, sealed it, and placed it in
frozen storage for future analysis. DiDomenic also reviewed the laboratory notes
produced by Olson, which indicated that she retrieved defendant’s sample on May
1, 1999, and was able to obtain a DNA profile from his blood that was suitable for
comparison. Olson placed the remainder of defendant’s blood standard in frozen
storage. Based upon DiDomenic’s analysis of the sperm from the semen stain on
F.M.’s underwear, and the work of Olson that produced defendant’s DNA profile,
he opined within a reasonable degree of scientific certainty that the semen
identified on the underwear was consistent with having originated from defendant.
¶ 26 On cross-examination, DiDomenic explained that although he relied on the
work of Wildhaber and Olson, he did not observe either execute their work and did
not attempt to replicate their work by conducting the analysis again himself.
Instead, he relied on the written notes that they made while working at the
laboratory and explained that based on his examination of their notes, his personal
experiences working with them, and the fact that he received the same training and
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followed the same protocols, he agreed with their conclusions and believed that
they followed all of the proper procedures in doing their work. He further testified
that DNA analysis enables forensic scientists not only to match, but also to exclude
individuals. He explained that forensic scientists look at evidence in a reference
sample and can tell whether a person could, or could not have, contributed to a
particular stain.
¶ 27 STR DNA Testing
¶ 28 Dr. Jennifer Reynolds, a forensic DNA expert, testified that she was formerly
employed by Cellmark as its laboratory director. At Cellmark, she supervised DNA
analysis in criminal cases, reviewed data, and drew independent conclusions from
the data. According to Dr. Reynolds, Cellmark assisted the ISP crime lab with a
backlog of DNA case work and that it was standard practice in 2001 for ISP to send
such samples to Cellmark. Dr. Reynolds testified, over defense counsel’s objection,
that a Cellmark case file indicated that on May 1, 2001, it received from ISP a
standard of blood identified as being from defendant. She testified that as a result of
the forensic analysis subsequently completed at Cellmark’s laboratory, a DNA
profile of defendant was produced and sent to ISP. Dr. Reynolds further testified
that she completed a “technical review” of the case file and reasonably relied on
information contained therein. She testified that the analysis performed on
defendant’s blood by an unnamed Cellmark employee was of a type commonly
accepted within the scientific community and followed proper protocols. When
asked to explain this conclusion, she stated that she based her opinion on the case
file and the control samples that were run with this case. Dr. Reynolds testified that
she saw no evidence of contamination with defendant’s blood standard. She
acknowledged that she did not complete any laboratory analysis of defendant’s
blood herself, but merely reviewed notes produced by the other analyst who
completed the work.
¶ 29 Edgardo Jove, an expert in the field of forensic DNA analysis, testified that he
is a group supervisor in the forensic biology DNA section at the ISP crime lab. He
testified, over defense counsel’s objection, that he performed a technical review of
analysis conducted by ISP forensic chemist Sandra Lambatos. 2 He explained that
2
Lambatos wrote a report of her DNA analysis in this case, dated August 22, 2001, that was not
admitted at trial.
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Lambatos performed a newer and more accurate form of DNA analysis than
completed by DiDomenic in 1999. Jove further explained that this newer method,
called the “short tandem repeat” (STR) method, compared 13 areas of DNA,
instead of the five areas of DNA analyzed under the method utilized by
DiDomenic. Jove testified that Lambatos conducted DNA analysis on the semen
stain from F.M.’s underwear and that she obtained a male DNA profile. Lambatos
then compared that DNA profile to defendant’s known standard and concluded that
the two matched. Defendant’s known standard was based on the updated profile
completed by an analyst at Cellmark. Jove explained that the ISP crime lab had a
standard practice of sending its DNA samples to Cellmark for analysis in order to
decrease the backlog of cases requiring forensic analysis.
¶ 30 Jove further testified that he performed a “technical review” of the work done
by Lambatos and the Cellmark analyst and concluded that the male DNA profile
found in the semen stain on F.M.’s underwear matched that of defendant. Jove
opined that the DNA profile extracted from the semen stain on the underwear
would be expected to occur in approximately “one in 1.4 quadrillion black, one in
130 quadrillion white or one in 70 quadrillion Hispanic unrelated individuals.”
Jove acknowledged that he did not personally perform any laboratory work on the
forensic evidence gathered in this case and that he did not try to duplicate the
analysis completed by either the Cellmark scientists or Lambatos. Jove testified
that, based on his review of Lambatos’s laboratory notes, he was able to conclude
that she followed the scientific protocol established by the ISP, which is generally
accepted in the forensic science community.
¶ 31 Defendant presented no evidence at trial.
¶ 32 In closing argument, the defense argued, inter alia, that F.M. voluntarily met
defendant and they had a “rendezvous.” Defense counsel stated:
“She [F.M.] has an intent to lie in this case. She goes off with John Barner.
They stay the night together. At the [end] of the night, he doesn’t give her
anything, no money, nothing. He leaves.
***
And if the State really wanted to make a big deal about DNA, they should
have brought in the people that actually did the test. *** [B]ring in the person
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that did the notes, *** bring them in to show what they did, what tests they
performed, not somebody else who looked over their notes.”
¶ 33 The jury found defendant guilty of two counts of aggravated criminal sexual
assault. He was subsequently sentenced to natural life imprisonment.
¶ 34 On appeal, defendant argued, inter alia, that his right to confrontation under
Crawford was violated when the State’s forensic witnesses, some of whom did not
conduct laboratory analysis themselves, testified regarding the conclusions of
nontestifying forensic analysts. 2013 IL App (1st) 063738-U, ¶ 39. In affirming
defendant’s convictions following our remand to reconsider in light of Leach, the
appellate court concluded that although DiDomenic, Jove, and Reynolds relied
upon the work of other experts in reaching their conclusions, the results of the work
of the nontestifying experts were not testimonial as they are indistinguishable from
those at issue in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012) (plurality
opinion). 2013 IL App (1st) 063738-U, ¶ 68. The appellate court held that although
some of the nontestifying experts were employed by a law enforcement agency,
nothing in the record suggests that they could have known whether the profiles,
which were not in and of themselves incriminating, would ultimately confirm the
identification of defendant as F.M.’s attacker, or exonerate him. Id. ¶ 71. The
appellate court concluded that the DNA profiles in this case were not created for the
primary purpose of incriminating defendant, but for investigating the identity of
F.M.’s attacker. Id. ¶¶ 70-71. The appellate court also held that the reports upon
which the witnesses relied lacked the requisite “formality and solemnity” to
constitute a testimonial statement. Id. ¶ 71; Williams, 567 U.S. at ___, 132 S. Ct. at
2255 (Thomas, J., concurring in the judgment).
¶ 35 Justice Robert Gordon dissented. He believed that defendant’s DNA profile,
which was created by two nontestifying DNA experts from defendant’s blood
sample, was prepared for the primary purposes of accusing a targeted individual
and for providing evidence in a criminal case against him. 2013 IL App (1st), ¶ 95
(Gordon, P.J., dissenting). He therefore concluded “that the report at issue was
testimonial and cannot be admitted as an exception to the rule against hearsay.” Id.
In reaching this conclusion, he emphasized that the nontestifying witnesses were
employees of the ISP crime lab. Id. ¶ 96.
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¶ 36 Defendant subsequently filed a petition for leave to appeal in this court under
Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. July 1, 2013)), which we allowed. 3
¶ 37 ANALYSIS
¶ 38 As before the appellate court, defendant contends that his right to confrontation
under Crawford and its progeny was violated when DiDomenic, Dr. Reynolds, and
Jove testified concerning the DNA laboratory work and conclusions of
nontestifying scientists at ISP and Cellmark.
¶ 39 We apply de novo review of this issue because defendant’s claim that his sixth
amendment right of confrontation was violated constitutes a question of law.
Leach, 2012 IL 111534, ¶ 64.
¶ 40 The sixth amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right *** to be confronted with
the witnesses against him.” U.S. Const., amend. VI. This portion of the sixth
amendment is known as the confrontation clause and applies to the states through
the fourteenth amendment. People v. Stechly, 225 Ill. 2d 246, 264 (2007).
¶ 41 Current confrontation clause jurisprudence stems from Crawford. There, the
Supreme Court held that “[w]here testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69.
Specifically, “the Sixth amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68. The Court
left “for another day any effort to spell out a comprehensive definition of
‘testimonial,’ ” to which its rule applied. Id. However, the Court recognized
“[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest kinship to the abuses at
which the Confrontation Clause was directed.” Id.
3
After allowing defendant’s petition for leave to appeal, we entered an order directing the
circuit court to bind and certify certain documents for filing with this court as a supplemental record.
This material includes ISP and Cellmark lab reports, documents and case files. We also granted the
parties time for additional briefing to address the significance, if any, of these documents to their
arguments.
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¶ 42 Thereafter, in Davis v. Washington, 547 U.S. 813 (2006), the Court explained
the distinction between testimonial and nontestimonial statements:
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.” Id. at 822.
The Davis Court cautioned in a footnote, however, that it did not mean to “imply
*** that statements made in the absence of any interrogation are necessarily
nontestimonial.” Id. at 822 n.1.
¶ 43 Justice Thomas, in his partial concurrence, concluded that out-of-court
statements that lack “some degree of solemnity” are not testimonial in nature. Id. at
836 (Thomas, J., concurring in part and dissenting in part). He would have found
affidavits, depositions, prior testimony, and confessions sufficiently solemn “to
constitute formalized statements” subject to the rule of Crawford. Id. at 836-37.
¶ 44 The Supreme Court has, on three subsequent occasions, considered whether
scientific reports are testimonial under Crawford and subject to the strictures of the
confrontation clause.
¶ 45 First, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court
considered whether sworn certificates from forensic analysts, admitted to attest that
the substance seized from the defendant was cocaine, were testimonial for
confrontation clause purposes. Five members of the Court held in the affirmative.
Four members reasoned that “the sole purpose of the affidavits[,] was to provide
‘prima facie evidence of the composition, quality, and the net weight’ of the
analyzed substance,” and that it could be safely assumed “that the analysts were
aware of the affidavits’ evidentiary purpose.” (Emphasis in original.) Id. at 311
(quoting Mass. Gen. Laws ch. 111, § 13). They concluded that although the
analysts’ statements might “qualify as business or official records,” they were
prepared specifically for use in a criminal trial and were, therefore, testimony
against the defendant and subject to confrontation. Id. at 324.
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¶ 46 Justice Thomas, providing the necessary fifth vote to find a violation of the
confrontation clause, distanced himself from consideration of the primary purpose
of the out-of-court statement. He reiterated his adherence to the position that
extrajudicial statements implicate the confrontation clause “only insofar as they are
contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.” (Internal quotation marks omitted.) Id. at 329 (Thomas,
J., concurring).
¶ 47 Next, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), the
Court considered whether a lab report, certifying the results of a blood-alcohol test
performed on a sample taken from the defendant at the time of his arrest for driving
while intoxicated, was properly introduced at trial. Id. at ___, 131 S. Ct. at 2709-10.
The signatory analyst did not testify, but another analyst familiar with the
laboratory’s procedures did. Id. at ___, 131 S. Ct. at 2709-10. The testifying
analyst, however, had not participated in or observed the defendant’s blood test. Id.
at ___, 131 S. Ct. at 2709.
¶ 48 In vacating the defendant’s conviction, the Bullcoming Court stressed that the
blood-alcohol test results were testimonial in nature because the report was created
solely for an “ ‘evidentiary purpose’ ” in aid of a police investigation. Id. at ___,
131 S. Ct. at 2717 (quoting Melendez-Diaz, 557 U.S. at 311). Although the report
lacked formal certification or notarization, the formalities attending the creation of
the report and its purpose were “more than adequate” to classify it as testimonial.
Id. at ___, 131 S. Ct. at 2717.
¶ 49 Most recently, in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), the
Court considered, similar to this case, whether a DNA expert’s testimony violated
the confrontation clause. The expert witness, employed by the ISP crime lab,
testified at a bench trial regarding a DNA match that incriminated the defendant. Id.
at ___, 132 S. Ct. at 2229. The ISP had sent Cellmark, the same private laboratory
utilized in this case, a vaginal swab and directed Cellmark to conduct DNA
analysis. Id. at ___, 132 S. Ct. at 2230. Cellmark returned the vaginal swab and a
report containing the DNA analysis. Id. at ___, 132 S. Ct. at 2230. The expert
witness testified that the DNA profile obtained by Cellmark from the vaginal swab
matched the defendant’s DNA profile, which was obtained from the State’s
forensic database. Id. at ___, 132 S. Ct. at 2230. The expert witness did not have
any first hand knowledge of how Cellmark handled the vaginal swab, what tests
were actually run on the swab or the manner in which the tests were conducted. Id.
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at ___, 132 S. Ct. at 2230. The expert witness was permitted, however, to testify
that the DNA taken from the vaginal swab matched to a reasonable degree of
medical certainty the defendant’s DNA. Id. at ___, 132 S. Ct. at 2230. In Williams,
as in the instant case, the report itself was not admitted into evidence. Id. at ___,
132 S. Ct. at 2230.
¶ 50 Five members of the Court held that the expert testimony at issue did not violate
the confrontation clause. Four of the five reasoned that:
“[T]his form of expert testimony does not violate the Confrontation Clause
because that provision has no application to out-of-court statements that are not
offered to prove the truth of the matter asserted. When an expert testifies for the
prosecution in a criminal case, the defendant has the opportunity to
cross-examine the expert about any statements that are offered for their truth.
Out-of-court statements that are related by the expert solely for the purpose of
explaining the assumptions on which that opinion rests are not offered for their
truth and thus fall outside the scope of the Confrontation Clause.” Id. at ___,
132 S. Ct. at 2228.
¶ 51 The four also provided a “second independent basis” for their decision:
“[W]e also conclude that even if the report produced by Cellmark had been
admitted into evidence, there would have been no Confrontation Clause
violation. The Cellmark report is very different from the sort of extrajudicial
statements, such as affidavits, depositions, prior testimony, and confessions,
that the Confrontation Clause was originally understood to reach. The report
was produced before any suspect was identified. The report was sought not for
the purpose of obtaining evidence to be used against petitioner, who was not
even under suspicion at the time, but for the purpose of finding a rapist who was
on the loose. And the profile that Cellmark provided was not inherently
inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate
all but one of the more than 7 billion people in the world today. The use of DNA
evidence to exonerate persons who have been wrongfully accused or convicted
is well known. If DNA profiles could not be introduced without calling the
technicians who participated in the preparation of the profile, economic
pressures would encourage prosecutors to forgo DNA testing and rely instead
on older forms of evidence, such as eyewitness identification, that are less
reliable. [Citation.] The Confrontation Clause does not mandate such an
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undesirable development. This conclusion will not prejudice any defendant
who really wishes to probe the reliability of the DNA testing done in a
particular case because those who participated in the testing may always be
subpoenaed by the defense and questioned at trial.” Id. at ___, 132 S. Ct. at
2228.
¶ 52 Justice Thomas, again providing the necessary fifth vote, concluded that there
was no violation of the confrontation clause because the statements at issue, while
being admitted for the truth of the matter asserted, lacked the formality and
solemnity associated with testimonial evidence. Id. at ___, 132 S. Ct. at 2255
(Thomas, J., concurring in the judgment). The four dissenting justices found that
the statements were offered for the truth of the matter asserted and did violate the
confrontation clause. Id. at ___, 132 S. Ct. at 2264-65 (Kagan, J., dissenting, joined
by Scalia, Ginsburg and Sotomayor, JJ.).
¶ 53 Following Williams, this court had an opportunity to consider whether the
admission of expert testimony recounting autopsy findings of another pathologist,
and admission of the autopsy report itself, violated the confrontation clause. In
Leach, we analyzed whether an autopsy report constituted testimonial hearsay. We
conducted a comprehensive review of the Supreme Court’s instructions from
Crawford through Williams. We ultimately summarized the positions of the
plurality and dissent in Williams as follows:
“When we must determine whether a forensic report is testimonial in
nature, the Williams plurality instructs us to apply an objective test, looking for
‘the primary purpose that a reasonable person would have ascribed to the
statement, taking into account all of the surrounding circumstances.’ Id. at ___,
132 S. Ct. at 2243. If this inquiry reveals that the forensic report was ‘made for
the purpose of proving the guilt of a particular criminal defendant at trial’ (id. at
___, 132 S. Ct. at 2243), it is testimonial.
The Williams dissent rejects this focus on the targeting of a particular
individual, reminding us that Davis formulated the test as whether the
out-of-court statement was ‘made for the primary purpose of establishing “past
events potentially relevant to later criminal prosecution”—in other words, for
the purpose of providing evidence.’ Id. at ___, 132 S. Ct. at 2273 (Kagan, J.,
dissenting, joined by Scalia, Ginsburg and Sotomayor, JJ.) (quoting Davis, 547
U.S. at 822).” Leach, 2012 IL 111534, ¶¶ 120-21.
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¶ 54 In Leach, we found that whichever definition of primary purpose is applied, the
autopsy report was not testimonial because it was not prepared for the primary
purpose of accusing a targeted individual or for the primary purpose of providing
evidence in a criminal case. Id. ¶ 122. We also found that under Justice Thomas’s
“formality and solemnity” rule, autopsy reports prepared by a medical examiner’s
office in the normal course of its duties are nontestimonial. Id. ¶ 136.
¶ 55 RFLP DNA Evidence
¶ 56 Turning to defendant’s specific claims, he first challenges Wildhaber’s 1999
report concerning the preservation of his blood standard, as well as Olson’s 1999
report detailing her RFLP DNA analysis of his blood standard, as testimonial
statements that should not have been admitted into evidence through the testimony
of DiDomenic.
¶ 57 As a threshold matter, the State argues that defendant has forfeited any review
of his contentions surrounding Wildhaber’s and Olson’s work because that
argument was not specifically contained in his petition for leave to appeal. The
State is correct that the thrust of defendant’s argument in his petition related to
testimony concerning the analysis completed by Lambatos. We will address his
argument here, however, because it is closely related to the claim contained in his
petition that his right to confrontation was violated when a State’s witness was
allowed to testify concerning the lab work and conclusions of nontestifying
scientists. See People v. McKown, 236 Ill. 2d 278, 310 (2010) (“When an issue is
not specifically mentioned in a party’s petition for leave to appeal, but it is
inextricably intertwined with other matters properly before the court, review is
appropriate.” (Internal quotation marks omitted.)). We also note that the issue was
properly preserved below because defendant repeatedly argued both in the trial and
appellate courts that testimony by DiDomenic concerning Wildhaber’s and Olson’s
work on the preservation and testing of his blood standard violated his right to
confrontation.
¶ 58 Now, against the backdrop of Crawford and the subsequent authorities
applying it, we consider the confrontation clause implications, if any, of
DiDomenic’s testimony regarding the work performed by Olson and Wildhaber.
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¶ 59 At trial, DiDomenic testified that the semen identified from the stain on F.M.’s
underwear was consistent with having originated from defendant. In reaching this
conclusion, DiDomenic explained that he developed an RFLP DNA profile from
the semen stains on the underwear, that he entered the profile into the CODIS
system, and that there was a “hit.” He subsequently reviewed the laboratory notes
and casework of Wildhaber and Olson that had produced defendant’s RFLP DNA
profile and concluded that they matched. He did not testify to the details of the data
at the RFLP markers and provided no opinion as to the rarity of the RFLP DNA
profile.
¶ 60 As we recognized in Leach, when determining whether a forensic report is
testimonial in nature, the Williams plurality instructs us to apply an objective test,
looking for “the primary purpose that a reasonable person would have ascribed to
the statement, taking into account all of the surrounding circumstances.” Leach,
2012 IL 111534, ¶ 120. If this inquiry reveals that the forensic report was “made for
the purpose of proving the guilt of a particular criminal defendant at trial, it is
testimonial.” Id.
¶ 61 Based on the documents contained in the supplemental record, defendant now
acknowledges that Olson’s and Wildhaber’s work on his blood standard in 1999,
was not performed after the CODIS “hit” in this case but, rather, for the purpose of
uploading it into CODIS in order to compare it to evidence from the unrelated
Cheryl Cross murder investigation. Defendant was not in custody on that matter
when he submitted his blood sample and was ultimately eliminated as a suspect in
the Cross murder case.
¶ 62 We are not persuaded by defendant’s argument that the targeted individual test
still applies to Olson’s and Wildhaber’s out-of-court statements because the work
of these two scientists employed by a law enforcement agency was performed at a
time when he was a suspect in a criminal case, even if that case was not the instant
case. As with the report at issue in Williams, the reports by Olson and Wildhaber
were produced before any suspect was identified in this case. The reports were not
sought for the purpose of obtaining evidence to be used against defendant, who was
not even under suspicion in this case at the time they were produced, but for the
purpose of resolving the unrelated murder case. As in Williams, the two
nontestifying scientists could not have possibly known that the DNA profile
produced at the ISP crime lab would turn out to later inculpate defendant in the
unrelated sexual assault of F.M. Similar to Williams, the possibility that shoddy lab
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work or malfeasance by the DNA analysts doing work in the Cross investigation
would somehow produce a match to a person later picked out of a police lineup by
the victim in this case is “beyond fanciful.” Williams, 567 U.S. at ___, 132 S. Ct. at
2244.
¶ 63 We have also reviewed the laboratory case files and reports contained in the
record, including DiDomenic’s. These documents consist of lab case notes and
worksheets, data from DNA testing, inventory forms, consent for analysis on
samples, and conversation logs. These files and reports are markedly different from
the signed laboratory report certifying the results of the blood-alcohol test
performed on the sample taken from the defendant in Bullcoming, or the sworn
certificates from the forensic analysts in Melendez-Diaz, which were admitted into
evidence to attest to the substance that was seized from the defendant. None of the
documents in this case take the form of an affidavit, attestation, certification, sworn
statement, or formal declaration. Similarly, defendant has not cited to any
document in the record created by either Wildhaber or Olson that takes such form.
Consequently, we find the documents here lack the “formality and solemnity” that
Justice Thomas has consistently found necessary for a statement to be testimonial.
¶ 64 For these reasons, we conclude that based upon the Court’s most recent
instructions in Williams, and our holding in Leach, the reports by Olson and
Wildhaber were nontestimonial, and their admission through the testimony of
DiDomenic did not violate defendant’s right to confrontation.
¶ 65 Defendant also raises, for the first time in this court, a claim that DiDomenic’s
testimony about the “entry of his [original] DNA profile into CODIS” in 1999 by
an unknown individual was testimonial hearsay and should not have been allowed.
The same is true with his claim that DiDomenic’s testimony concerning the
analysis performed by Wildhaber and Olson was impermissible because it was
offered for the truth of the matter asserted. Defendant fails to pinpoint the specific
testimony that he is challenging. As the State asserts, defendant did not raise these
issues in the trial court, the appellate court, or in his petition for leave to appeal with
this court. Additionally, defendant’s arguments on these issues are entirely
undeveloped and unclear. For all these reasons, we find these claims forfeited and
decline to address them. See People v. Robinson, 223 Ill. 2d 165, 173-74 (2006)
(defendant forfeited this court’s consideration of an issue where it was not raised in
his posttrial motion, his appeal before the appellate court, or in his petition for leave
to appeal to this court); see also People ex rel. Illinois Department of Labor v.
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E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56 (“a reviewing court is not simply a
depository into which a party may dump the burden of argument and research”).
¶ 66 STR DNA Testimony
¶ 67 Defendant also claims that his right to confrontation was violated through
Jove’s testimony concerning Lambatos’s report from August 2001, regarding her
updated STR DNA testing of F.M.’s underwear and her comparison of that DNA
profile to defendant’s STR DNA profile. Similarly, he challenges Dr. Reynolds’s
testimony regarding the forensic analysis completed by an unnamed scientist at
Cellmark which resulted in the creation of defendant’s updated DNA profile which
was produced and sent to ISP. Defendant unconvincingly claims that documents
contained in the record show that ISP and the Chicago police department
communicated throughout the investigation of F.M.’s sexual assault, including
after the CODIS hit, which supports his claim that the new testing performed by
Lambatos and Cellmark was done for the primary purpose of accusing a targeted
individual (i.e., defendant) or creating evidence for use in a criminal case.
¶ 68 The State responds that in 2000-01 DNA databases and laboratories were
involved in a statewide conversion from RFLP DNA analysis to STR technology.
According to the State, the work completed on defendant’s blood standard at
Cellmark, and Lambatos’s testing of the DNA found on the underwear, was done as
part of this process. According to the State, this conversion made it possible for
STR profiles to be entered into CODIS, which was transitioning to using the 13
core STR loci and phasing out of the RFLP markers. Consequently, the State claims
that the purpose of the updated testing in this case had nothing to do with accusing
a targeted individual, namely defendant, but was part of this transition to the use of
STR profiles. The State also points out that all of the DNA testing in this case was
completed approximately one year prior to when defendant was arrested and
charged with the sexual assault of F.M.
¶ 69 We recognize that defendant’s trial occurred in 2006, well before case law on
the right to confrontation developed to include inquiries of whether certain
evidence was prepared for the primary purpose of targeting a specific individual or
for use in a criminal prosecution. We can find nothing in the record, however, that
conclusively establishes that the reason Lambatos, and the Cellmark analysts,
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performed their work on the samples was due to a statewide conversion process. 4
The record similarly fails to establish that it was done for the primary purpose of
targeting defendant or creating evidence for use in a criminal prosecution as
defendant urges.
¶ 70 Nevertheless, we do not have to surmise as to the State’s purpose for updating
the profiles using STR DNA technology. We conclude that even if the testimony of
Jove and Dr. Reynolds regarding the lab work and conclusions of the two
nontestifying scientists violated defendant’s right of confrontation, he would not be
entitled to a new trial because the error would be harmless beyond a reasonable
doubt.
¶ 71 Admission of testimonial hearsay is error unless the declarant is unavailable
and the defendant has had a prior opportunity for cross-examination. Leach, 2012
IL 111534, ¶ 140 (citing Crawford, 541 U.S. at 68-69). Upon showing of such an
error, the defendant is entitled to a new trial unless it appears beyond a reasonable
doubt that the error did not contribute to the verdict obtained at trial. Id. “When
determining whether an error is harmless, a reviewing court may, (1) focus on the
error to determine whether it might have contributed to the conviction; (2) examine
the other properly admitted evidence to determine whether it overwhelmingly
supports the conviction; or (3) determine whether the improperly admitted
evidence is merely cumulative or duplicates properly admitted evidence.” (Internal
quotation marks omitted.) In re Brandon P., 2014 IL 116653, ¶ 50.
¶ 72 In this case, F.M. testified that on the evening of March 13, 1999, defendant
dragged her from the street into an abandoned building, ordered her to remove her
clothes, and repeatedly forced her to engage in oral and vaginal intercourse for
hours. Prior to being released by defendant the following morning, F.M. testified
that she was able to see his face from a couple of inches away. F.M. positively
identified defendant as her attacker over a period of years first in a photo array, then
a physical lineup, and finally at trial. Although F.M.’s testimony was slightly
inconsistent on minor details concerning the exact number of times each sex act
4
The State claims that the trial record “clearly establishes” that the STR testing of defendant’s
blood standard at Cellmark was done as part of this statewide process to convert RFLP DNA
samples to STR profiles. In doing so, the State repeatedly cites to a page in the record that includes
the background section of one of its own motions in limine. We obviously cannot rely upon a factual
representation made in the background section of a party’s own motion which cannot be
independently established in the record.
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was performed, and she was reluctant to testify at trial, she was consistent in her
claim that defendant assaulted her.
¶ 73 After leaving the abandoned building, F.M. immediately went to her sister
Brenda’s house. Brenda testified that when F.M. arrived at her home she was
hysterical, crying, dirty, looked beat up, and said that she had been raped. Smith
testified that she treated F.M. at Provident Hospital at 8:45 a.m. on March 14, 1999.
F.M. appeared scared and looked disheveled. While Smith did not observe any
scratches, bruises, or other marks on F.M.’s body, she did observe blood in her
vaginal canal and an abrasion on her right thigh. Detective Wright testified that she
interviewed F.M. at the hospital and F.M. was very upset and agitated. The
following morning, she took F.M. to the abandoned building. Detective Wright
observed a couch in the third-floor room, consistent with F.M.’s testimony, and
stated that F.M. became visibly upset when they entered the space.
¶ 74 Additionally, we have already determined that RFLP DNA evidence linking
defendant to the victim was properly admitted at trial. DiDomenic testified that he
was able to create a DNA profile of the sperm donor from the semen stain on F.M.’s
underwear. DiDomenic compared five locations of DNA using the earlier RFLP
DNA analysis method. At the time that he conducted this analysis in 1999, he
explained that it was the established method in the scientific community.
DiDomenic testified that he entered the RFLP DNA profile that he created from
F.M.’s underwear into CODIS and there was a “hit.” Based upon DiDomenic’s
own forensic analysis of the sperm from the semen stain on F.M.’s underwear, and
his comparison of defendant’s known DNA profile, he opined that the semen
identified on the underwear was consistent with having originated from defendant.
¶ 75 We also emphasize that the main focus at trial, as illustrated by defense
counsel’s closing argument, did not have to do with the identification of F.M.’s
attacker. Instead, the primary issue for the jury to consider was F.M.’s credibility
and whether the jury believed her account of the assault. Based upon the verdict in
this case, the jury found F.M.’s testimony credible and did not believe the sexual
activity was consensual.
¶ 76 Moreover, G.W. testified that defendant attacked her in a very similar fashion,
by grabbing her on the street and forcing her into an abandoned building in the
same general area as F.M. was attacked. G.W. also testified that defendant
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repeatedly forced her to engage in vaginal intercourse and to perform oral sex on
him over a period of hours until he finally released her the next morning.
¶ 77 Defendant presented no evidence at trial and did not impeach the State’s
witnesses in any significant way.
¶ 78 For these reasons, we find that even if the testimony of Jove and Dr. Reynolds
concerning the reports of the nontestifying witnesses violated defendant’s right of
confrontation, it was harmless beyond a reasonable doubt. This evidence would be
cumulative or duplicative of the properly admitted DNA evidence, any improperly
admitted evidence did not contribute to defendant’s guilt, and the properly admitted
evidence in this case overwhelmingly supports defendant’s conviction.
¶ 79 CONCLUSION
¶ 80 Accordingly, we affirm the judgment of the appellate court affirming the circuit
court.
¶ 81 Affirmed.
¶ 82 JUSTICE KILBRIDE, dissenting:
¶ 83 I dissent from the majority opinion. I joined the majority in People v. Williams,
238 Ill. 2d 125 (2010), where this court held that an expert’s testimony, relying on a
DNA report prepared by a laboratory, did not implicate a defendant’s sixth
amendment confrontation right. That decision was affirmed by the Supreme Court
on other grounds. Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012)
(plurality opinion). In this case, as in People v. Leach, 2012 IL 111534, I believe
the majority erroneously relies on Williams, 567 U.S. ___, 132 S. Ct. 2221, “a
fractured opinion with no majority support for its rationale.” Leach, 2012 IL
111534, ¶ 161 (Kilbride, C.J., dissenting). I believe the majority in this case also
erroneously relies on the isolated position of Justice Thomas in Williams, 567 U.S.
at ___, 132 S. Ct. at 2255 (Thomas, J., concurring in the judgment), Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 329 (2009) (Thomas, J., concurring), and Davis v.
Washington, 547 U.S. 813, 836 (2006) (Thomas, J., concurring in the judgment in
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part and dissenting in part), to bolster its decision in this case when that position has
never been joined by any other Supreme Court justice. I believe Williams provides
no guidance for resolving this case.
¶ 84 In Leach, I noted that “[t]he most that can be gleaned from the plurality opinion
in Williams is simply that a majority held that admission of the DNA profile under
the facts of that case was permissible.” Leach, 2012 IL 111534, ¶ 163 (Kilbride,
C.J., dissenting). Since the Supreme Court issued the fractured holdings in
Williams, many other courts have recognized Williams as a case of questionable
precedential value. See United States v. Katso, 73 M.J. 630, 638 (A.F. Ct. Crim.
App. 2014) (finding “Williams does not provide a definitive test for determining
when a statement is to be deemed testimonial” and, accordingly, applying
pre-Williams confrontation clause law); State v. Dotson, 450 S.W.3d 1 (Tenn.
2014) (finding Williams provides little guidance and is of uncertain precedential
value); State v. Michaels, 95 A.3d 648, 666 (N.J. 2014) (finding “Williams’s force,
as precedent, at best unclear” and, accordingly, applying pre-Williams
confrontation clause law); Jenkins v. United States, 75 A.3d 174, 184 (D.C. 2013)
(noting that Williams “has not provided any clarity” to confrontation clause
jurisprudence); United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013)
(recognizing that current state of the law for determining when a particular
statement is classified as testimonial is unclear and “far from fixed”); State v.
Ortiz-Zape, 743 S.E.2d 156, 161 (N.C. 2013) (noting “lack of definitive guidance”
provided by Williams); United States v. James, 712 F.3d 79, 95 (2d Cir. 2013)
(finding Williams does not provide a controlling rule); United States v.
Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (finding plurality’s test in
Williams not “controlling”); State v. Kennedy, 735 S.E.2d 905, 916 (W. Va. 2012)
(viewing Williams, a fractured plurality opinion, “with caution” as “Williams
cannot be fairly read to supplant the ‘primary purpose’ test previously endorsed by
the Court”).
¶ 85 Additionally, when discussing the RFLP DNA evidence, the majority opinion
erroneously states that “Defendant was not in custody on [the unrelated Cheryl
Cross murder investigation] when he submitted his blood sample and was
ultimately eliminated as a suspect in the Cross murder case.” Supra ¶ 61. On the
contrary, defendant was, in fact, under arrest, in police custody, and under
suspicion for a crime when the blood sample was drawn and sent to the lab for
testing. Therefore, Olson’s and Wildhaber’s work was prepared to obtain evidence
for use against defendant in a criminal case (albeit a different criminal case). No
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case examined by the majority has determined that the DNA report must be
prepared for evidence in the specific case targeting the defendant. No doubt the
DNA report would have been “testimonial” had it been used as evidence against
this defendant in the murder case. I fail to see, however, how the DNA report now
becomes nontestimonial when it is introduced in a criminal prosecution of the same
defendant in a different case. This, logically, cannot be.
¶ 86 I disagree with the majority that any error in the admission of the STR DNA
testimony was harmless, particularly when the majority’s harmless-error analysis
relies heavily on the RFLP DNA evidence that I believe violates Crawford.
Additionally, the victim initially named “Carl Long” as the assailant, but the DNA
analysis on his buccal swab standard was canceled after the CODIS matched to
defendant. The ISP crime lab notes indicate the investigating detective “says victim
named Carl Long as an assailant but she has credibility problems and “cannot rely
on the victim’s statements; says to ‘cancel’ any analysis on Long’s buccal swab
standard.” The victim in this case was under arrest and in custody at the time of
defendant’s trial and admitted that the State had to keep her locked up to get her to
testify against defendant. Given that the State relied primarily on DNA evidence to
convict defendant, taken together with the conflicting evidence and credibility
problems of the victim, I cannot say that any error in the admission of the DNA
testimony was harmless beyond a reasonable doubt.
¶ 87 For these reasons, I respectfully dissent.
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