People v. Banks

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Appellate Court Date: 2017.01.24
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People v. Banks, 2016 IL App (1st) 131009Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DAVID BANKS, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-13-1009
Filed November 9, 2016
Rehearing denied November 14, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-17342; the
Review Hon. Kevin M. Sheehan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Robert Hirschhorn, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needham, Amy M. Watroba, and Sheilah O’Grady-Krajniak,
Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the
judgment of the court, with opinion.
Justices Lavin and Cobbs concurred in the judgment and opinion.
OPINION
¶1 On the morning of September 8, 1990, the Chicago fire department responded to a fire in
the basement of a multiunit apartment building at 1058-1060 West Lawrence Avenue in
Chicago. The bodies of a 55-year-old woman and a 79-year-old man and were discovered in
the fire. The manner of death was determined to be homicide, and the fire was determined to
have been caused by arson. A 12-year-old girl, T.C., reported having been raped and doused
in fire accelerant by the offender in the basement but escaped to call for help.
¶2 Defendant David Banks was arrested after a 2005 “cold hit” in the DNA database. He
was charged by indictment with 24 counts of first degree murder and one count of arson in
regards to the double homicide and sexual assault. The indictments alleged that defendant
murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of
criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the
jury found defendant guilty of arson as well as the two murders. The trial court sentenced
defendant to two terms of natural life imprisonment for the murders, to be served
consecutively, and a term of 15 years’ imprisonment for arson, also to be served
consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA
evidence at trial; (2) he was prejudiced by the “misuse” of his prior criminal record at trial;
(3) he was prejudiced by comments by a testifying police officer regarding his invocation of
his right to remain silent and his request for counsel; and (4) he was deprived of the effective
assistance of trial counsel for a series of alleged trial errors. For the following reasons, we
affirm.
¶3 BACKGROUND1
¶4 Defense counsel filed several motions prior to trial2 including motions asking to suppress
defendant’s statement and motions relating to the introduction of DNA evidence at trial,
asking to bar the introduction of other crimes evidence at trial, asking to be allowed further
testing of the biological materials and databases for use at trial, and requesting greater
latitude in the cross-examination of the State’s DNA expert. Relevant to this appeal,
defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923)) regarding whether DNA testing without the original controls or blanks was a
scientifically valid methodology, (2) to exclude the DNA evidence where some of the
material was inadvertently lost during testing in the laboratory, and (3) a search of the
national DNA index system “for actual 9-loci pair matches that actually exist in the databases
for the 9-loci identified in this case,” and “for the frequency of each of the alleles identified
in this case as they actually exist in the databases.”
¶5 After a hearing, the trial court denied the request for a Frye hearing regarding the DNA
testing without the original blanks, stating: “Frye does not apply once determined that the
scientific method is generally accepted” and noting that “[t]here is no Frye standard plus
1
This court provides an extensive background in order to give full consideration to the many
fact-intensive issues defendant raises on appeal.
2
There was extensive motion practice as well as hearings in this case, much of which concerned the
fact that the prosecution began as a capital case. As this is not germane to the issues at bar, this court
will not concern itself with this portion of the case history.
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reliability standard, no independent evaluation of the theory or the reliability once the general
acceptance threshold has been met. Reliability comes from general acceptance.” The court
explained that defendant’s arguments regarding the DNA testing “goes to the weight, not the
admissibility under Frye,” and that defendant’s concerns could be addressed at trial through
“vigorous cross-examination presentations of contrary evidence such as expert testimony.” It
stated: “The Frye standard applies only if scientific principle and technique or test offered is
new or novel.”
¶6 The court also held a hearing on defendant’s motion for relief in conjunction with
destruction of DNA or related evidence. The court denied the motion, finding that the DNA,
which was inadvertently spilled during laboratory testing, was not materially exculpatory
evidence and that it was not destroyed in bad faith. Additionally, the court admonished
defense counsel that use of the term “destroyed” was not appropriate, stating, “It’s spilled,
right? We’re talking semantics here, something certainly wasn’t destroyed in a bad faith
sense or somebody just took something and obliterated it. *** What we have here is
something that’s spilled during a test requested by the parties.”
¶7 Defendant’s motion for a DNA database search was filed with the trial court on May 20,
2010. By that motion, defendant explained that he was arrested based on a “partial, 9 Loci
DNA match to a buccal swab taken from him.” The motion also stated:
“5. The Illinois State Police Forensic Scientist in this case, Cynara C. Anderson,
opined that the statistical probabilities of such a match were 1 in 52 million Black, 1
in 390 billion White, or 1 in 200 billion Hispanic unrelated individuals at the 9 loci
profiled.
6. However, the Forensic Scientist from the Illinois State Police printed a State
Match Detail Report that indicates that the ‘Locus Match Stringency’ parameters
were set at high, which nevertheless resulted in 2 matches, 1 at 10 Loci and 1 at 6
Loci; presumably the ‘10 Loci’ match is actually the 9 Loci match excluding the
Amelogenin Loci (X,Y). It is not clear what the other 6 Loci match was.
7. Moreover, an Arizona database search of 65,493 specimens revealed 120 pairs
of 9-loci matches; an Illinois database yielded 900 pairs of matches at 9 loci; and a
Maryland study 32 pairs of 9-loci in a database of less than 30,000. Wherefore, the
State’s theoretical statistical analysis, which lends relevancy and weight to the State’s
DNA evidence is seriously in doubt considering actual DNA searches of real profiles
that exist in actual DNA databases.”
Defendant specifically requested the court to order the State Police to search the following
databases: “a. offenders maintained under 730 ILCS 5/5-4-3(f); b. unsolved crimes
maintained by state and local DNA databases by law enforcement agencies; and/or c. the
National DNA index system” using the following formulas:
“a. for actual 9-loci pair matches that actually exist in the databases;
b. for the actual 9-loci identified in this case, but utilizing Low, Medium and High
locus Match Stringency; and
c. for the actual frequency of each of the alleles identified in this case as they
actually exist in the databases.”
This motion was held in abeyance.
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¶8 On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining
to the court:
“THE COURT: Database search motion withdrawn?
[PUBLIC DEFENDER CHRIS ANDERSON]: Yes, motion for DNA Database
search. I was able to actually find—the FBI had actually done a CODIS allele
frequency analysis for each of the databases, so I didn’t need it because I have it now.
THE COURT: Okay. That database motion is withdrawn.
[PUBLIC DEFENDER ANDERSON]: That issue is done. After further
discussions with the lab, I realize that by entering the profile in this case that they are
searching all additional cases in the CODIS database against that COPA [sic] any
new ones put in so that in effect is being done anytime—
THE COURT: I believe [Assistant State’s Attorney Mary Lacy] mentioned that
on the last court date that they continually search during the pendency of the case.
[PUBLIC DEFENDER ANDERSON]: Right—well, perpetually they search.
Third the issue is the National DNA Search using the profile in this case for purposes
of trial strategy, general strategy, we are not pursuing that issue, Judge. So all of these
things that we requested have been resolved, so I’m asking leave to withdrawal [sic]
that motion, Judge.
THE COURT: Okay.”
¶9 Defendant also filed a motion to suppress his statement, as well as a supplemental motion
to suppress statements. At the end of the hearing, the trial court made extensive findings of
fact, after which it denied the motion, noting:
“For the foregoing reasons, respectfully your motion to suppress statements is
denied. The court specifically finds that the defendant was advised of his rights, that
he waived his rights until he asked for an attorney when all questions ceased ***.
He was never confronted with material misrepresentations. The statements,
whatever they were obtained [sic] by the defendant, from the defendant, were not
obtained as a result of physical or psychological or mental coercion.
The court finds whatever statements that the defendant made were voluntarily of
his own free will. And the first time the defendant invoked his right to attorney was to
[the assistant State’s Attorney] after which questioning ceased.
Respectfully, your motion to suppress statements is denied.”
Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior
crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant’s propensity
to commit sexual attacks and to motive and intent, as two of the murder counts on trial were
predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the
court allowed evidence of the prior sexual assault as evidence of defendant’s propensity to
commit sexual attacks, motive, and intent, as two of the murder counts on trial were
predicated on the alleged sexual assault of T.C. Specifically, the court determined:
“It is clear that in viewing the proof of other crimes sought to be admitted, it’s
relevant to the issues of defendant’s propensity to commit sexual attacks and to
motive and intent. The statute [and] case law mandates this Court to allow the People
to present evidence of other crimes discussed above.”
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¶ 10 Defendant also moved to bar the use of the 1984 sexual assault case and a 1990 murder
conviction for impeachment purposes should he testify. The State agreed not to use the 1984
sexual assault case for impeachment. The court then allowed evidence of the 1990 murder
conviction “for the very limited purpose” of impeachment in the event defendant were to
testify.
¶ 11 At trial, T.C. testified she was a 12-year-old sixth grader in September 1990. She lived in
the second floor apartment at 1060 West Lawrence with her mother, stepfather, and two
sisters. She had slept overnight at her father’s house a few blocks away and was returning to
her own apartment at approximately 8:30 on the morning in question. Although she did not
know how big she was at the time of the attack, she testified she was smaller at the time of
the attack in 1990 than she was at the time of trial. At the time of trial, she was 4 feet, 11
inches tall and weighed 90 pounds. As she approached the back entrance to her building, a
man grabbed her from behind and covered her mouth with his hand. He dragged her down to
the basement apartment where she saw a woman and a man. She recognized the woman as
Pat, the building manager, and the man as a resident of the building. Both of the victims had
their hands tied and their mouths gagged. Pat was moaning. The man was on the floor, not
moving. The offender hit and kicked T.C. He ordered her to remove her pants and
underpants. He pulled them off of her after she resisted. He then stuck his finger and penis
into her vagina. While this was happening, T.C. heard Pat say, “don’t hurt her, let her go.”
The attacker responded, “shut up, I kill you.”
¶ 12 After sexually assaulting T.C., the assailant picked Pat up off of the floor and put her on a
bed. Then he walked to the man, still on the floor, and kicked him. T.C. then watched as the
assailant poured what looked and smelled like gasoline on both the woman and the man. He
then returned to T.C., picked her up, and laid her on the floor near the bed. He soaked her
pants and underpants in gasoline and ordered her to put them back on. When she refused, he
put them on her. She then watched him rummage in his duffel bag and retrieve a bicycle
chain lock. He put the chain around T.C.’s neck and choked her with it. She tried to fight and
resist, but slipped in and out of consciousness. When she came back to consciousness, she
was laying on the floor. She acted like she was dead and watched her assailant look for
matches. He found the matches and lit a fire on the bed near Pat. T.C. continued to play dead
as the room filled with smoke and fire, and she watched the attacker grab his duffel bag and
leave through the front door. After he left, she got up, attempted unsuccessfully to rouse Pat
and the man, and then escaped. She ran upstairs to her apartment, told her mother what
happened, and they left the building. T.C. was taken to the hospital.
¶ 13 At trial, T.C. described her attacker as having long hair pulled back in a ponytail and
wearing a sleeveless shirt. T.C. also described a big “greenish color” tattoo that “was looking
like a dragon” on his arm. She remembered he was wearing a chain around his neck that held
two credit card-sized cards. T.C. did not identify defendant at trial has her assailant. In 1991,
she identified another man, Albert Chaney, as her assailant. Chaney was arrested at that time,
but subsequently cleared by DNA evidence and released in 1993.
¶ 14 Joanne Vo, T.C.’s mother, testified she heard banging on her apartment door at
approximately 11:15 a.m. on September 8, 1990, and opened the door to find T.C. crawling
on the ground, her face black and red, and a line on her neck. T.C. smelled like gasoline and
her clothes were wet and dirty. Vo took T.C. to the hospital.
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¶ 15 T.C. was examined at Children’s Memorial Hospital by Dr. Ramona Slupik. Dr. Slupik
testified that T.C. had been severely traumatized. Her eyes were swollen, the whites of her
eyes were red and had burst blood vessels, and she had bruise marks and a strangulation
mark around her neck. Dr. Slupik testified that T.C. was “trembling, but she was coherent”
during the examination, and was able to answer the doctor’s questions. T.C.’s genital area
had swollen labia, a thin bloody discharge, and slightly dried white secretions on the outside
of the hymen. In Dr. Slupik’s opinion, there was “convincing evidence of blunt force
penetrating trauma,” or “penile penetration.” Dr. Slupik confirmed the presence of sperm
under a microscope, took cultures to test for sexually transmitted diseases, and then collected
DNA swabs from the oral cavity, vagina, and rectum, as well as fingernail scrapings for a
rape kit. These items were each labeled individually, sealed, and sent to the crime lab.
¶ 16 The parties stipulated that nurse Mary Whiteford took the rape kit from Dr. Slupik and
put it in hospital storage, that the kit was then retrieved by nurse Sandra Roy and given to
Chicago police evidence technician Roy Fondren, who then stored it with the evidence and
recovered property section of the police department. The parties stipulated that a proper chain
of custody was maintained over the kit at all times.
¶ 17 Retired fire marshall Louis Outlaw testified that he responded to a fire alarm at the
three-story apartment building at 1058-1060 West Lawrence on September 8, 1990. The fire
was extinguished by the time he arrived, and he spoke with firefighters on the scene. Outlaw
determined the fire was mainly contained to the basement apartment. He then entered the rear
basement apartment and saw a male victim on the floor who appeared to have had his throat
slashed and a female victim on a bed who was badly burned over her entire body. Outlaw
determined an accelerant had been used to advance the fire, that the ignition source was a
human action such as an open flame, and that someone had purposely set the fire.
¶ 18 Illinois State Police acting trace chemistry group supervisor Alan Osoba, who at the time
of the fire worked as a criminalist or police chemist for the Chicago police department’s
crime laboratory, testified he tested T.C.’s recovered clothing as well as four debris cans
collected from the fire scene for accelerants. T.C.’s clothing and three of the four debris cans
contained petroleum distillate residue such as diesel fuel or charcoal lighter fluid.
¶ 19 Retired Chicago police detective Wayne Johnson testified that he was working as a
detective assigned to the violent crimes unit in September 1990. He arrived at the scene of
the crime around 1:30 p.m. and went in to the basement apartment to process the crime
scene. He then went to the hospital to interview T.C. He testified T.C. described her attacker
as: “male, black approximately six feet tall, approximately 200 pounds with long hair worn in
a ponytail, growth—beard growth on his face, a short sleeved shirt, white Nike gym shoes,
and a sliver chain around his neck that displayed two cards that she compared to credit cards
at the time.” She said he carried a tubular gray duffel bag. He testified that T.C. was
traumatized, but that a few days later she was able to provide more detail about her attacker.
At that time, T.C. said “she thought he had a tattoo on his upper arm that to her looked like a
dragon.” She described it as light blue or faded blue green in color, but was unable to give
great detail due to the lighting and the traumatic nature of the attack.
¶ 20 Dr. Edmund Donoghue, then the Cook County medical examiner, testified that he
performed the autopsies of both Hedgpeth and Soucy. He determined that both victims died
before the fire was set, Hedgpeth of strangulation and Soucy from blunt force trauma. He
described Hedgpeth as a 55-year-old white female with burns over 100% of her body,
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including full thickness burns. Hedgpeth also had internal injuries including fractures
consistent with manual strangulation. Dr. Donoghue described Soucy as a 79-year-old white
male with partial thickness burns on much of his body. Soucy had a 2-inch deep wound
through his right eye, consistent with being stabbed with an ice-pick-like instrument. He also
had numerous skull and rib fractures consistent with being stomped or kicked, as well as a
laceration to his neck involving the jugular vein consistent with his neck being cut with a
knife.
¶ 21 Forensic scientist Edgardo Jove testified that he worked at the Chicago police department
crime lab from 1991 to 1996. He received the rape kit taken from T.C. for testing on July 20,
1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic slides; and
fingernail samples. He examined the vaginal smears for the presence of sperm and tested the
body fluids found on the vaginal swab. He then sent the samples for DNA testing to the
Illinois State Police forensic lab in Springfield. Jove testified that he maintained a proper
chain of custody over the items.
¶ 22 Dr. Elizabeth Benzinger testified as an expert in the field of forensic DNA analysis.
Although by the time of trial she worked with the Ohio Bureau of Criminal Investigation,
from 1990 to 1996 she worked at the Illinois State Police crime lab and was one of four
individuals who set up the forensic DNA typing program from the Illinois State Police in
Springfield. She testified that she received sealed items including T.C.’s vaginal swab and
blood samples from T.C. and Albert Chaney pertaining to this case in October 1993. She
described DNA to the jury as a “long string like molecule” that is “the blueprint of life.” She
described its usefulness in forensic analysis as:
“DNA is useful for forensic analysis because scientists believe that no two
individuals have the exact same DNA except for identical twins. So we are able to
look at the DNA from one person, their oral swab, their saliva, their blood, all the
tissue of their body, their bones, their semen, all have the same DNA. So we can
compare a sample from the blood or an oral swab from the mouth to DNA from a
crime scene, such as blood or semen, and use that to determine if the individual could
be the source of that crime scene sample.”
¶ 23 She described four steps to DNA tests: (1) extract the DNA from the item using a reagent
that is “essentially high tech laundry detergent,” which helps get the DNA out of, for
example, the shirt it may have been on; (2) solubilize the DNA, or get it into solution and
remove the other parts of the cell, separating a sexual assault sample into a male sample and
a female sample; (3) determine “how much DNA we have” and amplify the DNA; and (4)
examine the different areas of the DNA that are known to be highly variable and make
comparisons. She explained that DNA amplification is “essentially chemical Xeroxing” in
order to improve the sensitivity of DNA tests. Dr. Benzinger explained that, in 1993, testing
included using an RFLP method “that is responsible for the bar code-like patterns that we see
on TV” that did not use the amplification and was not very sensitive, and also a method
based on the amplification process known as DQ-Alpha. The DQ-Alpha test “examines some
variation in the DNA on one of the chromosomes.” She said the DQ-Alpha test is “only one
test compared to what we use today which is an array of tests.”
¶ 24 When Dr. Benzinger received the samples from T.C. and Chaney, she numbered T.C.’s
blood standard 1, Chaney’s blood standard 2, and the vaginal swab 3. Dr. Benzinger testified
that she then extracted T.C.’s and Chaney’s DNA from the blood samples. She also extracted
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DNA from the vaginal swab. Dr. Benzinger ran controls and created a reagent blank during
her testing. She explained the controls process:
“Q. [ASSISTANT STATE’S ATTORNEY DAVID WEISS:] When you’re doing
this test, do you work with any types or do you perform any types of control to
determine whether or not you’ve done anything to contaminate or do anything to the
sample?
A. [DR. BENZINGER:] Yes, because of the sensitivity of these tests, we run
controls to tell us whether we are introducing extraneous DNA and also whether our
methods are working correctly.
So the controls I used were samples that I worked with that I placed only reagents
in, only the chemicals that I was using. And my expectation was that I should get no
DNA type from them if they were not introducing DNA on their own.
Q. Was that the result, no DNA?
A. Yes.”
¶ 25 Dr. Benzinger obtained profiles using DQ-Alpha testifying from the blood standards of
T.C. and Chaney, as well as from the vaginal swab. The profile from the vaginal swab did
not match the profile from Chaney’s blood standard. This excluded him from having
contributed to the vaginal sample, that is, he was not the source of the semen on the vaginal
swab. Dr. Benzinger then followed the lab’s procedure: she dried the DNA she had extracted
from the vaginal sample on a piece of filter paper, froze it to preserve it, and sealed it. She
testified she maintained a proper chain of custody at all times during her testing.
¶ 26 On cross-examination, Dr. Benzinger agreed that DQ-Alpha testing has now been
replaced by DNA testing known as short tandem repeat, or STR, testing. DQ-Alpha tests at
one area of variation in a sample, while STR can test at 13 locations of a sample. In other
words, DNA testing has improved over the years to be more sensitive.
¶ 27 Chicago police detective Thomas McIntyre was assigned to the cold case squad in 2002,
when he began a file review of the murders of Hedgpeth and Soucy. After learning that the
rape kit had been destroyed, he learned that DNA had been extracted from the kit samples.
He sought out the DNA extracts. Detective McIntyre located the DNA extracts in February
2005 and submitted them for DNA analysis. Later that year, he received the name of an
individual who had been identified in the FBI database from Anderson, who informed him
she needed a confirmatory buccal swab. On June 29, 2005, Detective McIntyre obtained a
warrant for a swab from defendant, and an evidence technician took a buccal swab from
defendant and photographed the tattoo of green roses on his right arm on June 30, 2005.
Detective McIntyre traveled to Peoria to arrest defendant and then transported defendant
back to Chicago.
¶ 28 The parties stipulated that retired Chicago police evidence technician Kerry Watters
would testify that she collected a buccal swab from defendant on June 30, 2005. She also
photographed his arm and tattoo at that time. The buccal swab standard was subsequently
submitted to the Illinois State Police crime lab for DNA analysis, and a proper chain of
custody was maintained over the evidence at all times.
¶ 29 Illinois State Police forensic scientist Cynara Anderson testified as an expert in her
chosen field. Defense counsel cross-examined her as to her qualifications, asking her if she
had formal training in population statistics and DQ-Alpha testing. As to her qualifications,
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she testified she had completed both a forensic biology training program and a DNA analysis
training program, and had been previously qualified as an expert in both biology and DNA
on numerous occasions. She admitted she does not have “formal training in DQ-Alpha,” and
explained that population genetics was “one of our modules in our DNA training as well as I
completed course work in my college education.” She opined that population genetics were
“to a certain extent” one of her areas of expertise. She testified she had studied “about the
extent of actual preference of DNA” as “they actually exist in the population,” and agreed
she had studied statistics and population statistics. She agreed that the majority of her
training and expertise “is with respect to DNA, not to statistics.”
¶ 30 Anderson testified that she received DNA samples of extracted DNA in the T.C. case in
February 2005.3 Sample 1A was a DNA standard extracted from T.C., sample 2A was a
DNA standard extracted from Chaney, and sample 3A was the female fraction (F1), sperm
fraction (F2), and DNA extracted from the vaginal swab (F3). Anderson testified that,
because the DNA was dried inside the tubes, she began by adding liquid to sample 1A, the
standard from T.C., and sample 3A, the extractions from the vaginal swab. She also created a
blank to monitor the analyses for any contamination. After creating the blank, she had five
tubes altogether. She tested the blank tube, which should not contain any DNA, and did not
receive a DNA result. This meant that she had not introduced any contamination throughout
her analysis. Therefore, she began the process of amplification, or making copies of the DNA
in order to have a sufficient amount to “get a decent DNA profile from the extracted DNA.”
She transferred the DNA from T.C., F1, F2, and her blank to tubes and put them in a machine
to be amplified. Anderson testified that, during the preparation of the amplification stage, she
dropped the F2 tube (the sperm fraction from the vaginal swab) onto her exam paper. She
was still able to put the required amount of DNA into the first tube for the 9-loci
amplification, but was unsure if she had enough for the second tube for the other 4-loci
amplification. She put the DNA into the two tubes and amplified it. After amplification, the
samples, one 9-loci tube and one 4-loci tube, were ready to be put into another instrument in
order to generate the DNA profiles. In the 9-loci tube, the non-sperm fraction (F1) generated
a profile matching the standard from T.C., and the sperm fraction generated an unknown
male profile. Anderson did not get any results from the 4-loci tube. She testified it is not
uncommon to not get results on the 4-loci tube.
¶ 31 On May 23, 2005, Anderson entered the unknown male profile into the FBI database and
got two possible matches. One of these possible matches was defendant along with his
various aliases, and the other matched to a private laboratory. She telephoned the private
laboratory and determined that they had made an error in uploading certain information such
that, in the end, the second possible match was not a match. The nine loci matched to
defendant. Anderson requested a “confirmatory standard” from the Chicago police so she
could perform an analysis to confirm the hit. She received that confirmatory standard in
September 2005, and extracted a DNA profile which matched the profile identified in the F2
sperm fraction taken from T.C.’s vaginal swab.
3
Anderson testified she first received the incorrect evidence package in July 2004. She looked at the
package, saw that it was not what she needed, and sent it back. She received the correct package in
February 2005 and proceeded to test the contents as described herein.
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¶ 32 Anderson testified that she then performed a statistical calculation of how rare the profile
identified in the F2 sperm fraction would be in a given population. She testified:
“A human DNA profile was identified in Exhibit 3A, which matches the DNA
profile of [defendant]. This profile will be expected to occur in approximately 1 in 52
billion blacks, 1 in 390 billion white, or 1 in 200 billion Hispanic unrelated
individuals at the nine loci I worked with.”
¶ 33 Anderson also testified that, after she entered the sperm fraction in the database, the DNA
profile is “continually run as of now,” that every time somebody puts a profile in the
database, it is run against the DNA in this case. Since the database hit on defendant’s profile
in 2005, it has never hit to any other person or any other profile in the database. If it were to
hit on another individual or profile, Anderson would be notified.
¶ 34 On cross-examination, Anderson explained her process for generating the probability
statistics for the rarity of the DNA profile. She testified that there are 13 loci from which to
test. The value at each loci has a frequency of occurrence, and there are two possibilities at
each loci. The chances of the two values at each loci are added together and then multiplied
for the next location. Anderson acknowledged on cross-examination that she was only able to
determine the values at nine loci because she spilled the DNA, that she did not know the
profile for the additional four loci, and that if any of the remaining four loci did not match
defendant, he would be excluded as the offender.
¶ 35 Blake Willey, a former administrator at Somerset Nursing Home, located two blocks
from the scene of the crime, testified that defendant worked at the nursing home from May
1990 to February 1991. During that time, nursing home personnel had to wear picture
employee identification cards and carry time clock punch cards. The picture identification
card was white and “about the size of a credit card.” He testified that some employees wore
their identification on a chain around their neck.
¶ 36 Chicago police lieutenant Anthony Wojcik testified he was a sergeant in the cold case
homicide investigation unit on June 30, 2005. He spoke with defendant that day in an
interview room at the police station. After advising defendant of his rights, defendant
indicated he understood them. Then Lieutenant Wojcik went over his rights a second time.
He asked defendant if he understood he was under arrest for the murders of Hedgpeth and
Soucy, as well as for the rape and attempted murder of a young girl, and for arson of the
residential building at 1060 West Lawrence. Defendant said he understood that was why he
was in custody. Defendant asked what was happening in the case. Lieutenant Wojcik told
defendant that the detectives were just about finished with their investigation and had
contacted the State’s Attorney’s office. He told defendant a State’s Attorney was on her way
to the police station and would review the case with the detectives and determine whether
charges should be brought against him. Wojcik testified, “I told him this investigation has
shown without doubt that you’re the guy that committed those crimes that you’re under arrest
for. I said I believe you’re going to be charged with those crimes.” Defendant asked what the
statute of limitations for the crimes was, and Wojcik told him there was no statute of
limitations on “murder related crime.”
¶ 37 Lieutenant Wojcik testified:
“Well, he was quiet for a little while, then he just said I’m tired. He said I’m tired
of denying that I know anything about this and then he stated—he said it’s these
blackouts, man. He said I can’t control the blackouts.
- 10 -
***
He said, yes, throughout his life there would be periods of time where he would
have these blackouts. When he had these blackouts, he said the others would take
over. He said when the others took over he said I did f***d up things that he was then
held responsible for and he said in regards to this incident there are things I do
remember and some of it that he didn’t remember.
***
I said, what do you mean by the others? He says that there are two individuals,
that they were inside of him, and he said at times they would take over—they would
take over his body.
***
I asked him what happened *** in this incident [with the murders of Hedgpeth
and Soucy]. He says—he said I blacked out and the others took over.”
¶ 38 According to Wojcik, defendant recalled that a day or two prior to the incident, he
walked by a gas station and saw a black woman he knew drinking beer with Lawrence
Soucy. The woman introduced Soucy to defendant, and defendant started drinking with them.
At some point, Soucy told defendant he had some money in a can at his apartment.
Eventually defendant and Soucy walked back to Soucy’s basement apartment together.
Defendant returned to Soucy’s apartment a day or two later and started looking for the can of
money. Soucy came in and asked defendant what he was doing, and a white woman entered
the apartment and shouted at defendant to get out. Wojcik testified:
“The next thing he said that he remembered was he was running from the rear of
the building and the building was burning and it was on fire. He said he ran through
an alley to get away from there, and then later he realized that his hair was frizzed. He
said it was frizzed, and then he said it was singed from the flames in the heat.
***
He said he went to a beauty salon in the neighborhood, and he had his hair
trimmed and then he got a perm.”
¶ 39 Lieutenant Wojcik said he asked defendant if he knew the two individuals had been
killed, asked him why his semen was in the young girl, and why he set the building on fire.
He testified defendant responded:
“He says when I blacked out he said the others must have made me do things then
that I don’t remember.”
¶ 40 Lieutenant Wojcik testified defendant said he did not remember ever having seen or met
T.C. Defendant confirmed he was employed at Somerset House and thought he was on duty
or working when he went to Soucy’s apartment. Defendant also told Wojcik that he wore his
ID cards around his neck, he wore his long hair back in a ponytail, and he had a tattoo on his
arm. Defendant identified a photograph of the building at 1058-1060 West Lawrence as
Soucy’s building. Lieutenant Wojcik then asked defendant if he would speak with the
assistant State’s Attorney, and defendant said he would.
¶ 41 On cross-examination, defense counsel asked Lieutenant Wojcik why he did not request a
court reporter to record defendant’s statement. Wojcik responded:
“[B]ecause at a certain point the defendant asked for an attorney, so we didn’t get
to that point where we would have called for a court reporter.
- 11 -
***
*** [I]t would have been—when I got done talking to him it was about 4:15. I
want to say it was some time around a little bit after 5:00 o’clock or so when he asked
for an attorney. When I was in there with the State’s Attorney was the first time he
asked for an attorney.”
Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was
the responsibility of the State’s Attorney. He said:
“The State’s Attorney would make [the decision to call a court reporter] in consult
with [defendant] if he was willing to do that, but while the State’s Attorney was
speaking to [defendant] he requested an attorney. So at that time all conversation
stops.”
¶ 42 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,
arguing that the witness repeatedly emphasized that defendant had requested an attorney. The
trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel
replied, “Because I didn’t want to emphasize that he had brought it out.” The trial court
denied the motion for a mistrial, saying “what prompted the part about the attorney is
because you [defense counsel] asked him questions about why weren’t charges approved
before the State’s Attorney got there,” and “the only logical answer he could say upon your
continuing questioning is, well, because he asked for an attorney. It was not brought out
volitiously [sic] by him. In my opinion it was brought out by your continuing questions for
that area.”
¶ 43 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of
questions about what he did and did not do while questioning defendant. Specifically,
defense counsel asked a series of questions regarding why Wojcik did not drive defendant up
to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon
where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to
find the salon, but did not drive defendant there to do so. Counsel again asked why, when
defendant allegedly had said the salon was in the neighborhood but was unsure of the street it
was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.
Wojcik answered:
“Again, Counsel, I probably would have done that, but he asked for an attorney,
which means at that point everything—any conversations I was having with him
about the case had to stop, including putting him in a car and having him to point
locations out.”
¶ 44 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a
new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an
attorney. The trial court denied the motion, responding:
“The problem with this is the way you asked the question once it came out once
the charges were approved upon [the assistant State’s Attorney] arriving there and it
came out that he asked for an attorney and didn’t obviously want to talk to her
without one, this was a natural response to a question about after he was through
talking putting him in the car and taking him somewhere and having him find
someone.
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This is exactly what happens when you are not directing him to a particular time.
You simply asked a question. I just wanted you to make a record. Your motion for a
new trial is denied. This is the fourth time he stated he wanted an attorney.”
¶ 45 Assistant State’s Attorney Christa Bowden testified that she arrived at the police station
around 3:00 p.m. on June 30, 2005. She was a trial supervisor in the felony review unit at the
time. She spoke with defendant along with Lieutenant Wojcik. She introduced herself to
defendant, advised him of his rights, and told him that she was an attorney but not his
attorney. They talked for approximately 30 to 40 minutes. Assistant State’s Attorney Bowden
testified that defendant acknowledged having talked with Lieutenant Wojcik, and she asked
him to tell her what they had spoken about. She testified:
“A. [ASSISTANT STATE’S ATTORNEY BOWDEN:] Well, I had asked him if
he would tell me the things that he was talking to [Wojcik] about, and he told me that
he remembered that he had been drinking—around the time of the incident he had
been drinking with an older white guy and a black woman at a filling station and that
he left the filling station with the older white guy, and the black woman didn’t come
and that he and the older white guy went to a building. The next thing that he
remembered after that was that he was running down an alley and ended up at a
beauty parlor.
Q. [ASSISTANT STATE’S ATTORNEY MARY JO MURTAUGH:] And did he
also tell you that he believed that something weird had happened that day?
A. Yes. He said as he was running down this alley he knew that something had
happened, but the next thing he knew he was at a beauty parlor. After he said that [ ]
he didn’t remember between going to the building with the older white guy and
running down the alley thinking something weird had happened and ending up at the
filling station, he said at that time that he was ready to die and he just wanted to get it
over with.
***
Q. Did David Banks tell you anything about when he seemed to get his life
together that something happens?
A. Right. So after he said this statement about just wanting to get it over with, that
prompted an inquiry about what are you talking about. He said, well, every time he
seems to get his life together and gets a job, gets an apartment, gets a woman, people
go on and mess things up for him; and he knows that people mess things up for him
because other people tell him that they do things that mess things up for him.
***
He said he should be in prison so these things don’t happen.”
When Assistant State’s Attorney Bowden asked defendant who these people were, he
described them as being a person named Durell, who was a murderer, a person named Snow,
who was 9 years old, and a 63-year-old Portuguese man “who was a pervert, who would
screw anything, in his words, even little girls.” She testified that defendant said, “These
three, Durell, Snow, and unnamed Portuguese would do things, and he would be the person
that would have to take responsibility for those things.” She said defendant told her he
wanted to tell the truth, that he did not dispute his DNA being at the crime scene, but instead
- 13 -
simply did not remember what happened before he was running down the alleyway towards
the beauty parlor.
¶ 46 Defendant’s statement was neither reduced to writing nor recorded in any way.
¶ 47 The trial court then instructed the jury:
“Ladies and gentlemen, in a moment evidence will be received that the Defendant
has been involved in an incident other than those charged in the indictment before
you. This evidence will be received on the issue of Defendant’s propensity. And may
be considered by you only for that limited purpose.”
¶ 48 Then, G.R. testified regarding the sexual assault defendant committed against her on
November 12, 1984. On that afternoon, G.R. was pushing her 11-month-old daughter in a
stroller near the 5500 block of South Wabash Avenue in Chicago. Defendant crossed the
street in front of her and stopped her. He put his hand in his pocket, pointed it at her and said,
“Bitch don’t move; I have a gun.” G.R. begged for her life. Defendant directed her toward a
secluded area down a gangway, under a back porch in a “little basement area,” and told her
to remove her clothes. When she had one leg out of her pants, defendant noticed a man in a
nearby yard. He told G.R. to get up. She got dressed and he instructed her to move. He took
her into the basement of another apartment building. He told her to take her clothes off and
he removed his own pants. He then forced his penis into G.R.’s mouth, put his mouth on her
vagina, and had vaginal sex with her. Afterward, he apologized and offered to pay her not to
tell anybody. He walked her home and helped her carry the child up the stairs in her stroller.
G.R.’s sister, the sister’s boyfriend, and G.R.’s boyfriend were all in the apartment.
Defendant sat down in the apartment while G.R. went into her bedroom with her boyfriend.
She told her boyfriend defendant had just raped her. G.R. called the police, who came to the
apartment and arrested defendant.
¶ 49 The State rested. Defendant asked for a directed verdict, which the court denied.
¶ 50 Defendant testified on his own behalf. He admitted having worked at Somerset House,
but denied that he wore his identification cards on a chain around his neck. He denied having
ever met Hedgpeth, Soucy, or T.C. He denied having ever been in the building at 1058-1060
West Lawrence Avenue. He denied having had anything to do with the crime. He admitted
he spoke with Detective Wojcik and Assistant State’s Attorney Bowden, but denied having
told them he was at all involved in this crime. He denied having told them he had blackouts,
nor that there were people inside of him who made him do things. He admitted having worn
his hair in a ponytail, but denied that his hair got frizzed or singed in the fire or that he went
to a beauty salon in the neighborhood to get it fixed after the fire. He showed his tattoo to the
jury. The tattoo, on his right arm, was of roses and a bare-chested woman. He explained that
he got the tattoo in 1994 to cover up a previous tattoo. The previous tattoo, which he got in
1989, was of the letters “BGGS” with a pitchfork running through it, which was a symbol of
the street gang to which he belonged. Defendant recalled that in September 1990, he lived
with a woman named Darlene and took care of her children. He testified he told the
detectives that, on the day of the crime, Darlene was in the hospital and he was babysitting
her children on the south side of Chicago.
¶ 51 The defense rested. The State then entered a certified copy of defendant’s conviction for
murder. The trial court advised the jury:
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“Evidence of the Defendant’s previously [sic] conviction of an offense may be
considered by you only as it may affect his believability as a witness, and must not be
considered by you as evidence of his guilt of the offense with which he is charged.”
¶ 52 At the close of arguments by both parties, the trial court instructed the jury, in part:
“[a]ny evidence that was received for a limited purpose should not be considered by you for
any other purpose.”
¶ 53 The jury returned a verdict of guilty on all counts: intentional and knowing murder of
Irene Hedgpeth and Lawrence Soucy, felony murder based on the offense of criminal sexual
assault, felony murder based on the offense of arson, and arson.
¶ 54 Defense counsel filed a motion for a new trial, which the court denied.
¶ 55 At sentencing, the trial court merged the felony murder counts into the intentional and
knowing murder counts. It also noted defendant’s prior conviction for murder and the sexual
assault case. The trial court sentenced defendant to natural life without parole for each count
of first degree murder, and a 14-year term of imprisonment for arson, to be served
consecutively to the two natural life sentences. Defense counsel filed a motion to reconsider
the sentences, which was denied.
¶ 56 Defendant appeals.
¶ 57 ANALYSIS
¶ 58 I. DNA Evidence
¶ 59 Defendant first challenges the admission of DNA evidence at trial, arguing that the case
“rose and fell on the DNA evidence,” which evidence, he argues, should never have been
admitted in the first place. He contends (1) there was an unexplained, inexcusable gap in the
chain of custody of the DNA evidence between Dr. Benzinger and Anderson; (2) the trial
court erred in not granting a Frye hearing as to whether Anderson’s methodology was
accepted in the scientific community; (3) the trial court erred when it denied defense
counsel’s motion for relief with regard to the spilled genetic material; and (4) the trial court
erred in limiting the cross-examination of Anderson regarding studies on 9-loci matches. We
address each argument in turn.
¶ 60 Initially, we disagree with defendant’s characterization of his trial as one which rested
solely on DNA evidence. In his brief on appeal, defendant argues that “[t]his was, at all
times, a DNA-driven case.” He reminds the court that the prosecutor in closing arguments
repeated Anderson’s testimony that the semen recovered from T.C.’s vagina matched
defendant’s DNA at 9 loci, which would be expected to occur in approximately 1 in 52
million Black individuals. He argues “this was a case which rose and fell on the DNA
evidence. In fact, there was virtually no forensic evidence tying him to the two murders.” He
says that, because this was such an old case and defendant only came to the attention of the
police 15 years after the murders occurred based on a “cold hit” DNA match, “[w]ithout the
DNA *** there is no case here.”
¶ 61 It is true the DNA profile generated in this case matched defendant’s profile when run
through the FBI database in 2005. A confirmatory buccal swab was obtained from defendant
at that time, then, which provided confirmation that defendant’s DNA matched the DNA
evidence recovered in this case at 9 loci. However, in this court’s opinion, there was
additional evidence presented at trial that also ties defendant to this crime. Most tellingly,
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defendant provided an inculpatory statement to Lieutenant Wojcik and then to Assistant
State’s Attorney Bowden in which he implicated himself in the crime. Although the
statement was not memorialized in writing or in a recording, both Wojcik and Bowden
testified to the statement in great detail. In his statement, defendant admitted to knowing
victim Soucy. He described having met him days before the murder and visiting his
apartment. He described how Soucy kept a can of money in his apartment and how, on the
day of the murders, he returned to Soucy’s home to search for the can of money. His search
was interrupted first by Soucy and then by Hedgpeth, who demanded he leave. Defendant
told both Wojcik and Bowden that he then blacked out. The next thing he remembered, he
said, was running down an alley away from the burning building, his long hair singed by fire.
He also told both Wojcik and Bowden in great detail that individuals inside of him cause him
to do bad things, saying the “others” inside him must have put his semen inside T.C. He told
Lieutenant Wojcik that he wore his hair long and in a ponytail around the time of the
murders, that he worked at Somerset House during that time, and that he wore his work
identification cards on a chain around his neck.
¶ 62 Defendant’s statement was corroborated by former Somerset House administrator Blake
Willey, who testified defendant worked at nearby Somerset House during the time of the
murders, that employees were required to wear identification cards which were
approximately the size of credit cards, and that many employees wore these cards around
their necks. Defendant’s statement was further corroborated by T.C.’s testimony that her
attacker was a black man with long hair pulled into a ponytail who wore a chain around his
neck with two credit card-sized cards on it. Essentially, defendant confessed that he
committed the crimes under the influence of the “others” inside of him.
¶ 63 For these reasons, we disagree with defendant’s representation that the case was based
solely on DNA evidence, but instead find that the DNA was one piece of the evidence by
which the jury found defendant guilty.
¶ 64 A. The Chain of Custody
¶ 65 Defendant first contends the circuit court erred in admitting the DNA evidence where
there allegedly was a gap in the chain of custody regarding the DNA evidence between
forensic scientists Dr. Elizabeth Benzinger and Cynara Anderson. Specifically, defendant
argues that, where Dr. Benzinger testified she preserved the extracted DNA by putting it on a
piece of filter paper which she then dried and froze, Anderson testified she received the
extracted DNA evidence in “tubes.” On appeal, defendant argues that these descriptions do
not match to such an extent that there was a complete breakdown in the chain of custody that
should have resulted in the exclusion of any resulting DNA testing completed on those
materials. We disagree.
¶ 66 As a threshold matter, we note that the State argues on appeal, and defendant apparently
concedes,4 that he has forfeited this issue for purposes of appeal by failing to object to it at
trial and by failing to raise it in his posttrial motion. See People v. Thompson, 238 Ill. 2d 598,
4
Although defendant does not specifically state that he failed to preserve this issue, he argues on
appeal that we should review his complaint as plain error. He argues that “this is the kind of error that
the Supreme Court has deemed cognizable under the plain error doctrine—there was a ‘complete
breakdown’ in the required chain of custody. People v. Woods, 214 Ill. 2d 455, 471-72 (2005).”
- 16 -
611-12 (2010) (“To preserve a claim for review, a defendant must both object at trial and
include the alleged error in a written posttrial motion.” (citing People v. Enoch, 122 Ill. 2d
176, 186 (1988))). Nonetheless, defendant urges us to consider his claim under the plain error
doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded. Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of
the trial court.”); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
¶ 67 The plain error doctrine “bypasses normal forfeiture principles and allows a reviewing
court to consider unpreserved claims of error in specific circumstances.” Thompson, 238 Ill.
2d at 613. Specifically, the plain error doctrine permits “a reviewing court to consider
unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that
error is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing Herron, 215 Ill. 2d at 186-87); see also
Thompson, 238 Ill. 2d at 613. Under either prong of the plain error doctrine, the burden of
persuasion remains on the defendant. People v. Lewis, 234 Ill. 2d 32, 43 (2009).
¶ 68 Our supreme court has said:
“We reject the notion that a challenge to the State’s chain of custody is a question
of the sufficiency of the evidence. A chain of custody is used to lay a proper
foundation for the admission of evidence. Accordingly, a defendant’s assertion that
the State has presented a deficient chain of custody for evidence is a claim that the
State has failed to lay an adequate foundation for that evidence. See 2 J. Strong,
McCormick on Evidence § 212, at 9 (5th ed. 1999). Thus, a challenge to the chain of
custody is an evidentiary issue that is generally subject to waiver on review if not
preserved by defendant’s making a specific objection at trial and including this
specific claim in his or her posttrial motion.” Woods, 214 Ill. 2d at 471.
Notwithstanding, our supreme court has recognized that a challenge to the State’s chain of
custody can be reviewed for plain error in the rare case where there is a complete breakdown
in the chain. People v. Alsup, 241 Ill. 2d 266, 277 (2011) (citing Woods, 214 Ill. 2d at
471-72). The Woods court provided an example for plain error review, saying, “in those rare
instances where a complete breakdown in the chain of custody occurs—e.g., the inventory
number or description of the recovered and tested items do not match—raising the
probability that the evidence sought to be introduced at trial was not the same substance
recovered from defendant, a challenge to the chain of custody may be brought under the plain
error doctrine.” Woods, 214 Ill. 2d at 471-72. The court explained: “When there is a complete
failure of proof, there is no link between the substance tested by the chemist and the
substance recovered at the time of the defendant’s arrest. In turn, no link is established
between the defendant and the substance. In such a case, a failure to present a sufficient chain
of custody would lead to the conclusion that the State could not prove an element of the
offense ***.” Woods, 214 Ill. 2d at 472.
¶ 69 When the State seeks to introduce an object into evidence, it must lay a proper foundation
through either its identification by witnesses or through establishing a chain of possession.
Woods, 214 Ill. 2d at 466. The character of the object the State seeks to introduce determines
- 17 -
which method to establish a foundation the State must employ. Woods, 214 Ill. 2d at 466. If
an item is “readily identifiable and [has] unique characteristics, and its composition is not
easily subject to change,” the party may elicit testimonial evidence showing that the item is
the same item recovered and that it is in substantially the same condition as when it was
recovered.” Woods, 214 Ill. 2d at 466. If the evidence is “not readily identifiable or may be
susceptible to tampering, contamination or exchange” (Woods, 214 Ill. 2d at 467), the party
must establish a sufficient chain of custody “that is sufficiently complete to make it
improbable that the evidence has been subject to tampering or accidental substitution”
(internal quotation marks omitted) (Alsup, 241 Ill. 2d at 274). Once the State has established
this prima facie case, the burden shifts to the defendant to show actual evidence of
tampering, alteration, or substitution. Alsup, 241 Ill. 2d at 274-75. Our supreme court has
cautioned:
“In the absence of such evidence [of tampering, alteration, or substitution] from
defendant, a sufficiently complete chain of custody does not require that every person
in the chain testify, nor must the State exclude every possibility of tampering or
contamination. [Citation.] It is not erroneous to admit evidence even where the chain
of custody has a missing link if there was testimony which sufficiently described the
condition of the evidence when delivered which matched the description of the
evidence when examined. [Citation.] At this point, deficiencies in the chain of
custody go to the weight, not admissibility, of the evidence. [Citation.]” Alsup, 241
Ill. 2d at 274.
¶ 70 The admission of evidence at trial is a matter left to the discretion of the trial court, and
the court’s decision on that point will not be disturbed absent an abuse of that discretion.
People v. Pikes, 2013 IL 115171, ¶ 12. An abuse of discretion occurs when the ruling is
arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the trial court’s
view. People v. Taylor, 2011 IL 110067, ¶ 27.
¶ 71 As noted, defendant failed to properly preserve this issue for appeal. He did not object to
the foundation for the evidence at trial, nor did he raise the issue in his posttrial motion.
Therefore, the issue is forfeited. See, e.g., Enoch, 122 Ill. 2d at 186. Our supreme court has
noted that forfeiture in cases such as this is particularly appropriate because, where the
defendant fails to object to the foundation of evidence at trial, the State misses its opportunity
to cure any error. See Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is
particularly appropriate when a defendant argues that the State failed to lay the proper
technical foundation for the admission of evidence” because the “lack of a timely and
specific objection deprives the State of the opportunity to correct any deficiency in the
foundational proof at the trial level”). Under the plain error rule, we consider whether any
error has occurred at all. Lewis, 234 Ill. 2d at 43; People v. Wilson, 404 Ill. App. 3d 244, 247
(2010) (“There can be no plain error if there was no error at all ***.”). This requires a
“substantive look” at the issue raised. People v. Johnson, 208 Ill. 2d 53, 64 (2003). We will
therefore first review defendant’s claim to determine if there was any error before
considering it under plain error.
¶ 72 Here, the chain of custody presented by the State at trial regarding the collected DNA
evidence was sufficiently complete. Chicago police crime lab forensic scientist Jove testified
he received the rape kit taken from T.C. in July 1993. The kit contained oral, rectal, and
vaginal swabs and smears; microscopic slides; and fingernail samples. After performing his
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examinations on the specimens, he sent the samples to the Illinois State Police forensic lab
for DNA testing. He testified he maintained a proper chain of custody over the items.
¶ 73 Forensic scientist Dr. Benzinger testified at trial that she received blood reference
samples from T.C. and Albert Chaney in October 1993. She specifically testified that the
items were sealed when she received them. She numbered T.C.’s blood standard 1, Chaney’s
blood standard 2, and the vaginal swab 3. She extracted DNA from the blood standards and
the vaginal swab. She then dried the extracted DNA onto a piece of filter paper, froze it to
preserve it, and sealed it. She specifically testified she maintained a proper chain of custody
at all times during her testing.
¶ 74 Illinois State Police forensic scientist Anderson testified she received tubes with dried,
extracted DNA inside them on February 16, 2005. 5 The extracted DNA she received
matched the numbers provided by Dr. Benzinger: 1A was the extracted DNA from T.C., 2A
was the extracted DNA from Chaney, and 3A was the extracted DNA from the vaginal swab.
Anderson specifically described the evidence package she received:
“At this time I received the tubes of extracted DNA that the prior DNA analyst
had created. So there was our Exhibit 1A, which is extracted DNA from [T.C.], our
Exhibit 2A which was reportedly extracted DNA from Albert Chaney, and Exhibit
3A, which contained the F1 which is the female fraction or the non-sperm fraction,
the F2 which is the sperm fraction, and the F3 fraction of extracted DNA from the
vaginal swab of [T.C.]”
¶ 75 Defendant’s argument that there was a “complete breakdown” in the chain of custody is
unavailing where, through the above testimony, the State presented a sufficient foundation
and chain of custody to show that the DNA extracts received by forensic scientist Anderson
were the same DNA extracts tested and preserved by forensic scientist Dr. Benzinger. See,
e.g., Alsup, 241 Ill. 2d at 274. Because the State has presented a prima facie case that the
chain of custody was sufficiently complete to make it “improbable that the evidence has been
subject to tampering or accidental substitution,” the burden shifts to defendant to show actual
evidence of tampering, alteration, or substitution of the evidence. (Internal quotation marks
omitted.) Alsup, 241 Ill. 2d at 274. The defendant fails to do so. In fact, the defense provided
no evidence at trial that there was any tampering, exchange or contamination of the DNA
material. Defendant, in fact, did not object in any way to the foundation of this evidence at
trial. See, e.g., Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is particularly
appropriate when a defendant argues that the State failed to lay the proper technical
foundation for the admission of evidence,” because the “lack of a timely and specific
objection deprives the State of the opportunity to correct any deficiency in the foundational
proof at the trial level”).6 Our review of the record does not show inconsistency in the
5
Defendant focuses on the fact that, on July 8, 2004, Anderson received the incorrect evidence
package to test. Specifically, Anderson testified at trial that she initially received “a package, but it
wasn’t the evidence I was looking for” and explained it was “Just some envelopes. They were marked
as being swabs from [T.C.], Albert Chaney and [T.C.], but that was not what I was looking for.” She
requested “different information” and received the package with “the tubes of extracted DNA that the
prior DNA analyst had created” on February 16, 2005. In our opinion, this demonstrates Anderson’s
attention to detail and does not in any way reflect negatively on her work.
6
This, in fact, is a prime example of the importance of a timely and specific objection when laying
a proper technical foundation for the admission of evidence. Here, Benzinger testified she dried the
- 19 -
descriptions of the evidentiary material at issue, and the alleged discrepancy does not amount
to a “complete breakdown” in the chain of custody. Once the State established the probability
that the evidence was not compromised, and defendant failed to show actual evidence of
tampering or substitution, deficiencies in the chain of custody go to the weight, not the
admissibility, of the evidence. Alsup, 241 Ill. 2d at 275. We find no abuse of discretion in the
trial court’s determination to allow the DNA evidence in at trial. See Pikes, 2013 IL 115171,
¶ 12. We therefore find no plain error here. See Wilson, 404 Ill. App. 3d at 247 (“There can
be no plain error if there was no error at all ***.”).
¶ 76 B. No Frye Hearing
¶ 77 Defendant next contends that the trial court erred in denying his request for a Frye
hearing regarding whether forensic scientist Anderson’s methodology was accepted in the
scientific community. Specifically, defendant argues that he was entitled to a Frye hearing
because the scientific protocols evolved between when his DNA was tested in 2005 and the
time of trial in 2013. We disagree.
¶ 78 In Illinois, the admission of expert testimony is governed by the standards expressed in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); In re Commitment of Simons, 213 Ill. 2d
523, 529 (2004). Under Frye, scientific evidence is only admissible at trial if the
“methodology or scientific principle upon which the opinion is based is ‘sufficiently
established to have gained general acceptance in the particular field in which it belongs.’ ” In
re Commitment of Simons, 213 Ill. 2d at 529-30 (quoting Frye, 293 F. at 1014). General
acceptance of a methodology “does not require that the methodology *** be accepted by
unanimity, consensus, or even a majority of experts.” In re Commitment of Simons, 213 Ill.
2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002),
abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d at 530. The trial
court will apply the Frye test only if the scientific principle, technique, or test offered by the
expert to support his or her conclusion is new or novel. In re Marriage of Bates, 212 Ill. 2d
489, 519 (2004). Generally, a scientific technique is new or novel if it is original or striking
or does not resemble something formerly known or used. Donaldson, 199 Ill. 2d at 79. Under
Frye, the court considers the general acceptance of a scientific methodology, not the
particular conclusions at issue in a particular case. People v. McKown, 226 Ill. 2d 245, 255
(2007). There is no “Frye-plus-reliability” test in Illinois, in which the court first determines
if the technique or methodology is accepted and then considers whether it is reliable. People
v. Nelson, 235 Ill. 2d 386, 431 (2009).
¶ 79 There is a dual standard of review regarding the admissibility of expert testimony. Abuse
of discretion review applies when the question is whether “an expert scientific witness is
qualified to testify in a subject area, and whether the proffered testimony is relevant in a
extracted DNA onto a substrate, or a piece of filter paper, which she then froze to preserve. Benzinger
also testified regarding the process of extracting DNA from a substrate by using what she described as
a “high tech laundry detergent.” Anderson testified that she received tubes containing the “extracted
DNA that the prior DNA analyst had created.” Had the evidence been challenged at trial, the parties
could have clarified whether, for example, the tubes containing the extracted DNA actually contained
the piece of filter paper onto which Benzinger had dried the extracted DNA. Because there was no
objection at trial, there was no further exploration of the description of the received DNA evidence.
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particular case.” In re Commitment of Simons, 213 Ill. 2d at 530-31. De novo review applies
when this court must determine “whether a Frye hearing is required and, if so, whether the
scientific technique at issue is generally accepted in the relevant scientific community.” In re
Commitment of Simons, 213 Ill. 2d at 530-31.
¶ 80 Here, prior to trial, defendant filed a motion requesting a Frye hearing on the
admissibility of the DNA evidence against him. By that motion he argued that, because the
rape kit and the original blanks and controls made by Dr. Benzinger were no longer
available, forensic scientist Anderson created new blanks and controls for testing. Defendant
claims this subsequent testing by Anderson, though consistent with scientific protocol at the
time of testing, was contrary to scientific protocol by the time of trial and, accordingly, was
impermissible. In part, the motion alleged:
“It has subsequently been learned that the Illinois State Crime Lab lost the
controls or blanks each of the original 3 fractions of DNA. However, a new control or
blank was manufactured and used. Such a method is no longer acceptable under
current protocols of the lab. This is the reasons [sic] that the Lab had refused to test
the 3rd Fraction of DNA. Testing was performed on the First [sic] two fractions under
this not acceptable method of DNA testing. The analyst, Cynara Anderson, who
performed that testing and used new blanks or controls has told Defense Counsel that
she has no idea if it is generally accepted in the scientific community, as required by
Frye, to use the results of the previous testing because the method used is not
currently permitted as an acceptable Forensic DNA testing procedure. Additionally,
the original vitullo kit (rape kit) has been lost or destroyed, so re-testing under
generally accepted DNA testing procedures is not an option.”
Defendant argues Anderson’s methodology was appropriate and accepted in 2005, but that
the FBI standards changed in 2009 to include more stringent rules regarding testing
procedures.
¶ 81 After a hearing on the motion, the trial court denied the request for a Frye hearing
regarding the DNA testing without the original blanks, stating: “Frye does not apply once
determined that the scientific method is generally accepted” and noting that “[t]here is no
Frye standard plus reliability standard, no independent evaluation of the theory or the
reliability once the general acceptance threshold has been met. Reliability comes from
general acceptance.” The court further explained that defendant’s arguments regarding the
DNA testing “goes to the weight, not the admissibility under Frye,” and that defendant’s
concerns could be addressed at trial through “vigorous cross-examination presentations of
contrary evidence such as expert testimony.” It stated, “[t]he Frye standard applies only if
scientific principle and technique or test offered is new or novel.”
¶ 82 Although defendant argues on appeal that the DNA evidence should have been
inadmissible because the methodology used by Anderson was outdated at the time of trial
(but not at the time of testing), this argument is actually based on the trial court’s denial of
defendant’s motion requesting a Frye hearing. On appeal, defendant does not challenge the
trial court’s ruling and does not argue that the trial court abused its discretion in denying the
motion for a Frye hearing. Defendant did not preserve this issue by objecting at trial or
including it in his posttrial motion (Enoch, 122 Ill. 2d at 186), and he has not argued on
appeal that we should consider it based on plain error (Herron, 215 Ill. 2d at 186-87). We
therefore find this issue to be forfeited.
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¶ 83 Even if the issue was not forfeited, however, and we considered it under a plain error
analysis, we would still find no error. See, e.g., Wilson, 404 Ill. App. 3d at 247 (“There can
be no plain error if there was no error at all ***.”). A Frye hearing is limited to situations
where the technique or test is new or novel, or, for example, where the scientific test does not
resemble a formerly known or used test. See In re Marriage of Bates, 212 Ill. 2d at 519 (trial
court will apply the Frye test only if the scientific principle, technique, or test offered by the
expert to support his or her conclusion is new or novel); Donaldson, 199 Ill. 2d at 79(generally, a scientific technique is new or novel if it is original or striking or does not
resemble something formerly known or used). At the time she ran the test in 2005, Anderson
followed all relevant protocols. We find no error in the trial court’s determination that no
Frye hearing was required where the test and methodology used by Anderson was not new or
novel.
¶ 84 C. DNA Exclusion Based on Inadvertent Laboratory Spillage
¶ 85 Next, defendant contends that the trial court erred when it denied his motion to exclude
the DNA evidence where a portion of the DNA material was spilled during laboratory
testing. He claims he was prejudiced because, had the evidence not been spilled, it is possible
the subsequent test on the remaining four DNA loci may have excluded him.
¶ 86 Defendant filed a motion for relief in conjunction with destruction of DNA or related
evidence, by which he sought, in pertinent part, to exclude the DNA evidence because of the
spillage. The court denied the motion after a hearing, finding that the evidence was not
materially exculpatory and that it was not destroyed in bad faith. Additionally, the court
admonished defense counsel that the use of the term “destroyed” was inappropriate, noting
that the evidence was not “destroyed in a bad faith sense or somebody just took something
and obliterated it. *** What we have here is something that’s spilled during a test requested
by the parties.”
¶ 87 As for the spill itself, forensic scientist Anderson described the spill at trial in the
following manner:
“A. [FORENSIC SCIENTIST ANDERSON:] There was an incident that occurred
during the application stage, during the preparation of amplification stage.
Q. [ASSISTANT STATE’S ATTORNEY WEISS:] What happened during the
amplification stage?
A. When it was time for me to take my DNA and put it into my tubes to amplify
my F2 fraction, which is the sperm fraction of the vaginal swab, I dropped that tube
of DNA onto my exam paper. So I was able to put the required amount of DNA
into—there are two—so if I have a tube for F1, the DNA from my F1 tube will be
split into two additional tubes for amplification. One tube will give me nine loci, and
the other tube will give me four loci.
So when I was preparing my samples to split them into their nine loci tube and
four loci tube, I dropped my tube of DNA, and it spilled on the paper.
So I did have some in my tube after some spilled out, so I was able to put what I
needed into the tube for the nine loci, but I had an undetermined amount left over in
that tube to put in the tube that would have given me four loci. So I wasn’t sure of my
target, but I know I put in less than what I needed in that second tube.
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Q. But you were able to obtain a test for the nine loci, correct?
A. Yes. I had more than enough for what I needed for the nine loci tube. But I had
an undetermined amount target for the four loci tube.
Q. Just so we’re clear, all these fractions F1, F2, F3, that’s all coming from the
sperm sample, correct?
A. From the vaginal swab of [T.C.]
Q. All coming from the vaginal swab?
A. Yes.
Q. And were there different samples or did you learn of different things that were
in the vaginal swab?
A. Yes, after amplification, the samples are ready to be put on another instrument
that will result in me having a DNA profile. So after amplification, I set up that
procedure and then I have a DNA profile.
And it led to my non-sperm fraction having a profile matching [T.C.] And my
sperm fraction having a profile of an unknown male profile. And then I also verified
that my blank was clean.
But the tube that was giving me four loci, it flat lined. I didn’t get anything.
Q. But it’s not uncommon that you only have nine loci in cases, is it?
A. It’s not uncommon. Sometimes you may only end up with nine loci, not
because of just dropping a tube.”
¶ 88 Anderson acknowledged on cross-examination that she was only able to determine the
values at nine loci because she spilled the DNA, that she did not know the profile for the
additional four loci, and that if any of the remaining four loci did not match defendant, he
would be excluded as the offender. Specifically, she said:
“Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those [remaining
four un-resulted loci] is different than David Banks, then you could say with scientific
certainty that he is not the offender; is that correct?
A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.
Q. But you don’t know what those are, correct?
A. That’s correct.
Q. In fact, you spilled that DNA on your table, correct?
A. That’s correct.”
¶ 89 The State relies on Arizona v. Youngblood, 488 U.S. 51 (1988) (Stevens, J., concurring in
the judgment, and Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.), in support
of its argument that a defendant must show that the evidence was destroyed in bad faith in
order for relief. In Youngblood, the defendant was convicted of child molestation, sexual
assault, and kidnapping. During the medical treatment of the victim, doctors collected
evidence of the attack using a sexual assault kit, including samples of blood, saliva, and hair.
These samples were refrigerated at the police station. The victim’s underwear and T-shirt,
which contained small amounts of semen, were also collected by the police but not
refrigerated or frozen. Youngblood, 488 U.S. at 52-53. Using the evidence from the sexual
assault kit, a criminologist determined that sexual contact had occurred, but he did not
perform any other tests. He replaced the kit in the refrigerator. Later, the criminologist was
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unable to obtain conclusive results in testing the underwear and T-shirt due to the small
quantity of semen present. Youngblood, 488 U.S. at 54. At trial, the defendant argued that the
victim had erred in identifying him in a photographic lineup as the assailant. The trial court
instructed the jury that, if they found that the State had destroyed or lost the evidence, they
might “infer that the true fact is against the State’s interest.” (Internal quotation marks
omitted.) Youngblood, 488 U.S. at 54. The jury found the defendant guilty, but the Arizona
Court of Appeals reversed, finding a violation of due process where the loss of the evidence
was material to the defense. Youngblood, 488 U.S. at 54.
¶ 90 The United States Supreme Court considered the extent to which the due process clause
of the fourteenth amendment requires the State to preserve evidentiary material that might be
useful to a criminal defendant. Considering the “ ‘area of constitutionally guaranteed access
to evidence,’ ” the Youngblood court reversed, finding that the defendant was required to
demonstrate bad faith on the part of the State in the destruction or loss of the evidence.
Youngblood, 488 U.S. at 55 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). The Court found that the due process clause “required a different result when we
deal with the failure of the State to preserve evidentiary material of which no more can be
said than it could have been subjected to tests, the results of which might have exonerated the
defendant.” Youngblood, 488 U.S. at 57. The Court justified the difference in treatment
between a situation in which the State fails to disclose to the defendant material, exculpatory
evidence, and a situation where potentially exculpatory evidence is permanently lost, as
necessary in order to avoid placing on the courts the “ ‘treacherous task of divining the
import of materials whose contents are unknown and, very often, disputed’ ” (Youngblood,
488 U.S. at 58 (quoting California v. Trombetta, 467 U.S. 479, 486 (1984))) and placing on
the police an absolute duty to retain and preserve material that might be of conceivable
evidentiary significance in a particular prosecution. Youngblood, 488 U.S. at 58. The
Youngblood Court held that “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a denial of due
process of law.” Youngblood, 488 U.S. at 58. The Court characterized the failure of the
police to refrigerate the clothing and to perform tests on the semen samples as negligent, at
worst, and in the absence of bad faith, no violation of the due process clause occurred.
Youngblood, 488 U.S. at 58.
¶ 91 In Illinois, our supreme court has held that there was no due process violation where there
was no demonstration of bad faith by the State when the evidence in question—the
defendant’s vehicle—was lost or destroyed before trial. People v. Sutherland, 223 Ill. 2d 187,
237 (2006). The Sutherland court, guided by Youngblood, held that the defendant “failed to
offer anything, other than mere speculation, demonstrating bad faith by the State.”
Sutherland, 223 Ill. 2d at 237.
¶ 92 Here, we find no error by the trial court in requiring a showing of bad faith by the
defendant before it would exclude the DNA evidence. Where, as here, the evidence in
question is not exculpatory, a defendant must show bad faith in failing to preserve the
evidence. Youngblood, 488 U.S. at 58 (“unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law”). Defendant offers nothing but mere speculation to demonstrate
bad faith by the State. In fact, there is no demonstration here of anything other than an
inadvertent spill by a scientist who then was able to complete the 9-loci sample (also known
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as the Pro-filer component) with a match to defendant, and attempted to complete the other
4-loci sample (also known as the Co-filer component), which ended with no results. This, as
the trial court explained, was a mere accident and was absent of bad faith. Where defendant
could not show that the spilled DNA evidence was materially exculpatory, and could not then
fulfill his burden to show bad faith in the loss or destruction of the DNA evidence, the failure
to preserve the evidence did not constitute a due process violation under Youngblood, and the
exclusion of the evidence was not necessary.
¶ 93 We note here with some concern that defense counsel on appeal, who, as he should,
argues vigorously in defense of defendant, goes beyond what appears to be the truth in this
particular argument. In his opening brief, he argues that the State “botch[ed] the Co-Filer
test” and this spill “consumed all the remnants [of the DNA sample] usable for testing.” This
is belied by the record, however, which shows that on August 4, 2011, the trial court ordered
additional DNA analysis on the DNA extract that remained from the vaginal swabs.
¶ 94 Additionally, we acknowledge defendant’s concern that this ruling puts him in a logically
inconsistent, difficult position in which, to obtain a remedy for the absence of testing, he first
must obtain the testing, or know and be able to demonstrate the outcome of the testing. While
we recognize this concern, defendant does not offer this court any authority by which we
should disregard the established authority discussed herein. Under Youngblood and
Sutherland, defendant’s claim is unavailing.
¶ 95 We find that the trial court properly denied defendant’s motion to exclude the DNA
evidence based on the loss of DNA material during testing.
¶ 96 D. Limiting the Questioning of the DNA Expert at Trial
¶ 97 Next, defendant claims the trial court erred when it limited the defense in its
cross-examination of forensic scientist Anderson at trial. Specifically, defendant argues that
the trial court should have allowed defense counsel to question Anderson regarding database
searches done in Illinois and Arizona regarding a determination of how many 9-loci matches
exist within an offender database. Defendant believes he merits a new trial where he was
denied the ability to meaningfully challenge the scientific evidence presented by the State.
¶ 98 Initially, the State argues that, although defendant filed a motion for DNA testing prior to
trial, he later withdrew that motion (as discussed in the background section, above).
Therefore, the State claims that this motion is no longer in at issue. Defendant admits the
motion was withdrawn when defense counsel “received what he believed was adequate data
for his purposes.” Defendant, however, responds that the State’s analysis elevates form over
substance where, as here, the issues at question were further dealt with during the trial. We
agree with the State that defendant can no longer argue specific to the withdrawn motion, but
also agree with defendant that the issues “were put back in play by the State” when the State
sought at trial to bar cross-examination of its expert due to her unfamiliarity with specific
studies on 9-loci match frequencies.
¶ 99 During trial but before the presentation of testimony by the forensic scientists, the State
asked the court to preclude questions regarding searches done of the offender sections of the
Arizona and Illinois databases where 9-loci matches were examined. The following colloquy
occurred outside the presence of the jury:
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“[ASSISTANT STATE’S ATTORNEY MARY LACY:] Judge, the third witness
Cynara Anderson who is going to testify about DNA results in this case, counsel
informs us he wants to ask the witness about studies done on an Arizona database, an
Illinois database where nine loci matches were examined.
She has no knowledge about such studies and the results of the studies. So we
ask—aside which they’re irrelevant. So we would ask that that question not occur.
THE COURT: [Public Defender] Anderson, when I sustained the objection
previously, this can be on the record, you’re asking somebody something they have
no knowledge of.
***
I don’t know if [Anderson] is aware of the Arizona studies or the Illinois studies
on nine loci, whether she has read them or not. But certainly if she is not aware and
hasn’t read them, she can’t be asked about them.
[PUBLIC DEFENDER ANDERSON:] I think what the State had talked to me
about was that they didn’t want the substance of these studies coming out because she
didn’t know about them. Obviously, I’m not going to bring out something that the
witness is unaware of because it wouldn’t be in evidence.
But I intend to ask, and I think I have a right to ask her, if she is aware of any
studies about nine loci matches in the actual population, or if she looked into whether
there are such studies.
THE COURT: When you say studies, do you have [a] specific study you’re going
to ask her about or are you asking about studies—just the general term studies?
[PUBLIC DEFENDER ANDERSON:] In fact, there are three studies. There is
Arizona, there is Illinois, which is a little surprising she is not aware of that one and—
THE COURT: She’s not aware of Arizona and not aware of Illinois.
[PUBLIC DEFENDER ANDERSON:] And there is Maryland.
***
But the fact that she is holding herself out as an expert in DNA and matches in
database and hasn’t even looked to see how many people actually match at nine, I
think that is relevant that she hasn’t even looked.
***
THE COURT: If she’s unaware of Illinois, Maryland and Arizona, those are the
three studies you’re talking about, if she is unaware of something, how can you
question her on it?
[PUBLIC DEFENDER ANDERSON:] If she has even looked is the question.
***
The State has told me, and I will accept their representation, that she doesn’t
know about this. This goes to her ability to—this goes to her qualification as an
expert. A person who is an expert in the field of DNA, forensic DNA who is
testifying about a partial nine loci match who has made no effort to see what the
results of that are in the actual population I think is relevant that the expert makes no
efforts—
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THE COURT: Let me ask you this. If you ask her if she has looked at these three
studies and she says no, are you prepared to prove up those studies exist?
***
Because we’re not going to leave a question hanging where someone didn’t look
at something and they’re being held not knowing what those things say.
You say you’re not bringing the results. So what is the jury going to get out of
this? You’re setting up a straw person to knock them down. Have you looked at this
study, this study, or this study? No, no, no. Then what are you going to argue? She
doesn’t even look at studies.
[PUBLIC DEFENDER ANDERSON:] Judge, it’s not a straw person. The fact of
the matter is she is unaware of actual studies that exist. I’m not making this up. There
are studies. I have a good faith basis for asking this. There are actual studies.
THE COURT: If you want to ask her if she is aware of these studies and she can
give an answer yes or no.”
Ultimately, the court accepted defense counsel’s representations that he would simply ask
Anderson if she was aware of the existence of the studies and, if she answered yes, then ask
if she was aware of the results on 9-loci matches. The court specifically ruled that defense
counsel could ask “whatever foundational questions you want to ask” about whether the
expert was “aware” of the searches or “looked” at the searches. Defense counsel, however,
did not ask Anderson the two questions the court would allow.
¶ 100 We first address the applicable standard of review. Defendant urges this court to employ
a de novo standard, arguing that this is a review of a motion for forensic testing. The State
responds that the proper standard is abuse of discretion, as the motion itself was withdrawn
and the argument now applies only to the court’s ruling limiting the cross-examination of
forensic scientist Anderson. We agree with the State. “Clearly, the scope and extent of
cross-examination and re-cross-examination are within the discretion of the court.” Adams v.
Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007) (citing People v.
Kirchner, 194 Ill. 2d 502, 536 (2000)). “ ‘[C]ross-examination should be kept within fair and
reasonable limits, and it is only in a case of clear abuse of such discretion, resulting in
manifest prejudice to the defendant, that a reviewing court will interfere.’ [Citation.]” Adams,
369 Ill. App. 3d at 998. As we are reviewing the propriety of the court’s limiting the scope of
cross-examination, we will apply an abuse of discretion standard.
¶ 101 Defendant’s argument here is based on the frequencies to which Anderson testified, that
is, that defendant’s DNA would be expected to occur in 1 in 52 million black males. He
concedes that the frequencies in this case were calculated using generally accepted
methodology and acknowledges our supreme court’s decision in People v. Miller, 173 Ill. 2d
167 (1996), which first approved of the use of the statistical method (known as the product
rule) which was used in this case. He argues, however, that the circuit court’s rulings, which
“effectively barred inquiry into the questionability of 9-loci matches,” gave too much weight
to the match.
¶ 102 To support his claim, defendant relies on People v. Wright, 2012 IL App (1st) 073106, to
argue that the results of offender database searches call the reliability of the frequency
calculations in this case into question. In Wright, a different division of this court discussed
the merits of DNA analysis in court procedures. In Wright, the cold case DNA evidence
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constituted essentially the sole evidence used to identify the defendant from a felony
database as the perpetrator of a sexual assault where the victim could not identify her
attacker. Wright, 2012 IL App (1st) 073106, ¶ 81. Addressing the trial court’s error in failing
to order, pursuant to a section 116-5 (725 ILCS 5/116-5 (West 2006)) motion, a pretrial
9-loci analysis between his DNA and a male DNA profile obtained from the victim’s rectal
swabs, the Wright court ultimately reversed and remanded for a new trial. Wright, 2012 IL
App (1st) 073106, ¶ 132.
¶ 103 The Wright majority acknowledged the fact that they were not asked to determine
whether the expert’s conclusion of a “match” based on only nine loci was correct but,
instead, they had been asked to determine whether the trial court abused its discretion in
denying the defense the ability to investigate and impeach that conclusion. Wright, 2012 IL
App (1st) 073106, ¶ 86. The court stated:
“The dangers of partial matches have been known for over a decade. For example,
in a highly publicized English case, Raymond Easton was charged in 1999 with
burglary after police had a ‘ “cold hit” ’ with his DNA in a database. Jennifer L.
Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13,
49-50 (2001); Allison Pari, Note, An International DNA Database: Balancing Hope,
Privacy, and Scientific Error, 24 B.C. Int’l & Comp. L. Rev. 341, 368-69 (2001). His
DNA ‘matched’ the DNA from the crime scene at six loci. Since British police
estimated that there was only a 1 in 37 million chance that such a match would occur
at random, he was charged with burglary. Mnookin, supra, at 50; Pari, supra, at
368-69. When Easton, who had advanced Parkinson’s disease, had an alibi, the police
ran a test at more loci and discovered that his DNA did not match at all. Mnookin,
supra, at 50; Pari, supra, at 368-69. The charges were, of course, dropped. Mnookin,
supra, at 50; Pari, supra, at 368-69.
As a result of the Arizona, Maryland and Illinois searches, some legal scholars
and scientists have questioned whether the extraordinarily large figures used in court
to estimate the probability of a nine-loci ‘match’ are ‘no better than alchemy.’ David
H. Kaye, Trawling DNA Databases for Partial Matches: What Is the FBI Afraid Of?,
19 Cornell J.L. & Pub. Pol’y 145, 146 (2009); Strutin, supra, at 54 (after the Arizona,
Maryland and Illinois searches, ‘academics and experts have added their voices in
calling for access to the DNA databanks to test the assumptions of profile rarity’). For
example, a Stanford mathematician has called these numbers ‘ “total nonsense” ’ and
‘ “a damned lie.” ’ Kaye, supra, at 148 (quoting Keith Devlin, Damned Lies,
Mathematical Association of America (2006), available at http://www.maa.org/
devlin/devlin_10_06.html.). He has stated that admitting this testimony into court is
‘ “disgraceful,” ’ and that courts ‘ “may as well admit alchemy and astrology.” ’
Kaye, supra, at 147 (quoting Keith Devlin, Damned Lies, Mathematical Association
of America (2006), available at http://www.maa.org/devlin/devlin_10_06.html.).
Although the trial court in the case at bar was not presented with the results of the
Maryland or Illinois searches, the trial court did have in front of it a report from the
search of the Arizona database, which revealed 120 pairs of 9-loci ‘matches’ in a
database of 65,493 offenders. Kaye, supra, at 154-55 (describing how the Arizona
study was conducted and its results). As one legal scholar has asked, if the frequency
‘for a nine-locus match is anything like “one in 754 million for whites, and one in 561
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million for blacks” [as some DNA experts testify], how can it be that a database as
small as [Arizona’s with] “a mere 65,493 entries” produces even one such match?’
Kaye, supra, at 155; Erin Murphy, The New Forensics: Criminal Justice, False
Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721,
781 (2007) (‘recent evidence calls into question the accuracy of using the product rule
to convey match probabilities’).
We have not been asked to determine whether the expert’s conclusion of a
‘match’ based on only nine-loci was correct. We have been asked to determine
whether the trial court abused its discretion in denying the defense the ability to
investigate and impeach this conclusion. Considering that a nine-loci analysis was the
primary identification evidence against defendant, the trial court abused its discretion
by denying defendant’s motion. Cf. People v. Watson, 2012 IL App (2d) 091328, ¶ 25
(defense counsel was ineffective for failing to probe the statistical meaning of a
seven-loci ‘match’ when plenty of arguments and evidence were available).” Wright,
2012 IL App (1st) 073106, ¶¶ 83-86.
¶ 104 A different division of this court disagreed with the holding in Wright and found it
unpersuasive. See People v. Crawford, 2013 IL App (1st) 100310. The Crawford court
considered, in part, the question of whether a defendant was denied the effective assistance of
trial counsel where counsel failed to convey to the jury the significance of a partial DNA
match. Crawford, 2013 IL App (1st) 100310, ¶ 123. The Crawford court found that the
theories relied upon by the Wright majority regarding the significance of the offender
database searches have been discredited. Specifically, the Crawford defendant argued, in
part, that he was denied the effective assistance of trial counsel because counsel failed to
cross-examine the DNA expert in such a way that the expert would “explain why the
frequency of the evidentiary profile was not as unique as she suggested.” Crawford, 2013 IL
App (1st) 100310, ¶ 128. The court held there was no ineffective assistance of counsel where,
in part:
“defendant’s complaints regarding the failure to argue with respect to an alleged
search of the Illinois DNA database that revealed nearly 2,000 profiles that matched
at nine loci has been discredited. As defendant’s own source explains, these database
trawls seek all possible pairs in a database (rather than one specific nine-loci
grouping), which result in a staggering number of comparisons. See David H. Kay,
Trawling DNA Databases for Partial Matches: What Is the FBI Afraid of?, 19
Cornell J.L. & Pub. Pol’y 145, 157 (2009). For example, if the database for the state
of Arizona contains 65,493 entries, a comparison search would produce over 2 billion
distinct pairs. Id. A search for 9 loci or more out of 13 loci (or, 715 distinct
combinations of 9 items out of 13) would produce 1.5 trillion ‘opportunities to find
nine-locus matches’ within the Arizona database. Id. Applying the same methodology
to defendant’s asserted claim of 220,456 profiles in the Illinois database would result
in 24.3 billion distinct pairs and a corresponding 17.4 trillion opportunities to find
9-locus matches out of 13-loci. If, as defendant claims, there were ‘903 pairs of
profiles matching at 9 loci,’ that probability would be vanishingly small when
compared with 17.4 trillion possible pairs, and trial counsel’s argument as to this
point would not have been of even arguable merit.” Crawford, 2013 IL App (1st)
100310, ¶ 133.
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Because counsel could not be ineffective for making a “fruitless argument,” the Crawford
court concluded that trial counsel could not have been ineffective for failing to hire an expert
and develop an argument that the offender database searches impeached the statistics in that
case. Crawford, 2013 IL App (1st) 100310, ¶ 133.
¶ 105 We disagree with defendant’s assertion that Wright is “precisely on point.” Specifically,
the Wright majority opinion does not demand a trial court allow cross-examination of a DNA
expert regarding a potential database search in all cases involving partial DNA profiles.
Rather, in a fact-specific analysis, the Wright court held that, where the Wright defendant had
fully preserved the issue for appeal, and where the expert had been provided the specific
study in question for review prior to trial, and the State had already obtained a favorable
ruling on the motion in limine on that specific issue, the trial court erred in “barring any
questions about [the study]” (Wright, 2012 IL App (1st) 073106, ¶ 132). Here, in contrast,
the State had not obtained a favorable ruling on the motion in limine, but instead, defense
counsel had withdrawn the motion of its own accord, and, importantly, the trial court did not
bar all questions about the study. Rather, as defendant concedes on appeal, the trial court
specifically ruled that defense counsel could ask “whatever foundational questions you want
to ask” about whether the expert was “aware” of the searches or “looked” at the searches.
Defense counsel, however, failed to take advantage of this opportunity and did not ask the
expert questions about the database searches. For these reasons, Wright does not offer
assistance to the case at bar.
¶ 106 We find no abuse of discretion here, where the trial court properly limited the
cross-examination of the DNA expert to subjects relevant to the case and to her expertise,
and the DNA expert employed an approved statistical method when she calculated the DNA
frequencies.
¶ 107 In summary, we find no error in the admission of DNA evidence at trial.
¶ 108 II. Other Crimes Evidence
¶ 109 Next, defendant contends he was deprived a fair trial where the court allowed the
“misuse” of his prior criminal record. Specifically, defendant argues that the jury was
misinformed as to the proper way to use evidence of prior convictions because the jury
instructions provided them did not draw a distinction between a conviction adduced for
impeachment purpose and one adduced for propensity purposes. To be clear, defendant does
not contest the admission of the other crimes evidence at trial. Rather, defendant claims that
the instructions provided to the jury in this case were both inadequate and incorrect in that
they did not explicitly include the names of the offenses for which defendant was previously
convicted. We disagree.
¶ 110 Initially, we note that defendant failed to preserve this issue for review where he neither
objected at trial nor included this issue in his posttrial motion. See Thompson, 238 Ill. 2d at
611-12 (“To preserve a claim for review, a defendant must both object at trial and include the
alleged error in a written posttrial motion.” (citing Enoch, 122 Ill. 2d at 186-87)). “Generally,
a defendant forfeits review of any supposed jury instruction error if he does not object to the
instruction or offer an alternative at trial and does not raise the issue in a posttrial motion.”
People v. Downs, 2015 IL 117934, ¶ 13. This encourages a defendant to raise issues before
the trial court, “thereby allowing the court to correct its errors before the instructions are
given, and consequently precluding a defendant from obtaining a reversal through inaction.”
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Downs, 2015 IL 117934, ¶ 13 (citing Piatkowski, 225 Ill. 2d at 564). However, “substantial
defects” in criminal jury instructions are not waived by the failure to object “if the interests
of justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). Rule 451(c) is coextensive with
the plain error clause of Illinois Supreme Court Rule 615(a) and is construed identically.
Piatkowski, 225 Ill. 2d at 564. As noted previously, the plain error doctrine allows a
reviewing court to consider unpreserved error “when (1) a clear or obvious error occurred
and the evidence is so closely balanced that the error alone threatened to tip the scales of
justice against the defendant, regardless of the seriousness of the error, or (2) a clear or
obvious error occurred and that error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. Under the plain error rule, we
consider whether any error has occurred at all. Lewis, 234 Ill. 2d at 43; Wilson, 404 Ill. App.
3d at 247 (“There can be no plain error if there was no error at all ***.”). This requires a
“substantive look” at the issue raised. People v. Johnson, 208 Ill. 2d 53, 64 (2003). We will
therefore first review defendant’s claim to determine if there was any error before
considering it under plain error.
¶ 111 “The purpose of jury instructions is to provide the jury with the correct legal principles
applicable to the evidence, so that the jury may reach a correct conclusion according to the
law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81 (2008). It is sufficient if the
instructions given to the jury, considered as a whole, fully and fairly announce the applicable
law. Bannister, 232 Ill. 2d at 81; People v. Mohr, 228 Ill. 2d 53, 65 (2008) (On review, the
question is whether the instructions, considered as a whole, fully and fairly announce the law
applicable to the theories of the parties.). Illinois Supreme Court Rule 451(a) requires that,
where a court in a criminal case determines that the jury should be instructed on a subject,
and the Illinois Pattern Jury Instructions (IPI) contains an applicable instruction, then the IPI
“ ‘shall’ be given unless the court determines it does not accurately state the law.” People v.
Durr, 215 Ill. 2d 283, 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)).
¶ 112 A trial court’s decision regarding jury instructions and verdict forms is reviewed under an
abuse of discretion standard. People v. Battle, 393 Ill. App. 3d 302, 313 (2009) (citing People
v. Jones, 175 Ill. 2d 126, 131-32 (1997)). It is within the discretion of the trial court to
determine the applicability of specific jury instructions. People v. Castillo, 188 Ill. 2d 536,
540 (1999).
¶ 113 Here, the trial court allowed the State to present evidence that defendant committed a
sexual assault against G.R. in 1984 as relevant to defendant’s propensity to commit sexual
attacks, motive, and intent. Prior to trial, the State filed a motion in limine seeking to
introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the
issues of defendant’s propensity to commit sexual attacks and to motive and intent, as two of
the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing
arguments from the parties, the court allowed evidence of the prior sexual assault as evidence
of defendant’s propensity to commit sexual attacks, motive, and intent, as two of the murder
counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court
determined:
“It is clear that in viewing the proof of other crimes sought to be admitted, it’s
relevant to the issues of defendant’s propensity to commit sexual attacks and to
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motive and intent. The statute [and] case law mandates this Court to allow the People
to present evidence of other crimes discussed above.”
¶ 114 During trial and prior to presenting the testimony of G.R., the trial court instructed the
jury:
“Ladies and gentlemen, in a moment evidence will be received that the Defendant
has been involved in an incident other than those charged in the indictment before
you. This evidence will be received on the issue of Defendant’s propensity. And may
be considered by you only for that limited purpose.”
¶ 115 The court also allowed evidence of the 1990 murder conviction “for the very limited
purpose” of impeachment in the event defendant were to testify. Specifically, after defendant
testified, the State entered a certified copy of defendant’s conviction for murder. The trial
court advised the jury:
“Evidence of the Defendant’s previously [sic] conviction of an offense may be
considered by you only as it may affect his believability as a witness, and must not be
considered by you as evidence of his guilt of the offense with which he is charged.”
¶ 116 At the close of trial, the court instructed the jury regarding the presumption of innocence.
It then instructed the jury, in pertinent part:
“Any evidence that was received for a limited purpose should not be considered
by you for any other purpose.
***
Evidence of a defendant’s previous conviction of an offense may be considered by
you only as it may affect his believability as a witness and must not be considered by
you as evidence of his guilt of the offense with which he is charged.
Evidence has been received that the Defendant has been involved in an offense
other than those charged in the indictment. This evidence has been received on the
issue of the Defendant’s propensity and may be considered by you only for that
limited purpose. It is for you to determine what weight should be given to this
evidence on the issue of propensity.”
¶ 117 The jury instructions with which defendant is concerned are Illinois Pattern Jury
Instructions, Criminal, Nos. 3.13, 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th). IPI
Criminal 4th No. 3.13 states:
“Evidence of a defendant’s previous conviction of an offense may be considered
by you only as it may affect his believability as a witness and must not be considered
by you as evidence of his guilt of the offense with which he is charged.” IPI Criminal
4th No. 3.13.
There is no blank in IPI Criminal 4th No. 3.13 to insert the name of the offense of which the
defendant was previously convicted.
¶ 118 IPI Criminal 4th No. 3.14 states:
[1] Evidence has been received that the defendant[s] [(has) (have)] been involved
in [(any offense) (offenses) (conduct)] other than [(that) (those)] charged in the
[(indictment) (information) (complaint)].
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[2] This evidence has been received on the issue[s] of the [(defendant’s)
(defendants’)] [(identification) (presence) (intent) (motive) (design) (knowledge)
(_________)] and may be considered by you only for that limited purpose.
[3] It is for you to determine [whether the defendant[s] [(was) (were)] involved in
[(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what weight should be
given to this evidence on the issue[s] of ________.” (Emphases added.) IPI Criminal
4th No. 3.14.
¶ 119 As given, IPI Criminal 4th No. 3.14 states:
Evidence has been received that the defendant has been involved in an offense
other than those charged in the indictment.
This evidence has been received on the issue of defendant’s propensity and may
be considered by you only for that limited purpose.
It is for you to determine what weight should be given to this evidence on the
issue of propensity.
Like IPI Criminal 4th No. 3.13, IPI Criminal 4th No. 3.14 does not have a blank in which
parties or the court can insert the name of the offense in which the defendant was involved.
¶ 120 Here, each instruction given the jury was taken from the IPI, and each accurately stated
the law. Accordingly, the instructions comported with Illinois Supreme Court Rule 451(a),
which requires that, where a court in a criminal case determines that the jury should be
instructed on a subject, and the IPI contains and applicable instruction, then the IPI “ “shall’
be given unless the court determines it does not accurately state the law.” Durr, 215 Ill. 2d at
301 (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)). In addition, the oral instructions given by
the court at the close of the case matched the IPI. Moreover, as noted above, the court
repeatedly informed the jury that the other crimes were being admitted for limited purposes.
Specifically, the court told the jury immediately prior to G.R.’s testimony that her testimony
was received only on the issue of defendant’s propensity, and, when the State introduced a
certified copy of defendant’s prior murder conviction, the court informed the jury that the
evidence was to be considered only as it may “affect [defendant’s] believability as a witness,
and must not be considered by you as evidence of his guilt of the offense with which he is
charged.” These jurors, who were properly instructed by the trial court, are presumed to
follow their instructions. See, e.g., People v. Wilmington, 2013 IL 112938, ¶ 49 (“Absent
some indication to the contrary, we must presume that jurors follow the law as set forth in the
instructions given them.”).
¶ 121 We find no error here, where, when considered as a whole, the jury instructions in this
case fully and accurately informed the jury of the applicable law, and the court carefully
instructed the jury throughout the trial and at the close of trial that the other crimes evidence
was to be considered for particular, limited purposes.
¶ 122 Defendant also contends he was denied the effective assistance of trial counsel where his
counsel did not tender alternative instructions to the jury. Specifically, defendant claims
counsel should have tendered modified other crimes instructions that specifically identified
defendant’s previous crimes and the purpose for which each was allowed into evidence.
Defendant urges that the proper instructions would have been:
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“Evidence of a Defendant’s previous conviction on the offense of murder may be
considered by you only as it may affect his believability as a witness and must not be
considered by you as evidence of his guilt of the offenses with which he is charged.”
And:
“Evidence has been received that the Defendant has been involved in a prior
sexual assault. This evidence has been received on the issue of Defendant’s
propensity and may be considered by you only for that limited purpose. It is for you
to determine what weight should be given to this evidence on the issue of
propensity.”
¶ 123 Every defendant has a constitutional right to the effective assistance of counsel. See U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of
counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668(1984). People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). To establish a claim
of ineffective assistance of counsel, a defendant must show that his attorney’s representation
fell below an objective standard of reasonableness and that he was prejudiced by this
deficient performance. Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d 504. Failure to
make the requisite showing of either deficient performance or sufficient prejudice defeats the
claim. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). To satisfy the first prong, a
defendant must overcome the presumption that contested conduct which might be considered
trial strategy is generally immune from claims of ineffective assistance of counsel. People v.
Martinez, 342 Ill. App. 3d 849, 859 (2003). To establish prejudice, a defendant must show
there is a reasonable probability that, but for counsel’s insufficient performance, the result of
the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000).
Specifically, the defendant must show that counsel’s deficient performance rendered the
result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.
¶ 124 Defendant’s claim in this regard fails because, as noted above, he was not prejudiced as a
result of the jury not receiving modified instructions. In addition, defendant’s claim fails
because he is unable to overcome the presumption that the contested conduct was not sound
trial strategy, where counsel could have reasonably made the sound strategic determination
not to focus the jury’s attention on defendant’s prior crimes. See People v. Johnson, 368 Ill.
App. 3d 1146, 1161 (2006) (Defendant was unable to show his trial counsel was ineffective
where counsel failed to request a limiting instruction for other-crimes evidence because
“[c]ounsel may have made a tactical decision not to request such an instruction to avoid
unduly emphasizing the other-crimes evidence.”).
¶ 125 III. Defendant’s Invocation of His Right to Remain Silent
and His Request for Counsel
¶ 126 Next, defendant contends the trial court erred in denying his motion for a mistrial based
on Lieutenant Wojcik’s testimony on cross-examination that all questioning of defendant
ceased when defendant asked for a lawyer. Defendant contends this error “places an
impermissible cost on the exercise of constitutional rights, and severely prejudices
[defendant’s exercise of his rights] and the provision of a fair trial.” We disagree.
¶ 127 The record in this matter reveals that, after defendant was provided with his Miranda
rights, defendant made an oral statement regarding the crimes. Although he did not admit in
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this statement that he was the perpetrator of the crimes, he admitted to familiarity with the
apartment complex and the murder victim Soucy, admitted he worked in the nearby area, and
admitted he was in Soucy’s apartment when he got angry and “blacked out,” only awaking
mentally as he was fleeing the burning building, with his hair singed from fire. This
statement was presented by Lieutenant Wojcik and Assistant State’s Attorney Bowden at trial
as an inculpatory statement. Defendant subsequently declined to memorialize that statement
when he asked for an attorney.
¶ 128 On cross-examination at trial, defense counsel asked Lieutenant Wojcik why he did not
request a court reporter to record defendant’s statement. Wojcik responded:
“[B]ecause at a certain point the defendant asked for an attorney, so we didn’t get
to that point where we would have called for a court reporter.
***
*** [I]t would have been—when I got done talking to him it was about 4:15. I
want to say it was some time around a little bit after 5:00 o’clock or so when he asked
for an attorney. When I was in there with the State’s Attorney was the first time he
asked for an attorney.”
Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was
the responsibility of the State’s Attorney. He said:
“The State’s Attorney would make [the decision to call a court reporter] in consult
with [defendant] if he was willing to do that, but while the State’s Attorney was
speaking to [defendant] he requested an attorney. So at that time all conversation
stops.”
¶ 129 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,
arguing that the witness repeatedly emphasized that defendant had requested an attorney. The
trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel
replied, “Because I didn’t want to emphasize that he had brought it out.” The trial court
denied the motion for a mistrial, saying “what prompted the part about the attorney is
because you [defense counsel] asked him questions about why weren’t charges approved
before the State’s Attorney got there,” and “the only logical answer he could say upon your
continuing questioning is, well, because he asked for an attorney. It was not brought out
volitiously [sic] by him. In my opinion it was brought out by your continuing questions for
that area.”
¶ 130 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of
questions about what he did and did not do while questioning defendant. Specifically,
defense counsel asked a series of questions regarding why Wojcik did not drive defendant up
to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon
where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to
find the salon, but did not drive defendant there to do so. Counsel again asked why, when
defendant allegedly had said the salon was in the neighborhood but was unsure of the street it
was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.
Wojcik answered:
“Again, Counsel, I probably would have done that, but he asked for an attorney,
which means at that point everything—any conversations I was having with him
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about the case had to stop, including putting him in a car and having him to point
locations out.”
¶ 131 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a
new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an
attorney. The trial court denied the motion, responding:
“The problem with this is the way you asked the question once it came out once
the charges were approved upon [the assistant State’s Attorney] arriving there and it
came out that he asked for an attorney and didn’t obviously want to talk to her
without one, this was a natural response to a question about after he was through
talking putting him in the car and taking him somewhere and having him find
someone.
This is exactly what happens when you are not directing him to a particular time.
You simply asked a question. I just wanted you to make a record. Your motion for a
new trial is denied. This is the fourth time he stated he wanted an attorney.”
¶ 132 Under Doyle v. Ohio, 426 U.S. 610, 619 (1976), it is error to comment on a defendant’s
post-arrest silence or his request for counsel. Doyle, 426 U.S. at 619. However, “ ‘Doyle
applies only when a defendant invokes his right to remain silent.’ ” People v. Velez, 388 Ill.
App. 3d 493, 508 (2009) (quoting People v. Patterson, 217 Ill. 2d 407, 445 (2005)). In
Illinois, once a defendant makes a post-Miranda oral statement, the introduction of evidence
that the defendant subsequently refused to memorialize that statement does not necessarily
violate the fifth amendment or conflict with the Doyle opinion. See, e.g., People v.
Christiansen, 116 Ill. 2d 96, 120 (1987) (recognizing that where a defendant fails to remain
silent after being apprised of his right to do so and instead makes oral statements, the
defendant has relinquished his rights under the fifth amendment and cannot claim that
testimony indicating he was unwilling to subsequently memorialize his oral statements
violated his right to remain silent); People v. Ruiz, 132 Ill. 2d 1, 16 (1989) (under
Christiansen, the State is allowed “to introduce, in its case in chief, evidence that a defendant
made an oral statement but refused to provide a written statement, on the theory that the
defendant did not exercise his right to silence”); People v. Lindgren, 111 Ill. App. 3d 112,
117 (1982) (“It is not error to elicit a complete recitation of police procedure, even if the
recitation includes reference to a defendant’s exercise of his constitutional rights, so long as
the recitation is not argued to be indicative of guilt.”).
¶ 133 Here, the evidence in question was not adduced in order to establish defendant’s guilt, but
was adduced in response to questioning as to why defendant’s statement was not
memorialized, as well as in regards to police procedure (e.g., why the officers did not take
defendant to the area of the crime and look for the hair salon in order to confirm defendant’s
statement). Aside from the cross-examination of Lieutenant Wojcik, there was no further
mention of defendant’s request for counsel, and the State did not reference the testimony in
its closing arguments. We find no error in the cross-examination testimony here.
¶ 134 Moreover, where we find no error in this cross-examination testimony, it follows that
defendant’s argument that he was denied the effective assistance of counsel where counsel
directed the cross-examination that brought out the comments regarding defendant’s
invocation of his fifth amendment rights also fails. Palmer, 162 Ill. 2d at 475-76 (failure to
make the requisite showing of either deficient performance or sufficient prejudice defeats the
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claim).
¶ 135 IV. Ineffective Assistance of Trial Counsel
¶ 136 Finally, defendant contends he was denied the effective assistance of trial counsel where
counsel allegedly made a series of errors regarding the DNA evidence at trial. Defendant
claims he was prejudiced where counsel should have (1) thoroughly challenged forensic
scientist Anderson regarding the DNA spillage, (2) recognized and then explored the alleged
chain of custody violation, (3) asked the allowed two questions regarding the 9-loci database
searches, and (4) specifically requested the trial court follow the Wright decision. Defendant
argues he merits a retrial where the combination of the above errors denied him a fair trial.
We disagree.
¶ 137 As noted above, to establish a claim of ineffective assistance of counsel, a defendant must
show that his attorney’s representation fell below an objective standard of reasonableness and
that he was prejudiced by this deficient performance. Strickland, 466 U.S. at 687-88;
Albanese, 104 Ill. 2d 504. Failure to make the requisite showing of either deficient
performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To
satisfy the first prong, a defendant must overcome the presumption that contested conduct
which might be considered trial strategy is generally immune from claims of ineffective
assistance of counsel. Martinez, 342 Ill. App. 3d at 859. To establish prejudice, a defendant
must show there is a reasonable probability that, but for counsel’s insufficient performance,
the result of the proceeding would have been different. Easley, 192 Ill. 2d at 317. To do so,
the defendant must show that counsel’s deficient performance rendered the result of the
proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.
¶ 138 As to defendant’s first claim, that he was denied the effective assistance of counsel where
counsel did not sufficiently challenge forensic scientist Anderson regarding the DNA
spillage, we disagree that counsel was ineffective where, even if counsel’s performance were
deficient, defendant would still be unable to show resulting prejudice. See, e.g., Palmer, 162
Ill. 2d at 475-76 (failure to make the requisite showing of either deficient performance or
sufficient prejudice defeats an ineffectiveness claim). Our review of the record shows that
trial counsel vigorously challenged Anderson’s testing and results, as well as the spillage of
the DNA material. For example, after the State brought out on direct examination that the
spill occurred, defense counsel elicited testimony on cross-examination that Anderson was
only able to determine the values at nine loci because she spilled the DNA, that she did not
know the profile for the additional four loci, and that if any of the remaining four loci did not
match defendant, he would be excluded as the offender:
“Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those [remaining
four un-resulted loci] is different than David Banks, then you could say with scientific
certainty that he is not the offender; is that correct?
A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.
Q. But you don’t know what those are, correct?
A. That’s correct.
Q. In fact, you spilled that DNA on your table, correct?
A. That’s correct.”
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¶ 139 Defense counsel also thoroughly questioned Anderson regarding her education and
qualifications, eliciting testimony during her qualification as an expert regarding her training
in population genetics and DQ-Alpha testing. Counsel then argued in closing that Anderson
was not sufficiently trained in statistics. Additionally, counsel emphasized in closing
argument that the full profile was not known because of the spillage, telling the jury:
“That they’ve proven [their] case when their expert spills the rapist DNA, and
they don’t have a full profile and it’s because of what they did that they don’t have
it.”
Defense counsel in this case vigorously cross-examined Anderson regarding her background,
experience, qualifications, and the spill itself. Defendant cannot show a reasonable
probability that further cross-examination regarding the spill would have changed the result
at trial. See Easley, 192 Ill. 2d at 317 (to establish prejudice, a defendant must show there is a
reasonable probability that, but for counsel’s insufficient performance, the result of the
proceeding would have been different). Defendant’s attempt to show that he was denied the
effective assistance of counsel fails.
¶ 140 Defendant’s argument that he was denied a fair trial where counsel failed to sufficiently
challenge the chain of custody also fails because, as we have determined inter alia, there was
no breakdown in the chain of custody. Defense counsel, therefore, was not ineffective for not
challenging the chain of custody of the DNA extracts where there was no breakdown in the
chain of custody.
¶ 141 Defendant’s claim that he was denied a fair trial where trial counsel should have asked
forensic scientist Anderson the two allowed questions regarding the Arizona and Illinois
database searches also fails for lack of resulting prejudice. As noted above, the trial court
heard arguments from the parties regarding whether or not Anderson could be examined
regarding the database searches. Ultimately, the court ruled that defense counsel could only
ask Anderson two questions regarding the studies of database searches: whether she was
aware of the studies’ existence and, if so, whether she was familiar with their contents. The
court expressly ruled that the substance of the searches would not be admissible. Defendant
now claims that trial counsel should have asked the two allowed questions and then called its
own expert, Donald Parker, who works in the Illinois State Police forensic sciences
command DNA indexing laboratory, as a witness to testify about the results of the search of
the Illinois offender database. Defendant, as noted above, concedes that the frequencies in
this case were calculated using generally accepted methodology, and acknowledges our
supreme court’s decision in Miller, 173 Ill. 2d 167, which first approved of the use of the
statistical method (known as the product rule), which was used in this case. Even if Parker
had been called to testify in this case, he would have been limited to reciting the results of the
searches; he would not have been able to testify that those search results in any way called
into question the DNA frequencies testified to by Anderson in this case because the DNA
results in this case were calculated in accordance with generally accepted methodology.
Defendant’s ineffective assistance argument fails where he is unable to show resulting
prejudice.
¶ 142 Finally, defendant’s argument that trial counsel was ineffective where, “had defense
counsel simply asked the circuit court to comply with this court’s decision in Wright, the
result would necessarily have changed,” also is unavailing where counsel did, in fact, ask the
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court to follow Wright. For example, in his May 20, 2010, motion for DNA database search,
defense counsel stated, in part:
“8. Wherefore, defendant requests the following DNA database searches pursuant
to 725 ILCS 5/116-5 and People v. Wright, 2010 Ill. App. LEXUS 245 (Ill. App. 1st
Dist., 2010) (reversible error for trial court failing to grant defendant’s motion for a
DNA Database Search in a 9 loci match case) ***.”
The State filed a response to that motion, and defense counsel filed a reply in which he again
cited Wright and asked the court to follow it. Counsel is not ineffective for failing to “simply
ask” the court to comply with a particular case when the record clearly shows that trial
counsel did precisely that. Defendant, therefore, cannot show resulting prejudice, and his
ineffective assistance of counsel argument is unavailing.
¶ 143 CONCLUSION
¶ 144 For all of the foregoing reasons, the decision of the circuit court of Cook County is
affirmed.
¶ 145 Affirmed.
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