Case Information
*1 I LLINOIS O FFICIAL R EPORTS Appellate Court
People v. Luna
,
District & No. First District, Fourth Division
Docket No. 1-07-2253
Filed April 25, 2013
Held Defendant’s conviction for first degree murder for the shooting deaths of seven employees of a fast-food restaurant was upheld over his ( Note: This syllabus contentions that expert testimony that defendant’s latent fingerprint was constitutes no part of the opinion of the court found on a napkin found in the restaurant should have been excluded or but has been prepared a hearing should have been held on the admissibility of the by the Reporter of evidence, that defense counsel was ineffective in failing to seek a Frye Decisions for the hearing, since the DNA found at the scene was too small to test for convenience of the reliable testing, that Daubert should be adopted for assessing the reader. ) admissibility of scientific evidence, that the prosecutor presented
improper comments in closing argument, and that the denial of defendant’s motion to admit out-of-court statements of two witnesses was an abuse of discretion.
Decision Under Appeal from the Circuit Court of Cook County, No. 02-CR-15430 (02); the Hon. Vincent M. Gaughan, Judge, presiding. Review Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Unsinn, Alan D. Goldberg, and Kahtleen M. Flynn, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.
OPINION
Juan Luna and James Degorski were charged with first degree murder for the 1993
shooting deaths of seven people at a Brown’s Chicken restaurant in Palatine, Illinois.
Following a severed jury trial in 2007, defendant Luna was found guilty of first degree
murder and sentenced to natural life imprisonment. Defendant presses several arguments on
appeal: (1) the trial court should have excluded expert testimony that a latent print found on
a napkin matched defendant’s palm print, or the court should have granted defendant’s
request for a
Frye
hearing, because the “controversy surrounding latent print identification”
shows that the relevant scientific community does not generally accept the method used to
match latent prints to known prints; (2) defense counsel was ineffective for failing to move
for a
Frye
hearing, because testing showed that the amount of DNA recovered from the crime
scene was less than 0.5 nanograms, and obtaining a profile from such low amounts of DNA
is not generally accepted within the relevant scientific community; (3) this court should
discard and adopt
Daubert v. Merrell Dow Pharmaceuticals, Inc.
,
defendant. We provide a brief overview of the relevant testimony, which we explore in more detail, where necessary, as part of our analysis.
¶ 5 I. Defendant’s Statements
¶ 6 A. Eileen Bakalla
¶ 7 Eileen Bakalla testified that on January 8, 1993, James Degorski called and asked her to
meet him and defendant in the parking lot of a Jewel grocery store in Carpentersville, Illinois. Bakalla was Degorski’s close friend, and she knew defendant; they would visit at Degorski’s house and smoke marijuana. When she met them in the parking lot, Bakalla saw Degorski and defendant in defendant’s car, along with latex gloves and a canvas money bag. The men got into Bakalla’s car, and as she drove them to her home, they told her they had robbed the Brown’s Chicken. At Bakalla’s home, defendant and Degorski split the money in the bag, which Bakalla estimated at over $1,000. They gave $50 to Bakalla, which she said was repayment for a loan she had given to Degorski. The three smoked marijuana, relaxed for a few hours, and Bakalla drove defendant back to his car. Bakalla and Degorski then drove past the Brown’s Chicken restaurant, where she saw numerous ambulances and police cars. The next day, Bakalla met Degorski at a car wash, where Degorski “extensively cleaned” defendant’s car. A few weeks later, Bakalla and defendant were at Degorski’s house. Defendant smiled as he talked about slitting a lady’s throat. Bakalla testified that on November 25, 1995, a police officer investigating the murders
asked her to go to the Palatine police station. She went with Degorski and defendant, who had been an employee at the Brown’s Chicken. Bakalla told a police officer that she was with Degorski and defendant at her house on the night of the murders, and they found out about the murders the next morning. Bakalla testified that only some of that was true. Bakalla admitted that, in exchange for her testimony, the State’s Attorney’s office promised Bakalla that she would not be prosecuted for “obstruction of justice” or “concealment or accessory after the fact.” The judge instructed the jury to view Bakalla’s testimony “with caution.” B. Anne Lockett Anne Lockett testified that in 1991, when she was 17 and still in high school, she met defendant and Bakalla through Degorski. Defendant, Degorski, and Lockett used to drink and smoke marijuana together. Lockett, who used others drugs like PCP and LSD, started dating Degorski in 1992 when she was 17. On January 7, 1993, she was admitted to Forest Hospital after she attempted suicide. A few days after she was admitted, Degorski called her at the hospital. Lockett testified that after the phone call, she watched the evening news. The lead story was the Brown’s Chicken murders. After she was discharged from the hospital on January 25, 1993, Lockett went to
Degorski’s house. Defendant was there. Degorski asked Lockett if she wanted to know what happened at Brown’s Chicken, and Lockett said yes. Lockett testified that “they” told her that they went to the Brown’s Chicken with pockets full of bullets. Degorski had a .38-caliber revolver. They went in around closing and defendant ordered chicken, which angered Degorski because he was worried about leaving greasy fingerprints. Lockett testified that *4 they told her they put on gloves in the bathroom. The men blocked the back exit door with a wedge so that no one could run out the back exit.
¶ 12 Lockett testified that both men admitted shooting the victims with Degorski’s gun. At
one point, one of the Brown’s employees ran through the kitchen, jumped over the counter, and was shot. They told her one of the boys who was left in the cooler had vomited French fries before he died. Defendant demonstrated how he cut the throat of “a woman who made him mad, something about the safe.” Afterward, they cleaned up and disposed of their clothing, shoes, and the gun. Degorski threatened to kill Lockett if she said anything, and he told her that because she had been in the hospital at the time, he was going to use Bakalla as an alibi.
¶ 13 In March 2002, Lockett eventually recounted to a friend what Degorski and defendant
had told her. That same month, after the friend had gone to police, Sergeant Bill King of the Palatine police department contacted Lockett. Lockett admitted that she did not come forward earlier, even when Martin Black, a friend of hers, was arrested for the murders.
¶ 14 Lockett testified that her drug and alcohol use continued until 2004, when she was sent
to “detox” after arriving to work intoxicated. Lockett relapsed a year later, but, at the time of trial, she had been sober for one year. She denied significant memory or cognitive difficulties, but when she testified before the grand jury, Lockett read from a statement the prosecutor’s office had typed out.
¶ 15 C. Defendant’s Videotaped Statement Following his arrest on May 16, 2002, defendant gave a videotaped statement that he and
Degorski went to Brown’s Chicken to commit a robbery. Assistant State’s Attorney Darren O’Brien testified that on May 17, 2002, he spoke with defendant, who after waiving his Miranda rights, agreed to give the statement. The statement was played for the jury. Defendant stated that on January 8, 1993, he and Degorski planned to rob thе Brown’s Chicken in Palatine; they chose the restaurant because defendant had worked there and knew there was no alarm. They decided to go there “at closing time like around 9:00 o’clock” because fewer people would be there and because there would be money at that time since “everybody was doing their counts to make deposits for the bank or just to count and leave some in there in the safe.” At around 9 p.m., defendant and Degorski drove to the restaurant, parked “on the north side of the building,” and then “walked by the west side of the building to walk inside, by the west side, double side doors to walk in there.” Defendant ordered “four or five pieces of chicken,” and the two walked “on the west side of the building” to sit down at “the first booth next to the garbage can.” Defendant and Degorski then put on latex gloves and decided to go ahead with the
robbery. Defendant approached Rico Solis, who was mopping the floor, and told him to go to the back of the restaurant. Degorski fired a shot and told everyone to get on the floor. One employee tried to jump over the counter, and Degorski shot him. Degorski took the man into “the west side cooler,” and at some point, took Richard Ehlenfeldt, one of the owners, into the cooler. Degorski then fired several shots. Defendant kept an eye on the five other employees until Degorski ordered them into the
freezer. Degorski gave defendant a knife and told him to have the “lady owner” (Lynn Ehlenfeldt) get the money out of the safe, but “with everything going all wild and crazy,” defendant “got caught up in the moment and *** cut her on her throat.” Degorski then handed the gun to defendant, took some money out of the safe and dragged Lynn Ehlenfeldt into the freezer. When defendant looked into the freezer, the four men inside pleaded with him not to shoot. Defendant fired one shot into the freezer, and Degorski then took the gun back and fired repeatedly into the freezer. After Degorski checked to “make sure everyone was dead” by kicking them and poking them with a stick, he and Degorski turned off the lights and locked the doors to make it look like the place was closed. After leaving through the side employee door, defendant and Degorski drove to Carpentersville where they met Bakalla. She then drove them in her car to her house where defendant and Degorski split the money.
¶ 20 II. Palm Print Evidence
¶ 21 Dr. Jane Homeyer testified that at the time of trial she was the Director of Competencies
and Standards in the Office of the Director of National Intelligence. She had also worked for the FBI, but before 1999, Dr. Homeyer was a forensic scientist at the Northern Illinois Police Crime Laboratory (NIPCL). Testifying as an expert in the “field of prints and *** crime scenes,” Dr. Homeyer explained that she was part of the team that documented the Brown’s Chicken crime scene. Her primary responsibilities were to process prints and help collect and preserve evidence. On January 11, 1993, while examining the scene at the Brown’s Chicken, Dr. Homeyer
saw that the register receipt on one of the cash registers showed that a four-piece chicken meal with fries, coleslaw, and a small drink was purchased at 9:08 p.m. She also noticed that, although the garbage receptacle on the west side of the dining room had a relatively fresh bag, it contained a cardboard box with four pieces of chicken, scattered French fries, biscuits, coleslaw, paper products (including four used napkins), and other chicken pieces and bones. Dr. Homeyer and her colleague Chris Hedges removed the plastic garbage bag and set it on the floor so that they could “compar[e] the cash register receipt with the general contents of the garbage bag to see if in general they looked and appeared to be consistent.” After concluding that there “was good alignment between the items, the food items, and the paper items that were in the bottom of the garbage bag” with what was on the register tape, Dr. Homeyer began separating out the paper items from the food items. She sealed them in paper bags and transported them to the laboratory for processing. On January 14, 1993, Dr. Homeyer began processing the paper items for fingerprints at
the NIPCL laboratory. Dr. Homeyer examined the four napkins from the bag under various angles of light to see if there were any patent print impressions. She then dipped each in a ninhydrin solution to help make any latent fingerprints visible. Dr. Homeyer found one suitable impression on one napkin and photographed it (ninhydrin prints fade over time). She repeated the ninhydrin treatment to enhance the print and took another photograph. Later, sometime around January 22 or 23, 1993, at the Illinois State Police Crime Laboratory, Dr. Homeyer attempted to use zinc chloride to react with the lipids in the print *6 residue to develop additional impressions on the napkins. No additional prints were developed, but the process left the earlier-developed print obscured by darkened or blackened areas.
¶ 26 Dr. Homeyer examined defendant’s fingerprint and palm print cards on March 2, 1993,
but the left palm print was missing from those cards. Arlington Heights Police Officer Ronald Sum testified that he interviewed defendant (along with other former Brown’s employees) and took defendant’s fingerprints and palm prints, along with his photograph, on February 17, 1993. Sum testified that he accidentally failed to include defendant’s left palm print on the card.
¶ 27 After defendant’s arrest, however, his full palm prints were submitted to John
Onstwedder, a latent print examiner, whо testified as an expert in latent print examination at trial. Onstwedder, a member of the International Association for Identification, had testified over 100 times as an expert in latent print examination. He concluded that the napkin print matched a small area of the palm under defendant’s left “pinky.” Using a technique known as ACE-V (analysis, comparison, evaluation, and verification), Onstwedder testified in detail about the common characteristics between the latent print and defendant’s known print. On cross-examination, Onstwedder testified that he first ran the print through the
Automated Fingerprint Identification Service (AFIS), which contains only fingerprints. When Onstwedder performed the comparison between the known print and the latent print, he knew that defendant had been arrested and that “there was other evidence pointing at him.” While Onstwedder testified that he had never made an error, he acknowledged that errors in fingerprint identification have occurred in the past, and he testified about his knowledge of specific cases of erroneous identifications. He also acknowledged that earlier in the investigation, two examiners had matched the napkin print to someone other than defendant. Onstwedder agreed that “every step of the way involves subject calls or judgment calls for you [to] get to the next step.” III. DNA Evidence Along with the paper napkins, the chicken bones in the garbage bag were taken back to
the evidence room on January 11, 1993. At some point, Dr. Homeyer combined all the food pieces into a single plastic bag. The bag was stored at the NIPCL laboratory at room temperature until January 14, 1993, when she opened it to inventory and photograph the chicken pieces found in the box. In 1994, Dr. Homeyer sent the chicken pieces to a private laboratory, Life Codes, for
DNA testing. Rich Cunningham, a former employee of Life Codes, testified that he attempted to obtain a DNA sample from one of the chicken bones, but the amount of DNA potentially present, about 1 to 2 nanograms, was too small for the type of testing Life Codes was using at the time. Cunningham was looking for a sample size of around 10 nanograms, as Life Codes was not yet using “Short Tandem Repeat” (STR) testing, which works well with smaller amounts of DNA. After the testing, Cunningham disposed of the bone he tested. In Cunningham’s opinion, there “would be no reason” to keep the bone, for he had exposed *7 the bone to a chemical bath, such that he had removed “all the cellular material” from the bone. He returned the other untested chicken bones to the Palatine police.
¶ 32 Ornithologist Dr. David Willard testified that in June 1995, he received the chicken
evidence at the Chicago Field Museum from Palatine police officers. He attempted to determine how many pieсes of chicken were in the garbage bag. The partially thawed chicken was set out on an unsterilized table in a semi-public area of the museum. Dr. Willard and a colleague pulled back meat from some of the bones and removed meat from others. They did not wear gloves or masks. Dr. Willard testified that he looked at each bone and gave it a name ( e.g. , “wing bone”), but he could not determine what type of meal ( e.g. , four-piece or five-piece) was presented by the chicken pieces because he did not know what type of pieces were included in those different-sized meals.
¶ 33 Debra Depczynski of the Illinois State Police Forensic Science Center in Chicago (ISP
laboratory) testified that on September 18, 1998, she began tests to determine if there was any saliva on the partially eaten chicken bones. On two of the five bones, she was able to get a positive result. Depczynski gave a set of four swabs for each of the two bones to Cecilia Doyle for testing. Cecilia Doyle, chief of the Biology-DNA section of the ISP laboratory, testified as an
expert in the field of DNA analysis. As explained in greater detail in the analysis section below, Doyle used STR DNA analysis on the swabs from the two bones and was able to obtain a nine-loci DNA profile from the bones. She explained that in 1998, the laboratory was only looking at 9 allele locations for DNA profiles and did not advance to 13-loci DNA testing until 1999. The testing revealed that each sample contained DNA from multiple contributors. Doyle
testified that a DNA profile, viewed on a graph called an electropherogram, normally has just two peaks at any one area of the DNA ( i.e. , any locus), because half of the DNA is inherited from the mother and half from the father. When an allele ( i.e. , an area of genetic variation that analysts measure and use for comparison) is detected at a particular locus, it is represented by a peak plotted at a point on the electropherogram. Here, Doyle saw more than two peaks at two of the nine loci tested, indicative of a mixture. To bring up more alleles from the “minor profile” (the one with lower peak heights), Doyle repeated the analysis using more of the sample. That test revealed alleles at four more loci. Kenneth Pfoser testified as an expert in the field of DNA. In May 2002, when he was
assistant DNA technical leader at the ISP laboratory, Pfoser reviewed the DNA profile obtained from defendant (in 2002 and 2004) as well as the major profile obtained from the chicken bone swabs. In his opinion, the profiles matched. He testified that the profile would be expected to occur in 1 in 139 trillion Black, 1 in 8.9 trillion Caucasian, and 1 in 2.8 trillion Hispanic unrelated individuals. Defendant presented testimоny of Dr. Karl Reich, founder and part owner of a private
laboratory that performs and advises on DNA testing for law enforcement and private individuals. Dr. Reich, who holds an M.D. and a Ph.D. in molecular biology, testified that the ISP ran the 220,456 records in the Combined DNA Index System (CODIS) database against each other to determine the number of nine-loci matches. The study revealed 903 *8 pairs of matching nine-loci profiles in the database, i.e. , 1,806 persons with identical DNA at nine loci. In Dr. Reich’s opinion, the study cast doubt on the State’s claim that the odds of another unrelated Hispanic sharing defendant’s DNA at nine loci are 1 in 2.8 trillion.
¶ 38 Dr. Reich also testified that there was “no way” to determine the source of the DNA or
when the DNA was deposited on the bone. Dr. Reich stated that 13 loci, not 9, are necessary to have a “scientifically, fully justifiable identity match.” On cross-examination, Dr. Reich testified that his laboratory was paid over $100,000 for its work on this “very complicated” case.
¶ 39 In rebuttal, the State called Dr. Ranajit Chakraborty, who testified that the results of the
Illinois DNA database study did not cast doubt on the random match probability that another person shares defendant’s particular nine-loci profile.
¶ 40 IV. Statements of John Simonek Before trial, the court granted defendant’s motion to admit a statement by John Simonek,
given to Palatine detectives August 9, 1999, that he and Todd Wakefield committed the murders. According to Simonek’s videotaped statement, which was played for the jury, he and Wakefield went to Brown’s Chicken on the evening of January 8, 1993. Wakefield drove a brown station wagon, which he parked on the east side of the restaurant, and Simonek and Wakefield entered through the east door. Wakefield ordered food. Five to ten minutes later, he pulled out a revolver and told the employees to move into the freezer. According to Simonek, Wakefield “moved everybody except for two people into the freezer,” and Simonek escorted the two people into the “other freezer.” As he moved back toward Wakefield, Simonek heard gunshots and “started freaking
out.” Wakefield shot the people in the freezer and then ordered Simonek to shoot the people in the cooler. Simonek argued with him and told Wakefield he did not “want any part of this,” but Wakefield “proceeded to make [Simonek] do it anyway.” Simonek “recall[ed] shooting somebody outside the freezer,” but did not “remember how they got out there though.” When Wakefield directed Simonek to shoot the person inside the cooler, Simonek resisted, but then shot into plastic strips over the entrance of the cooler. Wakefield and Simonek moved the body that was outside the cooler into the cooler and “laid it on its right side facing east.” Simonek then saw Wakefield stab two or three people in the freezer. Before leaving, Simonek saw that the freezer door was left partially open. He waited in the car for Wakefield, who drove him home. Simonek said he was “very sorry it happened,” he “just want[ed] this to be over,” and he “hope[d] [Wakefield] gets locked up.” Before giving the videotaped statement, Simonek was arrested on August 5, 1999. Sergeant King testified that Jim Bell, coordinator of a task force to investigate the Brown’s Chicken murders, had Simonek arrested, without King’s knowledge, when King was on vacation. Police officer Steve Bratcher, who was one of the officers present for the statement, denied supplying Simonek with details about the crime scene. After giving his statement on August 9, 1999, Simonek was released and never prosecuted. Assistant State’s Attorney John Dillon testified that in July 1998, he had questioned
Simonek at the request of Jim Bell. Simonek initially described what he was telling Dillon *9 as a “vision statement,” meaning that the information Simonek gave was based on a vision he had. Dillon further testified that Simonek gave five statements, none of which was the same, which Simonek claimed were based on his firsthand knowledge.
¶ 45 Apart from Simonek’s statement, the court denied defendant’s motion to admit two other
statements made to police, from Todd Wakefield and his former girlfriend, Casey Sander. In his statement, Wakefield told police that he was at Brown’s Chicken on the night of the murders, that he ate the last meal sold that night, but that he was not involved in the murders. Sander told police that she saw Wakefield shoot people at the Brown’s Chicken, but she denied any involvement in the murders. The trial court found that these hearsay statements, discussed in more detail in the analysis below, could not be admitted as statements against penal interest.
¶ 46 The jury found defendant guilty of seven counts of first degree murder. The trial court
denied defendant’s motion for a new trial. The jury found defendant eligible for the death penalty but did not reach a unanimous verdict on imposing a death sentence, and the court sentenced defendant to natural life imprisonment. Defendant now appeals. ANALYSIS I. Latent Print Evidence Defendant first argues that the trial court erred when it denied his motion in limine to
exclude John Onstwedder’s expert testimony that defendant’s palm print matched the partial
latent print from the napkin found at Brown’s Chicken. Defendant contends that the method
used to match a known print to a latent print, known as friction ridge analysis or, more
specifically “ACE-V,” is not generally accepted in the relevant scientific community and thus
the expert testimony should have been excluded under
Frye v. United States
,
¶ 51 A. Judicial Notice of General Acceptance ¶ 52 “A court may determine the general acceptance of a scientific principle or methodology
in either of two ways: (1) based on the results of a
Frye
hearing; or (2) by taking judicial
notice of unequivocal and undisputed prior judicial decisions or technical writings on the
subject.”
McKown I
,
notice of the general acceptance of actuarial risk assessment.
Simons
,
general scientific acceptance can be a hollow ritual if the underlying issue of scientific
acceptance has not been adequately litigated,” the court concluded that “general acceptance
of actuarial risk assessment has been thoroughly litigated in several states.” (Internal
quotation marks omitted.)
Id.
at 537. As an example, the
Simons
court reviewed a Florida
appellate court opinion where the court reviewed testimony of four experts at trial (which
showed that actuarial risk assessment was frequently used), “exhaustively examined”
conclusions reached by a number of other psychologists in the academic literature, and
“surveyed the nationwide jurisprudence,” which uniformly found actuarial risk assessment
evidence admissible.
Id.
at 537-39 (citing
Roeling v. State
,
purposes of
Frye
“[g]iven the history of legal challenges to the admissibility of HGN test
evidence, and the fact that a
Frye
hearing has never been held in Illinois on this matter.”
Id.
at 258. The court relied on a decision of the California Supreme Court, which held that
“ ‘HGN testing has been repeatedly challenged in court, with varying degrees of success, in
this and other states, and accordingly its courtroom use cannot fairly be characterized as
“routine” or settled in law.’ ”
Id.
at 257 (quoting
People v. Leahy
,
decisions of the Illinois Appellate Court. While two districts of the Illinois Appellate Court
had taken judicial notice of general acceptance of HGN testing as an indicator of
intoxication, in another decision,
People v. Kirk
,
acceptance of HGN testing “based on the technical writings on the subject,” the court found that “HGN testing appears to have as many critics as it does champions.” Id. at 275. Without an “unequivocal or undisputed viewpoint” from the scientific literature, the court decided that it could not “take judicial notice of the general acceptance of the HGN test as a reliable indicator of alcohol impairment based on these technical writings.” Id. In contrast to its resolution in Simons , the McKown I court concluded that general acceptance could not be resolved on judicial notice alone:
“In light of the disparate resolutions of the issue in foreign jurisdictions, the varying opinions expressed in articles on the subject, the fact that a Frye hearing has never been held on the matter in Illinois, and the fact that, as far as we are aware, the last Frye hearing held on this controversial methodology was held in Washington in 2000, we hold that a hearing must be held to determine if the HGN test has been generally accepted as a reliable indicator of alcohol impairment.” Id. at 275.
With this framework in mind, we turn to the relevant methodology in this case. B. Latent Print Identification: The ACE-V Method Print examiners compare impressions left by “friction ridge skin” found on the inner surfaces of the hand, the fingertips, between and along the fingers, the palms, and on the soles of the feet. While defendant does not dispute that human friction ridge skin is unique and permanent, defendant challenges the method used to match a latent print ( i.e. , a fingerprint impression that is not visible to the naked eye without chemical enhancement) with the print of an identified source. That method is known as “ACE-V,” which signifies analysis, comparison, evaluation, and verification. While the steps performed under ACE-V are essentially the same steps performed by fingerprint experts over the last hundred years, ACE-V has been identified in forensic literature as a means of comparative analysis of evidence since 1959. Natiоnal Research Council of the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward 37 (2009) (NRC Report). The ACE-V method has been generally described as follows:
“The process begins with the analysis of the unknown friction ridge print (now often a digital image of a latent print). Many factors affect the quality and quantity of detail in the latent print and also introduce variability in the resulting impression. *** * * *
*** If the examiner deems that there is sufficient detail in the latent print (and the known prints), the comparison of the latent print to the known prints begins. Visual comparison consists of discerning, visually ‘measuring,’ and comparing–within the comparable areas of the latent print and the known prints–the details that correspond. The amount of friction ridge detail available for this step depends on the clarity of the two impressions. The details observed might include the overall shape of the latent print, anatomical aspects, ridge flows, ridge counts, shape of the core, delta location and shape, lengths of the ridges, minutia location and type, thickness of the ridges and furrows, shapes of the ridges, pore position, crease patterns and shapes, scar shapes, and temporary feature shapes (e.g., a wart).
At the completion of the comparison, the examiner performs an evaluation of the agreement of the friction ridge formations in the two prints and evaluates the sufficiency of the detail present to establish an identification (source determination). Source determination is made when the examiner concludes, based on his or her experience, that sufficient quantity and quality of friction ridge detail is in agreement between the latent print and the known print. Source exclusion is made when the process indicates sufficient disagreement between the latent print and known print. If neither an identification nor an exclusion can be reached, the result of the comparison is inconclusive. Verification occurs when another qualified examiner repeats the observations and comes to the same conclusion, although the second examiner may be aware of the conclusion of the first.” NRC Report, supra , at 137-38.
¶ 62 C. Latent Print Analysis as “New” or “Novel” As a threshold matter, we must consider whether a Frye inquiry is required at all, for
application of the
Frye
tandard is limited to scientific methodology that is considered “new”
or “novel.”
McKown
,
latent print analysis precludes a conclusion that the “methodology used in [the] comparison
of the latent and known prints” is new or novel.
People v. Mitchell
, 2011 IL App (1st)
083143, ¶ 31. In
Mitchell
, this court reasoned that “[u]ntil our supreme court decides
otherwise, as it did with regard to the HGN evidence in
People v. McKown
,
methodology have been uniformly rejected by state appellate courts (under
Frye
,
Daubert
,
or some hybrid standard of admissibility) and by federal appellate courts (under
Daubert
).
[1]
See,
e.g.
,
State v. Dixon
,
methodology is not generally accepted within the relevant scientific community or holding that finger or palm print evidence is inadmissible. Instead, while acknowledging the pervasive use of fingerprint identification–and the overwhelming conclusion by the courts that such evidence is admissible under Daubert or Frye –defendant argues that recent criticisms of the ACE-V method in the scientific literature preclude this court from taking judicial notice of its general acceptance. Focusing primarily on a 2009 report from the National Research Council of the National Academy of Sciences, defendant identifies several specific criticisms of the ACE-V method, which he contends establish a lack of general acceptance within the relevant scientific community. NRC Report, supra . Defendant further argues that because earlier court decisions merely reflect “[u]ncritical admission of latent print evidence,” or otherwise do not address the report’s critiques, it was improper for the trial court to take judicial notice of court decisions finding a general acceptance of latent print identification. For several reasons, we conclude that these criticisms–which have already been considered in detail by courts since the report’s release–do not undermine the *16 uniform judicial conclusion that latent print identification is generally accepted in the scientific community. First, under the Frye framework in Illinois, various critiques that defendant highlights
from the NRC Report go to the weight of the evidence, not to its admissibility under
Frye
.
Our supreme court has repeatedly reaffirmed that under
Frye
, our role is to evaluate the
underlying methodology used to generate the conclusion, not the conclusion reached by the
examiner: “If the underlying method used to generate an expert’s opinion [is] reasonably
relied upon by the experts in the field, the fact finder may consider the opinion–despite the
novelty of the conclusion rendered by the expert.”
Donaldson
,
to specific claims from latent print examiners. For example, the report contends that
examiners have no justification for “claims of absolute, certain confidence” when declaring
a match, and that examiners sometimes testify to a “zero error rate,” even though there are
known cases of false identification based on errors in human judgment or in execution of the
ACE-V method. NRC Report,
supra
, at 143-44; see also
Gambora
,
or limited under traditional evidentiary rules, even where Frye is not a bar to admissibility. In McKown II , in response to the defendant’s argument “that despite its relevance, a failed HGN test result ‘proves too much’ because of its ‘aura’ of scientific certainty,” the court noted that “finding that HGN evidence meets the standard does not preclude the possibility that, in a given case, the trial court might rule such evidence inadmissible on grounds of undue prejudice.” McKown II ,236 Ill. 2d at 305. Similarly, where an expert testifies as to a generally accepted method, the proponent of that testimony has the burden of laying a proper foundation. Id. at 311. While we express no opinion about the viability of specific efforts to exclude claims of zero error or testimony regarding the certainty of a match *17 in future cases (which depend on the specific testimony and the support offered for those claims), we reiterate that a Frye admissibility challenge is not the proper vehicle to question the conclusions an examiner reaches in a particular case. Further, in this case, latent print examiner Onstwedder was thoroughly cross-examined by defense counsel about his ability to draw a conclusion as to the partial palm print in this case, as well as the reliability of latent print identification in light of past mistaken fingerprint identifications and the subjective nature of comparison. Second, while there is no doubt that the report raises important criticisms of the ACE-V
method and otherwise highlighted areas for further research, the report is not a proxy for the admissibility of latent print evidence under either Frye or Daubert :
“The committee decided early in its work that it would not be feasible to develop a detailed evaluation of each discipline in terms of its scientific underpinning, level of development, and ability to provide evidence to address the major types of questions raised in criminal prosecutions and civil litigation.” NRC Report, supra , at 7. Nor do the specific critiques of ACE-V, in themselves, necessarily reflect a view that the methodology is not “sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Internal quotation marks omitted.) Simons , 213 Ill. 2d at 529-30. To be sure, the report is critical of the ACE-V methodology and its reliance on subjective assessment of an examiner:
“ACE-V provides a broadly stated framework for conducting friction ridge analyses. However, this framework is not specific enough to qualify as a validated method for this type of analysis. ACE-V does not guard against bias; it is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results. For these reasons, merely following the steps of ACE-V does not imply that one is proceeding in a scientific manner or producing reliable results.” NRC Report, supra , at 142.
Yet in its summary assessment of print identification, the report explains that “[b]ecause of
the amount of detail available in friction ridges, it seems plausible that a careful cоmparison
of two impressions can accurately discern whether or not they had a common source.”
Id.
And the report acknowledges that “[h]istorically, friction ridge analysis has served as a
valuable tool, both to identify the guilty and to exclude the innocent.”
Id.
As the Supreme
Court of Massachusetts explained, the report “does not conclude that fingerprint evidence
is so unreliable that courts should no longer admit it.”
Gambora
,
“As our discussion of the NAS Report reflects, there is tension in the report between its assessments that, on the one hand, ‘it seems plausible that a careful comparison of two impressions can accurately discern whether or not they had a common source,’ NAS Report at 142; but that, on the other, ‘merely following the steps of ACE-V does not imply that one is proceeding in a scientific manner or producing reliable results.’ Id. We are not able to resolve that tension at this time, as the dialogue in the relevant community appears to be a continuing one, see NAS Report at 144-145 & n. 37, but nothing in this opinion should be read to suggest that the existence of the NAS Report alone will require the conduct of Daubert - Lanigan hearings as to the general reliability of expert opinions concerning fingerprint identifications.” Gambora ,933 N.E.2d at 61 n.22. [4] Third, while the report represents the views of a segment of the scientific community, it
does not neatly reflect the views of the entirety of the relevant scientific community. This court has counseled against too narrowly defining the relevant scientific community to those who share the views of the testifying expert. See Bernardoni v. Industrial Comm’n , 362 Ill. App. 3d 582, 595 (2005) (“The community of experts must include a sufficiently broad sample of experts so that the possibility of disagreement exists.”). But we would make a similar mistake if we assume that the criticisms in the report are representative of the views of experts throughout the community. Although the parties offer little discussion of the makeup of the relevant scientific
community, defendant concedes that it includes “forensic practitioners,” as well as those with
a scientific background and training “sufficient to allow them to comprehend and understand
[the ACE-V method] and form a judgment about it.” That view is generally consistent with
decisions in Illinois considering other methodologies and scientific principles. See
People
v. Eyler
,
community, he argues that practitioners’ ”confidence in the practice of latent print
identification, and its longstanding use, is insufficient to demonstrate scientific validity and
generally acceptance in the broader community.” Contrary to defendant’s characterization,
however, including forensic practitioners within the relevant community does not mean that
general acceptance merely depends on testimony regarding “[r]epeated use by self-interested
practitioners” who lack the scientific knowledge and expertise to meaningfully assess the
ACE-V method. For example, the federal court in
Rose
was presented with an
amicus
brief
from 16 academicians and practicing scientists representing a variety of scholarly as well as
technical and scientific disciplines concerned with the reliability of fingerprint
individualization evidence. See
Rose
,
*20 support of the admissibility of fingerprint evidence, represented that they had “authored books and articles in leading scientific, peer-reviewed journals on forensics and fingerprint issues.” More recently, as part of a Frye hearing, a Minnesota trial court heard testimony from
two forensic scientists, Glenn Langenburg and Dr. Cedric Neumann, who opined that the ACE-V method is generally accepted within the relevant scientific community. Dixon , 822 [6] N.W.2d at 667-68. The court also reviewed the testimony of Dr. Sandy Zabell, an expert for the defense with a master’s degree in biochemistry and a Ph.D. in mathematics. While of the opinion that “ACE-V is not accepted as an objective, scientifically validated protocol,” Dr. Zabell acknowledged that “it is viewed by many in the scientific community as a framework for subjective assessment with a limited amount of detail.” Id. at 670. He continued that “it is not his opinion that fingerprint evidence is unreliable or should not be allowed in court; rather, it is his opinion that it should be allowed with various safeguards about what an examiner can say.” Id. It was this testimony and the NRC Report–representing not just self- interested practitioners with limited knowledge, but experts “actually involved in latent-print analysis and those who actually research the reliability of latent-print analysis”–on which the court based its conclusion that experts in the relevant scientific community widely accept the ACE-V methodology. Id. at 674. Neither party here has offered a holistic description of the current views of the scientific
community, and we do not mean to suggest that we have provided an exhaustive review here. But we reject defendant’s claim that the various courts considering latent print analysis have failed to “thoroughly explore” the views of the relevant community, including the criticisms listed in the 2009 NRC Report. Rather than simply concluding that fingerprint evidence is admissible based on repeated use by practitioners, the courts have heard forensic scientists and experts respond to critiques of the ACE-V method from the NRC Report and elsewhere–sometimes after extensive Frye or Daubert hearings. See, e.g. , Dixon , 822 N.W.2d at 667-68; compare McKown I , 226 Ill. 2d at 263-65 (reviewing criticisms of seminal case establishing general acceptance of HGN testing where no hearing was held and court relied upon testimony of prosecution witness alone to establish general *21 acceptance). The overwhelming conclusion has been that these criticisms do not counsel against admissibility of latent print evidence. Moreover, the “general acceptance” standard tolerates criticism of a methodology from
experts within the scientific community: “[g]eneral acceptance of methodologies does not
mean ‘universal’ acceptance of methodologies.”
Donaldson
,
of experts, and those courts considering latent print analysis have considered the range of
views within the relevant scientific community, we conсlude that the trial court did not err
in taking judicial notice of the general acceptance of the ACE-V methodology. Accord
In re
Commitment of Sandry
,
acceptance of the ACE-V method, arguing that he is simply challenging the acceptance of “ACE-V as applied to palm prints.” The problem is that his criticisms cannot be divorced from those raised (and rejected uniformly by courts) as to the ACE-V method itself, whether applied to fingerprints or palm prints. Defendant seems to recognize this flaw, for he takes the unqualified position that “friction ridge analysis is not generally accepted in the relevant scientific community.” And while he principally relies on the criticisms of “friction ridge analysis” in the NRC Report, the report does not draw any distinction between friction ridge analysis as applied to fingerprints, palm prints, and sole prints. See NRC Report, supra , at 136 (“Fingerprints, palm prints, and sole prints have been used to identify people for more *22 than a century in the United States. Collectively, the analysis of these prints is known as ‘friction ridge analysis,’ which consists of experience-based comparisons of the impressions left by the ridge structures of volar (hands and feet) surfaces.”). Defendant cites to specific criticisms of palm prints included in an affidavit submitted
to the trial court by two print experts, Lyn and Ralph Norman Haber. The Habers argue that
there has not been a “detailed analysis of how to describe the features of latent palmprints”
and that “[t]here are no manuals on palm print comparisons approved or issued by any of the
latent print community’s professional, regulatory or advisory organizations.” Yet in their
affidavit, the Habers acknowledge that others take the view that the ACE-V method can be
applied to palm prints, and the Habers more broadly attack the validity of the ACE-V method
as applied to palm prints or fingerprints. Also, we see little distinction between these specific
criticisms and those that have been lodged at the ACE-V method more generally. See,
e.g.
,
NRC Report,
supra
, at 141 (noting that “the latent print examiner learns to judge whether
there is sufficient detail,” but contending that “more nuanced criteria are needed, and, in fact,
likely can be determined”);
Dixon
,
methodology and the
conclusion
reached regarding a match may be subject to greater
criticism because “even less is known about ACE-V as applied to palm prints,” especially
with the latent palm print here. For example, defendant notes “several anomalies” as to “the
partial latent print
in this case
.” (Emphasis added.) These criticisms are plainly not directed
at the general acceptance of the methodology used to identify finger or palm prints, but are
an attack on Onstwedder’s ability to apply the method and his conclusion as to a match
between defendant’s known print and the partial latent palm print. As noted above, the forum
to address those criticisms is cross-examination at trial, not a
Frye
admissibility challenge.
Cf. People v. Harris
,
prevailing professional norms.
Id.
In considering whether counsel’s performance was
deficient, “a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’ ”
Strickland
,
generate the DNA profile was so small that it fell below the ISP laboratory’s standards for reliable test results and possibly qualified as low copy number (LCN) DNA. According to defendant, because using these amounts of DNA to obtain a profile is not generally accepted within the scientific community, his attorneys were ineffective by failing to request a Frye hearing. The State responds that defendant cannot overcome the strong presumption that his attorneys made the legitimate strategic choice to refrain from seeking a Frye hearing on LCN DNA testing, where the pretrial discovery in this case demonstrated that the sample size could not be considered “low copy number” and was actually within the laboratory’s standards for reliable test results. The State further argues that defendant cannot show that there is a reasonable probability that a hearing would have been granted or would have *24 resulted in the exclusion of the DNA evidence, where the underlying methodology has been generally accepted in the scientific community and is neither new nor novel. A. Background of Testing Method The testing that generated the DNA profile in this case used short tandem repeat (STR)
DNA markers, which have become popular for forensic DNA typing:
“DNA resembles a twisted ladder with rungs of the ladder made of chemicals called nucleotides. DNA has four different types of nucleotides (A: adenine, T: thymine, G: guanine, and C: cytosine) that form interlocking pairs. D. Kaye & G. Sensabaugh, Reference Guide on DNA Evidence , Reference Manual on Scientific Evidence 485, 491 (2d ed. 2000). It is the order (sequence) of these building blocks that determines each person’s genetic characteristics. The great majority of DNA is identical from person to person but forensic scientists commonly examine 13 sрecific regions, or loci, where certain nucleotide patterns are repeated again and again. These patterns are called ‘Short Tandem Repeats’ (STRs). The number of repeated sequences determines the length of an STR. This length of repeated sequences, often called an allele, may vary between people and is what analysts measure and use for comparison. D. Kaye & G. Sensabaugh, Reference Guide on DNA Evidence , Reference Manual on Scientific Evidence 485, 494 (2d ed. 2000).” People v. Williams ,238 Ill. 2d 125 , 130 n.1 (2010), aff’d , Williams v. Illinois , ___ U.S. ___,132 S. Ct. 2221 (2012).
In the simplest terms, an allele is a genetic variation at a particular locus, or location in the DNA. An individual inherits one allele from his or her mother and another from his or her father, and thus, except in rare circumstances, all individuals have two alleles in any given locus. When both inherited alleles from each parent are identical, a person is considered to be homozygous at that locus. When the inherited alleles are different, a person is heterozygous at that locus. See generally John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers, 17-23 (2d ed. 2005). In 1998, the ISP laboratory was using the AmpF l STR Profiler Plus PCR Amplification
Kit (Profiler Plus kit) to test DNA. The “PCR” in the kit name designates “polymerase chain
reaction,” a procedure that allows a small amount of DNA to be amplified into an amount
large enough for typing. See
United States v. Davis
,
¶ 93 B. Testing in This Case
¶ 94 In August 1998, the ISP laboratory received a box containing food items that were
recovered on January 11, 1993, from a trash container at the crime scene. Debra Depcyznski, a forensic scientist in the Biology-DNA section of the ISP laboratory, unsealed the box and chose five chicken bones. She designated this group “29A” and labeled the bones A through E. She swabbed each bone with a separate piece of filter paper and tested each swabbing for the presence of amylase, an enzyme indicative of saliva. Only bones C and D indicated amylase, and Depcyznski swabbed bones C and D with four more pieces of white filter paper each. She identified the swabs “29A1” (bone C) and “29A2” (bone D), and submitted the swabs to analyst Cecilia Doyle. Doyle placed three of the 29A1 swabs and three of the 29A2 swabs in a chemical bath
to extract any DNA. Doyle then resolubilized the extract from 29A1 in 50 microliters of buffer liquid and did the same for the 29A2 extract. At this stage, known as the quantitation stage, Doyle conducted two tests: a yield gel test and a slot blot test. As to the yield gel test, Doyle explained that it would detect if DNA is present and was also useful for estimating whether the DNA may be fragmented due to degradation. The yield gel test only detected degraded DNA. Doyle next employed a slot blot assay called the QuantiBlot Human DNA Quantitation
Kit, which quantifies DNA by visual comparison of sample band intensities with the band intensities of standards, produced from known amounts of DNA. See Davis , 602 F. Supp. 2d at 669 (noting that the QuantiBlot method “requires the analyst to estimate the amount of DNA in each sample by comparison with a known reference standard”). The darker the bands, the more DNA is present. The DNA at this stage is called the “template DNA” or “[s]tarting DNA template” (Butler, supra , at 64-68), measured in picograms (pg) or nanograms (ng); 100 pg is 0.1 ng. Doyle conducted the slot blot test using various amounts of liquid DNA samples derived
from 29A1 and 29A2. When she loaded 1 microliter and 5 microliters for both 29A1 and 29A2, the amount of DNA detected was less than 0.15 ng. When Doyle ran a third assay, loading 10 microliters, she detected a difference for the 29A2 sample. While the 29A1 sample still recorded less than 0.15 ng of DNA, the reading for the 29A2 sample was that it contained less, but not much less, than 0.15 ng of DNA. Doyle noted this by writing double left-pointing arrows “<<” in front of “0.15” for 29A1, but a single left-pointing arrow “<” in front of “0.15” for 29A2. Doyle explained the difference in these designations: “In comparing the two against each other, as well as against the .15 nanogram standard, one was of greater intensity than the other and both were less intense than the .15 nanogram. It was an indication to me that there was a difference in intensity between the two.” Doyle again consulted with Dr. Fish. Doyle explained that laboratory policy required that she consult a supervisor when proceeding with amplification where the amount of starting template DNA was not in the laboratory’s minimum quantity standards for optimal results, “where you would most likely always get a full profile.” Based on internal validation studies, the ISP laboratory recommended between 0.6 and 2 ng per microliter of input DNA for amplification, with an optimal range of between 1 and 2.5 ng per microliter for forensic *26 work. The manufacturer of the Profiler Plus kit likewise specified input between 1 and 2.5 ng of DNA for optimal results. The next step was to set up the PCR amplification. Doyle concentrated the remaining 29
microliters of the 29A1 solution down to 20 microliters, and she did the same for the
remaining 29 microliters of the 29A2 solution. According to her laboratory worksheet, the
total amount of DNA in each 20-microliter sample was “<<0.5 ng.” Doyle testified that
“based on the quantification, it was the–the actual еstimate of the DNA was a little bit less
than the lowest standard run on the slot blot, so I was unable to determine a good estimate
of the quantity of DNA that I had present, so I took the remaining sample and concentrated
it down to 20 microliters, which was the maximum volume that could be taken into the
amplification step, and I amplified 20 microliters for each of those samples.” She further
testified that in the amplification step, where the Profiler Plus kit was used, “specific STR
areas of the DNA are isolated–or are targeted, and many copies of them are made.”
Doyle then loaded the amplified products from 29A1 and 29A2 into an ABI Prism 310
Genetic Analyzer, which was known as “the Joliet Instrument.” Doyle testified that, in the
most basic terms, “[t]he genetic analyzer is an instrument that allows us to look at the
amplified DNA.” Doyle then generated an “electropherogram,” a computerized “graph that
displays a series of different-colored peaks of different heights.”
Roberts v. United States
,
multiple contributors because there were more than two peaks at certain loci. As Doyle explained, she would generally expect one or two alleles at each locus: “If you–at that area of the DNA, you inherited a different allele from your mom than you did from your father, then you’d have *** two peaks, or two alleles. If you inherited the same DNA alleles from both parents, then you would only exhibit one peak at that area of DNA.” In this sample, however, Doyle explained that “there was a profile that had fairly high peaks, so it was a major contributor, one individual had contributed more DNA. Then, there were also very minor peaks, very small, close to the baseline, that was contributed by a second person.” Kenneth Pfoser also testified that he could easily distinguish the major contributor’s profile based on RFUs and peak heights. Pfoser testified that the profile for the major contributor on bone C was identical to the major contributor on bone D, and hе testified that these profiles were identical to defendant’s profile. C. The Amount of DNA in the Samples Defendant now asserts that where the slot blot test showed that “<< 0.5 nanograms” of
DNA were present in the sample, counsel was deficient for failing to request a hearing. According to defendant, testing this low amount of DNA may produce unreliable results, and such testing has not gained widespread scientific acceptance. Defendant specifically argues that the amount of DNA tested here potentially qualifies
as low copy number (LCN) DNA. The parties generally agree that testing less than 0.2 ng of
DNA qualifies as LCN, though they acknowledge divergent opinions on the matter. See
United States v. Williams
, No. CR 05-920-RSWL,
impacting the reliability and reproducibility of the results and further complicating their
interpretation. See
Davis
,
“Q. The amount of DNA that you were seeing there, it could have been a small amount of DNA because there was only a small amount deposited, or it could have been a small amount of DNA because there was degradаtion; is that right?
A. The slot blot could have only been detecting a small amount of DNA because of the degradation. The site that the probe binds to from the quantiblot kit, if that area of DNA was degraded and there wasn’t enough of those fragments available in the sample, then you get an underestimation of the quantity.
Q. But at this point you didn’t know what the small amount of DNA was due to, *29 whether it was–whether there wasn’t much DNA there to begin or whether it had been degraded?
A. I knew it was degraded from the yield gel, but you’re correct, I didn’t know the exact reason why the slot blot results were as they were.” Doyle had a similar exchange with codefendant’s attorney:
“Q. Why do both of them? Why not just do the slot blot? What does the yield gel tell you that the slot blot doesn’t?
A. Whether the sample is degraded.
Q. And does that change the way you handle it?
A. It could, yes.
Q. And how would it change the way you handle it? When you say degraded DNA, what do you do differently?
A. You take that into account when you’re looking at slot blot results. In this case there was [ sic ] apparently samples there, but not–it was less than the 0.15 nanograms. That could be because it was a degraded sample, that the quantity was going to be underestimated because of degradation.
Q. Degradation causes DNA to be underestimated?
A. It can.
Q. Are there validation studies about that, how degradation– A. It’s done throughout the community. I am sure there are validation studies, but I couldn’t quote you them.”
Doyle similarly testified at trial that “it could be that the areas of DNA being targeted for the slot blot itself was degraded, and so I was not getting–I was getting an underestimation of the amount of DNA present.” Moreover, the State argues that by going forward with amplification despite the slot blot
result, there would be another metric that could establish that the starting template DNA was optimal and above the stochastic threshold: fluorescence intensity. As noted above, Doyle generated an electropherogram, which revealed the amount of fluorescence detected for that particular allele and the amount of amplified DNA present in a test sample. The fluorescence intensity enabled both Doyle and Pfoser to distinguish the major donor’s DNA profile from that of the minor contributor. See Butler, supra , at 159 (“[P]eak areas and heights *** can in most cases be related back to the amount of DNA template components included in the mixed sample.”). That fluorescence also could be connected with the amount of starting template DNA, as testing can determine what degree of fluorescence can be obtained from varying known amounts of starting template DNA. Here, the ISP laboratory conducted its own study that determined what degree of
fluorescence is obtained from varying known amounts of starting template DNA when using Profiler Plus and the Joliet Instrument. On November 28, 2005, defense counsel subpoenaed and obtained the Joliet Instrument’s validation studies, which included the Joliet Instrument’s sensitivity study. The laboratory conducted three runs on the prepared samples, which *30 showed that 2.5 ng of input DNA yields peak heights between 500 and 4,000 RFUs, and that input DNA of 1.25 ng produces peak heights between 270 and 1,800 RFUs. The State argues that where the tests on bone C generated peak heights between 266 and 1477 RFUs and bone D yielded peaks between 572 and 3,133 RFUs for the so-called major donor, the RFU readings correspond to approximately 1.25 ng of DNA for bone C and approximately 2.5 ng of DNA for bone D. Thus, there are at least two related reasons Doyle may have gone forward with
amplification after the slot blot gave a reading of less than 0.5 nanograms: (1) the possibility that the QuantiBlot assay was underestimating the amount of DNA in the degraded sample; and (2) the possibility of obtaining a result above the stochastic threshold, as measured by RFUs. In other words, Doyle (and Dr. Fish) decided to proceed with amplification instead of adopting a “stop testing” approach:
“The ‘stop testing’ approach begs the question of how do you know that you are too low to obtain reliable results ( i.e. , information that accurately reflects the DNA sample). There are two primary points in the DNA-testing process where DNA reliability may be assessed: 1) at the DNA quantitation stage prior to performing PCR amplification of the short tandem repeat (STR) markers of interest, or 2) during examination of peak heights–and peak height ratios in heterozygous loci–in the STR profile obtained. An empirically determined threshold (usually termed a ‘stochastic threshold’) may be used at either the DNA quantitation or data interpretation stage to assess samples in the potential ‘danger zone’ of unreliable results. For example, if the total amount of measured DNA is below 150 pg, a laboratory may decide not to proceed with PCR amplification, assuming that allelic drop-out due to stochastic effects is a very real possibility. Alternatively, a laboratory may proceed with testing a low-level DNA sample, then evaluate the peak height signals and peak height ratios at heterozygous loci.” J.M. Butler & C.R. Hill, Scientific Issues With Analysis of Low Amounts of DNA (2010), http://www.promega.com/resources/articles/profiles-in-dna/2010/ scientific- issues-with-analysis-of-low-amounts-of-dna/ (last visited Apr. 22, 2013).
See also Bruce Budowle et al. , Validity of Low Copy Number Typing and Applications to Forensic Science , 50 Croat. Med. J. 207, 209 (2009) (“Typically, minimum amounts of DNA template are recommended *** so that stochastic effects can be reduced to manageable levels. However, since variation in the quantitation of template DNA and pipetting volume inaccuracies can impact the amount of template DNA placed in a PCR, a stochastic interpretation threshold is used instead for STR typing. *** A minimum peak height (or area), which is established by in-house laboratory validation studies, serves as a stochastic control. Those peaks below this threshold are not interprеted or are interpreted with extreme caution for limited purposes.”); David H. Kaye & George F. Sensabaugh, Jr., Reference Guide on DNA Evidence , at 505 (“Whether a particular sample contains enough human DNA to allow typing cannot always be predicted in advance. The best strategy is to try; if a result is obtained, and if the controls (samples of known DNA and blank samples) have behaved properly, then the sample had enough DNA.”).
¶ 113 We emphasize that the record shows that defense counsel recognized a connection
between DNA quantity, as measured by the slot blot, and the possibility of stochastic effects, *31 when he cross-examined Doyle at trial:
“Q. Now, the other thing besides degradation that you do, the yield gel and the slot blot for is quanitation [ sic ]. You’re trying it [ sic ] figure out how much you have there; right?
A. Try to get an estimate of the amount of DNA present in the sample. Q. And, in this case, both samples, the 29A1 and the 29A2, came out to be less than the lowest comparison thing that you had on the gel; right? Or on the slot blot; is that right?
A. Yes. On the slot blot, there are a series of known DNA quantities, and I compare the quantities–the samples–the evidence samples to these known quantities in an attempt to estimate the amount of DNA present.
* * * Q. I mean, we’re talking about essentially microscopic stuff here; are we not? A. Very tiny amounts.
Q. You couldn’t see it with the naked eye; could you?
A. No.
Q. And that’s–it’s so small that at the time you were doing the testing in this case, the Illinois State Police had not even been validated for amounts that small; right? A. Well, I reviewed the validation procedures, and in the validation study for STRs, amounts smaller than .15 nanograms had been looked at to determine what the lowest cutoff level was where you could obtain a full profile.
Q. Okay. And–so, in that sense it was validated. Is that what you mean? A. It was looked at as part of that validation study. A determination was made of .3– *** well, 1 nanogram to 1.5 nanogram was the ideal target amount of DNA, and that’s, I believe, through all of the samples down to .3 nanograms of DNA, a full profile was obtained.
Below that, loci started to drop out, or an allele started to not be detected.” Counsel also connected slot blot sample size with results and further sought to establish that such a small amount of DNA could have come from an outside source:
“Q. And the amounts of DNA make a difference, ultimately, or can make a difference in what sort of results you get in the testing; right?
A. They can. It depends on why the sample is degraded. In this case, it could be that the areas of DNA being targeted for the slot blot itself was degraded, and so I was not getting–I was getting an underestimation of the amount of DNA present.
Q. Now, because of the small amounts of DNA that are necessary in order to get some kind of result, you can get the DNA–you could get a DNA off of simply–well, for example if the chicken had been laid out an [ sic ] a table somewhere, and there was DNA on that table, the chicken could pick up the DNA from the table; could it not?” Doyle eventually answered: “I suppose if the conditions were cоrrect. If there was a lot of DNA; if it was moist. There has to be some transfer. If you’re putting something dry on *32 something dry, the chance of transfer is very little.” It may be that, faced with a possibly underestimated sample, the scientific literature, and
the sensitivity study, defense counsel concluded that a request for a Frye hearing would not likely be granted or, if granted, the hearing would not result in the exclusion of evidence because there was a considerable chance the testing here was acceptable practice. Perhaps defendant’s attorneys thought that by initiating a Frye challenge, they would have provoked an argument from the State that the slot blot reading was not a problem because the peak heights suggested that the sample was above the stochastic threshold. Cf. Commonwealth v. Greineder , 936 N.E.2d 372, 403 (Mass. 2010) (holding that defense counsel may have wanted to forgo a Frye challenge to tip off the prosecution about a particular line of attack). That approach is plausible, as counsel did not abandon an attack on Doyle’s choice to go ahead with testing when the slot blot revealed a small amount of DNA, and counsel used that point at trial to question whether such a small sample could have been picked up from a contaminated source. In sum, in the record before us, we have: (1) an explanation by Doyle regarding why the
slot blot, which may not be a particularly sensitive method of measurement, might have
underestimated the amount of DNA at the quantitation stage; (2) scientific literature
suggesting that RFU peak heights can be used as a reference point to show a lack of
stochastic effects; (3) a validation study for the Joliet Instrument listing RFU peak heights,
which could serve as a stochastic interpretation threshold; and (4) cross-examination from
defense counsel attacking the decision to go forward after the QuantiBlot testing showed a
low sample size, exposing possible accuracy issues. Although we cannot say with any
certainty what materials counsel reviewed or what strategic calls counsel made, certainty is
not required: we must entertain a strong presumption that counsel’s actions
might
have been
the product of trial strategy.
Strickland
,
¶ 117 We note that there is no reason to believe that defense counsel was ill-equipped to assess
the testimony of forensic scientists or the scientific literature. The defense team was
comprised of a private attorney, three attorneys from the State Appellate Defender Death
Penalty Trial Assistance Unit, and a contract attorney, at least some of whom had
considerable experience in DNA evidence. The defense team relied upon a quality assurance
auditor of forensic laboratories and three DNA experts who held advanced degrees in the
sciences. One of those experts, Dr. Reich, testified on behalf of the defense, challenging the
reliability of a nine-loci sample and highlighting the possibility of contamination.
Even though the defense team had multiple experts at their disposal and otherwise
aggressively challenged the DNA (and fingerprint) evidence, defendant now claims that
counsel simply “missed” the issue completely. To endorse that view, however, we must
conclude: (1) while defense counsel thoroughly questioned Doyle about her methods at the
quantitation stage and obtained her admission that testing a quantity below standard levels
may effect the profile obtained, the defense team simply failed to consider whether to further
challenge the accuracy of the DNA results based on going forward with testing what
appeared to be a small sample; (2) while counsel subpoenaed and obtained the Joliet
Instrument’s validation studies, which listed RFU peak height information, counsel did not
review the data, failed to consider any relationship between peak height and the possibility
of stochastic effects, or otherwise did not know of a possible connection between peak height
and stochastic effects from their experts or from the literature; (3) counsel failed to consult
with their team of DNA experts to explore possible problems related to sample quantity and
thus were not acting on expert advice in deciding against moving for a
Frye
hearing; and (4)
even with all this information and expert advice at hand, counsel completely failed to
consider a possible challenge based on the quantitation results, never considered whether
RFU peak heights showed that the sample was outside the stochastic threshold, and thus did
not make a strategic call against requesting a
Frye
hearing. On this record, we find that view
of events wholly speculative, and we conclude that defendant has failed to show that his
counsel was so deficient that he was “not functioning as counsel” under the first prong of the
Strickland
test.
Richardson
,
address whether defendant could also show that a hearing would have enjoyed a
reasonable chance of success, nor is it necessary to consider whether defendant could show
that without the DNA evidence presented here, the result of the trial would have been
different. “Because a defendant’s failure to satisfy either part of the
Strickland
test will defeat
a claim of ineffective assistance, a court is not required to address both components of the
inquiry if the defendant makes an insufficient showing on one. [Citation.]” (Internal
quotation marks omitted.)
People v. Edwards
,
¶ 120 III. Adoption of Daubert
¶ 121 Defendant contends that we should abandon the Frye test and instead adopt the “more
stringent” standard for the admission of scientific evidence established in
Daubert v. Merrell
Dow Pharmaceuticals, Inc.
,
the State’s rebuttal closing argument and the cumulative effect of those remarks was to deny
him a fair trial. Before turning to the comments at issue, we note that all but one of his claims
of improper argument have been forfeited, as objections either were not made at trial or were
not preserved in a posttrial motion. Defendant seeks review оf these remarks under the plain-
error doctrine, which requires defendant to show either: “ ‘(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. Thompson
,
comments, our initial inquiry is to determine whether there was error,
i.e.
, whether any of the
complained-of remarks were improper. Prosecutors are afforded wide latitude in closing
argument.
People v. Caffey
,
from the jury, that confirmed defendant’s guilt. At the start of his rebuttal argument, the prosecutor thanked the jurors for their service and then continued:
“I’d like to say that what I say is not important. I’m only going to speak for an hour
and that’s enough, you’ve heard enough from the lawyers. I’m sorry you cannot ask
questions, I really am. I’d like to answer the questions you have. But our system doesn’t
allow that. It would be good to know what’s on your minds, but I can’t.”
By these comments, we understand that the prosecutor attempted to explain to the jurors that
he could not take what he viewed as the more efficient course–to answer their direct
questions about the case–and would instead have to guess at what the jurors consider
significant about defendant’s closing argument as he spoke to them for the next hour. In
defendant’s view, the prosecutor “implied that there was evidence not revealed to the jury,”
but he could not “give the jurors the ‘inside scoop’ on the evidence” because he could not
answer thе jurors’ direct questions. But the prosecutor made no reference to evidence outside
the record or the fact that such evidence existed, as in the cases cited by defendant. See
People v. Ray
,
fingerprint expert, John Onstwedder:
“He made perfect sense. He’s a great expert. They talked about–I guess to impeach him they talked about that there’s been two or three misidentifications throughout the world. And then I guess from there you’re supposed to conclude, oh, this is a misidentification. He had it verified by someone else.
But they want you to look at him, a layperson, and he told you that that requires expert testimony, years and years of experience. I respectfully submit, ladies and gentlemen, we need expert testimony, expert testimony, and he’s the best, he’s very, very *36 good at it, and it was unrebutted. No other expert–
[DEFENSE COUNSEL]: Objection to shifting the burden.
[ASSISTANT STATE’S ATTORNEY]: I’m not–excuse me.
THE COURT: Ladies and gentlemen, I’m going to overrule the objection. But here’s the thing is that the burden of proof always is with the State as we discussed in voir dire examination, as I told you in the beginning with my opening remarks. The burden of proof is always with the State and the defendant is presumed to be innocent and he does not have to prove his innocence.
Go ahead ***.
[ASSISTANT STATE’S ATTRONEY]: We welcome the burden of proof. They are right. For a minute don’t stop saying that to yourself. From the time you’re back there the State’s burden of proof we welcome it.” Defendant raises two concerns about these remarks. First, defendant claims that stating
that Onstwedder was “a great expert” and was “the best” was an improper attempt by the prosecutor to give his personal opinion of the witness and vouch for his credibility, thus placing the integrity of the State’s Attorney behind the witness. See People v. Valdery , 65 Ill. App. 3d 375, 378 (1978) (concluding that prosecutor’s remarks–including a statement that “ ‘I have never had contact with people who have come forth and testified as witnesses who have had the level of integrity and character of thosе people and I’m particularly impressed’ ”–were “highly prejudicial because they place the integrity of the office of the State’s Attorney behind the credibility of the witnesses”). As the State points out, however, “[t]he credibility of a witness is a proper subject for closing argument if it is based on the evidence or inferences drawn from it.” (Internal quotation marks omitted.) People v. Hickey , 178 Ill. 2d 256, 291 (1997). And the remarks here–when viewed in the context of the prosecutor’s attempt to defend Onstwedder from impeachment, emphasize his experience, and point out that his identification was verified– are based on Onstwedder’s testimony and inferences drawn from it. Defendant also argues that the prosecutor sought to shift the burden of proof when he
described Onstwedder’s testimony as “unrebutted.” While a prosecutor must not state that
the defendant has an obligation to come forward with evidence that would create a
reasonable doubt as to his guilt, a prosecutor may comment on the “defendant’s failure to
submit any evidence that would tend to refute the case against him.”
People v. Albanese
, 104
Ill. 2d 504, 521-22 (1984);
People v. Kliner
,
¶ 130 We acknowledge that this court has drawn a fine line between comments that properly
emphasize that the State’s “evidence is uncontradicted” and comments that “improperly
suggest[ ] to the jury that defendant had a burden to introduce evidence.”
People v.
*37
Giangrande
,
expert, Dr. Karl Reich:
“Did [defense counsel] even talk about Wright [ sic ], their expert Wright [ sic ]? I wouldn’t either, would you? No. How much money do you make a year? He tells you, first I’m on salary. Then we said, come on, Doctor, tell me a little bit more about yourself. Well, I’m vice-president of the company. Come on, Doctor, you owe it to the ladies and gentlemen of the Jury, don’t you, because you have to weigh his bias, interest, motive, right? Then he finally says, well, I have a one-third interest. Why do you have to pull it out of this doctor. You know, professionals, they come in here, they’re qualified as experts. They lie like everybody else. How much do you make? $100,000. $100,000. They guy comes in here, $100,000. He’s motivated by money. Can you imagine if he persuaded you 12 that the DNA don’t match, he would be hounded by defense attorneys throughout the country.
Just because they wear suits, they’re doctors and they’re experts doesn’t mean anything. You judge their credibility like you judge the credibility of everybody else. That’s the law. You’re going to get an instruction on that. The law says you have to look at people’s bias, motive, and interest clear across the board.” Defendant argues that such comments, specifically that Reich was “motivated by money,” were an improper attack on Reich’s character and integrity. The credibility of an expert witness is a proper subject for closing argument if it is based
on the evidence or inferences drawn from it.
People v. Hickey
,
¶ 133 We acknowledge that the State suggested that because Dr. Reich’s company received
over $100,000 for its work, the jury had a reason to doubt the truthfulness of Dr. Reich’s testimony. This was part of a larger argument that Dr. Reich and those witnesses “qualified as experts” should be judged by the same standards of bias, motive, and interest as other witnesses when the jury considered his testimony. As in Hickey , we find no error in the prosecutor’s attempt to establish the expert’s possible bias.
¶ 134 We do find error in two comments by the prosecutor that were not drawn from the
evidence, but were needlessly disparaging to Dr. Reich and defense counsel. First, while discussing Dr. Reich’s testimony, the prosecutor stated: “Dr. Wright [ sic ], whatever you want to call yourself ***.” We see no purpose for this fleeting comment other than to dеmean the expert’s status as a doctor of molecular biology, without apparent basis in the evidence. The State on appeal offers no explanation for this remark, and we conclude that it was improper. Defendant also points to comments by the State directed at defense strategy:
“I commend Mr. Burch for his passion. His passion at the beginning was quite extraordinary when he talked about the blood, if you recall that. Remember he said, it’s in the blood, it’s in the blood. And he said, all these other issues, and he showed a lot of passion. I give Mr. Burch credit I guess because even though his theory– [DEFENSE COUNSEL]: I object at this time.
THE COURT: Move on ***.
[ASSISTANT STATE’S ATTORNEY]: Sure.
I have a hard time getting passionate about something that I don’t believe in where I have to change course, but–
[DEFENSE COUNSEL]: Your Honor–
THE COURT: He’s talking about his personal experience. Overruled.”
The State may challenge a defendant’s credibility and the credibility of his theory of
defense in closing argument when there is evidence to support such a challenge.
People v.
Hudson
, 157 Ill. 2d 401 (1993). In this case, then, it would have been proper for the
prosecutor to point out that defense counsel argued during opening statements that a footprint
was left in blood by the killer, but did not again press that point during closing argument,
after the prosecutor argued at closing that the evidence showed the footprint was the result
of processing the bloody crime scene. But here, the prosecutor took that permissible
argument a step further by focusing his remarks on defense counsel’s style of advocacy,
suggesting that counsel presented feigned enthusiasm for a defense he knew was false. Such
comments “improperly shift the focus of attention from the evidence in the case to the
objectives of trial counsel.”
People v. Emerson
,
“transcends the courtroom walls” and “goes out to the community.” After the comment was made, the trial judge immediately interjected, telling the prosecutor to stop and instructing the jurors to disregard these comments: “[Y]ou’re only supposed to concern yourselves with the facts and the law as it aрplies to Mr. Luna. You’re not sending message to the world. That’s not your job.” The prosecutor later continued on the same theme:
“Your verdict will also talk to the Annie Locketts of this world, will it not? And there’s others out there like Annie Lockett, a lot of Annie Locketts out in this world who know something, who know something and yet say to themselves, do I have the inner strength, the moral fiber to come to court.
[DEFENSE COUNSEL]: Objection.
THE COURT: I’m sorry, [Assistant State’s Attorney], you’re not here to reinforce any self-doubt that Anne Lockett has either. Forget about the other Anne Locketts in the world and stay away from that.
Ladies and gentlemen, again, you’re supposed to concern yourselves with the facts in this case and the law as I give it to you, and that way reach a verdict. Not about any messages and not about reinforcing any individuals.”
On appeal, the State concedes that the prosecutor’s comments were improper. See,
e.g.
,
People v. Johnson
,
statements were improper. While defendant’s claims of improper argument have been
forfeited as to two of these comments, defendant did preserve his claim of error (by objecting
at trial and renewing his objection in a posttrial motion) as to the prosecutor’s comments
about the verdict sending a message to the community. Where an objection to a prosecutor’s
comments has been preserved, we must determine whether any improper remarks, when
viewed in the context of the entire argument, “constituted a material factor in a defendant’s
conviction.”
Wheeler
,
the parties agree that “[t]he trial court’s act of promptly sustaining a defense objection to a
closing argument comment is generally sufficient to cure any error which may have
occurred.”
People v. Hope
,
defendant had not forfeited his objection to these comments, we conclude that they “did not
engender substantial prejudice against defendant sufficient to warrant reversal of his
convictions.”
Hickey
,
counsel’s failure to object to the remarks challenged on appeal. Because we have concluded that any improper remarks did not impact the jury’s finding of guilt or deprive defendant of a fair trial, defendant cannot demonstrate that counsel’s failure to object prejudiced the outcome of his trial. See, e.g. , People v. Glasper , 234 Ill. 2d 173, 215-16 (2009). We therefore reject his ineffective assistance claim. V. Statements of Todd Wakefield and Casey Sander Defendant finally claims that the trial court erred when it denied his motion in limine to
admit out-of-court statements from Todd Wakefield and Casey Sander. While the court
admitted a statement from John Simonek–that he committed the murder with Todd
*41
Wakefield–as a “statement against penal interest” under
Chambers v. Mississippi
, 410 U.S.
284 (1973), the court ruled that neither Sander’s nor Wakefield’s statements were admissible.
A ruling on the admission of evidence is within the sound discretion of the trial court and
will only be reversed if the trial court abused its discretion.
People v. Caffey
,
based on the assumption that a person is unlikely to fabricate a statement against his or her
own interest.
People v. Tenney
,
to the police. On June 18, 1998, Todd Wakefield told police that he ate a meal at Brown’s Chicken around 9 p.m. on January 8, 1993. When asked, “So chances are you’re the last person that ate there,” Wakefield said “I would definitely agree on that.” On September 15, 1999, Wakefield told police that he ordered food from Michael Castro on the night of the murders. He said “the only reason he went to Browns [ sic ] Chicken was to get something to eat, that he never shot or killed anyone.” Casey Sander, a former Brown’s Chicken employee and Wakefield’s girlfriend, was
interviewed by police several times in the months following the shootings. Unlike earlier interviews where Sander claimed that her accounts were simply dreams or nightmares, on April 28, 1999–at her tenth interview–Sander claimed that what she told police was based on her actual observations. Sander said that on January 8, 1993, her boyfriend, Todd Wakefield, picked her up at her home at 6:30 p.m. in his brown station wagon, and they went to Brown’s Chicken sometime after 9 p.m., because Sander wanted to talk to Lynn Ehlenfeldt about her work schedule. When Sander went into the restaurant, Wakefield insisted on following her. Sander then stated that Wakefield went to talk to Rico Solis and Mike Castro, became enraged, and yelled “Everybody get in the back or I’ll kill you,” while waving a gun. Sander told the police that she saw Wakefield shoot people in the restaurant and there was smoke and haze in the room. Sander ran back to her house afterward. Sander did not mention Simonek in her statement, but during her interview, she stated “I walked in the back door and they came in behind me.” When asked who “they” were, Sander claimed to have said “Todd,” but officers and an assistant State’s Attorney present confirm that she said “they.” When told that there was a bloody footprint left at the scene, Sander stated that “it was probably a size 8 Reebok and it was probably mine.” After Sander was given her Miranda warnings, she said that “she was tired and wanted to go home” and “she made all this up just so she could go home.” Sander was allowed to leave the police station.
¶ 148 While defendant agrees that neither Wakefield nor Sander acknowledged any role in the
murders, he nevertheless claims that “an admission to being present at [a] crime scene, while denying participation, is against one’s penal interest.” We cannot agree with such a sweeping view of the “against penal interest” requirement. There is simply no crime in being present at the scene of a crime or witnessing a crime, without more. Defendant’s single piece of authority for this broad principle is People v. Murray , 254
Ill. App. 3d 538 (1993), where the question was whether statements to police were
sufficiently reliable to establish probable cause to arrest in connection with the shooting of
two men.
Murray
,
proposition that defendant assigns it. In
Murray
, after police confronted the witness, he made
a statement admitting involvement with the shooting that, while “limited,” exposed him to
criminal liability. The exposure was real: Washington was charged along with the defendant,
and he pled guilty. We disagree that admission to being present and witnessing a crime,
without all the attendant facts in
Murray
, satisfies the against-penal-interest exception. This
court has specifically held (in a probable cause case like
Murray
) that admitting to being a
witness to a crime does not qualify as a statement against penal interest, without admission
of involvement in the crime. See
People v. Lindner
,
not even admit that he had witnessed the crime. We therefore conclude that Wakefield’s
statement was not the “type of confession [which] was in a very real sense self-incriminatory
and unquestionably against interest.” See
Chambers
,
involvement in the shooting. She claimed that she saw Wakefield shoot several people and
she then ran from the scene. While defendant argues that her statement suggests a greater
degree of involvement than that of a mere bystander, Sander’s statement suggests no more
involvement than being at the restaurant and then fleeing the scene after the shooting began.
Moreover, our supreme court has cautioned that “[w]hether a statement is actually against
the declarant’s interest must be determined from the circumstances of each case.”
People v.
Caffey
,
statement against penal interest: that her disclosure that she witnessed the murders could *44 have subjected her to prosecution for obstruction of justice because Sander previously told police that she did not know anything about the crime. This argument fails. We first note that this obstruction of justice theory was never raised to the trial court and could not have formed the basis of the court’s ruling on the motion in limine . In fact, after the trial court asked how Sander’s statements could possibly be against her interest, defendant stated in a supplemental brief that “Sander’s statements need not be against her penal interest in order to be admissible,” so long as other Chambers factors were satisfied. In any event, we agree with the State that nothing in the record suggests that Sander
knowingly furnished false information with an “intent to prevent the apprehension or
obstruct the prosecution or defense of any person,” as required under Illinois’s obstruction
of justice statute. 720 ILCS 5/31-4 (West 2010). Contrary to defendant’s claim, the record
does not suggest that Sander’s earlier statements denying knowledge (
i.e.
, the statements that,
under defendant’s theory, are false) were made to protect Wakefield or anyone else.
Moreover, in light of Sander’s immediate recantation, defendant’s theory that Sander’s
statement could be used as part of an obstruction of justice prosecution is wholly
implausible. As with Wakefield’s statement, we conclude that because Sander’s statement
was neither self-incriminatory nor against penal interest, it did not bear “persuasive
assurances of trustworthiness.”
Tenney
,
murder. Affirmed.
Notes
[1] While Daubert looks to the reliability of an expert’s methodology, as well as the expert’s conclusion, courts applying Daubert also consider general acceptance within the relevant scientific or expert community, among other factors. See Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 593-94 (1993); United States v. Baines , 573 F.3d 979, 985-86 (10th Cir. 2009). See generally Michael H. Graham, Graham’s Handbook of Illinois Evidence § 702.10 (10th ed. 2010).
[2] Defendant cites an unpublished Maryland trial court order, Maryland v. Rose, No. K06-
0545 (Cir. Ct. Baltimore Co. Oct. 19, 2007), in support of his claim that the case law is not
“unequivocal,” making judicial notice of ACE-V’s general acceptance improper. We disagree that
the unpublished trial court order precludes this court from taking judicial notice of general
acceptance based on the considerable authority cited above. First, we are unsure of the order’s
bearing on the general acceptance inquiry. While the court stated that it was undertaking a traditional
inquiry, the court noted “while Defendant has argued a number of reasons why general
acceptance should be discounted, Defendant has not challenged the notion that latent fingerprint
identifications have been generally accepted. Rather, Defendant’s contention is that the reliability
of such identifications have not been proved since they have not been subjected to scientific testing.”
Second, the court did not define the relevant scientific community or otherwise discuss the views
of forensic scientists supporting admissibility. It may be that those views were not adequately
presented; the court characterized the government’s presentation as “principally [relying] on the
history of acceptance of fingerprint identification evidence.” We note, however, that the court did
not mention an
amicus
brief submitted by scientists in support of the admissibility of fingerprint
testing that was apparently before the court. See
United States v. Rose
,
[3] The “NRC Report” and “the NAS report” both refer to National Research Council of the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009).
[4] Massachusetts follows a hybrid -
Daubert
test that first looks to general acceptance, but
allows the proponent of evidence to use the remaining
Daubert
factors as “an alternate method of
establishing reliability.”
Patterson
,
[5] The brief is available at http://www.swgfast.org/Resources/101126_US-v-Rose-Motions-in- Limine-w-amicus.pdf (last visited Apr. 22, 2013). The amici explained that they spoke “on behalf of a college of international practitioners and researchers involved in the field of fingerprint identification and Members of the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST).” SWGFAST is an organization that establishes standards for the forensic examination of prints.
[6] Langenburg has a B.S. in forensic science from Michigan State University, a master’s
degree in analytical chemistry from the University of Minnesota, and was completing a Ph.D. in
forensic science, dealing specifically with the ACE-V methodology, when he testified at the
Frye
hearing in
Dixon
.
Dixon
,
[7] Defendant offers a hypothetical example of allelic drop-out. The profiles of samples 29A1 and 29A2 reflect homozygosity at loci vWA and D18, meaning that two of the same alleles (16 and 17, respectively) appear at these loci. The identified profile for defendant is 16, 16 at vWA and 17, 17 at D18. If the samples were actually 16, 17 at vWA or 17, 19 at D18–and allele dropout occurred, causing the 17, the 19, or both to drop out–defendant would be falsely included as a possible contributor when in fact he would have been excluded without the allelic dropout.