*1 ILLINOIS, Plaintiff-Appellee, v. OF THE STATE OF THE PEOPLE MITTS, Defendant-Appellant. JOECEPHUS Division) (1st No. 1 - 98-2412 First District February 13, Rehearing 2002. denied Opinion December filed 2001 . *2 dissenting part. J., concurring part COUSINS, (Emily Eisner, Defender, Chicago Assistant Public Fry, Rita A. Public Defender, counsel), appellant. (Renee Goldfarb, Devine, Chicago Alan Attorney, of Richard A. State’s counsel), Frazier, Attorneys, for the
Spellberg, and Joan F. Assistant State’s People. opinion of the court:
JUSTICE McNULTY delivered the defendant, Mitts, three prosecution charged Joecephus Englewood area an separate sexual assaults that occurred in *3 assaults, eight-day period. jury guilty found him of two and guilty Defendant from his convictions appeals third. sentences. 14, 1993, Hoyne
Just 7 a.m. December L.B. walked down before on street, A stop a bus on 55th Street. man across Street towards direction, just as walking began crossing street she opposite her arm and past, grabbed she the man started to cross. As walked gun it at her said, stickup.” pulled pointed a He out a and “[T]his is him, her. her and if she ran he would shoot head. He told to walk with any money. give her She did not him money. He told her to take out and told her to garage nearby alley took L.B. to in a The man a her, lay top the floor and on take off her clothes. He threw her to vaginal He had intercourse with gun pointing with the to her head. her she cried too much. her. He struck her face with his fist and told Then he left. family her sight, L.B. ran home and
Once the man was out of male, about 5 as a black police. called the She described the assailant sweatshirt, wearing black, pounds, 5 a hooded feet inches and 150 nearby jeans, shoes, took L.B. a gym cap. blue and a knit Police vagina. in a semen found L.B.’s hospital, they where obtained swab of 4 days later, a.m.,
Two passed around 1:30 T.S. a man in an alley as Avenue, she walked on Wolcott a few blocks from the location of the attack on L.B. The man up her, put walked behind a gun to her back and stickup, told her it was a and if anything she said “pop” he would pulled through her. He her by the arm a gangway garage. and into a kept repeating He if anything she said “pop” he would her.
Once in garage give the man told money. T.S. to him her When none, she said she get had he said he something would from her. He get knees, told her to her put on and he his in penis her mouth. He then told her to off take her clothes. He took a neck chain from her and told her to vaginal bend over the car. He had intercourse her. He told her to waited, five minutes or he “pop” wait would her. She family then she ran home and police. her called the man, old, T.S. described the assailant as a years black around 20 feet pounds, 6 inches and 180 wearing jacket, a black Starter dark a pants, cap. nearby skull took hospital, Police T.S. to a where they vagina. obtained a swab of semen found her
Shortly midnight 22, 1993, after on December got L.W off a bus Avenue, on 55th Street walked Damen down less than two blocks from the location of the on up attack L.B. A man walked behind L.W said, stickup, “[T]his is a grabbed pointed bitch.” He her neck and gun pushed a at a gate her back. He her to and told her to climb over it. He garage. climbed over and took her into a pushed He her to her “stay put knees and said He penis there.” his in her mouth. Then he pulled pants told her to turn around. He down her and made her lie jacket. put penis vagina on her He his first her and then in her anus. got up,
When the man he asked she gave L.W whom knew. She relative, wrong the name of and the man said he “fucked with the recognized female.” He relative a member of the Blackstones gang. He stay garage told L.W. to until he gone. was Once he home, police. left she ran where her family called years old, L.W. described the man who attacked her as to 24 pounds, wearing pointed left, about feet inches and 170 cap a black black, coat, pants hooded and black black shoes. Police took hospital they vaginal including where obtained a semen. swab 1993, midnight
After Officer Terrence December Johnson occurred, patrolled looking for persons the area where the crimes sim- *4 L.B., descriptions gave He ilar to the T.S. and L.W. offenders. talking of saw defendant and other black men near the corner two ap- Hoyne. As he Seeley, 55th and which between Damen and is proached, began walking men east 55th. Johnson the other two on name, lived, doing defendant his he he asked where what was told the officer address and his name and gave the corner. Defendant the same three to ask Johnson then went he to the store. going was other two men. questions of the pounds. old, inches and 190 years 5 feet 6
Defendant was of the offend- descriptions fit the thought defendant Because Johnson police from requested photograph defendant well, ers fairly took several process obtaining photograph department files. The days. defendant 28, 1993, Sergeant Kevin Duffin watched December
On briefly, to defendant walking spoke Damen. Duffin near 55th and police him to the sta- weapon, no then took him but found searched Duf- Englewood. point to At some defendant back driving tion before questions. some fin asked defendant 30, photograph Johnson on December obtained defendant’s
When brought picked it to L.B. L.B. photo array he assembled the man attacked her. Po- photograph picture as a who defendant’s lineup. in a Both L.B. and L.W put lice defendant and him arrested lineup assaulted them. In a later identified defendant the man who who her. T.S. also identified defendant as the man attacked compared on the swab May police In 1994 the lab the DNA found and defendant’s vagina with the DNA from L.B.’s taken from L.B.’s separate locations The found a match with defendant at six blood. lab person. from sharply where DNA varies compared The the DNA found on the swab of L.W. lab also matched neither blood. The DNA on the swab L.W.’s defendant’s locations, analyst, at at locations the nor defendant most some Fish, might match defendant’s possibly Pamela found faint bands that DNA, along matched neither with much clearer bands that Attorney to September In Fish told the assistant State’s nor L.W. matching friendly the clear bands nei- responsible look for a source ther L.W. nor defendant. Fish and never Attorney responded
The State’s never assistant testing prosecution supplied The requested of the swab from T.S. but never informed the defense DNA tests to defense counsel on the swab from friendly identification of a source for the DNA found L.W as- pertaining all three prosecution moved to have court concerning on L.B. The
saults admitted into the case assault using single perpetrator a distinctive found sufficient indication of granted mo- prosecutor’s the court operandi, modus and therefore try defen- subsequently permitted tion. The court single in a trial. charges committing dant on the three assaults admissibility hearing concerning the Frye moved for a *5 of DNA evidence. In of support the motion presented state- ments and from experts articles several concerning testing procedures analyses and statistical of experts results. The criticized the lack of sampling random in the creation of DNA databases used for comput- ing probability the of random matches. They police also criticized labs perform their failure to blind proficiency tests to check on the ac- curacy procedures. police None of the reported labs error In rates. tests, forensic the analysts always po- know advance which samples match, lice want the lab contrary good scientific technique. In one of the support articles submitted in motion, of the Harvard University professor explained problem R.C. Lewontin the of labora- tory error when the sample lab receives a small from a crime scene blood, and some source compare, suspect. like from a “While there enough is more than DNA recoverable from the suspect’s large sample carry blood procedures, out the needed small, very the degraded, sample and often from the crime scene does not contain sufficient DNA for comparison. the To obtain suf- material, ficient ‘amplified,’ DNA from the crime scene is is, copied thousands millions of in a procedure times known as *** (PGR). polymerase chain reaction problem with the PGR technique nature, is that because its chain contaminant original may and, molecules in the sample amplified also be since original sample molecules, crime scene contained so few *** may original amplification. contaminants overwhelm practice Now consider laboratory. the actual in a forensic A DNA handling technician samples. very large is two One is the DNA sample blood, suspect’s from the the other is minuscule DNA sample scene, amplified from the by crime which is then PGR. The contamination, situation is ideal for PGR with the result that the suspect’s really compared DNA will not be with that from the crime scene, just replicated but with his or her own DNA has been in the PGR reaction. The result will be a perfect match. technique
All of regularly acutely us who use the PGR are con- scious of the problem, contamination and the best laboratories occasionally have suffered from it. The perspiration and ‘oils’ provided fingertips enough exper- DNA contamination in PGR Lewontin, give completely iments to artefactual results.” R. Com- Contexts, ment: The Use DNA in Forensic 9 Stat. Sci. Profiles (1994). One study positives laboratories California found false available, limited reported samples from 110 on the tested. Based data expert positive an said “a reasonable error is estimate false rate percent.” Koehler, Ques- 1-4 Important J. DNA Matches and Statistics: tions, Answers, Surprising 222, 229 76 Judicature The court response. no evidence in presented to admit hearing and decided Frye for a the motion denied testimony from a defense evidence, along DNA expert. testimony, arguing suppress moved to identification
Defendant unreason- right his to be free from Johnson violated first that Officer 23, 1993. on December stopped defendant when Johnson able seizure argued that argument. Defendant also rejected the The court photographs looked at suggestive. The court lineups unduly were lineups that the were with defendant lineups agreed lineup, in the first the darkest perfect. Defendant was lineup. heaviest in each and one of the lineup, in the second shortest Ac- muster.” lineups “pass constitutional But the court held that *6 evi- exclude identification denied the motion to cordingly, the court dence. he made to allegedly statements suppress moved to
Defendant 28, 1993, he that on December Sergeant Duffin. Duffin testified near 55th and Damen for walk back and forth watched defendant defendant who he was approached Duffin then and asked three hours. night. on a cold Defendant why he was out on the street such going a mini-mart. Duf- gave just nearby he was his name and said identification, any. did not have but defendant fin asked to see some might outstanding a thought he there be warrant Defendant said him. had arrested him for explained Evergreen police Park He substance, might possession and he have missed controlled police drive defendant to the scheduled court date. offered to Duffin had a warrant for his station to determine whether the court issued agreed. Although searched defendant before let- arrest. Defendant he car, weapon. no ting police him enter the Duffin found his about partner in car he talked with Duffin testified that they carried. After Duf- handguns. guns Defendant asked what kind of gun. De- answered, whether ever owned fin he asked defendant revolver, it the but he sold answered that he had owned fendant station, At that defendant had not prior police determined week. charge. drove defen- possession court date missed his Duffin up. picked from which he him dant back to the location just him police testified that arrested and handcuffed Defendant put got identification and city after he off a bus. An officer took his anything him in police police in back of a car. The did not ask him ar station, only why they the ride to the and defendant asked them station, Miranda They questioned him. him at the without rested still him home. Defendant warnings, driving for half an hour before nothing guns. said about
Based on his appraisal credibility witnesses, judge denied the motion to suppress the began statement. The trial October 1997.
After jury prosecutor selection the informed defense counsel that testify L.W would she had consensual sex boyfriend with her a few days before the attack. Defendant moved for a mistrial so boyfriend could find the and test his DNA to determine whether it matched the DNA found on the prosecu- swab L.W.The tor made no response. suggested No evidence that LW was un- ever for questioning, available prosecutor and the knew of the need to question her a boyfriend about at years least three before trial. The motion, court denied the thereby requiring go defendant to to trial ability without the to compare boyfriend’s DNA to the DNA on the swab.
L.B., T.S. separately and L.W. identified court as the man who attacked each of them. L.W. testified that she had inter- boyfriend days course with her two or three before the attack. analyst who tested the semen found in the attack on L.B. swore defendant’s DNA matched the DNA on the at six loca- swab tions, and based on the prob- lab’s DNA database she estimated the ability of a random match at less than one in one billion. Fish,
Pamela who tested the semen L.W., found after the attack on testified that some semen may remain traceable in the vagina for 72 hours after intercourse. She sperm admitted that clearly most present all, L.W did not match defendant at but she found faint sperm traces indicative of from a second source. At one location on the DNA DNA, she found the faint band matched defendant’s and at other locations the traces were far light too to positively rule out defendant potential as a source. The compare never asked her to *7 boyfriend’s swab from with her analyst DNA. The admitted that banding light pattern signs degradation. showed considerable She also admitted that the swab contained far more DNA which matched neither LW nor defendant. cross-examination, expert
On the defense asked the prosecution’s about the composition of the database and whether the lab had procedures to give picture assure randomness to an accurate of the DNA population available in the as a whole:
“Q. bases, majority, percent, Those data the vast 90-some samples you got ChicagoMorgue, came from the right?
A. Correct.
Q. Basicallythey cases, were murder correct? from, I say samples A. can’t what all of the came but most of County Morgue, them did come from the Cook the Medical Examiner’s Office. and it handles homicidecases morgue handles
THE COURT: cases. it handles accident cases and natural death Q. In fact, if you go out and look at [*] [**] the actual files associated lab for come samples [of the numbers with those case majority murder database], of them are the vast in the inclusion cases, right? object. Judge, [Prosecutor]: I *** Sustained.
THE COURT: *** they bases to be valid data Q. order for these data bases [I]n selected, randomly right? be Correct. A. doing the selec- Essentially, Chicago were Q. the murderers tion, they? weren’t Objection.
[Prosecutor]: victims, not First, talking about we are THE COURT:Sustained. already murderers, morgue. secondly,I have indicated And from the morgue accidental deaths jury note that the treats can take appar- not the cause of death is it natural deaths where and treats situations, it doesn’t death It all kinds of various ent. treats any make difference.” depart- effort to show that point the abandoned the
At that scientifically acceptable meet standards procedures ment did not accurately reflects DNA of a random database construction population. available in the on the test the faint bands shown expert testified that
Defendant’s contamination likely arose from bacterial swab from L.W most locations, nothing appeared at all At most degradation of the DNA. separate semen sources if DNA from two banding appear should where as excluded defendant any banding. The evidence accounted for expert the evidence semen. The described possible source of the [he had] ever seen.” “one of the cleaner exclusions came from L.W.’s primary that the bands response theory In defendant, expert noted bands came from boyfriend, and the faint after intercourse vaginal taken 48 hours showing that swabs studies banding testing. If the material for DNA provide any do not reliable banding pattern sources, then the clear separate pattern reflected two L.W., source, the man who attacked the more recent came from left two to pattern DNA of the semen must reflect the the faint bands with her attack, had intercourse before the when L.W. days three boyfriend. L.W., of the attack on guilty jury found defendant T.S., as on L.B. and well aggravated criminal sexual assaults
guilty *8 10 robbery
as armed and attempted robbery T.S. armed of L.B. The judge sentenced defendant to consecutive totaling years. sentences 210 prosecution concedes that the statutory sentence violates limits of (West 8—4(c)(2) sentencing authority. court’s See 730 ILCS 5/5 — 1996).
I argues appeal On defendant discovery that the State’s violation requires prosecution reversal. The did not inform defendant until the day trial, jury selection, after had intercourse with her boyfriend days two or three before the attack.
The prosecution answers first that it did not learn of the evidence significantly However, before the defense learned it. nothing in the supports record analyst the assertion. The laboratory working with the DNA samples prosecutor, trial, asked the years three before to find out L.W shortly whether had consensual sex before the attack. No ev- idence prosecutors any signif- showed that LW was unavailable to Thus, icant time three-year period. in that prosecution should the suppressed approximately discovered evidence years three trial, before and no shows to failure discover it at that time.
Next, the prosecution contends objection waived to discovery by failing request violation to a continuance rather than disagree. a mistrial. We A request defendant’s failure to a continuance objection discovery does not waive to a violation if a continuance can prejudice. People Weaver, correct the 559-60, See v. 92 Ill. 2d (1982); 442 People Matthews, N.E.2d 255 App. 914, 921, v. 299 Ill. 3d N.E.2d simple A boyfriend interview with L.W.or her damage would not undo the to discovery the defense case due to the verify violation here. The defense needed boyfriend to test the to its expert’s theory boyfriend matched, best, banding that the at the faint analyst expert found. The believed that most LW, evident DNA came from the man who attacked and that man probably necessary testing also attacked T.S. and L.B. The would take longer far than the time for reasonably keep which the court could jury waiting. Therefore, only give op mistrial would the defense the to portunity perform the needed properly preserved tests. Defendant objection discovery sought appropriate to the relief violation when at trial. argues by also that defendant waived the issue it
failing
specificity
posttrial
raise with sufficient
motion. In
objected
ruling
the motion defendant
specifically
the court’s
on the
objection appears
sufficiently specific,
motion for mistrial. The
to be
of the error the
case,
court
the trial
of this
remind
the context
upon
relies
error he
is the same
sought
rely upon,
which
570, 574, 691 N.E.2d
Groves,
appeal.
People
See
*9
(1998).
parties
the
on
Moreover,
rule is
limitation
the waiver
327,
301,
Shaw,
v.
186 Ill.
People
court.
jurisdiction of the
on the
(1998).
part
issue in
because
choose to address the
We
The convictions assault and the that one man committed identification of defendant the a test to match requested all three Prosecutors never assaults. If mistook defendant for the man of T.S. defendant. swab defendant for the man her, attacked T.S. could also have mistaken who for the could have mistaken defendant who attacked her. Even L.B. showing a clear match with man her. The evidence who assaulted error, laboratory from such as might DNA have resulted defendant’s Thus, of if the test kind Lewontin described.1 contamination the test, procedures DNA 1Although laboratory RFLP for the here used prosecution presented explained, the procedures not the PCR Lewontin or the rates in concerning possibility of contamination error no evidence testing subjected laboratories to blind needed RFLP has the State its tests. Nor procedures. for RFLP for accurate assessment error rates boyfriend L.W’s confirms the expert’s theory, prob- ably acquitted should be T.S., for the assault on and might even be acquitted for the assault on L.B. concerning
The evidence on may assaults T.S. and L.B. become very closely balanced, depending result of the DNA test boyfriend. L.W’s Prior notice permitted would have the tests neces- sary theory refute the boyfriend, L.W.’s and not L.W, man who produced assaulted primarily semen found on the swab of prosecution’s knowledge, L.W. Due years three trial, before of the need to look for evidence that L.W had consensual intercourse shortly assault, before the the failure to find the evidence and disclose it to defense in advance appears of trial willful. Accord- ingly, applying the test restated Matthews, we hold that discovery violation requires reversal of the convictions. As defendant challenge does not sufficiency evidence, we remand for new trial.
II
*10
We address some other
may
again
issues that
arise
on retrial. De
fendant contends
that
the trial court should have suppressed
identifications derived from Officer Johnson’s unreasonable seizure of
supreme court,
defendant. Our
in People Murray,
382,
v.
137 Ill. 2d
388-90,
(1990),
adopted
N.E.2d 309
the definition of “seizure” set
Mendenhall,
544,
forth
v.
497,
United States
446 U.S.
64 L. Ed. 2d
(1980).
In Mendenhall approached the defendant as she walked through airport. an After identifying themselves, agents the asked to see the defendant’s identification and airline ticket. The Court held that no seizure occurred when the voluntarily defendant responded requests. to the explained: The Court
“We adhere to the
a person
when, by
view that
is
only
‘seized’
physical
means
authority,
of
force or a
of
show
his freedom of move-
ment
Only
is restrained.
such
imposed
when
restraint is
there
is
any
invoking
foundation whatever for
safeguards.
constitutional
purpose
The
of the Fourth Amendment is not to eliminate all
police
citizenry,
contact
and
prevent
between
but ‘to
arbitrary
oppressive
by
and
interference
enforcement officialswith
privacy
personal security
long
[Citation.]
and
of
As
individuals.’
person
questions
put
disregard
as the
to whom
are
free
remains
questions
away,
upon
walk
there has been no intrusion
liberty
person’s
privacy
as
would under
Constitution
particularized
objective
require
justification.
some
meaning
‘seized’within
that a
has been
conclude
We
if,
of all of the circum-
only
in view
Amendment
of the Fourth
incident,
person would
surrounding a reasonable
stances
Mendenhall, 446 U.S. at
free to leave.”
that he was not
believed
553-54,
Our
court has
Brown,
warnings
prior
any
interrogation. People
randa
custodial
116, 124,
Ill.
asked in
stations
cars
brief,
Brown,
and
question
very
Ill. 2d at 130-31. The
was
tions.
questioning. The trial court found
testimony
no further
Duffin’s
shows
including
question
that the
testimony credible,
testimony
Duffin’s
partner
defendant. Duffin’s
arose
the course
a conversation with
down,
protective pat
nothing in
question. Apart
heard the
from the
gave
appearance
of a
police
the encounter
defendant and
between
restraint. The
court found that a reasonable
defendant’s
trial
Therefore, the court
position would have believed he was free to leave.
interrogation,
found no custodial
and no need for Miranda warnings.
say
We cannot
that the ruling
Brown,
constitutes manifest error. See
Defendant also asks us to
judge’s statements, during
review the
experts,
cross-examination of
concerning
the source
police
lab’s
prosecution
DNA database. The
argues that the trial
court
judicial
could take
notice of those
The
may
sources.
trial court
judicial
take
notice of
capable
facts
of immediate and accurate demon
stration by resort to easily accessible
of indisputable accuracy.
sources
In re Marriage DeBow,
App.
1038, 1040,
236 Ill.
3d
In
App.
(1991),
The appellate court said: “Generally, evidence of other crimes is inadmissible if relevant merely [Cita to establish a defendant’s to commit crime. propensity admissible, tion.] Evidence of the commission of other crimes is however, prove any purpose such evidenceis relevant to other when
15 intent, crime, operandi, as modus commit such to propensity than the sound It within motive, [Citations.] of is or mistake. absence evidence of other to determine whether of the trial court discretion probative and whether to a material issue is relevant crimes impact; this deter- prejudicial outweighs its value of such a clear abuse of only there exists if will be overturned mination [Citation.] discretion. pursu in case crimes evidence this proffered the other The State operandi The modus operandi exception. the modus ant to pattern of criminal to a working’ exception refers ‘method of recognized as the offenses are separate behavior so distinct the offense offered Between person. [Citation.] the same work of charged, there must be the offense operandi modus and prove that, if defendant logical inference connection which creates clear offense, [Cita the latter. he also committed committed the former and peculiar crimes arises when both share tion.] This inference by type offenses of the same distinctive features not shared most which, therefore, person’s one earmark the offenses as and identical but must [Citation.] The offenses need not he handiwork. which, gen although crimes in common to similar share features eral, together.” Berry, App. 244 Ill. are distinctive when considered 21. 3d at time, in loca appellate Berry court noted the similarities actions,
tion, and the court and some the assailant’s words could agreed the defendant that no feature of the crimes be differences in significant also noted the unique. considered The court court did not demands, and but concluded that the circuit methods concerning clearly allowing testimony by abuse its discretion Berry, 22; see also App. into evidence. 244 Ill. 3d at second crime 1055, 1067-68, 1206 Johnson, v. 423 N.E.2d People location, time, method Here, too, we find the similarities features, some unique and the crimes have dissimilari any fail show Nonetheless, find in the decision ties. we no abuse discretion L.B. and L.W into evidence against of the crimes admit the evidence remand, concerning on T.S. On court should the case assault in trial on testimony concerning all three crimes allow into evidence L.B. T.S., if the DNA charges especially to the attacks related defendant as the man proves that she misidentified boyfriend L.W’s 141-43, Tate, Ill. 2d N.E.2d People who attacked her. See (1981) (court admissibility to determine employed same standard by applied prosecution’s evidence offered other crimes crimes). evidence of other court’s conclusion that sufficiently supports
The evidence the trial Officer Johnson did not seize defendant spoke when he to him briefly on the Sergeant street. testimony Duffin’s supports also the decision to admit defendant’s statement to Duffin into evidence. The court properly testimony admitted about all three crimes into evidence at concerning trial each individual crime because the suf- crimes ficiently single showed a operandi. modus But the fail- ure to identity disclose the of possible source of the semen found on requires swab from L.W reversal remand for a new trial on *13 the charges related to the T.S., assaults on L.B. and particularly timely because disclosure given would have the defense an opportunity develop exculpatory to evidence.
Ill petition On rehearing for prosecution argues the primarily that “the State did not have to make defendant’s case for him.” The prosecution apparently misunderstands its duties. A prosecuting at torney the representative
“is not of an ordinary party to controversy, a sovereignty obligation govern whose impartially to is as compelling obligation govern all; as its interest, to at and whose therefore, prosecution in a criminal is not case, that it shall awin justice such, but that shall peculiar be done. As he very is law, definite sense the servant of the the twofold aim of which is guilt that escape shall not Berger innocence suffer.” v. United States, 78, 88, 1314, 1321, 295 U.S. 79 L. Ed. 55 S. Ct. (1935). supreme Our emphasized: court duty officers,
“It is the
of the prosecuting
representatives
of all
State,
People
the
merely
the
to endeavor to obtain convic
but,
warrants,
tions
criminal cases
if the evidence so
to see that
person
unjustly
stigma
accused of crime is absolved from the
of a
discharged
Schoos,
custody.” People
conviction and
from
v.
399 Ill.
527, 532,
(1948),
grounds, People
N.E.2d 245
overruled on other
Izzo,
203, 209,
v.
14 Ill. 2d
Here, the test of the from a principal DNA swab L.W. showed banding pattern matching prosecut- neither L.W. nor defendant. The from either L.W.’s pattern derived then that the
ing attorney knew actually who contamination, or the partner, consensual sexual theory principal that the on the prosecutor relied raped L.W. The several place that took consensual intercourse banding came from trace of the very little DNA days rape, rapist and the left before the sug- pattern, prosecution the might have left a faint rape. rapist The banding strong the sperm count.” But rapist’s “low gests, due to taken from L.B. showed the test of the swab pattern found from the test sperm low count—unless from such defendant did not suffer blood. by defendant’s L.B. reflected contamination of the swab from reason to giving considerable Therefore, had evidence actually raped L.W. doubt that defendant help could resolve straightforward investigation reasonably A L.W., witness, to ask only needed to contact its prosecutor doubt. The consensual intercourse recommended, she had her, as Fish with whom laboratory give blood, could agreed If man rape. before the sperm most evident on swab provided determine whether LW investigation goes be- obligation perform this prosecutor’s defendant for a crime he did obligation prosecute not to
yond not match boyfriend does If the lab test shows that L.W’s not commit. swab, banding pattern prosecutor then the would principal with the DNA found on the very strong rapist, evidence that a swab, large, prosecutor at for his offense. unprosecuted remained *14 if he fails to guilty escape that the do not duty fails to meet the to see raped who L.W. person look for the from T.S. on a puzzling decision not to test the swab takes light of the appearance
more ominous when viewed If the decided not to test prosecutor of official duties. miscontruction him,” case for doing might the swab because so “make defendant’s despite prosecutor pursued substantial then the has to prosecutor When the has reason guilt. doubt of the defendant’s accused, to guilt pursue he must evidence doubt the the prosecution. determine whether to continue public pursue defender also failed points The State out that the persons identity possible concerning all evidence offic- governmental other L.B., The duties of raped who T.S. duties, neglect have no effect on ers, arguable of such prosecutor’s duties. duty obligation no to clear cases. He has prosecutor has rights individu- respect all lawful means that the constitutional
use perpetrators of such illegal investigate activity and discover als may a defendant finds evidence that activity. prosecutor When the have committed the crime for accused, which he prosecutor stands has an duty pursue affirmative that evidence and determine the identities of the actual perpetrators, part duty of his to see that the innocent should punishment. not suffer Because petition rehearing misunderstanding demonstrates duties, petition these is denied.
Reversed and remanded.
TULLY,J., concurs. COUSINS, JUSTICE concurring part and dissenting part: I concur with the decision in the case, instant excepting part gives where the court following directions to the trial court: remand, “On the court should allow into evidence testimony concerning all three charges crimes in trial on related to the at T.S., tacks especially L.B. if boyfriend DNA L.W’s proves that she misidentified defendant as the man who attacked her.” 3d at 15. because,
I dissent if boyfriend proves the DNA L.W.’s that defen- L.W, dant didn’t admitting attack testimony concerning all three crimes related to the attacks on L.B. and T.S. invites error. ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF v. VICTOR CHAVEZ,Defendant-Appellant. (1st Division)
First District No. 1 - 99-1144 Opinion filed December 2001.