THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. MARIO ORTEGA, Defendant-Appellant.
No. 1-17-2007
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
March 31, 2021
2021 IL App (1st) 172007-U
Fourth Division
Appeal from the Circuit Court of Cook County.
No. 14 CR 2643
Honorable Timothy Joseph Joyce, Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Justice Martin concurred in the judgment.
Presiding Justice Gordon dissented.
ORDER
Held: The trial court did not abuse its discretion in denying defendant‘s pretrial request for supplementary discovery concerning the State‘s expert in historical cell site analysis. In addition, the State laid an adequate foundation for the expert‘s testimony, and defendant‘s trial counsel was not ineffective for failing to request a Frye hearing regarding the admissibility of historical cell site analysis. Finally, defendant‘s unpreserved claims of prosecutorial misconduct in closing argument do not constitute plain error.
¶ 1 Defendant Mario Ortega was convicted of first degree murder for the shooting death of Efrain Cruz. The evidence at trial included the testimony of an expert in the field of historical cell
I. BACKGROUND
¶ 4 In Seрtember 2012, Cruz and his girlfriend, Dolores Colon, lived with their two children and Cruz‘s mother in an apartment at 3260 West Le Moyne Street in Chicago. That address is at the corner of Le Moyne Street and Spaulding Avenue. Colon testified that she and Cruz sold small quantities of marijuana out of their apartment to friends and acquaintances.
¶ 5 On the afternoon of September 20, 2012, Ortega‘s girlfriend, Brianna Ruiz, and her friend, Deserie Aponte, drove to Cruz and Colon‘s apartment to buy marijuana. Colon initially refused to sell to them because she did not know them. However, when a boy from the neighborhood dropped
¶ 6 Later, as Aponte and Ruiz drove around, Ruiz received several calls from Ortega. Ortega, whose nickname is “Crazy,” demanded to know where Ruiz was. Ruiz lied and said she was at home. Ruiz then texted her mother, Emily Ocasio, with whom she lived, and asked her whether Ortega was around. Ocasio looked out the window of her apartment in the area of North Avenue and Richmond Street and saw Ortega pacing back and forth while talking on the phone. Ocasio testified that Ortega was wearing a gray hoodie, white T-shirt, and blue jeans. Ortega saw Ocasio in the window and called her. He asked whether Ruiz was there, and Ocasio said she was with Aponte. Ortega told Ocasio that Ruiz had gone to buy marijuana on Le Moyne. Ocasio went outside to speak with Ortega, whom she described as irate. Ortega told Ocasio that he was going to “get” the people at Le Moyne and Spaulding. After about 15 minutes, Ocasio went back inside.
¶ 7 At some point later, Aponte and Ruiz arrived, and Ocasio came back outside. Ortega then appeared to “pop[ ] out of nowhere” and came rushing tоward Ruiz, still irate. He yelled at Ruiz for lying to him about being at home. He said, “Let me find out you bought weed from that nigga Efrain, I‘m going to call that nigga.” Ortega also confronted Aponte. Referring to her car, he told her, “That‘s a nice little whip, you wouldn‘t like for it to be lit up.” When Ocasio threatened to call the police, Ortega said that he was not scared of the police. Ortega eventually got into the front passenger seat of a red car and left.
¶ 8 Later that evening, around 9:00, Ortega went to Colon and Cruz‘s apartment. Colon was asleep and Cruz was not home. Cruz‘s mother woke Colon and told her that someone was knocking on the window. When Colon got up, she saw Ortega, whom she did not know, standing at the front
¶ 9 Around 11:30 that evening, Colon and Cruz got a call from an unrecognized number. Cruz answered, and Colon could overhear that the male caller wanted to buy marijuana. Cruz told the caller to come to the front door, where they usually made their sales, but the caller insisted on making the transaction at the back of the building. Cruz eventually agreed and went out back. A few seconds later, Colon heard a gunshot, followed by a pause, and then four more gunshots. She ran outside to the gated area off the alley behind the apartment and found Cruz on the ground bleeding. She saw someone walking down the alley and called out “hey you,” and the person then started running. The person was wearing a gray hoodie and black jeans. Colon could not see the person‘s face.
¶ 10 Marilyn Cintron, who lived a few buildings down on the other side of the alley, heard the gunshots and looked out the window of her basement apartment. She saw a young man running through the alley. She testified that the man was 5‘5” or 5‘6” and had light skin. Cintron denied telling police that the man had a medium complexion, but the parties stipulated that she had given such a description. Cintron testified that the man was wearing a gray jacket with a hoodie and dark
¶ 11 Herbert Chilson, who lived in the same building as Colon and Cruz, also heard the gunshots. Looking out the window of his third-floor apartment, he saw someone in a light gray hoodie and black pants open the back gate and run down the alley, but he was unable to see the person‘s fаce. Chilson called 9-1-1 and ran downstairs to render aid to Cruz. A short time later, police and paramedics arrived on the scene, and Cruz was transported to the hospital, where he was later pronounced dead. The cause of death was multiple gunshot wounds.
¶ 12 At the scene, a police evidence technician recovered three expended cartridge casings and a fired bullet. The technician also collected the doorknob assembly from the rear gate. A forensic analysis revealed that the three cartridge casings were fired from the same gun, but it could not be determined whether the recovered bullet was also fired from that gun. No fingerprints suitable for comparison were found on the doorknob. A swab collected from the doorknob tested positive for the presence of blood. Further testing identified a male DNA profile on the swab collected from the doorknob, which matched Cruz‘s DNA profile and did not match Ortega‘s DNA profile.
¶ 13 Also at the scene, Colon told the police about the phone call she and Cruz received before the shooting and gave the police her cell phone. When Colon returned home from the hospital the next day, she also told her family members about the phone call. She gave the caller‘s number—which she then had memorized—to her cousin, Luis Rivera, who entered the number into his phone. When Rivera did so, his phone displayed the name “King Crazy.” Rivera then showed Colon a Facebook photo, and Colon recognized the person in the photo as the man who had come to her apartment before Cruz was shot, whom she again identified in court as Ortega. Colon later provided the Facebook photo to Detective Marc Leavitt.
¶ 14 Detective Leavitt received Colon and Cruz‘s cell phone from the officer who collected it at the scene. He examined the phone and saw that it had received a call at approximately 11:31 p.m. on September 20, 2012, from the number 773-676-3298. His investigation revealed that the phone number was registered to a Mario DeJesus, with an address of 1045 North Central Park Avenue, and that the phone had been activated on July 14, 2012. Detective Leavitt contacted the landlord at that address and learned that no one named Mario DeJesus lived there. The parties stipulated that the record keeper for a government facility in St. Charles, Illinois, would testify that, as of May 17, 2012, the facility‘s files listed Ortega‘s phone number as 773-676-3298.
¶ 15 Ortega‘s friend, Elisa Figueroa, testified that she was at work on the evening of September 20, 2012. Her shift was scheduled to end at 11:00 p.m. and she had arranged for Ortega to pick her up. At 11:20 p.m., she called and texted Ortega but got no response. When Ortega eventually responded, he told her that he was on his way. Figueroa went across the street and waited for Ortega at a McDonald‘s. When the McDonald‘s closed at midnight and Ortega had still not arrived, Figueroa called her aunt, who picked her up and brought her to the aunt‘s house at Armitage and
¶ 16 The State also called FBI Special Agent Joseph Raschke, who testified as an expert in the field of historical cell site analysis. Agent Raschke testified that he is a member of the FBI‘s cellular analysis survey team, which assists other investigative agencies in tracking the location of cell phones based on records maintained by cell phone companies. Agent Raschke testified that he has received more than 500 hours of classroom training from both the FBI and cell phone companies in the subjects of cellular telephone technology, radiofrequency, and cellular networks, and that he has reviewed and analyzed “thousands of [cell phone and cell site] records over hundreds of cases” and testified as an expert in historical cell site analysis approximately 75 times. He also instructs other investigators across the country in how to analyze and interpret data from cell phone company records. On cross-examination, Agent Raschke acknowledged that he is not a scientist or network engineer and has never worked for a cell phone company. He also stated his
¶ 17 Agent Raschke explained that cell phones operate by transmitting and receiving radio-frequency signals from сell towers, which are pieces of equipment that cell phone companies place in areas in which they provide cellular service. Agent Raschke explained that cell phones are designed and programmed to utilize the cell tower that will provide the strongest, clearest signal. Agent Raschke testified that the tower providing the strongest, clearest signal will usually be the tower closest to the phone, but he acknowledged that factors such as environmental conditions or the characteristics of a particular tower may affect that calculus. Agent Raschke further explained that cell towers are often divided into different sectors, which are positioned to transmit signals in specific directions, meaning that if a cell phone utilized a sector of a cell tower that faced north, the phone could not have been located to the south of the tower. Agent Raschke testified that each cell phone company keeps a master list of where its cell towers are located, how many sectors each tower has, and the direction in which the sectors point.
¶ 18 Agent Raschke explained that cell phone companies collect and maintain historical data about the cell tower that a cell phone communicated with when it was in active use. By analyzing that data, Agent Raschke is able to determine the location of the tower and the particular sector that a phone used. That information, in turn, allows Agent Raschke to determine the general area in which a cell phone was located based on its cell tower usage. Agent Raschke emphasized that historical cell site analysis can only provide the general area in which a cell phone was located and cannot be used to place a phone at a precise address.
¶ 19 Agent Raschke testified that, using records provided by the cell phone company Cricket, he performed an historical cell site analysis for the phone number 773-676-3298. With maps that he created based on those records, Agent Raschke identified the locations and sectors of the towers that the phone used at various times on September 20, 2012. Agent Raschke testified that, between 7:02 p.m. and 7:47 p.m., the phone had multiple call activity that utilized the south-facing sector of a tower, which indicated that the phone was south of the tower and likely closer to that tower than other towers during that period. On a map, Agent Raschke identified the location of the tower and drew two lines to show the sector‘s southerly direction. (Agent Raschke emphasized that the upside-down V-shape produced by the lines was not meant to indicate the tower‘s actual coverage area.) Also identified on the map were the crime scene location and the address of 1623 North Richmond Street. Agent Raschke testified that the latter address, which was shown on the map as due south of the tower, was in the general area of the sector that the phone utilized. Agent Raschke then testified about the phone‘s activity from 7:54 p.m. to 8:01 p.m. and from 10 p.m. to 11:09 p.m., identifying on his maps the towers and sectors that the phone used during those periods.
¶ 20 Next, Agent Raschke testified about the phone‘s activity from 11:27 p.m. to 11:34 p.m. He explained that, in that eight-minute period, the phone made multiple calls that utilized one of two towers, with several instances in which the phone switched from one tower to the other in the same minute. This indicated to Agent Raschke that thе phone was likely in an area where the coverage of those towers overlapped. On another map, Agent Raschke identified the towers and drew lines indicating their sector directions. The map also displayed the location of the crime scene, which Agent Raschke described as being in the “general vicinity” of where the call activity in that eight-minute period took place. Finally, Agent Raschke testified about the phone‘s activity
¶ 21 On cross-examination, Agent Raschke explained that, in conducting his analysis, he relied on a list of cell tower locations provided by the cell phone company. He acknowledged that when he performed the analysis in 2014, he used a map showing the locations of Cricket‘s towers as of July 2012 rather than September 2012. He explained, however, that he was able to verify that the tower locations had not changed between July 2012 and September 2012 by viewing a tower list from 2014 which was identical to the July 2012 list. Agent Raschke also testified that he drove around the area of the crime scene and viewed the towers that the phone used near the time of the crime. He acknowledged that he did not measure the angles of the towers, but he explained that it was not necessary for him to do so because Cricket‘s tower list contained that information. He also acknowledged that he did not review the towers’ maintenance records, but he explained thаt he never does so because the fact that a phone used the tower indicates that the tower was working.
¶ 22 Following closing arguments, the jury found Ortega guilty of first degree murder. The trial court denied Ortega‘s motion for a new trial and, after considering a presentence investigation report and evidence in aggravation and mitigation, imposed a sentence of 55 years in prison. After the court denied Ortega‘s motion to reconsider the sentence, Ortega filed a timely notice of appeal.
II. ANALYSIS
A. Supplemental Discovery
¶ 25 Ortega‘s first argument on appeal is that the trial court erred in denying his pretrial request for supplemental discovery concerning Agent Raschke‘s qualifications and training in the field of historical cell site analysis and the information, standards, and procedures on which he relied when performing his analysis in this case. With respect to Agent Raschke‘s qualifications and training, Ortega requested a list of the requirements necessary to become an instructor in historical cell site analysis; the syllabi and training manuals used in the courses Agent Raschke attended and teaches; and the names of cases in which Agent Raschke had testified as an expert in the field. As for Agent Raschke‘s analysis, Ortega sought a description of the procedures, methods, scientific principles, and network information on which Agent Raschke relied in making his findings and conclusions, and any procedural manuals Agent Raschke used or developed in conducting his analysis. Ortega also requested a description of the methods Agent Raschke used to draw tower sector boundaries, an explanation of how Agent Raschke estimated tower coverage areas, and information about the operating condition of the towers and antennae on the date of the crime. Finally, Ortega sought all of Agent Raschke‘s case notes and the underlying raw data on which he relied, the measurement results of any field testing he conducted, and any materials supporting the scientific methodology he used, including validation studies, protocols, articles, and manuals. The trial court denied these requests, finding them overbroad and unnecessary to allow Ortega to conduct an effective defense.
¶ 26 Although Ortega recognizes that a trial court‘s rulings on discovery issues are generally reviewed for an abuse of discretion (see People v. Williams, 209 Ill. 2d 227, 234 (2004); People v. Gomez, 236 Ill. App. 3d 283, 292 (1992)), he urges us to review the trial court‘s ruling de novo
¶ 27 Discovery in criminal cases is governed, in part, by
¶ 28 We conclude that the trial court did not abuse its discretion in denying Ortega‘s requests. For one thing, we agree with the trial court‘s assessment that Ortega‘s requests were overbroad. Ortega‘s requests for information about the criteria for becoming an FBI instructor in historical cell site analysis and the syllabi and training manuals used in the courses that Agent Raschke has taught and attended went well beyond what was relevant or necessary to cross-examine Agent Raschke regarding his training and qualifications or the basis for his opinions. Ortega asserts that the trial court could have resolved the overbreadth by granting only some of his requests. But he never suggested that option in the trial court. We thus cannot say that the court abused its discretion in denying the requests in toto.
¶ 29 Overbreadth aside, Ortega has not shown that his supplemental discovery requests were material to an effective cross-examination of Agent Raschke. Ortega contends that information about Agent Raschke‘s training and the standards, methods, and information on which he relied in conducting his analysis go directly to the basis for his opinions and were thus necessary for an effective cross-examination. But Ortega does not dispute that the State tendered, pursuant to
¶ 30 With this information, Ortega was able to effectively probe Agent Raschke‘s training and qualifications as an expert in the field of historical cell site analysis and the underlying basis for his opinions. For instance, Ortega elicited that Agent Raschke is not a scientist or network engineer and that he received his college degree in accounting. Ortega also elicited Agent Raschke‘s view that historical cell site analysis is not a science and has no generally accepted principles or textbooks. Ortega was also able to attack what he considered various flaws in Agent Raschke‘s methods. For instance, he elicited that Agent Raschke relied on a list of cell towers from July 2012 rather than September 2012, when the call activity at issue took place. Ortega further elicited that Agent Raschke did not review maintenance records to confirm that the relevant cell towers were operating correctly or measure the angle of the towers.
¶ 31 Neither Ortega nor the dissent explains how additional discovery concerning Agent Raschke‘s training and qualifications or the scientific principles, methods, and information on
¶ 32 In addition, we note that, while Ortega requested discovery explaining the methods Agent Raschke used to estimate tower coverage areas and draw tower sector boundaries, nothing in Agent Raschke‘s testimony suggests that he did either of those things. Agent Raschke testified that historical cell site analysis can be used to estimate the general area in which a cell phone was located and opined that, around the time of the crime, Ortega‘s phone was likely in an area where the coverage of two particular towers overlapрed. But he did not offer any estimate of the towers’ coverage areas. Instead, he emphasized that his opinion was only that Ortega‘s phone was in the “general vicinity” of the crime scene. Similarly, Agent Raschke stressed that the lines drawn on his maps indicated the directions of the relevant towers’ sectors and not the towers’ actual coverage areas.
¶ 33 Finally, Ortega contends that the trial court erred in denying his supplemental discovery requests because the State would have been required to tender similar information under
B. Foundation
¶ 35 Next, Ortega contends that the State failed to lay an adequate foundation for the admission of Agent Raschke‘s opinion testimony because Agent Raschke did not testify about the standards and procedures on which he relied in reaching his conclusions.
¶ 36 The parties disagree about the appropriate standard of review for this claim. Citing People v. Safford, 392 Ill. App. 3d 212, 221 (2009), Ortega contends that whether the proponent of expert testimony has demonstrated a sufficient foundation to establish the reliability of the expert‘s opinions is a question of law that is reviewed de novo. Ortega also cites several decisions that have followed Safford without providing further analysis. See People v. Fountain, 2016 IL App (1st) 131474, ¶ 64; People v. Simpson, 2015 IL App (1st) 130303, ¶ 35; People v. Negron, 2012 IL App (1st) 101194, ¶ 34. The State counters that Safford‘s approach was rejected in People v. Simmons, 2016 IL App (1st) 131300, ¶¶ 108-114. In a thorough opinion, Simmons explained that Safford‘s application of de novo review was inconsistent with our supreme court‘s repeated pronouncements that the abuse of discretion standard governs appellate review of a challenge to the foundational adequacy of an expert‘s testimony. See id. ¶ 109 (collecting cases). Simmons also explained that Safford‘s reliance on the principle that de novo review applies where no facts are in dispute has no bearing in situations where, as here, “the trial court is asked to make determinations of reliability and sufficiency after hearing testimony.” Id. ¶ 111. Like Simmons, we conclude that a trial court‘s ruling on the sufficiency of the foundation laid for an expert‘s testimony should be reviewed for an abuse of discretion.
¶ 37 “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
¶ 38 As noted, Ortega argues that the State failed to lay a sufficient foundation for Agent Raschke‘s expert opinions concerning the location of Ortega‘s cell phone on the date of Cruz‘s murder because, in Ortega‘s view, Agent Raschke did not еxplain the standards and procedures on which he based his conclusions. We disagree. Contrary to the premise of Ortega‘s argument, Agent Raschke testified extensively about the standards and information on which he based his opinions.
¶ 39 Applying these principles, Agent Raschke created maps showing the locations of the cell towers and the directions of the particular sectors that Ortega‘s phone interacted with at variоus times on the date of the murder. For instance, based on call records showing that the phone had multiple interactions with the south-facing sector of one tower between 7:02 p.m. and 7:47 p.m., Agent Raschke opined that, during that period, the phone was located south of that tower and likely closer to that tower than any other tower. Agent Raschke further opined that the address of 1623 North Richmond Street, which was displayed on the map to the south of the tower, was in the general area of the sector that the phone utilized. Likewise, Agent Raschke testified that, between 11:27 p.m. to 11:34 p.m., the phone made multiple calls that used one of two towers, with
¶ 40 Agent Raschke‘s testimony sufficiently explained the standards and procedures on which he relied and created an adequate foundation for his testimony as an expert. See Fountain, 2016 IL App (1st) 131474, ¶¶ 63-68 (rejecting similar challenge to foundation for Agent Raschke‘s testimony on historical cell site analysis). Ortega asks us to disregard Fountain because the decision there did not address the import of Agent Raschke‘s failure to identify the particular “network technique” on which his analysis relied. See James Beck, et al., The Use of Global Positioning (GPS) and Cell Tower Evidence to Establish a Person‘s Location—Part II, 49 Crim. L. Bull. 637, 644 (2013) (discussing “four basic categories of techniques used to track the movements оf a cellular phone“). However, even though Agent Raschke did not name the technique he used, it is clear from his testimony (as Ortega acknowledges) that he used the “cell identification” technique. That technique entails an expert reviewing call records to identify the tower and antennae (or sector) used to process a call and inferring that the phone was within the geographical coverage area of that tower and sector when the call was made. Id. at 645. The cited article describes the cell identification technique as “the least accurate network technique,” which “can only ‘pinpoint’ a user‘s location to within 100 meters to 3 kilometers.” Id. That description of the technique and its limitations is consistent with Agent Raschke‘s testimony. As discussed, Agent Raschke explained that he determined the general area in which Ortega‘s cell phone was
¶ 41 Ortega again relies on Safford, in which this court held that the State had failed to lay an adequate foundation for the expert testimony of a latent fingerprint examiner who opined that the defendant‘s prints matched a latent print found at the crime scene. Safford, 392 Ill. App. 3d at 216. We held that a foundation for the expert‘s opinion was lacking because the expert did not testify about the points of comparison he considered and thus failed to explain the process by which he reached his conclusion. Id. at 220-21, 226-28. Absent such testimony, the court held, the defendant had no real opportunity to cross-examine the expert on the basis for his opinion, leaving the jury “in the dark as to the reliability and trustworthiness of the result.” Id. at 223.
¶ 42 We reject Ortega‘s reliance on Safford, which subsequent decisions have recognized as “an outlier case.” Simmons, 2016 IL App (1st) 131300, ¶ 123 (quoting Negron, 2012 IL App (1st) 101194, ¶ 41). As noted above, Agent Raschke thoroughly explained the information and principles on which he relied in reaching his opinions. Thus, unlike the expert‘s testimony in Safford, Agent Raschke‘s testimony did not amount to a “take my word for it.” Safford, 392 Ill.
App. 3d at 224. To the extent that Ortega wished to elicit further details about the information or procedures on which Agent Raschke relied or highlight any flaws in his analysis, it was his “right and burden to elicit th[ose] facts *** in cross-examination.” People v. Robinson, 2018 IL App (1st) 153319, ¶ 19 (citing
¶ 43 C. Frye Hearing
¶ 44 Ortega also contends that his trial counsel was ineffective for failing to request a Frye hearing on the admissibility of Agent Raschke‘s expert testimony regarding historical cell site analysis. To prevail on this claim, Ortega must show that his counsel‘s performance was deficient, meaning that it fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). He must also demonstrate that he was prejudiced by the deficiency, by showing a reasonable probability that, but for counsel‘s errors, the result of his trial would have been different. Id. at 694.
¶ 45 In Illinois, the admissibility of expert testimony based on a new or novel scientific principle or methodology is governed by the test first articulated in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The test is now codified in
“Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.”
Ill. R. Evid. 702 (eff. Jan. 1, 2011).
“In this context, ‘general acceptance’ does not mean universal acceptance, and it does not require that the methodology in question be accepted by unanimity, consensus, or even a majority of experts.” In re Commitment of Simons, 213 Ill. 2d 523, 530 (2004). “Instead, it is sufficient that the underlying method used to generate an expert‘s opinion is reasonably relied upon by experts in the relevant field.” Id.
¶ 46 As noted, Ortega argues that his trial counsel was ineffective for failing to request a Frye hearing to determine the admissibility of Agent Raschke‘s expert testimony. Ortega contends that a Frye hearing was warranted because historical cell site analysis is based on a new or novel scientific principle or methodology that has not gained general acceptance in the relevant scientific community. But we have previously held that “testimony regarding historical cell site information [is] not the product of [a] new or novel scientific principle and methodology.” Fountain, 2016 IL App (1st) 131474, ¶ 58; see also People v. Williams, 2017 IL App (1st) 142733, ¶ 39 (holding that “a Frye hearing was not required because the information conveyed [by Agent Raschke] is not the result of new or novel scientific principles“). Based on Fountain and Williams, we have held that defense counsel is not ineffective for failing to request a Frye hearing on the admissibility of such testimony. People v. Wilson, 2017 IL App (1st) 143183, ¶¶ 46-47.
¶ 47 As explained in Fountain, “the use of cell phone location records to determine the general location of a cell phone is not ‘new’ or ‘novel’ and has been widely accepted as reliable by numerous courts throughout the nation.” Fountain, 2016 IL App (1st) 131474, ¶ 59 (collecting cases). The United States Court of Appeals for the Seventh Circuit, while expressing reservations about some uses of historical cell site analysis, has nevertheless explained that the technique “can show with sufficient reliability that a phone was in a general area, especially in a well-populated
¶ 48 Citing several scholarly articles, Ortega contends that there is emerging criticism in the scientific community concerning the usefulness and reliability of historical cell site analysis for tracking the location of cell phones. See Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of A Cellular Phone, 18 Rich. J. L. & Tech. 3 (2011); James Beck, et al., The Use of Global Positioning (GPS) and Cell Tower Evidence to Establish a Person‘s Location—Part II, 49 Crim. L. Bull. 637 (2013); Michael Cherry, et al., Cell Tower Junk Science, 95 Judicature 151 (2012); Alexandra C. Smith, Pinging into Evidence: The Implications of Historical Cell Site Location Information, 120 W. Va. L. Rev. 331 (2017). But the question here is not whether to reconsider Fountain and subsequent decisions accepting expert testimony in historical cell site analysis without a Frye hearing. Instead, the question is whether Ortega‘s trial counsel was сonstitutionally deficient for not requesting a Frye hearing. At the time of Ortega‘s trial in June 2017, Fountain stood as binding authority that expert testimony regarding historical cell site analysis was admissible without a Frye hearing. Fountain, 2016 IL App (1st) 131474, ¶¶ 58-61. In light of the state of the law at the time, Ortega‘s trial
¶ 49 Ortega argues that trial counsel should have recognized that the admissibility of expert testimony concerning historical cell site analysis was subject to challenge under Frye because, in 2012, the United States District Court for the Northern District of Illinois refused to allow certain expert testimony from Agent Raschke. See United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012). But in Evans, the government sought to introduce testimony from Agent Raschke that was based on a novel theory of “granulization.” Id. at 952. When applying that theory,
“Agent Raschke first identifies (1) the physical location of the cell sites used by the phone during the relevant time period; (2) the specific antenna used at each cell site; and (3) the direction of the antenna‘s coverage. He then estimates the range of each antenna‘s coverage based on the proximity of the tower to other towers in the area. This is the area in which the cell phone could connect with the tower given the angle of the antenna and the strength of its signal. Finally, using his training and experience, Special Agent Raschke predicts where the coverage area of one tower will overlap with the coverage area of another.” Id.
In Evans, the defendant‘s phone used two cell towers to place nine calls in an 18-minute period of time. Id. The government sought to use Agent Raschke‘s granulization theory to prove that “the
¶ 50 Ortega‘s reliance on Evans is misplaced. As Ortega acknowledges, the granulization theory discussed in Evans is a more advanced methodology than what Agent Raschke used here. Unlike under the granulization theory, Agent Raschke‘s analysis here did not “estimate[ ] the range of each antenna‘s [or sector‘s] coverage based on the proximity of the tower to other towers in the area,” nor did it “predict[ ] where the coverage area of one tower will overlap with the coverage area of another.” Id. at 952. (While Agent Raschke testified that Ortega‘s phone was likely in an area where the coverage of two towers overlapped when his phone switched between the towers while making multiple сalls in an eight-minute window around the time of the murder, Agent Raschke did not attempt to estimate either tower‘s coverage area or predict where the towers’ coverage areas overlapped.) Moreover, although Agent Raschke‘s analysis relied on the assumption that cell phones usually connect to the cell towers that are closest to them (while acknowledging that other factors can cause a cell phone to connect with a different tower), he did
¶ 51 D. Closing Argument
¶ 52 Finally, Ortega argues that the State made several improper remarks in closing argument that either shifted the burden of proof, were not based on reasonable inferences from the evidence, or misstated the evidence. He also argues that some of the State‘s comments were unduly sarcastic. Ortega did not contemporaneously object to any of these comments or raise this issue in his post-trial motion, so his contentions are forfeited and may be reviewed only for plain error. People v. Glasper, 234 Ill. 2d 173, 203 (2009). To establish plain error, a defendant must show that a clear or obvious error occurred and that (1) the evidence was so closely balanced that the error alone threatened to tip thе scales of justice against the defendant, or (2) the error was so serious that it affected the fairness of the trial and the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 53 Ortega first argues that the State misstated the law and improperly shifted the burden of proof by suggesting that the jury could only acquit him if it disbelieved the State‘s witnesses. Ortega takes issue with the following portions of the State‘s closing argument, in particular the
“We know that those girls [Ruiz and Aponte] were telling the truth because what they told you is corroborated by people they don‘t even know[:] Dolores [Colon], Marilyn [Cintron]. This is not a conspiracy, ladies and gentlemen. When you have this many witnesses all giving similar facts from different perspective[s], different parts of the day, you know that that is solid evidence.
Now let‘s move on to Elisa Figueroa because she is a very important witness, because Elisa was a friend of the defendant, and she was with him after the murder. Elisa has no reason to come in here, make up a story, tell some kind of conspiracy theory. Elisa was afraid. She came in here, and she was quiet, but she told you some very important things.
***
You heard from a lot of witnesses in this case who had no motive to come in here and tell a story or tell lies. There is no conspiracy against Mario Ortega. You heard the facts. You heard the truth. You heard the pieces of the puzzle, and that puzzle is solid, and there is nothing that Crazy can do about it.
The defense told you in opening that this case was based largely on rumors. But ladies and gentlemen, use your common sense. That doesn‘t make sense because a lot of the witnesses in this case, they don‘t know Mario Ortega. They don‘t know each other. They have no reason to come in here and testify to what they told you.
They are strangers, some of them, and then we have FBI Agent Raschke. Is he part of the conspiracy as well? Is his analysis also part of this huge conspiracy to frame Mario Ortega? That doesn‘t make sense. Your common sense will tell you that.”
¶ 54 We find no clear or obvious error in these comments. The prosecutor‘s remarks that the State‘s witnesses had no reason to lie were addressed to the issue of witness credibility, a proper subject of closing argument. See People v. Cloutier, 156 Ill. 2d 483, 508-09 (1993). Likewise, the prosecutor‘s argument that the State‘s witnesses were not part of a conspiracy against Ortega was a proper response to Ortega‘s theory, expressed in his opening statement, that the State‘s case was “based on rumors, circumstantial evidence and incredible witnesses.” See People v. Temple, 2014 IL App (1st) 111653, ¶ 72 (finding no error where “the State only argued its conspiracy argument after defense counsel argued that all the State‘s witnesses were not credible or [were] mistaken in their testimony and the physical evidence did not corroborate the witness testimony“); People v. Jackson, 299 Ill. App. 3d 104, 110 (1998) (finding no error where “remarks made by the State regarding a conspiracy were in response to the defense counsel‘s remarks that the detectives fabricated evidence and lied to defendant” and “the State did not tell the jury that it had to believe that all the State‘s witnesses were lying in order to acquit defendant“).
¶ 55 Ortega contends that the prosecutor‘s comments disclaiming any conspiracy against him improperly suggested that the jury could only acquit him if it found the State‘s witnesses were lying. But our supreme court has drawn “a distinction between situations where a prosecutor permissibly argues that a jury would have to beliеve the State‘s witnesses were lying in order to believe the defendant‘s version of events and where a prosecutor improperly argues that a jury
¶ 56 The prosecutor‘s remarks here are distinguishable from those found objectionable in other cases. In People v. Miller, 302 Ill. App. 3d 487 (1998), for instance, the prosecutor told the jury that it had to find that the State‘s witnesses were lying in order “[t]o believe that [the defendant] did not commit this murder.” (Emphasis omitted.) Id. at 496. Similarly, in People v. Dace, 237 Ill. App. 3d 476, 482 (1992), the prosecutor argued “that in order to acquit the defendant, each juror would have to tell each of the State‘s witnesses that they were wrong about the events to which they testified.” Id. at 482. And in People v. Cole, 80 Ill. App. 3d 1105, 1107 (1980), the prosecutor asked the jurors if they believed the State‘s witnesses were lying and suggested they could not acquit the defendant if there was “one iota of truth in the testimony of the witnesses for the State.” Id. at 1107. The comments in these cases “improperly distorted the burden of proof by incorrectly intertwining the burden with the jury‘s credibility determinations.” Banks, 237 Ill. 2d at 185. The prosecutor here did no such thing. Rather, the argument that the State‘s witnesses had no motive to lie and were not part of a conspiracy against Ortega was “a direct response to the defense‘s attack on the credibility of the State[‘s] witnesses and therefore ‘was not a misstatement
¶ 57 Ortega also contends that the State improperly shifted the burden of proof in its rebuttal аrgument, when the prosecutor stated: “I guess on behalf of the citizens of Cook County, I owe an apology to Mario Ortega and should have been looking for Bryan Polanco this whole time.” The prosecutor then proceeded to explain how the evidence implicated Ortega, and not Polanco. For instance: “Bryan Polanco was seen in a gray hooded sweatshirt throughout the day. Oh, no, no, that was Mario Ortega.” And: “Bryan Polanco makes threats against the guy living at Spaulding and Le Moyne saying he is going to shoot him, he is going to get him. No, no again. Mario Ortega, he did that.” Like the comments above, these remarks did not suggest that the jury could only acquit Ortega if it found the State‘s witnesses were lying, nor did they otherwise attempt to shift the burden of proof to Ortega. Instead, these remarks properly responded to the suggestion in Ortega‘s closing argument that Polanco was the real culprit and that the State had not adequately investigated him.
¶ 58 Ortega further argues that the State‘s remarks about Polanco warrant reversal because they were unduly sarcastic. We disagree. Our supreme court has observed that “improper prosecutorial remarks,” including sarcastic comments, while “all too frequent,” are “completely unacceptable.” People v. Moss, 205 Ill. 2d 139, 170-71 (2001). As this court has since recognized, however, “courts often condone sarcasm,” finding reversible error only in the “rare case” where the challenged comments “indicate an extreme level of sarcasm,” which “comes across *** not [as] argument [but] as ridicule and derision at its harshest” and “crosse[s] over from merely tough talk
¶ 59 In Moss, for example, the State denigrated the expert witnesses the defendant presented at the penalty phase of his capital trial as “cash for trash doctors” offering “psycho-babble” and referred to the defendant‘s psychiatric condition and history of brain injury as a “boo-boo to the brain.” Moss, 205 Ill. 2d at 170. And in Gavin, a case in which the State sought to involuntarily commit the respondent as a sexually violent person, the prosecutor “made numerous sarcastic comments about [the respondent‘s] health as it relate[d] to his risk of sexual recidivism,” which “ma[de] light of a serious issue at the penultimate point of the trial.” Gavin, 2014 IL App (1st) 122918, ¶¶ 60, 62. The State‘s comments here come nowhere close to the extreme level of sarcasm condemned in Moss and Gavin. The comments did not ridicule or deride either Ortega, his counsel, or any witness, nor can they be characterized as inflammatory rhetoric that was likely to appeal to the jurors’ emotions. Instead, as explained above, the comments were proper (albeit sarcastic) responses to Ortega‘s attempt in his own closing argument to cast suspicion for the murder on Polanco and question the thoroughness of the State‘s investigation.
¶ 60 Ortega next argues that the State made several comments that either misstated the evidence or were not based on reasonable inferences from the evidence. “A prosecutor has great latitude in closing argument and may argue fair and reasonable inferences drawn from the evidence at trial.” People v. Jackson, 2012 IL App (1st) 102035, ¶ 18. “However, prosecutors have an ethical obligation to refrain from presenting improper and prejudicial evidence or argument” and “may not argue assumptions or facts not based upon the evidence in the record.” (Internal quotation marks and citations omitted.) People v. Porter, 372 Ill. App. 3d 973, 978 (2007).
¶ 62 In People v. Mullen, 141 Ill. 2d 394 (1990), where the defendant was charged with murder on a theory of accountability after his codefendant shot a man in the back, our supreme court found that the prosecution improperly suggested that witnesses were reluctant to testify out of fear that they too would be shot in the back. Id. at 405. The supreme court explained that the comment was improper because there was “no evidence in the record that defendant in any way threatened or intimidated any witness.” Id. Similarly, in People v. Rivera, 277 Ill. App. 3d 811 (1996), this court found error in a prosecutor‘s remark that a witness “took his life in his own hands” by “testify[ing]
¶ 63 The prosecutor‘s comments here are distinguishable from those in Mullen and Rivera. In those cases, the prosecutor either explicitly stated or clearly implied that a witness feared that the defendant or his associates would retaliate against the witness for testifying. None of the State‘s remarks here can be similarly construed. For instance, the prosecutor‘s comments about Cintron and the State‘s other witnesses being courageous did not link that courage to any intimidation or threats by Ortega or anyone associated with him. Instead, those comments are most naturally read as generalized remarks about the courage any witness shows in taking the stand and testifying in a criminal case and what that courage says about the witness‘s credibility. See People v. Wallace, 100 Ill. App. 3d 424, 433 (1981) (“In noting the courage entailed in testifying in criminal cases, the prosecutor was merely arguing that the victim and [another witness] were credible witnesses” and not “attempting to suggest that defendant would attack [them] if found not guilty.“)
¶ 64 Similarly, while the prosecutor‘s comments describing Figueroa as “afraid” and “scared” did tie her fear to Ortega, the comments did not suggest that her fear was caused by any threats or intimidation. And unlike in Mullen and Rivera, the comments were properly based on evidence in the record, such as Figueroa‘s demeanor on the stand and her explanation for why she did not get out of the car immediately after she began to suspect that Ortega had killed Cruz. As noted above, in prefacing its discussion of Figueroa‘s testimony, the State remarked that “[Figueroa] was afraid. She came in here, and she was quiet, but she told you some very important things.” This comment was a clear reference to the fact that, on multiple occasions, the judge had to ask Figueroa to speak
¶ 65 We will address Ortega‘s remaining challenges to the State‘s closing argument comments together, as we find that the comments were improper but do not rise to the level of plain error. First, Ortega contends that the State misstated the evidence concerning his comments to Aponte, Ruiz, and Ocasio after he learned that Ruiz and Aponte had bought marijuana from Cruz. When discussing Aponte‘s testimony, the State made the following assertion: “[Aponte] told you about the threats he made. *** [J]ust hours before [Cruz] was shot three times, what did this defendant say? Let me find out that [Cruz] sold you that weed. I‘ll kill that nigga, his words.” Likewise, when arguing that the evidence implicated Ortega, rather than Polanco, the prosecutor stated: “Bryan Polanco makes threats against the guy living at Spaulding and Lе Moyne saying he is going to shoot him, he is going to get him. No, no again. Mario Ortega, he did that.” Finally, the prosecutor asked the jury to “think about what [Ortega] said before the shooting. I‘m gonna get him. I‘m gonna kill him. Spaulding and Le Moyne.”
¶ 67 The State also made comments that were not based on fair inferences from the evidence when it speculated about the reasons why Figueroa smelled bleach on Ortega‘s hand in the car after the shooting. In the defense closing argument, Ortega‘s counsel argued that no physical
“[Defense counsel] talked about the door handle, and she talked about the fact Mario Ortega‘s DNA was not found on that door handle. That‘s right. You heard in the stipulation that someone‘s DNA in blood was found. Whose, Efrain Cruz.
Maybe that‘s why Mario Ortega had to put bleach on his hand, and maybe that‘s why his hand smelled like bleach. He was either trying to get off the gunshot residue powder from shooting the gun or [he was] trying to get off the blood on his hand, the blood that would come back to Efrain Cruz.
How do we know that that‘s how that blood got on the doorknob? Well, you heard from Herbert Chilson. He never saw Efrain Cruz going to that gate. Based on those injuries that you saw, you know that Efrain Cruz didn‘t get up and try to walk out of that gangway through the alley from the gate.
So the only person that touched that gate that transferred Efrain Cruz‘s blood from himself to that door handle was the defendant Mario Ortega. That‘s the only person you have heard so far that said their hand smells like bleach.”
¶ 68 Ortega argues that these comments were not based on fair inferences from the evidence because there was no evidence that Ortega had Cruz‘s blood on his hands or that bleach can be used to remove gunshot residue. We partially agree. In light of Chilson‘s testimony that, shortly
¶ 69 Nevertheless, we conclude that the State‘s improper comments do not rise to the level of plain error. As discussed above, to establish plain error, a defendant must show not only that a clear or obvious error occurred, but that (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice, or (2) the error was so serious that it affected the fairness of the trial and the integrity of the judicial process, regardless of the closeness of the evidence. Piatkowski, 225 Ill. 2d at 565. Ortega cannot satisfy either prong of this test.
¶ 70 First, the evidence was not closely balanced. While no physical evidence linked Ortega to Cruz‘s murder, the circumstantial evidence was overwhelming. Cintron testified that, after hearing gunshots, she looked out the window of her apartment and saw a man in a gray hoodie and blue jeans run out of the alley and get into car. In a pretrial lineup and at trial, Cintrоn identified that man as Ortega. As Ortega notes, there were several weaknesses in Cintron‘s identification. She
¶ 71 Chilson, another neighbor, testified that he looked out his window after hearing gunshots and saw a person in a gray hoodie and black pants open the rear gate and run down the alley. While Chilson did not see the person‘s face and thus was unable to make an identification, his description of the person‘s attire was similar to that given by Cintron and also similar to Ocasio‘s and Colon‘s testimony about the clothing Ortega was wearing earlier that day. There was also testimony that Ortega was irate after learning that Ruiz had bought marijuana from someone at Le Moyne and Spaulding, where Colon and Cruz lived and sold marijuana, and that Ortega threatened to “call” Cruz and “get” the people at Le Moyne and Spaulding. Colon testified that Ortega later came to her apartment, asking for Cruz, and that Cruz and Ortega exchanged phone numbers. The jury also heard evidence that, minutes before the shooting, someone called Cruz using a number associated with Ortega, asking to buy marijuana but insisting that the transaction take place behind the apartment. And Agent Raschke testified that, based on an historical cell site analysis, it was his opinion that the cell phone associated with that number was in the general vicinity of the crime scene around the time of the shooting. Finally, there was Figueroa‘s testimony that, in the hours
¶ 72 In light of the powerful evidence of Ortega‘s guilt, we cannot conclude that the evidence was so closely balanced that the State‘s improper comments threatened to tip the scales of justice against Ortega. And Ortega‘s contention that his trial counsel was ineffective for failing to object to the comments fails for the same reason. Because the evidence was not closely balanced, Ortega cannot show a reasonable probability that the result of his trial would have been different if counsel had objected to the comments. Strickland, 466 U.S. at 694; see People v. White, 2011 IL 109689, ¶ 133 (equating Strickland‘s prejudice prong with the first prong of the plain error test).
¶ 73 The dissent contends that the State‘s comments that Ortega had threatened to “kill” and “shoot” Cruz—rather than “call” and “get” him—were especially likely to have affected the jury‘s verdict due to their repetition. See infra ¶ 106. But the jury was instructed more than once that the statements of attorneys in closing argument are not evidence and that it should disregard any such statement that was not based on the evidence. See Illinois Pattern Instructions, Criminal, No. 1.03 (approved July 18, 2014). It is well settled that jury instructions “carry more weight than the arguments of counsel.” People v. Boston, 2018 IL App (1st) 140369, ¶ 103. For that reason, we have recognized that “[a] trial court‘s instructions that closing arguments are not evidence protect [a] defendant against any prejudice caused by improper comments made during closing arguments.” Id. “Absent some indication to the contrary, we must presume that jurors follow the law as set forth in the instructions given them.” People v. Wilmington, 2013 IL 112938, ¶ 49. We thus cannot conclude that Ortega was prejudiced by a handful of erroneous factual statements in the prosecution‘s closing argument.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 77 Affirmed.
¶ 78 PRESIDING JUSTICE GORDON, dissenting:
¶ 79 I cannot agree with the majority‘s findings concerning the State‘s expert and the State‘s remarks during closing argument and, thus, I must respectfully dissent.
¶ 80 First, I find that the trial court did abuse its discretion by denying defendant‘s request for discovery concerning the State‘s expert in historical cell site analysis.
¶ 82 If an attorney requests a list of items, it is the trial court‘s job to review the list and to decide, one by one, what a party is or is not entitled to. The majority cites no case in support of its novel proposition that, if a party is not entitled to certain items, a trial court is justified in allowing nothing in discovery.
¶ 83
¶ 84 There were individual items listed in defendant‘s motion for expert discovery which it was an abuse of discretion to deny pursuant to this subsection of
¶ 85 For example, FBI Agent Raschke testified that he had previously testified as an expert approximately 75 times. Defendant‘s discovery request asked for “the names of the cases where S.A. Raschke was found qualified as an expert“—not for the transcripts or reports in those cases, but simply a list of names. Defendant was entitled to this relatively short list as part of the “statement of qualifications of the expert,” required by
¶ 86 Pursuant to
“In the interest of fairness paragraph (a), subparagraph (iv), requires the disclosure of all such results and reports, whether the result or report is ‘positive,’ or ‘negative,’ and whether or not the State intends to use the report at trial. If the State has the opportunity to view the results of any such examination the same opportunity should enure to defense counsel. No relevancy limitation is included; the only requirement is that the examination, etc. have been made ‘in connection with’ the case.” (Emphasis added.)
Ill. S. Ct. R. 412(a)(iv) , Committee Comments (Oct. 1, 1971).
Thus, defendant was entitled to all test results, examinations, experiments and comparisons—not just the ones that were subsequently chosen by the expert to appear in his report.
¶ 87 Pursuant to subsection (iv), defendant sought “any original test results or measurements resulting from any field testing analysis conducted during his evaluation.” Measurements and tests in the field certainly qualify as “physical *** examinations” and “tests, experiments and comparisons” (
¶ 89 In addition,
¶ 90 At the hearing in the case at bar, defense counsel argued, in particular, for the FBI‘s procedure manual. When it became clear that the court was going to find against him, he asked for that one item. Counsel explained that the State‘s expert was a certified public accountant at the FBI who the FBI had trained in this area. Counsel argued that he needed the FBI procedure manual to understand what “historical cell site analysis” was, and that this information was exclusively in the hands of the FBI, which had developed this field. Counsel observed that this subject was not an academic discipline, such as DNA analysis, which was taught at a university,4 but rather that the FBI was the sole source of relevant information.
¶ 91 At the hearing and in its written response, the State did not dispute counsel‘s assertions and argued instead that it had satisfied its
¶ 93 The State did not claim that production would be burdensome. In its written response, the State replied: “they can hire their own expert.” However, if defendant‘s unrebutted claim (that all the relevant information was in the hands of the FBI) was true, then hiring an “expert” would be an empty exercise—which is exactly what counsel argued at the hearing. Counsel argued: “I need to see if he did his job right, and if his history cell site analysis is sound. You can‘t find it anywhere. *** The only body is the body we‘re asking to see their manual ***. It‘s the FBI. They hold the manual ***.”
¶ 94 If the information concerning this field was primarily in the hands of the FBI as defendant claimed, and which the State did not dispute, then it was an abuse of discretion by the court to deny him access to this material. Without it, there was not a level playing field of information. See, e.g., People v. Perry, 147 Ill. App. 3d 272, 276 (1986) (“Expert testimony tends to ‘overpersuade in favor of the party introducing it‘” (quoting Coffey v. Hancock, 122 Ill. App. 3d 442, 448 (1984))).
¶ 95 In his arguments, counsel explained why the manual was “relevant” (
¶ 96 The majority writes that the dissent fails to explain how additional discovery would have aided cross-examination. Supra ¶ 31. Since neither we nor the majority know what was in the requested procedure manual from the expert‘s own agency, none of us have any idea if the expert followed it. The majority criticizes the “dissent‘s suggestion” that this field belongs largely to the FBI. Supra ¶ 31. This was not our suggestion but defendant‘s argument in the court below, and the State did not contend otherwise—thereby, effectively conceding the point. The majority finds that the expert did not estimate tower coverage areas. Supra ¶ 31. However, he opined that defendant‘s phone was in an area where two coverage areas overlapped—thereby, by necessity, estimating where the two coverage areas were to be found.
¶ 97 Since these claims were preserved for appeal, the State must show that the errors were harmless. Evidentiary error can be called harmless only when there is no reasonable probability that the jury would have acquitted the defendant absent the error. In re E.H., 224 Ill. 2d 172, 180-81 (2006).
¶ 98 The majority finds the evidence in this case was “overwhelming.” Supra ¶ 70.6 The word “overwhelming” is a word too often utilized in appellate cases. A case may be “not closely balanced” but still not “overwhelming.” Supra ¶ 69. This case is far from overwhelming.
¶ 99 Other than the expert testimony, the State‘s other evidence included: (1) an identification by the victim‘s neighbor of defendant as someone she observed fleeing down an alley after the
¶ 100 At the suppression hearing, the detective who conducted the lineup admitted that the lineup protocols of the Chicago Police Department at the time required five people in a lineup, if feasible, and to use police officers as a last resort. He conceded that all three people in the lineup, other than defendant, were Chicago police officers, and that two were from the local area—one worked “upstairs” from the detective and the other worked “downstairs” from him.
¶ 101 The lineup photo shows that defendant is the only person in blue jeans. By contrast, two of the officers sit almost like bookends in the photo, at either end of the bench, dressed in solid black—including their shoes, pants and jacket. The officer sitting next to defendant is also in dark clothes and is wearing a black sweatshirt, with a dark-grey panel in front, and dark grey pants. With the three police officers dressed in black or dark grey, the viewer‘s attention is drawn immediately to defendant, who is in a light grey sweatshirt that is almost a washed-out white. In
¶ 102 Although the State is not required to prove motive, the State did offer a motive in this case. The State‘s evidence established that defendant was irate that his girlfriend purchased marijuana from the victim. Defendant yelled at his girlfriend: “Let me find out you bought weed from that n*** Efrain, I‘m going to call that n***.”
¶ 103 Based on this fairly innocuous comment by defendant that he was going to “call” the victim, the prosecutor in closing argument argued to the jury that defendant stated he was going to “kill” the victim. Specifically, the State argued that Desire Aponte, a friend of defendant‘s girlfriend, “told you about the threats he made. *** [J]ust hours before [the victim] was shot three times, what did this defendant say? Let me find out that [the victim] sold you that weed. I‘ll kill that n***, his words.”
¶ 104 In case the jury missed this false statement of facts the first time, the State repeated it twice more. The State argued that defendant made “threats” against the victim, “saying he is going to shoot him.” Finally, as the State ended its rebuttal closing, which is the last opportunity that any of the attorneys have to speak to the jury, the State asked the jurors: “When you go back into that jury room, I want you to think about what [defendant] said before the shooting. I‘m gonna get him. I‘m gonna kill him.”
¶ 105 As the majority correctly finds, the State‘s repeated “kill” argument was a totally false statement of the facts established at trial—and, as the majority also finds, these were not the State‘s only misstatements during its closing argument. Supra ¶¶ 65-67.
¶ 107 In light of the cumulative error regarding both the expert and the State‘s outlandishly false—and repeated—“kill” statements in closing argument, and in light of the fact that the State‘s case consisted of very weak, circumstantial evidence, I find that a reversal and a remand is required here. The evidence in this case was closely balanced, and there was a reasonable probability that without these errors the jury may have acquitted defendant. I am not confident that defendant received a fair trial. For these reasons, I must respеctfully dissent from the majority‘s order.