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People v. Gillespie

DECEMBER 26, 1974.




APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.


Defendant was indicted and tried by a jury in Kane County for burglary. Following a verdict of guilty, his motion for new trial and application for probation were denied. He was sentenced to a term of from 2 1/3 to 7 years. Defendant appeals his conviction on two grounds. The first is that the trial judge erred in overruling his objection to expert testimony relating to blood grouping tests and statistics. The second is that defendant was not proven guilty beyond a reasonable doubt. The real contested element in the case is whether the defendant was properly identified beyond a reasonable doubt as one who committed a burglary. The evidence directed toward that issue is solely circumstantial, and a detailed summary of the facts is appropriate.

At about 7 o'clock at night on November 25, 1972, the owner of a television and appliance store in Elgin had occasion to return there after closing hours. As he looked through the glass front door, he saw on the floor a ring of keys usually kept in the cash register. After entering, he noticed that certain merchandise had been disturbed and he felt a strong wind coming from the rear of the building. Closer inspection disclosed that wooden paneling forming a false wall in front of a back window had been pushed in and the glass window pane had been broken. A television set too large to fit through the opening was near the window. He called the police who investigated. In addition to the foregoing, jimmy marks were observed on the inside of the rear door, and it was determined that several television sets were missing. Following the investigation, the paneling in front of the broken window pane was nailed back in place. The police and owner then left the store.

Later that night, between 10 and 11 o'clock, a part-time employee of a nearby VFW Hall observed a Mustang automobile backed up to the store. He saw two occupants in the automobile, but was unable to identify either, except as to race, which he characterized as black. A while later, he noticed that the hood and trunk of the Mustang were open, but saw no one near the car. Then, as he entered his own automobile parked nearby, he heard the sound of glass breaking. He immediately wrote down the license number of the Mustang and telephoned the police from across the street. When he returned, the Mustang was not there.

In response to his telephone call, the police and owner returned to the store. The glass front door was shattered. Most of the broken glass was on the outside of the door, indicating to them that it had been broken out from inside the building. There was a television console too large to fit through the glass opening immediately inside the door. Blood stains were on top of the set and were also discovered near the broken window and at other locations in the store. The wooden paneling which recently had been replaced was once again pushed in. The owner found that since they had previously left the store, other television sets were missing. A glazier was called to replace the glass in the front door and the rear window was boarded.

In the meantime, detectives had ascertained the name of the owner of the Mustang to be Robert Powell. They proceeded to his address where they saw it parked and observed blood stains on the floor of the car and also on the sleeve of a jacket inside it. The detectives then went to Powell's apartment. There were blood stains outside the door. They knocked, identified themselves, and were admitted by Powell. Inside were Powell, his wife and baby, the defendant and Isaac Gist. Defendant's arm was wrapped with a blood-soaked bandage secured with black electrical tape. Gist also had a small cut on his hand. They told police that they had been fighting. Several television sets, later identified as those missing from the store, were found in the apartment. The police also discovered a blood-soaked rag and blood stained television tags in the kitchen wastebasket. Other television sets were found under a stairway in the building. Powell, Gist and the defendant were taken into custody and charged with burglary. In the course of examining and administering first aid to the defendant, it was observed that the cuts on his arm were fresh and bleeding. Later, defendant was taken to a hospital, and, with his consent, two blood samples were drawn. The police also obtained scrapings of the dried blood stains from various locations within the store. The blood samples and scrapings were then submitted to the State crime laboratory for tests.

Powell testified that he and the defendant spent the afternoon drinking. Around 6:30 P.M. they drove in Powell's Mustang to a tavern across the street from the television store. As they entered the tavern, the defendant asked Powell for his car keys. He gave them to the defendant who then left. Powell had a drink and in a while defendant returned. When they returned to the Mustang, it had been moved from its previous parking space. They stopped by another tavern for a few drinks and then defendant drove Powell to his apartment and let him out. Later that night defendant and Gist came to Powell's apartment bearing television sets. Shortly thereafter the police arrived. Although Powell was charged with burglary, he had not been indicted at trial time. Gist was indicted, but his whereabouts at the time of trial was not known.

The contested evidence matters arose during the testimony of Robert Gonsowski, the State's witness on blood grouping tests. He testified about his professional education, training and experience as a certified serologist and his employment as a criminalist for the State Crime Laboratory at Joliet. His acceptance by the trial court as an expert in the scientific study of the properties and action of serum of the blood was unchallenged by defendant. He testified about the history of the ABO blood grouping system and the classifications into A, B, O and AB blood types. He described other characteristics of blood, including the RH factor and a "rheumatoid arthritis factor," which he said are unrelated. With respect to the latter, he testified that the blood of all persons known to have that disease contains an identifiable characteristic known as a positive rheumatoid arthritis factor. He testified further that a finding of a positive rheaumatoid arthritis factor in one's blood did not necessarily mean that such person suffered from the disease.

With respect to the blood samples and scrapings submitted for examination, he described the tests he conducted and the results found. He stated that the dried blood, identified as that found at the scene of the burglary, was determined to be human blood, type A, with a positive rheumatoid arthritis factor. The whole blood samples, identified as those taken from the defendant, were found to be human blood, type A, RH positive, with a positive rheumatoid arthritis factor. He then stated that he did not form any conclusions as to identity, but merely reported his findings. He further testified, over objection, that approximately 41 per cent of the Caucasian population and 27 per cent of the Negro population have type A blood. He also stated that from 5 to 10 per cent of the population as a whole have a positive rheumatoid arthritis factor in their blood regardless of the blood group in which they are classified. By combining such statistics, he said that 4.1 per cent of the Caucasian population and 2.7 per cent of the Negro population could have Type A blood, with a positive rheumatoid arthritis factor. He testified that the foregoing statistics were based upon journals published by two named pharmaceutical firms. On cross-examination, he testified that those firms sell chemical reagents to hospitals and laboratories for use in conducting tests and they compile the blood grouping statistics based upon data supplied by blood banks throughout the country. Concerning the RH factor, he stated that his laboratory was not equipped to conduct such tests on dried blood and he had no knowledge whether another laboratory had conducted such tests. He testified that approximately 85 percent of the population at large has a positive RH factor in their blood but he had no statistics at hand concerning the frequency of the RH factor in the Negro population.

In defendant's behalf, his sister testified that the defendant had participated in athletics and had served in the Navy for 4 years. Neither he nor any member of their family had a history of or suffered from rheumatoid arthritis.

• 1 Defendant's first ground for reversal on appeal is that the trial court erred in admitting the results of the blood tests conducted in this case and in allowing the State's expert witness to testify as to statistics of blood types in the population at large. As to the first point, defendant urges that the court should adopt an exclusionary rule restricting admission of blood tests to instances excluding suspects as the ones committing the crime. As to the second, he asserts that the similarity of blood types found at the scene of the burglary with his own merely places him in a huge numerical group of persons and does not satisfy the requirement of proof beyond a reasonable doubt. Defendant failed to raise any objection to the admission of the results of blood tests during the course of trial, thereby precluding him from asserting such as error on appeal. However, the revelancy of blood grouping tests to establish identity in criminal cases is a matter of first impression in the reviewing courts of Illinois and, for that reason, the court will consider the points raised initially on the appeal.

The reviewing courts of this State have not heretofore considered the admissibility of blood grouping tests generally, as distinguished from chemical tests of blood to determine intoxication or disease. However, the admissibility of blood grouping tests in civil and criminal cases has been before other courts in the United States for over forty years. The pioneering work in grouping or typing blood was done about the year 1900 and is reviewed in the Annotation, "Blood Grouping Tests," 163 A.L.R. 939, 941-42, as follows:

"Dr. Landsteiner discovered the presence of two genes (also known as antigens or agglutinogens) called `A' and `B' in the human blood. Thus the blood of every ...

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