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People v. Cheek

OPINION FILED APRIL 24, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF,

v.

FREDERICK LEROY CHEEK, JR., DEFENDANT. — (MICHAEL ASBELL, RELATOR-APPELLEE,

v.

THE PEOPLE EX REL. STEVE BRIENEN, SHERIFF OF MCLEAN COUNTY, ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

The State appeals from the trial court's order discharging the defendant following an extradition hearing upon a petition for a writ of habeas corpus. The seminal facts are relatively uncomplicated.

On March 16, 1980, defendant was arrested in Normal, Illinois. No complaints or charges were filed against him for any criminal activity in Illinois. The State filed a complaint in extradition on March 24, 1980, requesting commitment of the defendant to allow Florida authorities to obtain a governor's warrant for extradition.

On May 5, 1980, a demand from the Governor of Florida for the return of Frederick Leroy Cheek, Jr., a/k/a Mike Asbell, to Florida was filed, together with a governor's warrant from Illinois. The indictment and a judgment of conviction attached to the complaint for extradition bore only the name of Frederick Leroy Cheek, Jr., and indicated that the individual had been found guilty of burglary and sentenced to 15 years' imprisonment. A fugitive warrant from Florida was issued on the basis that Frederick Leroy Cheek, Jr., had escaped from the Florida Department of Corrections. Illinois arrest records listed defendant's name as Mike Asbell, a/k/a William Ballard.

At the hearing on the habeas corpus petition, defendant testified that he was passing through Illinois on his way from Dania, Florida, to Chicago when arrested by police in Normal. Defendant was never told why he was arrested, and no complaints or charges were filed against him for any criminal activity in Illinois.

Defendant further testified that he had never used the alias Frederick Leroy Cheek, Jr. He denied that he had been convicted of burglary and sentenced to 15 years' imprisonment in Florida. He denied that he was the escapee from the Florida correctional institution. He stated that his given name at birth was Michael Asbell.

Defendant asserted that he was living in California on the date of Cheek's original conviction. Defendant admitted that he was living in Florida on the date Cheek escaped from the Florida penitentiary.

Since his arrest, defendant claimed he had been fingerprinted a total of 14 times. Defendant was told by correctional officers that duplicate sets of his fingerprints were needed because his first set of prints had not been verified.

Detective Charles Crowe, a 13-year veteran of the Bloomington Police Department, testified that he had been a detective for eight or nine years. He received fingerprint training in 1974. Crowe had a total of 80 hours training from the University of Illinois Police Training Institute in the classification and identification of fingerprints. Crowe was a certified latent print examiner for the past two years. No test was required to receive certification. Crowe estimated that he had compared latent prints with known prints 150 times. He had been qualified as an expert for purposes of court testimony on three prior occasions. Crowe examined photostatic copies of fingerprint cards before but had never testified as an expert based on a photostatic comparison examination.

Crowe testified that fingerprints are specific to each person and that he had never encountered a situation where two individuals had the same fingerprints. Identification is based on points of similarity or dissimilarity between the prints. If there is any dissimilarity, identity is not established. There is no standard number of points of similarity generally accepted as establishing an identification of a latent print. The FBI uses a 12-point test. Crowe uses a 10-point standard because that is the one relied upon by the Pekin Crime Laboratory, a facility of the Illinois Bureau of Investigation.

Crowe testified that he had examined a fingerprint card which had previously been identified by Officer Randy Scott as having been taken from the defendant on March 16, 1980, following his arrest in Normal, Illinois. Crowe compared the card to a photostatic copy of the fingerprint card for Frederick Leroy Cheek, Jr., provided by the Florida authorities and attached to the Governor's warrant. He examined the prints for 15 minutes.

Crowe compared the right thumbprints of each exhibit. He found 10 points of comparison and no points of dissimilarity. Crowe used the right thumbprint to make the comparison because the remainder of the prints on the photostatic exhibit from Florida were blurred and smudged. Crowe's comparison of the fingerprints was limited to the top left portion of the right thumbprint because even a portion of that print was blurred on the photostatic copy of the Florida prints. While the print was not "the clearest in the world," Crowe stated that it was possible to make an identification. He indicated that he had made successful comparisons of blurred prints in the past. Crowe's opinion, based on his training, experience and examination, was that the thumbprints belonged to the same individual.

Bradley Murphy, as Assistant State's Attorney, was called on behalf of the defendant and testified that he had tried to persuade Florida authorities to send a witness to identify the defendant. Florida refused to send a witness after the habeas corpus hearing had been rescheduled. Murphy stated that he had not received effective cooperation from Florida in attempting to extradite the defendant. Murphy also admitted that he had not received any confirmation that Florida would send anyone to retrieve the defendant if he was extradited.

At the close of the hearing, the trial court granted defendant's petition for habeas discharge. The ...


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