Appeal from the Circuit Court of Cook County; the Hon. Edward
M. Fiala, Jr., Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) and sentenced to an extended term of 75 years' imprisonment. On appeal, defendant contends that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt, and that he was denied his sixth amendment right to a fair trial by: (1) improper comment; (2) erroneous admission of irrelevant and hearsay "motive" testimony; (3) erroneous admission of irrelevant scientific and physical evidence; (4) improper references to weapons; and (5) improper jury instructions. For the reasons stated below, we reverse the judgment of the trial court.
The following facts were adduced at trial. At 6 p.m. on March 31, 1981, Frank Paul left his offices at 747 Devon Avenue, Park Ridge, Illinois, to dine at a restaurant across the street. At about 6:45 p.m. he returned to his offices, known as Interport, Inc. At about 7:15 p.m., the restaurant owner and two friends observed Frank Paul staggering toward the restaurant, drenched in blood. Paul's last words were "I have been attacked." Paramedics took Paul to Resurrection Hospital, where he was pronounced dead at 8:35 p.m.
The autopsy revealed seven stab wounds and ten cutting wounds. According to the pathologist, cutting wounds on the right forearm and wrist indicated that the victim attempted to defend himself by "raising his forearm, hand, or grabbing the knife." The pathologist testified that the victim's injuries could have been caused by any knife with a blade at least four inches long.
Park Ridge Police Officer Douglas Dostert arrived at the restaurant while the paramedics were still attending to Frank Paul. He went to Interport where he was joined by other officers. They found the front door locked and the rear door standing open. There was no sign of a forced entry; no one was inside. A telex machine was in the "on" position, as were some of the lights. The victim's jacket and wallet were undisturbed on a hanger near the victim's desk. An employee of Interport testified that nothing of value had been taken from the offices. Dostert saw a large amount of blood on the floor and carpeting.
The Park Ridge police began a search of nearby streets, alleys, sewers and roofs at 7:30 p.m. Assisted by Cook County sheriff's police, the Chicago police canine unit, and the city's fire and public works departments, they searched an 18-block area, a park and a shopping center by 5 a.m., April 1. They recovered a tweed and suede hat, a pen-type flashlight and one latex glove in the alley behind Interport. Officers also recovered a number of blood-stained items on the 1200 block of South Fairview Avenue, less than a block from the Interport offices. They found pantyhose on the sidewalk, a camel-colored sportcoat under a parked van, a knife in a catch-basin, and a second latex glove in a different catch-basin. The blood on the knife and second glove was wet; this glove had been cut with a knife in the palm and thumb area. A Park Ridge police evidence technician photographed and inventoried the items recovered from South Fairview Avenue and from the alley adjacent to Interport. Fingerprint impressions and blood samples were prepared from these items and from the Interport offices.
On April 7, 1981, investigators went to the Century Medical Labs at 8347 South Stoney Island in Chicago. There they saw the defendant and observed bandages on his left hand between the thumb and index finger. "Almost immediately" after investigators looked at the bandages, defendant placed his left hand in the pocket of his examining coat, where he kept it until the investigators left. Two employees of the First State Bank of Park Ridge, corroborated by bank security photographs, testified that they did not notice any cuts or bandages on defendant's hands on the morning of March 31, 1981.
On April 10, 1981, investigators executed a search warrant for defendant's residence at 5025 West Dakin in Chicago. They spoke with defendant's sister, Marlene Harbold, and asked whether she had noticed any injuries to her brother. She said that his left hand was bandaged, and that he had explained to her that he had cut his hand while using an electric saw to cut a door. She also said that she had seen a circular saw and a door, both with blood on them, in the basement.
The circular saw and door were photographed, seized and inventoried along with defendant's automobile and several other items. When asked what was found during the search, Officer Terrence Conley said "* * * a .38 snub-nosed revolver." After a hearing in chambers, the court sustained defendant's objection and instructed the jury to disregard any reference to a weapon. However, Conley was questioned extensively concerning knives and sheaths found at defendant's residence.
Pursuant to a subpoena, the defendant presented himself for examination by Dr. Joseph Danna on April 10, 1981. Dr. Danna observed two cuts; one on the left thumb, the other in the webbing between the left thumb and index finger. The cut in the webbing was several inches long and about one-third of an inch deep. Danna stated that the wounds were caused by a sharp, straight object and not by a circular saw. Based on the stage of healing, both wounds were between five and 14 days old, but the wounds might not have occurred simultaneously. Danna further opined that the wounds could have resulted in a loss of sensitivity and manipulation in the fingers and that the wounds should have been sutured. Defendant's treatment, closing the wound with butterfly bandages, was not consistent with accepted medical practice.
Defendant's sister, Marlene Harbold, was called as a court's witness. She was in Chicago on March 29 and 30, 1981, to attend a confirmation party for defendant's daughter. Frank Paul was a guest at the party, and she noticed no argument between defendant and Paul. A week later, on April 5, 1981, defendant called her at her home in Louisville and asked her to come to Chicago to care for his children as he was not feeling well. When she arrived on April 5, defendant appeared to be ill. The next morning she saw a band-aid on his hand and asked him what happened; he said, "it was just a nick, I nicked it on a saw." Later in the week her brother told her that he had cut himself twice recently with a butcher knife. She admitted that she may have neglected to mention defendant's remark concerning the butcher knife to investigators on April 10 and to the grand jury on April 13, but she explained that she first recalled the remark in November of 1981.
Three technicians from the Illinois Department of Law Enforcement (IDLE), Mark Stolorow, seralogy coordinator, Michael Podlecki, forensic scientist, and Mohammad Tahir, forensic scientist, testified for the State concerning their scientific analysis of blood samples prepared from stained physical evidence, the victim's stained clothing and the bodies of defendant and victim. The samples were typed according to 10 systems of genetic characteristics or "markers." For identification purposes, the genetic marker system works by process of elimination: each characteristic which is found in a given sample excludes all persons lacking that characteristic or having a different characteristic from having shed that blood. Stolorow testified that given the 10 groups of characteristics tested and the percentages of the population known to display each characteristic, "* * * the probability of an accidental match is less than one in 500." He explained that the fewer tests that could be performed on a given sample, the fewer people could be excluded and the greater the chance of an accidental match. He stated that, as contrasted with fingerprinting, blood typing technology does not permit the association of a blood sample with any one person.
Defendant's blood tested as type O according to the conventional ABO typing system. The sample taken from the victim's body was considered unreliable because five pints of universal type O blood was transfused into Frank Paul before he was pronounced dead. In addition, the vial containing the sample was broken when IDLE technicians received it. The IDLE experts "assumed" that the victim's blood-stained shirt, slacks, shoes, and socks contained the victim's blood. These stains were type A. The results of the remaining genetic marker tests were placed before the jury in the form of testimony and exhibits, but we see no need to catalog those results here.
All of the blood found near the scene was consistent with either defendant's blood sample or stains on the victim's clothing. The sportcoat contained both type O and type A blood. The glove recovered from the catch-basin had only one type O blood on it; the blade of the knife, only type A. Type O was found on the face of the circular saw blade, but no blood could be detected in the blade's teeth. Based on spatter analysis, Tahir testified that the blood on the circular saw could not have been shed while the blade was moving. Tahir stated that blood spatters throughout the Interport offices indicated a violent struggle.
Motive evidence was introduced over defense objection. Frank Paul's wife, Nancy, operated a Reedsburg, Wisconsin, airport which leased two airplanes from defendant. Airport employees testified that in 1979 and 1980 defendant telephoned and asked to speak to Nancy Paul when she was in Reedsburg. However, he did not telephone when she was away from Reedsburg, nor did he ask them about business. They further testified that defendant and Nancy Paul attended three or four airport-related public functions in Wisconsin; Frank Paul, the Paul children, and the Harbold children also attended these functions.
Gregory Wisniewski, an Interport employee, stated that defendant and Nancy Paul had been in Florida at the same time to purchase an antique automobile. On cross-examination, he recalled that Frank Paul had given him this information. Roy Palmer, an attorney who had represented defendant, testified that defendant and Nancy Paul arrived at Palmer's apartment one evening in November or December of 1977, and remained there alone together after Palmer left. They were gone when Palmer returned at about 2 a.m. Defendant and Nancy Paul also attended a holiday season open house at Palmer's apartment. Carol Yoshioka, an acquaintance, indicated that she and her date attended the theater and went to dinner with defendant and Nancy Paul one evening early in 1978. Over defense objection to hearsay, Yoshioka answered the question, "* * * did Ralph Harbold and Nancy Paul ever make reference to the home that she owned up in Wisconsin?" and said, "Yes, they were talking about that they had been there."
Gary Meisner testified that he flew Nancy Paul back to Chicago from Phoenix on March 31, 1981. Nancy Paul had told one of the airport employees that she wanted to move to Phoenix permanently. Meisner stated that over a four-day period immediately following his return he tried without success to reach defendant by telephone at his home and office. Defendant did not attend Frank Paul's funeral.
Although he did not testify on his own behalf, nor did he call any witnesses, defendant was compelled to model the camel-colored sportcoat before the jury, and to display his left hand to the jury. Defendant introduced into evidence a study which contained updated population statistics associated with certain genetic markers, and a chart which incorporated the new statistics and the IDLE technician's negative blood test results.
In closing argument, the prosecutor stated: "You can also look at the blood sample of the defendant, and look at the genetic markers across the board, and you will see that Ralph Harbold's blood is on both rubber gloves, and on the pantyhose, it is on the left cuff of the sportcoat and it is also on the saw." While discussing the chart introduced by the defense, the prosecutor stated: "What you see is that there is not one smallest piece of evidence that shows that Ralph Harbold is not guilty of this offense." Although a defense objection to this comment was sustained, three similar statements were made, another objection was sustained and two more such comments were made before the prosecutor abandoned this line of comment.
In addition, the prosecutor argued that the motive testimony was "unrebutted and uncontradicted," and corrected defendant's characterization of Yoshioka's testimony as placing Frank Paul with defendant and Nancy Paul at the Reedsburg residence. The prosecutor also stated:
"[I]n the hands of someone as competent as Mr. Schippers [defense counsel] * * * [cross-examination] is as deadly as the knife in the hands of Ralph Harbold, or it is just like a scalpel in the hands of the plastic surgeon, to take this and then mold it into what he wants it to be. Just by asking questions, you can kind of transform things."
The trial court's instructions to the jury included Illinois Pattern Instruction (IPI), Criminal, No. 3.11 (2d ed. 1981), concerning impeachment with a prior statement. However, the court transposed the words "in this case" from the end of the first sentence to the beginning of the second. The court also included an instruction to the effect that defendant's testimony should be evaluated in the same way as the testimony of other witnesses, although the defendant did not testify.
Following deliberations, the jury returned a verdict of guilty and defendant was sentenced to an extended term of 75 years' imprisonment. Defendant appeals.
Defendant first contends that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt. Initially, we note that the evidence of defendant's guilt is entirely circumstantial.
The jury's determination of guilt will not be set aside by a reviewing court unless the determination is palpably contrary to the weight of the evidence or so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) Where a conviction rests solely upon circumstantial evidence, the guilt of the defendant must be so thoroughly established as to exclude every other reasonable hypothesis of innocence. (People v. Garrett (1975), 62 Ill.2d 151, 163, 339 N.E.2d 753.) It is not required that the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances, so long as the evidence on the whole convinces the trier beyond a reasonable doubt of the guilt of the defendant. People v. Foster (1979), 76 Ill.2d 365, 374, 392 N.E.2d 6.
Defendant argues that evidence of motive and blood type was inconclusive, resulting in a conviction based upon suspicion and probability. We consider issues of admissibility separately below, but we note here that to the extent defendant's arguments go to the weight of evidence, he misconceives our role as reviewing court. We have carefully examined the record and analyzed the jury's verdict in light of all the evidence. The State's relevant and competent evidence permitted the jury to find or infer that the victim was stabbed to death in the course of a struggle on March 31, 1981; that the perpetrator was cut between the thumb and index finger and shed blood at the scene; that defendant's hand was cut between the thumb and index finger some time after the morning of March 31 and before April 6, 1981; that defendant's blood exhibited characteristics consistent with blood shed at the scene; that defendant knew the victim and had some ...