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People v. Jordan

OPINION FILED SEPTEMBER 20, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

LEAMON JORDAN, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

GREGORY WOODS, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ANTHONY SPARKMAN, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ARVEL ROWE, APPELLANT.



No. 58446. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Herman Haase, Judge, presiding.

No. 58464. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Thomas R. Fitzgerald, Judge, presiding.

No. 58620. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Thomas Casey, Judge, presiding.

No. 58626. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Thomas Casey, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Steven Clark, Deputy Defender, and Michael J. Pelletier, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark T. Rotert, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry, and Lawrence R. Stasica, Assistant State's Attorneys, of Chicago, of counsel), for the People.

James J. Doherty, Public Defendant, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.

Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark T. Rotert, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry, and Lawrence R. Stasica, Assistant State's Attorneys, of Chicago, of counsel), for the People.

James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.

Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark T. Rotert, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry and Lawrence R. Stasica, Assistant State's Attorneys, of Chicago, of counsel), for the People.

These causes have been consolidated for purposes of appeal since each case asks the court to interpret section 5-8-2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)). The facts of the cases are adequately stated in the appellate court opinions and will be discussed here only to the extent necessary to resolve the issues presented.

CAUSE NO. 58446

Following a bench trial in the circuit court of Will County, defendant, Leamon Jordan, was sentenced to concurrent extended terms of imprisonment of 60 years for felony murder by accountability, and 14 years for kidnaping, a Class 2 felony. The appellate court affirmed the judgments (114 Ill. App.3d 16), and we allowed defendant's petition for leave to appeal (87 Ill.2d R. 315(a)).

Defendant argues that the extended-term sentence for the lesser offense, kidnaping, was improper. In addition, he raises two other issues: (1) Did the trial court err in permitting forensic odontologists to testify as to the cause of death? (2) Did the State's failure to preserve the victim's jaw deny him due process?

The record shows that on February 26, 1980, approximately one year prior to defendant's arrest, the victim's skull and several bones were recovered by police investigators. These remains were taken to the Will County coroner, where an autopsy was performed. When the examination was completed, the skull, jaw, and bones were photographed. The remains were then returned to the victim's family in accordance with section 10.7 of "An Act to revise the law in relation to coroners" (Ill. Rev. Stat. 1979, ch. 31, par. 10.7), which provides that, as soon as may be consistent with the performance of his duties, the coroner shall release the body of the decedent to the next of kin for burial. At the family's request, the remains were then cremated.

Defendant, in a pretrial motion, moved to exclude dental testimony regarding the cause of death. The basis of the motion was the conclusion of forensic odontologist, Dr. George Morgan, that examination of the victim's jaw revealed that the teeth appeared pink, indicating that the victim was strangled. Defendant argued that the "pink tooth theory" was too conjectural to be probative. He also moved to dismiss the cause against him because the State failed to preserve the jaw which, he claimed, denied him the right to independently examine and rebut the evidence.

At a hearing on defendant's motion, four forensic odontologists testified regarding the "pink tooth theory." The photographs of the victim's jaw were shown to each of the experts. Doctors George Morgan and Lester Luntz testified as experts for the State. Dr. Morgan indicated that he examined the jaw firsthand and that the teeth were actually "pinker" than depicted in the photographs. Both experts agreed that there are numerous causes of "pink teeth," one of which is strangulation. Although Dr. Morgan and Dr. Luntz agreed that forensic dentists were not qualified to determine the cause of death, they could conclude by process of elimination that, in this case, the victim's "pink teeth" were probably caused by strangulation.

Dr. Edward Pavlik, defendant's expert, opined that only one of the photographs showed a "pinkish" tinge. He listed several possible causes for "pink tooth," including vitamins, drowning, decomposition in an open environment, and strangulation. Dr. Pavlik testified that a forensic dentist could not determine the cause of death by examining only a jaw nor could a single probable cause of "pink tooth" be determined.

Dr. Donald Eugene Ore also testified for the defense. He stated that the color variation of the teeth from each photograph was "remarkable." He indicated that such a variance could be caused by distance, light, and the type of film used. Dr. Ore stated that it was possible that none of the photographs accurately depicted the color and that, in any case, he could not make an accurate determination of color because the photographs did not have a balance or color chart, which is routinely included in these types of photographs.

The trial judge denied the motion, holding that the inaccessibility of the physical evidence would not deny defendant the right to confrontation. He reasoned that the question was one of admissibility and that therefore, the test was whether the dental testimony would assist the trier of fact and whether the ...


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