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People v. Redman





Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding. JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:

The defendant, Steven R. Redman, was charged in the circuit court of Sangamon County with the offenses of rape, deviate sexual assault and armed robbery. He was tried by a jury, convicted on all three charges, and appeals. He contends on appeal that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred by allowing the State's expert witness to testify that less than two percent of Caucasians displayed biochemical characteristics such as those of the defendant and those shown by an analysis of a sample of a semen stain taken from the back seat of the victim's car; (3) the State committed reversible error by failing to complete purported impeachment of the defendant; and (4) the trial court erred in prohibiting defendant from introducing evidence that the victim tested positive for oral gonorrhea following the attack.

An extensive recitation of the facts is necessary to resolve the defendant's first contention. The State's evidence showed that on February 26, 1984, the defendant and victim were both at Skateland South, in Springfield. The defendant initiated a conversation with the victim and learned that she had driven her parents' charcoal-gray Buick Regal to the rink, and also learned where it was parked. He asked the victim to remain at the skating rink a little longer and then walked off to the bathroom and never returned. Ron Austin testified that defendant's coat and shoes were missing from their locker but that defendant's car remained in the parking lot. The victim left the rink at about 8:15 p.m., and started to enter her car when a man jumped out from behind the car and put a gloved hand over her mouth. The glove was a work glove which smelled like grease. She saw a knife the man was carrying. The assailant was wearing a face mask and disguised his voice. He was also wearing a greasy jacket with a fur-like collar on it. He told her where to drive and threatened to kill her at least three times. He asked her for money and eventually obtained two $20 bills from her. When asked by him if she had anything else, she told him to take the car and he replied, "I thought you said it was your parents' car." He then forced her to perform fellatio on him and then had vaginal intercourse with her and ejaculated on the back seat. A search of defendant's premises by police turned up a partially destroyed mask, greasy work gloves and a jacket, similar to the ones worn by the rapist. The victim testified that the jacket was the one worn by the rapist. The defendant told Linda Meatheringham that everyone suspected him of the rape because he owned a mask and he intended to burn the mask before the police learned of it. The defendant, at one time, said he had borrowed $2.50 or $3.50 from his father to go skating, and less than two hours after the rape and robbery he had two $20 bills. Defendant gave different accounts of how he obtained this money. Defendant told police that he left Skateland around 9 or 9:15 p.m., but testified at trial that he left before 8 p.m. The testimony from the State's expert witness was to the effect that defendant was an AB type in the ABO blood classification system, that by using a technique called electrophoresis he was a PGM type 1, and that defendant was a secretor. The expert testified that secretors secrete their blood type and PGM type in their body fluids. The witness analyzed the sample of the semen stain taken and determined that the individual from whom the semen came was an AB blood type, PGM type 1 secretor.

The defendant presented evidence of a neuropsychologist, who testified that defendant suffered from "aphasiac language disorder," a loss or impairment of the power to use words and "retroactive inhibition," a memory lapse whereby recent experiences would diminish the memory of a more remote experience, and that the defendant was inclined to "confabulate," which is the embellishment on a past event in an effort to compensate for memory loss.

Defendant denied asking the victim anything about her car other than if it was a red Nova, and stated that he left Skateland before 8 p.m. and stopped by Mr. J's and visited with Susan Milner, and got home between 9 and 10 p.m. David Paoni came to his house and they went for a drive. He said he got $50 from working on a car and denied showing Paoni two $20 bills. He said the last time he wore the blue jacket the victim identified as being worn by her assailant was five or six years prior to trial, and he denied telling Linda Meatheringham that he intended to burn his mask.

Defendant's girlfriend testified that she never heard either Linda or defendant mention a mask but said she didn't hear the entire conversation between the two.

Defendant's father said he gave him $40 that weekend.

Susan Milner said the defendant came into Mr. J's on February 26 between 8 and 9 p.m. and she talked to him for 15 or 20 minutes.

The defendant called the State's expert witness, who testified that hairs found on the victim's blouse, socks and shoes, and three pubic hairs recovered from the back seat of the victim's parents' automobile were dissimilar to hair standards taken from the victim and the defendant.

• 1 It is essentially from the foregoing evidence that the defendant was found guilty of the offenses. We believe that the circumstantial evidence of defendant's guilt in this case is overwhelming and proves beyond a reasonable doubt that he was the one who committed the offenses against the victim.

It is obvious that the defendant's primary contention on appeal is with the testimony of the expert witness and the use of such testimony by the prosecutor. The expert witness was Debra Fesser. She had a bachelor of science degree, with a major in biology and a minor in chemistry. After college she received one year of training from the Illinois Department of Law Enforcement (IDLE) in her area of specialty, serology, which is the analysis of blood and body fluids, and hair and fibers. She had been with IDLE for four years and eight months at the time of the trial, and had analyzed blood and other body fluids on a regular basis during that time. She testified concerning the ABO blood typing system and also about the PGM typing system. All blood contains PGM (phosphoglucomutase) made of three forms, which are designated PGM type 1, PGM type 2, and PGM type 2-1. The PGM genetic marker can be isolated by a technique called electrophoresis. In this technique a blood sample is placed into a gel one millimeter thick, and an electric current is applied through a powerpack and cooling system. The electric charge causes the enzymes and proteins to separate and form distinctive identifiable bands on the supporting medium. She also testified that 80% of the Caucasian population secrete their blood type and PGM system in their body fluids. Fresh blood and saliva samples are obtained from an individual to determine if he is a secretor or nonsecretor. She was provided with blood and saliva samples from the defendant, and performed tests which produced the conclusion that defendant's blood was AB, PGM type 1, and that defendant was a type 1 secretor. The witness testified further that she analyzed the stain taken from a portion of cloth from the back seat of the victim's parents' car, and found that stain to be semen. Further tests showed that the stain exhibited AB and H activity in the ABO system and PGM type 1. A person with AB type blood could also have H activity but the AB type would predominate.

Fesser also testified that population frequency statistics compiled by the American Blood Banking Association and several regional experiments in typing were recognized as reliable among experts in the field of serology. According to these statistics, approximately 4% of the Caucasian population has blood type AB and 57% have PGM type 1. By dividing 4% into 57% Fesser concluded that approximately 2.3% of the Caucasian population would have a combination of both factors. She then multiplied the 2.3% by 80%, the percentage of Caucasian individuals shown to be secretors, and arrived at the conclusion that 1.8% of the Caucasian population would exhibit all three characteristics that were in defendant's blood. The State's Attorney, in closing argument, told the jury that since one-half of the population would be female, that less than 1 person in 100 could have been the source of the semen in the back seat of the victim's parents' automobile.

We point out at this time, that there was no objection to Debra Fesser's testimony at trial, no objection to the foundation for the testimony, and no claim of error in the motion for new trial based upon Debra Fesser's testimony. There was no objection to the State's Attorney's closing argument with reference to statistics, and this argument was not challenged as error in the defendant's motion for a new trial.

The defendant calls our attention to People v. Harbold (1984), 124 Ill. App.3d 363, 464 N.E.2d 734, a case which the defendant contends is virtually identical to the case we consider here. The court in Harbold questioned the foundation for the testimony of the expert concerning the reliability of electrophoresis in determining the PGM type, and the court in Harbold also held that testimony of the statistical probability of matching blood types constituted plain error. Speaking of population frequency statistics, the court said:

"We believe that this testimony tended to exaggerate the conclusiveness of the scientific techniques used in this case. We imply no criticism of the State's experts, for the Illinois Department of Law Enforcement has helped to pioneer genetic marker detection in this country, and may well have a sound basis for zealous advocacy of these techniques. If defendant had raised these apparent inconsistencies, the experts might have qualified their testimony or given a satisfactory explanation. The defense corrected a flaw in the State's evidence in at least one respect, by introducing published population statistics. We cannot hold that electrophoretic detection of genetic markers in field conditions is unreliable as a matter of ...

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