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03/18/87 the People of the State of v. Duane Allan Schulz

March 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DUANE ALLAN SCHULZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

506 N.E.2d 1343, 154 Ill. App. 3d 358, 107 Ill. Dec. 288 1987.IL.327

Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Following a jury trial, defendant, Duane Allan Schulz, was convicted of the offense of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and sentenced to a term of 40 years in the Illinois Department of Corrections. Defendant appeals his conviction, contending: (1) the trial court erred in denying his pretrial motion to exclude the results of the State's blood and enzyme testing; (2) he was not proved guilty beyond a reasonable doubt where the proof of the crime was based upon the testimony of an admitted perjurer; (3) based upon the grand jury testimony of the prosecutor, the court erred in not dismissing the indictment, and (4) the court erred in admitting into evidence irrelevant and prejudicial information which denied him a fair trial. Defendant also appeals the dismissal of his post-trial petition, in which he alleged he was denied a fair trial due to discovery violations by the State.

Defendant was indicted by a grand jury and charged with the murder, deviate sexual assault, and aggravated kidnaping of Theresa Kaminski, his former girlfriend. A visitor to a cemetery in Willow Spring, Illinois, found the victim's body on February 21, 1981. The Cook County medical examiner conducted an autopsy and determined that the cause of death was by ligature and manual strangulation. He also found contusions and lacerations of the vagina and anus.

A police investigation into the facts of the incident revealed that on February 15, 1981, the victim had Sunday dinner with her family at the home of her aunt. After dinner, she drove to defendant's home, where she arrived between 6 p.m. and 6:30 p.m. She and defendant went to his bedroom. There was conflicting testimony as to whether their activity in that room was "horseplay" or an argument between the victim and defendant. Defendant's brother and his friends were in the home at the time, initially in the bedroom next to that of defendant and later in the family room in a different part of the house. Each of them testified that a plaque outside defendant's bedroom fell off the wall as a result of the activity.

None of the visitors in the home that evening could say that they actually saw the victim leave defendant's house. However, there was testimony that the victim came into the family room at approximately 8:15 p.m. or 8:30 p.m. to say good-bye to the guests. Defendant testified that he and the victim went to get cigarettes at a nearby store, and she dropped him off at home afterwards. He stated that he then went to a bar where he planned to meet some friends. Although he found the bar closed, defendant waited to see if his friends would arrive so that he could get a ride home. Defendant explained that while he was waiting, a man approached and asked if he was Duane Schulz. When he replied that he was, the man hit him and he hit the man back and ran. Defendant claimed that he received scratches on his hand from the fight, but he could not recall how he got the scratches on his face. He arrived home at approximately 9:45 p.m. and found his brother, Ray Lees, and Ray's girlfriend, Jeri Lynn Myers, preparing to leave. Defendant stated that he told them about the fight with the unknown man at the bar.

On Tuesday, February 17, 1981, the victim's mother informed the police that her daughter was missing and that her car was parked behind the family home. The police came to the home, where they inspected the vehicle as part of their investigation. In the trunk they found the victim's purse and miscellaneous items. The car keys were never located. The victim's mother told the police that she thought she heard her daughter come in the house at approximately 2 a.m. on February 16, but she never got up to verify the fact. The victim's brother stated that he saw his sister's car near a telephone booth at a gas station at about 9:15 or 9:30 p.m. on February 15. Although he saw someone in the car, he could not identify who it was. The victim's body was discovered on February 21 at a cemetery in Willow Springs, Illinois.

Approximately 1 1/2 years later defendant was charged by grand jury indictment with murder, deviate sexual assault, and aggravated kidnaping. The trial commenced on March 21, 1984. At the close of the State's case, the defense moved for a directed verdict on all counts. The court granted the motion as to the aggravated-kidnaping charge and denied it on the murder count. The court initially denied the motion as to the deviate-sexual-assault count, but later granted a directed verdict on it as well during the jury instruction conference. The jury, therefore, was instructed only on the murder count. The jury returned a verdict of guilty, and defendant appeals.

Defendant first contends that the trial court erred in denying his pretrial motion to exclude the results of the State's blood and enzyme testing. He claims that the scientific test results were devoid of probative value and irrelevant and, therefore, should have been held to be inadmissible. Defendant additionally argues that the testimony of the State's expert unconstitutionally shifted to defendant the burden of proving his innocence.

Approximately three weeks after the victim's body was discovered, defendant voluntarily went to the Willow Springs police department and gave them hair, saliva, and blood samples. Mr. Michael Podlecki, a forensic serologist with the Illinois Department of Law Enforcement, tested defendant's blood and saliva samples. He also tested samples from the victim, including a liquid blood sample; oral, vaginal, and rectal swabs; and Kool and Virginia Slims cigarette butts. Podlecki determined that both defendant and the victim had blood types of ABO type O, Rh positive, MN factor, type MN, and PGM type 1. The tests revealed that the victim was a secretor, that is, her blood type was evident in her bodily secretions. The tests also revealed that defendant was a nonsecretor. Podlecki testified that secretors include 80% of the population, whereas 20% do not secrete a blood type. He could not determine a blood type from the semen found in the rectal area and concluded that the semen was either from a nonsecretor or that the antigens used to determine blood type, if present, had deteriorated. He did not find seminal material on the vaginal swab. Podlecki was permitted to testify that, based upon the results of his testing, defendant could not be excluded as the possible source of the seminal fluid on the rectal swab.

Mohammed Tahir, another forensic serologist with the Illinois Department of Law Enforcement, also testified for the State. He explained that he received three exhibits from Mr. Podlecki: a blood sample from defendant, a blood sample from the victim, and a rectal swab from the victim. He performed a blood grouping test on the blood samples and determined that both defendant and the victim were "Gm plus 1 minus 2." His test of the rectal swab revealed the same grouping. Mr. Tahir also testified that none of the tests he performed excluded defendant as the possible source of the seminal fluid found on the rectal swab.

Brian Wraxall, a forensic serologist from California, testified for the defense. He explained that he had performed absorption inhibition and absorption elusion tests upon the rectal swab which he received from Podlecki and Tahir. Wraxall stated that he found ABO type A on the swab which, he explained, could not have originated from the victim because she was type O secretor. Because it is possible that spurious results can occur due to the presence of large amounts of bacteria, Wraxall tested for its presence. He did not find such amounts. He indicated that assuming that type A he detected originated from the semen on the rectal swab, the semen could not have come from defendant. Wraxall testified that although his test results would not exclude defendant 100% as the donor, he did as many tests as he could to rule out spurious results.

Defendant argues that the value of the State's physical evidence here lay only in the fact that it failed to exclude him as a suspect and, therefore, it was irrelevant and inadmissible. He maintains that such evidence must be connected to both the defendant and the crime to be admissible, with the inquiry being one of relevance and not weight. (People v. Free (1983), 94 Ill. 2d 378, 415-17, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200; People v. Miller (1968), 40 Ill. 2d 154, 159, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401; see also People v. McQueen (1983), 115 Ill. App. 3d 833, 840, 450 N.E.2d 921.) Defendant emphasizes that the evidence only demonstrated a large segment of the male population could have been the semen donor. It had no tendency to make the existence of any material fact as to the identification of the semen donor more or less probable.

In support of its position that the evidence was admissible, the State cites People v. Johnson (1976), 37 Ill. App. 3d 328, 345 N.E.2d 531. The court there stated that evidence of hair, blood, and semen found at a crime scene may be admitted, with appropriate foundation, even though its probative value was not considerable. (37 Ill. App. 3d 328, 332.) The State also argues that the determination of whether evidence is relevant is a matter within the sound discretion of the trial court and should not be disturbed upon review absent an abuse of discretion. (People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011.) The State further maintains that even if the evidence was improperly admitted, the error was harmless beyond a reasonable doubt because of overwhelming evidence of defendant's guilt. Defendant counters that the State's heavy reliance on the Johnson case is misplaced in the instant situation because there the evidence derived its relevance from the differences in the blood types of the defendant and victim, the presence of the victim's blood type on defendant's clothing, and the ...


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