APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
511 N.E.2d 1303, 159 Ill. App. 3d 71, 111 Ill. Dec. 8 1987.IL.1080
Appeal from the Circuit Court of Cook County; the Hon. Adam N. Stillo, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. WHITE, J., concurs. PRESIDING JUSTICE McNAMARA, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Defendant, Steven Paul Linscott, was charged with the rape and murder of Karen Anne Phillips. A jury found him guilty of murder but not guilty of rape, and he was sentenced to 40 years in prison. On appeal, we reversed the conviction on the basis that the State did not prove defendant guilty beyond a reasonable doubt; one Judge Dissented. (People v. Linscott (1985), 135 Ill. App. 3d 773, 482 N.E.2d 403.) The supreme court granted the State's petition for leave to appeal and reversed our decision; two Judges concurred in part and Dissented in part. *fn1 (People v. Linscott (1986), 114 Ill. 2d 340, 500 N.E.2d 420.) The supreme court remanded the case to us to consider other issues raised by defendant which we had not previously addressed. We reverse and remand for a new trial, with directions.
This is an unusual case. Defendant was convicted of murder solely on the basis that (1) he had a dream that was similar to the occurrence, but with some discrepancies; (2) the defendant has a blood type that makes him a member of a substantial percentage of the male population, or possibly the entire population, who could have been the assailant; and (3) the State's expert witness could not exclude the possibility that several head hairs found in the victim's right hand and at the scene, and two pubic hairs combed from the victim, were from the defendant. There was no evidence from a factual witness connecting defendant to the crime; no fingerprints connecting defendant to the crime; nothing to connect defendant with the murder weapon; no prior relationship between the victim and defendant; and no motive. Nor is there any criminality in defendant's background. These facts are stated here simply to illustrate that the case is close on the merits, and not to resurrect the question of whether the evidence at trial was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. The detailed facts of the case as they generally appear in the first appellate court opinion and the supreme court opinion are reproduced in an appendix to this opinion.
We believe that the prosecutor's closing arguments to the jury, relating to blood and hair comparisons, were so egregious that a denial of a fair trial resulted. *fn2 We also believe that substantial rights are affected because the evidence is so closely balanced. Thus, we apply the plain error doctrine to review the error, although there were no objections made to the prosecutor's closing arguments in the trial court. People v. Harden (1986), 113 Ill. 2d 14, 19, 495 N.E.2d 490, 493; Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).
Some background information is necessary to understand what occurred with respect to the prosecutors' closing arguments. Prior to trial, without giving notice to defendant or the court, the prosecution's expert witness at trial, Mohammed Tahir, of the Illinois Department of Law Enforcement Crime Laboratory, performed, or ordered, a test which destroyed the only vaginal swab that was taken from the victim. The destructive test was done after defendant had been indicted for the rape and murder of the victim, and after defendant had moved for discovery of all physical evidence.
Tahir testified at trial that the no longer existent vaginal swab had a mixture of secretions which included vaginal and seminal material, and that he tested the mixed secretions for a blood type. Tahir also testified that his tests revealed there was type O blood in the mixed secretions. Tahir explained that 20% of the population are considered nonsecretors, people whose ABO blood type cannot be detected in their body fluids, such as saliva, semen or vaginal fluids. Secretors, 80% of the population, disclose their blood groupings in body fluids. The victim was a secretor, with type O blood. Nearly half of the population has type O blood, including secretors and nonsecretors. Defendant is a nonsecretor with type AB blood.
Blood can also be classified by Gamma Marker identifications which are detected by an electrophoresis test. *fn3 The victim's blood contained Gamma Markers Plus 1, Plus 2 and Plus 10. Defendant's blood has Gamma Markers Minus 1, Minus 2 and Plus 10. Tahir tested the vaginal swab for the precise Gamma Markers that were found in the victim's blood, Plus 1, Plus 2 and Plus 10. He testified that his test showed that the mixed secretions on the vaginal swab contained Gamma Markers Plus 1 and Plus 2, but that his test for Gamma Marker 10 was inconclusive.
Positive Gamma Markers mask negative Gamma Markers. Thus, the seminal material that was part of the mixed secretions on the vaginal swab could have come from a secretor with the same type O blood and Plus 1 and Plus 2 Gamma Markers as the victim, or from a secretor with the same blood type as the victim and Gamma Markers Minus 1 and Minus 2 or any combination of Plus and Minus Gamma Markers 1 and 2. It follows that the seminal material that was part of the mixed secretions on the vaginal swab could have come from any male with type O blood (secretor or nonsecretor), or from any male who is a nonsecretor, regardless of blood type. These two groups comprise a substantial percentage of the population, for they include the males in an indeterminate mixture of nearly half the population (type O blood) and 20% of the population (nonsecretors). This substantial percentage of the population would include the defendant, a nonsecretor with type AB blood.
Tahir did not testify that the victim was sexually abused, and there is no such evidence or testimony from anyone. Thus, it is possible that the victim was not raped. Tahir testified that "you cannot tell how long the stain [ i.e., seminal material] was deposited," and there was no way that he could tell "whether or not this girl had sexual intercourse within 24-hours of the time" that she was murdered. Thus, if the victim was not raped, but rather, had a consensual sexual encounter prior to meeting her assailant, and the seminal material that remained from that encounter was part of the mixed secretion on the vaginal swab, then the assailant could have been anyone in the world, male or female, regardless of blood type. This Conclusion comports with the State's position in this appeal. In its supplemental brief, the State declares: "Mr. Tahir testified that he could not determine the age of the sperm, which means that the sperm could have been donated by someone other than the murderer." We agree with that possibility.
One must be mindful of all the possibilities that we have mentioned because the prosecutor's argument to the jury relating to blood comparisons was false and a stark distortion of the possibility that the defendant was the assailant. The prosecutor told the jury:
"Karen was raped by a non-secretor and the defendant is a non-secretor.
Seminal material. One fact it came from a non-secretor. Mr. Linscott is a non-secretor."
No one testified that "Karen was raped by a non-secretor" or that the seminal material "came from a non-secretor." The prosecutor simply made up that piece of "evidence." The made-up evidence was doubly devastating because not only was it false, but it reduced the pool of possible assailants from a substantial percentage of the male population, or even from the entire population, to just the males in 20% of the population. Defendant, being a nonsecretor, is within that 20% group created by the prosecutor in his argument to the jury. The prosecutors' evidence aliunde on blood comparisons was so unfair that we cannot give it even the slightest appearance of judicial condonation, and it deserves "the strongest condemnation." People v. Lyles (1985), 106 Ill. 2d 373, 411, 478 N.E.2d 291, 303.
At trial there was also testimony relating to head hairs that were found in the victim's right hand, and on carpet where the victim was found. In addition, there was testimony about pubic hairs, not belonging to the victim, that were combed from the victim's pubic region. There was also testimony about a pubic hair that was found on carpet where the victim was found, and several head hairs that were found on the victim's bed sheet. According to the State's evidence, the pubic hair that was found on the carpet and the several head hairs that were found on the bed sheet were from a black person, and, therefore, they could not have come from the victim or the defendant. The victim and the defendant are white. According to Tahir's testimony, race can be determined by hairs, but neither sex nor age can be determined by hairs.
Tahir compared 15 to 20 head hairs and 2 pubic hairs from the defendant, with "several hairs" that were found in the victim's right hand, a "few hairs" that were found on the carpet, and 2 pubic hairs that were combed from the victim's pubic region. Tahir testified variably that he looked at approximately 7, 8, 10, or a dozen characteristics in making his comparisons. He also testified that he made no cross-section hair comparisons because he did not feel that cross-section hair comparisons are helpful.
The strongest hair testimony that Tahir gave to support the State's case against defendant is that defendant's hair samples were "consistent" with the hairs to which he had compared them, and that therefore he could not exclude the possibility that the hairs that were found were from the defendant. However, Tahir also testified that if hairs from other persons had been submitted to him for comparison, they could also have been "consistent" with the hairs that were found.
Tahir did not testify that the hairs matched or that they were identical. Moreover, any reasonable reading of Tahir's testimony establishes that Tahir did not intend his testimony to mean that the hairs were consistent in the sense that they matched or were identical. Specifically, when the prosecutor attempted to get Tahir to state that the hairs that were found and defendant's hairs matched, Tahir very carefully avoided testifying that they matched:
"Q. So again all we are talking about is that they match in every respect, is that correct?
A. They were consistent."
The "So again" reference in the prosecutor's question was a misleading reference because Tahir had never testified that the hairs matched.
Likewise, the defense expert, Kenneth Siegesmund, did not testify that the hairs matched or that they were identical. He testified that the hairs that were found either did not come from defendant or had too few characteristics displayed for him to conclude that they matched or did not match defendant's hairs. However, with respect to whether the pubic hairs that were found were defendant's pubic hairs, Siegesmund was very specific. He testified:
"Q. In view of the testing that you have just described with respect to the pubic hairs, based upon your observations and findings and analysis, do you have an opinion, based upon a reasonable degree of scientific certainty as to whether or not the pubic hair taken from the combings of Karen Phillips and the pubic hair samples of Steven Linscott came from a common source?
Q. What is your opinion, Doctor?
A. Within a reasonable degree of certainty, I believe that the hair from the combings did not come from the same source as the hair from the suspect."
Thus, there is no testimony anywhere in the record that any of the hairs that were found and the defendant's hairs matched or were identical. As a matter of fact, as previously shown here, the prosecutor's expert witness plainly refused such a suggestion. Notwithstanding this clear manifestation of the evidence at trial, the prosecutor told the jury in his rebuttal closing argument:
"He says you must ask yourself where is the link. The link is the semen matching the non-secretor. Mr. Linscott is a non-secretor.
The like hairs, more than one, more than two, more than three and you heard the probabilities from his own expert. Pubic hair in the woman's crotch matching Mr. Linscott.
I would suggest to you Ladies and Gentlemen if I said there were two American flags right there and they were both twelve by eight and that they had the same number of stars and they had the same number of stripes and had the same coloring would you sit there and say well there is nothing dissimilar about those two, they are identical.
But not a scientist. A scientist will state that every aspect that I examined they were consistent. And what does that mean. There was nothing different. And to a layman it means identical as the two American flags."
Thus, not only did the prosecutor in his rebuttal closing argument reinforce his prior misrepresentation to the jury that there was evidence that the seminal material on the vaginal swab was from a nonsecretor, but the prosecutor also told the jury that there was evidence that the defendant's pubic hairs and the pubic hairs that were combed from the victim matched and were identical. Plainly, Tahir did not testify, and he did not intend his testimony to mean, that the hairs that he compared matched or were identical when he said that they were "consistent." Comparative microscopy of hair serves to exclude classes of individuals from consideration and is conclusive, if at all, only to negate identity. (State v. Stallings (1985), 77 N.C. App. 189, 191, 334 S.E.2d 485, 486; see also 23 A.L.R. 4th 1199, 1210 (1983).) Here, by wrongfully telling the jury that the defendant's pubic hairs and the pubic hairs that were combed from the victim matched and were identical, the prosecutor used the comparative microscopy of hair by Tahir as conclusive evidence of identity. It follows that the prosecutor's message to the jury was not only a distortion of Tahir's testimony, but also a distortion of the meaning of the evidence. The prosecutor's choice of words was clever, but definitely misleading. Gamesmanship has no place when a person's liberty is on the line. There is simply too much at stake.
During the prosecutor's cross-examination of defendant's expert, Siegesmund, the prosecutor asked Siegesmund if he was aware of a study conducted by Barry Gaudette, a forensic scientist. (See Gaudette, An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 J. Forensic Sci. 599 (1974).) The prosecutor also asked Siegesmund if he was aware that Gaudette's study found that only 1 in 4,500 people would have consistent head hairs when tested for comparison, and that only 1 in 800 people would have consistent pubic hairs when tested for comparison. Siegesmund answered that he was aware of Gaudette and his study, but that whether Gaudette's figures would apply to any particular situation would depend on how many hairs were being compared, and whether all the tests that Gaudette recommends were performed. Siegesmund did not testify that the 1 in 4,500 or the 1 in 800 figures would be applicable to the hair comparisons that were made by Tahir in this case. No one testified that the figures used in Gaudette's study would be applicable to the hair comparisons that were made in the present case. Nor did anyone testify that the figures used in Gaudette's study would have general application to hair comparisons. In fact, Siegesmund's testimony, which was the only testimony at trial on this point, clearly shows that just the opposite is true.
Plainly, the figures from Gaudette's study do not have general application to hair comparisons. In his study, Gaudette admonishes that the odds to which he makes reference "should not be applied blindly to all cases." (Gaudette, Some Further Thoughts on Probabilities and Human Hair Comparisons, 23 J. Forensic Sci. 758, 759 (1978).) This admonishment is critical here because there is no evidence that Tahir made the same number of hair comparisons that were made in Gaudette's study. Also, Tahir testified that he could not remember which characteristics he had compared, and he could remember only that he tested somewhere between 8 and 12 different characteristics. *fn4 Moreover, Tahir made no cross-section hair comparisons for this case, although Gaudette warns: "The importance of examining hairs in cross section, in addition to whole mount, was demonstrated by this study. Of the 861 hairs studied, 163 cross sections were required to gain additional characteristics for differentiation." (Emphasis added.) (Gaudette, An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 J. Forensic Sci. 599, 605 (1974).5) In comparing human scalp hairs, Gaudette utilized a table of 23 characteristics for comparison, including 16 longitudinal characteristics and seven cross-section characteristics. (Gaudette, An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 J. Forensic Sci. 599, 601 (1974).) In a summary of this study, Gaudette states, "366,630 comparisons were made between 861 hairs from 100 different individuals." (Gaudette, An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 J. Forensic Sci. 599, 605 (1974); see Gaudette, Some Further Thoughts on Probabilities and Human Hair Comparisons, 23 J. Forensic Sci. 758, 759 (1978).) In comparing human pubic hairs, Gaudette utilized a table of 26 characteristics for comparison, including 19 longitudinal characteristics and seven cross-section characteristics. In a summary of this study, Gaudette states, "101,368 comparisons were made between 454 hairs from 60 different individuals." Gaudette, Probabilities and Human Pubic Hair Comparisons, 21 J. Forensic Sci. 514-17 (1976).
Notwithstanding the plain fact that the figures from Gaudette's study have no application to the hair comparisons that were made in this case, and the fact that the figures from Gaudette's study do not have general application to hair comparisons, the prosecutor told the jury:
"Then I asked him [Siegesmund] if he was aware of the Chief Forensic Scientist for the Royal Canadian Mounted Police, Mr. Gaudette. And the man says yes, of course, he is the leading man in his field. And I asked him are you familiar with the figure formula by this man and those were that of any two head hairs matched from two separate individuals it occurs in one out of every forty-five hundred times.
I asked Mr. Siegesmund are you also familiar with the fact that one person may have the same head hair does not necessarily mean that he has the same pubic hair and that the pubic hair ratio in any two people matched are one in eight hundred and I leave it to you, Ladies and Gentlemen of the jury, to figure out the probability or likelihood of anybody having the same head hair and the same pubic hair. It is a figure of one out of every forty-five hundred and one out of every eight hundred." (Emphasis added.)
To us, as Judges, what the prosecutor did is readily apparent. He misled the jury by recalling only his questions to Siegesmund and ignoring Siegesmund's answers. Based on the evidence at trial, the 1 out of every 4,500 and 1 out of every 800 figures from Gaudette's study should not have been considered by the jury. Yet, that is precisely what the prosecutor told the jury to do. This appears to have been a calculated, rank misrepresentation. The prosecutor's message to the jury was a distortion of the witness' testimony. The prosecutor's statements were neither comments on the evidence nor fair inferences based thereon, but rather, they were outright fabrications.
We believe that the prosecutor's misrepresentations relating to the blood and hair comparisons were egregious. Defendant was entitled to a trial that comports with prevailing notions of fundamental fairness. (See California v. Trombetta (1984), 467 U.S. 479, 485, 81 L. Ed. 2d 413, 419, 104 S. Ct. 2528, 2532.) Here, the American ideals of fairness in our system of Justice were not just ignored, they were trampled upon. We also believe that the prosecutor's misrepresentations relating to the blood and hair comparisons precluded any possibility of a verdict based on a quest for the truth. As a result, we conclude that defendant was denied a fair trial, and a new trial is required.
We next address the issue relating to the State's destruction of the only vaginal swab that was taken from the victim. Defendant was indicted on January 9, 1981. On the same day that he was indicted, defendant filed a motion for pretrial discovery pursuant to Supreme Court Rule 412 (107 Ill. 2d R. 412). The motion requested a "list of all physical property that the State intends to use at trial" and it further requested that "such property be made available to the defense for inspection before trial." About a month after the defendant filed his motion, the State filed an answer which listed the existence of the vaginal swab that was taken from the victim. However, on the same day that the State filed its answer, without notice to the defendant or the court, Tahir took the vaginal swab to the Scotland Yard Metropolitan Police Forensic Laboratory, in London, England. At the Scotland Yard laboratory, Tahir either performed, or ordered, a destructive test of the vaginal swab.
Prior to taking the vaginal swab to England, Tahir performed numerous tests on the vaginal swab at the Illinois Crime Laboratory. The tests in Illinois were conducted to determine the presence of semen and an ABO blood type from the mixed secretions on the vaginal swab. At the time the tests were performed in Illinois, Tahir knew from a specimen of the victim's blood that the victim had type O blood with Gamma Markers Plus 1, Plus 2 and Plus 10, and that the defendant was a nonsecretor with type AB blood and Gamma Markers Minus 1, Minus 2 and Plus 10.
Tahir took the vaginal swab to Scotland Yard to test it for the precise Gamma Markers that were found in the victim's blood, Plus 1, Plus 2 and Plus 10. The record clearly demonstrates that Tahir knew or should have known that whatever remained of the vaginal swab from the prior testing in Illinois would be consumed in the testing that was done at Scotland Yard.
The destructive test at Scotland Yard revealed that Gamma Markers Plus 1 and Plus 2 were present in the mixed secretions on the vaginal swab; the test for Gamma Marker 10 was inconclusive. Since Gamma Markers Plus 1 and Plus 2 mask any other combination of Gamma Markers 1 and 2, and the victim's blood contained Gamma Markers Plus 1 and Plus 2, the test that was done at Scotland Yard proved to be essentially meaningless. Moreover, it seems that the results of the test for Gamma Markers 1, 2 and 10 ...