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06/30/88 the People of the State of v. Dennis J. Ferguson

June 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DENNIS J. FERGUSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 525, 172 Ill. App. 3d 1, 122 Ill. Dec. 266 1988.IL.1046

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Dennis Ferguson, appeals from convictions on five counts of murder and one count each of armed robbery, deviate sexual assault, and home invasion. Defendant was sentenced to imprisonment for natural life on one of the murder convictions, and to concurrent terms of 30 years each on his convictions for armed robbery, deviate sexual assault, and home invasion. Although defendant raises seven issues on appeal, our Disposition rests on the resolution of defendant's allegation that the trial court erred in admitting expert testimony on a scientific process that has not been generally accepted in the expert's scientific community (identification of a person who made a shoe print by comparing wear patterns of a shoe known to have been worn by the person with wear patterns of a shoe print found at the crime scene but made from a different shoe). We agree and accordingly reverse and remand this case for a new trial.

On April 17, 1984, at approximately 12:40 a.m., Andrea Young was discovered on the front porch of a neighbor's home, partially clad, and bleeding from 18 stab wounds in her head, neck, and hands. Andrea told police at the scene that an unknown attacker broke into her home and tried to rape and kill her. Andrea was transported to the hospital where she later died from an excessive loss of blood.

Investigators determined from evidence taken at the scene that Andrea was stabbed on the front porch of her home at 907 Chatham, in Elmhurst, Illinois, and went to her neighbor's home at 911 Chatham for help. Andrea's purse and its contents were found on her front porch along with a large amount of blood. The inside of Andrea's house was in disarray, and her clothes were scattered about the front entranceway and living room. Police discovered an open window and damaged window frame in one of the bedrooms. In addition, there were pry marks on the back door and wood chips on the threshold indicating an attempted entry at that location. Police also found jewelry scattered throughout the house and evidence of an item missing from the top of a dresser in one of the bedrooms. Partial and full shoe prints were found in white powder in the living room and hallway. Shoe prints were also found in the mud in Andrea's backyard and in the backyards at 911 and 919 Chatham. Additional jewelry was found in the backyard at 911 Chatham, and a jewelry box was found behind the garage at 919 Chatham. Five plaster casts were made from the shoe impressions found in the mud at 907, 911, and 919 Chatham. One of those impressions revealed a logo partially identified as "J.O." The officer who cast the impressions did not know their age and acknowledged that rain could destroy or alter the impressions. The record indicates that it rained on both April 16 and 17, 1984. One of the casts was broken at the time it was made and all of the casts were broken at the time of trial. On April 19, 1984, a large bloodstained knife and sheath were discovered in the backyard at 904 Chatham along with additional shoe prints.

On April 21, 1984, defendant consented to a search of his home in Bellwood, Illinois. A shoe box bearing the logo "J.O.X." was recovered from a trash bag in a bedroom defendant shared with a younger brother. Defendant was questioned and released after voluntarily providing police with photographs, fingerprints, and hair samples. Defendant was arrested on April 26, 1984, and police seized a pair of black canvas shoes he was wearing at that time. Police subsequently returned to defendant's home and seized a 10-speed bicycle, a pair of brown boots, and a pair of grey oxfords. The shoes were taken from the bedroom defendant shared with his brother. No "J.O.X." brand shoes were found. Defendant was charged by indictment with five counts of murder, two counts of home invasion, two counts of attempted residential burglary, and one count each of residential burglary, deviate sexual assault, and armed robbery. Prior to trial, the court severed the burglary and attempted burglary counts, and the State announced that it would seek the death penalty. A jury was subsequently impanelled, at which time the State routinely asked the panel members whether they would hold the State to a higher standard of proof beyond a reasonable doubt due to the nature of the case. Of the 14 panel members selected to hear the case, only one juror and one alternate were not asked these questions.

At trial, the State offered evidence of several Elmhurst burglaries and attempted burglaries occurring in early 1984. The State represented to the court that an expert witness would connect defendant to shoe prints found at locations associated with those crimes. The State further introduced testimony that the burglaries had characteristics similar to the instant action and argued that the other crimes' evidence was admissible under the modus operandi theory to identify defendant as the perpetrator in the instant action. The court allowed the evidence to go to the jury. In each case, the victims testified that the intruder entered or attempted to enter their homes at night through a rear door. Three of the witnesses testified that the intruder took their purses, which were located near the rear doors. Purses from two of the burglaries were recovered missing amounts of cash; however, one of the victims, Geraldine Collins, testified that her purse was also missing several credit cards and two Illinois Bell calling cards. Except for the Collins burglary, photographs and plaster casts were taken of shoe prints found at locations associated with the burglaries. Records of phone calls charged to the Collins' Illinois Bell account from April 6, 1987, revealed calls made on that date to telephone numbers belonging to Bellwood residents Carolyn Sproles and Paula Johnson. Both Sproles and Johnson testified that they received calls from defendant on that date.

The State also introduced the testimony of Anita Cason. Cason testified that in late 1983 or early 1984, she and defendant went to the Melrose Park Thom McAn shoe store, where she bought defendant a pair of "J.O.X." brand athletic shoes. Cason testified that defendant placed the shoes back in the box after trying them on, but acknowledged on cross-examination that she had previously told police that defendant disposed of the box and wore the shoes out of the store. Cason further testified that defendant told her on several occasions that he was going to Elmhurst and entering homes through open doors and windows at night. Cason stated that on April 4, 1984, defendant gave her the Collins' credit cards and Illinois Bell calling cards and told her that he got them in Elmhurst. Cason also testified that she was questioned by police and later informed defendant of that fact. According to Cason, defendant denied knowledge of any murder and stated that he was getting the credit cards from someone else. Cason further stated that on April 23, 1984, defendant told her to get rid of the calling cards because police were trying to use those cards to implicate him in a murder.

Sam Lombardo, manager of the Melrose Park Thom McAn shoe store, testified that Thom McAn used the brand name "J.O.X." on its athletic shoes and sold about 15 different styles of athletic shoe from April 1983 to April 1984. Lombardo identified the shoe box seized from the trash in defendant's bedroom through identification on the box indicating that it was received at the Melrose Park store in the fall of 1983 and contained a size 10 1/2D shoe. Store records indicated that between August 1983 and April 1984, there were two sales of the shoe identified by the stock number on the shoe box; one being a size 7 1/2, and the other being a size 10 1/2.

Dr. Louise Robbins, a physical anthropologist and associate professor at the University of North Carolina, was called to testify as an expert on shoe print identification. Robbins testified that the anthropological structure of every human being is unique and explained through the use of slides and measurements that each person has a unique foot impression. Robbins stated that the unique impression made by the human foot on the inside of a shoe is directly reflected by the wear patterns produced on the sole of the shoe and concluded that the wear patterns on the sole of a shoe are unique to the person who wore the shoe. Robbins stated that while no set number of measurements is necessary to make an identification from a shoe print, an identification is possible when "the number of similarities reach the point of beyond a reasonable doubt." After defendant's objection to this characterization was overruled, Robbins explained that she compared shoe prints by using four basic measurements, starting with total length, width across the ball, width across the arch, width across the heel, and "any additional measurements that are needed with regard to pattern and distribution of wear sites on the bottom of the shoe." When cross-examined on her qualifications, Robbins acknowledged that she had never taken a course on the wear characteristics of shoes or on comparing shoe prints or wear patterns. Robbins further acknowledged that she was not aware of any study on individual traits exhibited by shoe prints or footprints, nor was she aware of any studies other than her own regarding the ability to analyze shoe prints for the purpose of identifying the person who made the shoe print. Robbins was also unable to name anyone in the United States who had developed similar techniques and, although naming four persons in other countries who were doing or had done that "type of work," acknowledged that one of those authorities published a book in which he stated that the identity of a shoe wearer could not be determined from shoe wear patterns alone. Robbins testified that she had not read anything by that author indicating he had changed his opinion, nor was she aware of any published material refuting his findings. Robbins was allowed to testify as an expert after the trial court concluded that her methods were sufficiently reliable.

Robbins testified that she examined the plaster casts and photographs of shoe impressions in the instant action and determined that the casts had a tread design similar to an athletic shoe bearing the "J.O.X." brand name. Robbins also examined the three pairs of shoes seized by police and concluded that the soles of all six shoes had a distinctive wear pattern. While none of the shoes seized by police made the shoe prints represented in the casts and photographs, Robbins measured and compared the wear patterns on the plaster casts and the three pairs of shoes and concluded that the same person who wore the shoes seized by the police wore the pair of shoes that made the shoe prints represented in the casts. Robbins gave identical testimony regarding the similarity of wear patterns found on the casts and photographs associated with the attempted and actual Elmhurst burglaries. Robbins concluded that the same pair of shoes made all the shoe prints, and all the shoe prints were made by the ...


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