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03/21/94 PEOPLE STATE ILLINOIS v. ROBERT E.

March 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT E. STREMMEL II, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 90-CF-1024. Honorable John W. Nielsen, Judge, Presiding.

Rehearing Denied and Released for Publication April 20, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McLAREN, Inglis, Woodward

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

A jury in the circuit court of Winnebago County convicted defendant, Robert E. Stremmel II, of first degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 1992)).) Defendant was sentenced to 100 years' imprisonment. Defendant appeals his conviction and sentence.

On appeal, defendant contends that: (1) the trial court erred in admitting DNA testing evidence and associated statistical evidence; (2) the State failed to prove his guilt beyond a reasonable doubt; (3) the trial court erred in declining to excuse a prospective juror for cause; (4) the trial court erred in allowing the State to impeach three of its own witnesses; (5) the trial court erred when it allowed certain photographs to go to the jury room; and (6) the trial court erred in sentencing him. Because we reverse and remand for a new trial, we will not address the last issue regarding an excessive sentence.

The following evidence was adduced at trial. On April 4, 1990, David Burns was found dead in his home in Rockford. Burns' body was lying in a pool of blood in the living room of his single-family house. An autopsy showed that the cause of death was a brutal beating with a blunt instrument which inflicted multiple head injuries, brain damage and injuries to other parts of Burns' body. The murder weapon was not found. The forensic pathologist who conducted the autopsy testified that some of the wounds could have been caused by the rounded end of a tire iron or a hammer. In addition, a number of the wounds were consistent with a heavy blunt instrument with a pointed end such as the end of a tire iron designed to remove hub caps.

There are no known eyewitnesses to the murder. There were no signs of forced entry to the house. There were no signs of a struggle. There was no evidence of a robbery or burglary. The body showed evidence of defensive wounds such as contusions on the arms and hands.

In the room where the body was found there were large amounts of blood on the floor and blood was spattered on all the walls and the ceiling. There was also blood in the adjoining rooms. The State presented expert testimony that the perpetrator could have had only a little blood on himself despite the large amount of blood spattered at the scene of the crime.

On a wood floor area near the entry to an adjoining bedroom, crime scene investigators found a number of bloody partial shoeprints. It was ultimately determined that a size 11 to 12 Converse leather basketball shoe made the prints. The shoes recovered from Burns' body were size 9 and were not Converse. Defendant's shoe size was 11 1/2 or 12.

Investigators recovered a total of 20 latent fingerprints from various items at the crime scene such as beer cans and a potato chip bag. Fifteen of these prints were identified to the victim. Three of the prints were palm prints which were unacceptable for print matching. Of the remaining two fingerprints, one was excluded from identification with defendant and the other was inconclusive.

Burns and defendant knew each other from their occasional attendance at the same Alcoholics Anonymous (AA) meeting which met daily in Rockford at various times. There is no evidence that Burns and defendant knew each other socially. When they both attended the same meeting, Burns and defendant sometimes greeted each other. Burns and defendant sat next to each other during an AA meeting on at least one occasion.

On the evening of April 3, 1990, defendant left his family residence in Stillman Valley after telling his father that he intended to attend an 8 p.m. AA meeting in Rockford. Defendant drove himself in a brown 1970 Chevy pickup truck. Later that night, Burns and defendant spent several hours drinking in the Kishwaukee Tap, a tavern in Rockford. Burns and defendant were drinking in the tavern from some time after 9 p.m. until approximately 2 a.m. There is evidence that they arrived at the tavern together. Lisa Faber, one of the two bartenders on duty at the Kishwaukee Tap that night, at first testified that she could not remember whether Burns came into the bar with anyone else. After being shown a police report, however, Faber remembered that she had previously told the police that Burns had arrived at the bar with a big muscular guy whom she identified as defendant.

Even if they arrived at the tavern together, Burns and defendant spent little, if any, time together in the tavern. Several witnesses testified that Burns sat at the end of the bar drinking beer while defendant circulated around the bar playing pool, talking to people, and drinking vodka and orange juice.

Sometime after midnight, one of the tavern regulars, Sam Carter, joined Burns at the bar and the two talked for about an hour. Burns told Carter that he was not driving and was with a man in the bar, a big muscular guy, who was moving around inside the bar. Carter was unable to identify defendant at the trial. Burns also told Carter that he was having problems with his wife because of his drinking. Carter wrote down and gave Burns the phone number of his mother who, Carter explained, might be able to help Burns with his drinking problem. Police were able to trace Burns' activities on the night he was murdered to the Kishwaukee Tap after they found the name "Sam" (Carter's first name) and a phone number on a bar napkin in Burns' wallet which was recovered as evidence at the scene of the crime.

The other bartender on duty at the Kishwaukee Tap on the night in question, Bob Cooney, readily identified defendant as being in the bar that night. Cooney was unsure when defendant arrived, but after once noticing defendant in the bar, Cooney closely watched defendant for two to three hours until the bar closed at 2 a.m. Cooney watched defendant closely because defendant was "acting kind of strangely" in that, although not a regular patron, defendant roamed all over the bar talking to regulars. At one point, defendant grabbed one of the regulars in a headlock and Cooney quickly approached defendant and the other patron, separated them, and calmed them down. The patron who was in the headlock was not hurt in any way, and defendant took the headlock off as soon as Cooney approached.

One of the patrons in the Kishwaukee Tap on the night in question, Mark McNamara, also remembered defendant quite well. McNamara recalled that defendant took offense when a drunken patron by the name of Chuck, who was walking around the bar calling everyone an "asshole," called defendant an asshole. McNamara testified that when Chuck called defendant an asshole, defendant became very upset and approached Chuck, but McNamara got between them and told defendant to settle down. McNamara kept talking to defendant for a while. When defendant stated that he wanted to play pool, McNamara recalled that defendant again got "really mad" because the regulars would not allow him to play pool. After a while, the regulars relented and told defendant that he could play pool. McNamara and defendant walked over to a booth and kept talking until defendant was actually allowed to play. At the trial, McNamara testified that defendant was wearing a white T-shirt, jeans, and tennis shoes, but could not at first remember the type of tennis shoes. After having his memory refreshed, McNamara remembered telling the police that defendant wore low cut Converse tennis shoes and that he knew they were Converse because they had a star on the side.

Burns was last seen alive when he left the Kishwaukee Tap alone about 1:50 a.m. on April 4, 1990. About 10 minutes later, defendant also left the tavern alone. Bartender Cooney specifically remembered defendant leaving because Cooney saw defendant carry a drink outside and Cooney had to go after defendant and retrieve the drink. Cooney recalled that defendant was walking alone heading for the back of the building at that time. In addition, defendant returned alone to the locked tavern a few minutes later and knocked on the door to inquire whether he had left a pack of cigarettes inside the tavern.

Defendant was next seen at 5 a.m. the same morning asleep in the backseat of one of his family's cars at the family residence. The 1970 Chevy pickup which defendant had driven to the meeting was parked nearby. Defendant's father found defendant asleep in the car at 5 a.m. when defendant's father left the family house to go to work. Because defendant's father knew that defendant had been drinking and that defendant was subject to epileptic seizures, defendant's father closely examined defendant for signs of harm. Defendant's father testified that he found no evidence of harm to defendant and no blood on defendant at that time.

The police first interviewed defendant on April 21, 1990. During the interview, defendant stated that he knew who Burns was, but had never been with Burns socially. Defendant also stated that his mother usually drove him to the AA meetings and on the few occasions when he drove himself he drove one of four family vehicles. Defendant did not mention the 1970 Chevy pickup truck as one of the vehicles he might drive alone to AA meetings. Defendant denied being in a bar on April 3 and 4, 1990, and said the last time he drank was two months prior to the interview. Defendant continued to deny being in a bar even when directly confronted with information that witnesses had identified him at the Kishwaukee Tap on the night of the murder. Defendant also denied owning any white tennis shoes, stating that the only pair of athletic shoes he owned was the pair he was wearing during the interview. The pair of athletic shoes defendant wore during the interview were not Converse athletic shoes and were not white. Defendant stated that he kept a daily diary of his activities and it might help him remember where he was on the night in question.

After obtaining consent to conduct a search, the police searched defendant's room in the family residence and found a small spiral notebook with a yellow cover on the headboard of defendant's bed where defendant stated it would be. While the police were in defendant's home, defendant approached one of the detectives, took another small spiral notebook with a gray cover out of a coat pocket, and said "Here, I forgot this. You might as well have this too."

The two notebooks contained entries from November 28, 1989, through April 20, 1990. There is an occasional day or two missing, but otherwise the entries are daily. The first entry in the gray notebook is dated March 6, 1990, and the last entry is dated April 20, 1990. However, the entries in the gray notebook stopped with the entry dated April 2, 1990, and do not resume until the entry dated April 20, 1990. The back cover of the gray notebook states that the notebook contains 60 sheets; however, there are only 48 sheets in the gray notebook.

Cindy Menzel was a waitress at a restaurant in Stillman Valley. Menzel testified at the trial that defendant and his mother came to the restaurant to eat every day except for a couple of days early in 1990 when defendant did not come into the restaurant. Menzel found it unusual that defendant did not come in those days and recalled that when defendant did come in he had scratches on his face. Menzel testified that she could not remember the exact days defendant missed coming into the restaurant, but thought they were late in March or early in April 1990. On cross-examination, Menzel testified that police officers who interviewed her on April 24, 1990, raised the specific dates of April 3 and 4, 1990, and that she did not tell the officers those were the specific dates the defendant missed coming into the restaurant. Menzel also testified on cross-examination that defendant received the scratches on his face when he had an epileptic seizure. One of the police officers who interviewed Menzel, Detective Forrester, subsequently testified that Menzel recalled the dates of April 3 and 4 as the days defendant missed without any prompting from the officers who interviewed Menzel.

At the trial, Menzel could not recall telling police officers who interviewed her that defendant usually wore a pair of high top leather Converse basketball shoes. Menzel also could not remember telling the officers that defendant wore those shoes daily until about a week before the officers interviewed her when defendant stopped wearing them. Detective Forrester subsequently testified that Menzel told him that defendant wore Converse tennis shoes almost daily until about a week before Menzel was interviewed.

Defendant's father testified that another son, Neil, who was attending college in Peoria, drove the 1970 Chevy pickup truck to Peoria on April 7, 1990. Defendant's father further testified that Neil did this because he was having mechanical problems with his own car and needed a substitute vehicle. Neil was supposed to keep the truck only for a short period, but the truck developed mechanical problems too and became inoperable. At his father's direction, Neil had the truck towed to and parked in a parking lot near his fraternity house at the college in Peoria.

On April 27, 1990, Rockford police went to Peoria and located the 1970 Chevy pickup truck which defendant drove on the night of the murder. Pursuant to a search warrant, the police arranged for the truck to be shipped back to Rock ford and impounded. A subsequent search of the truck revealed the following: (1) a jack set which was complete except for the tire iron which was missing and has not been found elsewhere; (2) a blue-tinted contact lens on the floor of the truck between the left side of the passenger seat and the center console; (3) a tiny stain on the brake pedal; and (4) a small bloodstain on the foam padding of the driver's seat where the seat cover had been worn away or removed.

A forensic scientist with the Illinois State police crime lab made a probable finding of human blood with regard to the stain on the brake pedal. He submitted the entire brake pedal to the FBI for testing. The FBI returned the brake pedal without a report regarding the testing on it because the stain was deemed too small for testing.

The pathologist found no contact lenses on Burns' body. Burns wore contact lenses every day, all day. His lenses were not found at the scene of the crime. Police found Burns' lens storage case at the crime scene, but the case was empty.

Debra Kellem, the manager of the optical store where Burns purchased contact lenses on May 30, 1989, testified that she dispensed blue-tinted gas permeable lenses manufactured by Art Optical to Burns. Kellem produced business records showing the prescription of Burns' lenses. The prescription for Burns' right lens was a base curve of 7.70, diameter of 9.2, and power of minus 3. The prescription for Burns' left lens was a base curve of 7.80, diameter of 9.2, and power of minus 3.

An optician measured the lens found in defendant's truck. The lens had a base curve of 7.80, diameter of 9.2, and power of minus 275, which is consistent with a prescription of minus 3.

Herman Young, a contact lens expert, examined the lens found in defendant's truck. Young determined that one of two area manufacturers, either H & R Optical or Art Optical, manufactured the lens. Young based his determination on the distinctive finish on the lens which results from equipment used only by those two manufacturers. Based on the number of increments within the normal range of contact lenses for base curve, diameter, and power, Young calculated that there were 83,200 different possible combinations of these measures.

The FBI conducted DNA testing on several blood samples including the blood found on the driver's seat in defendant's truck, defendant's blood, and Burns' blood. The DNA testing showed that the DNA in defendant's blood did not match the DNA in the blood found on the seat in defendant's truck. The DNA testing showed that the DNA in Burns' blood (the sample of which was taken from his body at the autopsy) matched the DNA in the blood found on the seat in defendant's truck.

The FBI calculated a probability estimate of the chance that the DNA match was random. The FBI calculated that the chance of a random match between the DNA in Burns' blood and the DNA in the blood found on the seat in defendant's truck was one in 1.8 million.

At the trial, each side called two expert witnesses who testified about the DNA testing. The State's experts generally testified that the FBI had followed its protocols and procedures for DNA testing and that the probability estimate was reliable. Defendant's experts testified that the FBI failed to follow its protocols and procedures in conducting the DNA testing in this case and that the probability estimate was unreliable. Defendant was found guilty by a jury and sentenced to the maximum extended term of 100 years.

ADMISSION OF DNA EVIDENCE

Defendant was convicted entirely on the basis of circumstantial evidence. An important piece of the circumstantial evidence was the matching via DNA testing of the small bloodstain found on the driver's seat in defendant's truck with Burns' blood. The first issue on appeal raises questions regarding the admissibility of DNA testing evidence and the calculation of probability estimates based on the DNA testing evidence.

The trial court conducted extensive pretrial hearings on the admissibility of this evidence. The court heard testimony from six experts, four for the State and two for defendant, on these issues. Subsequently, the trial court issued a carefully reasoned memorandum of decision holding that it was "more probable than not" that the DNA testing evidence and the related statistical analysis were ...


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