Appeal from the Circuit Court of Winnebago County. No. 90--CF--1260. Honorable Frederick J. Kapala and John W. Nielsen, Judges, Presiding.
Rehearing Denied September 12, 1996. Released for Publication September 12, 1996.
The Honorable Justice Bowman delivered the opinion of the court. Colwell and Rathje, JJ., concur.
The opinion of the court was delivered by: Bowman
The Honorable Justice BOWMAN delivered the opinion of the court:
A jury convicted defendant, Angelo Dalcollo, of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-13(a)(1) (now 720 ILCS 5/12-13(a)(1) (West 1994))). The trial court sentenced defendant to nine years' imprisonment. Defendant now appeals his conviction. We affirm.
On August 1, 1990, defendant was charged by complaint with the offense of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-13(a)(1)). Two weeks later defendant was indicted on that same offense. The indictment charged that on July 14, 1990, defendant, by use of force, committed an act of sexual penetration by inserting his penis into A.F.'s vagina.
Trial commenced on May 11, 1993, before Judge Frederick Kapala and lasted until May 17, 1993. The facts adduced at trial may be briefly stated. Additional pertinent facts will be discussed in the context of the issues raised on appeal. A.F., the complainant, testified that on July 14, 1990, at 3 a.m., she started to walk to the Penny Pincher Cafe (the cafe) in Rockford, Illinois, to meet some friends. After walking three miles, a red El Camino with a broken right headlight drove past her, turned around, and pulled alongside her. The driver of the vehicle, whom A.F. identified in court as defendant, offered her a ride, which she accepted. As they approached the cafe, defendant "punched the gas" and drove past it. Defendant drove to a parking lot and told A.F. that he was going to "make love to [her]." When A.F tried to open her door, defendant told her "not to make him do it the hard way," because if she did, "he'd hurt [her] really bad." A.F. asked him if he was afraid of "going up for rape," and he said he was not because "he'd gone up lots of times before and never got caught." Defendant then hit her in the head, jumped on top of her, and removed her pants. After ordering her to remove her tampon, he inserted his penis into her vagina and ejaculated. Defendant then let her leave the car. As he drove away, she memorized the license plate number. A.F. stated it was 14CC2E, although the record reveals that the number was actually 1422 CE. A.F. then walked to the cafe and told some police officers, who happened to be there, that she had been raped. The police officers took her to the hospital. At the hospital, A.F. told the nurse that she had been raped.
A.F. also testified that on July 16, 1990, she went with her husband, Debra Shumaker, and Gerald Anderson to defendant's home. A.F.'s husband apparently knew that defendant was her assailant based on her description of him and his vehicle. He therefore wanted to "beat up" defendant. After their car got stuck in a ditch near defendant's home, a truck driven by defendant pulled up behind them. When defendant said something to them, A.F. turned around, pointed at him, and said, "He is the one that raped me." Defendant ran, but was caught and beaten by A.F.'s husband.
On cross-examination, A.F. stated that the distance from her home to the cafe was 8 to 10 miles. She stated that she touched the inside of the El Camino with her hands and that while inside the vehicle she tried to wipe off any fluids or menstrual blood on her. She admitted that she knew on July 20, 1990, that defendant had charged her with aggravated assault in relation to the July 16 incident. On redirect examination, A.F. testified that when she arrived at the cafe on July 14, 1990, she gave a description of her assailant to a police officer and told him that her assailant's vehicle was a red El Camino with a broken right headlight.
Officer Royal MacKenzie of the Rockford police department testified that at approximately 5 a.m., on July 14, 1990, A.F. approached him in the cafe and told him that she had been raped. Her blouse was torn and she was crying. She described her assailant and his vehicle, a red El Camino pickup truck with a broken headlight. She also provided the vehicle's license plate number. He then escorted her to SwedishAmerican Hospital.
Michelle Gillihan, a nurse at the hospital, testified that at approximately 5:45 a.m. on July 14, 1990, she met A.F., who told her that she had been raped. Gillihan then performed a rape test examination on A.F. She did not notice any bruises on A.F.
Detective Bruce Scott of the Rockford police department testified that on July 20, 1990, he impounded defendant's vehicle, a red El Camino. The vehicle's right headlight did not work. Detective Scott also stated that when he served the criminal complaint on defendant in this case, defendant said, "yeah, but you can't fucking prove it." He acknowledged on cross-examination that when he impounded the vehicle, there was no indication that it had been recently cleaned.
Dr. Harold Deadman, supervisor of the Federal Bureau of Investigation's (FBI) DNA analysis unit, testified as an expert in forensic DNA analysis. According to Dr. Deadman, DNA (deoxyribonucleic acid) is a chemical substance present in the cellular material of all living things. Located in a body's chromosomes, DNA determines a person's characteristics. DNA is made of four types of subunits, which he described as being "like links in a chain." Although there are only four types of subunits, there are millions of individual subunits along the length of the chain. The sequence of the different subunits determines a person's characteristics. Except for identical twins, each person's DNA is unique.
Dr. Deadman testified that the DNA analysis unit examines evidence submitted in criminal cases by comparing the DNA extracted from an unknown source with DNA from a particular person. The unit attempts to identify an individual as being a contributor of a particular type of biological material, such as blood or seminal fluid. There are three general steps in DNA testing: (1) creating a DNA "profile" of a sample; (2) determining whether the profiles of different samples "match"; and (3) if the samples match, estimating the statistical probability of a random match.
The first step, creating a DNA "profile" of a sample, involves its own six-step process, known as "Restriction Fragment Length Polymorphism" (RFLP). Step 1 involves extracting the DNA from a sample. Step 2 involves cutting the extracted DNA into smaller fragments. The DNA is cut "by using chemical substances that subjects [sic] it to certain sequences that are present," thereby generating a large number of smaller fragments of DNA. In step 3, the DNA is separated by size. The DNA is placed in a gel; an electrical current is applied to the gel, forcing the DNA fragments to move according to their size. The larger fragments, which move more slowly, remain at the origin, while intermediate fragments spread throughout the gel. Once completed, the DNA fragments are arrayed across the gel according to their size. In step 4, the DNA fragments are transferred from the gel to a piece of nylon. When this is done properly, the fragments are arrayed on the nylon exactly as they existed in the gel. Step 5 involves using radioactively charged probes to identify, locate, and measure the DNA fragments of concern to the test. In step 6, the probes are "visualized." A piece of x-ray film is placed on top of the probe, revealing DNA "bands" (pieces of DNA). DNA bands make up the DNA profile.
The second step requires interpreting the results of the RFLP procedure. Interpretation involves comparing DNA bands from known and unknown samples. A comparison may be made by visually inspecting and then measuring the DNA bands of the known and unknown samples. A "match" exists if the bands are consistent. A match between a known and unknown sample is not an absolute identification. A match is only a statement of consistency. That is, a match is a statement that the DNA in the unknown sample could have originated from the source of the known sample.
The third step involves estimating the statistical probability of a random match. Because a match is only a statement that the DNA in the crime scene sample could have originated from the defendant, the FBI estimates the statistical probability of a random match between the DNA sample taken from the crime scene and the DNA sample taken from the defendant. To do this, the FBI determines what part of the population would contain a DNA profile like that found in a particular case. In other words, the FBI estimates the frequency of the particular DNA test sample occurring in a population unit. In making this estimate, the FBI compares the DNA test samples to a previously constructed database. The FBI's databases are divided along racial lines. The Caucasian database, which was used in the present case, is a database of approximately 500-700 people, or between 1,000 and 1,500 DNA bands.
The FBI estimates the probability of a random match in the following manner. The bands in a particular category are added up and then divided by the total numbers of bands. The result is the "band frequency" for that population unit based on the FBI database. Once the frequencies of each probe are determined, they are multiplied together to determine the frequency of the DNA profile. This manner of multiplying the frequencies is known as the product rule. A more detailed explanation of the product rule may be found in State v. Bible, 175 Ariz. 549, 582-84, 858 P.2d 1152, 1185-86 (Ariz. 1993).
According to Dr. Deadman, the FBI's procedures have been criticized "primarily in the courtroom, by Defense experts in the courtroom." The FBI's procedures have not been criticized to any great extent at scientific conferences. Moreover, the scientific literature which deals with the issues of forensic DNA evidence is "almost overwhelmingly" in support of the FBI's procedures. Those publications that have criticized the FBI's procedures are "very few," and they use "very little supporting data" to support their criticisms.
Using the FBI's procedures, Dr. Deadman concluded, to a reasonable degree of scientific certainty, that defendant's DNA "matched" the DNA recovered from the seminal fluid found on the underwear A.F. wore at the time of the attack. Dr. Deadman calculated that the probability of a random match was 1 in 60 million.
On cross-examination, Dr. Deadman testified that the database used in the present case is used for the entire United States, but that it includes samples only from California, Texas, Florida, and FBI trainees. While there may be some differences between ethnic groups within a population, those differences are not "meaningful or significant." Dr. Deadman conceded that it would be possible to get a different result in this case if the samples comprising the database were drawn from Illinois and that using a different database could result in a different probability of a random match. Dr. Deadman also conceded that a report by the National Research Council, Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (1992) (NRC Report), stated that "questions have been raised about the adequacy of population data bases on which frequency estimates are based on the role of ratio and ethnic origin and frequency estimation."
The State rested at the conclusion of Dr. Deadman's testimony. In his own defense, defendant called Dr. Pravatchai Boonlayangoor to testify as an expert in forensic DNA analysis. Using the same test data as the FBI but a different method of calculating the probability of a random match, Dr. Boonlayangoor determined that the probability of a random match could be from 1 in 745 to 1 in 4,212. Dr. Boonlayangoor admitted that his method of calculation was not recommended in the NRC Report and was even more conservative. He also admitted that his method of calculation was used by no other scientist.
Kandie Dalcollo, defendant's wife, testified that between 2 and 3 a.m. on July 14, 1990, she heard defendant leave the house. She remained awake for the next 15 minutes, and during that time she did not hear her husband's car start. Mrs. Dalcollo next saw defendant at 6 a.m. that day. She admitted that she did not know where defendant was between 3:30 a.m. and 6 a.m. She described defendant as having a moustache and beard on July 14, 1990. Margaret Dalcollo, defendant's mother, testified that on July 14, 1990, at 5 ...