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09/18/97 PEOPLE STATE ILLINOIS v. ARTHUR DALE

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ARTHUR DALE HICKEY, APPELLANT.



Appeal from the Circuit Court of Will County, the Hon. Stephen D. White, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

Following a jury trial in the circuit court of Will County, the defendant, Arthur Dale Hickey, was convicted of first degree murder, attempted first degree murder, aggravated battery with a firearm, aggravated criminal sexual assault and home invasion. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty. The jury also found that there were no mitigating circumstances sufficient to preclude imposition of that sentence. Defendant was sentenced to death for the murder and to concurrent 60-year terms of imprisonment for the remaining offenses. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons which follow, we affirm defendant's convictions and sentences.

Background

The defendant's convictions stem from the murder of Jeff Stephens and the sexual assault and attempted murder of his wife, Heather. At trial, Heather testified that in November 1991, she and her husband lived in a two-story farmhouse on Route 102 in the small town of Ritchie, Illinois. On the morning of November 25, 1991, between 5 and 5:30 a.m., Jeff got up to go to work. Heather remained in bed, awake. November 25 was a Monday, the day of the week that garbage was collected at the Stephens' home. Jeff went downstairs from the second-floor bedroom to take the garbage out to the end of the driveway for pickup. Shortly after Jeff had gone downstairs, Heather heard yelling and then a gunshot from outside the house, from an area near the driveway. Heather got up and looked out her bedroom window. However, she was unable to see what was happening because a portion of the house obstructed her view.

Heather went to put on her bathrobe, which hung on the back of the bedroom door. Before she had finished putting on her robe, a man wearing a ski mask and holding a gun appeared in the bedroom doorway. The man forced Heather onto the bed, where he tied her wrists to separate bedposts. The man then left the bedroom and Heather heard the sound of something being dragged into the house.

The man returned to the bedroom, removed his ski mask and all of his clothing except his shirt, and attempted to sexually assault Heather. No lights were on in the bedroom. A small nightlight in the hallway outside the bedroom shone down on the stairs. Also, because it was not yet dawn and the blinds to the windows were shut, no light entered the bedroom from outside the home.

Heather testified that the man had trouble as he attempted to engage in sexual intercourse. The man left the room and came back with a lotion which he put inside Heather. He then sexually assaulted Heather while kneeling on the bed. The man's face was two to three feet away from Heather, but because she was frightened, Heather tried not to look at him. Heather was nearsighted and wore glasses, but she was not wearing her glasses during the attack.

When the man finished assaulting Heather, he put his clothes on and asked her "where the money was." He also asked her for the keys to the Stephens' red Plymouth Laser, which was parked outside in the driveway. Heather told the man that there was money on the bedroom dresser and that the keys to the Laser were in the pocket of Jeff's pants. The man took between thirty and forty dollars off the dresser and left. Heather then heard the Laser's car alarm go off. The man returned to the bedroom and asked Heather how to turn off the alarm. Heather told him how to do so. After shutting off the alarm, the man came back into the bedroom and told Heather to turn her head. The man then shot Heather in the side of her face.

Heather was unconscious for a short while. When she awoke, she saw that the ropes which had been used to tie her to the bed were gone. After hearing a car back out of the driveway, Heather went downstairs. She found Jeff lying at the foot of the stairs, unconscious. Jeff had been shot in the head. Heather tried to use the telephone but discovered that the line was dead. Heather then went to a neighbor's house to summon help. Shortly thereafter, the police and paramedics arrived.

Heather initially told police that her assailant was in his 20s, was between 5 feet and 5 feet 4 inches tall, weighed 130 pounds, had medium length, stringy blond hair, and had no facial hair. She also told police that she could identify her attacker if she saw him again. While Heather was at the hospital being treated for her injuries, she helped a police artist make a sketch of a subject based upon her description. Heather viewed photo lineups and mug books on many occasions during the 16-month period following the attack. Some of the photo lineups included photographs of defendant. However, Heather was never able to identify anyone as her assailant.

Testimony at trial established that in November 1991, defendant was 40 years old, was 5 feet 6 inches tall, had dark hair with some gray in it, and had a mustache. Further testimony established that in March 1992, defendant weighed between 180 and 190 pounds. On the witness stand, Heather testified that she felt she was no longer capable of identifying her assailant. She stated that she was not certain that her assailant had blond hair, and said that she could not recall if her assailant had any facial hair. She was certain, however, that the man who attacked her was taller than she was (she is 5 feet 3 inches tall). Heather explained that she no longer had confidence in her ability to identify her assailant because of the amount of time that had passed since she was attacked; the number of photo lineups she had been shown without obtaining any positive results; the darkness of her bedroom at the time of the attack; and the traumatic nature of the attack. When asked to identify defendant, Heather stated that she had not seen him before and that, to her knowledge, he had never been in her home.

The Stephens' Plymouth Laser was discovered in the parking lot of a Super Value grocery store in Wilmington, Illinois, at 7:51 a.m. on November 25, 1991. Wilmington is located approximately three miles north of Ritchie. Daniel Simenson, an evidence technician for the Will County sheriff's department, examined the Laser for evidence. He found a small section of purple and yellow nylon rope inside the car. He was unable to find any fingerprints on the car other than those belonging to Jeff or Heather Stephens.

Will County Deputy Sheriff Robert Persicketti examined the Stephens' home for evidence on November 25, 1991. He photographed and videotaped the home and a portion of the surrounding area. Inside the home he recovered several items, including a tooth and a bullet found in a bathroom, a .25-caliber shell casing found in Heather's bedroom, a pair of wire cutters, also found in Heather's bedroom, and a two-foot long section of nylon rope found in a hallway. He retrieved a hair from Heather's bed and secured the bedsheets. A United Parcel Service door tag with a bloody shoeprint on it was also found at the scene. Outside the home, in the area of the driveway, Persicketti found drag marks in the snow, a set of keys, a "Kool" brand cigarette butt, and another .25-caliber shell casing. Persicketti also observed that the telephone lines to the house had been cut. Persicketti attempted to recover fingerprints from various items in the home, including doors, the wire cutters, and jars and containers from the Stephens' bathroom. However, he was unable to recover any fingerprints which were suitable for analysis. Persicketti also photographed a shoeprint which was found in the snow by the Laser in the grocery store parking lot in Wilmington.

David Turngren, a forensic scientist at the Illinois State Police forensic science lab in Joliet, testified that he recovered approximately 200 hairs and hair fragments from a sheet taken off the Stephens' bed. Two pubic hairs recovered from the bedsheet did not match either of the victims' hairs. Of these two hairs, one was consistent with defendant's pubic hair standard. This meant only that defendant could not be excluded as the donor of that hair. Analysis of the other pubic hair was inconclusive. Turngren stated that an assistant State's Attorney withdrew a request that DNA analysis be performed on the hair that was consistent with defendant's standard.

Robert Hunton, a firearms expert, testified that the bullets which had killed Jeff and wounded Heather were fired from the same .25-caliber gun. The fired shell casings found in the Stephens' driveway and in Heather's bedroom were also fired by a single weapon.

Defendant's stepson, Mike Adermann, testified that he lived with defendant in Ritchie in November 1991. Adermann stated that defendant called him at home at about 6 a.m. on November 25, 1991, and asked to be picked up at the Shell gas station in Wilmington. The Shell station was located across the street from the grocery store parking lot where the Stephens' Plymouth Laser was discovered. Adermann stated that he picked up defendant at the gas station and then drove back to Ritchie. When the two returned to Ritchie they noticed police cars along Route 102. Defendant behaved normally when they saw the cars. Adermann testified that he dropped defendant off near the village hall in Ritchie, which was on Route 102 near the Stephens' home. As Adermann began to drive away, he looked back and saw what he believed to be defendant's van, parked near the village hall. Adermann then drove home. Shortly thereafter, defendant arrived home in his van.

Adermann further testified that defendant owned some handguns, and said that defendant might have kept a handgun in his van. Adermann also stated that he was not interviewed by police until April 20, 1993. During that interview, the police told Adermann that someone had phoned them and said that defendant was involved in the murder of Jeff Stephens. Adermann remembered the crime and subsequently told the police about the events which had occurred on the morning of November 25, 1991.

One of the Stephens' neighbors, Richard Findley, testified that he was getting ready to go to work at approximately 5:30 a.m. on the morning of the crimes, when he heard an argument take place outside his home. Findley heard someone say something like, "get back into the house" or "get back in there." Findley left for work at approximately 5:55 a.m. When he left, it was "pitch black" outside. Findley stated that as he drove to work, he saw a black and white, two-tone van parked near the village hall, just off Route 102. On October 3, 1993, a police investigator interviewed Findley and showed him a picture of defendant's van. Findley did not think that the van he saw matched the picture of defendant's van because of the different shapes of the vans' front ends. The parties stipulated that defendant owned a silver and gray 1987 Ford Aerostar van.

Another neighbor of the Stephens, Judith Howell, a registered nurse, testified that Heather came over to her home at about 6:15 a.m. on November 25, 1991. Heather was visibly shaken, her face was bleeding and she was spitting out teeth. Heather told Howell that she needed to use the phone and asked Howell to come back to her house to help Jeff. While Howell's daughter phoned the police, Heather and Howell went back to the Stephens' house. When they reached Jeff, Howell saw that a portion of his skull had been blown away, that he was gurgling, and that his pulse was weak and thready. She concluded that there was nothing she could do for him. Howell stayed at the Stephens' house until the police and paramedics arrived. Howell testified that she smoked "Kool Mild" cigarettes but stated that she did not leave a cigarette butt on the Stephens' driveway.

Tamara Hansen testified that she was the office manager at a general contractor's business that employed defendant in November 1991. Hansen stated that defendant's last week of work was November 4 through November 10. She did not know if defendant had come to the business' premises on November 25, 1991, hoping to obtain work for the day.

Susan Coppage, a nurse, testified that blood samples and vaginal and rectal swabs were taken from Heather at the hospital where she was treated for her injuries on November 25, 1991. Subsequent testing confirmed the presence of semen on the swabs. Testing also confirmed the presence of semen on a pair of panties worn by Heather, and the presence of blood on a sweatshirt which Jeff was wearing when he was shot. Several witnesses testified in detail regarding the chain of custody of the blood samples, the swabs, the panties and the sweatshirt.

David Metzger, research coordinator of the Illinois State Police's DNA Research Development Laboratory, testified for the State regarding deoxyribonucleic acid (DNA) evidence. Metzger described generally the process of restriction fragment length polymorphism (RFLP) DNA profiling. Metzger explained that the first step in this process involves the extraction of the DNA from the various materials to be examined and compared. Typically, these materials include an evidence sample of blood or semen and a suspect's blood sample. A restriction enzyme is used to cut the samples of DNA into a large number of fragments of varying length. The fragments from the evidence DNA sample and the suspect's DNA sample, as well as other control samples, are then placed side-by-side into separate lanes in a gel and exposed to an electric current. The current causes the fragments to move through the gel, with the smaller fragments moving faster than the longer ones. When the current is stopped, the shorter fragments will have moved greater distances than the longer ones. The DNA fragments are then transferred from the gel to a stable nylon membrane. In the process, Metzger stated, the double-stranded DNA molecule is made single-stranded. Next, a commercially available DNA probe is made radioactive and washed over the membrane. The probe bonds to the single-stranded DNA samples at a specific target site or locus. The locus varies in length from person to person and, hence, varies in location on the membrane. The membrane is then washed and placed between two pieces of X-ray film. When the film is developed, bands will appear where the probe has bonded to the DNA fragments.

Metzger explained that the developed X-ray film is called an autoradiogram or autorad. The bands on the autorad produced by the evidence DNA and the suspect's DNA are compared to one another to see if they are located in the same place. This is done visually and with a computer imaging process. If the bands do not match (an exclusion), then the DNA samples did not come from the same source. If the bands match, further statistical analysis must be performed to determine the chances of the match being the result of coincidence rather than the result of the suspect's being the donor of the evidence sample.

Metzger testified that he was able to extract DNA from a stain card which contained Heather's blood, from semen found on certain of the vaginal and rectal swabs taken of her, from semen found on a swatch of her panties, and from a swatch of Jeff's sweatshirt which contained blood. Metzger then began analyzing the DNA using the RFLP process. However, the restriction enzyme which Metzger used was allowed to stay on the DNA too long and, as a result, no interpretable results were obtained. Metzger then performed another method of DNA analysis, polymerase chain reaction (PCR) *fn1, with these samples. This analysis excluded Jeff Stephens and several criminal suspects as donors of the evidence semen sample. After Metzger performed the PCR analysis, he photographed the strips which displayed the results. He then discarded the PCR strips because they could not be used for anything else and because the color of the strips, which establishes the results of the test, changes over time.

Metzger then requested further evidence samples. He received Heather's panties and additional vaginal swabs that had been taken of her, both of which contained suspect sperm. Metzger also received samples of defendant's blood. Metzger extracted DNA from the vaginal swabs, the panties, Jeff's sweatshirt, Heather's blood, and defendant's blood. Metzger exposed these DNA samples to nine different probes and developed nine autorads. In Metzger's opinion, the bands on the autorads from defendant's DNA matched the bands on the autorads from the evidence semen DNA.

Metzger explained that he used the procedure known as fixed-binning to determine the probability of a coincidental match. In this process, the bands which appear on an autorad are assigned to size classes, known as bins. A population database is then used to determine how frequently these bins occur in a population. Metzger stated that the database from which the State Police calculated population frequencies consisted of blood samples taken from about 400 Illinois Caucasians and 200 Illinois African-Americans. When a DNA sample is exposed to a number of different probes, and a number of different autorads are developed, the resulting bands on the autorads are collectively referred to as a DNA profile. Once the bin frequencies on individual autorads are determined, further calculations are performed to determine the frequency with which the DNA profile occurs in a population. Metzger discussed two methods of calculating the frequency with which a DNA profile occurs in a population: the product rule and the interim ceiling approach. Using the product rule of frequency calculations, Metzger believed that the probability that a person other than defendant, randomly selected from the population, would have the same DNA profile as that provided by the first five probes he used on the evidence semen sample, was 1 in 15 billion. Using eight of the nine probes, plus the PCR results, and the interim ceiling method of calculation, the random match probability was 1 in every 43 billion people. In Metzger's opinion, the DNA from the evidence semen sample originated from defendant.

Dr. Michael Conneally, distinguished professor of medical genetics and neurology at Indiana University Medical Center, also testified regarding the DNA evidence. Conneally was familiar with the State Police laboratory's procedures, or protocol, and its population database, both of which were similar to those established by the FBI. Conneally testified that the laboratory's protocol and its database were scientifically valid. Conneally also believed that the autorads produced by Metzger were of excellent quality. Conneally agreed with Metzger's random match calculation of 1 in 15 billion. Conneally stated that based on the nine probes and the PCR results, he had no doubt that the DNA from the evidence semen sample and the DNA from defendant were the same.

On cross-examination, Conneally testified that the State Police laboratory's use of the product rule to calculate profile frequencies was scientifically valid, and that there was no significant controversy in the scientific community regarding the use of that principle. Conneally acknowledged that DNA can degrade, and that degraded DNA can create false results. However, Conneally stated that there was no evidence of degradation of the DNA in this case and, further, that he would be able to detect any degradation based on his experience in interpreting autorads.

Dr. Randell Libby, a molecular geneticist, was the first witness for the defense. Libby noted that the National Research Council (NRC), a group of distinguished scientists operating under the auspices of the National Academy of Science, had issued a report in 1992 which recommended that forensic laboratories follow a number of quality assurance guidelines when performing DNA analysis. According to Libby, the State Police laboratory was operating in violation of these guidelines, in that they did not report laboratory error rates, did not properly conduct blind proficiency testing, and did not monitor the laboratory's level of reproducibility.

In this case, Libby believed that Metzger erred when he overexposed the initial DNA samples to the restriction enzyme and was thus unable to perform further RFLP analysis. According to Libby, Metzger also erred, under his laboratory's protocol, when he discarded the PCR typing strips which he developed for these initial samples. Libby noted that misuse of the restriction enzyme during the RFLP process can lead to extra bands or band shifting on autorads, which indicates that the final results may not be reliable. The use of monomorphic probes is a control against such band shifting. However, Libby stated that Metzger used only polymorphic probes. Libby was also critical of Metzger's failure to verify the specificity of the restriction enzyme which he had used.

Libby testified that other problems with Metzger's DNA analysis included the poor quality of the blood sample taken from Jeff Stephens' sweatshirt, and the degradation of virtually all of the DNA samples. In Libby's opinion, all of the autorads produced by Metzger had extra bands, or bands that were too light or too dark, due to the insufficiency of the enzyme cutting process, the contamination or degradation of the samples, or other causes. For these reasons and others, Libby concluded that Metzger was not justified in finding a match between defendant's DNA sample and the evidence semen sample.

Dr. Lawrence Mueller, an associate professor in the Department of Ecology and Evolutionary Biology at the University of California, Irvine, was the defense's second expert witness regarding DNA. Mueller insisted that the product rule, used by Metzger to calculate the random match probability of 1 in 15 billion for the evidence semen sample, was not a scientifically valid method. Mueller noted that in its 1992 report, the NRC recommended that the interim ceiling principle be used to calculate profile frequencies. The NRC also recommended that population databases include a large number of heterogeneous population subgroups. The NRC committee which made these recommendations included many distinguished scientists, including Mueller himself. Mueller believed that there was a significant dispute in the scientific community regarding the NRC recommendations. Using the interim ceiling approach and a database which included several heterogenous population groups from around the world, Mueller calculated that the random match probability of the DNA profile of the evidence semen sample produced by using five of the nine probes which Metzger had used was 1 in 1,800.

Robert Anderson testified that he drove past the Stephens' house at about 5:45 a.m. on November 25, 1991, while on his way to work. Anderson stated that he saw a large, "tannish" colored car parked in the Stephens' driveway and two men talking nearby. One of the men was taller than the other man, had dark, wavy hair, and was wearing a blue down-type coat. The shorter of the two men had blond, fluffy hair and was wearing a white and blue or black checkered shirt or coat. Defendant did not resemble either of the two men. Anderson subsequently met with Will County officers and identified two photographs of certain models of cars as possibly being the one he had seen in the Stephens' driveway. Nine months later, Will County Sheriff's investigator Gloria DeLeon drove Anderson around the nearby town of Coal City to see if he could identify the car he had seen. He did so. On cross-examination Anderson testified that he drove by the Stephens' house at 45 miles per hour on the morning of the crime and that it was very dark out. He also stated that his car's headlights swept across the Stephens' house as he made a turn onto Route 102 and that nearby street and porch lights provided further illumination of the scene.

Jeffrey Ford testified that in November 1991, he worked at the Super Value grocery store in Wilmington where the Stephens' Plymouth Laser was discovered. At 6:30 a.m. on November 25, 1991, Ford saw a man standing by the Laser in the parking lot. He heard a car alarm being set or turned off. The man Ford saw was approximately 6 feet tall, was skinny, and had short, dark hair. Ford testified that the man did not resemble defendant. However, Ford also stated that he could not identify the man he had seen.

Christine Adermann, defendant's stepdaughter, testified that in November 1991, defendant had mostly black hair with some gray in it, had a stocky build, and wore a mustache. Defendant owned a black and gray van and smoked only "Camel" cigarettes. Christine stated that defendant worked in construction and that he had a junking business on the side. She also stated that it would not be unusual for defendant to get up early on garbage days to check people's trash for salvageable items. Diana Clover, defendant's sister, substantiated Christine's testimony.

Richard Baum, a private investigator, videotaped the route which Michael Adermann took through Ritchie on the morning of November 25, 1991. The purpose of the videotape was to determine if the village hall could be seen from various points along the route. Baum acknowledged that the foliage conditions seen in the videotape would have differed on November 25, 1991.

Gloria DeLeon, head investigator for the Will County sheriff's department on this case, testified that she interviewed Heather several times. She also showed her approximately 14 photo lineups, two of which included pictures of defendant. Heather never made any comment about defendant's pictures and was never able to identify anyone as her assailant. DeLeon stopped showing photographs to Heather after preliminary DNA results were obtained from Metzger, even though further viewings were scheduled. DeLeon stated that she stopped showing photographs to Heather because Heather had told her that she no longer thought she could pick anyone out of a lineup. DeLeon did not record this statement in a police report.

In the State's rebuttal, DeLeon narrated a videotape which purported to show the view of the Stephens' driveway and home which Robert Anderson would have had as he drove by at 45 miles per hour on the morning of November 25, 1991.

William Frank, DNA Research Coordinator for the Illinois State Police, testified for the State as an expert in forensic DNA analysis. Frank stated that he had reviewed the work which Metzger had done on defendant's case. He discussed the quality control measures which Metzger employed and stated that he agreed with Metzger's findings. Frank acknowledged that there were artifacts, or marks other than bands, on the autorads produced by Metzger. Frank maintained, ...


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