Appeal from the Circuit Court of Cook County No. 89 CR 5408 The Honorable Joseph Urso, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
JUSTICE COUSINS delivered the opinion of the court.
In 1997, a jury convicted the defendant of armed robbery and aggravated criminal sexual assault. The trial court sentenced him to consecutive terms of imprisonment for 30 and 60 years in the Illinois Department of Corrections.
The defendant appeals these convictions, arguing that: (1) the trial court erroneously permitted the prosecution to introduce experimental scientific evidence; (2) the prosecution misstated the results of DNA testing in closing argument; (3) the prosecution shifted the burden of proof to the defendant in questioning his expert witness as to why he had not conducted his own serology testing; (4) the probability figures based on the DNA tests should not have been admitted because they were substantially more prejudicial than probative; (5) the trial court should not have qualified a prosecution witness as an expert in population genetics; (6) the trial court erred in refusing to question the venire specifically on racial prejudice; (7) the trial court erroneously admitted evidence that revealed that the defendant had prior convictions; (8) the trial court erroneously denied a motion to exclude any reference to the victim's family; (9) the trial court erred in refusing to allow the defense to introduce demonstrative evidence; and (10) the defendant was not proved guilty beyond a reasonable doubt.
This is the second time that this case appears before this court. We overturned the defendant's initial conviction due to errors in voir dire. See People v. Oliver, 265 Ill. App. 3d 543, 637 N.E.2d 1173 (1994) (Oliver I).
On the morning of January 24, 1989, S.S. was on her way to the bus stop when she was forced at gunpoint into the vestibule of a nearby apartment building and raped. S.S. testified at trial that she was on her way to attend computer classes. The defendant grabbed her from behind and put a gun to her neck. She saw the defendant had grey glasses and a scar on the right side of his face. She recognized him as a man to whom she had been introduced several years before. She had been told that his name was "Ralph."
The defendant ordered S.S. to remove her shoes and told her to walk. He warned her not to look at him, but she did. They stopped at a three-story apartment building. The defendant kicked open the outer door and forced S.S. into the entryway. He had her put down her purse, bookbag and shoes and then walk around. He then made her take off her jacket and pull up her sweater. He tried to cover her face with the jacket in order to keep her from seeing him. However, the jacket repeatedly fell off S.S.'s head during the course of the assault. The defendant had intercourse with S.S. and then forced her to perform fellatio. He ejaculated in her mouth and she spit out the semen.
Mildred Williams, a first-floor resident of the building, testified that she was conversing with a neighbor when she heard noises coming from the entryway. She went to see what was happening and saw the defendant, whose back was to her, and S.S.. Ms. Williams, thinking that they were engaging in a consensual sex act, yelled and screamed "how dare they be in that lobby." The defendant turned around and glanced at Ms. Williams, and then he walked away. He made a motion as if he were putting something in his waistband.
S.S. relates that as the defendant left he took her leather jacket. She screamed that she had been raped and Ms. Williams went out to help her. Ms. Williams called to a neighbor to dial 911.
The police then arrived and took S.S. to a hospital. She gave them a description of her assailant. She said that he had a scar on his face, wore glasses and was no more than two inches taller than she was. She said his name was Ralph. The police took photos of the crime scene and recovered semen and saliva samples from the floor.
A detective went to speak to Sharon Allison, who had introduced S.S. to Ralph. Ms. Allison told her that the real name of the person she had introduced to S.S. as "Ralph" was "Harold Oliver." When she had introduced him, S.S. had said "I know you" because she had seen him several times at a YMCA social center. The police had mug shots of the defendant on file. The detective took the mug shots of the defendant as well as mug shots of several other African-American males in order to present S.S. with a photo array. S.S. picked the defendant's photo out of the array.
The photo array was admitted as evidence at the trial over defense objection. The trial court had the part of the photos with the Department of Corrections plaque cut off before the photos were shown to the jury.
Two days after the assault, the police brought in the defendant. They did not find the leather jacket or the gun at his residence. Police officers searched the defendant and found a pair of glasses in his pocket. The defendant's height was actually 5 feet 7 inches, much taller than S.S. had estimated. S.S. viewed a lineup with the defendant and identified him, but said that he had been wearing glasses when he assaulted her. Ms. Williams was not able to pick the defendant out of the lineup.
The defendant was taken to the lockup. The police could not find the defendant's glasses. They looked everywhere the defendant had been in the station. Then, in a routine search of the defendant before he was placed in the lockup, police found the glasses hidden under the defendant's sweater in his armpit.
At trial the defendant presented an alibi defense. He worked at a law office a couple of miles from the crime scene. The office manager, Deborah Reasno, testified that the defendant had been at work when she arrived on the morning of January 24 between 8:15 and 8:30. She knew him as "Ralph." Assistant State's Attorney (ASA) Maureen Feerick testified that she had spoken to Ms. Reasno a few weeks after the crime and taken notes of the conversation. Ms. Reasno, ASA Feerick testified, had said that she arrived at work at 8:30 that morning.
Emmanuel Frank, a paralegal at the same law office, was a witness at a prior trial but was not available at this proceeding. His prior testimony was read into the record. He had testified that the defendant had arrived about 7:15 on the morning of January 24, and that he had not left before 10 or 10:30. He recalled that Ms. Reasno had arrived at the office at 8:30.
Dr. Harold Deadman, a former supervisor of the DNA analysis unit of the Federal Bureau of Investigations (FBI), testified for the State as an expert in DNA profiling. Dr. Deadman testified that he performed three sets of tests on the samples from the crime scene. First he performed a "Restriction Fragment Length Polymorphism" (RFLP) test according to FBI protocol. From this test he obtained an unusual result--only one band appeared on the gel. Nevertheless, the result was sufficently definite for him to determine that: (1) the DNA in the tested sample was not consistent with the victim's and thus probably came from the attacker; (2) the DNA was consistent with the defendant's; and (3) the probability of a random match among African-American males was 1 in 41.
About a year later, in response to criticism from a defense expert, Dr. Deadman repeated the test in order to verify and explain the unusual one-band result. He suspected that in the first test a band may have "run off the gel," so he modified the test so that the DNA would not travel as far. Instead of 17 hours, he ran the test for 15 hours. He exposed the DNA to an electric field of 25 volts rather than 30 volts, and he used more DNA than in the previous test. These test parameters varied slightly from the FBI protocol. From this second test he concluded that some bands had indeed run off the gel in the first test and that some larger bands may have degraded, and that this was why only one band had shown up. He did not perform a separate statistical analysis based on the second test.
In 1996, a new DNA profiling technique called "Polymerase Chain Reaction" (PCR) became available. Dr. Deadman then performed a PCR test on the semen sample. Once again there was a match. Based on the results of this test, he calculated that the chances of a random match among African-American males was 1 in 2,200.
At a Frye hearing prior to the trial, the defense objected to Dr. Deadman's testimony. The defense claimed that the modified RFLP test that Dr. Deadman had performed was an experimental procedure that did not have the requisite level of acceptance in the relevant scientific community to be admitted as evidence. The results of the first test were suspect, they contended, based on the unusual one-band result. The defense argued that even if the results were admissible under Frye, they should be excluded as substantially more prejudicial than probative. Finally, the defense objected to the qualification of Dr. Deadman as an expert in population genetics, the field which allows one to calculate probabilities based on the results of a DNA test. Dr. Deadman was not qualified, they argued, because he had taken no courses in population genetics. The trial court allowed Dr. Deadman's testimony.
Christine Anderson, who used to work at the Chicago Crime Lab, testified for the State as an expert in serology. She performed tests on the physical evidence in this case. Her testing showed that the defendant had blood type O and that he was a nonsecretor, meaning that his blood type cannot be determined by examining bodily fluids other than blood. S.S. had blood type B. Since no other blood type was found in the samples, the assailant either was a nonsecretor or had the same blood type as S.S. This test ruled out about half of the African- American male population.
Defense experts questioned the results obtained by Dr. Deadman and Ms. Anderson. The trial court admitted over defense objection an evidence deposition in which one of the defense experts, Dr. Sassetti, was cross-examined concerning the fact that the defense had not conducted serology testing although samples were available.
The jury found the defendant guilty of aggravated criminal sexual assault and armed robbery. At the sentencing hearing, the State informed the court that the defendant had been convicted of sexual assault several times before, and also of armed robbery. In mitigation, the defense presented evidence that the defendant had four children and had been employed. A minister testified as to his good character. The trial court sentenced the defendant to a term of 30 years' incarceration for the armed robbery and a term of 60 years for the sexual assault, to run consecutively.
The defendant appeals his convictions, arguing that: (1) the trial court erroneously permitted the prosecution to introduce experimental scientific evidence; (2) the prosecution misstated the results of DNA testing in closing argument; (3) the prosecution shifted the burden of proof to the defendant in questioning Dr. Sassetti as to why he had not conducted his own serology testing; (4) the probability figures based on the DNA tests should not have been admitted because they were substantially more prejudicial than probative; (5) the trial court should not have qualified Dr. Deadman as an expert in population genetics; (6) the trial court erred in refusing to question the venire specifically on racial prejudice; (7) the trial court erroneously admitted evidence that revealed that the defendant had prior convictions; (8) the trial court erroneously denied a motion to exclude any reference to the victim's family; (9) the trial court erred in refusing to allow the defense to introduce demonstrative evidence; and (10) the defendant was not proved guilty beyond a reasonable doubt.
The defendant first contends that the trial court erroneously admitted experimental evidence that did not have widespread support in the scientific community. The determination of whether to admit expert testimony about a new scientific technique rests in the discretion of the trial court. People v. Eyler, 133 Ill. 2d 173, 211, 549 N.E.2d 268, 285 (1989). The standard in Illinois for determining whether a new scientific technique is admissible is that set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Eyler, 133 Ill. 2d at 211, 549 N.E.2d at 285. According to Frye, the scientific principle or technique from which the expert testimony is deduced "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014.
In this case, the basis of Dr. Deadman's Conclusions was RFLP testing. Forensic RFLP analysis (People v. Hickey, 178 Ill. 2d 256, 278, 687 N.E.2d 910, 921 (1997)) and PCR analysis (People v. Pope, 284 Ill. App. 3d 695, 672, N.E.2d 1321 (1996)) are generally accepted by the relevant scientific community. Thus, the evidence was admissible under Frye.
Contrary to the arguments of the defense, the minor variations that Dr. Deadman made in the parameters of the second RFLP test did not render it a new scientific technique for the purposes of Frye. It is true that not only the theory behind a test but also the general techniques and procedures used must satisfy Frye. People v. Dalcollo, 282 Ill. App. 3d 944, 956, 669 N.E.2d 373, 386 (1996). However, this does not mean that the specific procedures used in a particular case are subject to Frye. Any such questions went to the weight, and not the admissibility, of Dr. Deadman's testimony. Dalcollo, 282 Ill. App. 3d at 957, 669 N.E.2d at 386; Hickey, 178 Ill. 2d at 279, 687 N.E.2d at 921.
The defendant next argues that his convictions should be overturned on the basis of the prosecution's misstatement of DNA evidence in rebuttal argument.
The prosecution argued as follows:
"And the other DNA, 1 in 2200, and you can do the math. That's less than five thousandths of one percent of the black population that possibly constructed that DNA. Those are pretty strong numbers, ladies and gentlemen."
"In fact, 1 in 2,200 is approximately five one-hundredths of one percent. The prosecution admits that it made such a misstatement, but argues that the issue has been waived and that the incorrect statement was harmless."
The prosecution contends that the defendant has waived this issue since there was no contemporaneous objection and the issue was not included in his posttrial motion. People v Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). While this is true, it would be somewhat unfair to penalize the defense for not making a contemporaneous objection, since defense counsel did not have time to check the calculations on the spot.
In People v. Linscott, 142 Ill. 2d 22, 566 N.E.2d 1355 (1991), the Illinois Supreme Court reversed an accused murderer's conviction because of misstatements made by the prosecution in closing concerning the physical evidence. Linscott concerned a rape and murder. The State's case against the defendant had three major parts. First, the defendant had come forward and told the police of a dream about the killing, which, prosecutors claimed, was very similar to how the killing actually happened. Second, head and pubic hairs consistent with the defendant's were found at the scene. Third, bodily fluids were recovered that were consistent with the defendant's, as he was a nonsecretor.
The prosecutor in Linscott made several misstatements in closing argument. First, he argued that the hairs found at the scene had been shown to be the defendant's, rather than that they had been shown to be consistent with the defendant's. Also, the prosecution had elicited testimony that if 40 particular tests were done on the hairs, the chances of a random match were 1 in 4,500 for the head hair and 1 in 800 for the pubic hair. In closing argument, the prosecutor suggested that these two figures could be multiplied, and that the chances of a random match of both kinds of hair was about 1 in 3 million. In fact, however, only 7 to 12 tests had been performed on the hairs, not 40. Thus, there was no basis for the probability numbers. Finally, the ...