The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County Honorable James M. Schreier, Judge Presiding
OPINION ON DENIAL OF REHEARING
The prosecution charged defendant, Joecephus Mitts, with three separate sexual assaults that occurred in the Englewood area in an eight-day period. The jury found him guilty of two of the assaults, but not guilty of the third. Defendant appeals from his convictions and sentences.
Just before 7 a.m. on December 14, 1993, L.B. walked down Hoyne Street towards a bus stop on 55th Street. A man across the street, walking the opposite direction, began crossing the street just as she started to cross. As she walked past, the man grabbed her arm and said, "[T]his is a stickup." He pulled out a gun and pointed it at her head. He told her to walk with him, and if she ran he would shoot her. He told her to take out her money. She did not give him any money.
The man took L.B. to a garage in a nearby alley and told her to take off her clothes. He threw her to the floor and lay on top of her, with the gun pointing to her head. He had vaginal intercourse with her. He struck her face with his fist and told her she cried too much. Then he left.
Once the man was out of sight, L.B. ran home and her family called the police. She described the assailant as a black male about 5 feet 5 inches and 150 pounds, wearing a black, hooded sweatshirt, blue jeans, gym shoes, and a knit cap. Police took L.B. to a nearby hospital, where they obtained a swab of semen found in L.B.'s vagina.
Two days later, around 1:30 a.m., T.S. passed a man in an alley as she walked on Wolcott Avenue, a few blocks from the location of the attack on L.B. The man walked up behind her, put a gun to her back and told her it was a stickup, and if she said anything he would "pop" her. He pulled her by the arm through a gangway and into a garage. He kept repeating that if she said anything he would "pop" her.
Once in the garage the man told T.S. to give him her money. When she said she had none, he said he would get something from her. He told her to get on her knees, and he put his penis in her mouth. He then told her to take off her clothes. He took a neck chain from her and told her to bend over the car. He had vaginal intercourse with her. He told her to wait five minutes or he would pop her. She waited, then she ran home and her family called the police.
T.S. described the assailant as a black man, around 20 years old, 5 fet 6 inches and 180 pounds, wearing a black Starter jacket, dark pants, and a skull cap. Police took T.S. to a nearby hospital, where they obtained a swab of semen found in her vagina.
Shortly after midnight on December 22, 1993, L.W. got off a bus on 55th Street and walked down Damen Avenue, less than two blocks from the location of the attack on L.B. A man walked up behind L.W. and said, "[T]his is a stickup, bitch." He grabbed her neck and pointed a gun at her back. He pushed her to a gate and told her to climb over it. He climbed over and took her into a garage. He pushed her to her knees and said "stay there." He put his penis in her mouth. Then he told her to turn around. He pulled down her pants and made her lie on her jacket. He put his penis first in her vagina and then in her anus.
When the man got up, he asked L.W. whom she knew. She gave the name of a relative, and the man said he "fucked with the wrong female." He recognized the relative as a member of the Blackstones gang. He told L.W. to stay in the garage until he was gone. Once he left she ran home, where her family called police.
L.W. described the man who attacked her as 17 to 24 years old, about 5 feet 8 inches and 170 pounds, wearing a black cap pointed left, a black, hooded coat, black pants and black shoes. Police took L.W. to a hospital where they obtained a vaginal swab including semen.
After midnight on December 23, 1993, Officer Terrence Johnson patrolled the area where the crimes occurred, looking for persons similar to the descriptions L.B., T.S. and L.W. gave of the offenders. He saw defendant and two other black men talking near the corner of 55th and Seeley, which is between Damen and Hoyne. As he approached, the other two men began walking east on 55th. Johnson asked defendant his name, where he lived, and what he was doing on the corner. Defendant gave his name and address and told the officer he was going to the store. Johnson then went to ask the same three questions of the other two men.
Defendant was 23 years old, 5 feet 6 inches and 190 pounds. Because Johnson thought defendant fit the descriptions of the offenders fairly well, he requested a photograph of defendant from police department files. The process of obtaining the photograph took several days.
On December 28, 1993, Sergeant Kevin Duffin watched defendant walking near 55th and Damen. Duffin spoke to defendant briefly, searched him but found no weapon, then took him to the police station before driving defendant back to Englewood. At some point Duffin asked defendant some questions.
When Johnson obtained defendant's photograph on December 30, 1993, he assembled a photo array and brought it to L.B. L.B. picked defendant's photograph as a picture of the man who attacked her. Police arrested defendant and put him in a lineup. Both L.B. and L.W. identified defendant as the man who assaulted them. In a later lineup T.S. also identified defendant as the man who attacked her.
In May 1994 the police lab compared the DNA found on the swab taken from L.B.'s vagina with the DNA from L.B.'s and defendant's blood. The lab found a match with defendant at six separate locations where DNA varies sharply from person to person.
The lab also compared the DNA found on the swab of L.W. with L.W.'s and defendant's blood. The DNA on the swab matched neither L.W. nor defendant at most locations, but at some locations the analyst, Pamela Fish, found faint bands that might possibly match defendant's DNA, along with much clearer bands that matched neither defendant nor L.W. In September 1994 Fish told the assistant State's Attorney to look for a friendly source responsible for the clear bands matching neither L.W. nor defendant.
The assistant State's Attorney never responded to Fish and never requested testing of the swab from T.S. The prosecution supplied the DNA tests to defense counsel but never informed the defense of the identification of a friendly source for the DNA found on the swab from L.W.
The prosecution moved to have evidence pertaining to all three assaults admitted into the case concerning the assault on L.B. The court found sufficient indication of a single perpetrator using a distinctive modus operandi, and therefore the court granted the prosecutor's motion. The court subsequently permitted the prosecution to try defendant on charges of committing the three assaults in a single trial.
The defense moved for a Frye hearing concerning the admissibility of DNA evidence. In support of the motion defendant presented statements and articles from several experts concerning testing procedures and statistical analyses of results. The experts criticized the lack of random sampling in the creation of DNA databases used for computing the probability of random matches. They also criticized police labs for their failure to perform blind proficiency tests to check on the accuracy of procedures. None of the police labs reported error rates. In forensic tests, the analysts always know in advance which samples police want the lab to match, contrary to good scientific technique.
In one of the articles submitted in support of the motion, Harvard University professor R.C. Lewontin explained the problem of laboratory error when the lab receives a small sample from a crime scene and some source to compare, like blood, from a suspect.
"While there is more than enough DNA recoverable from the suspect's large blood sample to carry out the needed procedures, the very small, and often degraded, sample from the crime scene does not contain sufficient DNA for the comparison. To obtain sufficient material, the DNA from the crime scene is 'amplified,' that is, copied thousands or millions of times in a procedure known as polymerase chain reaction (PCR). *** The problem with the PCR technique is that because of its chain nature, contaminant molecules in the original sample may also be amplified and, since the original crime scene sample contained so few molecules, contaminants may overwhelm the original in the amplification. ***
Now consider the actual practice in a forensic DNA laboratory. A technician is handling two samples. One is the very large DNA sample from the suspect's blood, the other is the minuscule DNA sample from the crime scene, which is then amplified by PCR. The situation is ideal for PCR contamination, with the result that the suspect's DNA will not really be compared with that from the crime scene, but with his or her own DNA that has just been replicated in the PCR reaction. The result will be a perfect match.
All of us who use the PCR technique regularly are acutely conscious of the contamination problem, and the best laboratories have suffered occasionally from it. The perspiration and 'oils' on fingertips have provided enough DNA contamination in PCR experiments to give completely artefactual results." R. Lewontin, Comment: The Use of DNA Profiles in Forensic Contexts, 9 Stat. Sci. 259 (1994).
One study of laboratories in California found 2 false positives reported from 110 samples tested. Based on the limited data available, an expert said "a reasonable estimate of the false positive error rate is 1-4 percent." J. Koehler, DNA matches and statistics: important questions, surprising answers, 76 Judicature 222, 229 (1993).
The prosecution presented no evidence in response. The court denied the motion for a Frye hearing and decided to admit the prosecution's DNA evidence, along with testimony from a defense expert.
Defendant moved to suppress identification testimony, arguing first that Officer Johnson violated his right to be free from unreasonable seizure when Johnson stopped defendant on December 23, 1993. The court rejected the argument. Defendant also argued that the lineups were unduly suggestive. The court looked at the photographs of the lineups and agreed with defendant that the lineups were not perfect. Defendant was the darkest person in the first lineup, the shortest in the second lineup, and one of the heaviest in each lineup. But the court held that the lineups "pass constitutional muster." Accordingly, the court denied the motion to exclude identification evidence.
Defendant moved to suppress statements he allegedly made to Sergeant Duffin. Duffin testified that on December 28, 1993, he watched defendant walk back and forth near 55th and Damen for three hours. Duffin then approached and asked defendant who he was and why he was out on the street on such a cold night. Defendant gave his name and said he was just going to a nearby mini-mart. Duffin asked to see some identification, but defendant did not have any. Defendant said he thought there might be a warrant outstanding for him. He explained that Evergreen Park police had arrested him for possession of a controlled substance, and he might have missed the scheduled court date. Duffin offered to drive defendant to the police station to determine whether the court had issued a warrant for his arrest. Defendant agreed. Although he searched defendant before letting him enter the police car, Duffin found no weapon.
Duffin testified that in the car he talked with his partner about handguns. Defendant asked what kind of guns they carried. After Duffin answered, he asked defendant whether he ever owned a gun. Defendant answered that he had owned a revolver, but he sold it the prior week. At the station, police determined that defendant had not missed his court date on the ...