The opinion of the court was delivered by: Chief Justice Fitzgerald
Justices Thomas, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by Justice Burke.
Following a jury trial in Du Page County, defendant, Laurence Lovejoy, was convicted of the first degree murder of his 16-year-old stepdaughter, Erin Justice. Defendant was found eligible for the death penalty on two statutory grounds and sentenced to death. On direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603), defendant raises numerous claims of error occurring during the guilt and penalty phases of his trial. We reverse his conviction and sentence and remand for a new trial.
The State's evidence demonstrated that in March 2004, Erin was a 16-year-old high school student and member of her high school track team. She lived in a Naperville apartment with her mother, Valerie Justice, and defendant, Valerie's husband of four months. Defendant and Erin had a strained relationship, and Erin did not approve of defendant and Valerie's recent marriage. On March 3, 2004, defendant and Erin were in the apartment together while Valerie was working at her second job at a nearby gas station. Defendant offered to give Erin a massage, commenting on how she must be sore after track practice. Erin accepted his offer, but protested when defendant made sexual advances during the massage. Erin ultimately accused defendant of forcing her to have intercourse. She reported that defendant put his mouth on her breast, penetrated her vagina, and began kissing her and placing his tongue in her mouth. The sexual assault ceased when defendant heard a noise which he believed was the garage door opening.
After the assault, Erin left the apartment with her dog and ran barefoot to the apartment of a neighbor, Ladarius Bankhead, who was a high school friend. Erin told Ladarius that defendant sexually assaulted her, and Ladarius' mother, Lawanda Bankhead, contacted the police. Erin gave an oral statement to a police officer at the Bankhead apartment. She also spoke to her mother and told her that defendant sexually assaulted her.
Erin was taken to the hospital for an examination and evidence was collected. Specifically, swabs were taken of Erin's left breast and right cheek for DNA testing, pursuant to Erin's report that defendant had placed his tongue on those areas. After the medical examination, Erin went to the police station to give a handwritten statement detailing the assault. Defendant was arrested for the sexual assault, but was released pending the outcome of DNA tests.
On March 5, 2004, defendant and Valerie purchased a townhouse in Aurora, as was their plan prior to Erin's allegations against defendant. Defendant was not permitted to move into the townhouse and was not given a key. He was permitted to stay at the townhouse during the day when Erin was at school. Valerie would leave a key for defendant and would collect it from him at the end of the day. Erin had no knowledge of this arrangement.
Although defendant was not allowed to live in the home, Valerie saw and spoke to defendant frequently. She confronted defendant about Erin's allegations and he admitted that he ran a bath for Erin and massaged her legs, but denied touching her in any other way. Defendant indicated that Erin was angry at him because they argued over her cellular telephone usage. Defendant maintained that he did nothing wrong and assured Valerie that the DNA testing would vindicate him. He repeatedly asked Valerie to go to the police and tell them that Erin was lying and changing her story, even though Erin had remained consistent. Valerie declined, reasoning that the DNA evidence would speak for itself. Sometime after Erin's death, DNA testing revealed that traces of amylase, a substance found in saliva, were present on swabs of Erin's left breast and right cheek. DNA was extracted from the amylase which matched defendant's DNA profile. The amount of amylase available for testing was minimal, and the DNA expert could not say with certainty that the DNA recovered came from saliva.
On Saturday, March 27, 2004, the date of her murder, Erin was scheduled to leave town to spend spring break with her father, Edreick Justice. Valerie advised defendant that Edreick would be picking up Erin between 9 and 10 a.m. on March 27. She asked defendant to reschedule a 10:30 a.m. veterinary appointment for the family dog so that defendant would not encounter Erin when he went to retrieve the dog. The veterinary appointment was rescheduled by defendant for 12:30 p.m.
Valerie went to work early Saturday morning. At 7:48 a.m., she called defendant's cellular telephone and left a message advising him to cancel the veterinary appointment altogether, because plans had changed and Erin was not going to her father's house until later that afternoon. At 10 a.m. Valerie spoke to defendant on the telephone and gave him this information.
Valerie had called Erin several times that morning, but was unable to reach her. Sometime after 10 a.m., Valerie left work and went to the townhouse to check on Erin. When she arrived at her home, Valerie found that the front door was ajar. She heard the dogs barking and could tell they were in the downstairs laundry room. She observed stains on the carpet and the wall leading up the staircase, which she later realized were bloodstains. She went upstairs to look for Erin, and found her, dead, in the bathroom. Erin's naked body was lying in the bathtub, which was filled with bloody water. Valerie ran, screaming, out of the home and called 911.
At about the same time, Valerie's neighbor, Kayleen Steele, was also calling 911. Steele's townhouse was connected to the Justice unit by a common wall. Earlier that morning, between 8 and 8:40 a.m., Steele heard "scuffling and bumping sounds," a female voice that sounded distressed, and whimpering noises coming from the Justice home. She also heard "a mature male voice saying, 'so help me God' " and a "young, female voice saying, 'I'll just leave then. Let me go. I'll leave," followed by a "thump" coming from upstairs. Sometime after 10:30 a.m., Steele heard a scream of "sheer terror," which prompted her to call 911.
Valerie was taken by ambulance to the hospital. Valerie's sister contacted defendant to tell him that Erin was dead and Valerie was hospitalized. Defendant seemed undaunted by the news, but indicated that he would go to the hospital to be with Valerie. Aurora police waited for defendant at the hospital after he assured them that he was headed there, but defendant never came. An Aurora police officer called defendant on the telephone, but defendant declined to speak to the officer on advice of counsel. Defendant did agree to meet with police the day after the murder, with counsel present. During that meeting, defendant admitted that he went to the townhouse at approximately 7 a.m. on the day of the murder, but denied seeing or speaking to Erin. Defendant could not account for his whereabouts after leaving the townhouse, other than to say he went to get coffee at a location he could not recall, and then drove around or sat in his parked car in locations he also could not recall. Defendant could not explain why he went to the house at 7 a.m. when he knew the veterinary appointment was not until 12:30 p.m. Defendant never went to the 12:30 p.m. appointment and did not call to cancel.
Michael Dabney, a crime scene technician, indicated that he did not find any evidence of forced entry into the townhouse. He did observe a significant amount of blood in the first-floor kitchen area. There were bloodstains on the kitchen floor, table, counter tops, and kitchen cabinets. Dabney also observed wipe marks on the kitchen floor and the kitchen sink. There was a rag on the stovetop that was stained with blood. There was also a red frying pan on the kitchen counter that was stained with blood. There were two knife blocks on the kitchen counter near the frying pan. Both blocks were knocked over and some of the slots for holding knives were empty.
Dabney saw reddish-brown staining, which he believed to be blood, on the stairs, the landing, the door of Erin's bedroom, and in the hallway leading to the bathroom on the second floor of the townhouse. Erin's body was observed in the bathtub of the upstairs bathroom, submerged up to the head in bloody water. Dabney explained that there was a large amount of blood in the bathroom, and stated that the blood was "[e]verywhere *** except on the ceiling." A chemical called leuco crystal violet (LCV) was applied to several bathroom surfaces in an attempt to discover latent print evidence. The LCV test enhanced ridge impressions on a ceramic tile located just inside the bathroom entryway, and also revealed smears on the bathroom doorknob assembly that appeared to have a pattern on them. LCV is considered a presumptive test for the presence of blood and turns purple when in contact with blood. The LCV turned purple when applied to the tile and the door knob assembly.
The ridge impressions on the bathroom tile were later identified by LeRoy Keith, a latent print examiner, as a portion of defendant's bare footprint. Although there was evidence that defendant had been in the bathroom prior to the day of the murder to fix the showerhead, Keith testified that the footprint could not have been a pre-existing print left on the floor. Keith classified the footprint as a "positive print" that was made when blood was transferred from the foot onto the tile; it did not appear after blood washed over a pre-existing print.
The tile was tested by a second expert, Tamara Camp, for the purposes of obtaining DNA evidence. Camp swabbed three areas of the tile and conducted a Tetramethylbenzadine (TMB) test on two of the swabs. Like the LCV test, the TMB test is a presumptive test for the presence of blood. One of the swabs, taken from the area of the tile adjacent to the footprint, tested negative for the presence of blood. However, DNA was extracted from the swab that was consistent with Erin's DNA profile. Camp testified at trial that the DNA extracted from this swab came from "apparent blood" and that the substance swabbed was part of one bloody stain that included the footprint. Camp admitted that the TMB test was negative for the presence of blood, but opined that the result was a false negative.
Additionally, the pattern impressions on the doorknob assembly were found to be similar to a pattern found on gloves belonging to defendant issued through his employment as a painter for Caterpillar. The LCV test was presumptively positive for the presence of blood on the doorknob assembly, and DNA testing revealed that Erin's DNA was found on the doorknob assembly.
Other evidence was recovered. The red frying pan left on the kitchen counter tested positive for the presence of Erin's blood. Small pieces of black plastic recovered from the kitchen light cover, the living room, and the bathroom were determined to have come from the hilt portion of kitchen knives with black handles, similar to knives found in the townhouse. Defendant's palm print was found on a roll of plastic garbage bags found under the kitchen sink. Valerie testified that she was not aware of a time when defendant took out the garbage or changed the garbage bag, but she could not say with certainty that defendant never did these chores because defendant had access to the townhouse when she was not present. Erin's Edward Hospital discharge papers, issued after the sexual assault examination, were found in the glove compartment of defendant's van. Valerie averred that she never gave those papers to defendant.
Valerie testified that she kept a limited supply of over-the-counter drugs in the household. Valerie believed there was some cough medicine and a blister-pack of cold medicine in the house at the time Erin was murdered.
The post-mortem examination revealed bruising on Erin's head, consistent with Erin being beaten with a frying pan, such as the red frying pan found at the crime scene. The examination also revealed deep cuts, which severed muscle and arteries and went almost to the bone on Erin's neck and wrists. The cuts could have been made by kitchen knives, such as those found in the townhouse. Toxicology testing indicated that Erin consumed lethal doses of over-the-counter medications prior to her death. There was evidence of blood aspirated in her lungs and bloody water in her stomach. It was opined that Erin died as a result of being beaten, poisoned, cut, and drowned. The final cause of death was drowning.
Defendant presented the testimony of an Aurora police officer who testified that she obtained defendant's key ring on March 29, 2004, and went to the townhouse to test the keys. None of defendant's keys opened any door to the home.
Erin's father, Edreick, testified that Erin once told her step-sister that she had been gang raped by members of the Gangster Disciples street gang. Edreick spoke to Erin about the alleged gang rape, but she was evasive and Edreick never got an answer as to whether it actually happened. Edreick later learned from Valerie that Erin was not raped by gang members.
Defendant's sister and her fiancee testified to defendant's reputation as a law-abiding, nonviolent person.
The jury found defendant guilty of first degree murder and also found that the murder was accompanied by exceptionally brutal or heinous conduct indicative of wanton cruelty. The matter proceeded to the death-eligibility portion of the sentencing phase. Defendant was found death-eligible on two grounds: that he killed the victim to prevent her from pursuing rape charges against him (720 ILCS 5/9--1(b)(8) (West 2004)) and that the murder was committed in a cold, calculated, and premeditated manner pursuant to a preconceived plan, scheme, or design (720 ILCS 5/9--1(b)(11) (West 2004)). After hearing evidence in aggravation and mitigation, the jury sentenced defendant to death.
Defendant appealed directly to this court. 134 Ill. 2d R. 603. He now asserts that the trial court made numerous errors that require reversal of his conviction and sentence. Defendant maintains that the trial court erred during the guilt phase of trial by denying his request for a continuance, and then denying his request to reopen proofs to refute surprise testimony offered by a State's expert; accepting a witness with insufficient qualifications as an expert in the field of fabric and pattern impressions; denying defendant's motion to suppress a videotaped interview with police; applying the wrong standard of review when considering the State's forfeiture-bywrongdoing argument; admitting other-crimes evidence; allowing the medical examiner to testify to the results of toxicology testing he did not perform; refusing defendant's request for a separate hearing to determine the presence of a sentence-enhancing factor; denying defendant's request for a special jury instruction related to the sentence-enhancing factor; and denying defendant's motion for a mistrial based on the fact that he was wearing a Department of Corrections wristband during a portion of the jury selection. Defendant further asserts that he is entitled to a new sentencing hearing because toxicology evidence, improperly admitted during the guilt phase, prejudiced the jury's eligibility finding; the State committed error when it made a religious reference during argument; and the court erred when it allowed the jury to hear an audiotape of a telephone message left by the victim for her mother. Additionally, defendant contends that the Illinois death penalty is unconstitutional for several reasons.
We address these claims in turn.
Testimony of State's DNA Expert Defendant first asserts that the trial court erred in denying his request for a continuance to obtain an expert to refute certain testimony of the State's DNA expert, Tamara Camp, which was not disclosed to the defense prior to trial. Defendant also asserts that the trial court compounded this error when it refused to allow defendant to reopen his case to present expert testimony on this issue after defendant obtained an expert without the benefit of a continuance. Embedded in these claims is defendant's contention that the State committed a discovery violation at trial which should have been acknowledged and appropriately sanctioned by the trial court. Defendant maintains that these errors amounted to a violation of his constitutional right to due process of law, the right to present a defense, the right to compulsory process, and his right to effective assistance of counsel.
The State responds that the trial court's rejection of defendant's discovery-violation argument and its denial of defendant's motion for a continuance and motion to reopen his case were entirely proper because defendant was aware of the evidence in question prior to trial and failed to diligently seek an expert to rebut it. Additionally, the State argues that the evidence that would have been elicited from defendant's expert was properly excluded because it was not material.
Before addressing the merits of defendant's claim, we consider the circumstances surrounding Camp's testimony.
Camp is a forensic scientist employed by the Du Page County Crime Laboratory, specializing in forensic biology and DNA. Prior to trial, Camp generated a report that was tendered to the defense in discovery. The report indicated that three swabs, labeled 10B1, 10B2, and 10B3,*fn1 were taken from a piece of ceramic tile. The piece of tile was removed from the bathroom where Erin's body was found, specifically, the area of the bathroom floor just inside the doorway. At trial, Camp explained that an area in the center of the tile contained a very clear ridge impression that was suitable for latent print analysis. That ridge impression was positively identified as defendant's footprint. Directly adjacent to the area containing defendant's footprint was another ridge impression. The second ridge impression was of a lesser visual quality and was less suitable for latent print comparison. However, that area of the tile had turned an "intense" purple color after being treated with LCV. Swab 10B1 was taken from the intensely purple portion of the tile containing the blurred ridge impression. Camp explained that she swabbed this portion of the tile because the intense purple reaction indicated that more body fluid was located in that area. Also, she wanted to preserve the area of the tile that contained the clear ridge impression for further analysis.
Camp's report stated that a "limited portion" of swab 10B1 was "negative to a presumptive test for the presence of blood." However, DNA was extracted from that swab and was consistent with having originated from Erin. Camp did not offer any opinion as to why a portion of the swab was negative for the presence of blood in her report.
During her trial testimony, Camp explained that she engages in a multistep process when conducting DNA analysis. First, before beginning DNA analysis, Camp tests a stain to determine whether it is "possible blood or semen or saliva or some other body fluid." If a body fluid is detected, the next step is to extract DNA from the body fluid and quantify the amount of DNA that has been extracted. The final step would include a genetic analysis to determine a DNA profile. Within that context, Camp discussed the process she used to evaluate swab 10B1.
As stated, swab 10B1 was taken from a portion of tile that contained a blurred ridge impression and was intensely purple in color from having reacted with LCV. The reaction from the LCV test indicated that the area of the tile swabbed was presumptively positive for the presence of blood. Despite the positive LCV test, Camp tested the swab with TMB, a more sensitive and more reliable presumptive test for the presence of blood, as her protocol dictates. The TMB test was negative, indicating that the substance swabbed was not blood. Camp was directly asked by the State why the test was negative. Camp explained, "both tests have the same chemical reaction. I would expect that perhaps the leuco crystal violet [LCV] catalyzed all of the hem[oglobin] and therefore there was none left which would be able to react to the TMB test." Camp opined that the substance she swabbed and tested for DNA was "apparent blood which is consistent with having originated from Erin Justice." Camp explained that the words "apparent blood" are used because there is no test available to her that can actually confirm that a substance is blood.
Camp was then asked, "With respect to the area that LeRoy Keith [expert in latent print identification] used to make his analysis of that ridge detail [footprint on the tile], have you formulated a conclusion?" Camp responded that she did not understand the question. The prosecutor then asked, "To a reasonable degree of forensic biology, that area that is observed on the tile, what is your conclusion regarding that?" Camp replied, "Well, it is all one stain." The State then asked, "So, the areas where Mr. Keith indicated to you that he used the ridge details to make identification [of defendant's footprint], do you have an opinion as to what that substance is?" Camp stated, "Again, it's apparent blood which is consistent with having originated from Erin Justice."
In sum, despite the negative TMB test, Camp testified that the substance on swab 10BI was "apparent blood." She further testified that the substance swabbed was part of "one stain" which also contained defendant's footprint. Accordingly, the conclusion to be drawn from Camp's testimony was that defendant's footprint was made with Erin's blood.
Despite the negative TMB test, Camp opined that the substance on the portion of the tile containing defendant's footprint was blood because the tile tested positive when treated with LCV. Camp explained, "From the first day that I analyzed the tile it was apparent that there was blood on the tile. And after my DNA analysis I concluded that the apparent blood was consistent with having originated from Erin Justice." She acknowledged that the TMB test did generate a positive result on another area of the tile that was previously tested with LCV, which seemed contrary to her opinion that the LCV absorbs all the hemoglobin in the blood, thus causing the TMB test to be negative.
The defense began its cross-examination of Camp by asking if she included her opinion that the negative TMB finding could still indicate blood in any of the reports she generated in this case. Camp replied that she had not done so. The defense then asked, "You arrived at that opinion after talking to the prosecution in recent days, did you not?" Camp replied, "Well, not necessarily, no." The State objected and a sidebar was held where the State asserted that defense counsel was "well aware *** that the results in this examination in total is going to be that this Defendant's footprint was in Erin Justice's blood. We filed numerous documents on that." The State did not have those filings in its immediate possession, but nevertheless asked the trial court to take judicial notice that the information in question had been disclosed. The State also requested that the jury be apprised of the contents of the filings containing the disclosure. The court overruled the objection and cross-examination resumed.
Prior to redirect examination, the State reasserted that it previously disclosed Camp's opinion that the substance on the tile was blood. The trial court asked the State to find the relevant document, and a recess was taken. After the recess, the State advised the trial court that it could not find the report where Camp disclosed the information at issue. The State did provide a memorandum of law, attached to its "Motion to Declare Forfeiture by Wrongdoing," where the State represented that defendant's footprint was found on a bathroom tile in the victim's blood. However, the State's support for that position was a two-page report authored by LeRoy Keith, the latent print expert.
In response, defense counsel orally moved to strike the contested testimony and requested that the State's notice to seek the death penalty be stricken on the basis that the State committed a discovery ...