Appeal from the Circuit Court of Cook County. No. 99 CR 19684 The Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice Cahill concurred in the judgment and opinion.
Justice R. E. Gordon dissented, with opinion.
¶ 1 On retrial, defendant Edward Mitchell was convicted by a jury of first degree murder and sentenced to 100 years in prison. The defendant challenges, on various grounds, the fingerprint evidence that placed the defendant in the garage where the murder weapon was recovered. He also contends the circuit court erred in rejecting his request to further impeach a material and unavailable witness, whose testimony from the defendant's first trial was read to the jury. Finally, he challenges the testimony of the State's DNA expert. The circuit court did not err in any of its rulings. We affirm.
¶ 3 On August 21, 1999, the defendant and co-defendant Kevin Johnson were charged by indictment with first degree murder of Paulette Peake, age eight. Based on Paulette's age, the State filed notice of intent to seek an extended sentence upon conviction. Paulette was shot shortly before 9:30 p.m. on July 31, 1999, while she stood in the checkout line of Pat's Food Store, a neighborhood grocery store located at the corner of 79th Street and Sangamon Avenue in Chicago. Co-defendant Johnson pled guilty to conspiracy to commit murder, attempted aggravated battery, and armed violence. In exchange for his testimony at the defendant's trial, Johnson received a sentence of 20 years, with day-for-day credit.
¶ 4 The defendant was originally convicted by a jury in 2002. This court ruled the defendant's videotaped confession was involuntary and remanded for a new trial. People v. Mitchell, 354 Ill. App. 3d 396, 405 (2004). The Illinois Supreme Court denied the State's petition for leave to appeal, but directed this court vacate the decision and reconsider in light of People v. Willis, 215 Ill. 2d 517 (2005). People v. Mitchell, 216 Ill. 2d 717 (2005). Upon reconsideration, this court again remanded for a new trial based on the same ground. People v. Mitchell, 366 Ill. App. 3d 1044 (2006).
¶ 5 Evidence at Second Trial
¶ 6 As the State's first witness, co-defendant Kevin Johnson claimed he was at home all evening until immediately prior to the shooting on July 31, 1999. Johnson testified he and the defendant were shot at the day before near the grocery store, which the defendant denied in his testimony. The store surveillance video showed a rival gang member by the nickname of "Toppy" near the store at the time of the shooting. Johnson considered Toppy to be an "enemy" even though Toppy, the defendant and Johnson were members of the same gang. Johnson testified he saw the defendant shoot the rifle in the direction of the store and Toppy.
¶ 7 Three neighborhood residents also testified for the State. Mary Lewis testified she saw Toppy walking toward the store just before she heard gunfire. Mary Lewis testified she saw the defendant, the co-defendant, and a third man walking back and forth near the store. According to her testimony, Mary Lewis did not see the actual shooting, though a defense investigator testified Mary Lewis told him she saw shots being fired at Toppy. Marie Coffee testified she saw co-defendant Johnson running in the alley shortly after the gunfire. Demetrius Jones could not be located at the time of the defendant's second trial. On the State's motion, the circuit court ruled Jones a material witness that was unavailable to testify. The court permitted a law clerk to read Jones' testimony from the first trial to the jury.
¶ 8 At the defendant's first trial in 2002, Jones testified he was 29 years old and attending Knoxville College in Knoxville, Tennessee. When not attending college, he lived with his mother and sister on Sangamon Avenue, near the grocery store. Jones testified he was not a member of a gang, but he knew the defendant was a member of the Vice Lords gang. Jones testified that in July 1999, he was "in the Naval Academy at Great Lakes, [Wisconsin]." In a follow-up question, he clarified he was at the naval boot camp at Great Lakes. He stated he received a pass to visit his mother and sister. At approximately 9 p.m., he went with his mother to meet a family friend at a lounge at 79th Street and Morgan Avenue, one block west of Sangamon. After leaving the lounge, he and his mother walked east toward the grocery store.
As they were walking, Jones looked in the direction of the school that was diagonally across 79th Street from the grocery store, where he saw the defendant with a younger man. He described the clothing the defendant was wearing. Jones and his mother stepped into the grocery store to briefly greet the owner. Upon leaving the store, Jones saw the defendant still near the school.
¶ 9 As Jones and his mother walked south to her house on Sangamon, Jones greeted Toppy and stopped to talk with a friend named Linda. While Jones was talking with Linda, he heard 6 to 10 gunshots coming from near the school. Jones ducked between a parked vehicle and a tree until the shooting stopped. During the shooting, he saw his mother jogging toward her house. He then looked in the direction of the school and saw the defendant with a rifle. Jones testified he was familiar from his military training with the type of rifle he observed. At the time Jones saw the defendant with the rifle, the defendant was wearing a black or dark blue jacket, different clothing than when he first saw him. Jones observed the defendant placed the rifle in his jacket with the barrel pointing down, but the barrel was still visible. He next observed the defendant run east, down an alley immediately to the south of the school. Jones then ran into the grocery store, where he saw a little girl had been injured. When he exited the store, the police were on the scene and Jones observed an officer recover a bullet casing. Jones also saw Mary Lewis in the crowd that had gathered. Jones attempted to talk to an officer about what he had seen, but the officer was too absorbed in crowd control so he went home. The following day, the police were in the area. Jones told a police investigator what he saw the previous day and provided his telephone number. He testified that on August 4, 1999, he was transported by Chicago police officers from the Great Lakes naval base to the police station at Area 2. At Area 2, Jones identified the defendant in a lineup. During his testimony, Jones identified a rifle and jacket as similar to those in possession of the defendant after the shooting. Jones testified he viewed the store's surveillance tape that showed he and his mother entering and exiting the store. The tape also depicted Toppy entering and exiting the store. The tape showed Jones entering the store once again after the shooting when he saw the injured girl. On cross-examination, Jones denied he told Area 2 detectives that when the gunfire started, he pushed his mother into an alley.
¶ 10 Illinois State Police DNA analyst Harold Johnson was qualified as an expert. The defendant unsuccessfully sought to exclude the expert's testimony because "it was too inconclusive." Expert Johnson testified he extracted DNA from swabs taken of a pair of gloves recovered from the same garage where the rifle was recovered. The swabs contained a mixture of human DNA profiles from at least three individuals. He testified that to positively identify the contributor of DNA, he would need to locate "13 specific segments of the DNA" or loci. He testified he was able to obtain a profile of only four loci of three different individuals from the swabs. DNA expert Johnson opined that "1 in 71 black, 1 in 71 white and 1 in 82 Hispanic unrelated individuals cannot be excluded from having contributed to this mixture of DNA profiles." Johnson concluded the defendant "could not be excluded as a donor to that mixture." He testified his conclusion was based solely on his comparison of the 4-loci profile. On cross-examination, expert Johnson testified a 13-loci profile is necessary to make a positive identification because "13 markers *** were chosen by the FBI." He clarified that while the mixture was from at least three individuals, the mixture could have come from more than three individuals. He admitted that it was "entirely possible that twenty people wore those gloves and didn't leave DNA behind."
¶ 11 Chicago police detective Arteaga testified he determined that the bullet that struck Paulette was fired from 7915 S. Sangamon based on where Paulette was standing when she was hit by the bullet. The address is the first house that abuts the alley that runs east and west and separates the school from the residences. The house at 7915 had bushes in front. In the bushes, Arteaga recovered five 9-millimeter Lugar cartridge cases and three 40-caliber Smith and Wesson cartridge cases. Arteaga testified he was "certain" the bullet that killed Paulette was the 9-millimeter bullet found inside the store and not the 40-caliber bullet found outside the store. Arteaga admitted, however, it was possible that the bullets could have been kicked around in the chaos following the shooting. A "Diagram of the Area of 79th & Sangamon Av.," depicting the grocery store, the school, the streets just east and west, and the addresses of houses on the block south of 79th Street, was admitted as State's exhibit 43.
¶ 12 On August 1, 1999, Arteaga went to a garage located at the rear of 7927 S. Sangamon. According to co-defendant Johnson, the garage was where the Vice Lord street gang, the gang he and the defendant belonged to, stored weapons and ammunition. A black HIPoint, 9-millimeter semiautomatic rifle with a metal barrel was recovered from the rear seat of a stripped-down car in the garage. The parties stipulated that the 9-millimeter bullet recovered at the grocery store and the five cartridge cases found in the bushes near the school were fired from the recovered rifle. Arteaga also found a blue windbreaker, black leather gloves, and a hat in the garage, along with numerous boxes of ammunition and a pane of glass.
¶ 13 Michael Kopina, an expert in gunshot residue testing, testified he tested the leather gloves and windbreaker recovered from the garage. To a reasonable degree of scientific certainty, expert Kopina found gunshot residue on both the gloves and left and right cuffs of the jacket.
¶ 14 The circuit court accepted Heather Adams Siemer as an expert in fingerprint examination, over the defendant's objection. Seimer testified to her analysis of latent prints from two items recovered from the garage where the rifle and clothing were discovered. A latent print was "developed" from an ammunition box, displayed as State's exhibit 67. The latent print on the box was photographed, which the State displayed as exhibit 85. Seimer also testified regarding two "lifts" of latent prints from the pane of glass, displayed in State's exhibit 74. The photograph of the lift was displayed in State's exhibit 87. As lifts, the latent prints were capable of immediate comparison to the defendant's known prints, displayed as State's exhibit 79. As to each latent print, Siemer examined the latent impression or lift "for certain things like pattern type, ridge flow, and things such as this. *** [Like] ridges that end, ridges that split into two, and short ridges or dots. I took that information from the latent [and] went along to each of the inked prints to see if I had a match." The two latent prints matched the defendant's prints from his number three finger and number eight finger. Seimer explained to the jury her comparison process with the aid of State's exhibit 86, "a court chart of the latent print from the lift." Five comparison points were marked on the chart. Siemer testified she quickly found "13 points of comparison," but did not mark all 13 points on the chart because it would "be kind messy with all the lines and stuff like that." On cross-examination, expert Siemer admitted she was unfamiliar with "ACE-V," which defense counsel characterized as "the standard method of doing fingerprint comparison now that's used by the FBI." Expert Siemer admitted she made no notes of her comparison of the latent and known fingerprints. Expert Siemer made no examination of the ammunition box for fingerprints belonging to anyone else. "Once I identified Mr. Mitchell I deferred processing." She never examined the glass pane directly.
¶ 15 The medical examiner testified Paulette was killed by a single gunshot that struck her chest and exited her back.
¶ 16 After the defendant's motion for a directed verdict was denied, three witnesses testified in the defendant's case-in-chief, including the defendant. The defendant admitted he was arrested, on the day of the shooting, around 9:30 p.m. near 80th Street and Peoria, one block east of Sangamon. The defendant denied firing a gun near the school. He admitted he was a member of the Vice Lord street gang and hung out with other gang members on the 7900 block of South Sangamon. During cross-examination, the defendant admitted hanging out in the "barn" more than 10 times. He recalled touching things in the barn when items were relocated there. The items in the barn might "possibly" have included ammunition boxes.
¶ 17 Following the State's rebuttal, the defense made an offer of proof to impeach Demetrius Jones' testimony beyond the transcript read to the jury. The defense also moved to strike the testimony of Harold Johnson, contending he was not qualified to give testimony on statistical analysis. The circuit court rejected the proposed impeachment of Jones and denied the motion to strike.
¶ 18 The jury found the defendant guilty of first degree murder after about 1 hour and 15 minutes of deliberation. This appeal followed.
¶ 20 The defendant asserts three overarching issues on appeal. He challenges much of the fingerprint evidence and the DNA evidence. He also contends that the circuit court erred in rejecting the defendant's offer of proof to impeach the unavailable witness with "numerous prior inconsistent statements."
¶ 21 Fingerprint Evidence
¶ 22 The defendant contends the testimony of the fingerprint expert lacked an adequate foundation, which opened the expert's opinion to a challenge at a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. 1923).
¶ 24 The defendant cites a single case, People v. Safford, 392 Ill. App. 3d 212 (2009), to support his claim that the fingerprint expert's opinion lacked an adequate foundation. The defendant asserts, "Safford is on all fours with the instant case." The State counters that "Safford is completely distinguishable." We agree with the State.
¶ 25 In Safford, we ruled that "[t]he trial court erred in admitting the testimony of the fingerprint identification expert where the foundation requirements were not met." Id. at 230-31. The fingerprint expert, examiner Cutro, "testified he looks at three levels of detail of each fingerprint undergoing an analysis, explaining what he looks for at each level." Id. at 220. Yet, as "the State conceded[,] no 'Level One, Level Two, or Level Three' detail of the comparison process involving the latent print and the defendant's known print was ever testified to by examiner Cutro." Id. at 221. The State's concession was consistent with our reading of the record. "We find no testimony by examiner Cutro as to how he arrived at his conclusion that the latent print in question could only belong to the defendant." Id. at 221. Ultimately, "[w]e agree[d] with the defendant's argument that although the scientific community is divided as to how many points of comparison are needed to make a positive identification, the proffered expert must be subject to challenge on the analysis he undertook to arrive at his conclusion, regardless of the method he followed. Otherwise, the basis for making a positive identification between the latent and exemplar prints is not subject to scrutiny." Id. at 225. While examiner Cutro testified to the "general process he follow[ed] in fingerprint identification," he was unable to describe what he saw in common between the latent print and the known print, which made his identification of latent print as the defendant's print beyond challenge during cross-examination. Id. at 220, 223. We reasoned that fingerprint analysis involves the comparison of "unique, distinctive characteristics of the latent print" to a known print of the defendant to warrant the conclusion that the latent print "belonged to no one other than the defendant," a conclusion the expert must be able to explain. Id. at 225, 228.*fn1 "[Examiner] Cutro never testified to any number of points of comparison that he found between the latent print from the patrol car and the defendant's print." Id. at 217.
¶ 26 The facts in this case stand in contrast to the fingerprint examiner's testimony in Safford. Here, examiner Siemer explained the procedure she followed to make a comparison of the latent prints and the defendant's known prints. Examiner Siemer stated she did a side-by-side comparison of the latent prints and the defendant's known sample, looking for "ridge type, pattern flow, and things such as this. The fine details. The ridges that end, split into two, short ridges or dots." Following this side-by-side comparison, she identified the latent prints on the ammunition box as matching the defendant's right middle finger. Regarding the "lifted" print from the glass pane, examiner Siemer identified the defendant's left middle finger as matching that print. Examiner Siemer stepped into the well of the courtroom to demonstrate to the jury on State's exhibit 86 and exhibit 38, the five specific points of comparison between the lifted print and the defendant's known print. Examiner Siemer testified she "quickly" found 13 points of comparison between the two prints.
¶ 27 Thus, the situation in Safford, where no points of comparison were ever identified, is not present in this case where examiner Siemer testified to 13. The points of comparison, which examiner Siemer identified, provided ample grounds to challenge her opinion that the recovered prints matched the known prints of the defendant had the defendant elected to do so.
¶ 28 Examiner Siemer's opinion that the defendant's fingerprints were found on items in the barn leads us to the last distinction between the instant case and Safford. In Safford, the fingerprint expert placed the defendant at the patrol car from where the shooting took place. "[The fingerprint expert] determined that one latent print found on the lower left corner of the hood of Officer Marcano's patrol car matched the inked print card of the defendant." Id. at 216. If this fingerprint evidence was trustworthy and reliable, then it destroyed the defendant's otherwise strong alibi defense provided by three "unbiased witnesses." Id. at 229. In our adversarial system of justice, meaningful cross-examination of examiner Cutro's opinion that the defendant placed his hands on the patrol car was essential to "place confidence in the outcome of [the] trial." Id. at 224. "A jury may be so swayed by such evidence that strong alibi witnesses have little chance of being found credible when fingerprint evidence points to the defendant being present at the scene of the crime." Id. at 225. In the instant case, however, the defendant's fingerprints were discovered on objects in the garage that the defendant acknowledged was controlled by his gang. During his testimony, the defendant admitted that he may very well have touched items in the garage during his more than 10 visits to the garage. As such, the discovery of the defendant's prints on two items recovered from the garage was hardly unexpected. Unlike in Safford, the fingerprint evidence in the instant case did not provide direct evidence of the defendant's guilt.
¶ 29 Safford is neither legal authority for the defendant's claim that an evidentiary foundation was lacking for examiner Siemer's expert testimony, nor factually similar regarding the significance of the fingerprint examiner's testimony.
¶ 31 The defendant's contention that he was entitled to a Frye hearing to challenge examiner Siemer's methodology used in her comparison of the latent and known prints is also unavailing because fingerprint analysis is neither novel nor new. Until our supreme court decides otherwise, as it did with regard to the HGN evidence in People v. McKown, 226 Ill. 2d 245, 257 (2007), there is no authority in this state for the defendant's claim that the circuit court erred in rejecting the defendant's motion for a Frye hearing on the admissibility of fingerprint evidence. Nor are we persuaded to provide such authority in this case.
¶ 33 In his main brief, the defendant premises his challenge to the DNA testimony on the following contention. "The State's forensic DNA analyst Harold Johnson, who was qualified as an expert in this field, testified that Mitchell could not be excluded from having contributed DNA to a pair of gloves that allegedly were worn by the shooter." The defendant sought to exclude this testimony before the trial court on the basis that "[i]t's not an identification of Mr. Mitchell by any stretch of the imagination. Falls far below the FBI standards to make an identification."
¶ 34 We do not disagree with the defendant's statement. We note only that DNA expert Johnson never testified that the defendant's DNA was found on the pair of gloves. Expert Johnson testified that the defendant could not be excluded as having contributed to the DNA mixture discovered in the gloves, just as 1 in 71, or 10 in 710, or 100 in 7,100 African Americans could not be excluded. The DNA expert's testimony did not place the defendant's DNA in the gloves; the defendant's DNA simply could not be excluded from the profile developed from the mixture of DNA recovered from ...