APPEAL FROM THECIRCUIT COURT OF ) COOK COUNTY No. 08 CR 4658 HONORABLE WILLIAM MOORE, JUDGE PRESIDING.
The opinion of the court was delivered by: Presiding Justice Steele
PRESIDING JUSTICE STEELE delivered the judgment of the court, with opinion. Justices Neville and Salone concurred in the judgment and the opinion.
¶ 1 Following a jury trial in the circuit court of Cook County, defendant William Moore was found guilty of the murder and aggravated criminal sexual assault of Magdelena Idzikowska. The trial judge sentenced Moore to concurrent terms of natural life and 30 years in prison on these convictions. On appeal, Moore argues: (1) the evidence was insufficient to convict; (2) he was denied due process of law by the trial court's sua sponte decision to give all of the police interrogation video to the jury; (3) he received ineffective assistance of trial counsel, who failed to raise various objections to the admission of the interrogation video; (4) he was denied the right to confront the witnesses against him where the DNA evidence was introduced through the testimony of a supervisor who did not conduct the DNA analysis; (5) the trial court failed to adjudicate his claim of racial discrimination in jury selection; and (6) he received ineffective assistance of trial counsel, who referred to an alternate suspect in the opening statement, but should have known the evidence would be barred. We conclude defense counsel's unreasonable failure to object to the admission of other crimes evidence on the interrogation digital video disks (DVDs) created a reasonable probability that the outcome of the trial would have been different and that the result of the proceeding is unreliable. For the following reasons, we reverse and remand the case for a new trial.
¶ 3 The record on appeal discloses the following facts. On March 4, 2008, Moore was indicted for the murder and aggravated criminal sexual assault of Magdelena between November 24-25, 2001. In June 2009, Moore filed a motion to suppress statements he made to the police. During a status hearing on the motion, the parties informed the trial judge Moore's statements were on DVDs and agreed the trial judge could review them prior to a hearing on the motion. In July 2009, the State provided copies of the DVDs to the trial judge, noting the police interrogation of Moore extended over two days and eight or nine hours of questioning. In August 2009, the trial judge returned the DVDs to the State. The trial judge stated he spent two days reviewing the DVDs, which he indicated contained seven hours of interrogation.
¶ 4 Later in August 2009, during another status hearing on the motion, defense counsel and the trial judge both characterized Moore's statements on the DVDs as consistent denials of various allegations against him. Defense counsel informed the trial judge the motion to suppress statements was primarily concerned with an allegedly inculpatory statement made when Chicago police took Moore to a hospital. The State told the trial judge that it might seek to offer Moore's denials, but not any statement Moore made outside the room where the DVDs were recorded because "[n]othing is documented." Defense counsel told the trial judge that as a matter of trial strategy, she would not seek to suppress the DVDs, although the State may view Moore's denials as false exculpatory statements. The trial court asked Moore whether he understood and agreed with defense counsel's decision to withdraw the motion to suppress statements; Moore said he did.
¶ 5 At trial, Wanda Idzikowska testified her daughter Magdelena had lived with her in Chicago and worked as an interpreter and clerk at Union Health Service (UHS). Wanda would share Magdelena's car, a Nissan Altima, and occasionally smoke cigarettes while in the car. Wanda last saw Magdelena at approximately 11 p.m. on November 24, 2001. According to Wanda, Magdelena was dating a man named Juwan at the time.
¶ 6 Israel Gonzalez testified that on November 25, 2001, he worked at a gas station and mini-mart at Carroll and Ogden in Chicago. As he drove to work that morning, Gonzalez noticed a green Nissan Altima parked on Carroll, approximately a half block east of the station. Gonzalez testified a young lady previously brought the car to the station for service. The car door was open and two feet were hanging out. Gonzalez thought someone, perhaps drunk, had passed out in the car.
¶ 7 After Gonzalez opened the gas station, he was waved over to the car by a man named Claude Howard, who worked at a nearby mill.*fn1 Gonzalez saw the naked body of a woman in the backseat of the car, with the legs sticking out and covered in blood from the chest up. Gonzalez ran back to the gas station and dialed 911. The police arrived 5 to 10 minutes later.
¶ 8 Chicago police forensic investigator Steven Strzpek testified that he and his partner arrived at the scene at approximately 10 a.m. The area around the Nissan was already roped off. According to Strzpek, the body in the backseat was naked, except the jeans and underwear were wrapped around her ankles and she was still wearing one boot. A bra was entangled in the jeans.
¶ 9 Strzpek also testified the body had gunshot wounds to the face, chest and leg. Strzpek observed cartridges inside and outside the car, indicating a semiautomatic pistol was used in the killing. According to Strzpek, investigators bagged the victim's hands to preserve trace or DNA evidence under the fingernails, photographed the scene, took blood swabs from the backseat under the victim, and collected hair standards and an acrylic fingernail from the floor of the car.
¶ 10 Strzpek further testified investigators recovered cartridges inside and outside the car, as well as bullet fragments from the rear passenger door and the trunk. The rear driver-side window of the car was shattered. Strzpek observed the victim was wearing a ring and bracelet on her bloody hand. No coat, blouse, purse, or identification was found at the scene.
¶ 11 Dr. Kendall Crowns, a medical examiner, performed the autopsy on Magdelena's body. Dr. Crowns testified Magdelena died of multiple gunshot wounds and there was evidence of close-range fire. The toxicology results were negative for heroin, cocaine and alcohol. Vaginal and rectal swabs were taken and tested for seminal fluid. Dr. Crowns added that the presence of semen in a rectal swab did not necessarily indicate anal sex, but could be an artifact of the swabbing process, or the movement of semen due to gravity. There was no evidence of vaginal or rectal trauma or genital bruising. Dr. Crowns could not say whether a sexual assault occurred, but testified these findings did not preclude the conclusion that a forcible sexual assault occurred.
¶ 12 Douglas Ridolfi, a forensic scientist with the Illinois State Police, determined there was semen on the vaginal and rectal swabs. Ridolfi added that sexual intercourse could have occurred anytime within three days of the victim's death, perhaps earlier. Karen Abbinanti, another forensic scientist with the Illinois State Police, testified the underwear and blue jeans recovered from the car tested negative for semen. Abbinanti added that the underwear did not appear to be torn.
¶ 13 Dr. Robin Cotton, an associate professor and director of the biomedical forensic sciences program at the Boston University School of Medicine, testified that from 1988 to 2006, she was the lab director for Orchid Cellmark (Cellmark), a private DNA testing facility. Dr. Cotton was responsible for approving all lab protocols, reviewed cases, signed case reports and did technical review. During her tenure at Cellmark, the lab had a contract with the Illinois State Forensic Services Lab to test evidence in cases where no suspect had been identified and no prior tests had been performed.
¶ 14 Dr. Cotton testified that in 2002 and 2004, Cellmark analysts conducted DNA analysis on the vaginal and rectal swabs and generated profiles for the victim and the sperm fraction of the samples. Analysts compared the DNA from the semen sample to that of seven men, including Juwan Spurill, but not Moore. No match was found. Analysts also analyzed DNA from cigarette butts recovered from the car and found one matched Spurill, one matched Magdelena, and one matched an unknown female. Dr. Cotton did not personally conduct or observe the DNA testing.
¶ 15 Tamara Colon testified that in November 2001, she had been working with Magdelena at UHS for approximately a year. She called Magdelena "Maggie." Colon met Moore in 1997 or 1998, when they both worked for Cub Foods at Elston and Logan in Chicago. Colon continued to socialize with Moore after she left Cub Foods. Colon stated Moore had never been inappropriate with her.
¶ 16 Colon testified that in October 2001, Moore visited her at work, bringing a card around "Sweetest Day," although the two never had a romantic relationship. Colon introduced Moore to Magdelena. At lunchtime, the three went for a ride in Moore's car. According to Colon, Moore and Maggie talked during the ride, but she did not see them exchange telephone numbers. Afterward, Colon and Moore never discussed Magdelena until after she was found dead, at which time Moore expressed sorrow to Colon. Moore and Colon did not speak as frequently thereafter.
¶ 17 Colon further testified she told the police Magdelena needed money to move out of her parents' house. Colon also told the police Magdelena could be flirtatious with men ...