Appeal from the Circuit Court of Cook County. No. 04 CR 16608 Honorable John J. Fleming, )Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justice Joseph Gordon concurred in the judgment and opinion.
Justice McBride dissented, with opinion.
¶ 1 This is a case of first impression. This case involves a criminal defendant's pretrial motion for a DNA database search. As far as we know, this is the first case to review a trial court's denial of a motion governed by section 116-5 of the Illinois Code of Criminal Procedure of 1963, the Illinois statute that permits criminal defendants to seek pretrial DNA database searches. 725 ILCS 5/116-5 (West 2006). In addition, "Illinois is one of the few states in the nation to provide a statutory framework" for a criminal defendant who seeks pretrial access to the state's DNA database. E. Murphy, The New Forensics: Criminal Justice, False Certainty & the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 790-91 (2007). Compare with State v. Dwyer, 2009 ME 127, ¶16, 985 A.2d 469 (2009) (since there is no specific statute in Maine authorizing pretrial DNA database searches, a pretrial search motion was decided solely on general evidentiary principles).
¶ 2 Defendant Harvey Wright was prosecuted almost entirely on the basis of a cold-case DNA match. He was convicted of aggravated criminal sexual assault after a jury trial and sentenced to life in prison, although the victim could not identify him as the perpetrator, and there was no other physical evidence linking him to the crime.
¶ 3 Two DNA samples were recovered: from the victim's underwear; and from the victim's rectal swab. The State's forensic expert testified that only the rectal sample yielded a "match" to defendant's DNA. However, the analysis of the rectal swabs was done on the basis of only 9 loci, instead of the more standard 13 loci. For the underwear, the analysis was done on the basis of 13 loci; but from the analysis of the underwear, the expert could not find a "match"; he could conclude only that defendant could not be excluded as a contributor.
¶ 4 On appeal, defendant claims that the trial court erred by denying his pretrial motion to have the Illinois Department of State Police determine the number of nine-loci DNA matches in its offender database. Defendant also makes several other claims, including that the State failed to prove beyond a reasonable doubt that defendant "acted in such a manner as to threaten or endanger the life" of the alleged victim. 720 ILCS 5/12-14(a)(3) (West 1998). In its appellate brief, the State concedes: "[t]he People agree that they failed to prove beyond a reasonable doubt the aggravating factor alleged."
¶ 5 For the reasons stated below, we find that the trial court erred; and we reverse and remand for a new trial.
¶ 7 1. Defendant's Pretrial DNA Motion
¶ 8 On June 12, 2006, defendant moved to exclude any DNA evidence obtained from the State's analysis of the victim's rectal swabs. Defendant's motion stated that the analysis of the rectal swabs was done on the basis of only 9 loci; and DNA analysis is typically done on the basis of 13 loci. His motion stated that, normally, "two kits" are used "to develop the DNA profile," and the two kits are called "Profiler" and "Cofiler." Profiler develops "nine locations on the human genome, and Cofiler can develop the four additional locations necessary in developing a full profile." Defendant's motion stated that, "[a]ccording to the paperwork in the case file," the DNA extracted from the rectal swabs was quantified and amplified using both Profiler and Cofiler, but "there is no electronic data or paper printouts from any Cofiler" runs.
¶ 9 Defendant's motion stated that Michael DeFranco, the forensic scientist who extracted the DNA from the rectal swabs, left the employ of the Illinois State Police, and Edgar Jove, the new scientist assigned to the case, "noticed this discrepancy in the Cofiler materials, and decided to get the DNA extract in the case to reamplify the DNA in Cofiler for the rectal swabs." However, Jove "located the tube where the extract should have been, and there was nothing in the tube." Later at trial, Jove testified that there were no rectal swabs left to test, because "[a]ll four swabs were consumed in the original extraction."
¶ 10 Defendant moved to exclude the DNA evidence from the rectal swabs, pursuant to Illinois Supreme Court Rule 417(b)(I) (eff. Mar. 1, 2001), which requires the proponent of DNA evidence to provide to the adverse party copies of "the case file," including all reports and data relating to the testing performed. Since the State failed to produce the data from DeFranco's Cofiler testing of the rectal swabs, defendant sought to exclude any DNA evidence obtained from the rectal swabs.
¶ 11 In the alternative, defendant's motion asked that, if the trial court ruled to admit the nine-loci evidence, then it should order the State to determine how many nine-loci "matches there are in [the State's] convicted database." In support of its alternative argument, defendant cited an Arizona study, stating:
"[A] recent examination of Arizona's convicted offender database revealed 120 nine location matches between two inmates in a database of 65,493 offenders. In other words, in Arizona there is a 1 in 700 chance that two individuals will match up at nine locations."
Defendant argued that in order to have "a match," the samples had to match at 13 loci and that anything less was not a match. Defense counsel stated that, "to [their] knowledge, no study has been performed to determine how many nine loci matches are present in the Illinois database." Defendant asserted that "[p]erforming such a study would give perspective to the strength of the partial profile match developed in this case" and would support defendant's argument that a 13-loci analysis was required.
¶ 12 In his motion, defendant did not ask for the names, addresses, or any identifying information for any DNA profiles that matched his profile at nine loci in the State's offender database. Defendant asked only for the number of profile pairs that were the same at nine loci.
¶ 13 In its response to defendant's motion, the State claimed: "The State has much more evidence against the Defendant than this one swab, including  a swab from the Victim's underwear that matches the Defendant at all 13 loci, and  additional testing is currently underway on swabs that were taken from the Victim's vaginal area."
¶ 14 Contrary to what the State asserted in its response, one of the State's forensic experts at trial testified that the DNA from the victim's underwear was not a match to defendant's DNA. As will be discussed more fully below, the expert could conclude only that defendant could not be excluded as a contributor. At trial, the State explained that, even though 13 loci were considered with respect to the underwear, the sample did not yield "a full profile." He testified that the sample yielded only "some of the loci." In addition, for some of the loci, the expert found that there were "different possibilities." The expert testified that, by using "all possible combinations for that particular area of the DNA," he found that "[a]pproximately one in 5 point 4 quadrillion black, one in 4 point 3 quadrillion white, or one in 66 quadrillion Hispanic unrelated individuals cannot be excluded as the male contributors." At trial, the State's expert observed that these numbers were much higher than the population of the earth. In addition, contrary to the State's prediction about the vaginal swab, one of the State's experts at trial testified that analysis of the victim's vaginal swabs did not yield a male DNA profile.
¶ 15 The State's response also claimed that defendant had failed to provide it with a copy of the Arizona study; and that Illinois Supreme Court Rule 417 (eff. Mar. 1, 2001) did not apply to the case at bar, because it went into effect on March 1, 2001, which was after the date that tests on the rectal swabs and underwear were performed. As noted above, Rule 417(b)(i) requires the proponent of DNA evidence to provide to the adverse party copies of "the case file," including all reports and data relating to the testing performed. Ill. S. Ct. R. 417(b)(i) (eff. Mar. 1, 2001). Since the State failed to produce the data from DeFranco's Cofiler testing of the rectal swabs, defendant sought to exclude any DNA evidence obtained from the rectal swabs.
¶ 16 On August 18, 2006, defendant filed a "supplemental" motion. In this response, defendant argued that Rule 417 applied because the case was still in the pretrial stage. Defendant also stated that he had previously provided a copy of the Arizona study to Edgar Jove, the State's DNA expert. In addition, defendant attached a copy of the five-page Arizona report. The report is entitled "9 Locus Match Summary Report," and it states that it was prepared as a special report by the Arizona Department of Public Safety, pursuant to court order. The study lists matches, match by match, that occurred at 9, 10, 11 and 12 loci. The report states that the matches that occurred at 11 and 12 loci are siblings. The report states that any relationship between the 9-loci matches and the 10-loci matches "has not been determined." The report lists each individual pair that matched, with identifying numbers for each one in the pair.
¶ 17 The report lists: 122 pairs that matched at nine loci; 20 pairs that matched at 10 loci; only 1 pair that matched at 11 loci; and only 1 pair that matched at 12 loci. The grand total was 144 matches. Subtracting the siblings that matched at 11 and 12 loci leaves a total of 142 matches.
¶ 18 On February 8, 2007, the trial court heard argument on defendant's motion. Defense counsel informed the court, "[b]asically, your Honor, we will just go on the pleadings." Concerning the nine-loci match, defense counsel stated:
"we have to seem to learn [sic] that 9 loci matches are not completely uncommon, this would deprive [defendant] of a fair trial, particularly because this is the only evidence against him, this 9 loci match." The prosecutor immediately responded with "[t]hat's not true," and the trial court interjected: "All right. I read the motion." The trial court then stated that defendant's "motion to exclude evidence based on the destruction of evidence" was denied. Defense counsel then pointed out that there were two filings, so that "the Appellate Court will know" defendant intended to discuss both on appeal. The filing on June 12, 2006, set forth both the motion to exclude and the argument in the alternative for a database search; and the supplemental filing on August 18, 2006, which responded to the State's arguments and provided the full Arizona report. The trial court indicated that it had read both documents and that its ruling included both.
¶ 19 After his motion was denied, the defense strategy switched to a consent defense. Defendant had previously filed an answer to the State's discovery request, and his original answer, filed on June 12, 2006, did not allege a consent defense. However, after the trial court's ruling, defendant amended his answer, on June 25, 2007, in order to include a consent defense. His counsel later argued a consent defense in both his opening and closing statements at trial.
¶ 20 2. State's Evidence at Trial
¶ 21 The four-day trial began on June 25, 2007, with jury selection and ended with a verdict of guilty on June 28, 2007. At trial, the State called 11 witnesses. The first witness was the victim, age 24 years old, who had been only 15 years old at the time of the offense and who was unable at trial to identify defendant as the perpetrator. Although the victim was 15 years old at the time of the offense, the State's indictment of defendant made no charges relating to the victim's age.
¶ 22 Five of the State's witnesses were DNA forensic scientists: (1) Therese Biogard, who received from the Chicago police a buccal swab kit*fn1 for defendant and who took actions to preserve the DNA material; (2) Jamie Gibson, who generated a DNA profile from the material recovered from defendant's buccal swab; (3) Brian Schoon, who testified that his analysis of the victim's vaginal swabs did not yield a male DNA profile although semen was present; (4) Michael DeFranco, who generated DNA profiles from the material recovered from the victim's underwear, rectal swabs, and blood standard; and (5) Edgar Jove, who compared the DNA profile generated for defendant with the DNA profiles generated from the samples recovered from the victim's underwear and rectal swabs.
¶ 23 The State's remaining witnesses were: (1) Angela Halpin, the emergency room nurse who examined the victim immediately after the offense and completed a rape kit; (2) Officer Richard Samanas, the evidence technician who retrieved the completed rape kit from the hospital; (3) Officer Thaddeus Hajduk, the evidence technician who obtained the buccal sample from defendant; (4) Detective Kupczyk, who interviewed the victim; and (5) Argentry Dean, the security guard at the bus station whom the victim approached after the offense.
¶ 24 The parties entered into two stipulations, which were read to the jury as part of the State's case-in-chief. First, the parties stipulated that Jennifer Schultz, a forensic DNA scientist, received the victim's rape kit, which contained the victim's underwear and blood standard, and her vaginal, oral and rectal swabs. If called as a witness, Schultz would testify that semen was found on the underwear and on the vaginal and rectal swabs but not on the oral swabs. Schultz would further testify that "she preserved these swabs for future DNA analysis." Second, the parties stipulated to defendant's address on October 12, 1998.
¶ 25 3. Victim's Testimony
¶ 26 The victim, who could not identify defendant as the perpetrator, testified about the following events during her direct examination at trial. At the time of trial, she was 24. When she was 15 years old, she traveled with her mother and sisters by automobile to visit her aunt in Iowa. However, when they returned to New York, they left without her. She stayed in Iowa, and later returned by Greyhound bus on September 26, 1998. She was en route by bus from Iowa to New York, when she had a two-hour layover in Chicago, starting at approximately 9 p.m. At the Chicago bus station, she approached strangers asking where she could buy a snack, when a man told her to follow him.
¶ 27 The victim testified that she walked with the man, out of the station for a number of blocks to his apartment, which was on the first floor of a two-family house. The walk lasted about a half-hour. At the house, a woman in the living room was watching television; and the victim walked past the woman and followed the man into a bedroom. The victim said nothing to the woman as she walked past, and the man closed and locked the bedroom door behind them. In the bedroom, she had vaginal sex twice and oral sex twice with the man.
¶ 28 The victim testified that the man then walked her back to the bus station, where he asked a security guard when the next bus to New York was leaving. At that point, she said nothing to the security guard. After the guard informed the man that the next bus to New York was leaving in an hour, she followed the man outside to an alley, where they had vaginal intercourse again. As he was putting his clothes back on, she ran from him, leaving her travel bag behind in the alley. She had carried her travel bag to his apartment and back to the bus station, but she left it in the alley. When she entered the bus station, she approached the same security guard, who had previously spoken with the man, and she told him that "the guy I was with" had raped her. She testified that none of the sexual acts had been consensual.
¶ 29 The victim testified that when the police arrived, she told them what had happened and they took her to a hospital emergency room, where she was examined by a doctor and a nurse. The examination included swabs of her vagina, mouth and rectum. The victim also informed the nurse what had happened. The victim also testified that she had washed her underwear "a couple of days before that" night. After the hospital examination, police officers drove her around, but they could not locate the man's residence. They did locate the alley. Eventually, she boarded a bus and returned home.
¶ 30 The victim testified that, years later, in May 2004, she met in Brooklyn with a Chicago police detective and an assistant State's attorney. Concerning the perpetrator, she testified: "I just remember a scar he had on his face. I don't even remember what he really looked like. I just try to black it out. It was so many years ago."
¶ 31 On cross-examination, the victim testified that she did not return to New York with her mother and sisters because she "went to hang out with an ex-boyfriend and a couple of friends." She left her aunt's house and did not tell anyone where she was going. She stayed in Iowa, because she was having problems with her mother. She admitted that she had run away a lot. After she returned to her aunt's house, her aunt told her that she had to leave because she refused to follow her aunt's rules.
¶ 32 On cross-examination, the victim admitted that, before she first
spoke to the perpetrator, a woman at the train station informed her
that there was a grocery store nearby, at a college. The victim had
previously relayed this information to the detective. The victim
testified that she left the bus station,
because "there was like no junk
food, stuff that I wanted." However, she admitted that she thought
there was a restaurant and vending machines at the bus station. She
testified that she was looking for "[j]ust a grocery store." She
thought that she had left the bus station and started walking toward
the university, when the perpetrator approached her. She told him what
kind of junk food she wanted and he told her he would take her to a
¶ 33 4. Testimony by DNA Comparison Expert
¶ 34 Edgar Jove testified that he was a "DNA group supervisor" at the Illinois State Police Forensic Science Center in Chicago, where he had been employed over 11 years. After the prosecutor stated that he was "tender[ing] the witness as an expert in the field of forensic DNA analysis," the trial court offered defense counsel an opportunity to question the expert which counsel declined. The trial court then stated "okay" and the State's questioning resumed.
¶ 35 On direct examination, Jove testified that he made two comparisons in the case at bar. Specifically, he compared DNA data recovered from defendant's buccal swab with DNA data recovered from (1) the victim's underwear and (2) the victim's rectal swabs.
¶ 36 Jove testified that, in making his comparisons, he utilized data generated by other forensic scientists employed by the Illinois State Police. He received the notes and the DNA profiles generated by Michael DeFranco, a previous DNA analyst, before DeFranco left the employ of the Illinois State Police. This DNA data included data from the victim's blood standard, her rectal swabs and her underwear, which had been processed by DeFranco in approximately 1998. Jove testified that he also received DNA data from defendant's buccal swab, which had been processed by Jamie Gibson, another forensic scientist.
¶ 37 Jove testified generally about DNA analysis, explaining that if there is "enough DNA, we look at 13 different areas of DNA" or loci. To identify all 13 loci, a scientist "run[s] two systems." He explained that "[t]he first system has nine different areas of the DNA, plus another area that will determine the sex of the donor, and then the second system will have four areas of the DNA."
¶ 38 In the case at bar, Jove testified first about DNA recovered from the victim's rectal swabs, and then about DNA recovered from the victim's underwear. For the victim's rectal swabs, the notes that Jove received from DeFranco provided results only from the first system, and thus provided only 9 loci, rather than the full 13 loci. Jove testified that, in his opinion, the second test had simply never been run on the rectal swabs. (However, on cross, Jove admitted that he was not certain whether the second test had never been run or whether the data from the test had been destroyed.)
¶ 39 Jove testified that the victim's rectal swabs contained DNA from two individuals, one male and one female. Jove stated that it was common to find the victim's own DNA on her own rectal swab. Jove testified that "[a]ssuming the mixture of human DNA profile identified in the rectal swab is a mixture of [the victim's] and one other individual, a male [nine-loci] DNA profile was identified which matches the DNA profile of [defendant] Harvey Wright." Jove testified that the frequency with which he would expect to see this nine-loci male DNA profile occurring in the general population was "approximately one in 420 trillion black[s], one in 670 trillion white[s], or one in 2 point 9 quadrillion Hispanic unrelated individuals."
¶ 40 Jove did not testify whether, to generate these numbers, he used the FBI's database, the Illinois database, some combination of the two, or some other population database altogether. Compare In re Jessica M, 399 Ill. App. 3d 730, 748 (2010) ("but one database is used" in Illinois "to identify or exclude potential suspects or offenders, as well as for random statistical probability calculations") with Dwyer, 2009 ME 127, ¶15, 985 A.2d 469 (in Maine, DNA probability calculations are produced by "using FBI population studies," as well as "limited information from the Maine database.")
¶ 41 Jove testified next about the DNA recovered from the victim's underwear, stating that this DNA was a mixture from three people. There was a greater amount of DNA from two of the three people than from the third. Of the two major contributors, one was a female and one was a male. However, Jove could not identify the gender of the third and minor contributor, and this third profile was too "limited" to make any comparisons. Concerning the DNA recovered from the underwear, Jove testified "[a]ssuming [the victim] is one of the major human DNA profiles, an additional male human DNA profile was identified from which [defendant] Harvey Wright cannot be excluded."
¶ 42 On direct examination, Jove clarified that, while he had used the term "match" with respect to the 9-loci analysis on the rectal swab, he could not reach that same conclusion with respect to the 13-loci analysis on the underwear. With the underwear, Jove could conclude only that [defendant] Wright could "not be excluded"; however, there was no match.
¶ 43 During cross-examination, in response to a question asked by the trial court, Jove indicated that, in his experience, he had never seen a nine-profile match that was not accurate. The trial court then barred defense counsel from asking any follow-up questions about the Arizona study, which had been provided to Jove prior to trial and which had revealed over a hundred pairs of nine-loci matches:
"THE TRIAL COURT: -- is there a possibility that by running those other, the second part of the test, that the result would have been different? Could he have been excluded?
JOVE: In my experience, I haven't seen -- in my casework, I haven't seen a nine loci match at the profiler system, the first system, and then have an ...