Appeal from the Circuit Court of Cook County. 07 CR 25839 ) The Honorable Timothy Joseph Joyce, Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Lavin concurred in the judgment and opinion.
Justice Epstein specially concurred, with opinion.
¶ 1 In an appeal from a judgment entered on a conviction for
residential burglary, the defendant argues the trial court erroneously
allowed the testimony of a fingerprint examiner where he did not
testify to a specific number of points of comparison and therefore
lacked foundation for the admission of his opinion. The defendant also
argues that the trial court erred in allowing an expert from Cellmark
to testify to a DNA analysis and report that were not performed or
prepared by her. We hold the trial court properly admitted the
testimony of the fingerprint expert where he laid a sufficient
foundation that the prints recovered from the crime scene matched
defendant's palm prints, in that he detailed the analysis process he
used in this case and was able to determine there was a
match. There is no requirement for a set number of minimum points of
similarity in order for fingerprint expert testimony to be admissible.
We also hold the trial court did not err in allowing the expert from
Cellmark to testify regarding a report analyzing defendant's DNA, even
though the expert was not the individual who performed the analysis.
The DNA expert was properly allowed to testify regarding the results
contained in Cellmark's DNA analysis report and notes pursuant to the
United States Supreme Court's holding in Williams v. Illinois, 567
U.S. ___, 132 S. Ct. 2221 (2012). The report is not testimonial in
nature and therefore does not violate the confrontation clause of the
¶ 3 Defendant, Jason Negron, was convicted by a jury of the residential burglary of Santiago Uriarte's home. The State presented fingerprint and DNA evidence. An expert at trial testified to the results of the DNA analysis, which established that blood found on a tissue inside Uriarte's home belonged to defendant. However, the expert was not the person who actually performed the analysis. The trial court allowed the testimony of the expert and defendant was convicted. On appeal, defendant maintains the expert should not have been allowed to testify regarding the DNA analysis.
¶ 4 A. Pretrial Proceedings
¶ 5 Prior to trial, defendant filed a motion to exclude the testimony of the State's Cellmark expert witness and the DNA evidence. Defendant argued that the DNA report of Gina Pineda, who did not actually perform the DNA test, was testimonial evidence that should not be admitted because it would violate the holding of Crawford v. Washington, 541 U.S. 36 (2004). Specifically, defendant argued that Pineda should be prohibited from giving her expert opinion regarding the results of the DNA analysis because she was not one of the actual analysts who performed the test and that the State was therefore incapable of laying the foundation for the DNA report. The court denied the motion, finding that it was bound to follow People v. Johnson, 389 Ill. App. 3d 618 (2009), and People v. Williams, 385 Ill. App. 3d 359 (2008), which held that such expert testimony was admissible.
¶ 6 Defendant also filed a motion in limine to bar the opinion testimony of the fingerprint examiner, arguing that there was no foundation for his opinion because no notes were tendered in pretrial discovery concerning the examination of the prints and the examiner gave no basis in his report for his opinion that the latent prints recovered from the scene matched defendant's prints. The court found that defendant's motion was premature but granted it anyway, stating that in order for the fingerprint examiner to be allowed to render his opinion at trial, the State would have to lay the proper foundation for his testimony. The court told defense counsel that she could renew the objection during the fingerprint examiner's testimony and the court would address the issue at that time. The case proceeded to a jury trial.
¶ 8 At trial, the victim of the burglary, Santiago Uriarte, testified that he lived at 6201 W. Devon Avenue with his wife, mother-in-law, and two children. The house had an enclosed back porch with an outer storm door, which always remained unlocked, and an inner rear door leading into the house which the family would lock. The morning of March 17, 2006, Uriarte dropped his children off at school and then went to meet with a client for a few hours. His mother-in-law normally left for work at 8 a.m., and his wife normally left for work at 8:45 a.m. When Uriarte returned home around 1:30 p.m., he opened the storm door to the back porch and saw that the glass on the inner door was broken and the door was open. Uriarte saw that the kitchen was in disarray and ran back outside to call 911. An officer arrived a few minutes later and went inside the house. The officer then came out and took Uriarte back inside the house. Everything was thrown to the floor in the kitchen, his mattress was cut, all of his electronics and laptops were missing, and checkbooks, jewelry, and passports were missing as well. Items were missing from all over the house. An evidence technician arrived and took fingerprints.
¶ 9 Later that same night while he was cleaning up, Uriarte found a piece of what appeared to be a bloodstained tissue underneath his bed. Uriarte put the tissue in a sealed bag. Uriarte testified that the tissue could have been there prior to the burglary because his cleaning lady normally cleans under the beds and had been to the house the day before the burglary. The next day, March 18, Uriarte called the police and told them about the tissue. The police came and picked up the sealed tissue from Uriarte on March 20. Uriarte testified that he did not know defendant and did not give him permission to enter and take anything from his home.
¶ 10 Evidence technician Tony Shannon testified that he processed Uriarte's house on the day of the burglary. The glass on the inner rear door of the house was broken. Shannon testified that he recovered three latent print impressions from the exterior of the glass on the inner rear door. Shannon observed that there was no damage to the outer storm door to the back porch, only to the inner rear door. Shannon did not observe any blood anywhere in the home and did not notice any bloody tissue. No pictures were taken because, typically, unless an offender is already in custody or there is something unusual about the crime scene, pictures are not routinely taken in a burglary case. Shannon inventoried the prints and prepared a report.
¶ 11 Evidence technician John Klusman testified that he recovered a red-stained tissue from Uriarte's house and inventoried it. The tissue was then sent to the Illinois State Police for testing.
¶ 12 Pauline Gordon, a forensic scientist with the Illinois State Police, was found qualified as an expert in forensic biology and DNA analysis and testified at trial. Gordon testified that she received the red-stained tissue and performed the Kastle-Meyer test for the presence of blood, and the test confirmed that there was blood on the tissue. Gordon then packaged the sample and sent it to Cellmark for DNA testing of the blood.
¶ 13 Gina Pineda, former director and technical leader at Cellmark, was found to be qualified as an expert in DNA analysis and testified in the case. Pineda testified that Cellmark was asked to generate a DNA profile for the bloodstain on the tissue received from the Illinois State Police. Cellmark generated a DNA profile that could then be used for comparison to a known sample. Pineda explained the four-step polymerase chain reaction (PCR) testing procedure at Cellmark for DNA analysis: extraction (separating the DNA from any other substance in the sample); quantitation (determining how much DNA there is); amplification; and obtaining a profile. The final resulting DNA profile is comprised of 13 genetic markers, and the PCR method is widely accepted in the scientific community and is the method used in all labs for DNA analyzing. Once there are 13 markers, the data are viewed using special software and there must be a minimum of relative fluorescent units (RFUs) in order to read the results. The cutoff of RFUs at Cellmark is 100. There can be points that come in below 100 RFUs, and if there are multiple points below 100, it could mean that there is DNA from a second individual. However, in defendant's case, there were no peaks in the data below 100 RFUs, meaning the DNA from the tissue sample was from only one individual.
¶ 14 There are multiple analysts involved in the different steps of generating a DNA profile. Pineda testified that the PCR method is widely accepted in the scientific community and is the method used in all labs for DNA testing. Pineda herself did not conduct the testing performed in this case. However, she testified that she performed the technical review of the documentation that was generated during the analysis and also reviewed the final data of the samples. Without objection, Pineda referred to the report and notes in the case file that was prepared in 2007, but the report was not admitted into evidence. Pineda did not review the report and case file notes back in 2007. However, Pineda testified that she reviewed the analysis of the samples and the final data prior to her testimony at trial. Pineda also testified that she has testified many times in other cases in the same capacity as a technical reviewer. Pineda also explained the quality control system at Cellmark to prevent contamination and mistakes. Each DNA sample is securely preserved, and when an analyst is done performing analysis, the sample is returned to the evidence technician and is maintained in the secure area of Cellmark's laboratory with limited access. After testing the sample, Cellmark packaged it and returned it to the Illinois State Police.
¶ 15 After Pineda's testimony, the defense moved to strike her testimony based on lack of foundation, arguing that this was a different objection than the Crawford confrontation rights objection that was raised in the pretrial motion. The trial court overruled the objection, finding that there was a sufficient foundation for Pineda's expert testimony.
¶ 16 Karri Broaddus, a forensic scientist for the Illinois State Police crime lab, testified that she reviewed the DNA profile generated by Cellmark and entered the profile into a DNA database to search the database for a match. There was a match for a person named "Carlos Frontera," so Broaddus notified the Chicago police department and then requested that a buccal swab be taken from this individual and tested.
¶ 17 Detective Patrick Mullane testified that he received the result from the Illinois State Police crime lab listing a suspect who he verified in his investigation was defendant.*fn1 Mullane testified he was able, through his investigation, to locate defendant and place him under arrest for the burglary. Mullane identified defendant as the suspect in open court. Pauline Gordon from the Illinois State Police then performed a DNA analysis on defendant's buccal swab and compared it to the DNA profile from Cellmark and the two profiles matched.
¶ 18 After Mullane received the results of the DNA database search, he also submitted a request for a fingerprint comparison of the three latent prints taken from the rear door of Uriarte's home. On July 30, 2007, William Kovacs, an expert in fingerprint identification and comparison, received the request to process the latent prints. He compared the latent prints to defendant's left and right palm prints and determined that two of the latent prints matched defendant.
¶ 19 At trial, Kovacs testified as an expert witness. Kovacs was a latent fingerprint examiner for 25 years and over his career had examined over 1,000 pieces of evidence for the presence of fingerprints and had compared a known print to a latent print thousands of times. Kovacs had also testified in court as an expert over a hundred times. Kovacs explained that a latent fingerprint is an impression enhanced with fingerprint powder and then transferred to a sticky fingerprint lift. Kovacs explained that what creates unique fingerprints is the "friction ridge skin," which is on the underside of one's hands and includes the palms and fingers. No two people share the same fingerprint. On July 30, 2007, the ...