Appeal from the Circuit Court of Cook County 09 CR 15430 (02) Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Epstein
JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the judgment and opinion.
¶ 1 Juan Luna and James Degorski were charged with first degree murder for the 1993 shooting deaths of seven people at a Brown's Chicken restaurant in Palatine, Illinois. Following a severed jury trial in 2007, defendant Luna was found guilty of first degree murder and sentenced to natural life imprisonment. Defendant presses several arguments on appeal: (1) the trial court should have excluded expert testimony that a latent print found on a napkin matched defendant's palm print, or the court should have granted defendant's request for a Frye hearing, because the "controversy surrounding latent print identification" shows that the relevant scientific community does not generally accept the method used to match latent prints to known prints; (2) defense counsel was ineffective for failing to move for a Frye hearing, because testing showed that the amount of DNA recovered from the crime scene was less than 0.5 nanograms, and obtaining a profile from such low amounts of DNA is not generally accepted within the relevant scientific community; (3) this court should discard Frye and adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 573 (1993), for assessing the admissibility of scientific evidence; (4) defendant was denied a fair trial because the prosecutor made improper comments during rebuttal closing argument; and (5) the trial court abused its discretion in denying defendant's motion to admit two out-of-court statements from Casey Sander and Todd Wakefield. For the reasons that follow, we affirm.
¶ 3 In the early morning of January 9, 1993, Palatine police officers received separate reports that workers from a Palatine Brown's Chicken had not returned home after their shifts. Upon entering the restaurant, police found the bodies of seven persons, all of whom had been shot in the head. Richard Ehlenfeldt and Thomas Mennes were found in the cooler on the west side of the restaurant. The other five, Lynn Ehlenfeldt, Guadalupe Maldonado, Rico Solis, Michael Castro, and Marcus Nellsen, were found in the freezer on the east side of the restaurant.
¶ 4 At the trial, spanning several weeks, dozens of witnesses testified for the State and defendant. We provide a brief overview of the relevant testimony, which we explore in more detail, where necessary, as part of our analysis.
¶ 5 I. Defendant's Statements
¶ 7 Eileen Bakalla testified that on January 8, 1993, James Degorski called and asked her to meet him and defendant in the parking lot of a Jewel grocery store in Carpentersville, Illinois. Bakalla was Degorski's close friend, and she knew defendant; they would visit at Degorski's house and smoke marijuana. When she met them in the parking lot, Bakalla saw Degorski and defendant in defendant's car, along with latex gloves and a canvas money bag. The men got into Bakalla's car, and as she drove them to her home, they told her they had robbed the Brown's Chicken. At Bakalla's home, defendant and Degorski split the money in the bag, which Bakalla estimated at over $1,000. They gave $50 to Bakalla, which she said was repayment for a loan she had given to Degorski. The three smoked marijuana, relaxed for a few hours, and Bakalla drove defendant back to his car. Bakalla and Degorski then drove past the Brown's Chicken restaurant, where she saw numerous ambulances and police cars. The next day, Bakalla met Degorski at a car wash, where Degorski "extensively cleaned" defendant's car. A few weeks later, Bakalla and defendant were at Degorski's house. Defendant smiled as he talked about slitting a lady's throat.
¶ 8 Bakalla testified that on November 25, 1995, a police officer investigating the murders asked her to go to the Palatine police station. She went with Degorski and defendant, who had been an employee at the Brown's Chicken. Bakalla told a police officer that she was with Degorski and defendant at her house on the night of the murders, and they found out about the murders the next morning. Bakalla testified that only some of that was true. Bakalla admitted that, in exchange for her testimony, the State's Attorney's office promised Bakalla that she would not be prosecuted for "obstruction of justice" or "concealment or accessory after the fact." The judge instructed the jury to view Bakalla's testimony "with caution."
¶ 10 Anne Lockett testified that in 1991, when she was 17 and still in high school, she met defendant and Bakalla through Degorski. Defendant, Degorski, and Lockett used to drink and smoke marijuana together. Lockett, who used others drugs like PCP and LSD, started dating Degorski in 1992 when she was 17. On January 7, 1993, she was admitted to Forest Hospital after she attempted suicide. A few days after she was admitted, Degorski called her at the hospital. Lockett testified that after the phone call, she watched the evening news. The lead story was the Brown's Chicken murders.
¶ 11 After she was discharged from the hospital on January 25, 1993, Lockett went to Degorski's house. Defendant was there. Degorski asked Lockett if she wanted to know what happened at Brown's Chicken, and Lockett said yes. Lockett testified that "they" told her that they went to the Brown's Chicken with pockets full of bullets. Degorski had a .38-caliber revolver. They went in around closing and defendant ordered chicken, which angered Degorski because he was worried about leaving greasy fingerprints. Lockett testified that they told her they put on gloves in the bathroom. The men blocked the back exit door with a wedge so that no one could run out the back exit.
¶ 12 Lockett testified that both men admitted shooting the victims with Degorski's gun. At one point, one of the Brown's employees ran through the kitchen, jumped over the counter, and was shot. They told her one of the boys who was left in the cooler had vomited French fries before he died. Defendant demonstrated how he cut the throat of "a woman who made him mad, something about the safe." Afterward, they cleaned up and disposed of their clothing, shoes, and the gun. Degorski threatened to kill Lockett if she said anything, and he told her that because she had been in the hospital at the time, he was going to use Bakalla as an alibi.
¶ 13 In March 2002, Lockett eventually recounted to a friend what Degorski and defendant had told her. That same month, after the friend had gone to police, Sergeant Bill King of the Palatine police department contacted Lockett. Lockett admitted that she did not come forward earlier, even when Martin Black, a friend of hers, was arrested for the murders.
¶ 14 Lockett testified that her drug and alcohol use continued until 2004, when she was sent to "detox" after arriving to work intoxicated. Lockett relapsed a year later, but, at the time of trial, she had been sober for one year. She denied significant memory or cognitive difficulties, but when she testified before the grand jury, Lockett read from a statement the prosecutor's office had typed out.
¶ 15 C. Defendant's Videotaped Statement
¶ 16 Following his arrest on May 16, 2002, defendant gave a videotaped statement that he and Degorski went to Brown's Chicken to commit a robbery. Assistant State's Attorney Darren O'Brien testified that on May 17, 2002, he spoke with defendant, who after waiving his Miranda rights, agreed to give the statement. The statement was played for the jury.
¶ 17 Defendant stated that on January 8, 1993, he and Degorski planned to rob the Brown's Chicken in Palatine; they chose the restaurant because defendant had worked there and knew there was no alarm. They decided to go there "at closing time like around 9:00 o'clock" because fewer people would be there and because there would be money at that time since "everybody was doing their counts to make deposits for the bank or just to count and leave some in there in the safe." At around 9 p.m., defendant and Degorski drove to the restaurant, parked "on the north side of the building," and then "walked by the west side of the building to walk inside, by the west side, double side doors to walk in there." Defendant ordered "four or five pieces of chicken," and the two walked "on the west side of the building" to sit down at "the first booth next to the garbage can."
¶ 18 Defendant and Degorski then put on latex gloves and decided to go ahead with the robbery. Defendant approached Rico Solis, who was mopping the floor, and told him to go to the back of the restaurant. Degorski fired a shot and told everyone to get on the floor. One employee tried to jump over the counter, and Degorski shot him. Degorski took the man into "the west side cooler," and at some point, took Richard Ehlenfeldt, one of the owners, into the cooler. Degorski then fired several shots.
¶ 19 Defendant kept an eye on the five other employees until Degorski ordered them into the freezer. Degorski gave defendant a knife and told him to have the "lady owner" (Lynn Ehlenfeldt) get the money out of the safe, but "with everything going all wild and crazy," defendant "got caught up in the moment and *** cut her on her throat." Degorski then handed the gun to defendant, took some money out of the safe and dragged Lynn Ehlenfeldt into the freezer. When defendant looked into the freezer, the four men inside pleaded with him not to shoot. Defendant fired one shot into the freezer, and Degorski then took the gun back and fired repeatedly into the freezer. After Degorski checked to "make sure everyone was dead" by kicking them and poking them with a stick, he and Degorski turned off the lights and locked the doors to make it look like the place was closed. After leaving through the side employee door, defendant and Degorski drove to Carpentersville where they met Bakalla. She then drove them in her car to her house where defendant and Degorski split the money.
¶ 20 II. Palm Print Evidence
¶ 21 Dr. Jane Homeyer testified that at the time of trial she was the Director of Competencies and Standards in the Office of the Director of National Intelligence. She had also worked for the FBI, but before 1999, Dr. Homeyer was a forensic scientist at the Northern Illinois Police Crime Laboratory (NIPCL). Testifying as an expert in the "field of prints and *** crime scenes," Dr. Homeyer explained that she was part of the team that documented the Brown's Chicken crime scene. Her primary responsibilities were to process prints and help collect and preserve evidence.
¶ 22 On January 11, 1993, while examining the scene at the Brown's Chicken, Dr. Homeyer saw that the register receipt on one of the cash registers showed that a four-piece chicken meal with fries, coleslaw, and a small drink was purchased at 9:08 p.m. She also noticed that, although the garbage receptacle on the west side of the dining room had a relatively fresh bag, it contained a cardboard box with four pieces of chicken, scattered French fries, biscuits, coleslaw, paper products (including four used napkins), and other chicken pieces and bones.
¶ 23 Dr. Homeyer and her colleague Chris Hedges removed the plastic garbage bag and set it on the floor so that they could "compar[e] the cash register receipt with the general contents of the garbage bag to see if in general they looked and appeared to be consistent." After concluding that there "was good alignment between the items, the food items, and the paper items that were in the bottom of the garbage bag" with what was on the register tape, Dr. Homeyer began separating out the paper items from the food items. She sealed them in paper bags and transported them to the laboratory for processing.
¶ 24 On January 14, 1993, Dr. Homeyer began processing the paper items for fingerprints at the NIPCL laboratory. Dr. Homeyer examined the four napkins from the bag under various angles of light to see if there were any patent print impressions. She then dipped each in a ninhydrin solution to help make any latent fingerprints visible. Dr. Homeyer found one suitable impression on one napkin and photographed it (ninhydrin prints fade over time). She repeated the ninhydrin treatment to enhance the print and took another photograph.
¶ 25 Later, sometime around January 22 or 23, 1993, at the Illinois State Police Crime Laboratory, Dr. Homeyer attempted to use zinc chloride to react with the lipids in the print residue to develop additional impressions on the napkins. No additional prints were developed, but the process left the earlier-developed print obscured by darkened or blackened areas.
¶ 26 Dr. Homeyer examined defendant's fingerprint and palm print cards on March 2, 1993, but the left palm print was missing from those cards. Arlington Heights Police Officer Ronald Sum testified that he interviewed defendant (along with other former Brown's employees) and took defendant's fingerprints and palm prints, along with his photograph, on February 17, 1993. Sum testified that he accidentally failed to include defendant's left palm print on the card.
¶ 27 After defendant's arrest, however, his full palm prints were submitted to John Onstwedder, a latent print examiner, who testified as an expert in latent print examination at trial. Onstwedder, a member of the International Association for Identification, had testified over 100 times as an expert in latent print examination. He concluded that the napkin print matched a small area of the palm under defendant's left "pinky." Using a technique known as ACE-V (analysis, comparison, evaluation, and verification), Onstwedder testified in detail about the common characteristics between the latent print and defendant's known print.
¶ 28 On cross-examination, Onstwedder testified that he first ran the print through the Automated Fingerprint Identification Service (AFIS), which contains only fingerprints. When Onstwedder performed the comparison between the known print and the latent print, he knew that defendant had been arrested and that "there was other evidence pointing at him." While Onstwedder testified that he had never made an error, he acknowledged that errors in fingerprint identification have occurred in the past, and he testified about his knowledge of specific cases of erroneous identifications. He also acknowledged that earlier in the investigation, two examiners had matched the napkin print to someone other than defendant. Onstwedder agreed that "every step of the way involves subject calls or judgment calls for you [to] get to the next step."
¶ 30 Along with the paper napkins, the chicken bones in the garbage bag were taken back to the evidence room on January 11, 1993. At some point, Dr. Homeyer combined all the food pieces into a single plastic bag. The bag was stored at the NIPCL laboratory at room temperature until January 14, 1993, when she opened it to inventory and photograph the chicken pieces found in the box.
¶ 31 In 1994, Dr. Homeyer sent the chicken pieces to a private laboratory, Life Codes, for DNA testing. Rich Cunningham, a former employee of Life Codes, testified that he attempted to obtain a DNA sample from one of the chicken bones, but the amount of DNA potentially present, about 1 to 2 nanograms, was too small for the type of testing Life Codes was using at the time. Cunningham was looking for a sample size of around 10 nanograms, as Life Codes was not yet using "Short Tandem Repeat" (STR) testing, which works well with smaller amounts of DNA. After the testing, Cunningham disposed of the bone he tested. In Cunningham's opinion, there "would be no reason" to keep the bone, for he had exposed the bone to a chemical bath, such that he had removed "all the cellular material" from the bone. He returned the other untested chicken bones to the Palatine police.
¶ 32 Ornithologist Dr. David Willard testified that in June 1995, he received the chicken evidence at the Chicago Field Museum from Palatine police officers. He attempted to determine how many pieces of chicken were in the garbage bag. The partially thawed chicken was set out on an unsterilized table in a semi-public area of the museum. Dr. Willard and a colleague pulled back meat from some of the bones and removed meat from others. They did not wear gloves or masks. Dr. Willard testified that he looked at each bone and gave it a name (e.g., "wing bone"), but he could not determine what type of meal (e.g., four-piece or five-piece) was presented by the chicken pieces because he did not know what type of pieces were included in those different sized meals.
¶ 33 Debra Depczynski of the Illinois State Police Forensic Science Center in Chicago (ISP laboratory), testified that on September 18, 1998, she began tests to determine if there was any saliva on the partially eaten chicken bones. On two of the five bones, she was able to get a positive result. Depczynski gave a set of four swabs for each of the two bones to Cecilia Doyle for testing.
¶ 34 Cecilia Doyle, chief of the Biology-DNA section of the ISP laboratory, testified as an expert in the field of DNA analysis. As explained in greater detail in the analysis section below, Doyle used STR DNA analysis on the swabs from the two bones and was able to obtain a nine-loci DNA profile from the bones. She explained that in 1998, the laboratory was only looking at 9 allele locations for DNA profiles and did not advance to 13-loci DNA testing until 1999.
¶ 35 The testing revealed that each sample contained DNA from multiple contributors. Doyle testified that a DNA profile, viewed on a graph called an electropherogram, normally has just two peaks at any one area of the DNA (i.e., any locus), because half of the DNA is inherited from the mother and half from the father. When an allele (i.e., an area of genetic variation that analysts measure and use for comparison) is detected at a particular locus, it is represented by a peak plotted at a point on the electropherogram. Here, Doyle saw more than two peaks at two of the nine loci tested, indicative of a mixture. To bring up more alleles from the "minor profile" (the one with lower peak heights), Doyle repeated the analysis using more of the sample. That test revealed alleles at four more loci.
¶ 36 Kenneth Pfoser testified as an expert in the field of DNA. In May 2002, when he was assistant DNA technical leader at the ISP laboratory, Pfoser reviewed the DNA profile obtained from defendant (in 2002 and 2004) as well as the major profile obtained from the chicken bone swabs. In his opinion, the profiles matched. He testified that the profile would be expected to occur in 1 in 139 trillion Black, 1 in 8.9 trillion Caucasian, and 1 in 2.8 trillion Hispanic unrelated individuals.
¶ 37 Defendant presented testimony of Dr. Karl Reich, founder and part owner of a private laboratory that performs and advises on DNA testing for law enforcement and private individuals. Dr. Reich, who holds an M.D. and a Ph.D. in molecular biology, testified that the ISP ran the 220,456 records in the Combined DNA Index System (CODIS) database against each other to determine the number of nine-loci matches. The study revealed 903 pairs of matching nine-loci profiles in the database, i.e., 1,806 persons with identical DNA at nine loci. In Dr. Reich's opinion, the study cast doubt on the State's claim that the odds of another unrelated Hispanic sharing defendant's DNA at nine loci are 1 in 2.8 trillion.
¶ 38 Dr. Reich also testified that there was "no way" to determine the source of the DNA or when the DNA was deposited on the bone. Dr. Reich stated that 13 loci, not 9, are necessary to have a "scientifically, fully justifiable identity match." On cross-examination, Dr. Reich testified that his laboratory was paid over $100,000 for its work on this "very complicated" case.
¶ 39 In rebuttal, the State called Dr. Ranajit Chakraborty, who testified that the results of the Illinois DNA database study did not cast doubt on the random match probability that another person shares defendant's particular nine-loci profile.
¶ 40 IV. Statements of John Simonek
¶ 41 Before trial, the court granted defendant's motion to admit a statement by John Simonek, given to Palatine detectives August 9, 1999, that he and Todd Wakefield committed the murders. According to Simonek's videotaped statement, which was played for the jury, he and Wakefield went to Brown's Chicken on the evening of January 8, 1993. Wakefield drove a brown station wagon, which he parked on the east side of the restaurant, and Simonek and Wakefield entered through the east door. Wakefield ordered food. Five to ten minutes later, he pulled out a revolver and told the employees to move into the freezer. According to Simonek, Wakefield "moved everybody except for two people into the freezer," and Simonek escorted the two people into the "other freezer."
¶ 42 As he moved back toward Wakefield, Simonek heard gunshots and "started freaking out." Wakefield shot the people in the freezer and then ordered Simonek to shoot the people in the cooler. Simonek argued with him and told Wakefield he did not "want any part of this," but Wakefield "proceeded to make [Simonek] do it anyway." Simonek "recall[ed] shooting somebody outside the freezer," but did not "remember how they got out there though." When Wakefield directed Simonek to shoot the person inside the cooler, Simonek resisted, but then shot into plastic strips over the entrance of the cooler. Wakefield and Simonek moved the body that was outside the cooler into the cooler and "laid it on its right side facing east." Simonek then saw Wakefield stab two or three people in the freezer. Before leaving, Simonek saw that the freezer door was left partially open. He waited in the car for Wakefield, who drove him home. Simonek said he was "very sorry it happened," he "just want[ed] this to be over," and he "hope[d] [Wakefield] gets locked up."
¶ 43 Before giving the videotaped statement, Simonek was arrested on August 5, 1999. Sergeant King testified that Jim Bell, coordinator of a task force to investigate the Brown's Chicken murders, had Simonek arrested, without King's knowledge, when King was on vacation. Police officer Steve Bratcher, who was one of the officers present for the statement, denied supplying Simonek with details about the crime scene. After giving his statement on August 9, 1999, Simonek was released and never prosecuted.
¶ 44 Assistant State's Attorney John Dillon testified that in July 1998, he had questioned Simonek at the request of Jim Bell. Simonek initially described what he was telling Dillon as a "vision statement," meaning that the information Simonek gave was based on a vision he had. Dillon further testified that Simonek gave five statements, none of which was the same, which Simonek claimed were based on his firsthand knowledge.
¶ 45 Apart from Simonek's statement, the court denied defendant's motion to admit two other statements made to police, from Todd Wakefield and his former girlfriend, Casey Sander. In his statement, Wakefield told police that he was at Brown's Chicken on the night of the murders, that he ate the last meal sold that night, but that he was not involved in the murders. Sander told policethat she saw Wakefield shoot people at the Brown's Chicken, but she denied any involvement in the murders. The trial court found that these hearsay statements, discussed in more detail in the analysis below, could not be admitted as statements against penal interest.
¶ 46 The jury found defendant guilty of seven counts of first degree murder. The trial court denied defendant's motion for a new trial. The jury found defendant eligible for the death penalty but did not reach a unanimous verdict on imposing a death sentence, and the court sentenced defendant to natural life imprisonment. Defendant now appeals.
¶ 48 I. Latent Print Evidence
¶ 49 Defendant first argues that the trial court erred when it denied his motion in limine to exclude John Onstwedder's expert testimony that defendant's palm print matched the partial latent print from the napkin found at Brown's Chicken. Defendant contends that the method used to match a known print to a latent print, known as friction ridge analysis or, more specifically "ACE-V," is not generally accepted in the relevant scientific community and thus the expert testimony should have been excluded under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Alternatively, defendant argues that the court should have conducted a Frye hearing to determine whether friction ridge analysis is a generally accepted technique within the relevant community. Our review is de novo. In re Commitment of Simons, 213 Ill. 2d 523, 530-31 (2004); People v. McKown (McKown I), 226 Ill. 2d 245, 254 (2007).
¶ 50 The admission of expert testimony in Illinois is governed by the Frye "general acceptance test." Under Frye, "scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.' " Simons, 213 Ill. 2d at 529-30 (quoting Frye, 293 F. at 1014). "[T]he Frye test is necessary only if the scientific principle, technique or test offered by the expert to support his or her conclusion is 'new' or 'novel.' " People v. McKown (McKown II), 236 Ill. 2d 278, 282-83 (2010). "General acceptance" of a methodology does not mean "universal acceptance," and "it does not require that the methodology *** be accepted by unanimity, consensus, or even a majority of experts." Simons, 213 Ill. 2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002), abrogated on other grounds by Simons, 213 Ill. 2d at 530. Under Frye, we inquire as to the general acceptance of a methodology, not the particular conclusion reached by an examiner or the application of the methodology in a particular case. Donaldson, 199 Ill. 2d at 77; McKown I, 226 Ill. 2d at 255.
¶ 51A. Judicial Notice of General Acceptance
¶ 52 "A court may determine the general acceptance of a scientific principle or methodology in either of two ways: (1) based on the results of a Frye hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial decisions or technical writings on the subject." McKown I, 226 Ill. 2d at 254. In this case, the trial court denied defendant's motion for a Frye hearing and instead concluded that "the methodology used in palm print identification is commonly accepted within the scientific community." Because the court's decision to take judicial notice of general acceptance is central to this appeal, we review in some detail two recent opinions from our supreme court on the issue: In re Commitment of Simons, finding that judicial notice of general acceptance was proper, and McKown I, finding that a Frye hearing was required.
¶ 53 In Simons, our supreme court considered whether the trial court properly took judicial notice of the general acceptance of actuarial risk assessment. Simons, 213 Ill. 2d at 533. The supreme court, noting that the appellate court in Illinois was "sharply divided" on the question (id.), explained that "experts in at least 19 other states rely upon actuarial risk assessment in forming their opinions on sex offenders' risk of recidivism." Id. at 535-36. Among these court opinions, eight had "directly addressed the Frye question and concluded either that Frye is inapplicable to actuarial risk assessment or that actuarial risk assessment satisfies the general acceptance standard." Id.
¶ 54 While acknowledging that "relying exclusively upon prior judicial decisions to establish general scientific acceptance can be a hollow ritual if the underlying issue of scientific acceptance has not been adequately litigated," the court concluded that "general acceptance of actuarial risk assessment has been thoroughly litigated in several states." (Internal quotation marks omitted.) Id. at 537. As an example, the Simons court reviewed a Florida appellate court opinion where the court reviewed testimony of four experts at trial (which showed that actuarial risk assessment was frequently used), "exhaustively examined" conclusions reached by a number of other psychologists in the academic literature, and "surveyed the nationwide jurisprudence," which uniformly found actuarial risk assessment evidence admissible. Id. at 537-39 (citing Roeling v. State, 880 So. 2d 1234, 1238-40 (Fla. Dist. Ct. App. 2004)). The court specifically noted the absence of judicial opinions contradicting the conclusion reached by the Florida court: "As importantly, we were unable to identify any state outside of Illinois in which expert testimony based upon actuarial risk assessment was deemed inadmissible on the question of sex offender recidivism." Id. at 539.
¶ 55 The Simons court then observed that several jurisdictions mandated actuarial risk assessment by statute or regulation. The court further "note[d] that the academic literature contains many articles confirming the general acceptance of actuarial risk assessment by professionals who assess sexually violent offenders for risk of recidivism." Id. at 541. Ultimately, the court concluded that "[t]aking all of this together-the case law, the statutory law, and the academic literature," it was "more than convinced that actuarial risk assessment has gained general acceptance in the psychological and psychiatric communities." Id. at 543.
¶ 56 The court encountered a very different landscape of judicial opinions and scientific literature in McKown I. In McKown I, the trial court admitted the results of Horizontal Gaze Nystagmus (HGN) testing, purportedly measuring involuntary rapid movement of the eyeballs. McKown I, 226 Ill. 2d at 247-48. On appeal, the defendant argued that the trial court erred in admitting the results of a test without first holding a Frye hearing to determine whether it was generally accepted that HGN testing is a reliable indicator of alcohol consumption. Id. at 247.
¶ 57 Our supreme court first determined that the methodology of HGN testing is novel for purposes of Frye "[g]iven the history of legal challenges to the admissibility of HGN test evidence, and the fact that a Frye hearing has never been held in Illinois on this matter." Id. at 258. The court relied on a decision of the California Supreme Court, which held that " 'HGN testing has been repeatedly challenged in court, with varying degrees of success, in this and other states, and accordingly its courtroom use cannot fairly be characterized as "routine" or settled in law.' " Id. at 257 (quoting People v. Leahy, 882 P.2d 321, 332 (Cal. 1994)). The McKown I court noted that since the California decision in 1994, "HGN testing has been repeatedly challenged in courts around the nation, and the issue remains unsettled." Id.
¶ 58 Turning to the issue of general acceptance, the court first reviewed the divergent decisions of the Illinois Appellate Court. While two districts of the Illinois Appellate Court had taken judicial notice of general acceptance of HGN testing as an indicator of intoxication, in another decision, People v. Kirk, 289 Ill. App. 3d 326 (1997), the appellate court declined to take judicial notice of the general acceptance of HGN testing. In Kirk, the appellate court found that in the seminal case establishing general acceptance relied on by most courts, the trial court had not conducted a Frye hearing, and the reviewing court relied on the testimony of the State's expert to establish general acceptance, as no defense witness had been called. Kirk, 289 Ill. App. 3d at 333-34; McKown I, 226 Ill. 2d at 263-65. Beyond the Kirk decision, the McKown I court reviewed several appellate court decisions from foreign jurisdictions and found that they were "as varied as the states that have made them" regarding the general acceptance of HGN testing. McKown I, 226 Ill. 2d at 272. The court concluded that these decisions did "not present the kind of unequivocal or undisputed viewpoint on the issue upon which a court can take judicial notice." Id.
¶ 59 Turning to the State's argument that the court could take judicial notice of the general acceptance of HGN testing "based on the technical writings on the subject," the court found that "HGN testing appears to have as many critics as it does champions." Id. at 275. Without an "unequivocal or undisputed viewpoint" from the scientific literature, the court decided that it could not "take judicial notice of the general acceptance of the HGN test as a reliable indicator of alcohol impairment based on these technical writings." Id. In contrast to its resolution in Simons, the McKown I court concluded that general acceptance could not be resolved on judicial notice alone:
"In light of the disparate resolutions of the issue in foreign jurisdictions, the varying opinions expressed in articles on the subject, the fact that a Frye hearing has never been held on the matter in Illinois, and the fact that, as far as we are aware, the last Frye hearing held on this controversial methodology was held in Washington in 2000, we hold that a Frye hearing must be held to determine if the HGN test has been generally accepted as a reliable indicator of alcohol impairment." Id. at 275.
With this framework in mind, we turn to the relevant methodology in this case.
¶ 60B. Latent Print Identification: The ACE-V Method
¶ 61 Print examiners compare impressions left by "friction ridge skin" found on the inner surfaces of the hand, the fingertips, between and along the fingers, the palms, and on the soles of the feet. While defendant does not dispute that human friction ridge skin is unique and permanent, defendant challenges the method used to match a latent print (i.e., a fingerprint impression that is not visible to the naked eye without chemical enhancement) with the print of an identified source. That method is known as "ACE-V," which signifies analysis, comparison, evaluation, and verification. While the steps performed under ACE-V are essentially the same steps performed by fingerprint experts over the last hundred years, ACE-V has been identified in forensic literature as a means of comparative analysis of evidence since 1959. National Research Council of the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward 137 (2009) (NRC Report). The ACE-V method has been generally described as follows:
"The process begins with the analysis of the unknown friction ridge print (now often a digital image of a latent print). Many factors affect the quality and quantity of detail in the latent print and also introduce variability in the resulting impression. ***
* * * *** If the examiner deems that there is sufficient detail in the latent print (and the known prints), the comparison of the latent print to the known prints begins.
Visual comparison consists of discerning, visually 'measuring,' and comparing-within the comparable areas of the latent print and the known prints-the details that correspond. The amount of friction ridge detail available for this step depends on the clarity of the two impressions. The details observed might include the overall shape of the latent print, anatomical aspects, ridge flows, ridge counts, shape of the core, delta location and shape, lengths of the ridges, minutia location and type, thickness of the ridges and furrows, shapes of the ridges, pore position, crease patterns and shapes, scar shapes, and temporary feature shapes (e.g., a wart).
At the completion of the comparison, the examiner performs an evaluation of the agreement of the friction ridge formations in the two prints and evaluates the sufficiency of the detail present to establish an identification (source determination). Source determination is made when the examiner concludes, based on his or her experience, that sufficient quantity and quality of friction ridge detail is in agreement between the latent print and the known print. Source exclusion is made when the process indicates sufficient disagreement between the latent print and known print. If neither an identification nor an exclusion can be reached, the result of the comparison is inconclusive. Verification occurs when another ...