Court of Appeals of Illinois, First District, Second Division
Rehearing denied June 20, 2013
Defendant’s conviction for aggravated criminal sexual assault was upheld over his contentions that the trial court’s questioning of prospective jurors violated Supreme Court Rule 431(b) and that his confrontation rights were violated by the admission of the testimony of a forensic analyst who relied on a report prepared by a nontestifying analyst, since defendant waived any objection to the trial court’s error in failing to ask the prospective jurors if they accepted the Zehr principles, and he failed to show any plain error occurred, and an expert may testify about a DNA analysis in another analyst’s report without violating the confrontation clause.
Appeal from the Circuit Court of Cook County, No. 07-CR-4556; Review Hon. Domenica A. Stephenson, Judge, presiding.
Michael J. Pelletier, Patricia Unsinn, and Brett C. Zeeb, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Amy Watroba Kern, and Robert Kline, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Terrence Kendrick was convicted of the aggravated criminal sexual assault of 16-year-old K.C. Defendant was subsequently sentenced to an extended-term sentence of 45 years' imprisonment. On appeal, defendant contends that (1) the trial court failed to adequately question prospective jurors pursuant to the requirements of Illinois Supreme Court Rule 431(b) (eff. May 1, 1997); and (2) the admission of testimony from a forensic analyst who relied on a DNA report prepared by a nontestifying third-party analyst violated his confrontation clause rights according to Crawford v. Washington, 541 U.S. 36 (2004). On December 8, 2010, this court affirmed the trial court in People v. Kendrick, No. 1-09-0120 (2010) (unpublished order under Supreme Court Rule 23). On January 30, 2013, our supreme court denied defendant's petition for leave to appeal and entered a supervisory order, directing this court to vacate our previously entered order and reconsider our decision in light of their decision in People v. Leach, 2012 IL 111534. People v. Kendrick, No. 111705 (Ill. Jan. 30, 2013) (supervisory order). We have vacated our previous order and again affirm the circuit court.
¶ 2 The evidence adduced at trial revealed that in the early morning hours of September 14, 2003, the victim was walking home from a party when defendant approached her from behind, put something against her back, and forced her into a car. Defendant drove to an alley, parked the car, and sexually assaulted the victim. Once he finished, defendant opened the car door and told the victim she could get out. When the victim got out of the car, defendant asked her if she needed any money to get home. The victim declined the money and walked to a nearby hospital, where she provided a blood sample and a vaginal swab for a sexual assault kit (kit). Nurse Evangeline Mondala sealed the kit and placed it in a secure lock box in the emergency room. On September 20, 2003, Pacita DeJesus, an emergency room nurse, released the kit to Officer Charles Widestrom, an evidence technician with the Chicago police department, who inventoried the kit under a unique inventory number and placed it in a secure locker prior to sending it to the Illinois State Police crime lab the next day. The kit was subsequently sent to Orchid Cellmark, a DNA testing facility, and analyzed by Nicole Laurent, a forensic analyst. Laurent submitted a report to the Illinois State Police crime lab stating that the vaginal swabs from the kit contained two DNA profiles, that of the victim and of a primary male donor.
¶ 3 In 2006, defendant was convicted on an unrelated felony and, pursuant to a court order, was required to provide a blood sample for the Combined DNA Index System (CODIS). Defendant's DNA was subsequently analyzed at the Illinois State Police crime lab and determined to be a match with the DNA profile from semen recovered from the victim's vaginal swabs. On February 8, 2007, the victim viewed a lineup and positively identified defendant as her attacker. Defendant was charged with several counts of aggravated criminal sexual assault, criminal sexual assault, and criminal sexual abuse.
¶ 4 Prior to trial, defendant filed a motion in limine, seeking to exclude the testimony of Wanda Kuperus, a forensic scientist from Orchid Cellmark, whom the State intended to call as a witness to testify regarding that laboratory's DNA testing and analysis of the victim's sexual assault kit. Defendant argued that because Kuperus did not actually perform the DNA testing, her testimony would lack proper foundation and would violate his sixth amendment confrontation right. The trial court denied defendant's motion and ruled that Kuperus would be permitted to testify if the State laid a proper foundation for her qualifications as an expert and established that such testimony is relied upon in the DNA field.
¶ 5 At trial, Kuperus was accepted as an expert in the fields of DNA analysis and forensic biology without objection from defendant. Kuperus testified that Orchid Cellmark is an accredited laboratory and described the process of accreditation, proficiency testing, and technical review. Kuperus explained to the jury what DNA is, how DNA analysis is performed, and how DNA profiles are developed. Kuperus stated that the methods of DNA analysis used at Orchid Cellmark are generally accepted in the scientific community.
¶ 6 Kuperus testified that Orchid Cellmark was asked to perform forensic biology and DNA analysis on the victim's sexual assault kit, which arrived at Orchid Cellmark in a sealed condition on February 24, 2004. Kuperus used Orchid Cellmark's case file and report from the instant case during her testimony, without objection from defendant. Kuperus testified that the victim's DNA profile was developed from a blood standard that was included in the kit. According to Kuperus, the vaginal swabs from the kit were tested and found to contain a mixture of two DNA profiles, the victim's and a male donor's. Kuperus opined to a reasonable degree of scientific certainty that the bodily fluid from the male DNA profile was from semen. Kuperus stated that the DNA results generated by Orchid Cellmark were summarized in a report and submitted to the Illinois State Police crime lab. That report included the DNA profile of the victim and of the unknown male donor. Kuperus said that she technically reviewed that report prior to testifying and verified that a proper chain of custody was maintained over the evidence at all times and that the proper protocol was followed during the testing done by Orchid Cellmark.
¶ 7 Prior to cross-examination, defense counsel renewed his motion in limine regarding Kuperus's testimony based on a lack of foundation and confrontation clause grounds. The trial court again denied the motion, stating:
"[T]he State did lay a proper foundation insofar as Ms. Kuperus testified that all of the testing that was done is tests that are commonly recognized and accepted in the scientific community. So the foundation was laid. I don't feel that the State has to show that Miss Laurent is unavailable because you have the expert here who is available for cross-examination and you can confront her and cross-examine her. She's forming her opinion as her opinion not anyone else's opinion, it's her opinion based on notes from somebody else and those notes ...