Court of Appeals of Illinois, First District, Sixth Division
Rehearing denied August 13, 2013.
Defendant’s convictions and sentences for aggravated criminal sexual assault were upheld over his contentions that “other crimes” evidence was improperly introduced and that the testimony of one DNA analyst involved in his case violated his right to confront the witnesses against him, since the trial judge considered the similarities and dissimilarities between the charged assault and the other offense and his decision to admit the evidence of the other assault despite the dissimilarities was not unreasonable, arbitrary or fanciful, and was not an abuse of his discretion, and the fact that the State called only the forensic supervisor of the team of technicians who performed the preliminary work leading up to the DNA analysis presented by the supervisor did not violate defendant’s right to confront the witnesses against him.
Appeal from the Circuit Court of Cook County, No. 08-CR-12212; the Hon. William G. Lacy, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Charles W. Hoffman, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Tasha- Marie Kelly, Amy M. Watroba, and Koula A. Fournier, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Lampkin concurred in the judgment and opinion. Justice Gordon specially concurred, with opinion.
¶ 1 Following a jury trial held in the circuit court of Cook County, defendant Keith Nelson was found guilty of one count of aggravated kidnaping and three counts of aggravated criminal sexual assault. The trial court sentenced defendant to four consecutive 25-year terms in the Illinois Department of Corrections. Defendant now appeals, arguing: (1) the trial court erred in allowing the State to introduce "other crimes" evidence to show defendant's intent, motive and propensity to commit sex crimes; and (2) his constitutional right to confront the witnesses against him was violated by the State's presentation of expert testimony from a DNA analyst. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 Defendant was charged by indictment with aggravated kidnaping and aggravated criminal sexual assault. The charges arose from a May 26, 2006, incident in which C.G. was forcibly taken to the backyard of a building at 7214 South Calumet Avenue in Chicago, where she was sexually assaulted.
¶ 4 Prior to trial, the State filed a motion in limine to introduce "other crimes" evidence demonstrating defendant sexually assaulted S.C. in a separate incident. Pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2006)), the State sought to introduce this evidence to establish not only defendant's intent and motive, lack of consent, modus operandi and common scheme or design, but also his propensity to commit sex offenses, based on the proximity and time and similarity of the assaults against C.G. and S.C. Following a hearing, the trial court granted the State's motion, over the defendant's objection that the evidence was more prejudicial than probative.
¶ 5 The State also filed a pretrial motion in limine seeking to present DNA evidence through testimony from Matthew Quartaro of Orchid-Cellmark (Cellmark), a private laboratory which performs DNA analyses for law enforcement agencies, criminal defense lawyers and private individuals. The motion indicated Cellmark conducted DNA testing in this case. The State acknowledged Quartaro "is not the analyst who performed the mechanical aspects of the DNA testing, " but he was one of the forensic supervisors who bears responsibility for Cellmark's DNA testing. The State also asserted Quartaro reviewed the data generated by the analysts who worked on this case, checked the work to ensure it was done properly, verified the chain of custody and ensured the evidence was properly stored and handled, and ultimately he reached independent conclusions from the test data. At the hearing on the motion, defense counsel objected on the grounds Quartaro's testimony was hearsay and would violate defendant's right to confront the witnesses against him under the sixth amendment to the United States Constitution. The trial court granted the State's motion.
¶ 6 At trial, C.G. testified that in May 2006, she was 17 years old and living with her cousin at 7208 South Calumet Avenue in Chicago. On May 25, 2006, C.G.'s boyfriend dropped her off in front of her residence at approximately 11 or 11:30 p.m. C.G. did not have a key, so she rang the doorbell, but no one answered. C.G. told her boyfriend he could leave because her cousin's best friend, Ashley, and a boy named Jordan were sitting in a parked automobile in front of the residence. C.G. talked with Ashley and Jordan until Ashley left. C.G. and Jordan then drove the automobile around the block to get something to eat, after which they returned to the residence. According to C.G., Jordan said he had to leave, so C.G. exited the vehicle and sat on the front porch for a while.
¶ 7 C.G. testified she became impatient and decided to walk to the corner of 72nd Street and Calumet Avenue. When C.G. reached the corner she noticed a man she later identified as defendant walking toward her. C.G. turned around and commenced walking back toward her residence. According to C.G., defendant approached her and asked, "What's your name?" C.G. also testified defendant was wearing a black sleeveless shirt, shorts and a black, fingerless glove. C.G. described defendant as muscular, with "a lot of facial hair" and "a lot of tattoos." C.G. specifically noticed tattoos of the face of Jesus and a cross on his left side.
¶ 8 C.G. further testified she did not want to speak to defendant, so she provided false answers to his questions. When C.G. and defendant reached the portion of the street opposite the residence, C.G. requested the use of defendant's cell phone. Defendant handed C.G. the cell phone and she dialed her cousin's telephone number, but there was no response. C.G. returned the cell phone to defendant and said goodbye.
¶ 9 According to C.G., as she stepped in front of the residence, defendant lunged at her. C.G. testified defendant attempted to grab her and she struck him. C.G. also testified defendant grabbed her right hand and bit her below the thumb. C.G. further testified defendant punched her face several times. When C.G. began screaming for defendant to stop, he placed his forearm against her throat and choked her. C.G. began to lose consciousness and fell to the ground.
¶ 10 C.G.'s next recollection was defendant walking her down 72nd Street and turning into an alley. C.G. testified she again lost consciousness and, when she regained it, realized defendant had pinned her against the wall of a garage with his arm. According to C.G., defendant ordered her to remove her clothes. When she refused, defendant ripped her pants open and forced her to the ground on all fours. C.G. further testified defendant again choked her until she lost consciousness.
¶ 11 When C.G. again regained consciousness, defendant was inserting his penis into her vagina. C.G. told defendant to stop; defendant responded he would kill her if she did not shut up. According to C.G., defendant then inserted his penis into her anus, then again in her vagina, then again in her anus, then again in her vagina. C.G. requested defendant stop because she needed to defecate. Defendant refused to stop, responding, "If you shit on me, I'm going to kill you." C.G. further testified defendant turned her around and forced his penis into her mouth. Defendant turned C.G. around again, choking her while stating, "I bet the next time you see me you're gonna want to talk to me."
¶ 12 Defendant left the area, in the direction of 72nd Street, while C.G. remained on the ground. C.G., after waiting a while, walked toward 73rd Street then back down Calumet Avenue toward 72nd Street. C.G. testified she walked "the long way" because she was afraid to walk directly toward 72nd Street. According to C.G., she was naked below the waist, except for socks. As she approached the street, C.G. observed her cousin and screamed her cousin's name. C.G. waited on the front porch for the police to arrive. C.G. was hysterical when the police arrived and had difficulty speaking to them because her throat hurt. C.G. did not recall whether she had conversations with the first responding police officers. C.G. was subsequently transported to St. Bernard Hospital by ambulance. C.G. testified she was examined by physicians there, including swabbing of her mouth, vagina and anus.
¶ 13 C.G. acknowledged she did not know defendant prior to the incident. C.G. testified that on June 15, 2006, she spoke to a police detective at Area 2 police headquarters and worked with a sketch artist. On June 2, 2008, C.G. identified defendant as the man who sexually assaulted her on May 26, 2006, from a photo array shown to her by a police detective. On June 6, 2008, C.G. identified defendant as her attacker during an in-person lineup. C.G. also identified photographs depicting: the garage and back yard where the assault occurred; the clothing she left behind at the scene; the bite mark on her hand and bruises on her arm, elbow and face following the assault; and the tattoo of the face of Jesus she observed on defendant's left arm.
¶ 14 Latoya Jones testified that on May 25, 2006, she lived in a second-floor apartment at 7214 South Calumet Avenue. When she arrived home at approximately 10 p.m., she saw a young woman who lived at 7208 South Calumet Avenue sitting on her front porch. Later in the evening, she heard a woman's screams that sounded as though they came from her yard, or the next yard over. Jones testified she went to her window, but did not see anything. Jones did not telephone the police.
¶ 15 Chicago police officer William Stec testified he was employed as an evidence technician for the Chicago police department for the past 13 years. Officer Stec testified he was working on the evening of May 25, 2006, into the early morning hours of May 26, 2006. Officer Stec was assigned to process a crime scene located at 7214 South Calumet Avenue at approximately 2:20 a.m. Officer Stec photographed the scene and observed blue panties, black pants, a pair of shoes and a silver belt on the grass next to the garage. Officer Stec recovered and inventoried these items. According to Officer Stec, the pants did not appear to be torn and the belt buckle was not broken off from the belt.
¶ 16 Dr. Jihun Lee testified he was an emergency room resident at St. Bernard Hospital on May 26, 2006. Dr. Lee examined C.G. and found no trauma to her external genitalia or anus, which is not uncommon in sexual assault cases. Dr. Lee observed C.G. had swelling to her left jaw, bruising on her neck, hemorrhaging and swelling around her eyes, and a bite mark on her right hand. Dr. Lee opined the injuries around her eyes could be the result of trauma or choking. Dr. Lee also identified photographs of these injuries.
¶ 17 Maria Duce testified she was a nurse at St. Bernard Hospital on May 26, 2006. Duce testified she collected samples from C.G. for a sexual assault kit. Duce swabbed C.G.'s mouth, vagina and anus and took scrapings from under C.G.'s fingernails. Duce identified the sexual assault kit she prepared.
¶ 18 The parties stipulated that if called as a witness, Nora Alberto would testify she also was a nurse at St. Bernard Hospital on May 26, 2006, and assisted in C.G.'s treatment. Alberto would testify the sexual assault kit collected by Dr. Lee was sealed and provided to Chicago police officer Robert McGivney. The parties also stipulated that if called as a witness, officer McGivney would testify he was employed as an evidence technician for the Chicago police department on May 26, 2006. Officer McGivney would also testify he received the sexual assault kit and a bag of clothing at St. Bernard's Hospital, both of which he inventoried.
¶ 19 Jennifer Bell, a forensic scientist for the Illinois State Police, testified she received the sexual assault kit for C.G.'s case on August 22, 2007. According to Bell, C.G.'s vaginal and anal swabs both tested positive for the presence of semen, but the oral swab did not. Bell preserved all of the swabs, along with C.G.'s blood standard, for DNA testing.
¶ 20 Quartaro, who supervises a team of eight DNA analysts at Cellmark, as well as testing samples himself, was declared an expert in the field of forensic DNA analysis without objection. Quartaro testified Cellmark was asked to perform forensic DNA analysis on samples under a Cellmark case number associated with a Chicago police department case number. According to Quartaro, on January 16, 2008, Cellmark received a vaginal swab, a rectal swab and a reference blood sample from C.G. to determine whether Cellmark could identify any unknown DNA from the swabs.
¶ 21 Quartaro described the procedures utilized at Cellmark, which works in an assembly line or team format, so that people who excel at specific tasks perform those specific tasks. According to Quartaro, there are individuals who examine the evidence to determine which portions are sent for DNA testing. There are also individuals who extract or purify DNA from those samples. Quartaro testified the bulk of the work is performed by robotic instrumentation in the wet chemistry lab. Finally, there are individuals who examine the data generated from this process and prepare a report.
¶ 22 Quartaro further testified that in this case, he examined the evidence received from the Illinois State Police and took cuttings to send for DNA testing. Quartaro also reviewed the data and documentation and performed the analysis on the data generated from the case. Quartaro authored the report in this case for Cellmark.
¶ 23 Quartaro testified Cellmark was able to obtain a DNA profile from the reference blood standard collected from C.G. Cellmark had information that semen previously had been identified from C.G.'s vagina and rectal swabs. A DNA profile for C.G. was identified from the swabs, as was a DNA profile for an unknown male. Quartaro further testified, over a defense objection, that the proper controls were run in this case to ensure the instruments were functioning properly. In addition, Quartaro testified, again over a defense objection, that a proper chain of custody was maintained over the samples at all times. Cellmark ...