Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County No. 07 CR 20512 The Honorable Neera Walsh, Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
HARRIS PRESIDING JUSTICE
¶ 1 Defendant, William Chaban, appeals his conviction after a jury trial for first-degree murder and his sentence of 45 years' imprisonment. On appeal, Chaban contends (1) the trial court erred in admitting a lay witness's opinion on his guilt or innocence; (2) the trial court erred in denying Chaban's motion in limine to bar evidence of his alleged consciousness of guilt; (3) the prosecutor in closing argument made several misstatements of fact not based on the evidence which denied him a fair trial; and (4) the State did not prove him guilty beyond a reasonable doubt. For the following reasons, we affirm.
¶ 2 JURISDICTION
¶ 3 The trial court sentenced Chaban on August 3, 2011. He filed a notice of appeal on August 19, 2011. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 4 BACKGROUND
¶ 5 Chaban was convicted of first-degree murder in the death of his mother-in-law, Irena Opalinska. Prior to his trial, defense counsel filed a motion in limine to preclude the State from presenting evidence tending to show that Chaban and his wife, Dorota Opalinska, did not respond to police inquiries. The motion referred specifically to two episodes: the first episode took place from June 18, 2007, to June 29, 2007, during which time detectives made several phone calls to either Chaban or his wife but received no response in return; the second episode occurred in September of 2007, after DNA evidence purportedly connected Chaban to the victim. On several occasions police made appointments to meet with Chaban but he never kept those appointments. Defense counsel argued that the trial court should not admit this evidence since at the time Chaban was unaware that he was the focus of the investigation. The State responded that Chaban was not the focus at the time because he initially lied to police, but nevertheless the evidence is probative of Chaban's consciousness of guilt. The court determined that the probative value of the evidence on the issue of Chaban's consciousness of guilt outweighed any unfair prejudice to him and allowed admission of the evidence.
¶ 6 At trial, Julie Mack testified for the State. Mack stated that in June of 2007, she and the victim, Irena, worked in the office of Dr. Neil Hagen. Dr. Hagen was an oral and maxillofacial surgeon, and Irena worked as his surgical assistant. Mack was the office manager. Mack testified that she trained Irena for the job, which involved preventing cross-contamination, ensuring the cleanliness of the office, setting up the necessary instruments, and prepping patients. Mack described Irena as "very particular and meticulous." Mack stated that she and Irena socialized outside of the office and talked on the phone "a couple times a week."
¶ 7 On Friday, June 15, 2007, Mack worked at Dr. Hagen's office until 1:30 to 2 p.m. When she left, Irena was still at work. Before leaving, Irena told Mack that she would call her later because they had made plans for her to visit Mack at her home around 9 a.m. on Saturday. Mack called Irena's home phone around 8 p.m. on June 15, and she left a message on Irena's answering machine. When Irena did not come to Mack's house on Saturday, Mack tried calling her home again but received no answer. She did not hear from Irena on Sunday or on Monday, June 18.
¶ 8 Dr. Hagen testified that he first met Irena in 1990 when she helped clean his home. After 10 years, Irena told Dr. Hagen that she could no longer do this kind of work and he offered to train her to work as a surgical assistant in his office. In June of 2007, Irena had been working in his office as a surgical assistant for about seven years. He described her as "the best assistant [he had] ever had." Irena was a diligent worker who never missed work without first contacting him. Dr. Hagen testified that although his office is not an operating room, it "function[s] in the same sterile fashion." Thus, he requires his surgical assistants "to, first thing in the morning, when they come in, wash their hands, forearms, fingernails. Be sure everything is thoroughly clean." Prior to each surgical procedure, the assistants must wash their hands before putting on gloves. After taking off the gloves, they wash their hands again because the gloves leave a "sticky film."
¶ 9 Dr. Hagen stated that Irena assisted him in two surgeries on June 14, 2007, and on June 15, 2007, she assisted him in five surgeries. He recalled that on June 15, 2007, Irena "uncharacteristically asked to leave early that day." Dr. Hagen said yes and she left around 3:30 p.m. When she left, she wore a sweater draped across her back with the sleeves crossed in the front. Dr. Hagen testified that he did not have office hours on June 16 or 17 so Irena was not scheduled to come into work on those days. However, Irena was scheduled to work on Monday, June 18. Dr. Hagen testified that Irena "always shows up by 7:00" on work days but on June 18, 2007, she did not show up for work. Dr. Hagen asked his wife to check on Irena, since they were "quite close, " and he subsequently learned that Irena was found dead in her condominium.
¶ 10 Detective Adam Katz testified that he is a violent crimes detective with the Chicago police department. On June 18, 2007, he was assigned to a death investigation at 6505 North Nashville. He walked into a bedroom and observed dark stains that appeared to be dried blood on the carpet. He saw a chair "that looked out of place" and noticed the bed had been moved because it appeared crooked. He saw pieces of hard black plastic and a black purse on the ground. He also observed some books and one slipper on the ground.
¶ 11 Detective Katz then went into the adjacent bathroom where he saw the victim, Irena, in the bathtub. He noticed the shower curtain "laying across the commode and the top of the bath." Irena was lying on her right side with her left arm over her head. Detective Katz also observed "a lot of blood in the bathtub" and blood on the ceramic tile walls of the bathroom. Detective Katz next walked through the condominium and noticed no unusual damage to the front door or sliding door to the patio. When crime lab technicians arrived on the scene, Detective Katz asked them to place bags on the victim's hands in order to preserve any DNA evidence from them.
¶ 12 The State asked Detective Katz to identify photographs of the crime scene. In one photograph, he identified Irena in the bathtub and noted that she was wearing a slipper on her right foot. He also noted the black sweater that was around her neck.
¶ 13 Detective Katz testified that he spoke with Irena's daughter, Dorota, when he was at the crime scene. Chaban was also at the scene. On July 20, 2007, he received information from forensic services that male DNA was recovered from Irena's fingernails. The police asked Chaban for a buccal swab, which he agreed to give. The swab was submitted for testing and after receiving the test results, Detective Katz contacted Chaban by phone and set up an appointment for them to meet. Chaban, however, did not show up at the scheduled time so Detective Katz contacted him again to reschedule the meeting. Chaban did not show up for the rescheduled meeting either. Detective Katz testified that he attempted to contact Chaban by phone several more times but was unable to reach him. He stated that his "[m]essages weren't returned." On September 5, 2007, Detective Katz arrested Chaban as he was walking to the condominium at 6505 North Nashville.
¶ 14 On cross-examination, Detective Katz stated that no prints were taken from the front door or the patio door on June 18, 2007. Detective Katz stated that he did not form the opinion that the black sweater around Irena's neck was the murder weapon. He acknowledged that Chaban at the time was a resident of the Joliet area.
¶ 15 Detective Dino Amato testified that he works in the Chicago police department and primarily deals with violent crimes. On June 18, 2007, he was assigned to the second watch of an investigation at 6505 North Nashville. When he arrived at the scene, he observed that the condominium "appeared very normal. It was neat. The items within the apartment appeared to be largely undisturbed." He noticed valuables such as televisions and VCRs, and also noticed jewelry atop the bedroom dresser that "didn't appear disturbed." The dresser drawers were closed. He also observed that the front door and sliding door appeared normal, with no signs of damage or forced entry. The windows also appeared normal.
¶ 16 Around 4:20 p.m. that afternoon, he returned to the police station accompanied by Dorota and Chaban. He interviewed them separately in his office. He asked both their whereabouts around June 12, 2007. Chaban answered that on June 12, they had returned from their vacation in Las Vegas, where they were married. On June 13, 2007, he and Dorota went to Irena's condominium and informed her of their marriage in Las Vegas. Chaban told him that when she learned of the marriage, Irena became very upset because it happened without her knowledge or consent. Irena told Chaban to sit in the hallway while she spoke privately to her daughter. Chaban also told Detective Amato that Irena did not like him because he was not of Polish descent. Irena and Dorota settled the matter in their conversation and he and Dorota left the condominium that night. Chaban told him that on June 14, 2007, he spent the entire day working at his auto detailing business in Lockport, Illinois. On June 15, he went to pick up Dorota from Northeastern University, where she attended school. They returned to Lockport and spent the evening watching movies with his family. When asked whether Chaban told him he was in Irena's condominium at any time on June 15, 2007, Detective Amato answered, "No, ma'am."
¶ 17 On June 16 and 17, Chaban worked with his father selling goods at a flea market, which he did on the weekends. Chaban told him that on June 18, 2007, he picked up Dorota at Northeastern and she told him that she had not heard from her mother and was concerned. After stopping to get a sandwich, they drove to Irena's condominium to check on her. They found her in the bathtub. After he interviewed Dorota and Chaban, Detective Amato drove them back to the condominium at 6505 North Nashville. On cross-examination, Detective Amato stated that Chaban was cooperative and answered his questions. On redirect, Detective Amato reiterated that Chaban never told him that he was at the condominium on June 15, 2007, or that his wife was there on that day. Detective Amato later learned that Chaban was in fact in the condominium on June 15, 2007.
¶ 18 Detective Tim McDermott testified that he works in the Chicago police department as a detective in the homicide unit. On June 18, 2007, he and his partner were assigned to assist the investigation at 6505 North Nashville. When he arrived on the scene, he observed no signs of forced entry. From June 18 to June 29, 2007, he tried to contact Dorota and Chaban by making daily phone calls. He received no response and his voicemails were not returned. After failing to contact them for two weeks, on June 29, 2007, he and two other detectives went to Irena's wake, where he found Dorota. While speaking to her about why she has not returned his calls, Chaban approached them. He was irate and demanded to know why Detective McDermott was interviewing Dorota. Detective McDermott explained that they needed to follow up with their investigation and contact family members, who were "important [in] bringing this matter to a conclusion." Chaban explained that he had not passed on the messages to Dorota because his wife was upset over her mother's death. Detective McDermott then gave them his contact information, as well as that of the two other detectives with him, before leaving the wake. Detective McDermott testified that from June 29, 2007, to the date Chaban was arrested, neither Chaban nor Dorota contacted him or the other detectives.
¶ 19 On cross-examination, Detective McDermott acknowledged that he did not submit his report of his interview with Dorota on June 29, 2007, until December of 2007. He also testified that his report did not contain any statements about Chaban not contacting detectives from June 29 to the date of his arrest.
¶ 20 Dr. Joseph Cogan testified that he works as a pathologist at the Cook county medical examiner's office. On June 19, 2007, Dr. Cogan performed Irena's autopsy and recorded his findings in a protocol report. He performed both an external and internal examination of the body. The external examination revealed "a lot of bruises" and a set of injuries on her upper back, "over the scapula, on the right and left sides." The injuries to the back were symmetrical, which Dr. Cogan found "a little bit strange." He observed 12, maybe 13, points of injury including contusions and abrasions on the top of the head, as well as on the left side and back of the head, and the forehead area. He stated that these injuries were associated with a fair amount of hemorrhage. Dr. Cogan also observed an internal injury to the brain, a subarachnoid hemorrhage. Such hemorrhaging occurs when there is some trauma that breaks the blood vessels in the thin arachnoid layer that covers the brain, and blood leaks into that area. Dr. Cogan found that Irena's major organs, such as her heart and lungs, were in good shape.
¶ 21 Dr. Cogan testified that Irena's injuries were found on the upper chest, neck and head area, which raised "a great deal of suspicion" in his mind. He explained that injuries from an accidental fall would generally be confined to one surface of the body, like a bruise to a knee or elbow. When these injuries occur in different locations as on Irena's body, it is an indication of an inflicted injury consistent with being attacked. Dr. Cogan stated that he suspected homicide at the time, but he reserved until later his ruling on the cause of death. Although Irena's inflicted injuries were serious, "they didn't seem to be the striking blow or the killing – a killing injury."
¶ 22 Since he was not clear on the cause of death, Dr. Cogan wanted to consult with the police. Dr. Cogan reviewed police photographs of Irena as she was found at the scene of the crime. In the photographs, Dr. Cogan saw the sweater wrapped around Irena's neck and it came to him that "the sweater explains the cause of death." He also had the opportunity to examine the sweater. The silk sweater was "very elastic and soft, and could be used as a ligature to the neck." In that case, it would leave very little to no injury in the soft tissue of the neck where normally one observes injuries from strangulation. An attacker using the sweater to strangle Irena also explained the symmetrical bruises found across the scapula. The injuries "would be consistent with somebody pulling from behind, possibly using her own body to get that tension on the sweater around her neck."
¶ 23 He explained that these types of strangulations with no external markings on the neck are often found in jail hangings "where people use pieces of their garments or torn up sheets to make a noose." No deep hemorrhaging occurs. However, one does often find petechiae hemorrhaging, which occurs when strangulation stops the blood from coming out of the head and toward the heart. The resulting pressure builds in the small blood vessels, which burst, leaving "just a small pinhead size of blood." Petechiae hemorrhaging can be seen in people with fair skin or in the conjuctiva of the eyes. However, Dr. Cogan did not observe this hemorrhaging in Irena because her body was in a state of decomposition where the blood had been broken down. Dr. Cogan could not give a precise time of death; however he determined that "from the state of decomposition, [it] looks like it's probably more than 24 hours."
¶ 24 Based on all of this information, Dr. Cogan formed an opinion within a reasonable degree of medical certainty that the cause of Irena's death was strangulation, with blunt force injuries as contributing factors. The manner of death was homicide.
¶ 25 On cross-examination, Dr. Cogan was presented with the initial death certificate issued for Irena. It listed her cause of death as status asthmaticus, which would indicate the person died in a severe asthmatic attack. Dr. Cogan stated that the death certificate listed an incorrect cause of death. He also stated that he informed the police that the cause of death was strangulation. Dr. Cogan testified that he found no horizontal circular wound from strangulation on Irena's neck, and no damage to the larynx or hyoid bone. When asked about a report which showed that a homicide occurred on June 18, 2007, at 12:40 p.m., Dr. Cogan responded that the time indicates when "the body is found."
¶ 26 On redirect examination, Dr. Cogan was presented with the handwritten death certificate he issued on September 5, 2007, listing the cause of death as strangulation. He did not issue the other death certificate, which was typed, listing the cause of death as status asthmaticus. He explained that when a cause of death is indicated, a clerk will look for it on a list of codes and type in the corresponding code number when typing out the certificate. When the code is typed, "the cause of death will appear typed out, on the death certificate." Dr. Cogan stated that the code for status asthmaticus is 0246 and the code for strangulation is 0249. He stated that the clerk made a typographical error in entering the code for cause of death on the first certificate. On recross, Dr. Cogan acknowledged that the date of death listed on the certificate was June 18, 2007.
¶ 27 The State then proceeded by way of stipulations. First, the parties stipulated that if called to testify, forensic investigators Susan Wolverton and Thomas Mander would state that they arrived at the crime scene at 6505 North Nashville around 3:20 p.m. on June 18, 2007. They photographed the scene, collected and inventoried evidence, and took swabs of stains and blood. "They would testify that they followed the proper police procedures and maintained a proper chain of custody at all times." Next, the parties stipulated that if called to testify, Chicago police evidence technician Victor Rivera would state that on June 19, 2007, he received an assignment to transport evidence from the medical examiner's office. He would testify that he inventoried the evidence after following proper procedures and maintained a proper chain of custody at all times.
¶ 28 The parties also stipulated that if called to testify, Mike Skorek would state that he works for the Chicago police and is trained in obtaining buccal swabs. He would testify that on July 31, 2007, he took a buccal swab from Chaban at 6505 North Nashville. He followed proper police procedures by swabbing the inside of Chaban's mouth and sealing the swabs in an envelope. He inventoried the swabs and sent the sealed swabs to the crime lab for testing and analysis. He would testify that he maintained a proper chain of custody at all times.
¶ 29 The State then called its next witness. Megan Neff testified that she works as a forensic scientist for the Illinois State Police. She performs biological testing of evidence received from police agencies and issues a report based on her findings. As part of her duties, she conducts DNA analysis on materials she receives. In forensic DNA analysis, she obtains DNA profiles from the material as well as from standards obtained from persons involved in ...