Court of Appeals of Illinois, First District, Fifth Division
In a prosecution for first degree murder, home invasion and armed robbery where there were no eyewitnesses, defendant was arrested three years later as a result of information provided by a jailhouse informant, no one testified he was near the scene, he made no statement to the police, and identification based on DNA evidence was the issue at trial, defendant’s convictions were reversed and the cause was remanded for a new trial, since the trial court found defendant guilty by mistakenly recalling that defendant’s DNA expert agreed with the conclusion of one of the State’s experts that “certainly it was” defendant and that mistake was not harmless beyond a reasonable doubt.
Appeal from the Circuit Court of Cook County, No. 08-CR-7754; the Hon. Frank Zelezinski, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Katherine M. Donahoe, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Peter D. Fisher, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion.
GORDON PRESIDING JUSTICE
¶ 1 Defendant Crandall Williams was convicted, after a bench trial, of (1) first degree murder, (2) home invasion and (3) armed robbery. After hearing factors in aggravation and mitigation, the trial court sentenced him to consecutive terms of 80 years for first degree murder, 20 years for home invasion, and 20 years for armed robbery, for a total of 120 years in the Illinois Department of Corrections (IDOC).
¶ 2 On this direct appeal, defendant raises only one issue for our consideration. He argues that he was denied due process of law when the trial court based its finding of guilt at his bench trial on a mistaken recollection of the testimony of the defense's DNA expert. For the following reasons, we reverse and remand for a new trial.
¶ 3 I. Background
¶ 4 In the case at bar, someone broke into the home of 82-year-old Walter Pinianski, burglarized his house and stabbed him to death. The only issue at trial was the identity of the perpetrator. There were no eyewitnesses, and defendant was not arrested at the crime scene but rather three years later.
¶ 5 The State's identification evidence consisted solely of: (1) DNA evidence; and (2) the testimony of a jailhouse informant. The DNA evidence was obtained from a pair of bloody gloves found inside the victim's home. The blood came only from the victim, but a swab of the inside of the gloves revealed a mixture of DNA material which was contributed by at least three different individuals. Thus, at least three different people had worn the gloves.
¶ 6 The DNA evidence was reviewed by two laboratories that did the original tests and generated the data and by two experts retained by each side to review the already-generated data and offer additional interpretations of it. The two laboratories were operated by the Illinois State Police and Bode Laboratories (Bode); and the two experts were Dr. Rick Staub of Cellmark Laboratory (Cellmark), for the State; and Dr. Karl Reich of Independent Forensics Laboratory, for the defense. Of these four laboratories–the Illinois State Police, Bode, Cellmark and Independent Forensics–only Dr. Staub of Cellmark concluded that defendant was a match. Dr. Staub disagreed with all the other laboratories, including the Illinois State Police.
¶ 7 Of the three laboratories engaged by the State, not one agreed with the other. All three–the Illinois State Police, Bode Laboratories, and Cellmark–interpreted the data differently and reached different conclusions about which alleles from the mixture could be attributed to the major contributor. Although acknowledging that he disagreed with the other experts, the State's expert, Dr. Staub of Cellmark, testified that he alone interpreted the data to identify the alleles belonging to the major contributor in such a way that they matched defendant's profile. Dr. Staub admitted that he had defendant's profile in his possession, as he was trying to determine the profile of the major contributor, and that he did not rely on mathematical calculations in determining which alleles belonged to the major contributor, although he admitted that "[g]enerally, there is a mathematical relationship." However, on rebuttal, he testified that he made some calculations while the defense expert was testifying.
¶ 8 The defense expert, Dr. Karl Reich of Independent Forensics, explained why the mixture made an identification impossible and why all that could be concluded was that defendant could not be excluded as a possible contributor.
¶ 9 At the close of the bench trial, the trial court found that the testimony of James Worthem, the jailhouse informant, "must be viewed with extreme caution" and that it was merely "corroborati[ve] [of the] other evidence." No other witness placed defendant in the neighborhood where the offense occurred, and there was no statement by defendant to the police. However, relying primarily on the DNA evidence, the trial court found defendant guilty. In describing the DNA evidence, the trial court mistakenly stated: "regardless of all, Dr. Reich did, through laborious cross-examination, have to indicate that certainly it was still the defendant." It is this mistake in recalling the testimony of defendant's sole witness that is at issue on appeal.
¶ 10 A. The State's Evidence
¶ 11 The State's first witness was Patricia Pinianski, the victim's daughter. She testified that Walter lived at 12500 South Paulina Street in Calumet Park for 48 years. In 2005, Patricia's husband was suffering from brain cancer, and Patricia called Walter every couple of days to let him know how her husband was doing. On February 9, 2005, when Patricia was unable to reach her father, she called the Calumet Park police to request a wellness check.
¶ 12 Patricia testified that Walter's house was very neat and uncluttered. He kept a lot of cash in various places in the house, such as in an envelope in a closet above the doorway; in a compartment of an old desk in the living room; and in a drawer in his bedroom.
¶ 13 The State's second witness, Angela Sanchez, testified that, on February 4, 2005, she worked as a bank teller at the Great Lakes Bank located at 13057 South Western Avenue in Blue Island. At 1:51 p.m. on that day, Walter Pinianski made a deposit of two checks totaling $1, 660.99 into his account, and withdrew $800 in cash.
¶ 14 The State's third witness was Judith Boyer, an assistant vice president of security at Great Lakes Bank, who identified a Great Lakes Bank savings deposit slip with Walter Pinianski's name on it. The automated stamp on the back of the slip indicated that the deposit was made on February 4, 2005, at 1:51 p.m., and that the bank teller who processed the transaction was Angela Sanchez, whose teller identification number was 718. The automated stamp was done in the ordinary course of business of Great Lakes Bank.
¶ 15 The State's next witness was Judith Chapan, a 911 dispatch operator at the Calumet Park police department, who identified call records from February 6, 2005, that had been authored by her partner. The records documented 911 calls by Walter Pinianski and indicated that Walter's first call was at 1:34 a.m. on February 6, 2005. The record of this call stated: "[a] male subject was knocking on the door asking for $5.00. Last seen walking southbound on Paulina from address." Walter's next call was at 1:36 a.m. and concerned "a male subject banging on the door."
¶ 16 The State's next witness, John Shefcik, was a patrol officer at the Calumet Park police department in February 2005. On February 9, 2005, at 9:18 p.m., he was assigned to do a wellness check on Walter Pinianski at his residence. While Shefcik had been to Walter's residence to check on his well-being several times before, he had not been there that week.
¶ 17 Shefcik testified that Walter's house is a small brick ranch home on a pie-shaped double lot with a large yard which wraps around the house. There is no garage. To the north is an alley which also borders the Metra train tracks. To the east is Paulina Street. To the west, behind the house, is an alley, and then Page Street. Thus, the only neighbor is located to the south of Walter's house.
¶ 18 Shefcik further testified that, when he arrived at Walter's residence, it was snowing outside and the house was completely dark, which was unusual. Shefcik knocked on the front door, but received no response. He walked around the house and noticed that, on the north side of the house, the basement window had been broken. There were no footprints in the snow leading to the broken window and there was no broken glass in the yard. Shefcik returned to the front door and turned the doorknob, which was unlocked. When he had been to Walter's house on previous occasions, the door had always been locked, and Walter had opened the door for him.
¶ 19 Prior to entering the house, Shefcik called for backup. He did not enter the house until Sergeant Jones arrived, and they both entered together. Just inside the front door was a large living room with couches and a television set. Shefcik observed that the cushions from the couch were on the floor. After one walked through the living room, there was a small hallway with a bedroom to the immediate left and another bedroom to the immediate right. The kitchen was located in the back of the house. When Shefcik looked in the kitchen, he observed the victim, Walter Pinianski, lying on the kitchen floor. As Shefcik and Jones performed a protective sweep for possible offenders, Shefcik observed envelopes and papers strewn about Walter's bedroom.
¶ 20 Illinois State Trooper James Gainer testified that he was the crime scene investigator assigned to this case and that he arrived at 12500 South Paulina at 10:28 p.m. on February 9, 2005. He entered the residence through the front door and went into the living room area. The area looked ransacked, with couch cushions on the floor and papers strewn about. Gainer walked through the living room and the hallway and entered the kitchen, where he observed the victim, Walter Pinianski, lying on the floor in a pool of dried blood. Gainer then went downstairs to the basement and observed that the window on the north side of the basement had been broken. There were glass fragments on the floor below the window and in the laundry tub below the window.
¶ 21 Gainer photographed the scene and processed the scene for fingerprints. Specifically, he developed latent prints from a PVC pipe located directly below the broken window and from a washing machine also in the basement. The prints on the PVC pipe and on the washing machine both showed a pattern of small black dots. While he was in the living room, he noticed and collected a pair of white gloves that contained black rubber dots in a pattern resembling the patterns in the prints obtained from the PVC pipe and the washing machine.
¶ 22 The next morning, on February 10, 2005, Gainer went to the Cook County medical examiner's office to attend Walter's autopsy. He photographed and documented the autopsy and obtained Walter's fingerprints and created a blood card for him. A blood card contains a sample of the victim's blood. It is a small three-by-five index card, on which is placed five droplets of the victim's blood for future testing. Gainer was able to collect a set of fingerprints only from Walter's right hand, as Walter's left hand was too decayed. Gainer returned to the scene on February 10, 2005, to photograph a telephone box on the west side of Walter's residence, and observed that the wires to the box had been cut.
¶ 23 Gainer further testified that, on March 25, 2008, he went to 12415 South Honore Street in Calumet Park with several police officers from the Illinois State Police and the South Suburban Major Crimes Task Force. They met defendant there who agreed to return to the police department with them. At the police department, Gainer collected a buccal swab from the inside of both of defendant's cheeks.
¶ 24 The medical examiner who performed the autopsy did not testify, but a certified "Report of Postmortem Examination, " a self-authenticating document, was admitted into evidence pursuant to section 115-5.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5.1 (West 2010)). According to the report, Walter died from multiple stab wounds. Walter's death certificate was also admitted into evidence, but only for the limited purpose of establishing the date of his death, the identity of the decedent, and his age at the date of his death.
¶ 25 James Worthem, an inmate at IDOC, testified about several conversations he had with defendant while Worthem was in custody at Cook County jail. On April 18, 2008, defendant, whom Worthem knew as "Little C, " approached him and asked if he knew anything about burglaries and DNA. During their conversation, defendant mentioned some houses in Calumet Park which all looked the same and that he often asked people in these houses if they needed help because the houses often flood.
¶ 26 On the following day, April 19, 2008, defendant approached Worthem again, when Worthem was in his cell with his cellmate. This time the conversation concerned DNA. Worthem told defendant what he knew about DNA, including that "if you are locked up, they do a cotton swab in your mouth and if you did do that while you were incarcerated, that you are registered on the data as a certain DNA." Defendant told Worthem that he had burglarized a house two blocks away from his mother's house and that he may have left inside the house a pair of white canvas gloves which he had received from his father.
¶ 27 On the next day, April 20, 2008, defendant approached Worthem a third time. Their conversation was about the glove and the burglary. According to Worthem, defendant stated that he used the glove to break the basement window, that the glove had blood on it, and that he had left it inside the house. Defendant told Worthem that the glove was made of white canvas with a bunch of little black rubber grips on the outside. The house was down the street from the Chicago borderline of "Cal Park." Defendant also told Worthem how he and his partner, Pierre, entered the house. They knocked on the door and nobody answered, so they went down to the basement windows. Defendant punched a hole through the glass, and then they crawled through the broken window into the basement. They went upstairs and heard someone say, "Is anybody there?" Defendant then noticed an old man coming toward them and waving his arms. Defendant did not know if the man was coming to attack him, so he took out his knife and began stabbing him. Defendant said that "it [felt] like a pin stabbing a cushion." Defendant stabbed the man for a few seconds, and the victim was screaming. Defendant kept stabbing until the victim lay quiet on the floor. After the stabbing, defendant and his partner ransacked the house. Defendant discovered some military pennants in a closet and kept them as souvenirs. He also took cash, but he did not tell Worthem how much. Worthem asked defendant for his full name, and defendant stated that his full name was Crandall Williams.
¶ 28 Worthem testified that he was not promised anything in exchange for his testimony and that he came forward voluntarily and made all the contacts with the State because he has a lot of family members in the military, including a cherished grandfather, and he felt sorry for the victim and felt it was "the right thing to do." Worthem was aware that the State can do favors for witnesses because he had previously cooperated with federal law enforcement officers in drug stings in 2005 and 2006. At the time of his trial testimony, Worthem had a pending postconviction petition and a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)), but he told the State's Attorney's office that he did not want its help. Worthem admitted that he had previously been convicted for robbery and armed robbery and that he "practiced law" pro se and had used aliases in the past.
¶ 29 Worthem testified on cross-examination that he made a statement on a videotape on May 6, 2008, about this incident. The statement was taken at IDOC in the presence of Assistant State's Attorney (ASA) D'Angelo and police investigators. At that time, Worthem did not volunteer that his cellmate was also present during his conversations with defendant. In addition, Worthem may have mentioned on the videotape that defendant told him that he hurt his hand when he broke the window, and that he was bleeding inside the glove. Further, Worthem testified that defendant had told him on May 6, 2008, instead of April 20, 2008, that stabbing the old man felt like a pin stabbing a cushion.
¶ 30 Katherine Sullivan testified that she was a forensic biologist with the Illinois State Police (ISP) at the Joliet Forensic Science Laboratory, and the parties stipulated that she was an expert in the field of forensic DNA. She testified both about the basics of DNA science as well as what she did in this particular case. She explained that everyone except identical siblings has different DNA, and that polymerase chain reaction (PCR) is a process to make copies of DNA. Further, she explained the procedures that she uses in her DNA analysis. First, the DNA has to be extracted from the material that it is in and placed in a liquid solution. Then the amount of DNA needs to be quantified, and the PCR process is used to tag the areas of DNA to be profiled. She uses an instrument to detect those tags, and she uses some software to develop the DNA type from the sample and to make a comparison to the standard that is submitted for the case.
¶ 31 After describing the DNA process in general, Sullivan then testified about the DNA analysis she did for this case. She received the gloves from the crime scene in a brown paper bag and collected hair and fiber from the outside of the gloves and swabbed the inside. These swabs were dried and placed in a separate envelope that she labeled Exhibit 1-A. She also prepared a portion of the blood standard for the victim. She removed five circles with dark red stains from the victim's blood card and placed them in a separate envelope that she labeled Exhibit 10-A. The swabs and blood standard were ultimately sent to Bode Technology Group (Bode) for analysis.
¶ 32 On March 26, 2008, Sullivan received defendant's buccal swab. She then performed a DNA analysis on the swab and developed a DNA profile from it for defendant, which she then sent to Cellmark along with (1) Bode's original data from the swabs of the gloves, (2) a profile that Bode had developed from the swabs of the gloves, and (3) Walter's original blood standard.
¶ 33 Sullivan also did an analysis of the gloves for the presence of bloodstains, and they tested positive for the presence of blood. She then removed a portion of that stain so a DNA analysis could be performed on it. She developed a profile from the bloodstain and compared it to the DNA profile for Walter that Bode had developed from Walter's original blood standard. Sullivan interpreted the data and concluded with a reasonable degree of scientific certainty that the DNA profile which she had recovered from the bloodstain matched Walter's DNA profile. The DNA profile from the bloodstain on the glove would be expected to occur in approximately 1 in 610 quadrillion blacks, 1 in 15 quadrillion Hispanics or 1 in 5.9 quadrillion white unrelated individuals. The bloodstain appeared to have originated from the outside of the glove, because it was visible from both sides but covered more area on the outside of the fabric than on the inside.
¶ 34 On cross-examination, Sullivan testified that, prior to 2006, she had received additional standards from Quinten Campbell, Edward Bell, and Calvin Truitt, which she submitted to Cellmark for comparison. Further, the result from the bloodstain on the glove appeared to be from a single contributor, since there was no evidence of a mixture of multiple contributors.Where there is a mixture, the order of the contributors cannot be determined.
¶ 35 The parties stipulated that, if called to testify, Abby Mulkenez would be accepted as an expert in forensic DNA analysis. She would testify that from May 24, 2005, through August 11, 2005, she was a DNA analyst for Bode Technology Group, Inc., and that Bode was a subcontractor for the Illinois State Police Forensic Sciences Command performing forensic DNA analysis. On May 24, 2005, Bode received Exhibits 1-A and 10-A from the Illinois State Police in Joliet. These exhibits were processed for DNA typing and for analysis of the 13 CODIS Short Tandem Repeat Loci. Exhibit 1-A contained a mixture of multiple donors, while Exhibit 10-A produced a complete profile of Walter Pinianski, the victim. Walter was not one of the contributors to the profile obtained from Exhibit 1-A. Although this was not stated in the stipulation, we observe that Exhibit 1-A contained the swabs from the inside of the glove prepared by Sullivan and that Exhibit 10-A was the victim's blood standard also prepared by Sullivan.
¶ 36 The State's next witness was Dr. Rick Staub, whom the parties stipulated was an expert in the field of forensic DNA analysis. Dr. Staub testified that he was employed as the laboratory director of scientific operations at Cellmark in Dallas, Texas, which did contract work for the Illinois State Police. The Illinois State Police asked Cellmark to compare: (1) Bode's data concerning an unknown DNA sample and (2) a known DNA profile developed by the Illinois State Police for defendant. Thus, when reviewing Bode's data to determine whether it revealed a major profile and, if so, what the major profile was, Dr. Staub already had in front of him defendant's profile. When asked whether it was common among experts in the field of DNA analysis to refer to and rely on other experts' data, he replied that it was "not uncommon."
¶ 37 Dr. Staub did not perform any tests on the items, and only interpreted the data generated by Bode and the Illinois State Police. According to Dr. Staub, the unknown sample from Bode contained a mixture of multiple individuals, but he believed he was able to identify a major contributor. As part of his review, he looked at an electropherogram which he explained is a chart with peaks and lows that looks comparable to an EKG. This chart is generated by "a laser detection instrument that runs the sample through a very thin glass capillary. When it comes out at the end, a laser light hits the sample through the window and the DNA molecules have fluorescent tags on them that then will light up." Dr. Staub explained that "every time we see a peak [on the chart] that's where a DNA fragment has come through the instrument."
¶ 38 Dr. Staub testified that he was aware that the unknown sample came from swabs from a pair of gloves, and that the known profile came from defendant's buccal swab. The known profile was very clear because it was a "single source profile." Dr. Staub opined that the standard from defendant matched the major profile from the gloves with a reasonable degree of scientific certainty. In his opinion, the statistical probability of a match between the major profile and a random individual was only 1 in 196.6 quadrillion.
¶ 39 On cross-examination, Dr. Staub explained that the test he performed was called short tandem repeats (STR), which refers to areas of DNA in which there are small molecule combinations that repeat a certain number of times. The numbers on an electropherogram represent the number of repeats, and the number of repeats differs from person to person. At each location, a person inherits one number from his mother, and one number from his father. Sometimes, the electropherogram shows just one number at a certain location, which indicates the person inherited the same allele from both parents at that locus. When a sample shows more than two numbers at one of the locations on the electropherogram, it indicates a mixture of DNA. However, when the peaks on the electropherogram have a certain mathematical proportion to each other, it is possible to say that they go together. Sometimes, it is possible to determine a major profile from a minor profile, as evidenced by the peak heights on the electropherogram. Dr. Staub agreed with Bode's conclusion that there were at least three contributors to the unknown sample from the glove.
¶ 40 Dr. Staub acknowledged that the profile determined by the Illinois State Police did not agree with his profile at one locus.
¶ 41 Dr. Staub was shown defendant's Exhibit 1, which he identified as the electropherogram showing Bode's results from the "profiler plus" test on the swabs from the gloves; and defendant's Exhibit 2, which he identified as the electropherogram showing Bode's results from the "cofiler" test. The "profiler plus" test reveals nine loci, plus gender; while the cofiler test reveals six loci. Two of the loci from the cofiler test overlap with two of the loci from the profiler test, yielding a total of thirteen loci. Each locus has a different name. For example, the first locus, which appears on the top left of defendant's Exhibit 1, is called D-3, and Dr. Staub circled it and labeled it. He also circled and labeled the locus called D-13. For D-3, Dr. Staub testified that two peaks were very high, as compared to three much smaller peaks. Turning to D-13, Dr. Staub testified that the chart showed three peaks, which were labeled 11, 12 and 13. Dr. Staub concluded that the peaks labeled 11 and 13 were the major contributor. Dr. Staub further testified that, although the peak labeled 12 was smaller, it was not nearly as small as the small peaks in D-3.
¶ 42 Dr. Staub explained that, since the 12 was between the 11 and the 13, the 12 peak could be accounted for by a "phenomenon called stutter." Dr. Staub concluded that "often times when you have a peak between two other peaks, it is even emphasized even more." However, Dr. Staub testified that the same phenomenon could also account for the height of the eleventh peak, which he had concluded was part of the major profile.
¶ 43 Dr. Staub concluded that his "feeling was that the most likely major profile [at D-13] was an 11, 13." He testified that he did not perform any mathematical calculations with regard to the peak heights. He testified that "just by looking at it, and rationalizing it, I determined that." Dr. Staub admitted that "[g]enerally, there is a mathematical relationship."
¶ 44 Dr. Staub also testified that he had not reviewed any of the lab validation from Bode for the purpose of this case analysis; that there will be variances from instrument to instrument; and that there will be certain peak height differences from instrument to instrument within one lab and from lab to lab.
¶ 45 Dr. Staub was then shown defense Exhibit 2, which was the chart showing the results from the cofiler test, and he circled and labeled D-3 on the top left of the chart. D-3 was one of the loci that appeared on both charts. Dr. Staub then circled and labeled T-POX, which was located at the center of defense Exhibit 2.
¶ 46 Dr. Staub acknowledged that, at T-POX, Bode concluded that only the peak labeled 9 belonged to the major contributor. Dr. Staub disagreed with Bode's conclusion and concluded that both the peaks labeled 9 and 11 belonged to the major contributor. When asked whether he had mathematically calculated the ratios between the peak heights, he stated that he "may have done it like in passing, " but he testified that he did not "have those documented." Dr. Staub relied on Bode's electropherogram, but not on its interpretation.
¶ 47 Dr. Staub testified that he was familiar with the concept of coincidental matches and he was familiar with the study that determined that loci in DNA profiles of different individuals will coincide at 9, 10 and even 11 loci. Also he could not determine, with respect to major and minor contributors, when a particular contribution was added to a sample. Thus, he could not determine whether the major contributor was the first or last contributor.
¶ 48 On redirect examination, Dr. Staub testified that he was asked to compare the unknown sample from the swabs of the gloves to the known profile developed by the Illinois State Police from defendant's buccal swab. His interpretation of locus D-13 was that 11 and 13 constituted the major profile. When he reviewed defendant's DNA profile at locus D-13, the alleles were also 11and 13. In addition, it was his opinion that the profile developed from defendant's buccal ...