Court of Appeals of Illinois, First District, First Division
Rule 23 Order filed November 12, 2013
Rule 23 Order withdrawn December 6, 2013
Defendant’s convictions for the first degree murders and aggravated criminal sexual assaults of 11 women and the attempted first degree murder and aggravated criminal sexual assault of a twelfth woman were upheld over his contentions that the cause should be remanded for a Batson hearing, that the evidence did not support one of the convictions, that his counsel was ineffective in failing to object to certain DNA evidence, and that the trial court erred in admitting testimony concerning an autopsy report by an examiner who did not prepare the report, since the record supported the State’s race-neutral explanation for its peremptory challenge of a prospective juror, the evidence was sufficient to sustain the challenged conviction, neither prong of Strickland was met with regard to the claim of ineffective assistance of counsel, and defendant’s confrontation rights were not violated by the testimony of the medical examiner who did not perform the autopsy at issue.
Appeal from the Circuit Court of Cook County, Nos. 00-CR-5454 Review through 00-CR-5465; the Hon. Evelyn B. Clay, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Jessica A. Hunter, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.
Presiding Justice Connors and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Andre Crawford was convicted of the first degree murders and aggravated criminal sexual assaults of 11 women, and the attempted first degree murder and aggravated criminal sexual assault of a twelfth victim (720 ILCS 5/8-4, 9-1, 11-1.30 (West 2010)). A jury found him to be eligible for the death penalty but declined to impose it. He was instead sentenced to life imprisonment. On appeal, defendant contends that: (i) this case must be remanded for a Batson hearing; (ii) the evidence was insufficient to support the jury's verdict of guilty as to the murder of Rhonda King; (iii) in 6 of the 12 cases against him, he was denied a fair trial based upon his counsel's failure to argue the impact of a deoxyribonucleic acid (DNA) match at only five loci, as well as the State's claim in its opening statement and rebuttal closing argument that the DNA recovered was defendant's; and (iv) his confrontation rights were violated when the trial court allowed a medical examiner to testify as to an autopsy report that was prepared by a nontestifying medical examiner, where the autopsy report's findings were used as substantive proof of the manner of Nicole Townsend's death. For the following reasons, we affirm the judgment of the trial court.
¶ 2 I. BACKGROUND
¶ 3 Over a six-year period beginning in 1993, there was a series of murders in the Englewood neighborhood in Chicago. The female victims all had a single male suspect's DNA in common. A joint task force comprised of officers and agents of the Chicago police department and the Federal Bureau of Investigation began investigating these murders in 1999. About a year later, defendant, Andre Crawford, was arrested on an unrelated matter and brought in for questioning. He subsequently agreed to submit a DNA sample and later provided video-recorded confessions to the crimes. As a result, the State charged defendant with over 200 counts concerning the first degree murders and aggravated criminal sexual assaults of: Sheryl Johnson (docketed in the trial court as case number 00 CR 5454), Tommie Dennis (No. 00 CR 5455), Shaguanta Langley (No. 00 CR 5456), Sonji Brandon (No. 00 CR 5459), Cheryl Cross (No. 00 CR 5460), Evandre Harris (No. 00 CR 5461), Nicole Townsend (No. 00 CR 5462), and Constance Bailey (No. 00 CR 5463). In addition, the State charged defendant with three counts each for the first degree murders of: Patricia Dunn (No. 00 CR 5458), Angela Shatteen (No. 00 CR 5464), and Rhonda King (No. 00 CR 5465). Finally, the State charged defendant with 17 counts related to the aggravated criminal sexual assault and attempted murder of Claudia R. (No. 00 CR 5457). The parties agreed to join these 12 cases for trial before a single jury.
¶ 4 A. Voir Dire and Other Pretrial Matters
¶ 5 Before trial, defendant moved to preclude testimony by Dr. Nancy Jones as to the autopsy on Nicole Townsend that was performed by Dr. Barry Lifschultz, arguing that not to do so would be a violation of defendant's confrontation rights under Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The trial court denied defendant's motion.
¶ 6 Jury selection began on November 2, 2010. The trial court first questioned the venirepersons, pursuant to Witherspoon v. Illinois, 391 U.S. 510 (1968), to determine whether, as a result of "conscientious or religious scruples, " the potential juror would automatically vote against a death sentence, regardless of the evidence.
¶ 7 Potential juror Norman Phillips stated that he had "religious reasons" against imposing the death penalty, but commented that he was not "100 percent sure" he could sign such a verdict. Amber Ross-Garrett initially stated that she was "not sure" that she would be able to sign her name on a death sentence verdict, but admitted that she "would have to" if the law and evidence demanded it. Willie Payton said he would vote in favor of a death penalty "in an extreme case, that it was premeditated" murder and the accused had been proved guilty "beyond a doubt." Payton stated that, if given a choice, he would "automatically" vote for a life and not a death sentence, but he subsequently clarified that he would not automatically do so in an extreme case "like multiple murders" or where "justice would be served." The State exercised peremptory challenges against Phillips, Ross-Garrett, and Payton, all of whom were then excused from further service.
¶ 8 During the questioning of venireperson Robert Kingery, the following colloquy took place:
"Q. [Trial court:] Do you have any scruples, by which I mean strong feelings by reason of religion, morals or conscience against the imposition of the death penalty.
A. [Kingery:] Somewhat. I'm Catholic. I'm pretty much against the death penalty. I would be hard-pressed to vote for it.
Q. Are your beliefs such that regardless of the facts of the case or the background of the defendant, that under no circumstances could you consider signing a verdict directing the court to sentence the defendant to death?
A. Under no circumstances, I couldn't say that.
Q. All right. So would your beliefs about the death penalty prevent or substantially impair your ability to reach a fair and impartial decision as to whether the defendant was guilty? That's going back to the first stage.
¶ 9 The State then asked Kingery whether his views on the death penalty were based upon his religion, to which he responded that they were and that the death penalty was "the ultimate penalty." Kingery added that he would have to see "indisputable evidence" that the death penalty was appropriate, and in response to the State's question, confirmed that he would not automatically vote against it. Kingery explained that, to him, "indisputable evidence" was evidence that "would convince [him] that [defendant] is guilty of killing these people." Kingery further stated that if he were "thoroughly convinced of that, " then he could vote in favor of the death penalty. Finally, when the State asked Kingery, "[W]ould you be able to sign your name on a death verdict if you were convinced that death was the appropriate sentence?" Kingery responded, "Yes."
¶ 10 Following defendant's trial attorneys' questioning of Kingery, the State moved to exclude Kingery for cause based upon (i) his opposition to the death penalty absent indisputable evidence and (ii) his statement that he would be "hard-pressed" to vote in favor of a death sentence. The trial court, however, rejected the State's motion. The State did not lodge a peremptory challenge against Kingery, and he was later accepted as a juror. The record does not indicate his race.
¶ 11 During the voir dire of Lois Marshall, the following exchange took place:
"Q. [Trial court:] Do you have any strong feelings against the death penalty[?]
A. [Marshall:] Technically, I don't believe in the death penalty. But I will give a fair answer if I have to based on the evidence[;] I just don't believe it.
It's almost like a moral issue for me. I just don't believe it. I believe in life in prison. But then sometimes I think about if that happened to my family member, I might change my viewpoint. Something really terrible happened to my daughters, I might change my viewpoint, but technically I really don't believe in it.
Q. Are your beliefs such that regardless of the facts of the case or the background of the defendant, that under no circumstances could you sign a verdict for the death penalty?
A. That would be based on the evidence when I hear it, then I probably can assess it.
Q. You have to let us know whether or not you could sign a verdict for the death penalty .
A. I believe so."
¶ 12 The State then asked Marshall whether her beliefs against the death penalty were so strong that she would "automatically" vote for a life sentence and reject a death sentence. Marshall, however, responded that she would not.
¶ 13 The State sought to excuse Marshall from the jury, but the defense lodged an objection based upon Batson v. Kentucky, 476 U.S. 79 (1986). The following discussion then took place:
"THE COURT: What is your showing?
MR. LYON [defense counsel]: Our showing is that the State has used strikes to remove the only two black males who were sent back for consideration, and they have now used two more strikes to strike two more–to strike–this is the second black female upon whom they have exercised a strike.
They have accepted only one and tendered only one black female among their strikes in the course of using their strikes.
So what that means essentially is that the State has used half of their strikes to strike black jurors, and in using half of their strikes to strike black jurors, they have stricken four out of the six black jurors who have come forward to be passed upon by the parties. One they accepted, and one we struck. So those are the two that they did not strike. The other four they did strike.
That's of the possible black jurors upon whom they could exercise strikes. They have exercised strikes on two-thirds of the black jurors who have been presented for consideration. I submit that that percentage is a sufficiently high one to provide a prima facie case of racially-motivated strikes.
Secondly, we would say that Miss Marshall, whom they are now striking, gave no answers significantly or substantially different from white jurors whom they have accepted as to give a race-neutral basis for striking.
THE COURT: Could you be more specific, that her background, her statistics, her status is similar to Caucasian jurors who have been seated?
MR. LYON: That is what we are saying. We are saying among the nine who are seated, we believe–well, we believe that the percentage that I cited, that is the two-thirds of the available black jurors, have been stricken by the State of itself provides sufficient evidence of a pattern to create a prima facie case.
We submit that, in addition to that, there is nothing about Miss Marshall that sets her apart from white jurors whom the State has accepted. We believe that the burden should shift based on the percentage to the State to offer race-neutral reasons for rejecting or striking Miss Marshall.
THE COURT: Based on that proffer, the Court finds a prima facie basis, and we will move to the next stage. State, your race-neutral reasons, if any?
MR. McKAY [the State]: Your Honor, for the record, we would object to the Batson motion.
We believe, your Honor, that no prima facie case has been met. However, if you believe based on defendant's arguments to this Court that the prima facie case has been met, we would respectfully state to the Court that we have only used now, including Miss Marshall, nine challenges. Of that, five of them have been exercised against individuals that are not African-American. Counsel's motion is offensive, frankly.
In addition to not establishing a pattern of discrimination in the use of the peremptory challenges, there are several reasons that Miss Marshall is worthy of a peremptory challenge by the cause, not the least of which is, she is against the death penalty because of moral issues as she stated during the Witherspoon portion.
She does not believe in the death penalty I believe is what she clearly stated. That in and of itself is a sufficient reason, because a person's feelings on the death penalty is and always has been a race-neutral reason sufficient to overcome any kind of a Batson challenge.
THE COURT: The Court finds there's not been any violation of Batson. The State set forth its race-neutral reasons based on her responses in the individual voir dire to the Morgan-Witherspoon questions.
I submit that statistics such as three-quarters of African-Americans have been stricken is not dispositive of a Batson issue because three-quarters of them quite possibly could have stated that they were against the death penalty.
So just based on the fact of their race and so many of them being stricken, a large number of them being stricken, does not itself point to a Batson violation. This is why I asked if there were statistics of this woman, rather information about this woman that were similar, and that would be responsive to Batson Witherspoon [sic], that were similar to someone that the State–a non-minority that the State has seated. So the Court finds no Batson violation."
¶ 14 At that point, defense counsel said that he "thought" that he would have the opportunity to respond to the State's purported race-neutral explanation by "point[ing] to similarly-situated non-black jurors whom the State has kept." The trial court, however, told defense counsel that he had to make a "substantial showing, " i.e., that the challenged individual had a similar background to others who had been seated. The trial court further observed that it had found a prima facie case based upon defense counsel's "statistics" and the general statement that Marshall's background was similar to others who had been seated, but the statement was not specific. Defense counsel countered that he believed he would have the opportunity to rebut the State because it could not address the State's response without hearing it first. The trial court, however, reiterated that defense counsel had to provide a similarity between Marshall and another juror who had been seated, but defense counsel did not, only making the claim "in a general way." The trial court noted that the State provided a "specific race-neutral reason" for its peremptory challenge of Marshall, notably "her response to Morgan-Witherspoon." Defense counsel then asked whether he could then return to his remaining peremptory challenges against other potential jurors, and the trial court confirmed that he would. The jury was later selected and sworn in, and the case proceeded to opening statements.
¶ 15 B. The State's Opening Statement
¶ 16 Immediately before opening statements, the trial court admonished the jury that opening statements were not evidence; they were only to acquaint the jury with the case and represented what each side expected would be proven during the trial. The State made the following comments during its opening statement:
"MR. McGUIRE [the State]: [Defendant] did everything he could to eliminate any physical evidence tying him to any of the crime scenes. But the one thing he could not eliminate was the DNA evidence in this case.
The medical examiners in this case took vaginal, rectal and oral swabs of the victims. The ones that they could take DNA from. Some of the bodies were so badly decomposed that there was no DNA evidence. Skeletal remains were found.
From 1993 to 1999 as the body count rose, the DNA evidence was coming in on several of the victims. A DNA profile was developed. The problem was they had a DNA profile, but they had no one to match it to.
[The Chicago police department, as part of a task force, ] went around and took buccal swabs from people, to eliminate possible suspects.
MR. KENNELLY [Defense counsel]: Object, your Honor.
THE COURT: Overruled.
MR. McGUIRE: During that time, they swabbed over 500 people.
There was one offender, and one offender only with that DNA that was present in the bodies.
Out of the 11 women killed, seven of them had DNA in some fashion. The eighth person, Claudia R, survived. She also had DNA. So out of eight, out of the 12 cases, there's DNA evidence ...