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People v. Barner

Supreme Court of Illinois

April 16, 2015

JOHN BARNER, Appellant

Appeal from the Appellate Court for the First District.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Pamela Rubeo, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Yvette Loizon and Amy M. Watroba, Assistant State's Attorneys, of counsel), for the People.

JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion. Justice Kilbride dissented, with opinion.



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[¶1] Defendant John Barner was convicted of two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 1998)) following a jury trial in the circuit court of Cook County and sentenced to natural life in prison. His convictions and sentence were affirmed on appeal. People v. Barner, 393 Ill.App.3d 1099, 985 N.E.2d 723, 368 Ill.Dec. 916 (2009) (unpublished order under

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Supreme Court Rule 23). Following defendant's initial appeal to this court, we vacated the appellate court's judgment and remanded the cause to that court for reconsideration in light of People v. Williams, 238 Ill.2d 125, 939 N.E.2d 268, 345 Ill.Dec. 425 (2010). People v. Barner, 237 Ill.2d 563, 934 N.E.2d 1008, 343 Ill.Dec. 405 (Ill. Sept. 29, 2010) (supervisory order). The appellate court again affirmed defendant's convictions and sentence. People v. Barner, 406 Ill.App.3d 1205, 998 N.E.2d 714, 376 Ill.Dec. 172 (2011) (unpublished order under Supreme Court Rule 23). That decision was then vacated pursuant to a new supervisory order from this court to reconsider in light of People v. Leach, 2012 IL 111534, 980 N.E.2d 570, 366 Ill.Dec. 477. People v. Barner, 992 N.E.2d 1231, 372 Ill.Dec. 830 (Ill. 2013) (supervisory order). After reconsideration, the appellate court once again affirmed. 2013 IL App. (1st) 063738-U. This court then allowed defendant's petition for leave to appeal under Supreme Court Rule 315. (Ill. S.Ct. R. 315 (eff. July 1, 2013)).

[¶2] At issue is whether defendant's right to confrontation under the sixth amendment of the United States Constitution (U.S. Const., amend. VI), as held in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny, was violated when three State witnesses were allowed to testify concerning the DNA laboratory work and conclusions of nontestifying scientists.

[¶3] For the reasons that follow, we affirm the judgment of the appellate court.


[¶5] On July 14, 2002, defendant was arrested and charged by criminal complaint with the aggravated criminal sexual assault of F.M. The criminal conduct at issue occurred on the evening of March 13, 1999, and continued until the next morning.

[¶6] Prior to defendant's trial in November 2006, the State filed motions for leave to present forensic DNA evidence against defendant through the testimony of three experts: Greg DiDomenic, Jennifer Reynolds, and Edgardo Jove. The State recognized that some of the laboratory analysis in this case was completed by nontestifying scientists working at the Illinois State Police (ISP) crime laboratory and Orchid-Cellmark (Cellmark), a private laboratory located in Maryland. Nevertheless, the State asserted that it was permissible for these three witnesses to testify to the technical review each did of the work completed by the nontestifying DNA analysts.

[¶7] In response, defendant claimed that the analysts who completed the actual DNA laboratory work were required to testify concerning their analysis. According to defendant, any admission into evidence of the results of their work through the testimony of others would violate his constitutional right to confrontation. After a hearing, the trial court concluded that the testimony of the expert witnesses would not contravene Crawford and allowed the State's motions. The trial court held that the witnesses could testify to their review, analysis, and opinion regarding the work they had supervised relating to the underlying DNA work of the nontestifying scientists.

[¶8] At trial, F.M. testified that on March 13, 1999, at approximately 8 p.m., she was walking from her sister Brenda's home on the south side of Chicago to another sister's home when she stopped to watch a young " prostitute girl" who was smoking drugs in the street and taking her clothes off. After approximately 30 to 40 minutes, F.M. heard movement behind her. Defendant grabbed her by the neck and dragged her toward a nearby abandoned building.

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As he pulled her into the building, F.M. grabbed a banister on the porch and defendant told her " '[l]et go [of] the porch, bitch. Bitch, I'm going to break your neck.'" Defendant subsequently dragged her through the dark building, up a flight of stairs, then up some more stairs, pushed her into a room, and placed a couch in front of the door.

[¶9] F.M. further testified that after they entered the room, defendant ordered her to remove her clothes and to sit on a mattress on the floor. At first she refused, but ultimately obeyed. F.M. testified that defendant repeatedly forced her to engage in oral and vaginal intercourse until morning. She testified that they had vaginal intercourse about four times and that she was forced to perform oral sex on him twice. She further testified that he forced her to have vaginal intercourse one more time in the morning. Defendant then led her out of the building and let her go. As he was helping her out of a window, she saw defendant's face from a couple of inches away. After leaving defendant, F.M. ran to her sister's house and was taken to Provident Hospital for treatment. At the hospital, a doctor swabbed her mouth and vagina and police took her underwear, bra, T-shirt, and long underwear.

[¶10] On May 30, 2002, more than three years after the assault, the police showed F.M. a photo array at her house and she made a tentative identification of defendant. On July 13, 2002, she viewed a lineup at the police station and identified defendant as her attacker after each lineup participant stated the phrase, " Bitch, if you don't let go, I'll break your neck." She also positively identified defendant in court. F.M. testified that she had been convicted in May 2006 for possession of a controlled substance and received a sentence of probation.[1]

[¶11] On cross-examination, F.M. testified that defendant did not let her go to the bathroom, that she urinated on the floor, and that she had lost her keys during the attack. Defense counsel also questioned her concerning some inconsistencies on the exact number of times each sex act was performed.

[¶12] F.M.'s sister, Brenda J., testified that around 8 a.m. on March 14, 1999, F.M. arrived at her house " hysterical." Brenda testified that her sister was crying, screaming, dirty, and beaten up. F.M. told Brenda that she had been raped.

[¶13] Sharon Smith, a registered nurse at Provident Hospital, testified that she treated F.M. at approximately 8:45 a.m. on March 14, 1999. F.M. appeared scared and looked disheveled. Smith testified that Dr. Bhatt took swabs of F.M.'s vagina and mouth and that she sealed those swabs in a sexual assault evidence collection kit. She gave the kit to a police officer along with, among other items, F.M.'s underwear. Smith further testified that she observed blood in F.M.'s vaginal canal and that she had an abrasion on her right thigh. Smith did not observe any scratches, bruises, or other marks on F.M.'s body other than the one on the thigh.

[¶14] Chicago police officer Gerald Ostafin testified that he received the sexual assault kit from Smith on March 14, 1999. He kept the items in his continuous custody and control and inventoried the kit under inventory No. 2105348.

[¶15] Chicago police detective Paulette Wright testified that she interviewed F.M.

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at the hospital at approximately 10:45 a.m. on March 14, 1999. F.M. was very upset and agitated. The following morning, she took F.M. to the abandoned building where the incident occurred to investigate and locate the set of keys she had lost. Wright observed a green couch in the third floor room and testified that F.M. became visibly upset when they entered the space. Wright did not see urine on the floor or locate any keys. On August 23, 1999, the ISP crime lab informed Wright that the semen recovered from the item in F.M.'s sexual assault kit produced a match. Wright tried to contact F.M. by going to her home and that of her sister, but was unsuccessful for almost three years.

[¶16] Wright further testified that on May 29, 2002, she again went to F.M.'s home. Wright showed her a photo array at that time and F.M. made a tentative identification of defendant as her attacker. She informed Wright, however, that she needed to see him in person. Wright sent out an " investigative alert" for defendant who was ultimately taken into custody on July 12, 2002. The following day, F.M. viewed a physical lineup. She tentatively identified defendant and mentioned that he looked thinner to her. F.M. then asked to hear each lineup participant speak. After hearing defendant's voice, F.M. said that defendant was " definitely" her attacker.

[¶17] The State called G.W. as an " other crimes" witness. At the time of trial, G.W. had been convicted for possession of a controlled substance and forgery and was in custody. On the evening of March 23, 2002, G.W. was walking within blocks of the abandoned building where the assault in this case had occurred. G.W. testified that defendant approached her and attempted to engage her in small talk. He then grabbed her by the hood of her coat and said, " Shut up bitch before I kill you." He then dragged her into an abandoned building and ordered her down the rear stairs. When she refused, he struck her over the head with a bottle of beer. He pushed her down the stairs and ordered her to take her clothes off. Defendant had vaginal sex with G.W. and forced her to perform oral sex on him repeatedly before he let her leave in the morning.

[¶18] Forensic Evidence

[¶19] All of the DNA work at issue in this case was conducted between 1999 and 2001.

[¶20] Brian Hapack, a forensic scientist with ISP, testified that he received F.M.'s sexual assault kit that was submitted to ISP's crime lab on March 23, 1999, and inventoried under inventory No. 2105348. He tested the items in the kit for the presence of sperm using the acid phosphatase test and slide examination. He determined that there was semen on F.M.'s underwear, as well as the rectal and vaginal swabs, but not the oral swabs. Hapack sealed and placed the items into a secured freezer for future DNA analysis.

[¶21] Chicago police detective Delores Myles testified that on April 26, 1999, she took defendant to Provident Hospital where she observed a nurse take a blood specimen from him. She sealed the specimen in a blood specimen kit and inventoried it under No. 2111323.

[¶22] The record establishes that defendant's blood standard was collected by police in relation to the unrelated murder case of Cheryl Cross.

[¶23] RFLP DNA Testing

[¶24] Greg DiDomenic, a forensic DNA analyst at the ISP crime lab, testified that he received the sexual assault kit containing the vaginal and rectal swabs taken from F.M., her underwear which was stained by semen, and a sample of her blood. In July 1999, he isolated F.M.'s

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DNA profile from the vaginal swab, but was unable to produce a profile for the donor of the sperm found on the vaginal or rectal swabs because each sample was of insufficient quantity to do so. A DNA profile of the sperm donor, however, was obtained from the semen stain on F.M.'s underwear. DiDomenic compared " five locations of DNA" using the " restriction fragment length polymorphism" (RFLP) analysis method. He explained that at the time he conducted his analysis, it was established in the scientific community " that there were five genetic markers used in forensics and those were the ones we used [for our testing]." DiDomenic further testified that he entered the DNA profile he created into the Combined DNA Index System (CODIS), ISP's DNA database, and discovered that it was associated with a standard from defendant.

[¶25] DiDomenic testified, over defense counsel's objection, that subsequent to the CODIS " hit" he reasonably relied on the work of two other analysts, Tanis Wildhaber and Joanne Olson. DiDomenic reviewed the laboratory notes produced by Wildhaber, which indicated that on April 28, 1999, she received defendant's blood sample which had been inventoried under No. 2111323. She preserved a portion of that sample, dried it down on filter paper, sealed it, and placed it in frozen storage for future analysis. DiDomenic also reviewed the laboratory notes produced by Olson, which indicated that she retrieved defendant's sample on May 1, 1999, and was able to obtain a DNA profile from his blood that was suitable for comparison. Olson placed the remainder of defendant's blood standard in frozen storage. Based upon DiDomenic's analysis of the sperm from the semen stain on F.M.'s underwear, and the ...

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