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People v. Fountain

Court of Appeals of Illinois, First District, Second Division

August 23, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TIMOTHY FOUNTAIN, Defendant-Appellant.

          Rehearing denied September 14, 2016

         Appeal from the Circuit Court of Cook County, No. 07-CR-10190; the Hon. Charles P. Burns, Judge, presiding.

         Affirmed.

          Michael J. Pelletier, Alan D. Goldberg, and S. Amanda Ingram, all of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

          Panel JUSTICE SIMON delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Justice Hyman dissented, with opinion.

          OPINION

          SIMON, JUSTICE

         ¶ 1 Following a jury trial, defendant Timothy Fountain was found guilty of two counts of murder and one count of armed robbery. The trial court sentenced defendant to a mandatory term of natural life in prison for the two counts for murder concurrent with a 30-year sentence for armed robbery. On appeal, defendant claims that (1) the trial court committed reversible error in refusing to grant defendant a meaningful continuance following the State's disclosure of a new DNA report days before the trial, (2) he received ineffective assistance of counsel, (3) the trial court erred in failing to conduct a Frye hearing on the admissibility of historical cell site analysis, (4) he was denied his right to a fair trial when a State witness made improper and prejudicial comments, and (5) the State made improper comments during rebuttal. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was charged with multiple counts of murder, armed robbery, and burglary following the shooting deaths of Graciela Rodriguez and Nicholas Guerrero, and armed robbery of Maggy's Food Store on August 4, 2005, in Chicago. Before defendant's trial, the State moved to present evidence that a cell phone subscribed to by defendant was in the area of the store around the time of the crimes. The State enlisted FBI Agent Joseph Raschke to testify about historical cell site analysis. Defendant argued that the State failed to establish a proper foundation for this evidence where Raschke could not demonstrate the methodologies he used in concluding that defendant's phone was in the area of the store. Defendant also asked for a Frye hearing arguing that historical site analysis was new and novel and that it was not generally accepted within the scientific community. The trial court denied defendant's motions.

         ¶ 4 At trial, Brandon Grzesiak testified that on August 4 2005, he and his friend nicknamed "Millhouse, " went to Maggy's Food Store around noon. They knew the woman who worked behind the counter and called her "Maggy." As they walked to Maggy's, Grzesiak saw a person standing at the bus stop outside the store. The bus stop was just four to five feet away from the front door at Maggy's. Grzesiak testified that the man at the bus stop was wearing a dark green shirt, blue jean shorts, and a black White Sox hat. Grzesiak did not know the man and only took a "quick glimpse" of the man on his way into Maggy's. He testified that he and his friend proceeded inside the store and bought two Swisher Sweets to empty out and fill with marijuana so that they could get high that afternoon. Upon leaving the store, Grzesiak again looked at the man at the bus stop. Grzesiak and that man made eye contact for a few seconds before the man looked away. Grzesiak identified defendant in court as the man he saw at the bus stop in front of Maggy's Food Store.

         ¶ 5 Luis Campagna, a Frito-Lay delivery man, testified that on August 4, 2005, he walked into Maggy's Food Store to the last of three aisles and saw a man lying on the floor in a pool of blood. He went back outside the store and called the police. He did not see anyone coming out of the store while he was loading his hand cart and did not notice any cars driving away. Police officers arrived within minutes and cleared and secured the area.

         ¶ 6 Chicago police officer Christopher Chausse responded to a call on August 4, 2005, of a person being shot at Maggy's Food Store at 4458 South California Avenue in Chicago. When Chausse arrived there at 12:21 p.m., he encountered Louis Campagna. Officer Chausse saw victim Guerrero lying face down in a puddle of blood, and in the back room he saw the victim Rodriguez, lying face down.

         ¶ 7 Detective Velma Guerrero and her partner Detective William Gehrke arrived at Maggy's after the victims were transported to Mt. Sinai Hospital and before the forensic investigator arrived. Police investigator Raymond Jaster and his partner arrived at Maggy's on August 4, 2005, at about 1:40 p.m. Detective Guerrero directed Jaster to the back room of the store. In the back room, where one of the victims was found, Jaster found blood on the floor, a video recorder on a chair, and an expanded 0.5 caliber cartridge on the floor underneath a chair. The VCR recording system used at the store recorded the video from several cameras onto a VHS tape. There were two lottery tickets inside the lottery register, one with the number 5051, and the other with the number 5157. Police collected a cash tray from the register, the tray from the lottery machine, and a cigar box.

         ¶ 8 Detective Guerrero testified that, after removing the VCR, which still had the tape inside, she took it to a multi-agency technical office to have the tape removed. The tape was removed, copied onto a disk, and numerous still images were taken from the video. Detective Guerrero stated that she viewed that videotape probably hundreds of times. The videotape was admitted into evidence and Detective Guerrero testified as to its contents. Detective Guerrero recognized Millhouse approaching the counter in the video and Grzesiak by a cooler. Detective Guerrero also observed a young girl approach the counter and then reappear later in the scene. A few seconds after the young girl and Grzesiak left the store, the suspect walked in wearing a dark green shirt, a black White Sox baseball cap, denim shorts, and a belt. The suspect was holding a silver phone. The video shows the victim Rodriguez talking to the suspect. Then, the suspect checked the doorknob of the entrance to the rear area. The suspect asked for two lottery tickets: 5157 and 5051. The suspect then pointed a gun at Rodriguez through the cash window and ordered her to open the door to the register. The suspect removed money from the cash register and looked under the counter. The suspect then led Rodriguez out of the cash register area while asking her for the videotape. The video then showed the suspect escorting Rodriguez toward the rear office. The video ends at that point.

         ¶ 9 Officer Juan Chavez testified that he viewed the video surveillance tape and recognized one of the customers who entered the store before the suspect came in. That person was Brandon Grzesiak, a young man whose brother had been on Chavez's youth basketball team. Chavez told Detective McCormack that he recognized Grzesiak and went to find him. On August 8, 2005, Officer Chavez saw Grzesiak near a McDonald's located in the 3800 block of South Archer Avenue. Chavez talked to Grzesiak and together they drove to a gas station at 35th Street and South California Avenue near Maggy's where they met with Detective McCormack.

         ¶ 10 On August 18, 2005, Detective McCormack spoke with Lieutenant John Farrell about the lottery tickets recovered from the scene. One of those tickets was for number 5157, and McCormack ran that number in the Chicago police database as a south side address. McCormack checked the photographs of those who had a "5157" address in Chicago against individuals who looked like the composite put together by Grzesiak as well as the likeness of the offender as seen on the store video. After that search process, Detective McCormack came up with defendant's name. Officer Emmett McClendon testified that he met defendant on September 22, 1998, and at that time, he gave his address as 5157 South Union Avenue. Sharon Moransky, a county employee, testified that she met defendant on March 29, 1999, and that defendant gave his address as 5157 South Union Avenue.

         ¶ 11 Following Grzesiak's encounter with Chavez, Grzesiak went to the police station and participated in composing a computer-generated sketch of the man he saw at the bus stop. After giving a description of the man he saw, Grzesiak viewed the surveillance video and recognized himself and Millhouse on the tape. On August 19, 2005, Grzesiak identified defendant's photo from a photo array. On April 12, 2007, Grzesiak viewed a lineup and identified defendant as the person he saw outside Maggy's and on the surveillance video pointing a gun at the victim Rodriguez.

         ¶ 12 Dr. Valerie Arangelovich, a forensic pathologist, performed the autopsies on victims Rodriguez and Guerrero and stated that they both died from single gunshot wounds to the head. Both bullets were fired from the same firearm. The pathologist took fingernail clippings from both the victims' hands and sealed them in an envelope before giving them to the police. The pathologist testified that victim Guerrero exhibited multiple pinpoint abrasions and contusions near his left eye, consistent with being hit with a hard metal handgun. Victim Guerrero, in addition to having a gunshot wound on the left side of his head, had a gunshot wound on the mid-portion of his right index finger.

         ¶ 13 Amy Winters, a DNA analyst from Orchid Cellmark Laboratory, received the swabs of the fingernails of both the victims and performed DNA testing on them. Using the swabs from DNA clippings, she amplified the extracted DNA and produced an electropherogram graph. The graph displayed 13 specific locations (loci) in the DNA. The 13 loci are used in the national DNA database that is used to search profiles.

         ¶ 14 Sarah Walker analyzed the victims' blood standards. She learned that there was a mixed DNA profile obtained from Guerrero's left-hand fingernail clippings. The minor profile was a man, and 8 of the 13 loci were identified. At the time of her report, there was no suspect, and the partial mixed profile was not compared to any other profile.

         ¶ 15 Davere Jackson, a forensic scientist in the DNA section of the Illinois State Police (ISP), compared the minor DNA profile obtained from Guerrero's left-hand fingernail clippings to a standard one from defendant. In 2007, Jackson concluded that defendant could not be excluded from that minor DNA profile and could be included as a donor. In 2012, after reading a report from defense's expert, Lawrence Mueller, Jackson reviewed her file and observed that she did not put all of the complete types of alleles at one of the locations; specifically location "D8" in the deduced minor profile: 13/16 and 14/16. Jackson's new report was issued on October 17, 2012. Jackson testified that the data did not change, but she erred in failing to write down the additional alleles at that location in her initial report. Jackson maintained that her opinion in 2007 and 2012 was that defendant could not be excluded as a contributor to the partial profile, and she opined that 1 in 1.7 billion black men would have this profile.

         ¶ 16 Pauline Gordon, a forensic scientist with the ISP, received the DNA profiles that Orchid Cellmark obtained from the fingernails of Guerrero. Gordon reviewed Cellmark's profile and determined that there were some alleles at particular locations of the minor profile that had not been suggested by Cellmark, but should have been part of that profile. In 2012, Gordon reviewed the minor profile recovered from Guerrero's fingernail clippings and made a new comparison to the standard from defendant. Following Jackson's new report, on October 19, 2012, Gordon issued an amended report. Gordon determined that defendant could not be excluded from having contributed to the minor male DNA profile recovered from Guerrero, meaning that defendant was included as a donor to that minor profile. She opined that 1 in 56 billion black men would have this profile.

         ¶ 17 Gordon explained that the discrepancy between her calculation of the frequency and Jackson's calculation from 2007 arose from the process now available that allows the application of statistics to those locations where there was partial information, allowing her to do more calculations at that location. She testified that neither her interpretation nor Jackson's would exclude defendant from the DNA profile. Gordon acknowledged that Cellmark found that the minor profile at locus TH01 showed a 7/9, and that defendant was a 7/7 at that locus. Gordon stated that 7/9 found by Cellmark was a "database profile" and that she created an "interpretation profile." She also testified that Cellmark and ISP have "different guidelines" that account for different interpretations at the TH01 locus. At D18S51, Gordon testified that there was allelic dropout. Allelic dropout means that the minor profile at that locus was not copied sufficiently and fell below the detection threshold. Contrary to Jackson's 2007 report that considered 16/16 an option at D8, Gordon did not consider 16/16 as an option at that location. Gordon acknowledged that it was true that there are other possible contributors to the minor profile other than defendant. She explained that they would need to have a known buccal standard from another individual to determine that.

         ¶ 18 Solandia Haddock testified that she was the subpoena specialist for U.S. Cellular. Defendant purchased a Kyocera KE 434 phone and became a U.S. Cellular customer on July 16, 2005, with a phone number 773-329-8846. The Kyocera is a regular nonflip phone, and, at that time, was available in either silver or blue. The call detail records for defendant's account on August 4, 2005, showed 19 incoming calls between 5 a.m. and 10:50 p.m.

         ¶ 19 FBI Agent Joseph Raschke testified as an expert in the field of historical cell site analysis. He stated that he worked on 150 to 200 cases where he was asked to determine the location of a cell phone. Raschke testified that when a call is placed, the phone sends a signal to a cell tower. When a call is received, the cell tower sends a signal with the information to the cell phone. A call detail record is generated that shows the time and the date the call occurred, which phones were involved, and which cell towers were used. A phone can search up to six towers, and the call detail records do not show which towers the phone could connect with at any given moment. There is a presumption that the phone will use the nearest tower. Raschke's coworker, Nicky Skovran, did the initial analysis in the case. Raschke took all of her materials, including her report, redid the analysis, and concurred with her findings.

         ¶ 20 Raschke used a PowerPoint presentation that he prepared to assist in his testimony. Defendant's call detail records showed that on August 4, 2005, from 10:01 a.m. up to and including 11:24 a.m., defendant's cell phone used the cell tower at 130th Street and Vermont Avenue, Tower 4, for 10 calls. The call records from 11:24 a.m. through 11:54 a.m. showed defendant's phone connecting to a succession of different towers heading near the Dan Ryan Expressway.

         ¶ 21 At 11:54 a.m., defendant's phone received an incoming call and was connected to Tower 102 at 47th Street and Ashland Avenue. At 11:56 a.m., his phone was connected to Tower 219 on Artesian Avenue, the tower just southwest of Tower 102. At 11:57 a.m., defendant's phone was connected back to Tower 102. Both towers were located near Maggy's. At 12:09 p.m., defendant's phone connected again to Tower 219. The next call to defendant's phone came at 12:12 p.m., which resulted in his phone connecting to Tower 81, which was north and a bit east of Tower 219 and just under a mile from Maggy's. At 12:13 p.m., a call to defendant's phone connected his phone back to Tower 219. Raschke testified that defendant was most likely located in a place that would use both of those towers. A call at 12:16 p.m. caused defendant's phone to connect again to Tower 219. When defendant's phone received a call at 12:18 p.m., his phone connected to Tower 66, the tower just south and west of Maggy's. Next, between 12:09 p.m. and 12:18 p.m., defendant received five phone calls and defendant's phone was located near the location of Maggy's.

         ¶ 22 The next call to defendant's phone was at 1:10 p.m., and defendant's phone connected to Tower 4 around 127th Street and I-57. Between 1:10 p.m. and 1:24 p.m., defendant's phone received eight calls and all caused his phone to connect to Tower 4 near his girlfriend's house at 12752 South Morgan Street. Raschke opined that the lack of calls to defendant's phone between 12:18 p.m. and 1:10 p.m. could have been because no one attempted to call his phone or that the phone was turned off during that time.

         ¶ 23 The defense called Dr. Laurence Muller as an expert in the area of population genetics. Muller reviewed the reports from Cellmark, ISP, as well as the electropherograms in this case. Muller reviewed Jackson's report from 2007, which said that defendant could not be excluded as a contributor, and he believed that Jackson's conclusion was inconsistent with the statistical calculation that was done because it focused on a group of genetic profiles, none of which matched defendant. Looking at the statistical calculation in the 2007 report, specifically at D8 locus, the ISP concluded that the minor contributor had a profile of 16/16. Defendant had a 14/16 at D8; therefore Muller concluded that defendant could not have been a contributor. Muller wrote that conclusion in his December 2011 report.

         ¶ 24 Muller also noted the discrepancy at TH01. At that locus, Cellmark found that the minor profile was a 7/9, while defendant was a 7/7 at that location. Muller testified that the State's explanation for this discrepancy, that the interpretations were for different purposes, was not adequate. Regarding the allelic dropout at D18S51, Muller testified that defendant was a 18/19 at that locus, the only allele identified at that locus is a 15. If the 15 is the only genetic variant, then defendant would be excluded. If defendant was a contributor, then his contribution did not amplify sufficiently to be recorded. Mueller did not believe it was the conservative approach to assume allelic dropout at this location. If there was no allelic dropout, then this evidence is more consistent with an exclusion, rather than an inclusion. Muller acknowledged that there was a combination that included defendant, but also there was no way to determine which combination was correct. Muller testified that the first ISP report from 2007 produced a total of 21, 504 different genetic profiles, Jackson's new report with the new data included had 64, 512 possible profiles, and the final ISP report issued by Gordon produced 86, 016 possible profiles.

         ¶ 25 Luis Lechuga also testified on defendant's behalf Lechuga was 14 years old on August 4, 2005. He testified that, at around 2 p.m. or 3 p.m., he went to Maggy's, a place he usually visited several times a day. After he walked in, he noticed a black man come in wearing a baseball cap. Lechuga stated that defendant was not the man he saw that day. About 30 seconds later, an older man, whom Lechuga knew as "Nicholas, " also came in the store and said something in Spanish.

         ¶ 26 Lechuga testified that he felt that something was wrong and went to the back of the store. He unlocked the back door, came out on 45th street and walked back to the front of the store. He testified that he walked back to the front of the store and saw a black man leaving the store with cigarette boxes and then getting into a car with two other black men. That man was wearing a green shirt, blue jeans, and a White Sox hat. Lechuga testified that a Frito-Lay guy told him not to go inside and that he had just called the police.

         ¶ 27 On cross-examination, Lechuga acknowledged that the week he was testifying was the first time that he told any investigator that he was inside Maggy's when the two people were killed. Lechuga testified that, when the police interviewed him on August 14, 2005, he never told them he went inside Maggy's because his mother did not want him to get involved. Instead, he told the police that he was going to Tastee Freez and that he was across the street from Maggy's when he saw a man with a black White Sox hat coming out of that store. He also told the police that the man had a cell phone and got into a green car. Lechuga testified that he saw Guerrero's legs after the Frito-Lay man opened the door.

         ¶ 28 In rebuttal, the State called Detective Guerrero. Detective Guerrero testified that Guerrero's body was not found "anywhere near" where Lechuga said he had been. Guerrero was not found by the chip aisle, but by the cooler. The back door to the store out of which Lechuga claimed to have fled had two bolt locks, and the door was still locked when the detectives arrived. Next, investigator John Duffy from the Cook County State's Attorney's Office testified that he interviewed Lechuga on October 26, 2012. Lechuga told Duffy that he was not clear if he could not identify the man or if his mother had encouraged him not to identify anyone for his own safety.

         ¶ 29 The jury found defendant guilty of two counts of murder and one count of armed robbery. The court sentenced defendant to natural life for the two murder convictions, concurrent with a 30-year sentence for armed robbery. This appeal followed.

         ¶ 30 ANALYSIS

         ¶ 31 Continuance

         ¶ 32 Defendant argues that the trial court abused its discretion in a failing to grant defendant a meaningful continuance following the State's disclosure of new DNA reports from its experts days before the trial. Defendant claims that the State's new reports filed in October 2012, a few days before defendant's trial, were different from the first DNA report filed in 2007, which indicated that defendant was a partial match to the minor DNA profile recovered from the fingernail clippings of the victim Nicholas Guerrero. Defendant explained that the defense needed to evaluate the new reports, consult with their expert and fully investigate the new information when the previous report excluded defendant as a contributor. Defendant contends that the trial court's insistence on keeping a trial date in the light of the new reports denied his right to a fair trial.

         ¶ 33 It is well settled that the granting or denial of a continuance is a matter resting in the sound discretion of the trial court, and a reviewing court will not interfere with that decision absent a clear abuse of discretion. People v. Walker, 232 Ill.2d 113, 125 (2009). Whether there has been an abuse of discretion necessarily depends upon the facts and circumstances in each case and " '[t]here is no mechanical test *** for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend.' " Id. (quoting People v. Lott, 66 Ill.2d 290, 297 (1977)). Factors a court may consider in determining whether to grant a continuance request by a defendant in a criminal case include the movant's diligence; the defendant's right to a speedy, fair, and impartial trial and the interests of justice; the history of the case; the complexity of the matter; and the seriousness of the charges as well as docket management judicial economy and inconvenience to the parties and witnesses. Id. at 125-26.

         ¶ 34 Where it appears that the refusal of additional time in some manner embarrassed the accused in the preparation of his defense and thereby prejudiced his rights, a resulting conviction will be reversed. People v. Lewis, 165 Ill.2d 305, 327 (1995). We cannot find an abuse of discretion without the defendant having shown that he was prejudiced by the court's denial. People v. Coleman, 203 Ill.App.3d 83, 100 (1990).

         ¶ 35 Here, we cannot say that the trial court abused its discretion. The trial court carefully considered relevant factors such as the interests of justice, the fact that the case had been on the docket for 6 years. The trial court also properly assessed the complexity of the DNA evidence, judicial economy, and inconvenience to the parties and their witnesses in deciding to grant defendant the requested one day continuance to review the new DNA reports.

         ¶ 36 Contrary to counsel's argument at oral argument that the trial court "mechanically" refused to grant defendant a meaningful continuance, the record reflects that the court considered the issue over the course of three hearings. Specifically, on October 18, 2012, defense counsel acknowledged that she received Davere Jackson's revised DNA report from October 17, 2012. The trial court continued the case for the next day to "see what the [defense] expert opinion is and I'll make a determination whether or not the case needs to be continued." After hearing additional arguments on this issue at the hearing on October 19, 2012 when a new report was received from Gordon, the court again continued the case until October 22, 2012, stating that "when I get all the information, I will decide whether or not it is prudent to give you a continuance." On October 22, 2012, counsel argued that "knowing what the court's position is on the continuance because you told us last week, we are asking for just a day, one day so that we can do our due diligence with our attorneys getting ready, with documents that were just tendered as well as talking with our consultant and seeing if-what there is here that we can digest." Finally, on October 22, 2012, the day when the trial was scheduled to begin, the trial court granted defendant's request to continue the case to the next day for jury selection. The trial court determined that a one day continuance was warranted noting that defendant still had ample time to investigate the ramification of the State's new DNA reports until the DNA experts would testify at trial almost a week later. The trial court observed that in the new report Jackson admitted to making an error in failing to properly note all the relevant DNA data, although her initial conclusion that defendant could not have been excluded remained the same as in 2007. As such, after careful deliberation, the trial court exercised its discretion and granted defendant's request for one day continuance.

         ¶ 37 In addition, the new reports were not a surprise for the defense whose expert pointed out Jackson's mistake in his 2011 report. The 2007 report inferred a 16/16 profile and defendant had a 14/16, so based on the noted data, defendant could not have been a match. However, Jackson's conclusion that she could not exclude defendant as a contributor did not change from 2007 to 2012. The new report stated that 16/16 profile was still possible, but that 14/16 and 13/16 were also possible, making defendant a potential contributor. Again, defendant knew about the flaws in the State's DNA data interpretation since 2011 and the 2012 State's report, just as the 2007 report, concluded that defendant could not have been excluded as a contributor. At most, the new report exposed flaws in the State's initial interpretation of DNA data, flaws that defense was familiar with since 2011. The trial court properly concluded that defendant would use all the information provided in Jackson's new DNA report as meaningful ways to cross-examine the State's DNA expert witness on her noted data and her conclusions.

         ¶ 38 Furthermore, defendant fails to offer any argument on how he was prejudiced by the court's decision to grant defendant a one day continuance as opposed to a more lengthy continuance. Seven days passed between receiving the State's revised analysis on October 18 and the State expert's testimony at trial on October 25. The record reflects that defense counsel extensively attacked the revised DNA reports. On cross-examining, using Jackson's charts, defense counsel had Jackson highlight for the jury that defendant was a 14/16 at D8 locus when in her 2007 report Jackson concluded that the partial minor profile at D8 was a 16/16.

         ¶ 39 Similarly, Dr. Lawrence Muller, the defense expert who testified on October 29, highlighted the differences between the 2007 analysis, his analysis, and the revised analysis from 2012, emphasizing Jackson's flaws in the interpretation of the DNA data in her 2007 report. He pointed out the D8 locus in which the 2007 report inferred a 16/16 profile and that defendant had a 14/16 so there could not have been a match. Based on the extensive cross-examination of the State's expert witness and the detailed testimony of the defense expert witness, we cannot say that the defense was not adequately prepared during the trial proceedings. See People v. Balfour, 2015 IL App (1st) 122325. To the contrary, defendant fails to show what else defense counsel could have done if given a more lengthy continuance or how was he prejudiced by the court's decision to grant the requested one day continuance.[1]

         ¶ 40 The dissent speculates that a meaningful continuance would have been, as counsel argued during oral argument on appeal, three weeks. However, such a request was not made in the trial court. Counsel requested a one day continuance and the trial court granted it. The defendant did not present in the trial court reasons or a basis for a continuance longer than one day, which he ultimately got. Defendant's counsel never moved for or asked the court for a longer continuance nor moved the court for more time to hire a new expert. The court cannot have abused its discretion when it granted all the relief defendant sought.

         ¶ 41 Furthermore, the dissent extensively points out the weakness in the State's different DNA reports and uses the defense's trial exhibit to expose their flaws. But all the weaknesses, flaws and different conclusions in the State's DNA reports were raised, argued, highlighted and emphasized to the jury by the defense. The jury had all the evidence and considered what weight to give it and whether it proved the charge beyond a reasonable doubt. We cannot, as the dissent apparently wants, substitute our judgment for theirs. Accordingly, the trial court's decision to grant the requested one day as opposed to an unrequested longer continuance was not "arbitrary, fanciful, or unreasonable or that no reasonable person would take the view adopted by the trial court." See People v. Strobel, 2014 IL App (1st) 130300, ¶ 7.

         ¶ 42 Ineffective Assistance of Counsel

         ¶ 43 Defendant argues in the alternative that his defense counsel was ineffective for failing to exclude DNA evidence entirely as irrelevant. Defendant contends that, pursuant to the State's revised DNA report, defendant was a match to the minor profile that was found in the left hand fingernail clippings of Nicholas Guerrero. Defendant maintains that defense counsel should have moved to exclude the DNA evidence entirely, where a less than 13 loci match had no probative value. Additionally, defendant argues that defense counsel was ineffective for failing to move for a DNA database search to determine how many individuals in the Illinois database matched at 8 loci.

         ¶ 44 Claims of ineffective assistance of counsel are reviewed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 209 Ill.2d 194, 219-20 (2004). Under Strickland, a defendant must prove that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense in that absent counsel's deficient performance there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694. Under the first Strickland prong, defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness. People v. Enoch, 122 Ill.2d 176, 201 (1988); see also People v. Stewart, 104 Ill.2d 463, 491-92 (1984) ("Effective assistance of counsel refers to competent, not perfect representation.").

         ¶ 45 Further, in order to establish deficient performance, the defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy. People v. Manning, 241 Ill.2d 319, 327 (2011). Matters of trial strategy are generally immune from claims of ineffective assistance of counsel. Id; People v. Smith, 195 Ill.2d 179, 188 (2000). The only exception to this rule is when counsel's chosen trial strategy is so unsound that "counsel entirely fails to conduct any meaningful adversarial testing." (Internal quotation marks omitted) People v. Cooper, 2013 IL App (1st) 113030, ¶ 63. In other words, the presumption that the challenged action or inaction was the product of sound trial strategy may be overcome where no reasonably effective defense attorney, confronted with the circumstances of the defendant's trial, would engage in similar conduct. People v. Watson, 2012 IL App (2d) 091328, ¶ 24.

         ¶ 46 Here, defense counsel's decision to challenge the State's DNA evidence in a different way than moving to exclude it was a matter of trial strategy unchallengeable under Strickland. The record indicates that defense counsel extensively attacked the credibility of the State's DNA experts regarding their new revised reports, which they created after defense expert Dr. Muller opined that, contrary to the conclusion in the 2007 State's initial report, the data excluded defendant as a minor contributor. Defense counsel also presented the testimony of defense expert Dr. Muller, who pointed out the flaws in the State's initial DNA report, and highlighted in two charts the differences between his analysis, the State's initial DNA report, and the State's revised reports from its experts, Jackson and Gordon.

         ¶ 47 Similarly, in closing argument, defense counsel zealously attacked the reliability of the State's DNA evidence emphasizing, for instance, that the new reports were written just days before the trial: "when? Last Friday." Counsel argued, among other things, that the jury should disregard the State's DNA reports not excluding defendant since "none of [State's reports] match." Counsel highlighted Dr. Muller's testimony, his detailed charts, and his opinion that up to 86, 000 other people would not be excluded using the State's DNA reports. Counsel ended the lengthy attack on the DNA evidence stating "why these last minute re-interpretations. Try to make the DNA case stick against my client. Where it doesn't stick." Therefore, the record clearly establishes defense counsel's efforts and strategy during the trial and at closing arguments to undermine the State's DNA evidence by attacking the credibility and the reliability of the State's experts and DNA reports. See People v. Daniels, 301 Ill.App.3d 87, 100 (1998) (holding trial counsel was not ineffective for failing to more vigorously oppose DNA evidence: "It appears defense counsel's trial strategy was to use the State's DNA evidence as a weapon to attack the credibility of all forensic evidence."); see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 56 ("[W]e conclude that defense counsel's failure to object to the admission of [DNA] evidence did not amount to ineffective assistance of counsel.").

         ¶ 48 Defendant cites People v. Wright, 2012 IL App (1st) 073106, in support of his argument that the DNA evidence in this case should have been excluded entirely because an 8 loci match was insufficient to be treated as a match. In Wright, the DNA evidence constituted essentially the sole evidence used to identify the defendant from a felony database as the perpetrator of a sexual assault where the victim could not identify her attacker. Id. ¶ 81. Wright addressed the trial court's error in failing to order a pretrial DNA database search where the primary evidence to identify the defendant as the offender was a 9 loci analysis between his DNA and a male DNA profile obtained from the victim's rectal swabs. Id. The database search request was made pursuant to section 116-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-5(a) (West 2012)), which requires a defendant to show only that "DNA evidence may be material to the defense investigation or relevant at trial." Wright, 2012 IL App (1st) 073106, ¶ 81. In Wright, the majority acknowledged the fact that it was not asked to determine whether the expert's conclusion of a "match" based on only 9 loci was correct but, instead, it had been asked to determine whether the trial court abused its discretion in denying the defense the ability to investigate and impeach that conclusion. Id. ¶ 86. In addition, the court addressed the defendant's claim that his trial counsel was ineffective in his handling of the pretrial DNA motion and for failing to hire an independent DNA expert. Id. ¶ 103. Specifically, the Wright majority concluded that counsel rendered ineffective assistance by asking the trial court to order a database search that had already been done and, moreover, had been done at the request of the same counsel.

         ¶ 49 The facts and analysis in Wright are not pertinent to the instant case, which did not rely solely on the DNA evidence to identify an otherwise unknown offender. Here, the DNA evidence was a part of the State's case, and the State did not argue that the DNA evidence in and of itself established that defendant's DNA was a true match, but argued that defendant could not be excluded as a contributor to the DNA profile recovered from one the victims. Moreover, unlike Wright, here, trial counsel extensively cross-examined the State's DNA expert concerning the statistical meaning of the partial DNA profile comparison, presented the testimony of his own expert and argued before the jury that in the light of the partial 8 loci match and the State's various DNA reports, the DNA evidence should be given little weight. Accordingly, defendant's reliance of Wright is misplaced.

         ¶ 50 Furthermore, even if defense counsel would have moved to exclude DNA evidence in its entirety, defendant cannot show that such a motion would have been granted by the trial court. See People v. Mitchell, 2011 IL App (1st) 083143, ¶ 35 ("In the absence of Illinois authority that DNA evidence is excludable as a matter of law based on the evidence being 'too inconclusive, ' we reject the instant defendant's claim that the equivocal nature of [the] expert['s] opinion rendered his testimony legally inadmissible" and holding that a match at just 4 loci was relevant and admissible); cf. People v. Smith, 2012 IL App (1st) 102354, ¶¶ 170, 177 (Gordon, J., dissenting) (concluding that counsel's failure to exclude the DNA evidence in its entirety fell below a reasonable standard when a 6 loci match was "lacking in probative value").

         ¶ 51 Next, defendant's claim that defense counsel's performance was unreasonable for failing to request a DNA database search to determine how many individuals in the Illinois database matched at 8 loci lacks merit. Aside from being a matter of trial strategy, defense counsel, through the defense expert's testimony made it clear to the jury that there may had been many others that could not have been excluded at 8 loci. Specifically, Dr. Muller testified that the first report from 2007 produced a total of 21, 504 different genetic profiles, ...


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