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People v. Banks

Court of Appeals of Illinois, First District, Third Division

November 9, 2016

DAVID BANKS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois No. 05CR17342 The Honorable Kevin M. Sheehan, Judge Presiding.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Cobbs concurred in the judgment and opinion.


         ¶ 1 On the morning of September 8, 1990, the Chicago Fire Department responded to a fire in the basement of a multi-unit apartment building at 1058-1060 West Lawrence Avenue in Chicago. The bodies of a 55-year-old woman and a 79-year-old man and were discovered in the fire. The manner of death was determined to be homicide, and the fire was determined to have been caused by arson. A 12-year-old girl, T.C., reported having been raped and doused in fire accelerant by the offender in the basement but escaped to call for help.

         ¶ 2 Defendant David Banks was arrested after a 2005 "cold hit" in the DNA database. He was charged by indictment with 24 counts of first degree murder and one count of arson in regards to the double homicide and sexual assault. The indictments alleged that defendant murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the jury found defendant guilty of arson as well as the two murders. The trial court sentenced defendant to two terms of natural life imprisonment for the murders, to be served consecutively, and a term of 15 years' imprisonment for arson, also to be served consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA evidence at trial; (2) he was prejudiced by the "misuse" of his prior criminal record at trial; (3) he was prejudiced by comments by a testifying police officer regarding his invocation of his right to remain silent and his request for counsel; and (4) he was deprived of the effective assistance of trial counsel for a series of alleged trial errors. For the following reasons, we affirm.

         ¶ 3 BACKGROUND[1]

         ¶ 4 Defense counsel filed several motions prior to trial[2] including motions asking to suppress defendant's statement and motions relating to the introduction of DNA evidence at trial, asking to bar the introduction of other crimes evidence at trial, asking to be allowed further testing of the biological materials and databases for use at trial, and requesting greater latitude in the cross-examination of the State's DNA expert. Relevant to this appeal, defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) regarding whether DNA testing without the original controls or blanks was a scientifically valid methodology, (2) to exclude the DNA evidence where some of the material was inadvertently lost during testing in the laboratory, and (3) a search of the National DNA index system "for actual 9-loci pair matches that actually exist in the databases for the 9-loci identified in this case, " and "for the frequency of each of the alleles identified in this case as they actually exist in the databases."

         ¶ 5 After a hearing, the trial court denied the request for a Frye hearing regarding the DNA testing without the original blanks, stating: "Frye does not apply once determined that the scientific method is generally accepted" and noting that "[t]here is no Frye standard plus reliability standard, no independent evaluation of the theory or the reliability once the general acceptance threshold has been met. Reliability comes from general acceptance." The court explained that defendant's arguments regarding the DNA testing "goes to the weight, not the admissibility under Frye, " and that defendant's concerns could be addressed at trial through "vigorous cross-examination presentations of contrary evidence such as expert testimony." It stated: "The Frye standard applies only if scientific principle and technique or test offered is new or novel."

         ¶ 6 The court also held a hearing on defendant's motion for relief in conjunction with destruction of DNA or related evidence. The court denied the motion, finding that the DNA, which was inadvertently spilled during laboratory testing, was not materially exculpatory evidence and that it was not destroyed in bad faith. Additionally, the court admonished defense counsel that use of the term "destroyed" was not appropriate, stating, "It's spilled, right? We're talking semantics here, something certainly wasn't destroyed in a bad faith sense or somebody just took something and obliterated it. *** What we have here is something that's spilled during a test requested by the parties[.]"

         ¶ 7 Defendant's motion for a DNA database search was filed with the trial court on May 20, 2010. By that motion, defendant explained that he was arrested based on a "partial, 9 Loci DNA match to a buccal swab taken from him." The motion also stated:

"5. The Illinois State Police Forensic Scientist in this case, Cynara C. Anderson, opined that the statistical probabilities of such a match were 1 in 52 million Black, 1 in 390 billion White, or 1 in 200 billion Hispanic unrelated individuals at the 9 loci profiled.
6.However, the Forensic Scientist from the Illinois State Police printed a State Match Detail Report that indicates that the 'Locus Match Stringency' parameters were set at high, which nevertheless resulted in 2 matches, 1 at 10 Loci and 1 at 6 Loci; presumably the '10 Loci' match is actually the 9 Loci match excluding the Amelogenin Loci (X, Y). It is not clear what the other 6 Loci match was.
7. Moreover, an Arizona database search of 65, 493 specimens revealed 120 pairs of 9-loci matches; an Illinois database yielded 900 pairs of matches at 9 loci; and a Maryland study 32 pairs of 9-loci in a database of less than 30, 000. Wherefore, the State's theoretical statistical analysis, which lends relevancy and weight to the State's DNA evidence is seriously in doubt considering actual DNA searches of real profiles that exist in actual DNA databases."

         Defendant specifically requested the court to order the State Police to search the following databases: "a. offenders maintained under 730 ILCS 5/5-4-3(f); b. unsolved crimes maintained by state and local DNA databases by law enforcement agencies; and/or c. the National DNA index system" using the following formulas:

"a. for actual 9-loci pair matches that actually exist in the databases;
b. for the actual 9-loci identified in this case, but utilizing Low, Medium and High locus Match Stringency; and
c. for the actual frequency of each of the alleles identified in this case as they actually exist in the databases."

         This motion was held in abeyance.

         ¶ 8 On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining to the court:

"THE COURT: Database search motion withdrawn?
[PUBLIC DEFENDER CHRIS ANDERSON:] Yes, motion for DNA Database search. I was able to actually find-the FBI had actually done a CODIS allele frequency analysis for each of the databases, so I didn't need it because I have it now.
THE COURT: Okay. That database motion is withdrawn.
[PUBLIC DEFENDER ANDERSON:] That issue is done. After further discussions with the lab, I realize that by entering the profile in this case that they are searching all additional cases in the CODIS database against that COPA [sic] any new ones put in so that in effect is being done anytime-
THE COURT: I believe [Assistant State's Attorney Mary Lacy] mentioned that on the last court date that they continually search during the pendency of the case.
[PUBLIC DEFENDER ANDERSON:] Right-well, perpetually they search. Third the issue is the National DNA Search using the profile in this case for purposes of trial strategy, general strategy, we are not pursuing that issue, Judge. So all of these things that we requested have been resolved, so I'm asking leave to withdrawal [sic] that motion, Judge.

         ¶ 9 Defendant also filed a motion to suppress his statement, as well as a supplemental motion to suppress statements. At the end of the hearing, the trial court made extensive findings of fact, after which it denied the motion, noting:

"For the foregoing reasons, respectfully your motion to suppress statements is denied. The court specifically finds that the defendant was advised of his rights, that he waived his rights until he asked for an attorney when all questions ceased ***.
He was never confronted with material misrepresentations. The statements, whatever they were obtained [sic] by the defendant, from the defendant, were not obtained as a result of physical or psychological or mental coercion.
The court finds whatever statements that the defendant made were voluntarily of his own free will. And the first time the defendant invoked his right to attorney was to [the assistant State's Attorney] after which questioning ceased. Respectfully, your motion to suppress statements is denied."

         Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant's propensity to commit sexual attacks and to motive and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the court allowed evidence of the prior sexual assault as evidence of defendant's propensity to commit sexual attacks, motive, and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court determined:

"It is clear that in viewing the proof of other crimes sought to be admitted, it's relevant to the issues of defendant's propensity to commit sexual attacks and to motive and intent. The statute [and] case law mandates this Court to allow the People to present evidence of other crimes discussed above."

         ¶ 10 Defendant also moved to bar the use of the 1984 sexual assault case and a 1990 murder conviction for impeachment purposes should he testify. The State agreed not to use the 1984 sexual assault case for impeachment. The court then allowed evidence of the 1990 murder conviction "for the very limited purpose" of impeachment in the event defendant were to testify.

         ¶ 11 At trial, T.C. testified she was a 12-year-old sixth grader in September 1990. She lived in the second floor apartment at 1060 West Lawrence with her mother, stepfather, and two sisters. She had slept overnight at her father's house a few blocks away and was returning to her own apartment at approximately 8:30 on the morning in question. Although she did not know how big she was at the time of the attack, she testified she was smaller at the time of the attack in 1990 than she was at the time of trial. At the time of trial, she was 4 foot, 11 inches tall and weighed 90 pounds. As she approached the back entrance to her building, a man grabbed her from behind and covered her mouth with his hand. He dragged her down to the basement apartment where she saw a woman and a man. She recognized the woman as Pat, the building manager, and the man as a resident of the building. Both of the victims had their hands tied and their mouths gagged. Pat was moaning. The man was on the floor, not moving. The offender hit and kicked T.C. He ordered her to remove her pants and underpants. He pulled them off of her after she resisted. He then stuck his finger and penis into her vagina. While this was happening, T.C. heard Pat say, "don't hurt her, let her go." The attacker responded, "shut up, I kill you."

         ¶ 12 After sexually assaulting T.C., the assailant picked Pat up off of the floor and put her on a bed. Then he walked to the man, still on the floor, and kicked him. T.C. then watched as the assailant poured what looked and smelled like gasoline on both the woman and the man. He then returned to T.C., picked her up, and laid her on the floor near the bed. He soaked her pants and underpants in gasoline and ordered her to put them back on. When she refused, he put them on her. She then watched him rummage in his duffel bag and retrieve a bicycle chain lock. He put the chain around T.C.'s neck and choked her with it. She tried to fight and resist, but slipped in and out of consciousness. When she came back to consciousness, she was laying on the floor. She acted like she was dead and watched her assailant look for matches. He found the matches and lit a fire on the bed near Pat. T.C. continued to play dead as the room filled with smoke and fire, and she watched the attacker grab his duffel bag and leave through the front door. After he left, she got up, attempted unsuccessfully to rouse Pat and the man, and then escaped. She ran upstairs to her apartment, told her mother what happened, and they left the building. T.C. was taken to the hospital.

         ¶ 13 At trial, T.C. described her attacker as having long hair pulled back in a ponytail and wearing a sleeveless shirt. T.C. also described a big "greenish color" tattoo that "was looking like a dragon" on his arm. She remembered he was wearing a chain around his neck that held two credit card-sized cards. T.C. did not identify defendant at trial has her assailant. In 1991, she identified another man, Albert Chaney, as her assailant. Chaney was arrested at that time, but subsequently cleared by DNA evidence and released in 1993.

         ¶ 14 Joanne Vo, T.C.'s mother, testified she heard banging on her apartment door at approximately 11:15 a.m. on September 8, 1990, and opened the door to find T.C. crawling on the ground, her face black and red, and a line on her neck. T.C. smelled like gasoline and her clothes were wet and dirty. Vo took T.C. to the hospital.

         ¶ 15 T.C. was examined at Children's Memorial Hospital by Dr. Ramona Slupik. Dr. Slupik testified that T.C. had been severely traumatized. Her eyes were swollen, the whites of her eyes were red and had burst blood vessels, and she had bruise marks and a strangulation mark around her neck. Dr. Slupik testified that T.C. was "trembling, but she was coherent" during the examination, and was able to answer the doctor's questions. T.C.'s genital area had swollen labia, a thin bloody discharge, and slightly dried white secretions on the outside of the hymen. In Dr. Slupik's opinion, there was "convincing evidence of blunt force penetrating trauma, " or "penile penetration." Dr. Slupik confirmed the presence of sperm under a microscope, took cultures to test for sexually transmitted diseases, and then collected DNA swabs from the oral cavity, vagina, and rectum, as well as fingernail scrapings for a rape kit. These items were each labeled individually, sealed, and sent to the crime lab.

         ¶ 16 The parties stipulated that nurse Mary Whiteford took the rape kit from Dr. Slupik and put it in hospital storage, that the kit was then retrieved by nurse Sandra Roy and given to Chicago Police evidence technician Roy Fondren, who then stored it with the evidence and recovered property section of the police department. The parties stipulated that a proper chain of custody was maintained over the kit at all times.

         ¶ 17 Retired Fire Marshall Louis Outlaw testified that he responded to a fire alarm at the three-story apartment building at 1058-1060 West Lawrence on September 8, 1990. The fire was extinguished by the time he arrived, and he spoke with firefighters on the scene. Outlaw determined the fire was mainly contained to the basement apartment. He then entered the rear basement apartment and saw a male victim on the floor who appeared to have had his throat slashed and a female victim on a bed who was badly burned over her entire body. Outlaw determined an accelerant had been used to advance the fire, that the ignition source was a human action such as an open flame, and that someone had purposely set the fire.

         ¶ 18 Illinois State Police acting trace chemistry group supervisor Alan Osoba, who at the time of the fire worked as a criminalist or police chemist for the Chicago Police Department's crime laboratory, testified he tested T.C.'s recovered clothing as well as four debris cans collected from the fire scene for accelerants. T.C.'s clothing and three of the four debris cans contained petroleum distillate residue such as diesel fuel or charcoal lighter fluid.

         ¶ 19 Retired Chicago Police Detective Wayne Johnson testified that he was working as a detective assigned to the violent crimes unit in September 1990. He arrived at the scene of the crime around 1:30 p.m. and went in to the basement apartment to process the crime scene. He then went to the hospital to interview T.C. He testified T.C. described her attacker as: "male, black approximately six feet tall, approximately 200 pounds with long hair worn in a ponytail, growth-beard growth on his face, a short sleeved shirt, white Nike gym shoes, and a sliver chain around his neck that displayed two cards that she compared to credit cards at the time." She said he carried a tubular gray duffel bag. He testified that T.C. was traumatized, but that a few days later she was able to provide more detail about her attacker. At that time, T.C. said "she thought he had a tattoo on his upper arm that to her looked like a dragon." She described it as light blue or faded blue green in color, but was unable to give great detail due to the lighting and the traumatic nature of the attack.

         ¶ 20 Dr. Edmund Donoghue, then the Cook County Medical Examiner, testified that he performed the autopsies of both Hedgpath and Soucy. He determined that both victims died before the fire was set, Hedgpeth of strangulation and Soucy from blunt force trauma. He described Hedgpeth as a 55-year-old white female with burns over 100% of her body, including full thickness burns. Hedgpeth also had internal injuries including fractures consistent with manual strangulation. Dr. Donoghue described Soucy as a 79-year old white male with partial thickness burns on much of his body. Soucy had a 2-inch deep wound through his right eye, consistent with being stabbed with an ice-pick-like instrument. He also had numerous skull and rib fractures consistent with being stomped or kicked, as well as a laceration to his neck involving the jugular vein consistent with his neck being cut with a knife.

         ¶ 21 Forensic Scientist Edgardo Jove testified that he worked at the Chicago Police Department crime lab from 1991 to 1996. He received the rape kit taken from T.C. for testing on July 20, 1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic slides; and fingernail samples. He examined the vaginal smears for the presence of sperm and tested the body fluids found on the vaginal swab. He then sent the samples for DNA testing to the Illinois State Police forensic lab in Springfield. Jove testified that he maintained a proper chain of custody over the items.

         ¶ 22 Dr. Elizabeth Benzinger testified as an expert in the field of forensic DNA analysis. Although by the time of trial she worked with the Ohio Bureau of Criminal Investigation, from 1990 to 1996 she worked at the Illinois State Police crime lab and was one of four individuals who set up the forensic DNA typing program from the Illinois State Police in Springfield. She testified that she received sealed items including T.C's vaginal swab and blood samples from T.C. and Albert Chaney pertaining to this case in October 1993. She described DNA to the jury as a "long string like molecule" that is "the blueprint of life." She described its usefulness in forensic analysis as:

"DNA is useful for forensic analysis because scientists believe that no two individuals have the exact same DNA except for identical twins. So we are able to look at the DNA from one person, their oral swab, their saliva, their blood, all the tissue of their body, their bones, their semen, all have the same DNA. So we can compare a sample from the blood or an oral swab from the mouth to DNA from a crime scene, such as blood or semen, and use that to determine if the individual could be the source of that crime scene sample."

         ¶ 23 She described four steps to DNA tests: (1) extract the DNA from the item using a reagent that is "essentially high tech laundry detergent, " which helps get the DNA out of, for example, the shirt it may have been on; (2) solubilize the DNA, or get it into solution and remove the other parts of the cell, separating a sexual assault sample into a male sample and a female sample; (3) determine "how much DNA we have" and amplify the DNA; and (4) examine the different areas of the DNA that are known to be highly variable and make comparisons. She explained that DNA amplification is "essentially chemical Xeroxing" in order to improve the sensitivity of DNA tests. Dr. Benzinger explained that, in 1993, testing included using an RFLP method "that is responsible for the bar code-like patterns that we see on TV" that did not use the amplification and was not very sensitive, and also a method based on the amplification process known as DQ-Alpha. The DQ-Alpha test "examines some variation in the DNA on one of the chromosomes." She said the DQ-Alpha test is "only one test compared to what we use today which is an array of tests."

         ¶ 24 When Dr. Benzinger received the samples from T.C. and Chaney, she numbered T.C.'s blood standard 1, Chaney's blood standard 2, and the vaginal swab 3. Dr. Benzinger testified that she then extracted T.C.'s and Chaney's DNA from the blood samples. She also extracted DNA from the vaginal swab. Dr. Benzinger ran controls and created a reagent blank during her testing. She explained the controls process:

"Q. [ASSISTANT STATE'S ATTORNEY DAVID WEISS:] When you're doing this test, do you work with any types or do you perform any types of control to determine whether or not you've done anything to contaminate or do anything to the sample?
A. [DR. BENZINGER:] A. Yes, because of the sensitivity of these tests, we run controls to tell us whether we are introducing extraneous DNA and also whether our methods are working correctly.
So the controls I used were samples that I worked with that I placed only reagents in, only the chemicals that I was using. And my expectation was that I should get no DNA type from them if they were not introducing DNA on their own.
Q. Was that the result, no DNA?
A. Yes."

         ¶ 25 Dr. Benzinger obtained profiles using DQ-Alpha testifying from the blood standards of T.C. and Chaney, as well as from the vaginal swab. The profile from the vaginal swab did not match the profile from Chaney's blood standard. This excluded him from having contributed to the vaginal sample, that is, he was not the source of the semen on the vaginal swab. Dr. Benzinger then followed the lab's procedure: she dried the DNA she had extracted from the vaginal sample on a piece of filter paper, froze it to preserve it, and sealed it. She testified she maintained a proper chain of custody at all times during her testing.

         ¶ 26 On cross-examination, Dr. Benzinger agreed that DQ-Alpha testing has now been replaced by DNA testing known as short tandem repeat, or STR, testing. DQ-Alpha tests at one area of variation in a sample, while STR can test at 13 locations of a sample. In other words, DNA testing has improved over the years to be more sensitive.

         ¶ 27 Chicago Police detective Thomas McIntyre was assigned to the cold case squad in 2002, when he began a file review of the murders of Hedgpeth and Soucy. After learning that the rape kit had been destroyed, he learned that DNA had been extracted from the kit samples. He sought out the DNA extracts. Detective McIntyre located the DNA extracts in February 2005 and submitted them for DNA analysis. Later that year, he received the name of an individual who had been identified in the FBI database from Anderson, who informed him she needed a confirmatory buccal swab. On Jun 29, 2005, Detective McIntyre obtained a warrant for a swab from defendant, and an evidence technician took a buccal swab from defendant and photographed the tattoo of green roses on his right arm on June 30, 2005. Detective McIntyre traveled to Peoria to arrest defendant and then transported defendant back to Chicago.

         ¶ 28 The parties stipulated that retired Chicago Police evidence technician Kerry Watters would testify that she collected a buccal swab from defendant on June 30, 2005. She also photographed his arm and tattoo at that time. The buccal swab standard was subsequently submitted to the Illinois State Police crime lab for DNA analysis, and a proper chain of custody was maintained over the evidence at all times.

         ¶ 29 Illinois State Police forensic scientist Cynara Anderson testified as an expert in her chosen field. Defense counsel cross-examined her as to her qualifications, asking her if she had formal training in population statistics and DQ-Alpha testing. As to her qualifications, she testified she had completed both a forensic biology training program and a DNA analysis training program, and had been previously qualified as an expert in both biology and DNA on numerous occasions. She admitted she does not have "formal training in DQ-Alpha, " and explained that population genetics was "one of our modules in our DNA training as well as I completed course work in my college education." She opined that population genetics were "to a certain extent" one of her areas of expertise. She testified she had studied "about the extent of actual preference of DNA" as "they actually exist in the population, " and agreed she had studied statistics and population statistics. She agreed that the majority of her training and expertise "is with respect to DNA, not to statistics."

         ¶ 30 Anderson testified that she received DNA samples of extracted DNA in the T.C. case in February 2005.[3] Sample 1A was a DNA standard extracted from T.C., sample 2A was a DNA standard extracted from Chaney, and sample 3A was the female fraction (F1), sperm fraction (F2), and DNA extracted from the vaginal swab (F3). Anderson testified that, because the DNA was dried inside the tubes, she began by adding liquid to sample 1A, the standard from T.C., and sample 3A, the extractions from the vaginal swab. She also created a blank to monitor the analyses for any contamination. After creating the blank, she had five tubes altogether. She tested the blank tube, which should not contain any DNA, and did not receive a DNA result. This meant that she had not introduced any contamination throughout her analysis. Therefore, she began the process of amplification, or making copies of the DNA in order to have a sufficient amount to "get a decent DNA profile from the extracted DNA." She transferred the DNA from T.C., F1, F2, and her blank to tubes and put them in a machine to be amplified. Anderson testified that, during the preparation of the amplification stage, she dropped the F2 tube (the sperm fraction from the vaginal swab) onto her exam paper. She was still able to put the required amount of DNA into the first tube for the 9-loci amplification, but was unsure if she had enough for the second tube for the other 4-loci amplification. She put the DNA into the two tubes and amplified it. After amplification, the samples, one 9-loci tube and one 4-loci tube, were ready to be put into another instrument in order to generate the DNA profiles. In the 9-loci tube, the non-sperm fraction (F1) generated a profile matching the standard from T.C., and the sperm fraction generated an unknown male profile. Anderson did not get any results from the 4-loci tube. She testified it is not uncommon to not get results on the 4-loci tube.

         ¶ 31 On May 23, 2005, Anderson entered the unknown male profile into the FBI database and got two possible matches. One of these possible matches was defendant along with his various aliases, and the other matched to a private laboratory. She telephoned the private laboratory and determined that they had made an error in uploading certain information such that, in the end, the second possible match was not a match. The nine loci matched to defendant. Anderson requested a "confirmatory standard" from the Chicago Police so she could perform an analysis to confirm the hit. She received that confirmatory standard in September 2005, and extracted a DNA profile which matched the profile identified in the F2 sperm fraction taken from T.C.'s vaginal swab.

         ¶ 32 Anderson testified that she then performed a statistical calculation of how rare the profile identified in the F2 sperm fraction would be in a given population. She testified:

"A human DNA profile was identified in Exhibit 3A, which matches the DNA profile of [defendant]. This profile will be expected to occur in approximately 1 in 52 billion blacks, 1 in 390 billion white, or 1 in 200 billion Hispanic unrelated individuals at the nine loci I worked with."

         ¶ 33 Anderson also testified that, after she entered the sperm fraction in the database, the DNA profile is "continually run as of now, " that every time somebody puts a profile in the database, it is run against the DNA in this case. Since the database hit on defendant's profile in 2005, it has never hit to any other person or any other profile in the database. If it were to hit on another individual or profile, Anderson would be notified.

         ¶ 34 On cross-examination, Anderson explained her process for generating the probability statistics for the rarity of the DNA profile. She testified that there are 13 loci from which to test. The value at each loci has a frequency of occurrence, and there are two possibilities at each loci. The chances of the two values at each loci are added together and then multiplied for the next location. Anderson acknowledged on cross-examination that she was only able to determine the values at nine loci because she spilled the DNA, that she did not know the profile for the additional four loci, and that if any of the remaining four loci did not match defendant, he would be excluded as the offender.

         ¶ 35 Blake Willey, a former administrator at Somerset Nursing Home, located two blocks from the scene of the crime, testified that defendant worked at the nursing home from May 1990 to February 1991. During that time, nursing home personnel had to wear picture employee identification cards and carry time clock punch cards. The picture identification card was white and "about the size of a credit card." He testified that some employees wore their identification on a chain around their neck.

         ¶ 36 Chicago Police Lieutenant Anthony Wojcik testified he was a sergeant in the cold case homicide investigation unit on June 30, 2005. He spoke with defendant that day in an interview room at the police station. After advising defendant of his rights, defendant indicated he understood them. Then Lieutenant Wojcik went over his rights a second time. He asked defendant if he understood he was under arrest for the murders of Hedgpeth and Soucy, as well as for the rape and attempted murder of a young girl, and for arson of the residential building at 1060 West Lawrence. Defendant said he understood that was why he was in custody. Defendant asked what was happening in the case. Lieutenant Wojcik told defendant that the detectives were just about finished with their investigation and had contacted the State's Attorney's office. He told defendant a State's Attorney was on her way to the police station and would review the case with the detectives and determine whether charges should be brought against him. Wojcik testified, "I told him this investigation has shown without doubt that you're the guy that committed those crimes that you're under arrest for. I said I believe you're going to be charged with those crimes." Defendant asked what the statute of limitations for the crimes was, and Wojcik told him there was no statute of limitations on "murder related crime."

         ¶ 37 Lieutenant Wojcik testified:

"Well, he was quiet for a little while, then he just said I'm tired. He said I'm tired of denying that I know anything about this and then he stated-he said it's these blackouts, man. He said I can't control the blackouts.
** *
He said, yes, throughout his life there would be periods of time where he would have these blackouts. When he had these blackouts, he said the others would take over. He said when the others took over he said I did f***d up things that he was then held responsible for and he said in regards to this incident there are things I do remember and some of it that he didn't remember.
** *
I said, what do you mean by the others? He says that there are two individuals, that they were inside of him, and he said at times they would take over-they would take over his body.
** *
I asked him what happened *** in this incident [with the murders of Hedgpeth and Soucy]. He says-he said I blacked out and the others took over."

         ¶ 38 According to Wojcik, defendant recalled that a day or two prior to the incident, he walked by a gas station and saw a black woman he knew drinking beer with Lawrence Soucy. The woman introduced Soucy to defendant, and defendant started drinking with them. At some point, Soucy told defendant he had some money in a can at his apartment. Eventually defendant and Soucy walked back to Soucy's basement apartment together. Defendant returned to Soucy's apartment a day or two later and started looking for the can of money. Soucy came in and asked defendant what he was doing, and a white woman entered the apartment and shouted at defendant to get out. Wojcik testified:

"The next thing he said that he remembered was he was running from the rear of the building and the building was burning and it was on fire. He said he ran through an alley to get away from there, and then later he realized that his hair was frizzed. He said it was frizzed, and then he said it was singed from the flames in the heat.
He said he went to a beauty salon in the neighborhood, and he had his hair trimmed and then he got a perm."

         ¶ 39 Lieutenant Wojcik said he asked defendant if he knew the two individuals had been killed, asked him why his semen was in the young girl, and why he set the building on fire. He testified defendant responded:

"He says when I blacked out he said the others must have made me do things then that I don't remember."

         ¶ 40 Lieutenant Wojcik testified defendant said he did not remember ever having seen or met T.C. Defendant confirmed he was employed at Somerset House and thought he was on duty or working when he went to Soucy's apartment. Defendant also told Wojcik that he wore his ID cards around his neck, he wore his long hair back in a ponytail, and he had a tattoo on his arm. Defendant identified a photograph of the building at 1058-1060 West Lawrence as Soucy's building. Lieutenant Wojcik then asked defendant if he would speak with the assistant State's Attorney, and defendant said he would.

         ¶ 41 On cross-examination, defense counsel asked Lieutenant Wojcik why he did not request a court reporter to record defendant's statement. Wojcik responded:

"[B]ecause at a certain point the defendant asked for an attorney, so we didn't get to that point where we would have called for a court reporter.
*** [I]t would have been-when I got done talking to him it was about 4:15. I want to say it was some time around a little bit after 5:00 o'clock or so when he asked for an attorney. When I was in there with the State's Attorney was the first time he asked for an attorney."

         Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was the responsibility of the State's Attorney. He said:

"The State's Attorney would make [the decision to call a court reporter] in consult with [defendant] if he was willing to do that, but while the State's Attorney was speaking to [defendant] he requested an attorney. So at that time all conversation stops."

         ¶ 42 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial, arguing that the witness repeatedly emphasized that defendant had requested an attorney. The trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel replied, "Because I didn't want to emphasize that he had brought it out[.]" The trial court denied the motion for a mistrial, saying "what prompted the part about the attorney is because you [defense counsel] asked him questions about why weren't charges approved before the State's Attorney got there, " and "the only logical answer he could say upon your continuing questioning is, well, because he asked for an attorney. It was not brought out volitiously [sic] by him. In my opinion it was brought out by your continuing questions for that area."

         ¶ 43 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of questions about what he did and did not do while questioning defendant. Specifically, defense counsel asked a series of questions regarding why Wojcik did not drive defendant up to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to find the salon, but did not drive defendant there to do so. Counsel again asked why, when defendant allegedly had said the salon was in the neighborhood but was unsure of the street it was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon. Wojcik answered:

"Again, Counsel, I probably would have done that, but he asked for an attorney, which means at that point everything-any conversations I was having with him about the case had to stop, including putting him in a car and having him to point locations out."

         ¶ 44 At the close of Wojcik's cross-examination, defense counsel renewed the motion for a new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for ...

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