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People v. Montano

Court of Appeals of Illinois, Second District

March 30, 2017

AURELIO MONTANO, Defendant-Appellant.

         Appeal from the Circuit Court of Kane County. No. 08-CF-1707 Honorable Timothy Q. Sheldon and M. Karen Simpson, Judges, Presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justice Birkett concurred in the judgment and opinion. Justice Hutchinson specially concurred, with opinion.


          BURKE, JUSTICE

         ¶ 1 In July 1990, Guadalupe Montano, the wife of defendant, Aurelio Montano, went missing, and her body was never found. The State's theory was that defendant, motivated by jealousy, strangled Guadalupe with a rope, wrapped her in a rug, buried her at a horse farm with the help of his brother, told other family members about the killing, and moved the body before the police could find it. In 2014, a jury found defendant guilty of first-degree murder, and the trial court imposed a sentence of natural life imprisonment.

         ¶ 2 On appeal, defendant argues that he is entitled to a new trial because the court erred in admitting evidence that, 17 years after Guadalupe's disappearance, three detector dogs alerted to the scent of human remains on the rug, which was found buried in an outdoor area of the horse farm. Defendant argues that the evidence did not meet the standard of reliability set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that the error was compounded by the State's closing argument.

         ¶ 3 Defendant contends that the human-remains-detector-dog evidence is analogous to bloodhound trailing evidence that has been deemed inadmissible to show any factual proposition in a criminal case. See People v. Cruz, 162 Ill.2d 314, 369-73 (1994). The State responds that the evidence is more like the narcotics-detector-dog evidence deemed admissible in People v. Moore, 294 Ill.App.3d 410 (1998), where the dog alerted to the defendant's car even though no drugs were subsequently found in it. This case presents the thorny issue of whether a trial court should follow what is arguably Cruz's bright-line prohibition against odor-detector-dog evidence or reexamine the reliability of the underlying science as contemplated by subsequent supreme court decisions. Here, the trial court reexamined the underlying science, concluded that the State presented an adequate foundation for the admission of the evidence, and found the evidence reliable. We need not decide whether the trial court erred in admitting the human-remains-detector-dog evidence, because the overwhelming evidence of defendant's guilt rendered any potential error harmless beyond a reasonable doubt.

         ¶ 4 I. BACKGROUND

         ¶ 5 A. Frye Hearing

         ¶ 6 The State filed a pretrial motion in limine seeking to introduce expert testimony regarding human-remains-detector-dog "alerts" used during searches. The State proposed testimony that, in this case, three dogs gave positive alerts on the rug and the area where it was found.

         ¶ 7 Dr. Susan Marie Stejskal testified that she had a Ph.D. in toxicology with a minor in pathology. Dr. Stejskal's credentials also included an undergraduate degree in animal science and a veterinary technology program certificate of completion. Dr. Stejskal testified that she was experienced in the field of veterinary medicine, both as a licensed veterinary technician and with a substantial history of working with tracking dogs. Dr. Stejskal acknowledged on cross-examination that, although she had participated in 80 to 100 trained canine searches for human remains, she actually discovered human remains 7 or 8 times. She explained that the infrequency was the result of her services being requested to rule out areas of interest, such as in cold cases.

         ¶ 8 The trial court found Dr. Stejskal to be an expert on the subjects of the anatomy and physiology of canine olfaction systems, forensic taphonomy (the study of postmortem changes and decomposition of humans), and the training and deployment of human-remains-detector dogs.

         ¶ 9 Dr. Stejskal testified that a human-remains-detector dog serves as a tool to locate missing persons through the science of canine olfaction and forensic taphonomy. Dr. Stejskal described the olfactory system as the nostrils and turbinates, or coiled pathways in bone through which air passes when inhaled.

         ¶ 10 Inside the pathways of the turbinates, the air is filtered by ciliated epithelial cells, humidified, and warmed before it travels to the lungs. The odor that a human or dog detects consists of volatile organic compounds in water vapor suspended in the air. The turbinates contain olfactory sensory cells with chemoreceptors that detect these compounds and send messages through nerves to the olfactory bulb, which processes scent. The chemoreceptors are like taste buds in that distinct chemicals activate different cells to spark an electrical current to the brain.

         ¶ 11 The olfactory systems of dogs and humans work in similar ways, but dogs' sense of smell is far superior. First, dogs and humans have differently designed nostrils. When a human inhales and exhales, he or she will often breathe the same air and recirculate it. In contrast, a dog's nostrils shunt air to the side every time when exhaled, so different air is inhaled with each breath.

         ¶ 12 Second, humans have 5 million olfactory sensory cells while Dachshunds have 125 million, German Shepherds have 225 million, and bloodhounds have 300 million. Also, a German Shepherd inhales about five times as much air as a human, because the dog's turbinates are much more extensively coiled. The extensive coiling provides about 20 times more surface area of olfactory sensory cells.

         ¶ 13 Third, the canine olfactory bulb, which processes the electrical signals sent by the chemoreceptors, is about 40 times larger than a human's. Using photography as an analogy, Dr. Stejskal likened human smell to an "old fuzzy Polaroid" and canine smell to a high definition photograph, with extraordinary detail. Dr. Stejskal explained that a human perceives the world primarily through his or her eyes, but a dog perceives the world through its nose.

         ¶ 14 Dogs can be trained to locate human remains because their physiology gives them the unique ability to distinguish particular scents. When a detector dog encounters something it has been trained to detect, the dog will "become very, very interested in that odor" and exhibit a change in behavior in that they breathe by sniffing. When a dog switches from normal breathing to sniffing, more of the odor is sent through the turbinates. Each time they take a breath, dogs experience a scent as if they are encountering it for the first time. They do not experience "olfactory fatigue, " unlike humans who become desensitized to a scent after continuous exposure.

         ¶ 15 Dr. Stejskal gave, without objection, a Power Point presentation to describe forensic taphonomy, or the scientific processes of human decomposition and the postmortem changes that occur in different environments. The four main stages of decomposition are the dying of cells, early decomposition, putrefaction, and decay or postputrefaction.

         ¶ 16 After a person dies, cells begin to die from elevated acidity levels. The cells that die first have the highest energy demand and blood supply, like in the heart and lungs.

         ¶ 17 In early decomposition, the body goes through (1) algor mortis, or a decrease in body temperature; (2) livor mortis, or the gravitational pooling of blood; and (3) rigor mortis, or stiffening due to the contraction of muscle fibers. The duration of each mortis depends on environmental conditions.

         ¶ 18 Putrefaction is "the stage of decomposition which we associate with bloating and gas and smells" caused by microbes and bacteria that reproduce as they break down cells into carbohydrates, fats, and proteins. The body becomes very fragile, and "skin slippage" occurs, in which skin can pull away from the body and become attached to an object, such as a tarp, that might have covered it. The cells begin to separate from one another, internal organs break down, and liquefaction occurs, where parts of the body turn to liquid and spread to the environment. The body goes from bloated to flattened. The carbohydrates, fats, and proteins are broken down further into simpler building blocks. The final stage is decay, or postputrefaction, where the rest of the tissues break down. Eventually, skeletal remains are all that is left behind.

         ¶ 19 Many different chemicals are produced during the different stages of human decomposition occurring in different conditions, and dogs can be trained to identify the odors. For example, bloating causes methane and hydrogen sulfide gases. Also, when a body is in an environment with low oxygen levels and high water levels, certain bacteria can produce adipocere, or "grave wax." Adipocere emits a strong pungent odor. If tissues are in an area without the additive effect of soil microbes, the chemical composition will be slightly different. Dr. Stejskal testified that the Oak Ridge National Laboratory at the University of Tennessee, Florida International University, and the Federal Bureau of Investigation (FBI) have researched the different chemicals and the odors they produce.

         ¶ 20 Dr. Stejskal also testified to the training of dogs to detect human remains. Dr. Stejskal had been involved in such training for 10 years, but she was not involved in the training of the dogs used in this case. According to Dr. Stejskal, training a detector dog consists of repeatedly exposing the dog to the source of a particular odor and then rewarding the dog each time it demonstrates interest in that odor. The dog is then trained to perform an "alert" that connects the discovery of the odor to a behavior that is rewarded. Specifically, human-remains-detector dogs are trained by exposing them to the scent of human remains in different stages of decomposition and in different environments, creating a "library" of recognizable scents. Environmental conditions affect the chemicals and odors that are produced. The dogs also are exposed to nonhuman remains to differentiate the chemical profiles of their odors.

         ¶ 21 Dr. Stejskal testified that many different organizations use human-remains-detector dogs, sometimes referred to as Scientific Working Group Dogs (SWGDOGs). The FBI uses them as "victim recovery dogs, " and the U.S. military uses "human remains recovery dogs" to find mass graves and missing service members. The Netherlands and the United Kingdom also have used dogs in their searches for human remains. The Federal Emergency Management Agency (FEMA) has mostly used rescue dogs, but has also used human-remains-detector dogs, such as after the September 11, 2001, terror attacks in New York City and Washington, D.C., and after Hurricane Katrina in New Orleans. Now FEMA certifies human-remains-detector dogs throughout the country.

         ¶ 22 Dr. Stejskal testified that dogs can be trained to detect many types of substances, including human remains, explosives, and narcotics, although actual human remains are not used in the training. For example, the Department of Homeland Security uses dogs to detect agricultural products, such as meats, vegetables, and plants. Also, the Department of Customs and Border Patrol uses dogs trained to detect narcotics and explosives.

         ¶ 23 On very limited cross-examination, the defense questioned Dr. Stejskal about the chemical and nonchemical differences between the remains of humans and animals.

         ¶ 24 Dr. Stejskal opined that the field of training and deploying human-remains-detector dogs is widely accepted in the scientific community. She did not testify about whether a dog could alert on a location 17 years after it was alleged to have had contact with human remains.

         ¶ 25 Under Frye, the trial court deemed admissible the evidence of the three canine alerts on the rug and the area where it was found. The court found that the human-remains-detector-dog evidence constituted science that was not novel and was generally accepted within the scientific community.

         ¶ 26 B. Trial

         ¶ 27 1. July 1990

         ¶ 28 The trial commenced on October 28, 2013. Maribel Montano, the daughter of defendant and Guadalupe, testified that her mother disappeared in July 1990. At the time, Maribel was 10 years old and lived with her parents in Aurora. Maribel testified that her parents argued "very often" and that defendant often started the arguments, accusing Guadalupe of wearing clothes that were too revealing and riding to work with a male coworker. Maribel had a closer relationship with defendant than with Guadalupe, who worked a lot and was "more distant."

         ¶ 29 Maribel described the last time she saw her mother. One early afternoon in July 1990, defendant and Maribel prepared to drive to the Aurora home of her aunt, Maria Montalvo, and her husband. Maribel told Guadalupe goodbye and remembered seeing her light a cigarette. Defendant dropped off Maribel at the Montalvo home and returned the next day, driving Guadalupe's gray Firebird, which defendant did not usually drive. When Maribel entered the car, defendant said that Guadalupe had left with another man.

         ¶ 30 Upon returning home, Maribel noticed a mess in her mother's room. The bed had not been made, and clothes and Guadalupe's open purse were on the floor. Maribel did not look inside the purse, but she noticed that Guadalupe's wallet was open with a driver's license and social security card inside. Maribel also saw Guadalupe's jewelry on the vanity, including rings that she never took off.

         ¶ 31 Maribel described an area rug in the living room of her home. The rug was woven with a design consisting of squares on the border and palm trees. At some point after the disappearance, Maribel noticed that the rug was missing, and she did not see it again until 2008 when a detective showed it to her. The State presented a rug as an exhibit, and Maribel identified it as the rug from her living room, though she could not recall whether it was in the house on the day that Guadalupe disappeared. Maribel moved out 9 or 10 months after Guadalupe disappeared, and the rug was not in the home at that time.

         ¶ 32 Narcisa Montano, defendant's older sister, testified to a visit from defendant in July 1990. At the time, Narcisa had a good relationship with Guadalupe but defendant had not visited her or her children for six years. One day, defendant came to her house. Defendant seemed "nervous and strange, as if he were drunk or something." Defendant told Narcisa to go to his house with him. Narcisa agreed because she saw that defendant had a gun in his waistband or pocket. Defendant displayed the gun, and Narcisa felt threatened. As defendant drove, he told Narcisa that "he had sent [Guadalupe] to another world" and that "he had already sent the snake to another world, to hell." Narcisa asked why, and defendant responded that he "sent her to hell" for cheating on him.

         ¶ 33 When Narcisa and defendant arrived at defendant's house, he said that she needed to go with him to the horse farm on Hobson Road, where their brother, Juan Montano, and his son, Roberto Montano, lived and worked. If she did not go, defendant threatened, she would "be in the ground just like [Guadalupe]."

         ¶ 34 Narcisa walked into the house and saw Guadalupe's body sitting against the wall at the entry to the bathroom. Guadalupe, who was wearing a nightgown and socks, "was there sitting down, leaning against the wall, and she had a piece of rope on her neck." Defendant told Narcisa that he had strangled Guadalupe.

         ¶ 35 Soon thereafter, Narcisa's children arrived at the house but stayed outside, and defendant directed Narcisa to tell them to leave. The children left and defendant "grabbed the body and he put it in a little rug." Narcisa was too scared at the time to remember any details about the rug, other than that it had a design.

         ¶ 36 Narcisa acknowledged that her testimony before the grand jury was dissimilar in certain respects. She previously testified that, when she went to defendant's home and saw Guadalupe's body, it was already rolled up in a rug. Because she was nervous, she did not mention during her grand jury testimony that she saw Guadalupe's entire body. Narcisa now testified that her trial testimony was the truth and that she saw defendant place Guadalupe's body in the rug.

         ¶ 37 Narcisa testified that, after defendant rolled Guadalupe's body into the rug, he put the body into the rear of his truck. Defendant and Narcisa rode to the horse farm, looking for Juan. Roberto's wife, Maria Summaria, answered the door and said that Juan was at work. Narcisa went inside with Maria, and defendant left. Later that night, defendant returned and told Narcisa that they could leave. Defendant told her not to tell anyone what she had seen or "he would send me and my children to hell." Narcisa identified two exhibits: one was the rug that defendant used to transport Guadalupe's body, and the other was a rope that looked like the one on Guadalupe. The rug was the same one identified by Maribel.

         ¶ 38 On cross-examination, Narcisa acknowledged that she did not contact the police after seeing Guadalupe's body, even when she learned of their investigation. Narcisa was scared of defendant's threats. Narcisa told the police her story only after they said that other family members had confessed their involvement in Guadalupe's disappearance.

         ¶ 39 On November 14, 2007, Narcisa told Detective Guillermo Trujillo that she had seen a bundle on the floor with feet sticking out and that she never saw a face, but at trial she testified that that was a mistake she had made because she was nervous when speaking with the officer.

         ¶ 40 In her grand jury testimony on May 27, 2008, Narcisa testified that defendant had covered Guadalupe's body so her feet, but not her face, were visible. At trial, Narcisa did not recall her grand jury testimony, because "it was so long ago, " but she explained that she had meant to say that Guadalupe's feet were visible when defendant placed her in the truck and that she saw Guadalupe's entire body.

         ¶ 41 Maria testified that in the summer of 1990 she and Roberto were living with their children on the horse farm. Maria recalled a Sunday in July 1990 when defendant and Narcisa came to their house. Maria was pregnant at the time, and Narcisa recently had given her a baby shower. Maria regarded Narcisa as a mother to her. Narcisa usually greeted Maria with a hug and kiss, but that day Narcisa was quiet and cold. Maria asked Narcisa if she was feeling well or if she wanted to go inside to watch television and have a glass of water. Narcisa agreed and went inside with Maria. Defendant did not go inside, but, otherwise, Maria did not know where he went. Maria and Narcisa watched television for a few hours. Late at night, defendant returned, and he left with Narcisa.

         ¶ 42 Maria remembered the visit because, although Narcisa and defendant often visited her separately, it was unusual for them to come to the house together. It was also unusual for defendant to visit without calling or making plans in advance. While Narcisa was in the house, Roberto came in a couple of times and spoke with them briefly before returning to work in the barn. Narcisa told Maria that she was not feeling well, which was uncharacteristic of her.

         ¶ 43 Roberto testified that his father, Juan, died in 2009. In the first half of 1990, Roberto did not see Guadalupe very often, though Maria would occasionally babysit Maribel. Roberto, Juan, and ...

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