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People v. Richmond

Court of Appeals of Illinois, First District, Second Division

June 30, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DARNELL RICHMOND, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. Nos. 07 CR 14502 07, CR 12014 The Honorable Timothy Joseph Joyce, Judge Presiding.

          JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Pierce and Mason concurred in the judgment and opinion.

          OPINION

          NEVILLE JUSTICE

         ¶ 1 A jury found Darnell Richmond guilty of aggravated criminal sexual assault, based largely on DNA evidence. Richmond now appeals from the dismissal of his postconviction petition as patently without merit. He argues that his attorney should have sought in discovery the number of nine-locus matches in the Illinois DNA database to challenge the use of the product rule to estimate the probability that a person at random would match the DNA of the sperm found in the victim at the nine loci where Richmond's DNA matched the sperm. We find that, because a prior analysis of the number of matches actually found in the Illinois database broadly supported the use of the product rule, the failure to request an update of the data in discovery does not show ineffective assistance of counsel. Accordingly, we affirm the Cook County circuit court's dismissal of the postconviction petition.

         ¶ 2 BACKGROUND

         ¶ 3 On April 9, 2007, around 8:30 p.m., a black man about 6 feet tall, wearing a puffy black jacket with a fur-lined hood, grabbed the arm of Lia Skalkos as she stood near the intersection of 56th Street and Lake Park Avenue in Chicago's Hyde Park neighborhood. Skalkos screamed and ran off, and then she called police.

         ¶ 4 Around 9 p.m. that night, a black man in a puffy black jacket with a fur-lined hood came up behind C.L. near the corner of 55th Street and South Everett Street in Hyde Park, about 4 blocks from 56th and Lake Park. The man prevented C.L. from seeing his face. He forced C.L. to perform oral sex on him, and he made contact between his penis and C.L.'s vagina and anus. He robbed her of more than $50 and ran off. C.L. told a man passing by that she had been raped and robbed. The man drove C.L. to a hospital, where a nurse swabbed C.L.'s mouth, vagina, and anus.

         ¶ 5 Later that same night, a black man about 6 feet tall, wearing a black coat with a fur-lined hood, came up behind Erin Luboff as she walked into her apartment building near 54th Street and South Kimbark Avenue in Hyde Park, about 1 mile from 55th and Everett. The man grabbed Luboff's hips and pushed her into a wall. She slid to the floor. The man punched Luboff in the face and stole her phone.

         ¶ 6 A police laboratory analyzed the DNA found on the anal swab taken from C.L. One court explained: "DNA is composed of the familiar double-helix strand of nucleotide base pairs ***. *** Markers used for human identity testing are found in the DNA either between the genes or within genes and simply do not code for genetic variation. The location of 'markers' in these highly polymorphic or variable regions is called a 'locus' (plural 'loci'), and a variant of the DNA sequence at a given locus on a chromosome is called an 'allele.' " In re Jessica M., 399 Ill.App.3d 730, 743 (2010). The alleles found at 13 standard loci form the DNA profile of an individual. People v. Watson, 2012 IL App (2d) 091328, ¶ 7.

         ¶ 7 The laboratory's analysis of the anal swab here produced two DNA profiles. One matched C.L. The DNA for the second profile produced an unambiguous reading at 9 of the 13 loci usually tested to create a complete DNA profile for purposes of identification. At the other 4 loci, the analyst found some ambiguity about the reading. Police searched the Illinois DNA database using the 9 loci where the analyst found a clear reading. Police found that Richmond's DNA had the identified alleles at all 9 loci. The ambiguous data from the other tested loci did not rule Richmond out.

         ¶ 8 On May 23, 2007, Luboff viewed a lineup. She positively identified Richmond as the man who attacked her. C.L. also viewed a lineup, but she could not identify anyone in the lineup as the man who attacked her. Skalkos viewed a photo array that included Richmond's picture, but made no identification. Skalkos viewed a lineup in person on May 23, 2007. She tentatively identified Richmond as the man who grabbed her, but she said she felt unsure of the identification.

         ¶ 9 Prosecutors charged Richmond with three counts of aggravated criminal sexual assault of C.L. and one count of robbery. At the jury trial, C.L., Skalkos, and Luboff described the incidents of April 9, 2007. None of them identified Richmond in court as the man who attacked them. A police officer who conducted the lineups testified that at the lineups held on May 23, 2007, Luboff had identified Richmond as the man who attacked her and Skalkos tentatively identified Richmond as the man who attacked her.

         ¶ 10 The prosecution presented a DNA expert who estimated the probability of a random match at the nine loci where Richmond's DNA matched the DNA on the anal swab from C.L. For the estimate, the expert used the "product rule." She took the proportion of profiles in the database with the alleles found in the sample at the first locus, multiplied that by the proportion of profiles in the database with the alleles found in the sample at the second locus, then multiplied that product by the proportion of profiles in the database with the alleles found in the sample at the third locus, and so on through all nine loci for which the sample provided an unambiguous reading. The expert said approximately 1 in 3.9 trillion black persons, 1 in 750 trillion white persons, and 1 in 1.8 quadrillion Hispanic persons would match the DNA profile at the nine loci.

         ¶ 11 The jury found Richmond guilty on three counts of aggravated criminal sexual assault and one count of robbery. The trial court sentenced Richmond to three terms of 18 years each for aggravated criminal sexual assault, to be served consecutively, and to a term of 7 years for robbery, to be served concurrently with the sexual assault sentences. This court affirmed Richmond's convictions and sentences for sexual assault, but we vacated as void the concurrent sentence for robbery and remanded for resentencing. People v. Richmond, 2012 IL App (1st) ...


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