Court of Appeals of Illinois, First District, Second Division
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
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.
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
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) ...