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People v. McNeal

Court of Appeals of Illinois, First District, Fourth Division

December 31, 2019

ARTEZ McNEAL, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 17 CR 1246 The Honorable Ursula Walowski, Judge, presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.



         ¶ 1 After a jury trial, defendant Artez McNeal was convicted of being an armed habitual criminal and sentenced to 10 years with the Illinois Department of Corrections (IDOC).

         ¶ 2 In this appeal, defendant claims, first, that the trial court erred when it allowed Officer Thomas Ellerbeck to testify, based on his own experience of having examined 1800 firearms, that it was rare to recover latent fingerprints from a gun. Second, defendant claims that the State committed prosecutorial misconduct in closing argument and opening statement by making inflammatory and burden-shifting arguments.

         ¶ 3 For the following reasons, we affirm.

         ¶ 4 BACKGROUND

         ¶ 5 The evidence at trial established that, on December 28, 2016, at 9 p.m., a group of police officers were patrolling an area in Chicago known for gang activity and drug sales. As Officer Michael Callahan's vehicle drove by an apartment complex, he observed a group of five to eight men standing in the courtyard of the complex, approximately 70 to 75 feet away from his vehicle. Although his Crown Victoria lacked a police logo, Officer Callahan testified that it was "like a regular police car you see" with two spot lights, "M" or municipal plates, and white bars, all indicating that it was a police vehicle. One of the men, who was later identified as defendant, looked toward Officer Callahan's vehicle, immediately turned, grabbed his right side, and ran. Officer Callahan exited his vehicle and chased defendant who entered an apartment building. Defendant ran through two doors and into the first-floor hallway, but Officer Callahan was stopped by the second door which was locked. Looking through a glass panel in the locked door, Officer Callahan observed defendant approach the last apartment off the hallway. During this time, Officer Callahan did not observe the handle of a gun sticking out of defendant's pocket.

         ¶ 6 However, believing that defendant was in possession of a gun, Callahan had previously radioed Officer Ralph Mionskowski who had approached the building from the other side. Thus, Officer Callahan was on the north side of the building while Officer Mionskowski was on the south side of the building. Both officers were looking through glass panels in the building's doors, but on opposite ends of the building's main hallway.

         ¶ 7 From his vantage point, Officer Mionskowski observed defendant approach the apartment and knock on its door, which was five feet from Officer Mionskowski. Before the apartment door opened and before defendant entered, Officer Mionskowski was able to observe defendant for eight seconds. Mionskowski testified that, during that time, he "observed in his right pants pocket a handle of a gun protruding from his pocket." Mionskowski testified that the handle was brown and wooden, and that he "basically saw the whole handle from where his pants stopped, so it was basically just a handle end sticking from his pocket." There were no objections to Mionskowski's testimony that the object was a gun.

         ¶ 8 As defendant was entering the apartment, Officer Callahan gained entry by pressing a buzzer, and ran down the hallway to let Officer Mionskowski into the building. Officer Callahan testified that he "bang[ed]" on the apartment door and defendant opened it. Officer Mionskowski estimated that only 30 seconds had elapsed between when defendant entered the apartment and when he opened the door for the officers. While defendant was detained in the hallway by Officer Mionskowski, Officer Callahan entered the apartment, where he observed an approximately 20-year-old woman and a couple of children. Officer Callahan testified, without objection, that, after speaking to the woman, he went to the back bedroom, which contained toys, children's clothes, and a child's bed and comforter. When asked if he searched the room, Officer Callahan replied that he "just looked under the bed," where he observed and retrieved a brown-handled, Western Ranger, .22-caliber revolver. Officer Callahan explained that he recovered the gun without gloves because of "the situation, the apartment wasn't secure, there were children around" and he "figured it would be best to pick it up right away." After Officer Callahan exited the apartment with the gun, Officer Mionskowski recognized that it was the same gun that he had previously observed sticking out of defendant's pants pocket. When asked how he recognized the gun, Officer Mionskowski, an 18-year veteran with the Chicago police force, explained: "It's very distinctive, the wooden handle." Thus, Officer Mionskowski recognized the same wooden handle that he had previously observed sticking out of defendant's pocket. Also, Officer Mionskowski testified that the hallway had "very good artificial lighting."

         ¶ 9 The last and third witness was Officer Thomas Ellerbeck, who was qualified as an expert in the field of "latent print development and recovery." Officer Ellerbeck testified that he had been employed for 20 years with the Chicago Police Department and 12 years with the Forensics Services Division, and had worked for the last five years in "latent print development and recovery." Ellerbeck received evidence "on a daily basis" which he examined for the presence of latent fingerprints. Twelve years ago, when he became an evidence technician, he received training from the Illinois State Police Crime Lab and the Chicago Police Crime Lab and, after a probationary period, processed crime scenes, including recovering hundreds of fingerprints. After seven years, he began working as an evidence technician in his current section, "the latent print development and recovery section." After a year-long probationary period, he was permitted to work on his own cases, and examined "approximately 1800 firearms for latent prints" and examined "bullets hundreds of times." Ellerbeck previously testified as an expert witness in latent print development and recovery at least 16 times. At trial, when the court asked if the defense had any objection or desire to inquire further, counsel responded: "Judge, I have no objection, but preserve the pretrial issue."

         ¶ 10 Prior to trial, defendant had filed a motion in limine to bar Ellerbeck from testifying about the guns he had tested in other cases. Defendant sought to bar any testimony from Ellerbeck (1) concerning any testing of firearms that were not the weapon recovered in this case and (2) concerning statistics about how many guns that are tested yield fingerprints. Defendant also claimed that "there has been no basis provided for any opinion as to why there are no fingerprints on the weapon in question and it would be improper for a State's witness to testify as to the absence of evidence connecting this defendant to the crime alleged." The trial court denied the pretrial motion, finding that, if Officer Ellerbeck is "qualified as an expert in testing analysis of firearms, he could obviously testify to his own experiences. He doesn't have to be an expert in statistics or studies, but he could certainly testify to *** his experience as an expert, what he's tested, how many times, and what has come up positive. I don't see any issue of that being irrelevant or too prejudicial***." The trial court further stated: "if Mr. Ellerbeck is qualified as an expert in firearms, he could testify as to his experience of how he recovers fingerprints, what he does, what his experiences were, what kind of surfaces can or cannot get fingerprints, how fingerprints would not be found, these are all within his expertise as long as he's qualified."

         ¶ 11 Ellerbeck testified at trial that he did not find any latent prints on the gun or on six .22-caliber bullets that he received in the same envelope with the gun. Ellerbeck explained what a latent print was and the steps that he normally undertakes to look for prints and that he also took with respect to this gun and these bullets.

         ¶ 12 When Ellerbeck was asked, out of the 1800 times he had examined guns, how many times he had recovered prints, defense counsel objected, stating: "Judge, objection. I believe this is beyond the scope of his expertise." After the trial court overruled the objection, Ellerbeck testified: "So I've examined over 1800 firearms approximately. And in my education and experience, I've determined that it's extremely rare to find a suitable identifiable ridged impression on a firearm. But out of those 1800 times, only approximately 61 times [was I] able to find a ridged impression that was identified."

         ¶ 13 Ellerbeck then explained why this gun, in particular, was not conducive to the retention of prints. First, he noted: "The grip is a wooden grip. And wood is a porous surface which absorbs moisture. So the moisture would not be left at the top of the surface. And *** a fingerprint is the moisture from our hands. So the wood would absorb that moisture."

         ¶ 14 Second, Ellerbeck observed that the trigger on this gun was "a curved small surface area" with "a groove along the curve." As a result, "it's a very small surface area for any ridged impression to be present." "[F]or a ridged impression to be identified, you need a larger surface than a trigger."

         ¶ 15 Third, the gun was a blue steel handgun. Ellerbeck explained that a "blue'ing coat" was "placed on a gun to prevent rust" and "rust is caused by moisture." Thus, the gun was made to resist the moisture that would leave a print.

         ¶ 16 Fourth, the cylinder had several grooves in order to provide a good grip, but that meant that it was not a smooth area for prints.

         ¶ 17 Fifth, since it was a heavy handgun, a person would use "an enormous amount of pressure to handle this handgun creating pressure distortion." Ellerbeck explained that pressure distortion meant that the person holding the weapon was creating "smudges," instead of "a nice smooth impression that's going to be readable and identifiable."

         ¶ 18 Ellerbeck was asked how many times he had examined bullets for the presence of latent prints, and this time he answered "thousands." Earlier in his testimony, he had answered "hundreds." When he was asked how many times he had located a latent print on a bullet, defense counsel objected, stating that he "renewed [his] objection." After the trial court overruled the objection, Ellerbeck answered: "under five times I've located an identifiable print on a bullet." When asked what about a bullet makes it difficult to retain a print, Ellerbeck answered: "In this case, these bullets are extremely small and round. *** These are small surface areas, and you need a large enough area for an impression to be placed on so that there's enough detail to allow it be identified."

         ¶ 19 Lastly on direct examination, Ellerbeck testified that, if a gun was pulled out of a pocket, that action could wipe away a print.

         ¶ 20 On cross, when asked whether his unit had been accredited by any national organization, Ellerbeck testified that "[w]e don't have any accreditation." When defense counsel asked whether any national organization "validated" the testing methods used to test the weapon, Ellerbeck responded that "[t]he testing that we use is recognized and accepted by most labs throughout the United States." Defense counsel pressed: "But nobody has validated those test[s] from a national organization, right?" and Ellerbeck responded that he "[didn't] know what you mean by that." Ellerbeck testified that he read "literature and follow[ed] studies on latent print development."

         ¶ 21 The parties stipulated that defendant had two prior qualifying felony convictions. After listening to closing arguments and jury instructions, the jury deliberated and found defendant guilty of being an armed habitual criminal.

         ¶ 22 On August 29, 2017, the defense filed a posttrial motion for a new trial that alleged, among other things, that: "The Court erred when it denied [defendant's] pretrial motion to exclude testimony regarding how difficult and/or unusual it is to recover fingerprints from a weapon and it erred when it overruled defense objections at trial regarding the statistics testified to by Ellerbeck, which were not substantiated by any expertise in statistics." On October 25, 2017, the defense filed a revised posttrial motion that included cites and quotes from the record.

         ¶ 23 On November 20, 2017, the trial court denied defendant's posttrial motion for a new trial. After considering factors in mitigation and aggravation and observing that the sentencing range was 6 to 30 years, the trial court sentenced defendant, age 27, to 10 years with IDOC. On December 4, 2017, defendant filed a motion to reconsider his sentence which was denied the same day. Also on December 4, 2017, a notice of appeal was filed. This timely appeal followed.

         ¶ 24 ANALYSIS

         ¶ 25 I. ...

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