2013 IL App (1st) 111251
FIFTH DIVISION
SEPTEMBER 30, 2013
No. 1-11-1251
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 1512
)
HERBERT MORRIS, ) Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Herbert Morris was convicted and sentenced to 55 years
in the Illinois Department of Corrections for the first-degree murder of Clinton Cavin, who was
found dead hours after engaging in an argument with defendant on the morning of November 15,
2006. At trial, witnesses testified that defendant’s then-girlfriend, Sharon Smith, left her home
early that morning to drive to Iowa, and before she left, she asked Cavin, who lived in the
basement, to watch her house while she was gone. This request angered defendant, who
frequently spent time at Sharon’s house. Defendant then slapped Sharon and demanded that
Cavin leave, and defendant later threatened to cut the throats of Sharon’s teenage son, Abel
Smith, and his friend, Harold Jackson, who also lived in the house.
¶2 Later that morning, Harold and his friend, William Alston, observed defendant leave the
house and return 15 minutes later with a knife. They locked the front door and left the house
No. 1-11-1251
through the side door to walk to a nearby gas station, and when they returned two minutes later,
they observed defendant down the street walking away from the house. Inside, they observed a
bloody shovel leaning against the wall, and then discovered Cavin dead in the basement. William
called the police, and defendant was arrested at his parents’ house.
¶3 Upon his arrest, the police observed bloodstains on defendant’s clothing and boots, and
forensic scientists later tested samples of the bloodstains and determined that they matched
Cavin’s DNA profile. The blood recovered from the shovel also matched Cavin’s DNA profile,
and a palm print recovered from the handle of the shovel matched defendant’s prints. An expert
in forensic pathology examined Cavin’s autopsy files and opined that Cavin’s death was a
homicide, having died as a result of blunt-force trauma to the head.
¶4 On this direct appeal, defendant claims, first, that his conviction should be reversed and
remanded for a new trial because defendant was deprived of his right to due process and a fair
trial by three related chain-of-custody errors: (1) the trial court admitted defendant’s blood-
stained pants and boots into evidence despite the State’s failure to establish a chain of custody;
(2) that the assistant public defender provided ineffective assistance of counsel at trial by not
introducing defendant’s hospital belongings list into evidence to show that defendant’s boots
were not seized at that time; and (3) the trial court prohibited the defense from presenting a still
shot from a videotape of an unidentified officer seizing the boots in an interrogation room at the
police station. Second, defendant claims that the trial court committed reversible error when it
allowed the State to present testimony that defendant had made threatening remarks to Abel and
Harold the morning of the homicide. Third, defendant claims that his trial counsel was
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ineffective for not objecting to the State’s fingerprint analysis. Despite being represented by
counsel on appeal, defendant has also filed a pro se supplemental appellate brief raising
numerous additional claims of ineffective assistance of counsel and trial court errors at the
suppression hearing and at trial. For the following reasons, we affirm.
¶5 BACKGROUND
¶6 I. Pretrial Proceedings
¶7 Prior to trial, defendant was represented by the public defender. On October 7, 2008, the
defense filed a motion to quash arrest and suppress evidence due to a lack of probable cause. A
suppression hearing was held on March 30, 2009, and the trial court heard testimony from
defendant’s mother, Beverly Morris, and two arresting police officers, Daniel O’Connor and
Deronis Cooper. Beverly testified that, on November 15, 2006, one officer knocked on her door
and asked about her son, while another officer pushed past her and entered her house without her
consent and without a search or arrest warrant. The officers then went upstairs and arrested
defendant. Officers O’Connor and Cooper both testified that they had received a flash message1
that described defendant as a murder suspect and that he lived at his parents’ house, and that
Beverly had given them permission to enter her home. After arguments, the trial court denied
defendant’s motion, finding: (1) that defendant’s mother consented to the search of her house
prior to defendant’s arrest; (2) that the arresting officers had probable cause to arrest defendant
1
A flash message is a broadcast of updated information from the crime scene that is
transmitted to all responding officers.
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based on the information they had at the time; and (3) that the arresting officers were justified in
searching the home without a warrant due to exigent circumstances.
¶8 At the next hearing, on June 10, 2009, defendant informed the trial court that he wanted
to proceed pro se, and the trial court ordered a behavioral clinical examination, in which a doctor
opined that defendant was fit to represent himself. After a 30-day continuance, the trial court
found defendant fit to stand trial, admonished defendant of his rights to self-representation, and
allowed the assistant public defender to withdraw.
¶9 As a pro se litigant, defendant attempted to file a second motion to suppress evidence on
January 28, 2010. In his motion, defendant argued that, after he was arrested in his parents’
home, the police should have obtained a search warrant from a magistrate judge prior to seizing
two knives in the house along with defendant’s clothing. Defendant further argued that the
assistant public defender was ineffective for failing to make this argument at the prior
suppression hearing. The trial court advised defendant that he could not litigate the issue a
second time because the trial court already ruled on the merits of defendant’s motion to quash
arrest and suppress evidence. In response, defendant explained that the public defender “provided
ineffective assistance of counsel” because she “suppressed” evidence that showed that she
counseled the police officers to perjure themselves at defendant’s suppression hearing. The trial
court declined to consider defendant’s pro se motion, explaining that his allegations were
appellate issues and that defendant could raise those issues on appeal.
¶ 10 Afterward, defendant requested counsel, and the assistant public defender was
reappointed on March 3, 2010. Despite being represented by counsel, defendant filed a pro se
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motion in limine concerning ineffective assistance of this same counsel at the suppression
hearing. The trial court advised defendant that he may not file a motion when he is represented
by an attorney, and defendant requested to proceed pro se a second time. The trial court again
admonished the defendant and again excused the same assistant public defender. Defendant then
argued a pro se motion in limine, claiming that the police did not have probable cause to enter his
parents’ home and arrest him, and that the assistant public defender was ineffective because she
“suppressed” the arrest report and did not call the officer who issued the flash message to testify
at the suppression hearing. Following arguments, the trial court denied defendant’s pro se
motion, finding that the trial court had already ruled on the probable cause issue in defendant’s
motion to quash arrest and suppress evidence. Defendant noted for the record that he disagreed
with the trial court’s ruling.
¶ 11 At the next court date, on May 27, 2010, defendant filed a pro se “Motion in Limine
Regarding Knowing Use of False or Perjured Testimony Constituting a Denial of Due Process in
Response to Court Order Whether Pro-Se Defendant is Ready for Trial.” Defendant explained
that he had uncovered new evidence that the assistant State’s attorney violated defendant’s
constitutional due process rights when she knowingly presented false testimony from Officer
Cooper at the suppression hearing. Also, defendant’s pro se motion argues that the assistant
public defender provided ineffective assistance of counsel because she continued to ask Cooper
misleading questions, despite knowing that he had testified falsely.2 The case was continued so
2
The appellate record is silent concerning the disposition of defendant’s pro se motion.
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that defendant could file an answer to discovery, and at the next court appearance, defendant
requested counsel.
¶ 12 On June 30, 2010, the trial court reappointed the same assistant public defender a third
time. Defendant objected to the appointment and informed the trial court that he had a case
pending against this assistant public defender in federal court. The trial court asked defendant
about the nature of the federal case, and defendant explained that he had sued this assistant
public defender for “fabrication of statements in a sworn affidavit.” Specifically, defendant
alleged that, at the suppression hearing, his counsel fabricated the evidence in “the complaint that
was signed by the officer that made the 911 call” because the officer that wrote the complaint
was not called to testify. The assistant public defender explained that defendant may have
confused the arrest report with the general offense case report, which were prepared by different
police officers. The arresting officer testified at the suppression hearing that he was not aware of
certain facts that were reported in the general offense case report, which contained more detailed
information about defendant’s arrest. The assistant public defender explained that defendant’s
May 27, 2010, pro se motion also pointed to the arresting officer’s general progress report, which
contained information that the officer had learned only after defendant’s arrest. The trial court
then asked the assistant public defender if she had written the arrest report or any of the police
reports in defendant’s case, and she answered that she had not. Defendant then argued that, at the
suppression hearing, the assistant public defender claimed that evidence was in the arrest report
that is not there, to which his counsel responded that she merely impeached the officer by
omission when she elicited testimony from the officer that he did not state something in his
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police report. The trial court stated that it had just “conducted what we’ll term a Krankel, which
is usually posttrial, but call this a ‘mini-Krankel’ hearing,” and it found that the assistant public
defender would remain on defendant’s case, despite his pending action against her in federal
court.
¶ 13 On September 14, 2010, defendant attempted to file a pro se motion pursuant to Illinois
Supreme Court Rule 415 (eff. Oct. 1, 1971). Defendant attached to his pro se motion a written
request to the clerk of the circuit court of Cook County, Illinois, requesting a copy of his arrest
report. The trial court struck defendant’s pro se filing, finding that only his attorney may file
documents. Defendant then requested a third time to proceed pro se, and the trial court denied
this third request.
¶ 14 At a later proceeding, on November 5, 2010, defendant attempted to file an additional pro
se motion for substitution of judge for cause and to again reconsider the denial of his motion to
quash arrest and suppress evidence. Defendant’s pro se motion repeated his arguments that the
arresting officers lacked probable cause and that the assistant public defender provided
ineffective assistance of counsel, though defendant did not address his substitution of judge claim
in the body of his motion. Defendant’s counsel informed the trial court that she did not intend to
file defendant’s motion on his behalf. The trial court subsequently bifurcated the pro se motion
and denied defendant’s request for substitution of judge.
¶ 15 On November 29, 2010, defense counsel filed a motion in limine to bar evidence of other
crimes and bad acts, including evidence: (1) that defendant slapped his girlfriend the night before
the murder; and (2) that defendant threatened Harold Jackson and Abel Smith the next morning
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that he would cut their throats. The trial court denied defendant’s motion, finding that these
incidents described a “continuing course of conduct, which the jury could see, leads up to and
includes the murder of Mr. Clinton Cavin.”
¶ 16 A jury was selected on February 28, 2011, and the trial began the next day.
¶ 17 II. Trial
¶ 18 At trial, the State argued in its opening statement that, on November 15, 2006, defendant
beat Clinton Cavin to death with a shovel after Cavin refused defendant’s demand to leave
Sharon Smith’s home. The State presented 15 witnesses, including two arresting police officers,
forensic examiners that handled the evidence in the case, and defendant’s then-girlfriend, Sharon
Smith, and her three sons. Defendant exercised his right not to call witnesses or testify at trial.
¶ 19 A. Sharon Smith’s Testimony
¶ 20 Sharon Smith testified that, in November 2006, she lived in Chicago, Illinois, in a house
owned by Maurice Simmons, the father of one of her three sons. Sharon slept in the downstairs
bedroom, while her sons, Christopher Simmons, Abel Smith, and Dezell Smith, occupied the
bedrooms on the second floor. The victim, Clinton Cavin, lived in the basement. The front door
of the house opened into the living room, and a back door accessed the basement. Sharon’s
boyfriend of five years, defendant, lived in the house off and on, as well as three of Abel’s
friends, William Alston, Walter Alston, and Harold Jackson. At the time, Abel was 17 years old
and went to school, while his friends Harold and William were 19 and 20 years old, did not
attend school, and were unemployed. Defendant occasionally used various tools to do
maintenance work around the house.
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¶ 21 Sharon testified that, on November 14, 2006, she hosted a party at the house to celebrate
her birthday, in which her friend Renee Tate, Kenny Marshall, defendant, Maurice, and
Maurice’s friend Nakita Marshall attended. During the party, which continued past midnight,
Sharon and Renee smoked crack cocaine in her bedroom, while defendant, Cavin, Kenny, Nakita,
and Maurice drank alcohol and smoked crack cocaine in the basement. Sharon’s three sons and
their friends, William, Walter, and Harold, stayed upstairs in their bedrooms during the party.
¶ 22 Sharon testified that, at 2 a.m., she prepared to leave the party with Kenny and Renee to
drive to Iowa to attend an 11:30 a.m. public housing appointment. Sharon went into the basement
and asked Cavin to watch the house while she was in Iowa. After her conversation with Cavin,
defendant, who had been drinking and smoking crack cocaine, slapped Sharon across the face.
Sharon cried, ran back upstairs, and told her son Abel that defendant slapped her. She then went
outside, and defendant acted upset that she was leaving for Iowa. Sharon then asked defendant to
accompany her to Iowa, and defendant went inside the house to get his coat. Sharon waited for
defendant but he never came back out, so she, Kenny, and Renee left without him. Sharon did not
return to her home until 7:30 p.m. the next day.
¶ 23 On cross-examination, Sharon admitted that, when she returned home from Iowa, she told
detectives that she had left at 5 a.m., and not 2 a.m. as she had just testified.
¶ 24 B. Maurice Simmons’ Testimony
¶ 25 Maurice Simmons testified that, on November 14, 2006, he left work at 10:30 p.m. and
attended Sharon’s birthday party. Maurice smoked crack with the adults in the basement and on
the first floor, while the minors stayed in the upstairs bedrooms. Shortly before 2 a.m. the next
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morning, Maurice and Nakita observed defendant arguing in the basement with Cavin because
defendant wanted Cavin to leave the house. The argument was a “small, little thing,” and
Maurice thought it was “no big deal.” Sharon then left for Iowa at 2:30 a.m., and Maurice and
Nakita went to sleep in Sharon’s bedroom and awoke at 7 a.m. to send the kids off to school. At
that time, Maurice observed defendant in the house without blood on his clothes. Maurice went
back to sleep and was awakened at noon by Harold and William, who told him that Cavin was
dead in the basement. Maurice then went down into the basement and observed Cavin’s body.
Maurice then left the house and used a neighbor’s telephone to call 911, and the dispatcher told
him that someone had already called and the police were on their way. Maurice identified
defendant in court.
¶ 26 On cross-examination, Maurice testified that he did not remember if he left work at either
10:30 p.m. or 1 a.m. the next morning, and that it took him 30 minutes to drive from his job to
Sharon’s party. The defense asked Maurice whether he told the police that he observed Sharon
leave at 5 a.m., and he testified that he did not remember saying that to the police. Maurice also
testified that he did not speak with Abel at any point that morning.
¶ 27 C. Christopher Simmons’ Testimony
¶ 28 Christopher Simmons testified that, at the time of trial, he was 21 years old. On
November 14, 2006, he lived with his mother and he never left the house during her birthday
party. Christopher observed defendant at the party drinking and “having fun.” Christopher went
to sleep shortly after midnight, and he awoke at 1:30 a.m. to use the downstairs bathroom.
Christopher observed defendant downstairs but he did not speak to defendant before he went
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back to bed because defendant “looked kind of mad.” Christopher then went back upstairs to
sleep, and he and Abel left for school the next morning. Christopher also identified defendant in
court.
¶ 29 D. Renee Tate’s Testimony
¶ 30 Renee Tate testified that she and Sharon celebrated their birthdays together on November
15, 2006, at Sharon’s residence. Renee planned on accompanying Sharon and Kenny on a short
trip to Iowa. Before they left, Sharon asked defendant to join them and he went inside the house
to retrieve his jacket, but he never came back outside, so they left without him. Renee did not
remember what time they left, and she did not learn of Cavin’s death until she returned to
Chicago. Renee also identified defendant in court.
¶ 31 On cross-examination Renee testified that, though she did not remember when they left
for Iowa, she arrived at the party at 12:30 a.m. and stayed for two hours. When asked if she had
told the police that they left the party at 4:30 a.m., she stated, “If that’s what I told him, that’s
what happened.” Renee also testified they arrived at Sharon’s appointment late.
¶ 32 E. Abel Smith’s Testimony
¶ 33 Abel Smith testified that, at the time of trial, he was 22 years old, and he lived with his
mother, Sharon Smith, in November 2006. On November 15, 2006, Abel was in the house during
his mother’s birthday party, and he fell asleep on the couch in the living room at 1 a.m. He was
awakened later by the sound of Sharon arguing with defendant. Sharon then told Abel that
defendant had slapped her, and Abel asked defendant not to hit his mother. Sharon later left for
Iowa, and Abel attempted to go back to sleep, but he could not sleep because defendant was
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talking to himself and pacing in the kitchen. Abel asked defendant to leave because he was
disturbing the house, but defendant said that he refused to go unless Cavin left first. Abel
responded that Cavin was homeless and that he had nowhere to go, but defendant replied that he
would throw Cavin out of the house himself. Defendant then threatened to cut Abel’s throat.
¶ 34 Abel testified that he left the kitchen and went in the basement to check on Cavin, who
appeared to be fine. Abel next went upstairs to check on the other kids, and he told Maurice that
defendant was disturbing him. Maurice told Abel that he would check on it, so Abel went to an
upstairs bedroom and attempted to sleep, but he was kept awake by the sound of someone
punching the kitchen walls. Abel then heard defendant arguing in the basement with Cavin, who
told defendant that he was not going anywhere and “[i]f you hurt me, you’re not doing nothing
but hurting yourself.” Though he stated that he did not hear Cavin mention defendant’s name, he
acknowledged that he had previously testified before a grand jury that he had heard Cavin say,
“Herb, what are you doing in the basement with me.”
¶ 35 Abel testified that he eventually fell back asleep and woke up again at 4 a.m. He checked
on Cavin again, and he observed defendant drinking vodka and pacing in the kitchen. Abel went
back upstairs and went to sleep again. Abel woke up again at 7:30 a.m. to prepare for school. He
went downstairs and observed defendant pacing in front of the basement door, but he did not
observe a shovel or any blood on defendant. Abel then washed up, ironed his clothes, and left for
school with his brothers. Abel also identified defendant in court.
¶ 36 On cross-examination, Abel testified that he was convicted of robbery in 2006.
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¶ 37 F. William Alston’s Testimony
¶ 38 William Alston testified that he was 24 years old and that, in November 2006, he lived at
Sharon’s residence because he had problems with his father. After Sharon’s birthday party,
William went to sleep and was awakened in the morning by Maurice, who asked to use his
cellular telephone. That morning, William and Harold went downstairs to make some breakfast.
Defendant entered the kitchen and started breathing on Harold’s food. When Harold asked him to
stop, defendant threatened to cut Harold’s throat. Harold pushed defendant away, and defendant
left the home driving Maurice’s vehicle.
¶ 39 William testified that defendant returned 15 minutes later, and William observed him
standing by the vehicle in front of the house with a knife protruding from his jacket pocket.
Defendant attempted to conceal the knife as he approached the house, and William quickly
locked the front door before defendant reached it. Defendant then knocked on the door, while
William and Harold exited through a side door and walked to a nearby gas station to purchase
cigarettes. They did not lock the side door when they left, and Maurice and Nakita were still in
the house at the time.
¶ 40 William testified that, when he and Harold returned to the home two minutes later, he
observed defendant walking down the street seven houses away from them. Defendant was
wearing a leather coat, blue jeans, and construction boots. William did not observe any blood on
defendant’s clothing, nor did he observe defendant holding a shovel. William identified
defendant in court, and he identified the leather coat, jeans, and boots in court as the same clothes
that he observed defendant wearing on November 15, 2006.
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¶ 41 William testified that he and Harold reentered the home and William knocked over a
shovel and he picked it up and placed it back where it was leaning against the wall. The shovel
was usually kept in the basement, and William observed that it had blood on the back, but the
handle appeared to be dry. William identified the shovel in court. He then walked down into the
basement to check on Cavin, who lived in the basement with Sharon’s brother, Joey.3 William
observed bloody footprints on the basement stairs. In the basement he found Cavin’s body, and
he immediately returned upstairs and told Maurice and Harold what he had observed. William
then walked down the street to his father’s home to call the police. After the police arrived,
William rode in a police vehicle and directed the officers to where defendant lived.
¶ 42 G. Sergeant Daniel O’Connor’s Testimony
¶ 43 Chicago Police Sergeant Daniel O’Connor testified that, on November 15, 2006, he and
his partner, Officer Costello,4 were dressed in plain clothes when they responded to a homicide at
Sharon’s home at 11:30 a.m. Upon arriving at Sharon’s residence, he received a flash message
that described the suspect as a 40- to 50-year-old black male named Herb, who had been
observed leaving the house wearing a black leather jacket, dark-colored jeans, and boots, and
armed with a wood-handled knife. After receiving the flash message, O’Connor and his partner
drove to defendant’s residence and knocked on the front door. Defendant’s mother answered the
door and had a conversation with O’Connor before allowing him and his partner to enter the
house. O’Connor and his partner walked upstairs and observed defendant lying face-up on a bed.
3
This was the first and only mention of Joey during the trial. None of the other witnesses
mentioned that he lived in the basement with Cavin. William did not state Joey’s last name.
4
Officer Costello’s first name does not appear in the appellate record.
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Defendant stood up and O’Connor observed that he was wearing a denim shirt, black jeans, and
tan boots, and that defendant’s jeans and boots had reddish-brown stains on the front of them.
O’Connor also observed a leather jacket in the room with a knife protruding from the pocket, as
well as a second knife with a wooden handle. O’Connor photographed the room and the
photographs were admitted into evidence at trial. O’Connor identified defendant in court.
O’Connor also identified defendant’s denim shirt, black jeans, and tan boots, and pointed to
where he observed the blood stains on the clothing.
¶ 44 On cross-examination, O’Connor testified that, despite observing blood on defendant’s
clothes, O’Connor did not recover and seal defendant’s pants and boots prior to taking defendant
to the police station because he did not want to strip defendant naked of his clothes. O’Connor
noted that he did not observe bloodstains on the white bed sheets, on defendant’s skin, or under
defendant’s fingernails. O’Connor admitted that he did not write in his report that the flash
message informed him that defendant was armed with a knife.
¶ 45 H. Officer Deronis Cooper’s Testimony
¶ 46 Chicago Police Officer Deronis Cooper testified that, on November 15, 2006, he was
wearing civilian clothes and driving through the area near Sharon’s home. In the late morning, he
received a flash message that a black male suspect was observed in the vicinity, wearing a black
coat, black jeans, and work boots, and potentially covered in blood. Cooper drove through the
area but did not observe the suspect. He then drove to Sharon’s residence, where he spoke with
William and Nakita. After speaking with them, Cooper drove to defendant’s residence, while
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Cooper’s supervisor drove William and Nakita there.5 Officers O’Connor and Costello were
already at defendant’s home when Cooper arrived. Cooper entered the house and observed
defendant lying on a bed in a second floor bedroom. Defendant was wearing a blue denim shirt,
black jeans, and tan work boots, and he had dried red stains on his pants and boots. Cooper then
arrested defendant and transported him to an interrogation room at the Area 2 police station, and
he remained with defendant the entire time. Cooper identified defendant in court, and he
identified defendant’s pants and boots and noted that they were in the same or substantially the
same condition as when he observed defendant wearing them in the bedroom.
¶ 47 On cross-examination, Cooper testified that he did not recall removing defendant’s boots
while defendant was in the interrogation room. After Cooper brought defendant to the
interrogation room, other officers later transported defendant to a hospital to treat an injury
unrelated to the instant case. Cooper testified that he knew that defendant’s clothes were removed
at the hospital, but he did not state who removed them.
¶ 48 I. Victor Rivera’s Testimony
¶ 49 Forensic investigator Victor Rivera testified that, at 1 p.m. on November 15, 2006, he and
his partner, forensic investigator Eddie Perez, processed the evidence at the crime scene at
Sharon’s home. In the basement, Rivera observed Cavin’s body slumped over in a chair, and a
bloody shovel leaning against the wall. Cavin’s body was covered in blood, and there were
bloodstains on the walls. Rivera identified the shovel and several photographs of Cavin’s body in
court. Rivera then left Sharon’s home to process the evidence found at defendant’s residence,
5
Cooper did not state his supervisor’s name.
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which included a kitchen knife, a drywall knife, and a black leather jacket in defendant’s
bedroom. Rivera transported the evidence to the Area 2 police station where he assigned a unique
inventory number to each item. Rivera identified the knives and jacket in court.
¶ 50 Rivera testified that, while he was at the Area 2 police station, he “recovered” defendant’s
clothing, but did not explain how he came into possession of defendant’s clothes. Rivera
identified defendant in court. The State presented Rivera with a pair of brown boots, socks, black
jean pants, and a shirt, and he identified each article of clothing as the same one that he recovered
from defendant on November 15, 2006, and that each item was in the same or substantially the
same condition as when he recovered them.
¶ 51 On cross-examination, Rivera testified that he did not observe any bloody footprints on
the basement stairs, and that the shovel currently did not appear as bloody as it did when he
recovered it. He did not observe any blood on defendant’s leather jacket, and the knife protruding
from defendant’s jacket’s pocket appeared to have rust on it rather than bloodstains.
¶ 52 In the middle of Rivera’s cross-examination, the trial recessed an hour for lunch, and
when it resumed, the trial court stated outside the presence of the jury, “The defense has been
setting up audio/visual equipment as it relates to the cross-examination of Forensic Investigator
Rivera. Be sure that our motion to exclude is being adhered to.”6 The defense then informed the
trial court that it intended to present a still shot from a videotape that showed an unidentified
police officer removing defendant’s boots from his feet in an interrogation room at the Area 2
6
It is unclear which motion the trial court referred to because the appellate record does
not contain a motion to exclude that concerns the presentation of a videotape at trial.
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No. 1-11-1251
police station. The defense would first ask Rivera if he did in fact remove defendant’s clothes
from his person, and if he said no, then the still shot would not be shown. If he Rivera said yes,
then the defense intended to show the still frame from the video and ask Rivera if any of the four
people depicted in the still frame was him, with his anticipated answer being no. The trial court
denied the defense’s request to show the frame from the video, finding that “the still [shot] says
nothing in terms of the entirety of the time that [defendant] was at the [police] station.” The
defense then informed the trial court that it intended to show the video without sound at some
later date. The trial court responded that it would reserve its ruling until that issue presented
itself, and the trial court again advised the defense that there would be no reference to the video
during Rivera’s cross-examination, even for the purposes of impeachment.
¶ 53 While the video was not played or admitted into evidence at trial, a DVD copy is
contained in the appellate record. The video shows that a white male officer in plain clothes
wearing a baseball cap led defendant into the interrogation room. Defendant was wearing a
button-down collared shirt, black jeans, and tan boots with visible marks on them. Shortly
afterward, a second dark-skinned male officer entered the room and emptied defendant’s pockets,
placing the contents on the table. This second officer was also not in uniform and was instead
wearing a blue shirt, blue jeans, and a white baseball cap. Defendant then sat down on a bench
and the second officer removed defendant’s boots. A third black male officer wearing a gray shirt
and pants, a black vest, and a flat cap entered the room holding a clear plastic bag. The second
officer, while holding defendant’s boots in his right hand, placed the contents of defendant’s
pockets into the bag and then left the room with the boots. The second officer returned to the
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room five minutes later without the boots in hand, and the boots do not appear on the rest of
video. Defendant was then taken to the hospital, and the video recording system was shut off.
The video recording resumed when defendant returned from the hospital, and the video shows
that defendant reentered the interrogation room wearing hospital scrubs without shoes rather than
his previous clothing.
¶ 54 When the cross-examination resumed, Rivera testified that he could not recall if
defendant was still wearing his original clothes and boots or new hospital scrubs when Rivera
observed him in the interrogation room. Rivera also did not remember whether he personally
removed defendant’s clothing and boots, or if they were already removed from defendant before
Rivera arrived at the Area 2 police station.
¶ 55 J. Steven White’s Testimony
¶ 56 Dr. Steven White of the Cook County Medical Examiner’s Office testified as an expert in
forensic pathology concerning the autopsy performed on Cavin by Dr. Michelle Jordan, who had
since moved out of state. White testified that he reviewed Dr. Jordan’s case protocol,
photographs, and toxicology results to formulate his own opinion regarding Cavin’s death. White
identified multiple lacerations on Cavin’s head and face, though he noted that Cavin’s body
lacked any signs of defensive wounds. Cavin had a comminuted fracture of the skull, which was
broken into many pieces. White opined that Cavin died from multiple craniocerebral injuries
resulting from blunt-force trauma to his head due to an assault. White opined that Cavin’s death
was a homicide, and that Cavin was alive and breathing when he sustained the injuries because
there was blood found in his lungs and stomach. White was unable to determine a time of death.
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No. 1-11-1251
¶ 57 K. Lynette Wilson’s Testimony
¶ 58 Lynette Wilson testified that she is a forensic biologist at the Illinois State Police Crime
Lab, and that she analyzed the stains found on the shovel, the wood-handled knife, and
defendant’s boots, jeans, and denim shirt. Her tests revealed that all of these items contained
blood on them. Wilson preserved each of the samples and sealed them in a vault for DNA
analysis.
¶ 59 On cross-examination, Wilson testified that there is a possibility of a false positive test
result. The jeans had many dirt-like stains on them, and the majority of the stains on the boots
were scuffmarks and paint stains. While the boots have several blood-like stains on them, Wilson
only tested one area.
¶ 60 After Wilson’s testimony, the defense again informed the trial court that it intended to
play the video without sound during its case-in-chief to show that someone other than forensic
investigator Rivera recovered defendant’s boots from the Area 2 interrogation room. The State
argued that the video was inadmissible because the defense could not lay a proper foundation,
and the trial court stated that, though the issue was not before the trial court at that time, it
“probably would not” allow the video to be shown later.
¶ 61 The next morning, the defense requested the trial court that it recall Rivera to clarify
whether he personally removed defendant’s clothes. The defense also intended to question Rivera
about the evidence inventory form that he completed, in which he left blank the portion of the
20
No. 1-11-1251
form indicating where the items were recovered or seized.7 The trial court denied the defense’s
request to recall Rivera, finding that he testified that he was “not sure about how the clothes got
to his possession,” and that playing either a still or the entire interrogation video would not
advance the defense’s case either way. Afterwards, the defense did not request or attempt to play
the video throughout the duration of the trial.
¶ 62 L. Christopher Webb’s Testimony
¶ 63 Christopher Webb testified that he is a DNA scientist at the Joliet Science Laboratory of
the Illinois State Police, and that he tested the DNA samples found on the clothing, boots, and the
shovel, and compared them to the DNA profiles of defendant and Cavin. A blood sample
recovered from the cuff of defendant’s shirt matched defendant’s DNA profile, while blood
samples recovered from defendant’s jeans, boots, and the shovel matched Cavin’s DNA profile.
¶ 64 M. William Kovacs’ Testimony
¶ 65 William Kovacs testified that he took defendant’s fingerprints and palm prints on May
22, 2007, and forwarded them to the Illinois State Police latent print unit for comparison.
¶ 66 N. Anastasia Petruncio’s Testimony
¶ 67 Anastasia Petruncio testified that she is a fingerprint examiner, and that she examined the
shovel and located four sets of prints on it: two on the plastic handle, and two on the metal base.
One of the prints on the handle was suitable for comparison, and she identified the print as
defendant’s to the exclusion of all other individuals in the world. Petruncio demonstrated that the
7
While the inventory form was not admitted into evidence at trial, it appears in the
appellate record. The portion of form designated “recovered/seized from:” is left blank.
21
No. 1-11-1251
print on the handle corresponded to defendant gripping the shovel with his left hand. Petruncio
identified the shovel at trial. Petruncio also examined the brown-handled knife, but found no
prints suitable for comparison.
¶ 68 On cross-examination, Petruncio testified that one of the prints found on the shovel’s
metal base excluded both defendant and Cavin as the source. She did not compare the other two
prints after she identified the palm print on the handle as defendant’s. Petruncio did not receive
print cards from any other individual for comparison. She acknowledged that it was impossible to
tell when the prints were left on the shovel, and that they possibly could have been left days,
weeks, or months before the crime.
¶ 69 Defense counsel never requested a Frye hearing concerning the validity of latent palm
print analysis, which is an issue defendant’s counsel raises on appeal.
¶ 70 O. Jennifer Acosta’s Testimony
¶ 71 Jennifer Acosta testified that she is a forensic scientist at the Illinois State Police Forensic
Science Center, and that she tested the DNA recovered from the wood-handled knife. She
determined that the DNA sample contained a mixture of at least three profiles that she could not
sort out. She compared the mixed profile to the DNA profiles of defendant and Cavin and
determined that neither could be excluded as a possible match.
¶ 72 On cross-examination, Acosta testified that the DNA sample from the wood-handled
knife was a degraded sample and that she did not know whether it came from blood or skin cells.
Though defendant and Cavin cannot be excluded as a match, there are millions of potential
combinations of DNA profiles that could yield the mixture found on the knife.
22
No. 1-11-1251
¶ 73 After Acosta’s testimony, the State sought to admit defendant’s boots, jeans, and shirt
into evidence. The defense objected, arguing that the State failed to establish a sufficient chain of
custody because Officer Rivera’s testimony did not sufficiently explain how he came into
possession of the clothing. The trial court overruled the defense’s objection and admitted the
clothing into evidence. The State rested, and the trial court denied defendant’s motion for a
directed verdict.
¶ 74 Defendant exercised his right not to testify or call witnesses at trial. The defense
presented stipulated testimony from Chicago Police Detective Madden8 to impeach Abel Smith.
It was stipulated that, if called to the stand, Madden would testify that Abel told him on
November 15, 2006, that Cavin had asked Abel to close the basement door when Abel checked
up on him later that night. After speaking with Cavin, Abel went to go to sleep in his bedroom
and he turned the volume up on his stereo so that it was loud. Madden would also testify that
Abel did not mention that he observed defendant pacing in front of the kitchen door in the
morning. The defense then rested.
¶ 75 During closing arguments, the State argued that defendant threatened to kill Cavin
because he was jealous that Sharon, his girlfriend at the time, had asked Cavin to take care of her
house while she was away. In response, the defense criticized the State’s evidence and argued
that the State did not prove defendant guilty beyond a reasonable doubt. Over the defense’s
objection, the jury was allowed to view the shovel and defendant’s clothing during their
deliberations. The jury later found defendant guilty of the first-degree murder of Clinton Cavin.
8
Detective Madden’s first name does not appear in the appellate record.
23
No. 1-11-1251
¶ 76 III. Posttrial Proceedings
¶ 77 Prior to sentencing on April 7, 2011, defendant filed a pro se posttrial motion for a new
trial based on ineffective assistance of counsel. The trial court held a Krankel hearing, and
defendant argued that the boots admitted into evidence at trial did not belong to him. Defendant
claimed that the police returned his boots and he wore his boots to the hospital, which the police
would not have done had the boots been covered in blood. As proof, defendant claimed that the
video of his interrogation at the Area 2 police station showed an officer taking defendant’s boots
and giving them back to him, and that the hospital inventory list reflected the seizure of his pants,
shirt, and socks at the hospital.9 Defendant further argued that his counsel was ineffective
because she did not use this information to impeach Officer Cooper, and that she did not call
Harold Jackson as a defense witness. The trial court then questioned defendant’s counsel, who
explained that Harold had given a handwritten statement to the police and testified before a grand
jury that defendant had threatened to cut his throat, and that Harold was generally not a favorable
witness for the defense. Defendant’s counsel also explained that she tried to admit the
interrogation video or a still photo from the video during trial but the trial court denied her
requests. The trial court denied defendant’s pro se motion, finding that it would have applied its
ruling denying the use of the interrogation video or still to Officer Cooper’s testimony as well.
9
While the hospital inventory list was not admitted into evidence at trial, it appears in the
record on appeal. The list indicates that defendant’s shirt, pants, and socks were given to a police
officer, while the “Shoes/Boots/Slippers” category is crossed off, indicating that no such items
were recovered. Defendant did not sign the bottom of the list acknowledging that “the indicated
items and disposition are correct and complete.” However, the list is signed by “Sgt. E. Boone
1964” as the “Accepting Person,” and another signature that is illegible appears below that as a
“Witness.”
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No. 1-11-1251
The trial court further found that the pro se motion “lacked merit” and that it did not justify the
appointment of new counsel.
¶ 78 On April 18, 2011, the defense filed a posttrial motion for a new trial, alleging that the
trial court erred when it: (1) denied defendant’s pretrial motion to quash arrest; and (2) denied
defendant’s motion in limine to bar evidence of other acts of defendant. Among the claims in the
motion for a new trial, the defense argued that the trial court: (1) improperly denied the use of the
interrogation video to impeach Rivera at trial; and (2) erred when it admitted defendant’s boots,
pants, shirt, and socks into evidence despite a broken chain of custody. The trial court denied the
defense’s motion, and defendant then advised the trial court that he had filed a pro se motion for
“obstruction of justice” against the assistant public defender.10 The trial court advised defendant
that it had already ruled on these issues before, but it nevertheless held another “Krankel-type
hearing” and denied defendant’s pro se motion, finding that the assistant public defender offered
a tactical reason for not calling Harold Jackson as a witness and that defendant did not need new
counsel.
¶ 79 The trial court then held a sentencing hearing, and the State noted defendant’s 1985
convictions for armed robbery and residential burglary. The State called three correctional
officers from Cook County Jail to testify to three separate instances of defendant’s
insubordination and confrontation during the pendency of his case. The defense called Eric
Morris, defendant’s younger brother, who testified that defendant worked with their father as a
plumber, that he had moved in with his parents as they were becoming older, and that defendant
10
Defendant’s motion does not appear in the appellate record.
25
No. 1-11-1251
had taken care of Eric’s son when Eric was too irresponsible to do so. Defendant then addressed
the trial court and again claimed: (1) that the assistant public defender provided ineffective
assistance of counsel; (2) that the police entered his parents’ home without probable cause or a
warrant; and (3) that there was a break in the chain of custody of his clothes. Following
defendant’s allocution, the State argued in aggravation that the way in which defendant murdered
Cavin was especially heinous, and that defendant had a long history of criminal behavior that
continued even after he was incarcerated. In mitigation, the defense argued that the murder was
the result of defendant’s continuing struggle with substance abuse, and that defendant’s actions
in jail were actually minor relative to the environment that he lived in.
¶ 80 After considering the factors in aggravation and mitigation, the trial court considered that
the manner in which defendant struck Cavin’s head warranted a sentence “closer to the
maximum as opposed to the minimum.” The trial court sentenced defendant to 55 years’
imprisonment, with 1,587 days of presentence custody credit against his sentence, and a $925
fine. The trial court denied defendant’s motion to reconsider, and defendant appealed.
¶ 81 The Office of the State Appellate Defender, appointed on April 28, 2011, represents
defendant on appeal. On July 25, 2012, appointed counsel filed a brief and argument on behalf of
defendant. Defendant then filed a pro se brief and argument on March 20, 2013, entitled
“Supplemental Breif [sic] and Argument For Defendant-Appellant Pursuant to Supreme Court
Rule 341(b).” In his pro se brief, defendant makes numerous additional claims of trial court
errors and ineffective assistance of counsel at the suppression hearing and at trial. Defendant
states that his pro se brief is intended to supplement the briefs filed by his appellate counsel
26
No. 1-11-1251
because his counsel chose not to raise these additional issues on appeal. Since defendant is
represented by counsel and has made no request to proceed pro se, we will consider only the
claims raised by counsel. People v. McDonald, 168 Ill. 2d 420, 435 (1995); People v. Thompson,
331 Ill. App. 3d 948, 951 (2002).
¶ 82 ANALYSIS
¶ 83 On appeal, defendant’s counsel argues, first, that his conviction should be reversed and
remanded for a new trial by three related chain-of-custody errors: (1) the trial court improperly
admitted defendant’s bloodstained pants and boots into evidence despite a deficient chain of
custody; (2) the assistant public defender provided ineffective assistance of counsel at trial when
she did not introduce the hospital belongings list into evidence to show that defendant’s boots
were not seized at the hospital; and (3) the trial court denied the defense’s request to show a still
shot from a video of an unidentified officer removing defendant’s boots in an interrogation room
at the police station. Second, counsel argues that the trial court erred when it denied the defense’s
motion in limine to bar testimony that defendant threatened to cut Abel Smith’s and Harold
Jackson’s throats the morning of the homicide. Third, defendant’s appellate counsel argues that
the trial counsel was ineffective for not objecting to the State’s latent fingerprint analysis. For the
following reasons, we affirm.
¶ 84 I. Chain of Custody
¶ 85 The first claim is that the trial court erred when it admitted defendant’s bloodstained
pants and boots into evidence despite a break in the chain of custody. The admissibility of
evidence lies within the sound discretion of the trial court, and the trial court's decision may not
27
No. 1-11-1251
be overturned on appeal absent an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234
(2010). “An abuse of discretion occurs where the trial court's decision is arbitrary, fanciful, or
unreasonable, or where no reasonable person would take the view adopted by the trial court.”
Becker, 239 Ill. 2d at 234.
¶ 86 When the State seeks to introduce bloodstained clothing into evidence, it must lay an
adequate foundation either “ ‘through its identification by witnesses or through a chain of
possession.’ ” People v. Woods, 214 Ill. 2d 455, 466 (2005) (quoting People v. Stewart, 105 Ill.
2d 22, 59 (1984)). “Where an item has readily identifiable and unique characteristics, and its
composition is not easily subject to change, an adequate foundation is laid by testimony that the
item sought to be admitted is the same item recovered and is in substantially the same condition
as when it was recovered.” Woods, 214 Ill. 2d at 466.
¶ 87 In the case at bar, the State sufficiently established a foundation because defendant’s
pants and boots were readily identifiable by unique characteristics that were not easily subject to
change. Woods, 214 Ill. 2d at 466. At trial, four witnesses identified the pants and boots as
defendant’s. First, the State presented the jeans and boots to William Alston, who identified
them, along with defendant’s leather jacket, as the clothing that he observed defendant wearing
the morning of the crime. Next, Sergeant Daniel O’Connor identified defendant’s jeans and boots
as the same clothing that defendant was wearing at the time of his arrest. O’Connor also pointed
out where he observed the bloodstains on defendant’s pants. After that, Officer Deronis Cooper
identified the black jeans and tan boots as the clothes that defendant was wearing at the time of
his arrest. And lastly, forensic investigator Victor Rivera identified defendant’s black jeans and
28
No. 1-11-1251
boots as the items he recovered at the police station. Rivera testified that, besides the markings
made by the crime lab, the items were in the same or substantially the same condition as when he
recovered and inventoried the clothing.
¶ 88 As a result, the State established a sufficient foundation for defendant’s pants and boots
because four witnesses identified the articles of bloodstained black jeans and tan boots as
defendant’s. Woods, 214 Ill. 2d at 466. Because the State sufficiently laid a foundation for the
pants and boots, it was not required to establish a chain of custody for the evidence to be
admissible, and the trial court did not err when it allowed the items into evidence over the
defense’s objection. Woods, 214 Ill. 2d at 466. See People v. Gilyard, 124 Ill. App. 2d 95, 105
(1970) (the State established a sufficient foundation for hat and gloves found at the crime scene
where witnesses identified the items as those worn by defendant during the crime); People v.
Kristovich, 32 Ill. App. 3d 979, 985 (1975) (foundation sufficient where witness identified
clothing exhibits as her own).
¶ 89 Defendant’s counsel argues that since the pants and boots contained bloodstains, the State
needed to establish a sufficient chain of custody, rather than witness identification, for the items
to be admissible. Counsel argues that courts have found that blood is a highly fungible, highly
transferrable substance that requires a chain of custody to ensure that the evidence is preserved
and cites three cases: (1) People v. Winters, 97 Ill. App. 3d 288, 295-96 (1981) (discussing chain-
of-custody requirements for admitting a blood sample); (2) People v. Shiflet, 125 Ill. App. 3d
161, 178-79 (1984) (chain of custody established for admission of a vial victim’s blood); and (3)
People v. Bradney, 170 Ill. App. 3d 839, 864-65 (1988) (same). See also 725 ILCS 5/116-3
29
No. 1-11-1251
(West 2012) (procedure for securing postconviction DNA testing requires defendant to establish
a chain of custody for physical items to be tested).
¶ 90 Defendant’s counsel also points to two 30-year old cases where courts applied a chain-of-
custody analysis to clothing exhibits that contained biological material. In People v. Gholston,
124 Ill. App. 3d 873, 890-91 (1984), the appellate court analyzed the chain of custody of the
defendant’s pants and underwear that were later shown to contain mucus and spermatozoa. In
People v. Rogers, 42 Ill. App. 3d 499, 501 (1976), the appellate court examined the chain of
custody for bloody shorts admitted at trial. Counsel argues that, while foundation may have been
proper for the articles of clothing alone, the fact that they contained visible samples of blood
meant that the State was required to show a sufficient chain of custody to establish a foundation
for the evidence.
¶ 91 However, the Winters, Shiflet, and Bradney cases cited by defendant’s counsel concerned
vial or samples of blood rather than bloody clothing. Winters, 97 Ill. App. 3d at 295-96; Shiflet,
125 Ill. App. 3d at 178-79; Bradney, 170 Ill. App. 3d at 864-65. While a sample of blood in itself
may require a sufficient chain of custody for admissibility, the blood in the instant case was
contained on unique articles of clothing that were identified by several witnesses at trial. Once
the blood samples were recovered from the clothing, then they were subject to the chain of
custody procedures used for samples of biological material. However, the defense never raised a
challenge to the chain of custody of the blood after the samples were removed from the clothing.
¶ 92 Furthermore, while the appellate court in the Gholston and Rogers cases analyzed the
chain of custody for clothing exhibits that contained biological material, neither case states that
30
No. 1-11-1251
such an analysis is required or that the State must prove a chain of custody in such instances.
Gholston, 124 Ill. App. 3d at 890-91; Rogers, 42 Ill. App. 3d at 501. Rather, our supreme court in
Woods held that a chain of custody is not required where an item has readily identifiable and
unique characteristics, and its composition is not easily subject to change. Woods, 214 Ill. 2d at
466. Since the composition of the pants and boots were not easily subject to change, and several
witnesses identified the items through unique characteristics, the State did not need to establish a
chain of custody. The State laid a sufficient foundation for the exhibits, and the trial court did not
err when it admitted the pants and boots into evidence at trial.
¶ 93 Even if the State failed to establish a sufficient foundation, the trial court’s error was
harmless beyond a reasonable doubt. People v. Thurow, 203 Ill. 2d 352, 272 (2003) (citing
United States v. Olano, 507 U.S. 725, 734 (1993)). The evidence at trial showed that defendant
was angered by Sharon’s comments, and that he acted aggressively toward Cavin throughout the
morning. Defendant was then observed approaching the house with a knife in his pocket, and
then observed leaving the home shortly before Cavin was discovered dead in the basement. The
police recovered a bloody shovel at the home, which contained defendant’s fingerprints. Even if
the clothing had been excluded at trial, there was still overwhelming evidence that defendant was
guilty beyond a reasonable doubt.
¶ 94 II. Hospital Belongings List
¶ 95 The second claim is that the assistant public defender provided ineffective assistance at
trial when she did not present defendant’s hospital belongings list to challenge the chain of
custody of the clothing exhibits. “ ‘The sixth and fourteenth amendment of the United States
31
No. 1-11-1251
Constitution guarantee the fundamental right of a defendant in a criminal case to be effectively
assisted by counsel.’ ” People v. Young, 347 Ill. App. 3d 909, 927 (2004) (quoting People v.
Spann, 332 Ill. App. 3d 425, 429 (2002) (citing U.S. Const., amends. VI, XIV)). A successful
claim of ineffective assistance of counsel requires a two-pronged showing: (1) that counsel's
representation falls below an objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel’s deficient performance, the result of the trial would
have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v. Albanese,
104 Ill. 2d 504, 525 (1984). If we can dismiss on the second prong for failure to show prejudice,
we need not discuss the first prong. Albanese, 104 Ill. 2d at 527.
¶ 96 With respect to the second prong, defendant’s appellate counsel argues that the assistant
public defender failed to present the hospital belongings list at trial to attack the chain of custody
of defendant’s pants and boots. The list shows that defendant’s pants, shirt, and socks were
removed at the hospital and given to a police officer, presumably Sergeant Boone, who then
signed the form. Counsel argues that the list would have had had the effect of proving a gap in
the chain of custody, since forensic investigator Rivera testified that he recovered the clothes at
the Area 2 police station and did not state Boone obtained possession of the items first.
¶ 97 However, the assistant public defender’s performance did not prejudice defendant
because, as discussed in section I, the State was not required to prove a chain of custody for
defendant’s clothing. Woods, 214 Ill. 2d at 466. Even if the hospital belongings list were
presented at trial, it would have had no effect on the outcome of the case because the State laid a
32
No. 1-11-1251
proper foundation for defendant’s pants and boots through witness identification. Woods, 214 Ill.
2d at 466.
¶ 98 Also, as previously stated in section I, even if the clothing had been excluded at trial,
there was still overwhelming evidence that defendant was guilty beyond a reasonable doubt. The
evidence at trial showed that defendant acted aggressively toward Cavin and threatened him, that
defendant was observed in the house near the time of the murder, and that defendant’s
fingerprints were on a bloody shovel found at the crime scene. Since defendant was not
prejudiced by his counsel’s failure to present his hospital belongings list, the assistant public
defender did not provide ineffective assistance of counsel, and we need not consider counsel’s
performance with respect to the first prong. Strickland, 466 U.S. at 690; Albanese, 104 Ill. 2d at
527.
¶ 99 III. Exclusion of the Interrogation Video
¶ 100 The third claim is that the trial court erred when it barred the defense from showing a still
frame from a video recording of defendant in an Area 2 interrogation room. A trial court’s
finding concerning whether evidence is relevant and admissible will not be reversed absent a
clear abuse of discretion. People v. Morgan, 197 Ill. 2d 404, 455 (2001) (citing People v. Hayes,
139 Ill. 2d 89, 130 (1990)). As stated, “[a]n abuse of discretion occurs where the trial court's
decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the
view adopted by the trial court.” Becker, 239 Ill. 2d at 234.
¶ 101 The federal constitution guarantees the right of an accused to present a defense, including
evidence to rebut the State’s version of events. U.S. Const., amend. VI; Washington v. Texas, 388
33
No. 1-11-1251
U.S. 14, 19 (1967); People v. Manion, 67 Ill. 2d 564, 576 (1977). “Evidence is admissible if it is
relevant to an issue in dispute and its prejudicial effect does not outweigh its probative value.”
People v. Ross, 395 Ill. App. 3d 660, 678 (2009) (citing People v. Patterson, 192 Ill. 2d 93, 114-
15 (2000)). “Evidence is considered relevant if it has any tendency to make the existence of any
fact that is of consequence to the determination of an action either more or less probable than it
would be without the evidence.” Morgan, 197 Ill. 2d at 455-56 (citing People v. Illgen, 145 Ill.
2d 353, 356-66 (1991)). A trial court may bar evidence on the grounds of relevancy if the
evidence is remote, uncertain, or speculative. Morgan, 197 Ill. 2d at 456 (citing People v.
Cloutier, 156 Ill. 2d 483, 501 (1993)).
¶ 102 Defendant’s counsel argues in its brief that the defense twice sought to present a “short
video clip depicting an unnamed officer seizing [defendant’s] boots at Area 2 before [defendant]
was taken to the hospital,” and that the trial court barred this evidence both times. This is an
incorrect statement of the facts because the appellate record shows that the defense never
attempted to play a video clip at trial. Rather, during the cross-examination of forensic
investigator Rivera, the defense informed the trial court that it intended to present a still frame
from the video, and the trial court denied the request. Afterwards, before the State rested, the
defense twice informed the trial court that it intended to play a clip of the video in the future
during its case-in-chief, but both times the trial court stated that the issue was not yet before the
trial court, though it “probably would not” allow the video to be presented later. The defense
never actually attempted to play the video at any other time at trial.
34
No. 1-11-1251
¶ 103 As a result, our review is limited to the trial court’s decision to bar the defense from
presenting a still frame of the video during Rivera’s cross-examination. Rivera testified on direct
examination that he “recovered” defendant’s boots. During the cross-examination, the defense
informed the trial court that it intended to show a single frame from the video, which would show
three police officers in an Area 2 interrogation room with defendant. The defense stated that it
would first ask Rivera if he personally removed defendant’s boots, and if Rivera said no, the still
video would not be presented. If Rivera said yes, then the defense would present the still shot and
ask Rivera if he was one of the officers depicted in the frame, with his anticipated answer being
no. The trial court barred the presentation of a still frame, and when the cross-examination
resumed, Rivera explained that, although he recovered defendant’s boots at the Area 2 police
station, he did not recall who personally removed defendant’s boots. On appeal, defendant’s
counsel argues that the trial court improperly barred the presentation of a still video frame
because it would have impeached Rivera, who had just testified that he recovered defendant’s
boots. Vancil v. Fletcher, 90 Ill. App. 2d 277, 284 (1967) (finding defendant may impeach a
witness’ equivocal answers); Edward Don Co. v. Industrial Comm’n, 344 Ill. App. 3d 643, 652
(2003) (finding impeachment proper where witness denies making prior inconsistent statement or
gives unequivocal answers to question concerning prior statement); People v. Preston, 341 Ill.
407, 419 (1930) (same). Additionally, counsel argues that the still video is relevant because it
attacks the weight of the evidence by showing that the police’s handling left a break in the chain
of custody for defendant’s boots.The trial court did not err when it barred the defense from
showing a still shot from the video because it was not impeaching Rivera’s testimony. Although
35
No. 1-11-1251
Rivera testified that he “recovered” defendant’s boots at the Area 2 police station, he did not state
that he actually removed the boots from defendant’s feet. When asked on cross-examination to
clarify how he came into possession of defendant’s boots, Rivera stated that he did not recall if
he personally removed defendant’s boots or if another police officer had removed them before
Rivera arrived at the police station. Since Rivera testified that he only recovered the boots and
did not personally remove them from defendant, video evidence of another police officer
removing defendant’s boots does not impeach or contradict Rivera’s testimony.
¶ 104 Furthermore, as the trial court correctly noted, the still image shows only one moment
from the entire time that defendant was in custody, which is inconclusive to the question of who
removed the boots from defendant’s feet. A still video image would not impeach Rivera because
the presentation of a single moment in time would not be determinative of whether he recovered
defendant’s boots. Also, presenting a still image would not undermine the boots’ chain of
custody because it would be impossible to determine who actually removed the boots, which
police officers handled the boots, and how the boots were inventoried. As we explained in
section I, four witnesses identified the boots as belonging to defendant, and the State was not
required to demonstrate a chain of custody to lay a sufficient foundation. Woods, 214 Ill. 2d at
466. Thus, the trial court did not err when it barred the defense from presenting a still video shot
that neither impeached Rivera nor undermined the State’s evidence.
¶ 105 Also, the trial court’s error was harmless beyond a reasonable doubt because, as discussed
in sections I and II, the evidence against defendant was overwhelming. Thurow, 203 Ill. 2d at 272
(citing Olano, 507 U.S. at 734). The evidence at trial showed that defendant had a motive and
36
No. 1-11-1251
opportunity to kill Cavin, and that his palm prints were discovered on the murder weapon. Even
if the defense had impeached Rivera, there was still overwhelming evidence that defendant was
guilty beyond a reasonable doubt.
¶ 106 IV. Verbal Threats Against Abel Smith and Harold Jackson
¶ 107 The fourth claim is that the trial court erred when it allowed the State to present evidence
that defendant verbally threatened to cut Abel Smith’s and Harold Jackson’s throats the morning
of the crime. The admissibility of evidence, including other crimes evidence, is left to the trial
court’s discretion and will not be overturned absent a clear abuse of discretion. Illgen, 145 Ill. 2d
at 364. As stated, “[a]n abuse of discretion occurs where the trial court's decision is arbitrary,
fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial
court.” Becker, 239 Ill. 2d at 234.
¶ 108 Other crimes evidence is admissible if it is relevant to a proper issue, “such as motive,
intent, identity, absence of mistake or accident, modus operandi, or the existence of a common
plan or design.” People v. Norwood, 362 Ill. App. 3d 1121, 1128 (2005) (citing People v. Wilson,
214 Ill. 2d 127, 135-36 (2003)). Evidence of other crimes is admissible to prove any material fact
relevant to the case, but is inadmissible if only relevant to demonstrate a defendant’s propensity
to engage in criminal activity. Norwood, 362 Ill. App. 3d at 1128 (citing People v. Donoho, 204
Ill. 2d 159, 170 (2003), and People v. Hendricks, 137 Ill. 2d 31, 52 (1990)). The trial court may
exclude evidence of other crimes evidence if its prejudicial effect substantially outweighs its
probative value. Illgen, 145 Ill. 2d at 365. When the prior conduct is intrinsic to the matter being
charged as a “continuing course of conduct,” other crimes evidence may be admitted if it is
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relevant to establish a material issue, and the general principles of relevance apply. Manuel, 294
Ill. App. 3d at 123-24. Generally, threats by a defendant against a third party are not admissible
unless “ ‘the connection between them and the deceased is such that under certain circumstances
the threat would import harm to or hostility toward the deceased.’ ” People v. Szudy, 262 Ill.
App. 3d 695, 706 (1994) (quoting People v. Williams, 85 Ill. App. 3d 850, 856 (1980) (citing
People v. Scott, 284 Ill. 465, 474-75 (1918) (“The general rule also is that a threat by the accused
to kill or injure a person other than the deceased, or a mere idle threat of a general nature not
direct to any particular person, is not admissible to show malice towards the deceased.”))). “The
threat must in some way be linked to the victim.” Williams, 85 Ill. App. 3d at 856 (citing People
v. Watkins, 34 Ill. App. 3d 369, 374 (1975)).
¶ 109 In the case at bar, defendant’s counsel argues that defendant’s threats to Abel Smith and
Harold Jackson were inadmissible because they were not directed toward Cavin and bore no
connection to his death. At trial, Abel testified that defendant threatened to cut his throat the
morning of the crime, and William Alston testified that defendant confronted Harold and
similarly threatened to cut Harold’s throat. Counsel argues that Cavin was not present during
either incident, and that the State did not establish a connection between defendant’s threats and
a threat of harm to Cavin.
¶ 110 However, whereas evidence of other crimes may be admissible to show, among other
things, motive, intent, identity, absence of mistake or accident, modus operandi, or the existence
of a common plan or design (Norwood, 363 Ill. App. 3d at 1128 (citing Wilson, 214 Ill. 2d at
135-36)), relevant evidence merely tends to “ ‘make the existence of any fact that is of
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consequence to the determination of the action more probable or less probable than it would
without the evidence.’ ” People v. Stewart, 105 Ill. 2d 22, 54 (1984) (quoting Fed. R. Evid. 401).
Here, defendant’s threats to Abel and Harold constituted a continuing “course of conduct” that
led up to Cavin’s murder. Manuel, 294 Ill. App. 3d at 124.
¶ 111 The evidence at trial showed that defendant spent the night drinking alcohol and smoking
crack cocaine, and then argued and slapped his girlfriend when she asked Cavin to watch her
house while she was in Iowa. Maurice heard defendant arguing with Cavin that night about Cavin
leaving the house, and Abel asked defendant not to put his hands on his mother. Abel also
observed defendant talking to himself and pacing in the kitchen, and defendant told Abel that
Cavin had to leave and that he would not leave unless Cavin left first. Defendant became
increasingly hostile and threatened to cut Abel’s throat. Abel later heard defendant confront
Cavin in the basement, and Cavin responded that if defendant hurt him, then defendant would
only be hurting himself. Later that morning, Williams Alston also observed defendant’s temper
flare when he started breathing on Harold’s food, to which Harold insisted that defendant back
away. Defendant responded that he would cut Harold’s throat, and Harold pushed him.
Defendant then left the house in Maurice’s vehicle and returned 10 to 15 minutes later with a
knife in his pocket. William and Harold quickly left to visit a nearby gas station, and when they
returned a few minutes later, William observed defendant walking away from the house. Inside,
William discovered a bloody shovel and Cavin dead in the basement.
¶ 112 These facts demonstrate defendant’s increased agitation and escalating hostility, the focus
of which was Cavin’s refusal of defendant’s demands to leave the house. The incident began
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when Sharon asked Cavin to watch the house. Defendant’s anger or jealousy continued
throughout the night as he argued with Cavin several times, demanding that he leave. Also,
defendant became increasing more violent, as he first slapped Sharon, and then later threatened
to cut the throats of her son and his friend. This course of events culminated in defendant beating
Cavin to death with a shovel in the basement. As such, the trial court did not abuse its discretion
when it allowed the testimony that defendant had threatened Abel and Harold the morning before
the murder. Illgen, 145 Ill. 2d at 364.
¶ 113 Even if the testimony concerning defendant’s threats should have been excluded, the trial
court’s error was harmless beyond a reasonable doubt. Thurow, 203 Ill. 2d at 272 (citing Olano,
507 U.S. at 734). The evidence at trial showed that defendant was with Cavin, and that defendant
was observed approaching the home with a knife shortly before Cavin was discovered dead in the
basement. Defendant’s prints were discovered on the bloody shovel, and defendant’s clothes
contained bloodstains, which matched Cavin’s DNA profile. There was overwhelming evidence
to convict defendant beyond a reasonable doubt even in the absence of the testimony that he
threatened Abel and Harold.
¶ 114 V. Latent Fingerprint Analysis
¶ 115 The final claim is that the assistant public defender provided ineffective assistance of
counsel when she did not request a Frye hearing concerning the admissibility of Illinois State
Police print examiner Anastasia Petruncio’s testimony that a palm print recovered from the
bloody shovel found at the crime scene matched defendant’s left palm print. Frye v. United
States, 293 F. 1013, 1014 (1923); Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d
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63, 77 (2002). A defendant is denied effective assistance of counsel when: (1) his counsel's
representation falls below an objective standard of reasonableness; and (2) there is a reasonable
probability that, but for his counsel’s deficient performance, the result of the trial would have
been different. Strickland, 466 U.S. at 688; Albanese, 104 Ill. 2d at 525.
¶ 116 The decision whether to file a pretrial motion is considered trial strategy, and trial counsel
enjoys a strong presumption that the failure to file such a motion was proper. People v. Spann,
332 Ill. App. 3d 425, 432 (2002) (citing People v. Rodriguez, 312 Ill. App. 3d 920, 925 (2000)).
To overcome that presumption, the defendant must demonstrate: (1) that the motion had a
reasonable probability of success; and (2) that the outcome of the trial would have been different.
Spann, 332 Ill. App. 3d at 432-33. A reasonable probability is defined as a probability sufficient
to undermine confidence in the outcome. Spann, 332 Ill. App. 3d at 437 (citing Strickland, 466
U.S. at 694). The question then, is not whether the defendant would more likely than not have
received a different verdict absent the deficiency, but whether in light of the deficiency, he
received a fair trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419,
434 (1995). Since the facts surrounding trial counsel’s performance are not in dispute and the
claim was not raised in trial court, this court’s review is de novo concerning assessment of the
ultimate legal issue of whether counsel’s omission supports an ineffective assistance claim.
People v. Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006) (citing People v. Davis, 353 Ill. App. 3d
790, 794 (2004)). De novo consideration means we perform the same analysis that a trial judge
would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
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¶ 117 Illinois follows the test outlined in Frye, commonly called the “general acceptance” test,
which dictates that “scientific evidence is only admissible at trial if the methodology or scientific
principle upon which the opinion is based is ‘sufficiently established to have gained general
acceptance in the particular field in which it belongs.’ ” Central Illinois Public Service Co., 199
Ill. 2d at 77 (quoting Frye, 293 F. at 1014). “A court may determine the general acceptance of a
scientific principle or methodology in either of two ways: (1) based on the results of a Frye
hearing; or (2) by taking judicial notice of unequivocal and undisputed prior judicial decisions or
technical writings on the subject.” People v. McKown, 266 Ill. 2d 245, 254 (2007).
¶ 118 Defendant’s appellate counsel argues that there is a long-standing debate in the scientific
community concerning the validity of latent print identification. In support, counsel cites a 2009
National Research Council (NRC) report, which opined that latent fingerprint analysis, as well as
other forensic identification methods, has not “been rigorously shown to have the capacity to
consistently and accurately demonstrate a connection between evidence and a specific individual
source.” National Research Council of the National Academies, Strengthening Forensic Science
in the United States: A Path Forward 137 (2009). Counsel also cites an unpublished Maryland
trial court order, Maryland v. Rose, No. K06–0545 (Cir. Ct. Baltimore Co. Oct. 19, 2007), which
excluded fingerprint analysis from evidence after the trial court conducted a Frye hearing.
¶ 119 However, over 100 years ago, our supreme court found that there is a scientific basis for
fingerprint identification and that courts are justified in admitting this class of evidence. People
v. Jennings, 252 Ill. 534, 549 (1911). Since then, federal and state appellate courts have
uniformly rejected challenges to latent fingerprint analysis. People v. Luna, 2013 IL App (1st)
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072253, ¶ 68. Though defendant’s appellate counsel claims that the unpublished Maryland trial
court order rejected the “general acceptance” of latent fingerprint analysis, we are unaware of the
trial court’s standing on that issue. After the prosecution withdrew the case in state court, the
federal district court considered the issue on the same record and rejected the challenge to the
fingerprint analysis. United States v. Rose, 672 F. Supp. 2d 723, 725 (D. Md. 2009). After the
district court’s finding in Rose, the Maryland appellate court noted that the defendant had
provided only a “sole citation *** to a circuit court decision excluding fingerprint evidence,” and
it rejected the defendant's argument that latent print analysis was not a generally accepted
methodology within the scientific community. Markham v. State, 984 A.2d 262 (Md. Ct. App.
2009). Accordingly, there is no authority in Illinois, or in any other state, to support the claim that
it is error for a circuit court to not hold a Frye hearing concerning the admissibility of latent
fingerprint analysis. People v. Mitchell, 2011 IL App (1st) 083143, ¶ 31.
¶ 120 Also, even if the assistant public defender erred in failing to request a Frye hearing,
defendant did not suffer prejudice because there was still overwhelming evidence that he was
guilty beyond a reasonable doubt. The evidence at trial showed that defendant was angry and
acted aggressively toward Cavin, that defendant was observed leaving the house just prior to the
discovery of the murder, and that the blood on defendant’s clothing matched Cavin’s DNA
profile. Since defendant was not prejudiced by his counsel’s failure to object to the latent
fingerprint analysis, the assistant public defender did not provide ineffective assistance of
counsel. Strickland, 466 U.S. at 690.
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¶ 121 CONCLUSION
¶ 122 For the foregoing reasons, we affirm defendant’s conviction and sentence. First, the trial
court did not err when it admitted defendant’s bloodstained pants and boots into evidence
because the State established a sufficient foundation through witness identification. Second, the
assistant public defender did not provide ineffective assistance of counsel at trial for not
introducing the hospital belongings list since the State was not required to prove a chain of
custody. Third, the trial court did not err when it denied the defense’s request to show a still shot
from the Area 2 interrogation video because doing so would not impeach forensic investigator
Rivera. Fourth, the trial court did not err in denying the defense’s motion in limine to bar
testimony that defendant threatened to cut Abel Smith’s and Harold Jackson’s throats the
morning of the homicide because it established defendant’s continuing course of conduct of
anger and jealousy that culminated in Cavin’s murder. And last, the assistant public defender was
not ineffective for not objecting to the State’s latent fingerprint analysis since such methods have
been generally accepted in the scientific community for over 100 years. Also, we will not
consider defendant’s pro se supplemental motion because defendant is represented by counsel on
appeal and has made no request to proceed pro se.
¶ 123 Affirmed.
44
People v. Morris
Court: Appellate Court of Illinois
Date filed: 2013-09-30
Citations: 2013 IL App (1st) 111251, 997 N.E.2d 847
Copy CitationsCombined Opinion