Illinois Official Reports
Appellate Court
People v. Crawford, 2013 IL App (1st) 100310
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANDRE CRAWFORD, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-10-0310
Rule 23 Order filed November 12, 2013
Rule 23 Order
withdrawn December 6, 2013
Opinion filed December 16, 2013
Held Defendant’s convictions for the first degree murders and aggravated
(Note: This syllabus criminal sexual assaults of 11 women and the attempted first degree
constitutes no part of the murder and aggravated criminal sexual assault of a twelfth woman
opinion of the court but were upheld over his contentions that the cause should be remanded
has been prepared by the for a Batson hearing, that the evidence did not support one of the
Reporter of Decisions convictions, that his counsel was ineffective in failing to object to
for the convenience of certain DNA evidence, and that the trial court erred in admitting
the reader.) testimony concerning an autopsy report by an examiner who did not
prepare the report, since the record supported the State’s race-neutral
explanation for its peremptory challenge of a prospective juror, the
evidence was sufficient to sustain the challenged conviction, neither
prong of Strickland was met with regard to the claim of ineffective
assistance of counsel, and defendant’s confrontation rights were not
violated by the testimony of the medical examiner who did not
perform the autopsy at issue.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 00-CR-5454
Review through 00-CR-5465; the Hon. Evelyn B. Clay, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Jessica A. Hunter, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Mary L. Boland, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE DELORT delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Andre Crawford was convicted of the first degree murders
and aggravated criminal sexual assaults of 11 women, and the attempted first degree murder
and aggravated criminal sexual assault of a twelfth victim (720 ILCS 5/8-4, 9-1, 11-1.30 (West
2010)). A jury found him to be eligible for the death penalty but declined to impose it. He was
instead sentenced to life imprisonment. On appeal, defendant contends that: (i) this case must
be remanded for a Batson hearing; (ii) the evidence was insufficient to support the jury’s
verdict of guilty as to the murder of Rhonda King; (iii) in 6 of the 12 cases against him, he was
denied a fair trial based upon his counsel’s failure to argue the impact of a deoxyribonucleic
acid (DNA) match at only five loci, as well as the State’s claim in its opening statement and
rebuttal closing argument that the DNA recovered was defendant’s; and (iv) his confrontation
rights were violated when the trial court allowed a medical examiner to testify as to an autopsy
report that was prepared by a nontestifying medical examiner, where the autopsy report’s
findings were used as substantive proof of the manner of Nicole Townsend’s death. For the
following reasons, we affirm the judgment of the trial court.
¶2 I. BACKGROUND
¶3 Over a six-year period beginning in 1993, there was a series of murders in the Englewood
neighborhood in Chicago. The female victims all had a single male suspect’s DNA in
common. A joint task force comprised of officers and agents of the Chicago police department
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and the Federal Bureau of Investigation began investigating these murders in 1999. About a
year later, defendant, Andre Crawford, was arrested on an unrelated matter and brought in for
questioning. He subsequently agreed to submit a DNA sample and later provided
video-recorded confessions to the crimes. As a result, the State charged defendant with over
200 counts concerning the first degree murders and aggravated criminal sexual assaults of:
Sheryl Johnson (docketed in the trial court as case number 00 CR 5454), Tommie Dennis (No.
00 CR 5455), Shaguanta Langley (No. 00 CR 5456), Sonji Brandon (No. 00 CR 5459), Cheryl
Cross (No. 00 CR 5460), Evandre Harris (No. 00 CR 5461), Nicole Townsend (No.
00 CR 5462), and Constance Bailey (No. 00 CR 5463). In addition, the State charged
defendant with three counts each for the first degree murders of: Patricia Dunn (No.
00 CR 5458), Angela Shatteen (No. 00 CR 5464), and Rhonda King (No. 00 CR 5465).
Finally, the State charged defendant with 17 counts related to the aggravated criminal sexual
assault and attempted murder of Claudia R. (No. 00 CR 5457). 1 The parties agreed to join
these 12 cases for trial before a single jury.
¶4 A. Voir Dire and Other Pretrial Matters
¶5 Before trial, defendant moved to preclude testimony by Dr. Nancy Jones as to the autopsy
on Nicole Townsend that was performed by Dr. Barry Lifschultz, arguing that not to do so
would be a violation of defendant’s confrontation rights under Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009). The trial court denied defendant’s motion.
¶6 Jury selection began on November 2, 2010. The trial court first questioned the
venirepersons, pursuant to Witherspoon v. Illinois, 391 U.S. 510 (1968), to determine whether,
as a result of “conscientious or religious scruples,” the potential juror would automatically vote
against a death sentence, regardless of the evidence.
¶7 Potential juror Norman Phillips stated that he had “religious reasons” against imposing the
death penalty, but commented that he was not “100 percent sure” he could sign such a verdict.
Amber Ross-Garrett initially stated that she was “not sure” that she would be able to sign her
name on a death sentence verdict, but admitted that she “would have to” if the law and
evidence demanded it. Willie Payton said he would vote in favor of a death penalty “in an
extreme case, that it was premeditated” murder and the accused had been proved guilty
“beyond a doubt.” Payton stated that, if given a choice, he would “automatically” vote for a life
and not a death sentence, but he subsequently clarified that he would not automatically do so in
an extreme case “like multiple murders” or where “justice would be served.” The State
exercised peremptory challenges against Phillips, Ross-Garrett, and Payton, all of whom were
then excused from further service.
1
Prior to trial, the State dismissed 139 of the counts by nolle prosequi, leaving: (a) 3 counts of first
degree murder and 4 counts of aggravated criminal sexual assault as to Langley, Townsend, Dennis,
Johnson, Bailey, and Brandon; (b) 3 counts of first degree murder and 16 counts of aggravated criminal
sexual assault as to Cross; (c) 3 counts of first degree murder and 8 counts of aggravated criminal
sexual assault as to Harris; and (d) 2 counts of attempted murder and 4 counts of aggravated criminal
sexual assault regarding Claudia R.
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¶8 During the questioning of venireperson Robert Kingery, the following colloquy took place:
“Q. [Trial court:] Do you have any scruples, by which I mean strong feelings by
reason of religion, morals or conscience against the imposition of the death penalty.
A. [Kingery:] Somewhat. I’m Catholic. I’m pretty much against the death penalty. I
would be hard-pressed to vote for it.
Q. Are your beliefs such that regardless of the facts of the case or the background of
the defendant, that under no circumstances could you consider signing a verdict
directing the court to sentence the defendant to death?
A. Under no circumstances, I couldn’t say that.
Q. All right. So would your beliefs about the death penalty prevent or substantially
impair your ability to reach a fair and impartial decision as to whether the defendant
was guilty? That’s going back to the first stage.
A. No.”
¶9 The State then asked Kingery whether his views on the death penalty were based upon his
religion, to which he responded that they were and that the death penalty was “the ultimate
penalty.” Kingery added that he would have to see “indisputable evidence” that the death
penalty was appropriate, and in response to the State’s question, confirmed that he would not
automatically vote against it. Kingery explained that, to him, “indisputable evidence” was
evidence that “would convince [him] that [defendant] is guilty of killing these people.”
Kingery further stated that if he were “thoroughly convinced of that,” then he could vote in
favor of the death penalty. Finally, when the State asked Kingery, “[W]ould you be able to sign
your name on a death verdict if you were convinced that death was the appropriate sentence?”
Kingery responded, “Yes.”
¶ 10 Following defendant’s trial attorneys’ questioning of Kingery, the State moved to exclude
Kingery for cause based upon (i) his opposition to the death penalty absent indisputable
evidence and (ii) his statement that he would be “hard-pressed” to vote in favor of a death
sentence. The trial court, however, rejected the State’s motion. The State did not lodge a
peremptory challenge against Kingery, and he was later accepted as a juror. The record does
not indicate his race.
¶ 11 During the voir dire of Lois Marshall, the following exchange took place:
“Q. [Trial court:] Do you have any *** strong feelings *** against the death
penalty[?]
A. [Marshall:] Technically, I don’t believe in the death penalty. But *** I will give
a fair answer if I have to based on the evidence[;] I just don’t believe it.
It’s almost like a moral issue for me. *** I just don’t believe it. I believe in life in
prison. But then sometimes I think about if that happened to my family member, I
might change my viewpoint. Something really terrible happened to my daughters, I
might change my viewpoint, but technically I really don’t believe in it.
Q. Are your beliefs such that regardless of the facts of the case or the background of
the defendant, that under no circumstances could you sign a verdict for the death
penalty?
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A. That would be based on the evidence when I hear it, then I probably can assess it.
Q. You have to let us know whether or not you could sign a verdict for the death
penalty ***.
A. I believe so.”
¶ 12 The State then asked Marshall whether her beliefs against the death penalty were so strong
that she would “automatically” vote for a life sentence and reject a death sentence. Marshall,
however, responded that she would not.
¶ 13 The State sought to excuse Marshall from the jury, but the defense lodged an objection
based upon Batson v. Kentucky, 476 U.S. 79 (1986). The following discussion then took place:
“THE COURT: What is your showing?
MR. LYON [defense counsel]: Our showing is that the State has used strikes to
remove the only two black males who were sent back for consideration, and they have
now used two more strikes to strike two more–to strike–this is the second black female
upon whom they have exercised a strike.
They have accepted only one and tendered only one black female among their
strikes in the course of using their strikes.
So what that means essentially is that the State has used half of their strikes to strike
black jurors, and in using half of their strikes to strike black jurors, they have stricken
four out of the six black jurors who have come forward to be passed upon by the
parties. One they accepted, and one we struck. So those are the two that they did not
strike. The other four they did strike.
That’s of the possible black jurors upon whom they could exercise strikes. They
have exercised strikes on two-thirds of the black jurors who have been presented for
consideration. I submit that that percentage is a sufficiently high one to provide a prima
facie case of racially-motivated strikes.
Secondly, we would say that Miss Marshall, whom they are now striking, gave no
answers significantly or substantially different from white jurors whom they have
accepted as to give a race-neutral basis for striking.
THE COURT: Could you be more specific, that her background, her statistics, her
status is similar to Caucasian jurors who have been seated?
MR. LYON: That is what we are saying. We are saying among the nine who are
seated, we believe–well, we believe that the percentage that I cited, that is the
two-thirds of the available black jurors, have been stricken by the State of itself
provides sufficient evidence of a pattern to create a prima facie case.
We submit that, in addition to that, there is nothing about Miss Marshall that sets
her apart from white jurors whom the State has accepted. We believe that the burden
should shift based on the percentage to the State to offer race-neutral reasons for
rejecting or striking Miss Marshall.
THE COURT: Based on that proffer, the Court finds a prima facie basis, and we
will move to the next stage.
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State, your race-neutral reasons, if any?
MR. McKAY [the State]: Your Honor, for the record, we would object to the
Batson motion.
***
We believe, your Honor, that no prima facie case has been met. However, if you
believe based on defendant’s arguments to this Court that the prima facie case has been
met, we would respectfully state to the Court that we have only used now, including
Miss Marshall, nine challenges. Of that, five of them have been exercised against
individuals that are not African-American. Counsel’s motion is offensive, frankly.
In addition to not establishing a pattern of discrimination in the use of the
peremptory challenges, there are several reasons that Miss Marshall is worthy of a
peremptory challenge by the cause, not the least of which is, she is against the death
penalty because of moral issues as she stated during the Witherspoon portion.
She does not believe in the death penalty I believe is what she clearly stated. That in
and of itself is a sufficient reason, because a person’s feelings on the death penalty is
and always has been a race-neutral reason sufficient to overcome any kind of a Batson
challenge.
THE COURT: The Court finds there’s not been any violation of Batson. The State
set forth its race-neutral reasons based on her responses in the individual voir dire to the
Morgan-Witherspoon questions.
I submit that statistics such as three-quarters of African-Americans have been
stricken is not dispositive of a Batson issue because three-quarters of them quite
possibly could have stated that they were against the death penalty.
So just based on the fact of their race and so many of them being stricken, a large
number of them being stricken, does not itself point to a Batson violation. This is why I
asked if there were statistics of this woman, rather information about this woman that
were similar, and that would be responsive to Batson Witherspoon [sic], that were
similar to someone that the State–a non-minority that the State has seated.
So the Court finds no Batson violation.”
¶ 14 At that point, defense counsel said that he “thought” that he would have the opportunity to
respond to the State’s purported race-neutral explanation by “point[ing] to similarly-situated
non-black jurors whom the State has kept.” The trial court, however, told defense counsel that
he had to make a “substantial showing,” i.e., that the challenged individual had a similar
background to others who had been seated. The trial court further observed that it had found a
prima facie case based upon defense counsel’s “statistics” and the general statement that
Marshall’s background was similar to others who had been seated, but the statement was not
specific. Defense counsel countered that he believed he would have the opportunity to rebut
the State because it could not address the State’s response without hearing it first. The trial
court, however, reiterated that defense counsel had to provide a similarity between Marshall
and another juror who had been seated, but defense counsel did not, only making the claim “in
a general way.” The trial court noted that the State provided a “specific race-neutral reason” for
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its peremptory challenge of Marshall, notably “her response to Morgan-Witherspoon.”
Defense counsel then asked whether he could then return to his remaining peremptory
challenges against other potential jurors, and the trial court confirmed that he would. The jury
was later selected and sworn in, and the case proceeded to opening statements.
¶ 15 B. The State’s Opening Statement
¶ 16 Immediately before opening statements, the trial court admonished the jury that opening
statements were not evidence; they were only to acquaint the jury with the case and represented
what each side expected would be proven during the trial. The State made the following
comments during its opening statement:
“MR. McGUIRE [the State]: [Defendant] did everything he could to eliminate any
physical evidence tying him to any of the crime scenes. But the one thing he could not
eliminate was the DNA evidence in this case. ***
***
The medical examiners in this case took vaginal, rectal and oral swabs of the
victims. The ones that they could take DNA from. Some of the bodies were so badly
decomposed that there was no DNA evidence. Skeletal remains were found.
From 1993 to 1999 as the body count rose, the DNA evidence was coming in on
several of the victims. A DNA profile was developed. The problem was they had a
DNA profile, but they had no one to match it to. ***
[The Chicago police department, as part of a task force,] went around and took
buccal swabs from people, to eliminate possible suspects.
MR. KENNELLY [Defense counsel]: Object, your Honor.
THE COURT: Overruled.
MR. McGUIRE: During that time, they swabbed over 500 people. ***
***
*** There was one offender, and one offender only with that DNA that was present
in the bodies. ***
Out of the 11 women killed, seven of them had DNA in some fashion. The eighth
person, Claudia R***, survived. She also had DNA. So out of eight, out of the 12 cases,
there’s DNA evidence that ties to only one person, this man right here.
No other DNA. And the DNA isn’t like one in 4, one in a thousand. One in a
million. Not even one in a billion.
MR. KENNELLY: Object, your Honor.
THE COURT: Overruled.
MR. McGUIRE: It’s one in 30 billion. Using one test called RFLP. And one in 11
trillion when using PCR.
***
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*** When Nicole Townsend’s body was found on August 13, 1998, an autopsy
revealed that she had died of strangulation. The defendant’s DNA[,] although not
found in her, his DNA was found on a piece of panty hose close to the body.”
¶ 17 At the conclusion of opening statements, the State presented its case-in-chief. At trial,
about 90 witnesses testified and approximately 450 exhibits were admitted. The transcript
spans nearly 10,000 pages. Several witnesses testified regarding more than one victim. For
ease of analysis, though, we present the evidence sequentially by victim rather than by witness.
¶ 18 C. Rhonda King (No. 00 CR 5465)
¶ 19 Katrina Martin testified that she knew Rhonda King and considered her a friend.
According to Martin, they were also both drug addicts and prostitutes. Martin admitted to two
prior drug-related convictions in 1999 and 2000, but testified at the time of trial that she had
been “clean” for the previous 10 years. Martin knew defendant as “Dre,” and she knew another
individual who frequented the area by the name of Hubert Geralds. Martin was also aware that
defendant typically carried a knife on him, but she had never seen defendant hurt anyone with
it.
¶ 20 Martin said that the last time she saw King alive was a few weeks before December 21,
1994. She and King were walking with defendant, and in exchange for half a bag of “crack,”
Martin let defendant use her crack pipe. At some point, defendant and King agreed to trade
drugs for sex, which Martin had seen them do in the past. Defendant and King then walked
down an alley near 50th Place. Martin never saw King alive again.
¶ 21 On December 21, 1994, an individual who was renovating a boarded-up building at 823
West 50th Place found King’s partially skeletonized body on the third floor. The only entrance
to the building was through the back, where the plywood had been removed from the doorway.
King’s body was unclothed except for a coat and cushion covering the head.
¶ 22 The medical examiner’s “case report” noted that King’s body “appear[ed] to have been
partially eaten by rodents and dogs,” and that rodent and dog feces were near the remains. The
case report further described no obvious signs of trauma but noted a bloodstain about two feet
from King’s head. King’s body was then transported to the medical examiner’s office for
further examination.
¶ 23 The medical examiner’s postmortem report indicated that the soft tissues of the neck were
absent, leaving only the cervical vertebrae. The upper chest was skeletonized, the chest and
abdomen were “mummified,” and the soft tissues of the genitalia were absent. The report
described the back as “white tan with adipocere hair formation,” and noted there were
numerous large maggots in the thoracic and abdominal cavities but no organs. The cause of
death was listed as undetermined.
¶ 24 Chicago police detective Cliff Gehrke stated that he and his partner had been dispatched to
the scene, and after King’s remains had been transported from the scene to the medical
examiner’s office, he conducted an investigation by showing her Cook County jail
identification card to local residents. On cross-examination, Gehrke testified that, after he
received the results of the autopsy, the case was “suspended,” which Gehrke explained meant
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that it remained a death investigation in the absence of any new leads or evidence. Gehrke
further admitted that there was “no direct indication of foul play at that time.” On redirect
examination, Gehrke explained that, although there was the presence of blood, there was no
“witness testimony or a gun or *** shell casings” that would clearly point to foul play. Gehrke
further agreed that he suspected that foul play had been involved. On re-cross-examination,
however, Gehrke conceded that he did not find any weapons or “instrumentalities” that could
have caused King’s death, such as a knife blade or a gun. Gehrke also acknowledged that, at
that time, he did not know the cause of the pool of blood near King’s head.
¶ 25 Dr. Adrienne Segovia, an assistant medical examiner with the Cook County medical
examiner’s office, testified that she performed the autopsy on King on December 22, 1994,
while she was doing her fellowship training. Segovia testified that King’s remains from the
skull to the collarbones and parts of her arms were skeletonized, i.e., they contained no soft
tissues, such as skin, subcutaneous fat, muscle, veins, nerves, or arteries. In other areas, the
remains were partially mummified, which Segovia described as tissue that had dried out and
taken on a firm leathery consistency, and she recounted the presence of adipocere, a waxy
substance that forms from the decomposition of fat. Segovia further noted that there was
activity by maggots in the genitalia, and maggots were still present at the time of the
examination. Segovia explained that maggots are drawn to areas that are softest, such as the
eyes, nose, mouth, or genitalia, or where the skin has been “compromised or injured,” such as
from a stab wound.
¶ 26 Segovia said that, when she entered the abdominal cavity, there were no organs present in
either the chest or abdomen. In Segovia’s words, “Miss King was, in these areas, almost like a
shell. She was hollow inside.” Segovia added that, when she opened the skull, the brain was
absent.
¶ 27 Although the skull, jawbone, and neck bones were present, Segovia stated that the hyoid
bone was missing. She said, however, that it was not unusual in these situations because of the
possibility of predation by animals or insects. Segovia explained that, especially with animal
predation, the tissues–and whatever the tissues are attached to–will be carried or dragged away
and the remaining structures will then be scattered elsewhere.
¶ 28 Segovia did not find any evidence of strangulation or stabbing. Segovia also was unable to
obtain any oral, vaginal, or rectal swabs because there was no oral cavity present, and there was
no vagina or rectum present, only the vaginal and rectal orifices, which communicated directly
into an empty cavity containing maggots. Segovia identified what appeared to be bloodstains
on King’s clothing as well as an apparent pool of blood about two feet from King’s head at the
scene. Segovia stated that she could not determine the cause of death because of the state of
King’s remains, but the scene was “highly suspicious.” She did admit, however, that the
presence of blood was more indicative of a stabbing than strangulation, and that it was
“possible” that King died of a stab wound. Segovia also agreed that there was no evidence of a
stab wound to the neck, because there was no neck for her to examine.
¶ 29 On cross-examination, Segovia stated that she could not determine whether the pool of
apparent blood near King’s head was human blood or when the pool formed. She also admitted
that she had examined King’s back but found no evidence of a stab wound, that no foreign
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objects (such as a knife blade) were found in King’s body, and there were no fractures, nicks,
or other indications of a stab wound on King’s spinal cord. Segovia also agreed that it was
possible that King died from strangulation. Segovia stated that she had never before testified
that it was possible King died of a stab wound because this was the first time she had been
asked that question.
¶ 30 Assistant State’s Attorney Kevin Byrne testified that, on June 19, 1995, he interviewed
Hubert Geralds, who at the time was in custody for six murders. Byrne stated that, after
advising Geralds of his Miranda rights, he spoke with Geralds and showed Geralds a
photograph of King. According to Byrne, Geralds said King was “one of the women he
strangled and killed.” Byrne gathered additional details from Geralds about King’s murder,
and Geralds elected to provide a written statement, rather than one prepared by a court reporter.
Byrne confirmed that a video-recorded statement was unavailable at that time. Once the
handwritten statement was complete, Byrne offered Geralds the opportunity to make any
additions, deletions, or corrections. Other than one correction, Geralds did not ask for any
additional details to be put into the statement and Byrne did not put anything into the statement
that Geralds did not say. Byrne stated (and the parties subsequently stipulated) that Geralds
also wrote on the back of King’s photograph, “this is the woman I choked in the building,” and
signed his name below that statement. Without objection from the State, the trial court then
allowed Geralds’ written statement to be published to the jury.
¶ 31 Geralds’ written statement provided that, in December 1994–“sometime before
Christmas,” he went to the area of 54th and Morgan and bought eight bags of “rock” from a
woman who was a friend of his sister Angela and whom he later identified in a photograph as
King. Geralds stated that he then went with the woman to an abandoned building and smoked
five of the bags he had just purchased. King then wanted to smoke more, but Geralds refused,
and after King’s repeated requests to smoke more, Geralds placed King in a “chokehold,” with
his arm around her neck. Geralds said he held her until King was no longer talking and
breathing. Geralds then removed some of her clothes to make it appear that she had been raped,
and he left her in the attic of the building, which he believed was around 50th Place and
Halsted.
¶ 32 The parties stipulated that, on February 10, 2000, the State moved to vacate Geralds’
conviction and death sentence for King’s murder. On cross-examination, Byrne agreed that
there was a “link” between five of Geralds’ six victims, and that no DNA had been recovered
from King. Byrne further agreed that Geralds’ other five murder convictions were unaffected
by the dismissal of the conviction for King’s murder.
¶ 33 Assistant State’s Attorney Margaret Wood testified that, on January 29, 2000, after she had
already taken defendant’s confessions to various murders, defendant told her he had something
to tell her, but he was worried she would be angry with him. Wood assured defendant that she
would only be upset with him if he were not telling the truth. At that point, defendant told her
that he had remembered committing three additional murders, including that of King.
¶ 34 Defendant’s video-recorded confession was played for the jury. Defendant stated that he
had known King for about two years prior and had previously exchanged drugs for sex with
her. Sometime in the middle of fall in 1994, defendant met King outside of a currency
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exchange in the area of West 51st Street and South Halsted Street. Defendant said he and King
agreed to again trade drugs for sex, and they walked down an alley behind the currency
exchange. They came upon a boarded-up two-flat wooden house on West 50th Street near
Halsted. Defendant said the house had no porch stairs, so he had to lift King up onto the porch
before lifting himself up. Defendant said King was short and slender, about 5 feet tall and light.
Defendant lifted himself up by kicking a leg over and lifting himself up. The two then walked
up the stairs to the second floor of the house and went inside. Once inside, they went up an
internal staircase to an attic, where defendant found a seat and a bedroom.
¶ 35 In the attic, defendant said King changed her mind and said she wanted to “get high” before
having sex with him. Defendant said he became angry because he felt that King was trying to
back out of their “agreement.” Defendant then said that, while King was seated, he reached
into his pocket, pulled out a six-inch steak knife with a four-inch blade, walked up to King,
reached behind her and stabbed her in the “upper back.” The knife blade broke off and
remained lodged in her back, leaving defendant with only the handle.
¶ 36 According to defendant, King then fell back and began shaking. Defendant removed
King’s pants and saw both that she was urinating and that a pool of blood was forming around
her back. Defendant then pulled her about three feet away to a clear area. Defendant then had
vaginal sex with King, ejaculating inside of her. Defendant said King appeared to be dead, and
after having vaginal sex with her, he lifted King’s feet over her shoulders and had anal sex with
her, again ejaculating.
¶ 37 Defendant then left with King’s shoes and the knife handle. Defendant disposed of each of
King’s shoes in different vacant lots and also discarded the knife handle as he walked and
smoked his cocaine. About an hour later, defendant returned to the house where he left King.
¶ 38 Defendant went back up to the attic and saw King still lying there. Defendant stated he then
had vaginal sex with King’s body. Afterwards, he again lifted King’s feet over her shoulders
and had anal sex. Defendant saw a single tear fall from King’s eye and stated that he “didn’t
feel too good about that.” When asked why defendant returned to the house the second time,
defendant responded, “It’s obvious I *** enjoy having sex with dead bodies, you know,
knowing that she was dead.” Defendant left the house and did not return. Defendant said he
had heard “a while later,” and possibly a month or two after, that King’s body had been found
badly decomposed, and defendant thought that he “bought time” for the body not being
discovered because “it was close to Fall and the temperature was dropping,” which would
“hide the stench of her body.”
¶ 39 On cross-examination, Wood stated that she learned that Hubert Geralds had already
confessed and had been convicted and sentenced to death for King’s and five other murders,
but she nonetheless believed defendant and not Geralds murdered King because of the details
defendant provided. Wood also conceded that the police reports on King’s murder did not
indicate that King had been stabbed, but Wood still believed defendant’s confession and not
Geralds’. Wood explained that, due to the advanced decomposition of King’s body, animals
could have made away with the knife blade that defendant said had remained in King’s back.
Finally, Wood agreed that she never showed defendant a picture of King, but that she had
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defendant identify all of the other victims in a photograph.
¶ 40 D. Nicole Townsend (No. 00 CR 5462)
¶ 41 On August 13, 1998, a real estate appraiser discovered the body of Nicole Townsend in the
attic of an abandoned building at 5223 South Marshfield Avenue. Chicago police officer Scott
Straka testified that he had been dispatched to the scene, and in the second-floor attic, he
observed a “severely decomposing” body covered in flies and maggots and partially wrapped
in a green blanket. Townsend’s pants were off of one leg, her bra was pushed above her
breasts, and her jacket was underneath her body. Chicago police detective Daniel McNally
testified that Townsend’s remains had been decomposing for so long that her skull separated
from the rest of her body while her body was being prepared for removal. As a result, “She had
to be shoveled into bags.” Among the debris in the second-floor attic, an evidence technician
with the Chicago police department recovered a pair of black pantyhose.
¶ 42 Nancy Jones, the chief medical examiner of the Cook County medical examiner’s office,
testified for the State as an expert in the field of forensic pathology. Defense counsel renewed
his objection to Jones’s testimony, arguing that Jones should not be allowed to testify as to the
autopsy because she did not perform the autopsy. The trial court, however, overruled this
objection. Jones testified that Dr. Barry Lifschultz performed the autopsy on Townsend’s
remains and that Lifschultz had since retired and moved to England. Jones reviewed
Lifschultz’s autopsy report and photographs, which were admitted into evidence without
objection. Jones noted that Townsend’s body was in an advanced state of decomposition. The
skin was mummified, there was maggot activity (which Jones said would impair the ability to
collect semen), and the remains were partially skeletonized with exposed bones and no soft
tissue present. Internally, there were no organs.
¶ 43 On cross-examination, Jones agreed that Lifschultz initially made no determination as to a
cause of death but that Lifschultz later concluded that strangulation was the cause of death
based upon information Lifschultz received from police investigators. Jones testified that she
concurred with Lifschultz’s conclusion that Townsend’s cause of death was strangulation.
¶ 44 Jones agreed that Townsend’s neck cartilage and hyoid bone were intact. An indication of
strangulation could be a broken hyoid bone. Jones further conceded that Townsend’s hyoid
bone was intact, but explained that an intact hyoid bone does not necessarily mean the
decedent did not die of strangulation, because in younger people it can remain flexible and not
break following manual strangulation, and certain methods of strangulation do not result in a
broken hyoid bone.
¶ 45 Jennifer Schultz, a forensic scientist with the Illinois State Police, testified that the
recovered pantyhose tested positive for the presence of semen, so she cut out the “stain” that
tested positive to preserve it for further analysis. Illinois State Police forensic scientist Joanna
Wenk testified as an expert in the field of forensic biology and DNA analysis concerning the
various swabs taken from the other 11 victims. With respect to the Townsend crime scene,
Wenk said that she analyzed the semen stain developed by Schultz for the presence of DNA,
using a process known as “restriction fragment length polymorphism,” or RFLP. The RFLP
analysis results were that the DNA profile on the semen stain on the pantyhose from the
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Townsend crime scene matched the profile obtained in the Angela Shatteen case. Wenk added
that, when she compared the Townsend DNA profile to that of defendant, the profiles
“matche[d].” Wenk explained that the DNA profile obtained from the pantyhose at the
Townsend scene was expected to occur in “approximately one in 30 billion blacks, one in 10
billion Caucasian, or one in 22 billion Hispanics.” Wenk then opined that, to a reasonable
degree of scientific certainty, the semen identified from the pantyhose at the Townsend scene
was “consistent with having originated from [defendant].”
¶ 46 On cross-examination, Wenk agreed that, in January 2000, the time she performed a DNA
analysis of defendant’s buccal swab, new cases were being processed under the “STR” (short
tandem repeat) method. Although Wenk also agreed that STR uses more loci (13) than RFLP
(5), she disagreed that STR was a “better method.” Wenk, however, conceded that the Illinois
State Police lab replaced the RFLP process with STR. Wenk further admitted that, if there had
been a five-loci match under RFLP, but a sixth locus did not match, “that would be an
elimination.”
¶ 47 On redirect examination, the State asked Wenk whether the “discriminatory or statistical
power of an STR locus” was the same as that of an “RFLP locus.” Wenk responded, “One area
of the DNA in and of itself for STR may not be as discriminatory as one area of RFLP.” The
State then asked if there was “any sense in comparing the loci of RFLP to the loci of STR.”
Wenk explained that it did not because those are “two different types of DNA analysis.”
¶ 48 In his video-recorded statement regarding this victim, which was played for the jury,
defendant stated that he had known Townsend for a couple of years and had previously
exchanged drugs for sex. Defendant said he met Townsend in the second week of August 1998
near West 53rd Street and South Ashland Avenue and agreed to exchange drugs for sex. They
walked west to an abandoned, wood-framed house on Marshfield Avenue. They entered
through the back and went up to the second floor. Defendant said that, while he remained
standing, Townsend sat on the floor and began to perform oral sex on him but stopped after two
or three minutes. According to defendant, Townsend then refused to continue unless defendant
allowed her to get high. Defendant said he then began to strangle her, and they both fell down
with defendant lying on top of her. Defendant kept strangling her until she lost consciousness.
At that point, defendant removed her shoes, pulled her pants down, and then had vaginal and
anal sex with her. Afterwards, defendant found “some type of material” and wiped his penis
with it. Defendant could not recall whether he threw the material down or took it with him.
Defendant left with Townsend’s shoes and discarded them, one at a time. Defendant smoked
his “crack” cocaine and returned to the scene.
¶ 49 Defendant went back up to the second-floor attic and saw Townsend lying unconscious.
Defendant said that he again had vaginal and anal sex with Townsend, and ejaculated both
times. Defendant threw something that was in the room on top of her “to cover her up” and
delay the time until her body would be found.
¶ 50 E. Angela Shatteen (No. 00 CR 5464)
¶ 51 On April 3, 1995, amongst the debris in the attic of an abandoned house at 5043 South
Carpenter Street, Angela Shatteen was found dead by a group of schoolchildren. Shatteen was
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lying on a mattress, covered by a blanket, and naked from the waist down. A white piece of
electrical cord was around her neck, and there was bruising on her forehead and left eye. An
autopsy revealed that she had ligature marks and abrasions on her neck, and there were
hemorrhages and tears in the neck muscles consistent with manual strangulation. In addition,
the electrical cord that was wrapped around her neck was in a loop knot and showed some
scrapes of skin that were consistent with the victim’s efforts to remove the ligature with fingers
or fingernails. The medical examiner who conducted the autopsy testified that there was blood
and contusions on the lower lip and in Shatteen’s cheek, which he opined came from pressure
outside the mouth causing the teeth to cut the lip. In addition, the tongue was clenched between
the teeth, and there was petechial hemorrhaging in Shatteen’s eyes. A toxicology screen
revealed the presence of cocaine and cocaine metabolites in her blood, and oral, vaginal, and
rectal swabs were taken. Finally, the medical examiner opined that the cause of Shatteen’s
death was homicide by strangulation.
¶ 52 Illinois State Police forensic scientist Joanna Wenk testified that she tested the oral,
vaginal, and rectal swabs and found semen on all of the swabs. Wenk stated that another
forensic scientist, Pamela Fish, was assigned to conduct the DNA analysis of the swabs. Wenk
performed a DNA analysis of the buccal swab from defendant using the RFLP protocol. After
comparing the DNA profile from defendant’s buccal swab with the DNA profile obtained from
the vaginal swab of Shatteen, Wenk concluded that the buccal swab “matched” the DNA
profile from the Shatteen vaginal swab. Wenk stated that the frequency of that profile would be
expected to occur in approximately 1 in 30 billion blacks, 1 in 10 billion Caucasians, or 1 in 22
billion Hispanics. 2
¶ 53 Pamela Fish testified that she had been a criminalist in the forensic division of the Chicago
police department, and the trial court found her to be qualified to testify as an expert in the field
of forensic DNA analysis. Fish stated that she developed a DNA profile for Shatteen from a
sample of Shatteen’s blood. With respect to the swabs that had been taken from Shatteen, Fish
stated that an analysis of the vaginal swabs revealed two DNA profiles: one that “matched”
Shatteen and another that was “open” in that Fish had no DNA profile with which to compare
it. Fish then uploaded the open or “unknown” profile to the national DNA database, and kept
the remaining sample from the swab in a freezer in the forensic division.
¶ 54 On cross-examination, Fish stated that she used RFLP analysis to develop the DNA
profiles, which she said used six, not five, loci. Fish further stated that, although STR analysis
used 13 loci and replaced RFLP analysis, she was “not too sure” that STR was “more
discerning” than RFLP, and explained that she did not know what was meant by the term
“more discerning.”
¶ 55 Defendant’s video-recorded statement regarding this victim was played for the jury.
Defendant said that he had known Shatteen, or “Angel,” for the previous two or three years and
described her as a neighborhood prostitute and fellow drug user. In early April 1995, he met
Shatteen on the corner of West 51st Street and South Carpenter Street, and she agreed to sex in
exchange for drugs. They walked to an abandoned house near the intersection of West 50th
2
Wenk’s cross-examination and redirect examination are discussed supra ¶¶ 46-47.
- 14 -
Street and Carpenter. They went in through the back via an alleyway. They walked up the stairs
to the first floor, and then walked up to the attic. According to defendant, Shatteen began
performing oral sex on him, but then stopped and asked him for cocaine. Defendant said he
then became angry and began choking her with his hands. Defendant said they were on a
mattress, and after he had choked her for a couple of minutes, Shatteen turned over onto her
stomach, which made defendant loosen his grip. Defendant said that he may have kicked her a
couple of times, but he did not hit her, although he noted that Shatteen “somewhat fell off of
the mattress” during the struggle and went “facedown” onto the floor. As Shatteen was trying
to crawl away from him, defendant saw an extension cord near the mattress and wrapped it
around her neck. He used the extension cord to strangle Shatteen, and he placed his knee on the
back of her neck to increase pressure. Defendant said he held the cord “very tight” around her
neck for about 10 minutes, until he observed that Shatteen had lost consciousness.
¶ 56 Defendant then turned Shatteen over onto her back and had vaginal sex with her.
Afterwards, he turned Shatteen “off of the mattress on[to] her face” and had anal sex with her.
Defendant said he ejaculated both times. Defendant then left with Shatteen’s shoes and went
for a long walk, during which time he discarded her shoes, one at a time. Defendant then
returned to the scene, where he saw that Shatteen was still facedown on the side of the
mattress. Defendant again had anal sex with Shatteen, and then turned her over and had vaginal
sex with her. Defendant said he “pushed her back off of the mattress” and threw “debris and
clothes on top [of] her to cover her.”
¶ 57 F. Evandre Harris (No. 00 CR 5461)
¶ 58 On August 13, 1998, Evandre Harris was found dead on the first floor of an abandoned
house at 920 West 52nd Street. Her body was lying naked across an ottoman in the kitchen, and
a telephone cord was about four feet from her body. Chief Medical Examiner Nancy Jones
performed the autopsy on Harris. Jones testified that Harris’s body was in an early state of
decomposition, and maggots were present on the face, neck, lips, mouth, genitals, and anal
region. Harris’s body exhibited injuries around the forehead, right eye, face, wrist, and breasts.
Internally, there was bleeding in the mucosa of Harris’s mouth and the right side of the tongue.
Jones also found that there had been hemorrhaging in Harris’s neck muscles. In addition, there
was a ligature abrasion around the sides of Harris’s neck and hemorrhages in her esophagus, all
of which Jones explained was evidence of ligature strangulation. Finally, Jones found evidence
of bruising and hemorrhaging on Harris’s brain. Jones opined that the cause of Harris’s death
was ligature strangulation and that cerebral injuries resulting from blunt force trauma were a
contributing factor to Harris’s death. Jones collected a blood sample, as well as mouth, vaginal,
and rectal swabs from Harris.
¶ 59 A forensic biologist subsequently tested the swabs, and found the presence of semen on the
vaginal swab and a trace amount of semen on the rectal swab. Illinois State Police forensic
scientist Joanna Wenk testified that she analyzed the DNA on the vaginal swab using the RFLP
protocol and found within a reasonable degree of scientific certainty that the DNA from the
vaginal swab “matche[d]” defendant’s DNA. Wenk reiterated that the DNA profile obtained
from Harris’s vaginal swab would be expected to occur in “approximately one in 30 billion
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blacks, one in 10 billion Caucasians, or one in 22 billion Hispanics.” Wenk further opined that,
within a reasonable degree of scientific certainty, the semen obtained from Harris’s vaginal
swab was consistent with having originated from defendant. 3
¶ 60 Defendant’s video-recorded statement regarding Harris’s murder was played for the jury.
Defendant said that he met Harris, whom he described as 5 feet 5 inches tall and weighing
about 180 pounds, near the intersection of West 53rd Street and South Halsted Street sometime
around the second week of August 1998. Defendant and Harris agreed to exchange drugs for
sex and walked west down 52nd Street to an abandoned house. They walked in through the
back and stayed in the back room on the first floor. According to defendant, Harris sat on a foot
stool that was about three feet square, took off her coat, and told defendant that she wanted to
first “get high.” Defendant refused, and Harris tried to leave. Defendant then started to strangle
her, and Harris leaned back over the foot stool, turning around on her knees in an effort to stand
up. Defendant said Harris was “wrestling, trying to get away from me,” and during this
struggle Harris hit her head. Defendant also recalled that, when Harris turned around to try and
get up, he forced her head back down onto the floor, and he believed that Harris hit her head on
the floor and the wall. At that point, while Harris was “face down,” defendant saw “a cord or a
rope,” grabbed it, wrapped it around Harris’s neck, strangling her until she was motionless.
Defendant turned Harris back over onto her back and removed her clothes. Defendant wanted
to “fondle with her, with her body and her breasts in particular.”
¶ 61 Defendant then had vaginal and anal sex with her, ejaculating without a condom both
times. Afterwards, defendant took Harris’s clothes and shoes and left. Defendant walked for
quite a distance, disposing of her clothing in different places. Defendant, however, could not
remember if he took the rope or cord with him, as well. Defendant also smoked his cocaine and
then returned within about an hour. When asked why, defendant candidly responded that he
“enjoyed having sex with her while knowing that she was out of it, that she was dead.”
Defendant saw Harris still lying in the same position on the foot stool, “slumped over
backwards *** on her back,” and again had vaginal and anal sex with her, ejaculating without
a condom both times. When he finished, defendant noticed that it was around 10:30 p.m., so he
got onto a bus and went to work.
¶ 62 G. Cheryl Cross (No. 00 CR 5460)
¶ 63 On December 8, 1998, in the attic of an abandoned home at 1220 West 52nd Street, the
decomposing body of Cheryl Cross was found. The owner of the house, Michael Neal, testified
that he had been to the house in October or November but did not see anything at that time.
Cross’s body was naked from the waist down, her pants were wrapped around one ankle, and
her blouse was open. She also had substantial injuries to her face, including a “gaping
laceration” across her forehead and loose teeth around her body. In addition, a section of rope
was still around Cross’s neck and a knife blade was lodged in her back. On the second floor, a
forensic investigator with the Chicago police department found another knife with an alligator
logo on the handle, which Katrina Martin testified was similar to a knife defendant owned.
3
Wenk’s cross-examination and redirect examination are discussed supra ¶¶ 46-47.
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When Cross’s body was removed for transport to the medical examiner’s office for an autopsy,
investigators noticed a section of two by four underneath Cross’s body and another piece to the
right of her head.
¶ 64 James Filkens, the medical examiner who conducted Cross’s autopsy, testified that the
“gaping” laceration on her forehead was consistent with being hit with a pipe, and he observed
that the bones in Cross’s forehead and nose were fractured. The ligature mark on her neck was
caused by a piece of rope or string placed around the neck. Cross also had abrasions on the
right side of her neck, the left side of her face, and on her right knee. Filkens noted the stab
wound and the presence of the knife blade in the middle of Cross’s back. Substantial injuries
were further noted to her skull and scalp, specifically, a subgaleal hemorrhage, which Filkens
explained indicated “trauma or force” was applied to that area before Cross died. Filkens
opined that the cause of death of Cross was the stab wound to the back, with the blunt force
trauma to the head a significant contributing factor. Finally, Filkens stated that oral, vaginal,
and rectal swabs were taken.
¶ 65 Joanna Wenk, the forensic scientist with the Illinois State Police, analyzed the DNA on the
vaginal swab using the RFLP protocol. She testified that the DNA from Cross’s vaginal swab
“matche[d]” defendant’s DNA. Wenk reiterated that the DNA profile obtained from the
vaginal swab would be expected to occur in “approximately one in 30 billion blacks, one in 10
billion Caucasians, or one in 22 billion Hispanics.” Wenk further opined that, within a
reasonable degree of scientific certainty, the semen obtained from Cross’s vaginal swab was
consistent with having originated from defendant. 4
¶ 66 In defendant’s video-recorded statement, which the jury heard, defendant said that he had
known Cheryl Cross as a prostitute for the previous two to five years. They had previously
exchanged drugs for sex, and they agreed to do so again in the first week of December 1998,
when defendant met Cross near the intersection of West 51st Street and South Loomis Street.
They walked to a two-story abandoned brick building in the 1200 block of West 52nd Street,
entered through a back window, and went up to the attic.
¶ 67 When they got to the attic, defendant said he had recalled that Cross had stolen $13 from
him the last time they had exchanged drugs for sex, and defendant said he became angry, so he
plunged a six-inch steak knife into her back. Cross screamed and turned quickly. As she
turned, the knife handle broke away from the blade, the handle remaining in defendant’s hand
while the blade remained in Cross’s back. Defendant then began strangling her, but Cross
struggled, and they fell to the ground.
¶ 68 Cross then turned over to try and get up, but defendant took a nearby rope and wrapped it
around her neck. Defendant kept twisting it, holding it around her neck. When Cross lost
consciousness, defendant rolled her onto her back and struck her in the forehead with a steel
pipe. Defendant noted that he hit her with such force he could see her skull.
¶ 69 At that point, defendant removed her pants and shoes, and had vaginal sex with her. He
then turned her over and had anal sex with her. Defendant said he did not wear a condom.
When he finished, defendant took Cross’s shoes, the pipe, and knife handle, and left.
4
Wenk’s cross-examination and redirect examination are discussed supra ¶¶ 46-47.
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Defendant said he took a long walk, during which he got rid of the evidence, throwing away
one shoe at a time. Defendant said he then “got high” and returned to the scene, where he found
Cross in the same position. He again had anal sex, followed by vaginal sex until he ejaculated,
and left.
¶ 70 H. Sheryl Johnson (No. 00 CR 5454)
¶ 71 On April 20, 1999, Chicago police officer Daniel Kienzle discovered the body of Sheryl
Johnson in an abandoned house at 5004 South Justine Street. Kienzle testified that he went into
the boarded-up four-flat around midnight for the purpose of conducting narcotics surveillance,
and as he was “clearing” the location, he saw Johnson’s body by the light of his flashlight.
Johnson’s body was on the floor with one of her legs propped up against a wall. She was naked
below the waist with her underwear around her ankles, and her blouse was pulled up, exposing
her breasts. There was blood around her nose and mouth. Mitra Kalelkar, the deputy chief
medical examiner of Cook County, testifying on behalf of the State as an expert in forensic
pathology, stated that she performed the autopsy on Johnson. Kalelkar found that there had
been hemorrhaging in Johnson’s right neck muscles and upper esophagus, as well as petechial
hemorrhaging in the larynx, trachea, and eyelids. In addition, Kalelkar noted a bite mark on
Johnson’s tongue. In addition to various abrasions and bruises on her neck, elbows, knees,
wrist, and shoulder, Kalelkar also observed a “faint” bruise on the left side of her neck, but no
evidence of a ligature mark around the neck. Based upon these injuries, Kalelkar opined that
Johnson died of manual, and not ligature, strangulation. Finally, Kalelkar obtained oral,
vaginal, and rectal swabs, which were forwarded for further analysis.
¶ 72 Forensic scientist Wenk examined the DNA on the vaginal swab using the RFLP protocol,
and found that the DNA from Johnson’s vaginal swab “matche[d]” defendant’s DNA. Wenk
reiterated that the DNA profile obtained from the vaginal swab would be expected to occur in
“approximately one in 30 billion blacks, one in 10 billion Caucasians, or one in 22 billion
Hispanics.” In Wenk’s opinion, and within a reasonable degree of scientific certainty, the
semen obtained from Johnson’s vaginal swab was consistent with having originated from
defendant. 5
¶ 73 Defendant’s video-recorded confession was played for the jury. Defendant said that he met
Johnson near the intersection of West 50th Street and South Marshfield Street in the afternoon
during the third week of April 1999. Defendant said he and Johnson agreed to exchange drugs
for sex, which they had done in the past, and walked east to an abandoned house near South
Justine Street. They went in through a side door and then up to the second floor, where they
went to the back bedroom. Defendant agreed to give Johnson a “hit” of cocaine before she
began performing oral sex on him. Johnson then stopped while she was performing oral sex on
defendant and demanded more cocaine before continuing. Defendant said he became angry
and then leaned over and strangled her. She resisted for about a minute, but then stopped
moving.
5
Wenk’s cross-examination and redirect examination are discussed supra ¶¶ 46-47.
- 18 -
¶ 74 Defendant then took her pants partially off and had vaginal sex with her body until he
ejaculated inside of her. Afterwards, he turned her over and had anal sex with her, again
ejaculating. Defendant collected her shoes, pants, and purse, and left the house. He discarded
the items and smoked his cocaine. At that point, he returned to the scene. He again had vaginal,
and then anal, sex with Johnson’s body, ejaculating both times. After he finished, defendant
said that he dragged Johnson’s body to the front bedroom and “slung” her body into the
bedroom. Defendant said that Johnson’s torso was on the floor and her feet were up against the
wall. He then left to go to work.
¶ 75 I. Claudia R. (No. 00 CR 5457)
¶ 76 Claudia R. testified at trial that, on November 27, 1997, she and her sister Barbara had left
their family’s Thanksgiving dinner and went to a friend’s house near the intersection of West
53rd Street and South Honore Street. Claudia stated that she borrowed $10 from her sister so
that she could split a “dime bag” of crack cocaine with her cousin. Claudia said they smoked
the crack, and Claudia started walking east along West 51st Street to a bus stop on South
Halsted Street. She saw an individual, whom she identified in court as defendant, following
her. Defendant walked up to her and asked her if she got “high.” Claudia said she did, and
defendant said he had two bags, but when defendant reached into his pocket, he pulled out a
knife, put it to Claudia’s neck, and told her not to scream. They then walked to an abandoned
building at West 51st Street and South Peoria Street, where they entered the building through
the side and went to the front part of the building.
¶ 77 Claudia R. said that defendant made her remove her clothes, but she tried to escape.
Defendant, however, chased her and caught her after pushing a freezer on top of her. Claudia
said another woman walked up to the side door of the building and “squatted down to use the
bathroom,” and Claudia screamed for help and that she was being raped. Defendant told this
other woman that Claudia was lying and that Claudia had taken defendant’s money. The other
woman quickly left.
¶ 78 Defendant then took Claudia into the “next part” of the building, and raped her anally and
then vaginally while he held a knife to her throat. Claudia stated that she grabbed the knife,
cutting her fingers. The blade broke free of the handle, and she threw the blade. Defendant then
wrapped what Claudia believed to be a telephone cord around her neck, and Claudia lost
consciousness.
¶ 79 When she regained consciousness, she heard defendant walk up to her and say, “Oh, you
one of them bad bitches.” Defendant then took a two-by-four and struck her repeatedly about
the head. Claudia used her hands to try and block the blows, and she said that the beating
removed the skin from the top of her hands. Claudia said she required 52 stitches to her head,
and her arms, legs, and wrists were broken. She added that she heard her leg breaking as
defendant struck her. At one point, defendant hit her on the kneecap, and Claudia jumped up,
but immediately fell back onto her back. Defendant then walked up to her, and while Claudia
“played dead,” defendant covered her with a mattress. She heard defendant eventually leave
the building, and then “scooted out” on her back because she was unable to walk. When she got
out of the building, she screamed for help. She required over three months of hospitalization.
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¶ 80 On cross-examination, Claudia denied that she was a prostitute, conceding that she had
been arrested “for a lot of things.” Claudia stated, “[in November 1997,] I got picked up for
possession, and they called it what they wanted, but I have never been a prostitute.” The
parties, however, later stipulated that Claudia R. had been arrested for prostitution on
November 14, 1997, approximately two weeks before the attack.
¶ 81 Brenda Armond testified that, at around midnight on November 28, 1997, she saw a young
woman screaming for help and crying out that she had been raped. Armond went to a liquor
store nearby and told them to call the police. Armond then returned to Claudia, whom Armond
described as bloody and naked from the waist down. The police subsequently arrived and took
Claudia to the hospital, but one of the responding officers said that Claudia’s hands were
“completely mangled.” The officer further testified, “The one leg was completely mangled,”
and “It looked twisted so you could not see her knee, you could not see her kneecap.” Claudia
was then taken to the hospital.
¶ 82 Dr. Lisa Palivos testified that she treated Claudia’s injuries. Palivos noted that Claudia
suffered from multiple lacerations and broken bones. Palivos stated that her left lower leg
bones were fractured, her cheekbone was broken, and there were multiple fractures on her
wrists and right hand. As to lacerations, Palivos observed a “huge” laceration of five to six
centimeters on the right side of her forehead, a large laceration on her neck, as well as
lacerations on her scalp and wrists. Palivos also performed a “rape kit,” which included
obtaining oral, vaginal, and rectal swabs. Those swabs were subsequently turned over to the
police for analysis.
¶ 83 Joanna Wenk, who analyzed the DNA on the vaginal and rectal swabs using the RFLP
protocol, testified that the DNA from Claudia R.’s swabs “matche[d]” defendant’s DNA.
According to Wenk, the DNA profile obtained from the swabs would be expected to occur in
“approximately one in 30 billion blacks, one in 10 billion Caucasians, or one in 22 billion
Hispanics.” Wenk’s opinion, within a reasonable degree of scientific certainty, was that the
semen obtained from Claudia R.’s vaginal and rectal swabs was consistent with having
originated from defendant. 6
¶ 84 The jury also heard defendant’s video-recorded statement. Defendant said he met Claudia
near the intersection of West 52nd Street and South Halsted Street on November 27, 1997. He
said they had never met before, but Claudia asked whether defendant had any drugs he would
trade in exchange for sex. Defendant agreed, and the two of them walked west to South Peoria
Street, where they found an abandoned store. They walked into the back of the store and went
to the front. Defendant said that Claudia refused sex until she got high. Defendant then threw
her onto a table, but another woman came in to urinate, and Claudia “started hollering rape,
help me.” Defendant said the other woman quickly left, and he grabbed a knife that was nearby
and held it to Claudia’s head. Claudia grabbed the beer bottle defendant had in his hand and
tried to hit him with it, but she missed. Defendant then took her to the back of the building to
“beat[ ] her up a little bit.”
6
Wenk’s cross-examination and redirect examination are discussed supra ¶¶ 46-47.
- 20 -
¶ 85 At the back of the building, defendant took off Claudia’s clothes and started vaginally
raping her. While this was happening another person walked by the building, and Claudia
screamed that she was being raped. Defendant pressed the knife to her head, and the blade
broke off. After defendant ejaculated, he anally raped her. When he finished, Claudia again
started screaming for help and that she had been raped. Defendant took a nearby two-by-four
that was about three feet long and started hitting her across the head with it. Defendant said
Claudia held up her hands and continued screaming. Defendant then said he “decided to hit her
in the rib cage and that knocked the wind out of her.” Defendant told Claudia she was lucky
defendant did not kill her. Just before leaving, defendant saw that she was “totally naked” and
that it was cold outside, so defendant put some “material” on top of her and a piece of plywood
in the doorway, both to keep the “wind off of her.” Defendant said that, once he was outside,
however, “I heard [Claudia] hollering again” for help and that she had been raped. Defendant
then took the plywood from the doorway and went back in.
¶ 86 He went to where Claudia lay, removed the debris that he had placed over her, hit her, and
warned her that he could have killed her. Defendant said that, when he struck her leg, he heard
a “crack[ing]” sound. At that point, defendant said Claudia’s screams were muffled. Defendant
again warned her that if she continued screaming, he would continue to beat her until she was
dead. Claudia stopped screaming, and defendant “threw the debris back on top of her.”
Defendant then put the plywood back on the door, and left with Claudia’s leather coat. He
walked to a bus stop on Halsted and took the bus to work, leaving Claudia’s leather coat
onboard.
¶ 87 J. The Remaining Five Victims
¶ 88 The jury also heard defendant’s video statements with respect to the remaining five
victims: 7 Tommie Dennis (No. 00 CR 5455), Shaguanta Langley (No. 00 CR 5456), Patricia
Dunn (No. 00 CR 5458), Sonji Brandon (No. 00 CR 5459), and Constance Bailey (No.
00 CR 5463). In each of the cases, defendant stated that he and the women agreed to exchange
drugs for sex. Defendant stated that the women, however, each insisted on using defendant’s
cocaine first, which made defendant angry, so he killed them. Defendant stated he would have
sex with their bodies, leave when he was finished, smoke some crack cocaine, and then return
to have sex with the bodies a second time.
¶ 89 Mary Greer-Ritzheimer, a forensic scientist with the Illinois State Police, testified that she
analyzed the semen found on a burlap bag found between Dunn’s legs and the semen on the
vaginal swabs taken from Bailey. Greer-Ritzheimer said that she used the “Polymerase Chain
Reaction-Short Tandem Repeat” (PCR-STR) method of DNA analysis, and found that the
semen from the burlap bag and the vaginal swab “matche[d]” defendant’s DNA.
Greer-Ritzheimer further testified that she would expect the profile found on the burlap bag
and vaginal swab to occur in “approximately one in 110 trillion black, one in 350 trillion white,
or one in 420 trillion Hispanic unrelated individuals.”
7
Defendant does not raise a specific challenge to the evidence in these five cases.
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¶ 90 On cross-examination, Greer-Ritzheimer explained that she calculated the frequencies by
taking “an allele frequency[, which] is just a name for a DNA type[,] *** times itself at each
location of DNA that you look at,” and that with PCR-STR testing, she examined 13 different
areas. In addition, when defense counsel asked her whether “STR is more discerning,”
Greer-Ritzheimer responded, “It can be more discriminating because we can look at more
areas of the DNA.”
¶ 91 K. Closing Arguments and Sentencing
¶ 92 The trial court then admonished the jury that closing arguments were not evidence, that
they were “merely their commentary, their take that they wish you to adopt.” The State’s initial
closing argument to the jury spans nearly 50 pages of the transcript. During defendant’s
closing argument, defense counsel challenged the State’s evidence with respect to King’s
murder, noting in particular Geralds’ prior confession and the absence of a knife blade in
King’s back, despite defendant’s claim that he stabbed King and the blade broke off in her
back. In addition, defense counsel noted that in the five cases Geralds had been convicted of,
DNA linked four of them, and the fifth case (Rhonda King) was the one that was subsequently
vacated and that defendant was charged with. Defense counsel then commented that, of the 12
cases that defendant was charged with, 8 were linked by DNA and 4 were not. Defense counsel
further challenged the DNA evidence by arguing that, since the victims were prostitutes, there
should have been more than one male DNA profile found in them. Defense counsel reiterated,
“You have 12 women who are prostitutes, only one man’s DNA. It is suspect. It is suspect.
Why are there not any[ ]more DNA profiles?”
¶ 93 The State then argued in rebuttal. Among the 26 pages comprising the State’s rebuttal
argument, the State argued that there was no evidence that the “integrity” of the physical
evidence had been compromised. The State continued:
“MR. McKAY [the State]: It’s the defendant’s DNA. It’s his DNA. It’s his genetic
code that separates him from everybody else in the world regardless of color.
MR. KENNELLY [defense counsel]: Objection, Judge.
THE COURT: Overruled.
MR. McKAY: It separates him from his siblings. We all have this unique genetic
code ***. And unless we have identical twins, nobody else has our genetic code.
And since the population of the earth is either 6 billion or 8 billion, the chance of
finding this unique genetic code that those scientists found when they testified, the
chance of doing that, folks, we would have to get in a rocket ship and–
MS. SEATON [defense counsel]: Objection.
MR. KENNELLY: Misrepresentation of the testimony of their own experts.
THE COURT: Overruled. ***
MR. McKAY: We would have to leave this planet *** and find a planet that not
only has human beings on it, but has more human beings than this planet does now, five
to seven times more.
***
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*** All of these detailed videotaped statements coupled with DNA evidence is
overwhelming evidence of guilt.
***
You watched him tell Margaret Wood how he killed and raped 11 women and how
he almost killed, but did rape a 12th. He said all these things *** before the DNA
comparison came back. Everything he said *** was corroborated after the fact, not
before.”
¶ 94 At the conclusion of closing arguments, the trial court instructed the jury. Among its
instructions, the trial court informed the jury that opening statements were made by the
attorneys to acquaint the jury with the facts they expected to be proved. The trial court added
that the attorneys’ closing arguments were made to discuss the facts and circumstances in the
case, and should be confined to the evidence and the reasonable inferences to be drawn from
the evidence. The trial court reiterated that neither opening statements nor closing arguments
were evidence, and any statement or argument made by the attorneys which was not based on
the evidence should be disregarded. At the conclusion of jury instructions, the jury retired to
deliberate.
¶ 95 Following deliberations, the jury found defendant guilty of all counts. Specifically,
defendant was found guilty of: (a) both counts of attempted murder as to Claudia R.; (b) three
counts of first degree murder as to the remaining 11 victims; (c) 4 counts of aggravated
criminal sexual assault as to Claudia R., Langley, Townsend, Dennis, Johnson, Bailey, and
Brandon; (d) 16 counts of aggravated criminal sexual assault as to Cross; and (e) 8 counts of
aggravated criminal sexual assault as to Harris. The jury also found defendant eligible for the
death penalty, but its verdict as to the penalty phase stated that a sentence of death was not the
appropriate sentence and that, instead, the trial court “shall sentence defendant to natural life
imprisonment.” With respect to Claudia R., the trial court merged the two attempted murder
convictions into one conviction and the four aggravated criminal sexual assault convictions
into two separate convictions. Regarding Dunn, King, and Shatteen, the trial court merged the
three first degree murder convictions for each of the victims into one conviction each. As to the
remaining victims, the trial court merged the three first degree murder convictions and the
various aggravated criminal sexual assault convictions into one murder conviction and two
aggravated criminal sexual assault convictions for each victim. The trial court subsequently
sentenced defendant to natural life for the murders and also imposed 30-year terms of
imprisonment for the aggravated criminal sexual assault convictions, and another 30-year term
for the attempted murder of Claudia R.
¶ 96 L. Posttrial Proceedings
¶ 97 Defendant subsequently filed an amended posttrial motion, contending in part that the trial
court erred in denying its Batson objection during voir dire. Defendant argued that the State
struck African-American members of the jury venire for purely racial reasons, specifically,
Lois Marshall, Wally Payton, Amber Ross-Garrett, and Norman Phillips. On this point, the
motion contained no further argument. At the hearing on defendant’s motion, defendant did
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not present any argument on the motion, and the State rested on its prior arguments. The trial
court denied the motion.
¶ 98 This appeal follows.
¶ 99 II. ANALYSIS
¶ 100 A. Batson Claim
¶ 101 Defendant first contends that, following his objection based upon Batson v. Kentucky, 476
U.S. 79 (1986), the trial court conducted an improper Batson hearing when it denied
defendant’s request to rebut the State’s race-neutral reason for striking a black prospective
juror, Lois Marshall. Defendant asks that we remand this case “for a proper hearing” under
Batson. The State responds that defendant has forfeited this claim, and waiver aside, the trial
court’s finding was correct.
¶ 102 It is well established that the State’s use of a peremptory challenge to exclude a prospective
juror solely on the basis of his or her race violates a defendant’s fourteenth amendment right to
the equal protection of the laws. Id. at 84. In Batson, the Supreme Court established a
three-step procedure to determine whether the State’s use of a peremptory challenge was
improperly based upon race. People v. Allen, 401 Ill. App. 3d 840, 847 (2010). First, the trial
court must determine whether the defendant has made a prima facie showing that the
prosecutor exercised a peremptory challenge on the basis of race. Rice v. Collins, 546 U.S. 333,
338 (2006) (citing Batson, 476 U.S. at 96-97). If the showing is made, the matter proceeds to
the second step, where the burden shifts to the State to present a race-neutral explanation for
striking the juror in question. Id. (citing Batson, 476 U.S. at 97-98). “Although the prosecutor
must present a comprehensible reason, ‘[t]he second step of this process does not demand an
explanation that is persuasive, or even plausible’; so long as the reason is not inherently
discriminatory, it suffices.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995)
(per curiam)). At the third and final step, the court must then determine whether the defendant
has carried his burden of proving purposeful discrimination. Id. (citing Batson, 476 U.S. at 98).
¶ 103 This third step of the Batson inquiry “involves an evaluation of the prosecutor’s credibility
[citation] and ‘the best evidence [of discriminatory intent] often will be the demeanor of the
attorney who exercises the challenge.’ ” Snyder v. Louisiana, 552 U.S. 472, 477 (2008)
(quoting Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality op.)). “The trial court has
a pivotal role in evaluating Batson claims.” Id. This is because the State’s race-neutral reasons
for peremptory challenges often involve a juror’s demeanor, such as nervousness or
inattention, which makes the trial court’s “firsthand observations of even greater importance.”
Id. The trial court must then evaluate the demeanor of not only the prosecutor (to determine
whether the demeanor belies a discriminatory intent), but also the juror (to determine whether
the demeanor arguably exhibited the claimed basis for the strike). Both of these determinations
lie “ ‘peculiarly within a trial judge’s province.’ ” Hernandez, 500 U.S. at 365 (quoting
Wainwright v. Witt, 469 U.S. 412, 428 (1985)). For this reason, a reviewing court must defer to
the trial court absent “exceptional circumstances.” Id. at 366. Consequently, we must uphold a
trial court’s ruling on the issue of discriminatory intent unless it is clearly erroneous. Snyder,
552 U.S. at 477. Under this standard, we may not reverse unless we are left with a definite and
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firm conviction that a mistake has been committed. Hernandez, 500 U.S. at 369. In essence,
“[w]here there are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Anderson v. City of Bessemer City, North Carolina, 470 U.S.
564, 574 (1985).
¶ 104 The defendant asserting a Batson violation bears the burden of preserving the record.
People v. Johnson, 183 Ill. 2d 176, 190 (1998) (citing People v. Hudson, 157 Ill. 2d 401, 428
(1993)), cert. denied, 526 U.S. 1009 (1999). “For a meaningful appellate review of the issue,
the record must disclose the race of the venirepersons.” Id. (citing People v. McDonald, 125 Ill.
2d 182, 194-95 (1988)). If there are any ambiguities in the record as to this issue, they are
construed against the appellant (here, defendant). Id. (citing Hudson, 157 Ill. 2d at 428).
¶ 105 At the outset, defendant asserts that the trial court erred in denying him the opportunity to
rebut the State’s race-neutral explanation of its peremptory challenge of prospective juror
Marshall. Defendant argues that, instead of following the proper procedure, the trial court
collapsed the process into two steps, in finding no Batson violation after the State proffered its
race-neutral explanations. For the following reasons, defendant’s claim is without merit.
¶ 106 As noted above, at the third step of the Batson analysis, the trial court evaluates the
prosecutor’s credibility to determine whether the defendant has met his burden. Snyder, 552
U.S. at 477 (quoting Hernandez, 500 U.S. at 365); Rice, 546 U.S. at 338 (citing Batson, 476
U.S. at 98). Defendant’s claim that he had a “right” to rebut the State’s proffered race-neutral
reason rests upon an erroneous reading of People v. Mitchell, 152 Ill. 2d 274, 288 (1992). In
Mitchell, our supreme court did not hold that, following the State’s proffer of a race-neutral
explanation for a peremptory challenge, a defendant is entitled to rebut the State’s argument.
Instead, Mitchell held, “After this [the State’s race-neutral explanation], defense counsel may
rebut the prosecutor’s reasons as being pretextual.” (Emphasis added.) Id. This is consistent
with Batson, which explained the three-step procedure as follows: “[First] the defendant makes
a prima facie showing; [next,] the burden shifts to the State to come forward with a neutral
explanation for challenging black jurors. *** The trial court then will have the duty to
determine if the defendant has established purposeful discrimination.” (Emphasis added.)
Batson, 476 U.S. at 97-98. Batson does not state that a trial court is always required to provide
a defendant with an opportunity to rebut the State’s argument. The trial court in this case had
asked defendant’s trial attorneys for something “more specific, that her background, her
statistics, her status is similar to Caucasian jurors who have been seated” in response to defense
counsel’s claim that Marshall gave “no answers significantly or substantially different from
white jurors” that the State had accepted. Defense counsel, however, provided nothing; he
merely repeated his argument regarding the number of peremptory challenges the State
exercised against purportedly black jurors. 8
¶ 107 Nonetheless, defendant asserts in reply that the trial court “would have benefitted from the
defense refreshing its memory” as to Marshall’s responses and those of nonminority jurors the
State accepted. Defendant’s assertion is problematic for several reasons. First, there is nothing
8
Notably, defendant’s trial attorneys failed to provide this information in their written motion for a
new trial or during argument at the hearing on defendant’s motion.
- 25 -
in the record–indeed, defendant points to nothing–that would indicate the trial court had any
lapse of memory concerning a potential juror’s response. Second, at the hearing on his motion
for a new trial, defendant’s trial attorneys made no argument and only elected to stand on their
written motion, which did not provide the names of nonminority potential jurors who gave
similar responses to Marshall but whom the State accepted. As discussed, a defendant asserting
a Batson violation has the burden of preserving the record, which must disclose the race of the
potential jurors, and any ambiguities in the record must be construed against the defendant.
Johnson, 183 Ill. 2d at 190. Finally, defendant’s argument implicitly concedes that there was
nothing new to be added in any subsequent rebuttal: defendant was going to merely recount the
potential jurors’ responses, which the trial court had already heard. Although the supreme
court has long held that “a defendant generally should be permitted to offer evidence to rebut
the prosecution’s explanations for the exercise of peremptory challenges,” where, as here, the
trial court was present at and presided over the voir dire and had the opportunity to observe the
prospective juror’s demeanor directly, it is not error to deny a defendant’s request to rebut the
State’s explanation. People v. Young, 128 Ill. 2d 1, 27-28 (1989), cert. denied, 497 U.S. 1031
(1990). Consequently, defendant’s claim fails.
¶ 108 Moreover, defendant’s citations to People v. Davis, 231 Ill. 2d 349, 363 (2008), and Mack
v. Anderson, 371 Ill. App. 3d 36, 60 (2006), do not support his claim. At the outset, Davis is
factually distinguishable. There, the trial court held a Batson hearing off the record, and
therefore, the supreme court did not know what defense counsel argued; instead, the record
reflected the trial court’s request that the State provide an explanation for its challenge to a
prospective juror “without a ‘formal’ objection by defense counsel.” Davis, 231 Ill. 2d at 366.
Here, by contrast, there was a formal objection by defense counsel and the hearing was on the
record. To the contrary, the record reveals the lack of an argument by defense counsel despite a
specific request from the trial court to provide additional detail to substantiate its Batson
objection.
¶ 109 Mack is also factually distinguishable. In Mack, defense counsel exercised a peremptory
challenge against various black members of the venire, including individuals named Stewart,
Sims, and Collins. Mack, 371 Ill. App. 3d at 39. The plaintiffs objected under Batson, and the
defendants responded that they peremptorily challenged the three jurors because: (1) each had
nodded his head when the discussion turned to the issue of damages, (2) Sims appeared
disinterested, and (3) Collins stated she had been a party to a workers’ compensation case,
which defense counsel believed made Collins a “very litigious person.” Id. at 40-41. The trial
court denied the plaintiffs’ Batson motion. Id. at 41-42. On appeal, this court noted, however,
that (1) all of the potential jurors nodded their heads in response to the discussion regarding
damages, (2) defense counsel did not make a record by providing a clear and reasonably
specific explanation of what he perceived to be Sims’s disinterested behavior, and (3) Collins
had only been involved in one lawsuit and the record was devoid of support for defense
counsel’s claim that Collins considered her participation in that lawsuit to be a positive thing.
Id. at 48-54. This court ordered a new trial. Id. at 55.
¶ 110 In this case, however, the record is sufficient to support the State’s race-neutral explanation
for its peremptory challenge of Marshall. During the Witherspoon portion of voir dire,
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Marshall repeatedly responded that she did not “believe” in the death penalty, and when the
trial court asked her whether she could sign a verdict imposing the death penalty, Marshall
could only respond, “I believe so.” Thus, although Marshall responded to the State’s question
that she would not “automatically” vote for a life sentence, the State’s explanation did not have
to “rise to the level *** of a challenge for cause”; it only had to be “clear and reasonably
specific,” containing legitimate reasons for exercising the challenge, and “related to the
particular case to be tried.” (Internal quotation marks omitted.) Batson, 476 U.S. at 97, 98 &
n.20. Here, the State’s explanation met these requirements, and since there are two permissible
views of this evidence, the trial court’s choice cannot be clearly erroneous. Anderson, 470 U.S.
at 574. As a result, defendant’s reliance upon Mack is unavailing.
¶ 111 B. Sufficiency of the Evidence Claim Regarding Rhonda King
¶ 112 Defendant next contends that the State failed to prove him guilty of murdering Rhonda
King beyond a reasonable doubt. Defendant’s contention is predicated upon two grounds: first,
that “the only evidence” of defendant’s guilt was his confession, which defendant claims
conflicted with the physical evidence; and second, that another individual, Hubert Geralds, had
previously confessed to, and was convicted of, the murder.
¶ 113 When presented with a challenge to the sufficiency of the evidence, this court must
determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ ” (Emphasis in original.) People v. De Filippo, 235 Ill. 2d 377, 384-85
(2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is not the function of this
court to retry the defendant. People v. Evans, 209 Ill. 2d 194, 209 (2004). Rather, it is for the
trier of fact to assess the credibility of the witnesses, determine the appropriate weight of the
testimony, and resolve conflicts or inconsistencies in the evidence. Id. at 211. As a result, mere
allegations that a witness was not credible will not justify reversal. Id. at 211-12; see also
People v. Manning, 182 Ill. 2d 193, 211 (1998) (rejecting a similar challenge based upon
“speculation that another person might have committed the offense”). In essence, this court
will not reverse a conviction unless the evidence is “so unreasonable, improbable or
unsatisfactory that it raises a reasonable doubt of defendant’s guilt.” Evans, 209 Ill. 2d at 209.
¶ 114 The corpus delicti of an offense is simply the commission of a crime, which (along with the
identity of the offender) is one of two propositions the State must prove beyond a reasonable
doubt. People v. Lara, 2012 IL 112370, ¶ 17. As a general rule, the corpus delicti cannot be
proven solely by a defendant’s admission, confession, or out-of-court statement alone; rather,
the State must also provide independent corroborating evidence. Id. (citing People v. Sargent,
239 Ill. 2d 166, 183 (2010)). The Lara court further explained:
“To avoid running afoul of the corpus delicti rule, the independent evidence need
only tend to show the commission of a crime. It need not be so strong that it alone
proves the commission of the charged offense beyond a reasonable doubt. If the
corroborating evidence is sufficient, it may be considered, together with the
defendant’s confession, to determine if the State has sufficiently established the corpus
delicti to support a conviction.” (Emphasis in original.) Id. ¶ 18.
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¶ 115 The Lara court further noted that it had affirmed a defendant’s sexual assault conviction
“in the absence of direct evidence of penetration.” (Emphasis in original.) Id. ¶ 33 (citing
People v. Bounds, 171 Ill. 2d 1 (1995)). In Bounds, the defendant confessed to killing the
victim after kidnapping and sexually assaulting her. Bounds, 171 Ill. 2d at 43. The defendant
argued that there was insufficient evidence of an act of intercourse because there was no
physical evidence, such as the presence of semen or trauma to the victim’s vaginal area, but the
supreme court rejected the defendant’s claim. Id. at 44. The court noted that the victim was
found naked from the waist down, and that the forensic pathologist testified that the absence of
trauma did not necessarily rule out nonconsensual intercourse. Id. The court concluded,
“While not conclusive proof that an act of penetration occurred, the undressed condition of the
body tended to show that the victim was sexually assaulted and corroborated the defendant’s
description of the attack.” Id.
¶ 116 Turning to the case before us, we hold that the evidence independent of defendant’s
confession was sufficient to support his conviction for the murder and aggravated sexual
assault of King. As in Bounds, the circumstances of how King was found suggests that she had
been sexually assaulted and stabbed (as defendant confessed), rather than simply strangled (as
Geralds confessed). The bloodstain that was two feet from her head and her bloodstained
clothes tend to corroborate both (a) stabbing rather than strangulation as the cause of death and
(b) that her body was moved, which defendant’s confession stated but Geralds’ did not.
Finally, similar to the Bounds victim, King was found naked from the waist down. Given these
facts, we hold that the State’s independent evidence “tend[ed] to show the commission of a
crime.” (Emphasis in original.) Lara, 2012 IL 112370, ¶ 18. Thus, the State proved the corpus
delicti beyond a reasonable doubt.
¶ 117 Although no knife blade was recovered, no hyoid bone (which could substantiate death by
strangulation) was found, either. Evidence at trial indicated that there was rodent and dog feces
near the body, and there were indications that the body had been partially eaten. There was also
testimony about possible animal predation, in which animals would remove the tissues–and
whatever they are attached to, such as a hyoid bone or knife blade–and scatter the attached
materials elsewhere. In any event, it is not this court’s function to retry defendant. Evans, 209
Ill. 2d at 209. It is within the province of the jury to assess the credibility of the witnesses,
determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in
the evidence. Id. at 211.
¶ 118 Finally, it is undisputed that the State tried and convicted another individual, Hubert
Geralds, for King’s murder. Geralds was sentenced to death, but the State later moved to
vacate his conviction and sentence. We find this series of events extraordinarily troubling.
Nonetheless, viewing the evidence in this case in the light most favorable to the State, as we
must (De Filippo, 235 Ill. 2d at 384-85), the State’s independent evidence tended to
corroborate defendant’s confession. We note in particular that Geralds’ statement did not
provide substantial detail regarding King’s murder, and the jury may have reasonably found it
less credible than defendant’s video-recorded confession. Geralds’ statement indicated that he
met King at the intersection of West 54th Street and South Morgan Street, and after purchasing
crack cocaine from her and agreeing to smoke crack cocaine together, they decided to walk 0.6
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miles to the abandoned building where Geralds claimed to have killed her. 9 By contrast,
defendant’s video statement indicated that he met King at the intersection of West 50th Place
and South Halsted Street, about 0.1 miles from the location where King’s body was found.
Geralds further wrote in his statement that he did not have sex with her, but he removed her
clothes to make it look like a rape. Defendant, however, freely admitted to having twice had
vaginal and anal sex with her body. Although Geralds wrote on the back of King’s photograph
that he choked her, notably absent from his statement was any sort of physical description of
King. Defendant provided a detailed description of King, which obviated the need for a
photographic identification. Finally, as noted above, the circumstances under which King was
found tended to corroborate defendant’s confession that he stabbed King and then had vaginal
and anal sex with her body.
¶ 119 Moreover, defendant’s reliance upon People v. Wright, 147 Ill. App. 3d 302 (1986), and
People v. Kent, 111 Ill. App. 3d 733 (1982), is misplaced. In Wright, the defendant was
convicted, inter alia, for rape. Wright, 147 Ill. App. 3d at 303. The defendant did not confess,
and the complaining witness’s testimony, we held, had “greater value as fiction than as
credible evidence.” Id. at 318. We further noted that the hospital physician’s examination of
the complainant revealed only skin inflammation on her back, but we found that the
“horizontal skin inflammation on [her] back could have occurred if the intercourse was
consensual. The same is true regarding the abrasions on [her] vagina discovered by the
examining physician.” Id. at 320-21. In addition, she had no other bruises or injuries (not even
on her wrist, where the defendant allegedly held her continuously) despite her claim that she
was pulled, pushed and shoved throughout various locations for over four hours. Id. at 321.
Finally, no evidence was produced indicating that she had torn or ripped clothing, again
despite her claim that she and the defendant fought on a school playground. Id. Consequently,
we reversed the defendant’s convictions. Id. at 322.
¶ 120 In Kent, the defendant was convicted of the murder of her four-month-old daughter by
feeding her alcohol. Kent, 111 Ill. App. 3d at 733. We held, however, that the evidence was
insufficient to prove the defendant’s guilt beyond a reasonable doubt. Id. at 738. We noted that
all of the expert witnesses, including the State’s, testified that sudden infant death syndrome,
Reyes syndrome, or malnutrition could have caused the physical conditions found during the
autopsy, and the decedent’s being ill with a fever the day before her death supported a theory
that an illness, rather than alcohol intoxication, was the cause of death. Id. We further noted
that the medical examiner’s office did not perform the “Mallory test,” which would have
“conclusively established whether alcoholism, rather than one of the aforementioned diseases,
was a significant contributing cause of death.” Id. at 738-39. We further noted the significant
evidence that the presence of ethanol could have been produced by decomposition because the
9
We determined this distance by querying the Google Maps website for walking directions from the
intersection where Geralds allegedly met King to the location where her body was found. This court
may take judicial notice of information on a public website even though the information was not in the
record on appeal. See People v. Clark, 406 Ill. App. 3d 622, 633-34 (2010) (reliability of “mainstream
Internet sites” such as MapQuest and Google Maps warrant judicial notice).
- 29 -
time of death was never determined and could have occurred nearly 12 hours before the
decedent was taken to the morgue. Id. at 739. Finally, the liquid Tylenol given to the child the
day before her death had more alcohol in it “than most domestic beers,” and the amount
consumed and its effect were never proved, but a defense expert testified that, based upon
experiments performed on small animals, small quantities of alcohol had little or no adverse
effects. Id.
¶ 121 Here, unlike Wright, the physical evidence did not suffer the same infirmities. As noted
above, the victim was found naked from the waist down, a pool of blood was within two feet of
her head and her jacket, which was underneath her partially skeletonized and mummified
remains, was bloodstained. In contrast to Kent, there was evidence in addition to the autopsy
report that sufficiently corroborated defendant’s video-recorded confession. We therefore
reject defendant’s reliance upon Wright and Kent, and his claim of error on this point is without
merit.
¶ 122 C. Due Process Claim With Respect to the DNA Evidence
¶ 123 Defendant’s third contention on appeal is that he was denied a fair trial on two grounds.
First, defendant argues that his trial attorneys rendered ineffective assistance when they failed
to convey to the jury “the insignificance of a [DNA] match” at only five loci with respect to the
following six victims: Nicole Townsend (discussed supra ¶¶ 41-49), Angela Shatteen (supra
¶¶ 51-56), Evandre Harris (supra ¶¶ 58-61), Cheryl Cross (supra ¶¶ 63-69), Sheryl Johnson
(supra ¶¶ 71-74), and Claudia R. (supra ¶¶ 76-87). Second, defendant also argues that the
State improperly claimed in its opening statement and rebuttal closing argument that the DNA
recovered from those victims was defendant’s. Defendant concludes that the cumulative effect
of these errors denied him a fair trial.
¶ 124 At the outset, defendant asks that we take judicial notice of the pretrial deposition of
Donald Parker from an unrelated criminal case (People v. Luna, No. 02 CR 15430) that another
division of this court ordered supplemented to the record in yet another unrelated criminal
case. People v. Wright, 2012 IL App (1st) 073106, ¶ 51. The State filed a motion to strike that
portion of defendant’s brief, and following defendant’s response, we ordered the motion taken
with the case. For the following reasons, we grant the State’s motion, and so we will disregard
those portions of defendant’s brief that improperly rely upon this unrelated deposition.
¶ 125 We note that the court in Wright ordered defendant to supplement the record with those
portions of the record in Luna that would substantiate the Wright defendant’s claims that a test
run by the Illinois State Police to find the number of apparent matches at 9 or more loci resulted
in 903 pairs out of 220,456 offender profiles. Id. The Wright court cited to People v. McKown,
226 Ill. 2d 245, 258-59 (2007), in support of its statement that it may look to outside scientific
evidence when evaluating a trial court’s ruling on scientific evidence. McKown concerned the
judicial notice of the general acceptance of the “Horizontal Gaze Nystagmus” (HGN) test.
McKown, 226 Ill. 2d at 247-48. The McKown court, however, found judicial notice
inappropriate because there was no consensus as to the general acceptance of the HGN test. Id.
at 272 (“These disparate opinions provide insight as to how HGN testing has been addressed,
but do not present the kind of unequivocal or undisputed viewpoint on the issue upon which a
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court can take judicial notice. As such, we cannot take judicial notice of the general acceptance
of HGN test results based on prior judicial decisions.”). Here, the Luna expert’s deposition was
not undisputed, so judicial notice of the substance of that testimony–but not the fact that the
expert testified–would be inappropriate. We therefore find the holding in Wright unpersuasive
and decline to follow it.
¶ 126 In addition, defendant points to nothing in the record that the trial court had this evidence
before it. Although Greer-Ritzheimer admitted on cross-examination that DNA analysis under
PCR was “more discriminating” than analysis under RFLP, there was no testimony relative to
the number of nine-or-more loci “matches” within the Illinois offender database. As a result, it
would be improper for this court to consider it. See, e.g., People v. Heaton, 266 Ill. App. 3d
469, 478 (1994) (“Clearly, however, the trial court was not faced with evidence that Dr.
Allen’s product-rule method was the subject of debate within the scientific community.
Defendant presented no such evidence, and no such evidence is properly before this court on
review.”). For this additional reason, we grant the State’s motion and decline defendant’s
invitation to take judicial notice of Parker’s deposition. We now consider the substantive
claims that defendant raises on this issue.
¶ 127 1. Ineffective assistance of counsel
¶ 128 Defendant first claims that his trial attorneys were ineffective with respect to six of his
cases because they did not sufficiently argue the impact of only a 5-loci DNA “match,” rather
than a 13-loci match. Defendant further claims that “the defense should have presented an
expert witness to demonstrate that Olson’s reliance on statistical charts was unreliable and to
explain why the frequency of the evidentiary profile was not as unique as she suggested.”
¶ 129 Both the federal and state constitutions guarantee to criminal defendants the right to the
effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To
establish a claim of ineffective assistance of counsel, a defendant must show both a deficiency
in counsel’s performance and prejudice resulting from that deficiency. Strickland v.
Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504, 526-27 (1984)
(adopting Strickland). In other words, under Strickland, in order to prevail on a claim of
ineffective assistance, defendant must show that (1) counsel’s performance fell below an
objective standard of reasonableness and (2) the deficient performance so prejudiced the
defense as to deny defendant a fair trial. People v. Nowicki, 385 Ill. App. 3d 53, 81 (2008)
(citing Strickland, 466 U.S. at 687).
¶ 130 To show counsel’s performance was objectively unreasonable, a defendant must overcome
the “strong presumption that the challenged action or inaction of counsel was the product of
sound trial strategy and not of incompetence.” People v. Coleman, 183 Ill. 2d 366, 397 (1998).
To show prejudice, a defendant must show a reasonable probability, i.e., “a probability
sufficient to undermine confidence in the outcome,” that, but for defense counsel’s deficient
performance, the result of the trial would have been different. Strickland, 466 U.S. at 694;
People v. Houston, 226 Ill. 2d 135, 144 (2007). Failure to show either deficient performance or
sufficient prejudice defeats an ineffectiveness claim. Strickland, 466 U.S. at 687. Matters of
trial strategy typically do not support a claim of ineffective assistance of counsel unless
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counsel failed to conduct any meaningful adversarial testing. People v. Patterson, 217 Ill. 2d
407, 441 (2005). Whether defendant received ineffective assistance of counsel is a mixed
question of fact and law. Strickland, 466 U.S. at 698. We thus defer to the trial court’s findings
of fact, but review de novo the ultimate legal issue of whether counsel’s omission supports an
ineffective assistance claim. People v. Davis, 353 Ill. App. 3d 790, 794 (2004).
¶ 131 Here, defendant has failed to meet either prong of Strickland. First, his trial attorneys did
not render objectively unreasonable assistance. Contrary to defendant’s assertion, his attorneys
thoroughly cross-examined Wenk with respect to the impact of a 5-loci match compared to a
13-loci match. In addition, they were successful in eliciting a concession from
Greer-Ritzheimer that the STR protocol, which was not used in the six cases at issue here, was
more discriminating than the RFLP protocol, which was used. As Greer-Ritzheimer
responded, “It [STR] can be more discriminating [than RFLP] because we can look at more
areas of the DNA.” On this point, defendant cannot overcome “the strong presumption” that
his counsel’s actions were the product of sound trial strategy and not incompetence. Coleman,
183 Ill. 2d at 397.
¶ 132 Defendant’s contention regarding his attorneys’ failure to hire an expert to challenge the
frequency calculations is similarly unavailing. Greer-Ritzheimer explained that the frequency
calculation was the mathematical product of the frequencies of the individual loci, i.e., that the
frequency calculation was based upon the “product rule.” See People v. Miles, 217 Ill. App. 3d
393, 404-05 (1991) (defining the “product rule”); David H. Kaye & George F. Sensabaugh, Jr.,
Reference Guide on DNA Evidence, Reference Manual on Scientific Evidence 485, 494 (2d ed.
2000) (“At a locus with only twenty such alleles (and most loci typically have many more),
there are 210 possible genotypes. With five such loci, the number of possible genotypes is
2105, which is more than 400 billion.”). The product rule is well accepted in Illinois. See
People v. Almighty Four Hundred, 287 Ill. App. 3d 123, 130 (1997); In re Jessica M., 399 Ill.
App. 3d 730, 745 (2010).
¶ 133 On this point, defendant’s complaints regarding the failure to argue with respect to an
alleged search of the Illinois DNA database that revealed nearly 2,000 profiles that matched at
nine loci has been discredited. As defendant’s own source explains, these database trawls seek
all possible pairs in a database (rather than one specific nine-loci grouping), which result in a
staggering number of comparisons. See David H. Kay, Trawling DNA Databases for Partial
Matches: What Is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 157 (2009). For
example, if the database for the state of Arizona contains 65,493 entries, a comparison search
would produce over 2 billion distinct pairs. Id. A search for 9 loci or more out of 13 loci (or,
715 distinct combinations of 9 items out of 13) would produce 1.5 trillion “opportunities to
find nine-locus matches” within the Arizona database. Id. Applying the same methodology to
defendant’s asserted claim of 220,456 profiles in the Illinois database would result in 24.3
billion distinct pairs and a corresponding 17.4 trillion opportunities to find 9-locus matches out
of 13-loci.10 If, as defendant claims, there were “903 pairs of profiles matching at 9 loci,” that
10
The number of comparisons is calculated as follows: (220,456 x 220,455) ÷ 2 = 24,300,313,740.
The number of combinations of 9-loci matches out of 13-loci is: (13!) ÷ (9! x 4!) = 715. The number of
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probability would be vanishingly small when compared with 17.4 trillion possible pairs, and
trial counsel’s argument as to this point would not have been of even arguable merit. Defense
counsel is not ineffective for failing to make a fruitless argument. People v. Edwards, 195 Ill.
2d 142, 165 (2001). Therefore, defendant’s claim does not meet the first prong of Strickland.
¶ 134 Moreover, even assuming, arguendo, that his trial counsel’s performance was objectively
unreasonable, defendant’s claim fails the prejudice prong. As discussed above, in each of the
six cases that defendant complains of this error, defendant provided a video-recorded
confession that was amply corroborated by independent evidence. For the sake of brevity, we
will not repeat the extensive details in defendant’s video statement and the testimony regarding
the crime scenes and victims. Based upon the evidence at trial regarding those six victims, we
cannot hold that there is a reasonable probability, i.e., “a probability sufficient to undermine
confidence in the outcome,” that, but for defense counsel’s alleged deficient performance, the
result of defendant’s trial would have been different. Strickland, 466 U.S. at 694; Houston, 226
Ill. 2d at 144. Defendant therefore cannot establish prejudice under Strickland, and his claim is
without merit.
¶ 135 2. The State’s comments on the DNA evidence
¶ 136 Defendant also argues that the State’s comments improperly bolstered the significance of
the DNA analysis when the State argued in its opening statement and its rebuttal closing
argument that the DNA from the six victims was defendant’s DNA. Defendant argues that the
evidence from the five-loci comparison was merely that defendant could not be eliminated as
the donor of the semen found on or about the victims. Defendant concludes that these
comments denied him a fair trial.
¶ 137 Defendant’s claims regarding the State’s opening statements are without merit. The
statements defendant complains of here on appeal were never objected to, nor were these
complaints included in defendant’s extensive amended motion for a new trial. Accordingly,
they are forfeited. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial objection and
a written post-trial motion raising the issue are required for alleged errors that could have been
raised during trial.” (Emphases in original.)); People v. Brown, 185 Ill. 2d 229, 252 (1998)
(holding that a challenge to the State’s opening statement “must now be considered waived”
due to defense counsel’s failure to object).
¶ 138 Moreover, forfeiture aside, defendant’s contention must be rejected. The purpose of an
opening statement is to apprise the jury of what each party expects the evidence to prove, and it
may include a discussion of the expected evidence and reasonable inferences therefrom.
People v. Kliner, 185 Ill. 2d 81, 127 (1998). While it is true that the State may not claim
anything in its opening statement that it cannot or does not intend to prove, reversible error
only occurs (1) if the State’s opening statement is attributable to the “deliberate misconduct of
the prosecutor” and also (2) results in “substantial prejudice to the defendant.” Id. Here,
“opportunities” to find a 9-locus match within 13-loci is 24.3 billion multiplied by 715, which equals
17,374,724,324,100. See generally Harold J. Larson, Introduction to Probability Theory and Statistical
Inference 40-50 (2d ed. 1974).
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defendant cannot meet either prong of this test. Defendant points to nothing in the record to
support any claim that the challenged statements were the result of “deliberate” prosecutorial
misconduct, and we can find nothing. Second, as stated below, defendant did not suffer
substantial prejudice such that, absent the remarks, his verdict would have been different.11 For
this reason, defendant’s argument with respect to opening statements is unavailing on this
additional ground. We now consider the challenge to the closing arguments.
¶ 139 The State is given considerable latitude in making closing arguments, and it may respond
to comments that clearly invite a response. People v. Hall, 194 Ill. 2d 305, 346 (2000). “A
prosecutor may argue the evidence presented, or reasonable inferences therefrom, even if the
inference is unfavorable to the defendant. People v. Tolliver, 347 Ill. App. 3d 203, 224-25
(2004) (citing People v. Hudson, 157 Ill. 2d 401, 441 (1993)). The State may also respond to
comments by the defense that clearly invite a response. People v. Armstrong, 183 Ill. 2d 130,
146 (1998). Furthermore, we must review the arguments of both the State and the defense in
their entirety, with the challenged portions placed in their proper context. People v. Cisewski,
118 Ill. 2d 163, 175-76 (1987). A significant factor in determining the impact of an improper
comment on a jury verdict is whether “the comments were brief and isolated in the context of
lengthy closing arguments.” People v. Runge, 234 Ill. 2d 68, 142 (2009). In addition, we must
presume, absent a showing to the contrary, that the jury followed the trial judge’s instructions
in reaching a verdict. People v. Simms, 192 Ill. 2d 348, 373 (2000). Finally, even if a
prosecutor’s closing remarks are improper, “they do not constitute reversible error unless they
result in substantial prejudice to the defendant such that absent those remarks the verdict would
have been different.” People v. Hudson, 157 Ill. 2d 401, 441 (1993). Due to an apparent
conflict between two supreme court cases, it is unclear what the proper standard of review is
when reviewing improper closing arguments. Compare People v. Wheeler, 226 Ill. 2d 92, 121
(2007) (de novo), with People v. Blue, 189 Ill. 2d 99, 128 (2000) (abuse of discretion). We
need not resolve this apparent conflict, however: defendant’s claim fails under either standard.
¶ 140 Here, the State merely parroted Wenk’s testimony that the DNA “matche[d]” defendant. It
is not error to recount witness testimony. See Tolliver, 347 Ill. App. 3d at 224-25. In addition,
defense counsel challenged the DNA evidence in her closing argument, characterizing it as
“suspect” because the victims were all prostitutes, but only one male DNA profile was found.
The State was therefore entitled to respond to defendant’s closing argument. Armstrong, 183
Ill. 2d at 146. Moreover, even assuming, arguendo, that the State’s arguments were improper,
defendant did not suffer such substantial prejudice that, absent the comments, the verdict
would have been different. As discussed regarding the ineffective assistance of counsel claim
above, defendant’s video-recorded confessions were sufficiently corroborated by the
independent evidence that the State presented regarding the six victims.
11
In a footnote in his reply brief, defendant asserts that the failure to properly preserve this claim is
due to ineffective assistance of counsel. Setting aside whether this assertion sufficiently complies with
Supreme Court Rule 341 (Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)), it must be rejected for failure to
meet the second prong of Strickland. See supra ¶ 135.
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¶ 141 In addition, the jury was both admonished (immediately before both opening statements
and closing arguments) and instructed (immediately following closing arguments) that neither
opening statements nor closing arguments were evidence, and to disregard any statement or
argument made by the attorneys not based on the evidence. Defendant presents nothing to
counter the presumption that the jury followed the trial judge’s instructions in reaching a
verdict. Simms, 192 Ill. 2d at 373. Overall, we cannot hold that, absent the challenged remarks,
the verdict would have been different. Hence, even if those remarks were improper, they would
not constitute reversible error. Hudson, 157 Ill. 2d at 441. Accordingly, defendant’s claim is
meritless.
¶ 142 Finally, our decision is unaffected by People v. Linscott, 142 Ill. 2d 22 (1991), and People
v. Sutherland, 155 Ill. 2d 1 (1992), on which defendant relies. In Linscott, the evidence at trial
was that the defendant’s hairs were “consistent” with hairs found at the scene of the crime.
Linscott, 142 Ill. 2d at 29. Notably, the State’s witness stated that he could not determine
whose head the hair found at the crime scene came from; he only testified that the hair was
consistent with the defendant’s hair. Id. In addition, three witnesses testified that they could not
conclusively identify the hairs as coming from the defendant. Id. at 30. Nonetheless, the State
repeatedly claimed during its closing argument that the defendant’s hair was found in the
victim’s apartment and on her body. Id. The supreme court held that, because there was no
evidence to support these statements, the prosecution’s argument was improper. Id.
¶ 143 In Sutherland, the State similarly presented forensic witness testimony that 28 gold fibers
in the victim’s clothing “ ‘could have originated’ ” from the defendant’s auto carpet, but the
witness could not state that the fibers originated from the defendant’s auto carpet “to the
exclusion of all other auto carpets,” and that one remaining gold fiber found on the victim’s
clothes “could have originated” from the upholstery of the defendant’s car. Sutherland, 155 Ill.
2d at 10. The State, however, argued in its closing argument that the fibers on the victim’s
clothing “came from” the defendant’s car. Id. at 23. In addition, the forensic scientist testified
that three polyester fibers found on the front passenger seat and floor of the defendant’s car
“could have originated” from the victim’s shorts. Id. at 10. The State, however, argued on three
separate occasions during its closing argument that the fibers from the victim’s shorts were
“found” in the passenger side of the defendant’s car. Id. at 23. The supreme court found that,
although the comments did not warrant a new trial, the State’s “overstatement” of the
fiber-comparison evidence was improper. Id. at 25.
¶ 144 By contrast, here the State simply repeated what Wenk had stated, that the DNA recovered
from the various victims’ swabs “matche[d]” the defendant’s. Also unlike the prosecutor in
Sutherland, the State’s comments were isolated, comprising less than one page of the 26-page
transcript of the State’s rebuttal closing argument. Since these comments were brief and
isolated within a lengthy closing argument, this is a significant factor mitigating against any
improper impact on the jury’s verdict. See Runge, 234 Ill. 2d at 142. As a result, defendant’s
claim on this point fails.
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¶ 145 D. Crawford Claim
¶ 146 Defendant’s final contention on appeal is that he was denied his sixth amendment right of
confrontation because (1) the contents of the autopsy report as to Nicole Townsend’s death
were testified to by a substitute medical examiner and not the medical examiner who prepared
the report, and (2) the autopsy report was admitted for its substantive proof as to Townsend’s
death.
¶ 147 The sixth amendment to the United States Constitution, applicable to the states via the
fourteenth amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right *** to be confronted with the witnesses against him.” U.S. Const., amends. VI, XIV;
see also Ill. Const. 1970, art. I, § 8; Crawford v. Washington, 541 U.S. 36, 54 (2004); Pointer v.
Texas, 380 U.S. 400 (1965) (holding that the confrontation clause is applicable to the states via
the fourteenth amendment). In Crawford, the Supreme Court held that, under the confrontation
clause, the testimonial hearsay statements of a witness who is unavailable at trial may not be
admitted against a criminal defendant unless the defendant had a prior opportunity for
cross-examination. People v. Patterson, 217 Ill. 2d 407, 423 (2005) (citing Crawford, 541 U.S.
at 68). To resolve a claim under Crawford requires answers to these questions: “(1) Was the
out-of-court statement hearsay because it was offered by for the truth of the matters asserted
therein? (2) If hearsay, was the statement admissible under an exception to the hearsay rule?
(3) If admissible hearsay, was the statement testimonial in nature? and (4) If testimonial, was
admission of the statement reversible error?” People v. Leach, 2012 IL 111534, ¶ 63. Whether
a defendant’s confrontation clause rights were violated presents a question of law; accordingly,
our review is de novo. Id. ¶ 64 (citing People v. Lovejoy, 235 Ill. 2d 97, 141-42 (2009)).
Finally, “Crawford violations are subject to harmless-error analysis.” Patterson, 217 Ill. 2d at
428.
¶ 148 In Leach, the defendant was convicted of the first degree murder in the strangling death of
his wife. Leach, 2012 IL 111534, ¶¶ 1-3. The autopsy report on the victim was admitted into
evidence through the expert testimony of a medical examiner who had not performed the
autopsy but had reviewed the autopsy report in forming her opinion on the cause of death. Id.
¶ 1. The appellate court affirmed the conviction, and defendant further appealed to the supreme
court. Id.
¶ 149 The supreme court addressed whether the medical examiner’s testimony and the autopsy
report she relied upon violated the defendant’s confrontation clause rights. Id. ¶ 50. The Leach
court stated that, although the Crawford Court “merely noted *** that business records will
rarely implicate the confrontation clause because they are prepared in the routine course of the
operation of the business activity or public office or agency, rather than for the purpose of
admission against a criminal defendant,” “[t]his does not mean *** that a business record or
public record can never be testimonial.” Id. ¶ 81.
¶ 150 The Leach court then undertook an extensive examination of numerous decisions from the
United States Supreme Court on this issue, including Crawford, Davis v. Washington, 547 U.S.
813, 822 (2006), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Michigan v. Bryant,
562 U.S. ___, 131 S. Ct. 1143 (2011), Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct.
2705 (2011), and Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). Leach, 2012 IL
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111534, ¶¶ 77-135. Noting at one point the need to provide a “scorecard” to reconcile the
various plurality opinions, partial concurrences, and partial dissents (id. ¶ 105), our supreme
court expressed hope that the “split of opinion and *** confusion *** may eventually be
resolved by the United States Supreme Court” (id. ¶ 136). Until that time, the Leach court held
that “under the objective test set out by the plurality in Williams [i.e., whether the primary
purpose was to accuse a targeted individual of criminal conduct], under the test adopted in
Davis [whether the primary purpose was to provide evidence in a criminal trial], and under
Justice Thomas’s ‘formality and solemnity’ rule [finding affidavits, depositions, confessions,
and prior testimony subject to Crawford], autopsy reports prepared by a medical examiner’s
office in the normal course of its duties are nontestimonial,” even those reports that are
prepared by a medical examiner who is “aware that police suspect homicide and that a specific
individual might be responsible.” Id. ¶ 136.
¶ 151 In our view, the holding in Leach controls this issue. Here, as in Leach, Townsend’s
autopsy report was prepared by Lifschultz, who had retired out of the country by the time of
defendant’s trial, and Jones, the chief medical examiner, testified as to the contents of the
report–which was admitted as evidence at trial–and relied upon that report in formulating her
opinion as to Townsend’s manner of death. The testimony at trial was that the report was
prepared in the normal course of business and not for the sole purpose of litigation. See id.
¶ 130. Unlike the forensic report in Melendez-Diaz but similar to the autopsy report in Leach,
the autopsy report in this case was not certified or sworn.12 See id. ¶ 131. Thus, the autopsy
report here lacks the “formality and solemnity of an affidavit, deposition, or prior sworn
testimony” and does not trigger Crawford. Id.; see also Michigan, 562 U.S. at ___, 131 S. Ct. at
1167 (Thomas, J., concurring in the judgment). As the Leach court noted, under state law, the
coroner must undertake a preliminary investigation into the circumstances of a decedent’s
death when certain conditions are present, including “ ‘sudden or violent death, whether
apparently suicidal, homicidal or accidental.’ ” Leach, 2012 IL 111534, ¶ 126 (quoting 55
ILCS 5/3-3013(a) (West 2010)). As such, the primary purpose for the preparation of the
autopsy report in this case was to determine the cause of death, and not to accuse a targeted
individual of criminal conduct nor to provide evidence at a criminal trial. Since the evidence
does not meet the tests set forth in Williams and Davis, it does not trigger the protections of
Crawford. Therefore, the trial court did not err in allowing Dr. Jones to testify as to the
contents of the autopsy report (even though another medical examiner had prepared it), nor in
admitting the autopsy report as evidence.
¶ 152 Although defendant argues that Leach is distinguishable because Lifschultz’s
determination was suspended for about two months, during which time Lifschultz had
discussions with police detectives, we disagree with defendant’s characterization that the
police played a “direct role” in Lifschultz’s medical conclusion. Our reading of the evidence is
that Lifschultz suspended his determination of the cause of what appeared to be a very
suspicious death while he gathered more information, including from police detectives
investigating a series of deaths under very similar circumstances as Townsend’s. The state law
12
We note, however, that a certified copy of the autopsy report was admitted as evidence.
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mandating an investigation under these circumstances cannot occur in a vacuum or within the
confines of the medical examiner’s office. Lifschultz’s investigation necessitated additional
time for a discussion with police officers. There is no evidence in the record that the police fed
Lifschultz (or Jones) information that defendant murdered Townsend. As defendant was not
targeted in this report, defendant’s contention fails.
¶ 153 Moreover, even assuming, arguendo, that the trial court erred, any error was harmless
beyond a reasonable doubt, given the evidence at trial. Defendant’s video confession provided
exact details of: (i) where Townsend’s body was found, (ii) the fact that he wiped his semen on
“material” next to her body (the DNA analysis on the pantyhose nearby confirmed a “match[ ]”
with defendant), (iii) the fact that he threw something on top of her body (she was found with a
blanket covering her), and (iv) a sexual assault (which was strongly suggested by the body’s
appearance, with her pants off of one leg and her bra pushed above her breasts). Therefore, on
this additional basis, defendant’s final contention of error is meritless.
¶ 154 III. CONCLUSION
¶ 155 We hold that remand for a Batson hearing is unnecessary because the record supports the
State’s race-neutral explanation for its peremptory challenge, and defendant did not provide
support for his claim either when the trial court requested it or in his posttrial motion. In
addition, the evidence of defendant’s guilt as to the murder of Rhonda King was sufficient,
where the independent evidence tended to corroborate his video-recorded confession. Third,
defendant was not denied a fair trial due to his trial attorneys’ failure to argue regarding a DNA
match at only five loci or due to the State’s closing remarks because neither prong under
Strickland is met and the absence of the State’s remarks would not have changed the verdict.
Finally, pursuant to the holding in Leach, defendant was not denied his confrontation rights
when the medical examiner who performed the autopsy did not testify but the report he
prepared was recounted to the jury by another medical examiner. Accordingly, we affirm the
judgment of the circuit court of Cook County.
¶ 156 Affirmed.
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People v. Crawford
Court: Appellate Court of Illinois
Date filed: 2014-02-13
Citations: 2013 IL App (1st) 100310
Copy CitationsCombined Opinion