NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
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anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance
sheets following final action by the Court.
Docket No. 78011--Agenda 4--March 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOSEPH MILLER,
Appellant.
Opinion filed August 2, 1996.
JUSTICE HEIPLE delivered the opinion of the court:
Following a jury trial in the circuit court of Peoria County,
the defendant, Joseph Miller, was convicted of six counts of first
degree murder. 720 ILCS 5/9--1(a) (West 1992). The same jury found
the defendant eligible for the death penalty on the basis of the
defendant's having killed more than one individual. 720 ILCS 5/9--
1(b)(3) (West 1992). The jury determined that there were no
mitigating factors sufficient to preclude imposition of a sentence
of death. The trial court sentenced defendant to death. The
defendant's sentence has been stayed (134 Ill. 2d R. 609(a))
pending direct appeal to this court (Ill. Const. 1970, art. VI,
§4(b); 134 Ill. 2d R. 603). For the reasons which follow, we affirm
the defendant's conviction and sentence of death.
On appeal to this court, defendant argues that: (1) the trial
court erred in failing to suppress statements he made to the
police; (2) the trial court erred in admitting DNA evidence; (3)
evidence that he committed other crimes should not have been
admitted; (4) the trial court improperly allowed hearsay testimony
regarding his possession of a car; (5) a detective should not have
been allowed to testify about women's clothing recovered from
defendant's apartment; (6) the prosecutor made improper comments
during the closing argument at the second stage of the capital
sentencing hearing; (7) the jury instructions used at the capital
sentencing hearing did not reflect the law; and (8) the death
penalty is unconstitutional.
BACKGROUND
In September of 1993, the nude bodies of three women, Marcia
Logue, Helen Dorrance and Sandra Csesznegi, were found in rural
Peoria County. The body of Marcia Logue was found in a drainage
ditch in the 500 block of South Cameron Lane on September 18, with
a pillow case stuck in her mouth. The body of Helen Dorrance was
found 50 feet from Logue's body on the same date. The body of
Sandra Csesznegi was found in a drainage ditch near Christ Church
Road on September 26. Csesznegi's body was in a state of advanced
decomposition. All three women were known prostitutes in the Peoria
area.
The defendant was charged with six counts of first degree
murder for the murders of Logue, Dorrance and Csesznegi. The trial
was moved to Sangamon County due to extensive pretrial publicity.
At trial the following evidence was elicited. Marcia Logue had
last been seen alive on September 15, 1993, entering a maroon-
colored car which was driven by a white male in his forties or
fifties. Helen Dorrance was last seen alive on September 11, 1993.
Sandra Csesznegi was last seen alive on September 15, 1993.
On September 29, 1993, at approximately 11:30 p.m., Detectives
Rabe and Pyatt of the Peoria police department and Detective
Hawkins of the Peoria County sheriff's department went to the
defendant's Peoria apartment to question him about crimes in the
Peoria area. The defendant allowed the detectives into his
apartment and consented to a search of his apartment. He then
voluntarily accompanied the detectives to the Peoria County
sheriff's department. During the ride to the sheriff's department
the defendant asked the detectives what they wanted to talk to him
about. The detectives told the defendant that they would discuss
the matter when they arrived at the sheriff's department. The
defendant then stated that he knew what all this was about; that it
was "about the prostitutes in the newspaper." At that time,
defendant was read Miranda warnings.
The defendant was questioned at the sheriff's department,
where he denied any knowledge of the murders of the three women.
During the questioning the defendant identified as his a knife
obtained during a search of a maroon Oldsmobile owned by Bernice
Faggott. The defendant stated that the police would not find any
blood on the knife. When asked to explain this statement, the
defendant replied that he thought Detective Pyatt might have
believed there was blood on the knife because of the missing women
and said that he had anticipated the police would be calling. The
defendant claimed that the knife fell out of his pocket when he was
a passenger in Faggott's car.
At about 8:30 a.m. the next morning, the defendant agreed to
accompany Detectives Rabe and Hawkins to Cameron Lane. Detective
Rabe testified that the group first stopped at the defendant's
apartment so that the defendant could retrieve medication.
Detective Rabe stated that during the drive, he and Detective
Hawkins were speaking about the three bodies. When the detectives
reached Cameron Lane, Detective Rabe asked the defendant if the
bodies had been dumped at the same time. The defendant replied that
the bodies had been dumped at different times and stated that the
bodies were placed in a manner so that they could not be found. The
defendant then directed the detectives to Christ Church Road near
where Csesznegi's body was discovered. The defendant did not make
any reference to the precise area where Csesznegi's body was found,
but did state that the area stuck in his mind for some reason.
Throughout the drive the defendant denied having killed the three
women.
The search of defendant's apartment revealed two robes, female
underwear, a broken mini-blind rod and a brown and white cloth
covered with what appeared to be dried blood. The police also
recovered pillows and a mattress from defendant's bedroom. These
items had reddish-brown stains. Blood splatters were also found on
a wall of the bedroom and the bed's headboard. A later search
revealed a glove, a throw rug and more women's underwear. During
the second search, the police collected hair and fibers.
Crystal Taylor, a deputy United States marshall, testified
about a conversation she had with defendant at defendant's request
on February 1, 1994. Taylor testified that when she and defendant
were discussing the three women defendant stated, "[F]rom the
strangulation I am convinced I did these three." The defendant
indicated to her that he was afraid to go into his bedroom because
bad things had happened there. The defendant also spoke to Taylor
about the three women and looking for dump sites off a road.
Dr. Mary Jumbelic, a forensic pathologist for Peoria County,
testified about the autopsies that she conducted on the bodies.
Logue's body revealed extensive injuries, including stab wounds and
ligature marks on her neck, left wrist and right ankle. Logue had
been the victim of a sexual assault. Other marks on Logue's body
were consistent with those that would be inflicted by the mini-
blind rod recovered from the apartment. Logue died as a result of
multiple stab wounds, blunt trauma, gagging of the mouth and
strangulation. Dorrance had been dead longer than Logue and was
also the victim of a sexual assault. She died as a result of
asphyxia, consistent with strangulation. Jumbelic believed that
Csesznegi had been dead for more than a week when she was found
because of the advanced decomposition of her body. The injuries to
Csesznegi's body showed that she too had been strangled.
Other testimony revealed that a maroon Oldsmobile registered
to Bernice Faggott was reported missing on September 4, 1993. It
was recovered in Peoria a few blocks from the defendant's apartment
on September 22, 1993. When the car was searched, the police
discovered a rug in its trunk, a knife wedged between the front
seats, and dark stains on the back seat. Dennis Hall testified that
the defendant knew Faggott as early as July of 1993. Samuel Voight,
who owned property near Faggott's home, testified that he saw
defendant enter Faggott's screened-in porch on August 28, 1993.
James McGovern, a security guard at defendant's apartment
complex, testified that he saw the defendant driving a maroon
Oldsmobile on two occasions in early September of 1993. The
defendant told McGovern that the car belonged to a friend. Mary
Decher and Daniel Mayes testified that they rode in a maroon car
with the defendant during the last week of August 1993. The
defendant told Decher and Mayes that he was transporting the car to
another location for a dealership. When Mayes questioned the
defendant about an insurance card he found in the glove compartment
with the name "Bernice" on it, the defendant stated that a friend
had lent him the car while the friend was on vacation. Mayes
testified that, on another occasion, the defendant told him that
two guys had stolen the car and defendant needed to get rid of it
by setting it on fire. The defendant told Mayes that he had wiped
any fingerprints from the car and left it on a street in Peoria.
When the defendant went to get the car the next day, it was
missing. Mayes and Decher testified that a rug, similar to the one
found by the police in the trunk of the maroon Oldsmobile, had been
stolen off of a chain link fence at their home around the middle of
September.
Glenn Schubert, a forensic scientist, testified regarding the
hair and fibers recovered from the defendant's apartment, Logue's
body and the maroon car. Schubert stated that debris from the
pillow case found in Logue's mouth was consistent with the
defendant's pubic hair. Other fibers on the pillow case matched
fibers taken from a throw rug located in the defendant's apartment
and fibers collected from the defendant's living-room floor.
Several fibers taken from Logue's body also matched fibers
collected from the defendant's living-room floor. Hairs recovered
from the maroon Oldsmobile were consistent with the defendant's
hair and several acrylic-like fibers from the car were consistent
with the fibers found on defendant's floor.
The State's DNA expert, William Frank, testified that seminal
fluid recovered from Logue matched that of defendant. Such a match
would occur in 7% of the Caucasian population. Blood recovered from
underneath Logue's fingernails also matched that of defendant and
such a match could be expected in 1 in 465 million Caucasians.
Bloodstains from a magazine, mattress, pillow and towel found in
the defendant's apartment and from the seat of Faggott's car
matched that of Logue. Such matches would occur in 1 in 1.1
trillion Caucasians. Further, blood found on a napkin and a pillow
taken from the defendant's apartment matched Dorrance's DNA
profile, with such a match occurring in 1 in 466 billion
Caucasians. Another bloodstain on one of defendant's pillows
matched the DNA profile of Csesznegi with such a match occurring in
1 in 1 billion Caucasians. On cross-examination, Frank conceded
that there were only five billion people in the world.
The defendant did not testify on his own behalf. The parties
stipulated that several dark-colored cars had been seen near
Cameron Lane on September 16 and 17, 1993. In addition, a resident
who lived in the area where the bodies were found saw a pickup
truck with a construction rack and lettering on the side. On
several occasions, the resident saw the truck stop and its occupant
look around.
The jury returned a verdict of guilty on all six counts of
first degree murder. The same jury found the defendant eligible for
the death penalty, as defendant was over the age of 18 and had been
convicted of murdering at least two individuals. At the second
stage of the sentencing hearing, the State presented as aggravation
evidence the defendant's convictions for two murders in 1977 and
one armed robbery in 1978. The defendant was sentenced to terms of
15 to 30 years for each of those murders and a term of four to
eight years for the armed robbery. Jack Thurmon, a Department of
Corrections' parole agent, testified that the defendant was
released from prison in April of 1993 to a mission in Cook County.
Thurmon later learned that defendant had travelled to Peoria by
September 1993.
The defendant presented the testimony of two psychiatrists as
mitigation evidence. Dr. Sohee Lee testified that defendant
suffered from disassociative amnesia and an antisocial personality.
Dr. Lee linked the disassociative amnesia to the emotional,
physical and sexual abuse defendant received during his childhood.
Dr. Lee commented that the defendant had been in an orphanage until
he was six and was later sexually abused by his mother. Dr. Lee did
state that the defendant was happy in September 1993, as one of his
friends had sent him a bus ticket to travel to Peoria and his
friend and other church members had helped him establish his life
in Peoria. Dr. Robert Chapman testified that defendant suffered
from disassociative disorder with multiple personality disorder
type.
At the conclusion of the second stage of the sentencing
hearing, the jury found no mitigating circumstances sufficient to
preclude imposition of the death penalty. The defendant was
sentenced to death for the three murders. Defendant's post-trial
and post-sentencing motions were denied.
DISCUSSION
Trial
Suppression of Evidence
The defendant alleges that the trial court erred in denying a
motion to suppress various statements he made to the police on
September 29 and 30, 1993. The defendant specifically points to the
statements he made (1) in the police car on the way to the
sheriff's department and at Cameron Lane and Christ Church Road;
(2) about the knife found in Faggott's car; (3) about being in
Faggott's car; and (4) about a photograph of a mattress with blood
on it. The defendant claims that the statements were involuntary
and the result of coercion and that he was not given proper Miranda
warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d
694, 86 S. Ct. 1602 (1966). At a pretrial hearing the trial court
concluded that there was no evidence of the involuntariness, either
mental or physical, of the defendant's statements.
In support of his contentions, the defendant highlights the
events occurring on September 29 and 30. At approximately 11:30
p.m. on September 29, three detectives arrived at the defendant's
door while several other police officers remained outside the
apartment building. The defendant allowed the detectives inside and
he consented to a search of his apartment. The defendant agreed to
accompany the detectives to the sheriff's department. The
detectives did not tell the defendant why they wanted to speak with
him. The defendant suggested that it was about the missing
prostitutes. At this juncture, defendant was read Miranda warnings.
At the sheriff's department the defendant was placed in an
interview room and questioned periodically through the early
morning hours of September 30. At about 8:30 a.m., the defendant
was taken on a drive to Cameron Lane. The defendant was returned to
the jail at approximately 11 a.m. He was left alone until 5 p.m.
when he was questioned and taken on another car ride. After
defendant was returned to the sheriff's department, he was
questioned again. At 7:30 p.m. on September 30 the defendant was
read a second set of Miranda warnings.
A trial court's ruling on a motion to suppress will not be
disturbed unless that ruling is manifestly erroneous (People v.
Garcia, 97 Ill. 2d 58, 74 (1983)) and a trial court's ruling that
a statement is voluntary will not be disturbed unless that ruling
is against the manifest weight of the evidence (People v. Redd, 135
Ill. 2d 252, 292-93 (1990)). "Whether a statement is voluntarily
given depends upon the totality of the circumstances. The test of
voluntariness is whether the statement was made freely, voluntarily
and without compulsion or inducement of any sort, or whether the
defendant's will was overcome at the time he confessed." People v.
Clark, 114 Ill. 2d 450, 457 (1986).
In the instant case, the totality of the circumstances shows
that defendant's statements were voluntary. The defendant
voluntarily accompanied the detectives to the sheriff's department.
The detectives did not use force at defendant's apartment and
although there were other officers outside the apartment, these
officers could not be seen from inside defendant's apartment.
Defendant was the one who initially stated that the police were
questioning him about the prostitutes. Although defendant was
questioned for some period of time, the questioning was not
relentless. The detectives described the tone of the questioning as
cordial. There were at least 10 breaks and the defendant was given
something to drink and the opportunity to use the restroom. The
defendant was given food to eat, at which time he was left alone
for approximately one-half hour. The defendant was never
handcuffed. In addition, the defendant agreed to accompany the
detectives to Cameron Lane and he directed the detectives to Christ
Church Road. Before driving to Cameron Lane, the detectives took
defendant to his apartment to retrieve medication. Although the
defendant now claims that he was not allowed to sleep before 11
a.m. on September 30, the defendant never indicated to the
detectives that he wished to sleep, to stop speaking with them, or
to consult with an attorney. Nothing in the record reveals that the
defendant's statements were procured through coercion. Thus, the
trial court's conclusion that the defendant's statements were
voluntary is not against the manifest weight of the evidence.
The defendant also claims that the statements he made in the
car at Cameron Lane and his actions in directing the detectives to
Christ Church Road should have been suppressed because he had not
been given adequate and timely Miranda warnings. Defendant states
that the car trip occurred at approximately 8:30 a.m. on September
30 and that the last time he had been read Miranda warnings was the
prior day when he was driven from his apartment to the sheriff's
department after 11:30 p.m.
This court has recently stated that "fresh Miranda warnings
are not required after the passage of several hours." People v.
Garcia, 165 Ill. 2d 409, 425 (1995). A new set of Miranda warnings
are required "only in those situations where a substantial
probability exists that warnings given at a previous interrogation
are so stale and remote that a substantial possibility exists that
the suspect was unaware of his or her constitutional rights at the
time subsequent interrogation occurs." Garcia, 165 Ill. 2d at 426.
The totality of the circumstances should be considered in
determining whether a defendant understands his constitutional
rights in post-Miranda questioning. Garcia, 165 Ill. 2d at 426.
The totality of the instant circumstances shows that the
defendant was aware of his constitutional rights during the drive
around rural Peoria County. Although it had been several hours
since the defendant had been read Miranda warnings, the detectives
and the defendant had been discussing the instant murders and the
disappearance of Faggott throughout this time. The breaks that were
taken were not for such long periods of time that the warnings
became stale and the questioning always resumed. The defendant
agreed to accompany the detectives on the car trip and was the one
who directed the detectives to Christ Church Road. Additionally,
the defendant had prior experience with the criminal justice
system, further evidencing his knowledge of the right to remain
silent and to an attorney. See Garcia, 165 Ill. 2d at 426. Thus,
the Miranda warnings given to defendant on September 29 were not so
stale and remote that the defendant was unaware of his rights. The
trial court's decision to deny the motion to suppress was not
manifestly erroneous.
Admission of DNA Evidence
Defendant argues that the trial court erred in qualifying
Frank to testify about the general acceptance and reliability of
deoxyribonucleic acid (DNA) evidence and in admitting the DNA
evidence at his trial. The trial court held a pretrial hearing on
the State's motion to admit DNA evidence. Frank was the only
individual to testify at the hearing on behalf of the State. The
defendant chose not to present any witnesses or evidence,
notwithstanding that he had been provided the time and funds to
secure an expert. After hearing testimony on Frank's background and
training, the trial court qualified him as an expert. Frank then
testified regarding the Restriction Fragment Length Polymorphism
(RFLP) method of testing DNA and the manner in which DNA matches
are calculated, including the manner in which such calculations are
made at the Illinois State Police Bureau of Forensic Sciences,
where Frank is employed. Frank testified that the techniques used
by his laboratory in calculating DNA matches and their frequency in
a population are similar to those used by the FBI. After hearing
Frank's testimony, the trial court held that based on prior
precedent in Illinois, the DNA procedures outlined in Frank's
testimony were generally accepted in the particular scientific
field and such testimony and DNA calculations would be allowed at
defendant's trial.
Addressing the merits of defendant's arguments necessitates a
brief account of DNA profiling. DNA is the genetic code which is
found in the cells of the human body. A DNA molecule is composed of
over three billion "base pairs" of four different chemicals:
adenine, thymine, cytosine and guanine. The particular pattern of
these base pairs dictates an individual's genetic characteristics.
Most of a DNA molecule is the same from person to person. DNA
profiling focuses on those parts of the DNA molecule where there is
a significant variation of a base pair pattern. The areas of
significant variation are referred to as "polymorphic," and base
pair patterns in polymorphic areas are called "alleles." There are
approximately 3 million distinguishable polymorphic sites between
individuals. Although an examination of all of these polymorphic
sites is not currently feasible, an examination of a small number
of polymorphic sites can establish a DNA profile which can be
compared to that from another DNA sample.
Restriction Fragment Length Polymorphism is a six-step process
which allows an analyst to physically see the results of a DNA
profile in the form of bands. Since the length of polymorphic DNA
fragments differs between individuals, individuals also tend to
have different positioning of their bands on a DNA print, called an
autoradiograph or autorad. An analyst makes a visual comparison of
DNA band patterns to determine whether known and unknown DNA
samples came from the same source, whether the samples did not come
from the same source or whether the comparison was inconclusive. If
an unknown DNA sample has not been excluded from a comparison, a
computerized measurement program is used to compare the lengths of
the DNA fragments. If the DNA band patterns fall within a certain
range, the samples are declared a match.
For a match to be meaningful, a statistical analysis is
required. The statistical analysis determines the frequency in
which a match would occur in a database population. In this case,
Frank used the fixed bin method of determining the frequency of an
occurrence. The process of binning is a way of counting or grouping
bands and determining the frequency of the bands. The Hardy-
Weinberg Equilibrium is used to determine the frequency of a
particular band combination. Stated simplistically, the frequency
of one band is multiplied by the frequency of a second, and so on.
The product from this calculation is then multiplied by two to
account for an individual inheriting one strand of DNA from his
mother and one strand from his father. This result constitutes the
statistical frequency of a match within a certain population. This
process of binning and determining the frequency is also known as
the product rule.
We turn first to defendant's allegation that the trial court
erred in qualifying Frank as an expert in DNA. Whether an
individual is an expert on a particular subject is a matter
generally reserved to the sound discretion of the trial court.
Schaffner v. Chicago & North Western Transportation Co., 129 Ill.
2d 1, 36 (1989). An individual will be allowed to testify as an
expert if his experience and qualifications afford him knowledge
which is not common to laypersons, and where such testimony will
aid the trier of fact in reaching its conclusions. People v. Novak,
163 Ill. 2d 93, 104 (1994). An expert need only have knowledge and
experience beyond that of the average citizen. Novak, 163 Ill. 2d
at 104. There is no predetermined formula for how an expert
acquires specialized knowledge or experience and the expert can
gain such through practical experience, scientific study,
education, training or research. Novak, 163 Ill. 2d at 104.
In the instant case, the trial court did not abuse its
discretion in concluding that Frank was an expert on issues
involving DNA. The record reveals that through education, training,
research and experience, Frank possessed knowledge which was not
common to the average citizen. Frank had a bachelors degree in
chemistry and biology and was working toward his masters degree in
biology with his thesis being on DNA extraction methods. Frank had
taken several genetics courses and had attended seminars and
classes on DNA methods at both the FBI and private laboratories. He
has been certified by the American Board of Criminalistics and has
been subject to periodic testing on DNA issues. Thus, the trial
court did not abuse its discretion in allowing Frank to testify.
Since Frank was competent to testify as an expert, we must
next consider whether the trial court properly admitted the DNA
evidence. Before this court defendant argues that the trial court
erred in admitting the DNA evidence in light of Watson, which he
claims requires a finding that thee DNA evidence was inadmissible.
Defendant further asserts that Frank's testimony and methodology
were not valid because the DNA testing was done by the Illinois
State Police lab rather than by the FBI or a private lab and by a
person with only a bachelors degree rather than a doctorate.
The decision of whether to admit expert testimony about a new
scientific technique is committed to the sound discretion of the
trial court. People v. Eyler, 133 Ill. 2d 173, 212 (1989). Illinois
follows the Frye standard for the admission of novel scientific
evidence. People v. Baynes, 88 Ill. 2d 225, 241 (1981) (discussing
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)). Frye requires
that the evidence be generally accepted in the relevant scientific
community before it can be admitted. People v. Thomas, 137 Ill. 2d
500, 517 (1990).
We disagree with the defendant's contention that the trial
court erred in admitting the DNA evidence. Based on the
documentation the trial court had before it--Frank's testimony and
the five Illinois appellate court cases--the trial court did not
abuse its discretion in relying on the cases which supported the
use of the RFLP technique and the product rule. We note that the
defendant was provided access to his own DNA expert, but defendant
did not present any testimony which contradicted Frank's testimony.
The defendant was provided ample opportunity to cross-examine Frank
regarding the procedures he used in conducting the RFLP analysis
and in calculating the frequency with which the DNA samples matched
in this case. Frank testified that the procedures he used were the
same as those used by the FBI. The trial court did not abuse its
discretion by relying on the four favorable cases and Frank's
testimony rather than relying on Watson in making its decision.
We also note that the majority of courts deciding the issue of
the admissibility of evidence on the six-step RFLP process have
found such evidence to be admissible under several standards of
admissibility, including Frye and Daubert. See, e.g., Harmon v.
State, 908 P.2d 434, 440 (Ala. 1995); Taylor v. State, 889 P.2d
319, 333 (Okla. App. 1995); State v. Cauthron, 120 Wash. 2d 879,
896-97, 846 P.2d 502, 511 (1993) (citing 15 cases which support
general acceptance of RFLP testing); United States v. Porter, 618
A.2d 629, 636 (D.C. App. 1992). There is little question that the
RFLP technique itself is generally accepted in the relevant
scientific community.
Further, while there has been some controversy over the use of
the product rule in calculating the frequency of a DNA match, that
controversy appears to be dissipating. Some members of the
scientific community originally argued that the product rule is
flawed because it assumes that DNA fragments revealed by the DNA
processing occur independently and that members of the racial
groups represented by a database intermix within their groups at
random without regard to religion, ethnicity or geography. Watson,
257 Ill. App. 3d at 930 (discussing R. Lewontin & D. Hartl,
Population Genetics in Forensic DNA Typing, Science, at 1745
(December 20, 1991)). Lewontin and Hartl maintained that reference
to a broad database to calculate the frequency of matches is
inappropriate because subgroups of individuals may have substantial
differences in the frequency of a given DNA fragment. Watson, 257
Ill. App. 3d at 930. In fact, the court in Watson agreed with these
critics and determined that a jury could not be given DNA
statistical evidence which was based on the product rule. Watson,
257 Ill. App. 3d at 933.
Since the time of the pretrial hearing in this case, the
scientific and legal status of the product rule has continued to
evolve. The concerns enunciated by Lewontin and Hartl appear not to
have been borne out by empirical studies. See Lander and Budowle,
DNA Fingerprinting Dispute Laid to Rest, Nature, at 735 (October
27, 1994) (criticizing Lewontin & Hartl's subgroup analysis). The
most recent courts to consider the use of the product rule have
concluded that it is a generally accepted statistical method for
estimating the frequency of a DNA match. See, e.g., People v.
Chandler, 211 Mich. App. 604, 610-11, 536 N.W.2d 799, 803 (1995);
People v. Wilds, 40 Cal. App. 4th 166, 180-82, 37 Cal. Rptr. 2d
351, 359-60 (1995); Taylor, 889 P.2d at 336-37; Lindsey v. People,
892 P.2d 281, 293-94 (Colo. 1995) (discussing in detail the
findings of Lander and Budowle); People v. Soto, 39 Cal. App. 4th
757, 775-78, 35 Cal. Rptr. 2d 846, 857-59 (1994). Therefore, it is
evident that given the testimony the trial court had before it and
the current level of acceptance of the RFLP process and the
statistical analysis, the trial court did not abuse its discretion
in allowing Frank to testify regarding the DNA evidence.
Evidence of Other Crimes
First, the defendant claims that the trial court erred in
failing to sustain an objection to Detective Rabe's testimony
regarding the defendant's statements that he dumped the bodies at
different times and that he dumped them in such a manner that they
would not be found. Defense counsel objected to Rabe's testimony on
the basis that the jury would assume the defendant's statements
were relevant to the instant case when, in fact, the statements
could have been about the murder of Faggott, a murder in Missouri,
or the murders the defendant committed in the 1970s. Defense
counsel asserted that immediately before Rabe questioned the
defendant regarding the two bodies, Rabe and the defendant had been
discussing Faggott's murder.
The defendant now claims that he was prejudiced at trial
because the State did not link his "dumping" statements to the
victims in the instant case. The defendant's argument is without
merit as a review of the record evidences that throughout the
detectives' entire interview of the defendant, including the car
ride, they were discussing the three women, although the
questioning may have also focussed on Faggott. The defendant's
statements were made at Cameron Lane where the two bodies were
recovered and not at the sheriff's department. The 1977 murders had
not been mentioned. In addition, the defendant specifically
referred to two bodies, not the single body of Faggott or a single
body in Missouri. Thus, it is evident that the defendant was
speaking of the instant victims and not any others. The trial court
did not err in failing to sustain defense counsel's objection to
Rabe's testimony.
Second, the defendant contends that the evidence regarding his
possession of the maroon Oldsmobile was improperly admitted as it
showed that he had a criminal propensity. The defendant argues that
the State should have limited its evidence to the simple fact that
defendant was seen in the car on several occasions. He argues that
(1) the testimony of McGovern, Decher and Mayes regarding his
possession of the maroon Oldsmobile, (2) the testimony of Voight
regarding his entrance into Faggott's home, and (3) the testimony
of Hall regarding his introduction to Faggott were improper because
the testimony implicated him in Faggott's murder. Defendant also
argues that even if the jury could not have inferred from the
testimony that he murdered Faggott, the jury at least could have
inferred that he stole her car or burglarized her residence.
The defendant has waived any claims that McGovern, Decher and
Mayes' testimony implied that he had committed a crime involving
Faggott, her car or her home by failing to object to the testimony
at trial as evidence of other crimes. Defense counsel objected to
the testimony of McGovern, Decher and Mayes on the basis of lack of
foundation (Mayes and Decher) and hearsay (McGovern and Decher). It
is axiomatic that a defendant must make a timely objection at trial
and must renew the ground for objection in a written post-trial
motion to preserve an alleged error for review. People v. Enoch,
122 Ill. 2d 176, 186 (1988). Objections at trial on specific
grounds waive all other grounds of objection. People v. Barrios,
114 Ill. 2d 265, 275 (1986). Thus, the defendant has waived the
right to object on the grounds he asserts on appeal.
Nor will we consider the defendant's arguments regarding this
testimony under the plain error doctrine. 134 Ill. 2d R. 615(a).
The plain error doctrine allows a reviewing court to consider a
trial error not properly preserved when (1) the evidence in a
criminal case is closely balanced or (2) the error is so
fundamental and of such a magnitude that the defendant was denied
his right to a fair trial. People v. Byron, 164 Ill. 2d 279, 293
(1995); People v. Herrett, 137 Ill. 2d 195, 209-10 (1990). Neither
circumstance applies in this case.
Defendant's next contention involves Voight's testimony.
Outside the presence of the jury and before Voight's testimony,
defense counsel claimed that Voight's testimony would be
prejudicial to the defendant, as it linked the defendant to
Faggott. The trial judge required an offer of proof and then
determined that Voight could testify about seeing the defendant
approach Faggott's home on a bicycle and enter her home through a
screened-in porch. The trial court did not err in allowing Voight's
testimony since the testimony was not prejudicial and the testimony
did not imply that the defendant committed a crime involving
Faggott. Prior to Voight's testimony, there had been other
testimony that the defendant had been introduced to Faggott.
Voight's testimony simply emphasized that the defendant knew
Faggott and potentially had access to her car. We note that Voight
did not testify that he saw the defendant drive off in Faggott's
car or leave her home with any items.
In addition, defense counsel did not object to Hall's
testimony and, thus, the defendant cannot now claim any error
regarding the testimony. Enoch, 122 Ill. 2d at 186. Regardless,
Hall's testimony was not prejudicial to the defendant, as it merely
related that the defendant knew Faggott in July 1993.
Finally, the defendant also asserts that Deputy Taylor's
testimony that defendant questioned her regarding the difference
between state and federal crimes was improper. The defendant
asserts that Taylor's testimony implied that he had committed a
crime other than the three murders for which he was on trial.
Taylor's testimony was not improper. She did not testify that the
defendant had been convicted of other crimes or was under
investigation for other crimes, state or federal. Testimony by a
witness of her mere explanation to the defendant of the difference
between state and federal crimes without more does not imply to the
jury that the defendant had committed crimes other than the ones
for which he was on trial. Thus, the defendant was not prejudiced
by Taylor's testimony and the trial court did not err in allowing
such testimony.
Hearsay Testimony
Defendant claims that the testimony of Mayes, Decher and
McGovern that defendant told each of them that he was transporting
the maroon Oldsmobile for a dealership or had borrowed the car from
a friend was inadmissible hearsay. At trial, defense counsel did
not object to Mayes' testimony on the basis of hearsay nor were any
issues regarding Mayes' testimony raised in the post-trial motion.
Thus, defendant has waived any hearsay claims regarding this
testimony. Enoch, 122 Ill. 2d at 186.
With regard to Decher's testimony, defense counsel objected on
the basis of hearsay before Decher testified that defendant told
her he was transporting the car for a dealership. Defense counsel
also objected on the basis of hearsay before McGovern testified
that defendant told him the car belonged to a friend. However, the
defendant did not raise as error in his post-trial motion the trial
court's failure to sustain the objections to Decher's and
McGovern's testimony. Rather, defendant claimed in his post-trial
motion that Decher's and McGovern's testimony should have been
excluded on the basis that it was evidence of other crimes. Such a
claim is not sufficient to preserve the prior objection that the
testimony should have been excluded because it was hearsay. Thus,
defendant has waived this issue. Enoch, 122 Ill. 2d at 186. In
addition, we decline to consider defendant's hearsay challenge to
the testimony of Mayes, Decher and McGovern under the plain error
doctrine, as the evidence in this case was not closely balanced and
any alleged error was not so fundamental as to deny the defendant
his right to a fair trial. Byron, 164 Ill. 2d at 293.
Admission of Testimony Regarding Women's Clothing
The defendant argues that the trial court erred in allowing
Officer Molleck of the Peoria County sheriff's department to
testify regarding several garments he collected from the
defendant's apartment. The garments included two robes and women's
underwear. Defense counsel objected to the admission of such
testimony, arguing that its prejudice outweighed its probative
value. The objection was overruled and the officer was allowed to
testify about his discoveries. We note that the garments were not
admitted into evidence and were not shown to the jury. On appeal,
defendant asserts that the testimony regarding these items was not
relevant to his prosecution, as the garments had not been linked to
any of the three victims. The State counters that the testimony was
relevant as it made it more probable than not that the defendant
killed the three women.
Questions concerning the admission of evidence are within the
discretion of the trial court. People v. Fierer, 124 Ill. 2d 176,
195 (1988). For physical evidence to be admitted, the physical
evidence must be connected to both the crime and the defendant.
People v. Miller, 40 Ill. 2d 154, 159 (1968). Likewise, testimony
regarding physical evidence is not proper unless that testimony
links the physical evidence to both the defendant and the crime.
In the instant case, the undergarments were connected to the
defendant, as they were found in his apartment. However, the
evidence presented at trial never linked the women's undergarments
to any of the three victims. The State did not lay a foundation
which showed the undergarments were the women's personal property.
Thus, the trial court abused its discretion in allowing Officer
Molleck to testify about the undergarments. Such an abuse of
discretion, however, was harmless error in light of the
overwhelming evidence of defendant's guilt. People v. Carlson, 92
Ill. 2d 440, 449 (1982) (evidentiary errors are harmless if
properly admitted evidence is so overwhelming that no fair-minded
juror could reasonably have voted to acquit the defendant).
CAPITAL SENTENCING HEARING
Prosecutorial Comments
The defendant asserts that the prosecutor's rebuttal argument
during the second stage of the capital sentencing hearing
improperly diminished the jury's sense of responsibility for
imposing the death penalty. The defendant points to the
prosecutor's statement:
"And this person [defendant] fits the law and the
evidence that you have heard both at the trial and at the
hearing, a 158 days after he came out from the very place
they want to put him back into does not in any manner
justify a sentence not of death, but simply fits the bill
of a person who has brought himself here and should be
sentenced under the laws of Illinois to death."
To support his argument, the defendant relies on Caldwell v.
Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633
(1985). In Caldwell, the Supreme Court found constitutional error
in the prosecutor's argument that the jury's decision to impose
death was not final and was automatically reviewable by the state
supreme court. The Supreme Court held that the prosecutor's
argument violated the eighth amendment by leading the sentencer to
believe that responsibility for determining the appropriateness of
the defendant's death rested elsewhere. Caldwell, 472 U.S. at 328-
39, 86 L. Ed. 2d at 239, 105 S. Ct. at 2639.
A review of the instant record evidences that the prosecutor
did not cause the jury to feel less responsible for its decision.
The prosecutor did not suggest to the jurors that they were
relieved of their responsibility for sentencing the defendant by
either the defendant's own actions or the ability of the defendant
to seek review of the jury's decision. See People v. Page, 155 Ill.
2d 232, 281 (1993). In addition, the jury instructions adequately
set forth the jury's role in imposing the death penalty and the
jury was instructed that closing arguments were not to be
considered as evidence. See also People v. Moore, 171 Ill. 2d 74,
116 (1996); People v. Pasch, 152 Ill. 2d 133, 204-06 (1992).
The defendant also points to two other comments by the
prosecutor during his rebuttal argument which allegedly suggested
that the decision of whether to impose the death penalty was not "a
vote to kill." The defendant asserts that such comments violated
Caldwell because they diminished the jury's responsibility by
saying a vote in favor of death was not a vote to kill. The
comments by the prosecution were in response to defense counsel's
urging the jury to elect not to vote to kill, to vote against
killing the defendant and to value the sanctity of human life. We
find that the prosecutor's comments did not violate Caldwell and
did not deprive defendant of a fair sentencing hearing.
Jury Instructions
The defendant first argues that the trial court erred in
refusing to give a proposed instruction which stated:
"You need not unanimously agree on the existence of
the mitigating factor in order for a juror to consider
that mitigating factor in his or her deliberations."
The defendant relies on the case of Mills v. Maryland, 486 U.S.
367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), and asserts that
the instructions the jury was given did not preclude the jury from
believing that it had to unanimously find that a mitigating factor
existed before it could determine whether the factor was sufficient
to prevent a death sentence.
The Supreme Court in Mills reviewed a capital case where the
verdict form contained a list of mitigating circumstances,
accompanied by spaces in which the jury could check "yes" or "no"
and preceded by a statement that the jury "UNANIMOUSLY find[s] that
each of the following mitigating circumstances which is marked
`yes' has been proven to exist." (Emphasis added.) Mills, 486 U.S.
at 384-89, 100 L. Ed. 2d at 400-03, 108 S. Ct. at 1870-72. The
verdict form further asked the jury to affirm or deny that it
unanimously found that the mitigating circumstances marked "yes"
outweighed the aggravating circumstances. The trial court's
instructions to the jury emphasized the unanimity requirement. The
Supreme Court determined that the verdict form and the instructions
violated the Constitution since the jury could have interpreted
them as precluding the consideration of all possible mitigating
evidence. Mills, 486 U.S. at 375, 100 L. Ed. 2d at 394, 108 S. Ct.
at 1865-66. Later, the Supreme Court applied the Mills decision to
overturn a death sentence entered in a case where the sentencing
jury was instructed not to consider any mitigating factor which the
jury did not "unanimously" find to exist. McKoy v. North Carolina,
494 U.S. 433, 442-44, 108 L. Ed. 2d 369, 380-81, 110 S. Ct. 1227,
1233-34 (1990).
As background, the Illinois death penalty statute does not
require the jury to reach unanimous agreement as to the existence
of any mitigating factors before the jury can decide not to impose
the death penalty. People v. Ramey, 152 Ill. 2d 41, 77 (1992). In
People v. Hope, 168 Ill. 2d 1, 45 (1995), this court discussed the
application of Mills and McKoy to a capital case where the jury was
instructed with regard to mitigation as follows:
"If you unanimously find from your consideration of
all the evidence that there are no mitigating factors
sufficient to preclude imposition of a death sentence,
then you should sign the verdict requiring the court to
sentence the defendant to death.
If you do not unanimously find from your
consideration of all the evidence that there are no
mitigating factors sufficient to preclude imposition of
a death sentence, then you should sign the verdict
requiring the court to impose a sentence other than
death."
This court found that these instructions did not convey the
impression to the jury that unanimity was required before a
mitigating factor could be considered. Hope, 168 Ill. 2d at 45.
These instructions and the closing argument by defense counsel, who
argued that each juror had the power to give death and the
opportunity to give life, adequately informed the jury that
unanimity was not required to find a mitigating factor sufficient
to preclude death. Hope, 168 Ill. 2d at 45.
In the present case, the jury was given the same instructions
as the jury in Hope. In addition, during closing argument, defense
counsel repeatedly stressed that each juror had the power to
prevent the imposition of the death sentence. Accordingly, we
conclude that the jury was properly and sufficiently instructed
regarding the consideration of mitigating factors. The trial court
acted within its discretion and did not err in refusing the
defendant's request for an instruction on the lack of a unanimity
requirement in finding mitigating factors.
The defendant next argues that the trial court erred in
refusing to give a proposed instruction which stated:
"In deciding whether the defendant should be
sentenced to death, however, you are not prevented from
considering any feelings or mercy or compassion you wish
to extend toward the defendant."
A similar argument was raised and rejected in People v.
Sanchez, 115 Ill. 2d 238, 269-70 (1986). See also People v. Fields,
135 Ill. 2d 18, 74 (1990); People v. Stewart, 104 Ill. 2d 463, 492-
93 (1984). In Sanchez, the defendant sought an instruction which
stated that the jury could "extend mercy to the defendant." This
court upheld the trial court's refusal to tender such an
instruction on the basis that the jury was instructed that it could
consider "any other mitigating factor" and defense counsel
presented mitigation evidence and argued for mercy in his closing
statement. Sanchez, 115 Ill. 2d at 269-70.
The rationale of Sanchez equally applies to the instant case.
Although the trial court refused the defendant's proposed
instruction, the jury was given an instruction which allowed it to
consider as a mitigating factor "any other reason supported by the
evidence why the defendant should not be sentenced to death."
Further, the defendant was allowed to present mitigating evidence,
and defense counsel argued for mercy in his closing remarks. Thus,
the jury was in a position to consider mercy, or any other
mitigating factor, as it saw fit. Thus, the trial court did not err
in refusing to give the proposed instruction.
The defendant finally argues that the jury instructions given
at his sentencing hearing were unconstitutional in that they failed
to guide the jury's discretion. As support for his argument, the
defendant cites United States ex rel. Free v. Peters, 806 F. Supp.
705 (N.D. Ill. 1992). The decision of the Free case has been
reversed and its reasoning rejected. Free v. Peters, 12 F.3d 700
(7th Cir. 1993). This court has found the decision of the Seventh
Circuit Court of Appeals to be sound (People v. Franklin, 167 Ill.
2d 1, 29 (1995); People v. Kokoraleis, 159 Ill. 2d 325, 333-34
(1994)) and has criticized the reasoning on which the district
court relied (People v. Towns, 157 Ill. 2d 90, 115 (1993)). Thus,
we reject the defendant's argument.
Constitutionality of the Death Penalty
The defendant raises several challenges to the
constitutionality of the Illinois death penalty statute (720 ILCS
5/9--1 (West 1992)). This court has previously considered and
rejected the arguments which defendant now raises. The defendant
has not presented us with any reasons to reach a different result
at this time.
The defendant first claims that the death penalty statute
violates the eighth and fourteenth amendments because it places a
burden of proof on defendant which precludes a sentencer from
giving meaningful consideration to mitigation evidence. This court
has stated that the death penalty statute does not
unconstitutionally cast on a defendant the burden of establishing
that a sentence other than death should be imposed. People v.
Mahaffey, 166 Ill. 2d 1, 34 (1995); People v. Hampton, 149 Ill. 2d
71, 116-17 (1992); People v. Simms, 143 Ill. 2d 154, 184 (1991). In
addition, the statute does not preclude a sentencer from giving
meaningful consideration to mitigation evidence. People v. Page,
155 Ill. 2d 232, 283 (1993); People v. Strickland, 154 Ill. 2d 489,
538-39 (1992).
In a related argument, the defendant asserts that the statute
is unconstitutional because it allows the sentencer to consider a
vague aggravating factor: namely, "any other reason" (Illinois
Pattern Jury Instructions, Criminal, No. 7C.06 (3d ed. 1992)) a
defendant should be sentenced to death. This court has consistently
rejected the argument that a sentencer's consideration of
nonstatutory aggravating factors during the second stage of a
capital sentencing hearing results in the arbitrary imposition of
the death sentence. People v. Taylor, 166 Ill. 2d 414, 439 (1995);
People v. Neal, 111 Ill. 2d 180, 203 (1985); People v. Madej, 106
Ill. 2d 201, 211 (1985).
Finally, the defendant asserts that the death penalty statute
is unconstitutional because it does not sufficiently minimize the
risk of the imposition of an arbitrary and capricious death
sentence. The defendant asks this court to reconsider many of its
prior rulings regarding the statute and to consider whether the
cumulative effect of all features of the statute render the statute
unconstitutional. This argument has been considered and rejected by
this court on numerous occasions. See, e.g., People v. Edgeston,
157 Ill. 2d 201, 247 (1993); Thomas, 137 Ill. 2d at 549-50; People
v. Phillips, 127 Ill. 2d 499, 542-43 (1989). The defendant has
failed to provide any citation or argument in support of his
request. The defendant's arguments are not compelling, and we
decline to review the defendant's request.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Peoria County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, November 19, 1996, as the date on
which the sentence of death entered by the circuit court of Peoria
County shall be carried out. Defendant shall be executed in a
manner provided by the law. 725 ILCS 5/119--5 (West 1992). The
clerk of this court shall send a certified copy of the mandate in
this case to the Director of Corrections, to the warden of
Stateville Correction Center, and to the warden of the institution
where defendant is now confined.
Affirmed.
JUSTICE McMORROW, specially concurring:
I agree that defendant's conviction and sentence of death
should be affirmed. I write separately because I believe the
majority has erred in its analysis of the trial court's decision to
admit the DNA evidence at defendant's trial. Specifically, while
the majority states that it is within the discretion of the trial
court to determine that a novel scientific technique has gained
general acceptance in the relevant scientific community as required
for admissibility under the Frye standard (see Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923); People v. Thomas, 137 Ill. 2d
500, 517 (1990)), and that this determination will not be reversed
absent an abuse of discretion (see People v. Eyler, 133 Ill. 2d
173, 212 (1989)), the majority has not, in fact, applied such a
standard of review in the case at bar. The majority's analysis is
thus inherently contradictory, and can only serve to exacerbate the
confusion in our appellate court regarding the proper standard of
review to apply against trial court decisions admitting or
excluding novel scientific evidence (compare People v. Heaton, 266
Ill. App. 3d 469, 476-78 (5th Dist. 1994) (trial court's decision
that novel scientific technique is generally accepted in the
relevant scientific community is reviewed under traditional abuse
of discretion standard), with People v. Watson, 257 Ill. App. 3d
915, 923-24 (1st Dist. 1994) ("broad review" may be applied to
trial court's determination regarding general acceptance of new
scientific technique)).
An abuse of discretion occurs only where the trial court's
ruling is against the manifest weight of the evidence. Mizell v.
Passo, 147 Ill. 2d 420, 425 (1992). By definition, then, a
reviewing court may not conclude that a trial court has abused its
discretion, or acted within that discretion, based on evidence that
was never presented at trial. See Heaton, 266 Ill. App. 3d at 478
("Under [the abuse of discretion standard], we must look at the
state of the record as it existed in the trial court at the time
the trial court made its determination"). However, that is exactly
what the majority has done in the instant case. In its discussion
regarding the admissibility of the DNA evidence, the majority cites
to a recent scientific article and several court opinions from
other jurisdictions. Both the article and the court opinions
conclude that any lingering controversy surrounding the reliability
of forensic DNA analysis has abated and, in particular, that the
statistical techniques which were employed by the State's expert
witness in the case at bar are now generally accepted in the
relevant scientific community. Neither the article nor the court
opinions were part of the record before the trial court. Slip op.
at 10. Nevertheless, the majority concludes that "given the
testimony the trial court had before it AND THE CURRENT LEVEL OF
ACCEPTANCE OF THE RFLP PROCESS AND THE STATISTICAL ANALYSIS, the
trial court did not abuse its discretion in allowing [the State's
expert] to testify regarding the DNA evidence." (Emphasis added.)
Slip op. at 15.
The majority cannot have it both ways. If trial court
decisions concerning the general acceptance of novel scientific
evidence cannot be reversed absent an abuse of discretion, then
upon review, only material which was part of the trial record
should be considered by this court. See Heaton, 266 Ill. App. 3d at
478. If, on the other hand, the majority believes that it is proper
to rely on scientific articles and court cases which were not part
of the trial record to determine whether a novel scientific
technique has become generally accepted in the relevant scientific
community, then the majority must acknowledge that the standard of
review is not a simple abuse of discretion standard (see Watson,
257 Ill. App. 3d at 923-24).
I believe that the better approach is to recognize that this
court may rely on materials which were not part of the trial record
to determine whether a scientific technique is generally accepted
in the relevant scientific community. In People v. Eyler, 133 Ill.
2d 173, 212 (1989), this court, sua sponte and without significant
analysis, concluded that trial court decisions regarding the
admission of novel scientific evidence should be reviewed for an
abuse of discretion. I submit that the all-encompassing abuse of
discretion standard adopted in Eyler does not permit a reviewing
court to adequately address the legal issues raised by trial court
applications of the Frye standard. What is needed instead is a
mixed standard of review. Trial court decisions regarding whether
an expert scientific witness is qualified to testify in a subject
area, and whether the proffered testimony is relevant in a
particular case, should be left to the sound discretion of the
trial court. However, trial court decisions regarding the threshold
question of whether a scientific technique has achieved general
acceptance in the relevant scientific community should be subject
to de novo review. This de novo review should not be limited to the
trial record, but should permit the appellate court, where
appropriate, to rely on sources outside the record, including legal
and scientific articles, as well as court opinions from other
jurisdictions to determine the issue of general acceptance in the
relevant scientific community.
There are good reasons why the determination of general
acceptance in the scientific community should not be left to the
discretion of the trial court. Foremost is the fact that the
general acceptance issue transcends any particular dispute. As one
court has put it, "[t]he question of general acceptance of a
scientific technique, while referring to only one of the criteria
for admissibility of expert testimony, in another sense transcends
that particular inquiry, for, in attempting to establish such
general acceptance for purposes of the case at hand, the proponent
will also be asking the court to establish the law of the
jurisdiction for future cases." Jones v. United States, 548 A.2d
35, 40 (D.C. App. 1988). Application of less than a de novo
standard of review to an issue which transcends individual cases
invariably leads to inconsistent treatment of similarly situated
claims. Compare Heaton, 266 Ill. App. 3d 469, with Watson, 257 Ill.
App. 3d 915. The general acceptance of a scientific technique does
not change from one courtroom to another; assessments of that
general acceptance also should not change from court to court. See
Jones, 548 A.2d at 40 (and cases cited therein); Watson, 257 Ill.
App. 3d at 923-24; State v. Vandebogart, 136 N.H. 365, 616 A.2d 483
(1992); Taylor v. State, 889 P.2d 319, 332 (Okla. Crim. App. 1995);
see also Commonwealth v. Lanigan, 413 Mass. 154, 158, 596 N.E.2d
311, 314 (1992).
In addition, a de novo standard of review which permits
reliance on materials outside the trial record is not, in this
context, problematic. Under the Frye standard, the trial court is
not asked to determine the validity of a particular scientific
technique. Rather, the court's responsibility is to determine the
existence, or nonexistence, of general consensus in the relevant
scientific community regarding the reliability of that technique.
"Accordingly, because the focus is primarily on counting
scientists' votes, rather than on verifying the soundness of a
scientific conclusion, there will not be the concerns about witness
credibility and hearsay normally associated with citations to
empirical or scientific studies whose authors cannot be observed or
cross-examined." Jones, 548 A.2d at 42; see also Note, Daubert v.
Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific
Reliability--The Questionable Wisdom of Abandoning the Peer Review
Standard for Admitting Expert Testimony, 47 Vand. L. Rev. 1175,
1196 (1994) (under the Frye standard, "the appellate court [can]
take its own head count of experts and determine the extent to
which a scientific method [is] accepted").
Moreover, there is nothing particularly novel about the de
novo standard of review proposed here. Indeed, in several previous
decisions regarding the acceptance of scientific techniques,
including Eyler itself, this court has engaged in precisely this
type of review. See Eyler, 133 Ill. 2d at 213-15 (citing court
decisions from other jurisdictions to support the conclusion that
electrophoretic testing of dried blood is generally accepted in the
scientific community); People v. Zayas, 131 Ill. 2d 284 (1989)
(holding inadmissible hypnotically induced testimony of a witness
other than the defendant and citing to scientific articles, law
reviews and court opinions from other states); People v. Baynes, 88
Ill. 2d 225, 234-45 (1981) (citing law reviews, scientific articles
and court decisions from other jurisdictions to support holding
that polygraph evidence is inadmissible); People v. Keith, 148 Ill.
2d 32, 43-45 (1992) (suppressing results of breath test and citing
to a law review, a treatise and a court opinion from another
jurisdiction in discussion of the proper procedures for operating
a breathalyzer). See also 2 K. Davis & R. Pierce, Administrative
Law Treatise §10.5 (3d ed. 1994) (describing the long tradition of
courts relying on sources outside the record for "legislative"
facts, i.e., facts that help the tribunal decide questions of law
and policy); New York v. Ferber, 458 U.S. 747, 758 n.9, 73 L. Ed.
2d 1113, 1123 n.9, 102 S. Ct. 3348, 3355 n.9 (1982) (citing
literature describing the effect on children of being a subject in
pornographic materials); People v. McCarty, 86 Ill. 2d 247, 255-57
(1981) (concluding that the legislature had a rational basis for
statutorily classifying cocaine as a "narcotic" drug, based, in
part, on a review of scientific literature).
Of course, when a reviewing court relies on materials which
are not in the trial record--especially court opinions from other
jurisdictions--to resolve the general acceptance question, care
must be taken so that the practice is not abused. For "[u]nless the
question of general acceptance has been thoroughly litigated in the
previous cases, *** reliance on judicial practice is a hollow
ritual." 2 J. Strong, McCormick on Evidence §203, at 870 n.20 (4th
ed. 1992); see also State v. Cauthorn, 120 Wash. 2d 879, 888-89,
846 P.2d 502, 506 (1993) (decisions from other jurisdictions may be
examined but relevant inquiry is the general acceptance by
scientists, not by the courts). However, in the instant case, given
the expert testimony of record and the clear consensus evident from
the material cited by the majority (see slip op. at 14-15), I have
no difficulty in concluding that the DNA techniques employed by the
State's expert are, in fact, generally accepted in the relevant
scientific community.
Determining the appropriate standard of review for decisions
regarding the admission of novel scientific evidence is more than
an idle academic exercise. In certain cases, the standard of review
may play a crucial, if not determinative role, in deciding the
outcome of the case. See, e.g., Heaton, 266 Ill. App. 3d 469. While
the majority's decision today settles the ultimate question
regarding the admissibility of DNA evidence, that result has
unfortunately come at the expense of logic and clarity.