Docket No. 107550.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Cross-
Appellant, v. SANDY WILLIAMS, Appellant and Cross-Appellee.
Opinion filed July 15, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Thomas, Kilbride, Garman, and Karmeier concurred in
the judgment and opinion.
Justice Freeman specially concurred, with opinion.
Justice Burke concurred in part and dissented in part, with
opinion.
OPINION
After a bench trial in the circuit court of Cook County, the
defendant, Sandy Williams, was convicted of two counts of
aggravated criminal sexual assault and one count each of aggravated
kidnapping and aggravated robbery of L.J. The appellate court
affirmed the defendant’s conviction, but reversed the trial court’s
imposition of a consecutive sentence. 385 Ill. App. 3d 359, 371. On
appeal to this court, the defendant argues that the testimony of an
Illinois State Police forensic analyst, who relied upon a DNA report
prepared by a nontestifying third-party analyst, lacked a sufficient
evidentiary foundation. Alternatively, the defendant argues that this
testimony concerning the report was hearsay presented for the truth
of the matter asserted and violated the defendant’s sixth amendment
confrontation clause right. The State cross-appeals, maintaining the
appellate court improperly reversed the trial court’s imposition of a
consecutive sentence. For the following reasons, we affirm in part and
reverse in part.
BACKGROUND
The State charged the defendant in a 17-count indictment with
aggravated criminal sexual assault, aggravated kidnapping, and
aggravated robbery. The cause proceeded to a bench trial. The counts
that the State ultimately submitted to the judge were counts IV and VI
(aggravated criminal sexual assault under 720 ILCS 5/12–(a)(3)
(West 2000)), count XV (aggravated kidnapping under 720 ILCS
5/10–2(a)(3) (West 2000)) and count XVII (aggravated robbery under
720 ILCS 5/18–5 (West 2000)). The State entered a nolle prosequi on
the remaining counts. The following facts were adduced at trial.
On February 10, 2000, 22-year-old L.J. worked until 8 p.m. as a
cashier at a clothing store in Chicago. On her way home to the south
side of the city, she purchased items at the store for her mother and
went toward her home. As she passed an alley, the defendant came up
behind her and forced her to sit in the backseat of a beige station
wagon, where he told her to take her clothes off. The defendant then
vaginally penetrated L.J. The defendant also contacted L.J.’s anus
with his penis, but did not penetrate. He then pushed L.J. out of the
car while keeping L.J.’s coat, money, and other items. After L.J. ran
home, her mother opened the door and saw her in tears, partially
clothed with only one pant leg on. After L.J. went into the bathroom,
her mother called the police.
Shortly after 9 p.m., Chicago police officers arrived at the home
and found L.J. in the bathtub. She had not yet washed her vaginal
area. After L.J. told the officers what had transpired, the officers
issued a “flash” message for a black male, 5 foot, 8 inches tall,
wearing a black skull cap, a black jacket and driving a beige station
wagon. An ambulance transported L.J. and her mother to the
emergency room. Dr. Nancy Schubert conducted a vaginal exam of
L.J. and took vaginal swabs, which were then sealed and placed into
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a criminal sexual assault evidence collection kit along with L.J.’s
blood sample. The kit was sent to the Illinois State Police (ISP) Crime
Lab for testing and analysis.
On February 15, 2000, forensic biologist Brian Hapack with the
ISP Crime Lab received L.J.’s sexual assault evidence collection kit
and performed tests that confirmed the presence of semen. Hapack
placed the swabs in a coin envelope, sealed the envelope, and placed
the evidence in a secure freezer. Hapack guaranteed the accuracy of
his results by working in a clean environment free from
contamination and by ensuring that the tests functioned properly.
On August 3, 2000, police arrested the defendant for an unrelated
offense and, pursuant to a court order, drew a blood sample from the
defendant. On August 24, 2000, forensic scientist Karen Kooi
performed an analysis on the sample that consisted of four quarter-
sized bloodstains on a filter card. Kooi extracted a deoxyribonucleic
acid (DNA) profile1 and entered it into the database at the ISP Crime
Lab. Meanwhile, the samples from L.J.’s sexual assault kit were sent
to Cellmark Diagnostic Laboratory in Germantown, Maryland, for
DNA analysis on November 29, 2000. Cellmark returned L.J.’s
vaginal swabs and blood standard to the ISP Crime Lab on April 3,
2001. Cellmark derived a DNA profile for the person whose semen
was recovered from L.J. According to ISP forensic biologist Sandra
1
When a DNA laboratory receives a sample of blood, the DNA is
extracted from the fraction containing the nucleic material in the white
blood cells. DNA is a tightly wound strand that measures approximately
six feet in length. Uncoiled, DNA resembles a twisted ladder with rungs
of the ladder made of chemicals called nucleotides. DNA has four different
types of nucleotides (A: adenine, T: thymine, G: guanine, and C: cytosine)
that form interlocking pairs. D. Kaye & G. Sensabaugh, Reference Guide
on DNA Evidence, Reference Manual on Scientific Evidence 485, 491 (2d
ed. 2000). It is the order (sequence) of these building blocks that
determines each person’s genetic characteristics. The great majority of
DNA is identical from person to person but forensic scientists commonly
examine 13 specific regions, or loci, where certain nucleotide patterns are
repeated again and again. These patterns are called “Short Tandem
Repeats” (STRs). The number of repeated sequences determines the length
of an STR. This length of repeated sequences, often called an allele, may
vary between people and is what analysts measure and use for comparison.
D. Kaye & G. Sensabaugh, Reference Guide on DNA Evidence, Reference
Manual on Scientific Evidence 485, 494 (2d ed. 2000).
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Lambatos, whose testimony will be set forth more fully below, the
DNA profile received from Cellmark matched the defendant’s DNA
profile from the blood sample in the ISP database. L.J. identified the
defendant in a line up on April 17, 2001. The defendant was then
arrested for the instant offenses.
At the bench trial, Lambatos was accepted as an expert in forensic
biology and forensic DNA analysis by the trial court. Lambatos began
her testimony with a brief explanation of polymerase chain reaction
(PCR) testing. PCR testing, according to Lambatos, is one of the most
modern types of DNA analysis available and is generally accepted in
the scientific community. Lambatos explained how PCR analysis can
be used to identify a male profile from a semen sample. First, an
analyst conducts a procedure that isolates and extracts DNA from a
sample that may include a mixture from a particular defendant and
the victim. The DNA is not large enough to test at this point, and
requires amplification to form a more workable sample. After
amplification, an analyst can measure the length of an individual
specific strand through a process called electrophoresis. A computer
translates this measurement onto a graph called an electropherogram.
The electropherogram is a representation of the individual’s specified
DNA data into a line with peaks representing the lengths of the DNA
strands of the 13 STR regions. Reports generally also provide a “table
of alleles” showing the DNA profile of each sample. She also stated
that the statistical probability of a match can also be determined by
entering the alleles into a frequency database to learn how common
they are in the general population.
Lambatos further testified that it is a commonly accepted practice
in the scientific community for one DNA expert to rely on the records
of another DNA analyst to complete her work. As mentioned, she
used the DNA profile from Cellmark to match the DNA profile from
the defendant’s blood sample, which was contained in the ISP
database. She stated that, because Cellmark was an accredited
laboratory, it was required to meet “certain guidelines to perform
DNA analysis for the Illinois State Police and so all those calibrations
and internal proficiencies and controls [of the equipment used] would
have had to have been in place for them to perform the DNA
analysis.” Cellmark’s testing and analysis methods were generally
accepted in the scientific community according to Lambatos.
Lambatos, however, admitted that Cellmark had different procedures
and standards for results than the ISP Crime Lab. Nevertheless,
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Lambatos testified that she personally developed proficiency tests for
Cellmark technicians to perform. She further testified that she
routinely relied on results from Cellmark and she did not observe any
chain of custody or contamination problems.
The prosecutor then asked her expert opinion regarding the DNA
match. Defense counsel objected and asserted that Lambatos could
not rely upon the testing performed by another lab. The trial court
replied, “We will see. If she says that she didn’t do her own testing
and she relied on a test of another lab and she’s testifying to that.
We’ll see what she’s going to say.”
Lambatos then testified that a match was generated of the male
DNA profile found in the semen from L.J.’s vaginal swabs to the
defendant’s male DNA profile from the defendant’s blood standard.
In response to defense questioning, Lambatos restated her
interpretation of the alleles at each of the 13 locations. She testified
about several locations where she visually filtered out spurious alleles
and “background noise” and distinguished the defendant’s profile.
Lambatos concluded that in her expert opinion, the semen from L.J.’s
vaginal swab was a match to the defendant. Lambatos testified that
the probability of this profile occurring in the general population was
one in 8.7 quadrillion black, one in 390 quadrillion white, and one in
109 quadrillion Hispanic unrelated individuals. She did not observe
any degradation or irregularities in the sample from L.J.’s vaginal
swab.
She stated that, in general, if “there was a question of a match,
then we would investigate that further by looking at the
electropherograms from all the cases involved and do some more
comparisons on that.” She explained that in looking at Cellmark’s
report, she interpreted it and “I did review their data, and I did make
my own interpretations so I looked at what *** they sent to me and
did make my own determination, my own opinion.” While Lambatos
testified to her conclusion informed by Cellmark’s report, Cellmark’s
report itself was not introduced into evidence. Also, while Lambatos
referenced documents she reviewed in forming her own opinion, she
did not read the contents of the Cellmark report into evidence.
At the conclusion of Lambatos’ testimony, the defendant moved
to strike the evidence of testing completed by Cellmark based upon
a violation of his sixth amendment right to confront witnesses against
him. The defendant also objected on the grounds of foundation, citing
People v. Raney, 324 Ill. App. 3d 703 (2001), and argued insufficient
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evidence was presented regarding the calibration of the Cellmark
equipment. The trial court denied the defendant’s motion to strike.
The trial court stated, “I don’t think this is a Crawford scenario, and
I agree with the State that the evidence is–the issue is, you know,
what weight do you give the test, not do you exclude it and
accordingly your motion to exclude or strike the testimony of the last
witness or opinions based on her own independent testing of the data
received from Cellmark will be denied.”
Following this and other testimony concerning the incident, the
State rested. The trial court denied the defendant’s motion for a
directed finding. The defendant did not present any evidence in his
defense. Thereafter, the trial court found the defendant guilty of two
counts of aggravated criminal sexual assault, and one count each of
aggravated kidnapping and aggravated robbery. The court denied the
defendant’s motion for a new trial.
A sentencing hearing was held. At the hearing, evidence was
presented demonstrating the defendant was convicted and sentenced
for the aggravated sexual assault, armed robbery, and aggravated
kidnapping of G.M. in case number 84–C–12720. The defendant was
paroled in February 1997 and discharged from mandatory supervised
release on February 4, 2000, six days prior to the instant crime.
Following the hearing, the trial court sentenced the defendant to two
concurrent terms of natural life imprisonment for the aggravated
criminal sexual assault counts and a concurrent term of 15 years’
imprisonment for the aggravated robbery count. The court also
ordered that the defendant should serve a consecutive term of 60
years’ imprisonment for the aggravated kidnapping count. The court
denied the defendant’s motion to reconsider his sentence.
On appeal, the appellate court rejected the defendant’s
contentions that the State failed to establish a sufficient foundation
for Lambatos’ opinion (385 Ill. App. 3d at 366); that the State failed
to establish that Cellmark’s equipment was adequately calibrated and
properly functioning (385 Ill. App. 3d at 366); and that the State
failed to establish a sufficient chain of custody based upon Cellmark’s
handling of the evidence (385 Ill. App. 3d at 367).2 The appellate
court next rejected the defendant’s argument that the results of
Cellmark’s testing and analysis were testimonial in nature and
therefore Lambatos’ expert testimony thereto violated the defendant’s
2
The chain of custody issue is presently not before this court.
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constitutional right to confrontation. 385 Ill. App. 3d at 370. The
court noted that the confrontation clause does not bar the use of
testimonial statements for purposes other than establishing the truth
of the matter asserted. The appellate court found that “Cellmark’s
report was not offered for the truth of the matter asserted; rather, it
was offered to provide a basis for Lambatos’ opinion.” 385 Ill. App.
3d at 369. The court stated, “Overall, defendant essentially requests
that we require each and every individual involved in the testing and
analysis of DNA to testify at trial. For obvious reasons in the abstract
and for those provided in the case at bar, we decline to issue such a
ruling.” 385 Ill. App. 3d at 370. Lastly, the court addressed the
sentencing issue. The appellate court, following the decisions of
People v. Dixon, 366 Ill. App. 3d 848 (2006), and People v. Spears,
371 Ill. App. 3d 1000 (2007), and this court’s decision in People v.
Palmer, 218 Ill. 2d 148 (2006), found that a term of years could not
be served consecutive to a term of natural life. 385 Ill. App. 3d at 371.
The appellate court therefore vacated that portion of the circuit
court’s order imposing consecutive sentences for aggravated criminal
sexual assault and aggravated kidnapping, and instead modified the
defendant’s sentence to impose concurrent sentences for those
convictions. 385 Ill. App. 3d at 371. Justice Cunningham filed a
dissent, asserting that the prosecution failed to lay a sufficient
foundation for Lambatos’ testimony. 385 Ill. App. 3d at 371
(Cunningham, J., dissenting).
This court granted the defendant’s petition for leave to appeal.
210 Ill. 2d R. 315. The State has requested cross-relief concerning the
appellate court’s modification of the sentence.
ANALYSIS
Foundational Challenge
The defendant argues generally before this court that the trial
court committed reversible error when it permitted Lambatos to
testify that the defendant’s DNA profile matched the male DNA
profile of the semen in L.J.’s vaginal swabs. The defendant
specifically argues that the trial court erred in admitting Lambatos’
testimony regarding the match because a sufficient foundation was
not established. The defendant additionally argues that Lambatos’
testimony violated his sixth amendment confrontation right under
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.
1354 (2004). We begin with the foundational argument. We apply the
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abuse of discretion standard to the defendant’s foundational challenge
to the trial court’s admission of Lambatos’ expert testimony. People
v. Lovejoy, 235 Ill. 2d 97, 141 (2009); People v. Sutherland, 223 Ill.
2d 187, 281 (2006).
The defendant contends that the trial court should not have
permitted the State’s forensic analyst to testify because of a lack of
sufficient testimony that the Cellmark report was reliable. According
to the defendant, when expert testimony relies upon data obtained
from electronic or mechanical equipment, the proponent of the
testimony must offer foundational proof that the equipment was
calibrated and functioning properly at the time the data was presented
in order to establish that the expert’s testimony is reliable. The State
responds that Lambatos’ testimony that Cellmark’s testing was done
according to valid scientific theory and reliable methodology
provided a sound basis upon which Lambatos could formulate her
opinion. Therefore, the State asserts that it was not obliged to present
additional testimony regarding the calibration and functioning of
Cellmark’s equipment to admit Lambatos’ expert opinion pursuant to
Wilson v. Clark, 84 Ill. 2d 186 (1981). We agree with the State.
In Wilson v. Clark, this court adopted Rules 703 and 705 of the
Federal Rules of Evidence concerning an expert’s testimony at trial.
Wilson, 84 Ill. 2d at 196. Former Rule 703 states in part:
“The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived
by or made known to the expert at or before the hearing. If of
a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence in order for the
opinion or inference to be admitted.” Fed. R. Evid. 703
(amended 2000).
The court in Wilson noted that, in a trial context, “[b]oth Federal and
State courts have interpreted Federal Rule 703 to allow opinions
based on facts not in evidence.” Wilson, 84 Ill. 2d at 193. Rule 705
states:
“The expert may testify in terms of opinion or inference
and give reasons therefor without first testifying to the
underlying facts or data, unless the court requires otherwise.
The expert may in any event be required to disclose the
underlying facts or data on cross-examination.” Fed. R. Evid.
705.
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Following Rule 705, we held in Wilson that, at trial, “an expert may
give an opinion without disclosing the facts underlying that opinion.”
Wilson, 84 Ill. 2d at 194. “Under Rule 705 the burden is placed upon
the adverse party during cross-examination to elicit the facts
underlying the expert opinion.” Wilson, 84 Ill. 2d at 194. Thus, an
expert testifying at trial may offer an opinion based on facts not in
evidence, and the expert is not required on direct examination to
disclose the facts underlying the expert’s opinion. Robidoux v.
Oliphant, 201 Ill. 2d 324, 334 (2002).
This court applied Wilson v. Clark to DNA evidence in People v.
Sutherland, 223 Ill. 2d 187 (2006). There, the defendant filed a
motion during trial to bar testimony from Terry Melton, the president
of Mitotyping Technologies, concerning human mitochondrial DNA
(mtDNA). Melton did not complete the actual laboratory “bench
work” on the evidence. Sutherland, 223 Ill. 2d at 281. The defendant
argued that, without the lab technician’s testimony, Melton’s
testimony regarding the mtDNA results was improper. We rejected
that argument, holding that it was enough that Melton relied upon
data reasonably relied upon by other experts in her field. Sutherland,
223 Ill. 2d at 282.
Here, the trial court correctly denied defense counsel’s objection
to the foundation for Lambatos’ expert opinion. It is undisputed that
Lambatos was qualified as an expert in forensic biology and DNA
analysis; Lambatos testified that it is the commonly accepted practice
in the scientific community for a forensic DNA analyst to rely on the
work of other analysts to complete her own work; and Lambatos
based her opinion on information reasonably relied upon by experts
in her field.
As in Sutherland, Lambatos testified that Cellmark’s work on the
vaginal swabs in this case and the results of the PCR analysis
conducted by Kooi are the types of data reasonably relied upon by
experts in her field. Lambatos testified that, because Cellmark was an
accredited laboratory, calibrations, internal proficiencies, and controls
had to be in place for the DNA analysis to be completed in this case.
These internal controls were, according to Lambatos’ testimony, ones
that she personally developed. Lambatos herself reviewed Cellmark’s
data, including the electropherogram, and did not have any question
about the match. Rather, she used her own expertise to compare the
two profiles before her. She also did not observe any problems in the
chain of custody or any signs of contamination or degradation of the
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evidence. Lambatos ultimately agreed with Cellmark’s results
regarding the male DNA profile, and then made her own visual and
interpretive comparisons of the peaks on the electropherogram and
the table of alleles to conclude there was a match to the defendant’s
genetic profile. See P. Gianelli & A. Imwinkelreid, Scientific
Evidence §18.04(b), at 54 (4th ed. 2009) (“in STR testing, the analyst
can visually compare the two electropherograms or rely on a
computerized comparison”).
We also reject the defendant’s specific complaint that there was
no testimony that the instruments used by Cellmark were calibrated
and functioning properly. The defendant principally relies on People
v. Raney, 324 Ill. App. 3d 703 (2001). Raney held that where the
expert testimony is based upon an electronic or mechanical device,
the expert must provide some foundational proof that the device was
functioning properly at the time it was used. Raney, 324 Ill. App. 3d
at 710. The defendant there argued that the State failed to establish a
proper foundation for the admission of scientific results from the gas
chromotography mass spectrometer (GCMS) machine. The court
agreed, finding that the record contained no evidence regarding
whether the GCMS machine was functioning properly at the time it
was used to analyze the substance. Further, the Raney court stated an
expert should be able to explain how the GCMS machine was
calibrated or why she knew the results were accurate. Raney, 324 Ill.
App. 3d at 710, citing People v. Bynum, 257 Ill. App. 3d 502 (1994).
Finding a lack of such an explanation, the court concluded that the
State failed to prove the defendant guilty beyond a reasonable doubt
because of the lack of foundation. Raney, 324 Ill. App. 3d at 711. The
Raney court acknowledged, however, that “[i]t may not be feasible
for each expert to personally test the instrument relied upon for
purposes of determining what is a suspected controlled substance.”
Raney, 324 Ill. App. 3d at 710.
We find that the testing of narcotics using a GCMS machine is
not comparable to the scientific process at issue in this case. At the
defendant’s bench trial, Lambatos did not merely regurgitate results
generated by a machine, as the witness in Raney did. Lambatos
conducted an independent evaluation of data related to samples of
genetic material, including items processed at both Cellmark and the
ISP Crime Lab. Lambatos used her expertise and professional
judgment to compare the DNA profiles. Her examination of the
different alleles from the blood sample and from the semen sample
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indicated a match with the defendant. She also determined the
statistical probability of the match by examining the alleles and
entering them into a frequency database to determine how common
they are in the general population. Further, this case is distinguishable
from Raney because Lambatos maintained that Cellmark necessarily
met the threshold of proper DNA analysis because Cellmark was an
accredited laboratory and followed guidelines that she had personally
developed. We therefore do not accept the defendant’s invitation to
broadly interpret Raney to find an insufficient foundation where an
analyst merely relies upon data obtained from electronic or
mechanical equipment.
Finally, under Wilson, the burden is placed upon the adverse party
during cross-examination to elicit facts underlying the expert opinion.
Wilson, 84 Ill. 2d at 194, citing Fed. R. Evid. 705. The record reveals
substantial cross-examination of Lambatos’ comparison of the DNA
profile from the database to the DNA profile from the sexual assault
kit. The record also reveals that the trial court, sitting as a fact finder,
appropriately weighed the testimony. It stated:
“The DNA expert that testified, the last witness, was in my
view the best DNA witness I have ever heard. Under detail
[sic], lengthy complex cross-examination by the defense on
every single part of her report she explains, she told what was
the basis of her opinion, she was an outstanding witness in
every respect. There is the issue of she didn’t do the actual
test. The testing is farmed out to other labs. Some did the
testing, some are an accredited lab. That was part of the
playback you might say of the Illinois state police forensic
division at that time, and I agree with the State that there is no
misidentification here. This is a match, this is 1 in 8.7
quadrillion, 50 times the population for the last 2000 years.
It’s an absolute match.”
Accordingly, the issue of Lambatos’ reliance on Cellmark’s report
went to the weight of her opinion and not its admissibility. See
Melendez-Diaz v. Massachusetts, 557 U.S. ___, ___ n.1, 174 L. Ed.
2d 314, 322 n.1, 129 S. Ct. 2527, 2532 n.1 (2009) (stating that it was
not the case that “anyone whose testimony may be relevant in
establishing the chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in person as part of the
prosecution’s case”). The trial court assessed the weight of Lambatos’
testimony and found it convincing.
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We therefore find that the trial court did not abuse its discretion
in finding a sufficient foundation for Lambatos’ testimony and
therefore turn to the defendant’s Crawford argument.
Sixth Amendment
The trial court rejected the defense objection that his sixth
amendment right was violated by Lambatos’ testimony concerning
Cellmark’s report. The appellate court affirmed this decision, finding
that the complained-of statements regarding Cellmark’s report by
Lambatos were not used for the truth of the matter asserted and
therefore the sixth amendment was not implicated. The defendant’s
claim that his sixth amendment confrontation right was violated
involves a question of law, which we review de novo. Lovejoy, 235
Ill. 2d at 141-42.
The sixth amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right *** to be confronted
with the witnesses against him.” U.S. Const., amend. VI. This part of
the sixth amendment is called the confrontation clause and applies to
the states through the fourteenth amendment. People v. Stechly, 225
Ill. 2d 246, 264 (2007). In Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme
Court held that the sixth amendment’s “primary object” is with
“testimonial hearsay.” Crawford, 541 U.S. at 53, 158 L. Ed. 2d at
194, 124 S. Ct. at 1365. Accordingly, “[t]estimonial statements of
witnesses absent from trial have been admitted only where the
declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Crawford, 541 U.S. at 59, 158 L. Ed.
2d at 197, 124 S. Ct. at 1369. The Supreme Court added an explicit
logical corollary to this statement by pointing out, in a footnote, that
the confrontation clause does not bar the admission of testimonial
statements that are admitted for purposes other than proving the truth
of the matter asserted. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at
197 n.9, 124 S. Ct. at 1369 n.9, citing Tennessee v. Street, 471 U.S.
409, 414, 85 L. Ed. 2d 425, 431, 105 S. Ct. 2078, 2081-82 (1985); see
also Lovejoy, 235 Ill. 2d at 142. Stated another way, we need only
consider whether a statement was testimonial if the statements at
issue were, in fact, hearsay statements offered to prove the truth of the
matter asserted. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197
n.9, 124 S. Ct. at 1369 n.9; see also Lovejoy, 235 Ill. 2d at 142;
People v. Johnson, 389 Ill. App. 3d 618, 631-32 (2009); People v.
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Melchor, 226 Ill. 2d 24, 34-35 (2007) (vacating appellate court
judgment and remanding with instructions to consider the hearsay
exception first before proceeding to the sixth amendment issue).
The hearsay rule generally prohibits the introduction of an out-of-
court statement offered to prove the truth of the matter asserted
therein. Lovejoy, 235 Ill. 2d at 145; People v. Tenney, 205 Ill. 2d 411,
432-33 (2002). Underlying facts and data, however, may be disclosed
by an expert, not for the truth of the matter asserted, but for the
purpose of explaining the basis for his opinion. Lovejoy, 235 Ill. 2d
at 143. Moreover, it is well established that an expert may testify
about the findings and conclusions of a nontestifying expert that he
used in forming his opinions. Lovejoy, 235 Ill. 2d at 143.
The defendant argues that the State introduced the Cellmark
report to establish the truth of the matter asserted and it is therefore
hearsay. Without Cellmark’s report, according to the defendant,
Lambatos could not have given her testimony that the defendant’s
DNA matched the profile deduced by Cellmark. The State counters
that Lambatos testified about the Cellmark tests only to explain how
she formed her own opinion. Therefore, the only statement that the
prosecution offered for the truth of the matter asserted was Lambatos’
own opinion. According to the State, presentation of the person who
prepared the DNA profile at Cellmark was not necessary for
confrontation purposes. We agree with the State.
This court has long held that prohibitions against the admission
of hearsay do not apply when an expert testifies to underlying facts
and data, not admitted into evidence, for the purpose of explaining the
basis of his opinion. Lovejoy, 235 Ill. 2d at 142. In Lovejoy, a medical
examiner testified that another toxicologist detected six different
types of drugs in the victim’s body after conducting blood tests,
indicating that poisoning caused the victim’s death. Lovejoy, 235 Ill.
2d at 141. The medical examiner testified that he was trained in
toxicology interpretation and that the toxicology report showed lethal
amounts of several medications in the victim’s blood. Lovejoy, 235
Ill. 2d at 141. He explained how the toxicology report added to his
own physical observations during the autopsy and that it aided him in
determining the cause of death. Lovejoy, 235 Ill. 2d at 144. Following
Wilson v. Clark and its progeny, we noted that experts may not only
consider the reports commonly relied upon by experts in their
particular field, but also to testify to the contents of the underlying
records. Lovejoy, 235 Ill. 2d at 143, citing Wilson v. Clark, 84 Ill. 2d
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186 (1981), People v. Pasch, 152 Ill. 2d 133 (1992). Quoting People
v. Pasch, we explained:
“ ‘While the contents of reports relied upon by experts
would clearly be inadmissible as hearsay if offered for the
truth of the matter asserted, an expert may disclose the
underlying facts and conclusions for the limited purpose of
explaining the basis for his opinion. [Citation.] By allowing
an expert to reveal the information for this purpose alone, it
will undoubtedly aid the jury in assessing the value of his
opinion.’ ” Lovejoy, 235 Ill. 2d at 143, quoting Pasch, 152 Ill.
2d at 176.3
Accordingly, we held that the medical examiner’s testimony repeating
the nontestifying analyst’s conclusions was not admitted for the truth
of the matter asserted, but rather was introduced “to show the jury the
steps [the examiner] took prior to rendering an expert opinion in this
case.” Lovejoy, 235 Ill. 2d at 144. Consequently, there was no
confrontation clause violation. Lovejoy, 235 Ill. 2d at 145.
Our appellate court addressed a similar factual situation in People
v. Johnson, 394 Ill. App. 3d 1027 (2009). In Johnson, the defendant
challenged an expert’s testimony regarding DNA test results, arguing
that he had no opportunity to cross-examine the analysts who
conducted the testing. The court observed that experts are permitted
to disclose underlying facts and data to the jury in order to explain the
basis for their opinions. It concluded that the State offered the DNA
report at issue as part of the basis for the expert opinion and no
confrontation violation occurred. 394 Ill. App. 3d at 1034.
Like Lovejoy and Johnson, Lambatos’ testimony about
Cellmark’s report was not admitted for the truth of the matter
asserted. The State introduced this testimony, rather, to show the
underlying facts and data Lambatos used before rendering an expert
opinion in this case. Lovejoy, 235 Ill. 2d at 144. The evidence against
the defendant was Lambatos’ opinion, not Cellmark’s report, and the
testimony was introduced live on the witness stand. Indeed, the report
was not admitted into evidence at all. Rather, Lambatos testified to
3
As we noted in Lovejoy, Federal Rule of Evidence 703, upon which the
Wilson opinion was based, has been amended. Illinois has not adopted the
amended version of Rule 703, and the defendant does not ask us to consider
the amended version of the rule in this case.
-14-
her conclusion based upon her own subjective judgment about the
comparison of the Cellmark report with the existing ISP profile. Cf.
P. Gianelli & A. Imwinkelreid, Scientific Evidence §18.04(b), at 57
(4th ed. 2007) (“when technical problems materialize, it can be very
difficult to interpret the electropherograms. *** Thus, there is room
for subjective judgment”).
For instance, at trial, the defense attorney questioned her if she
confused the defendant’s DNA with L.J.’s DNA. He asked Lambatos
if the alleles were not more consistent with the victim than the
defendant at several loci. When asked about a specific locus called
“T-POX,” Lambatos responded:
“In my opinion with this profile, it is a mixture so when we
have a mixture you are looking at the profile as a whole ***
and it’s important to note that the alleles at each locus on a
DNA molecule that we look at are very common. It is not
uncommon for you and I to have the same alleles at a locus or
you and I to have the same alleles. The power of this DNA
comes with looking at all 13 areas of the DNA because it’s
that uniqueness looking at all 13 that’s going to give us
numbers. And here like a T-POX and in the other two that
you mentioned, there are only two alleles and like I say in my
opinion there are only two people in this profile and it just
may so happen that they share an 8 or that they share an 11 or
it may so happen that she is an 8 and 11 and he is just an 11,
11, or he is an 8, 11 and she is an 8, 8. There’s only certain
possibilities that can be attributed at each locus.”
After defense counsel stated that Lambatos’ interpretation could have
erred because of a degraded sample, she stated:
“Yes, it’s possible to have a degraded sample but if the
sample was degraded, that would be known by our earlier
examination of the evidence [by Hapack]. We determine the
quantity and the DNA that we have and the quality of the
DNA and also after we look at the electropherograms, you can
see the degradation, their specific patterns, and the data looks
a certain way when it is degraded. The peaks aren’t as
defined. They slope off missing here and there. Different
things happen with degradation, and I didn’t see any evidence
of degradation in this particular fraction.”
The defendant’s suggestion that Lambatos was merely a “conduit”
for Cellmark’s report and that the report was entirely dispositive of
-15-
Lambatos’ opinion, and thus hearsay, is not compelling. Her
testimony consisted of her expert comparison of the DNA profile in
the ISP database with the DNA profile from the kit prepared by
Cellmark. She used her own expertise to compare the two profiles
before her: the blood sample prepared by Kooi and the semen sample
prepared by Cellmark. She also did not observe any problems in the
chain of custody or any signs of contamination or degradation of the
evidence. Lambatos ultimately agreed with Cellmark’s results
regarding the male DNA profile. But Lambatos additionally made her
own visual and interpretive comparisons of the peaks on the
electropherogram and the table of alleles to make a conclusion on the
critical issue: that there was a match to the defendant’s genetic
profile. Accordingly, Cellmark’s report was not used for the truth of
the matter asserted and was not hearsay.
The defendant further asserts that the instant matter is “directly
analogous” to the United States Supreme Court’s recent holding of
Melendez-Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314,
129 S. Ct. 2527 (2009). In Melendez-Diaz, the Court considered
whether a certification by a forensic lab analyst as to the nature and
weight of a controlled substance was a testimonial statement, and thus
its admission in lieu of live testimony by the analyst violated the sixth
amendment right to confrontation. The defendant in that case, Luis
Melendez-Diaz, was charged with cocaine trafficking in an amount
between 14 and 28 grams. Melendez-Diaz, 557 U.S. at ___, 174 L.
Ed. 2d at 320, 129 S. Ct. at 2530. At trial, the prosecution placed into
evidence white plastic bags containing a substance that resembled
cocaine. Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 319-20,
129 S. Ct. at 2530. It also submitted three “certificates of analysis”
showing the results of forensic analysis performed on the seized
substances. The certificates reported the weight of the substances and
stated that the bags “ ‘[have] been examined with the following
results: The substance was found to contain: Cocaine.’ ” Melendez-
Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. The
certificates were sworn to before a notary public by analysts at the
State Laboratory Institute of the Massachusetts Department of Public
Health as required by Massachusetts law. Melendez-Diaz, 557 U.S.
at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. Massachusetts law
permitted the use of such affidavits to provide prima facie evidence
of the analyzed substance’s composition, quality and net weight.
Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at
2531.
-16-
In a 5-4 decision, the Court held that, following Crawford, the
analyst’s certificates “were testimonial statements and the analysts
were ‘witnesses’ for purposes of the Sixth Amendment. Absent a
showing that the analysts were unavailable to testify at trial and that
petitioner had a prior opportunity to cross-examine them, petitioner
was entitled to “ ‘ “be confronted with” ’ the analysts at trial.”
Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 322, 129 S. Ct. at
2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S.
Ct. at 1365. The Court found the “case involves little more than the
application of our holding in Crawford.” Melendez-Diaz, 557 U.S. at
___, 174 L. Ed. 2d at 332, 129 S. Ct. at 2542, citing Crawford, 541
U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354.4
The Court based its holding on two rationales derived from
Crawford. First, the forensic analyst’s certificates were within the
“core class of testimonial statements” in Crawford. Because the
critical issue was whether the substance was cocaine, the Supreme
Court found that “[t]he ‘certificates’ are functionally identical to live,
in-court testimony, doing ‘precisely what a witness does on direct
examination.’ ” Melendez-Diaz, 557 U.S. at ___, 314 L. Ed. 2d at
321, 129 S. Ct. at 2532, quoting Davis v. Washington, 547 U.S. 813,
830, 165 L. Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). Second,
the Court stated, “not only were the affidavits ‘ “made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial,” ’
[citation] but under Massachusetts law the sole purpose of the
affidavits was to provide ‘prima facie evidence of the composition,
quality, and the net weight’ of the analyzed substance.” (Emphasis in
original.) Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321, 129
S. Ct. at 2532, quoting Mass. Gen. Laws, ch. 111, §13.
The majority explicitly rejected the suggestion that the
prosecutors were required to call each person involved in the chain of
custody to the witness stand. Responding to the dissent in a footnote,
the majority stated:
4
Justice Thomas, in providing the fifth vote, “join[ed] the Court’s opinion
in this case because the documents at issue in this case ‘are quite plainly
affidavits,’ [citation]. As such, they ‘fall within the core class of
testimonial statements’ governed by the Confrontation Clause. [Citation.]”
Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 333, 129 S. Ct. at 2543
(Thomas, J., concurring).
-17-
“[We] do not hold, and it is not the case, that anyone
whose testimony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the testing
device, must appear in person as part of the prosecution’s
case. *** ‘[G]aps in the chain [of custody] normally go to the
weight of the evidence rather than its admissibility.’ It is up
to the prosecution to decide what steps in the chain of custody
are so crucial as to require evidence; but what testimony is
introduced must (if the defendant objects) be introduced live.
Additionally, documents prepared in the regular course of
equipment maintenance may well qualify as nontestimonial
records.” (Emphasis omitted.) Melendez-Diaz, 557 U.S. at
___ n.1, 174 L. Ed. 2d at 322 n.1, 129 S. Ct. at 2532 n.1.
Accordingly, the Court in Melendez-Diaz held that the defendant’s
confrontation clause right had been violated.
We find that Melendez-Diaz does not change our determination.
In Melendez-Diaz, the disputed evidence was a “bare-bones
statement” that the substance was cocaine, and the defendant “did not
know what tests the analysts performed, whether those tests were
routine, and whether interpreting their results required the exercise of
judgment or the use of skills that the analysts may not have
possessed.” Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 327,
129 S. Ct. at 2537. Here, Lambatos testified about her own expertise,
judgment, and skill at interpretation of the specific alleles at the 13
loci, and confirmed her general knowledge of the protocols and
procedures of Cellmark. Lambatos also conducted her own statistical
analysis of the DNA match. She did not simply read to the judge,
sitting as a fact finder, from Cellmark’s report. This is in contrast to
Cellmark’s report, which did not include any comparative analysis of
the electropherograms or DNA profiles and was not introduced into
evidence. Cellmark’s electropherogram, rather, was part of the
process used by Lambatos in rendering her opinion concluding that
the profiles matched. Thus, Lambatos’ opinion is categorically
different from the certificate in Melendez-Diaz.
In sum, the State did not offer Lambatos’ testimony regarding the
Cellmark report for the truth of the matter asserted and this testimony
did not constitute “hearsay.” Thus, the trial court and appellate court
properly concluded that Crawford considerations did not apply here.
Lambatos disclosed the underlying facts from Cellmark’s report for
the limited purpose of explaining the basis for her opinion on the
-18-
critical issue concerning whether there was a DNA match between the
defendant’s blood sample and the semen sample recovered from L.J.
By allowing the expert to reveal the information for this purpose
alone, it undoubtedly aided the judge, sitting as the factfinder, in
assessing the value of Lambatos’ opinion. Lovejoy, 235 Ill. 2d at 143,
quoting Pasch, 152 Ill. 2d at 176; see also Johnson, 394 Ill. App. 3d
at 1034 (“The Cellmark report was not offered to prove the truth of
its contents”). Finally, the record demonstrates that the gaps in the
chain of custody went to the “ ‘weight of the evidence rather than its
admissibility’ ” (Melendez-Diaz, 557 U.S. at ___ n.1, 174 L. Ed. 2d
at 322 n.1, 129 S. Ct. at 2532 n.1, quoting United States v. Lott, 854
F.2d 244, 250 (7th Cir. 1988)), and our review of the record shows
that Lambatos’ conclusion was tested “in the crucible of
cross-examination.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199,
124 S. Ct. at 1370; see also Delaware v. Fensterer, 474 U.S. 15, 20,
88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985) (the sixth amendment
“guarantees an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent,
the defense might wish”(emphasis in original)).
Sentencing
We note that the defendant was subject to two mandatory natural
life sentences for his aggravated criminal sexual assault convictions
and a concurrent term of 15 years for the aggravated robbery
conviction. The defendant was also convicted of aggravated
kidnapping, for which the trial court imposed an extended-term
sentence of 60 years in prison. The trial court ordered that the 60-year
sentence was to run consecutively to the end of his natural life
sentences. The appellate court vacated that portion of the circuit
court’s order imposing the consecutive sentence, and instead
modified the defendant’s sentence to impose concurrent sentences for
those convictions. 385 Ill. App. 3d at 371. This court recently held in
People v. Petrenko, No. 107503 (June 4, 2010), that a sentence
consecutive to a natural-life sentence was proper. We therefore
reverse the appellate court on this issue and do not disturb the trial
court’s order.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
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affirmed in part and reversed in part.
Appellate court judgment affirmed in part
and reversed in part.
JUSTICE FREEMAN, specially concurring:
I agree that defendant’s convictions and sentences must be
affirmed. With respect to defendant’s appeal in which he raises
several evidentiary challenges, I concur in the court’s judgment for
reasons other than those expressed in its opinion. With respect to the
State’s cross-appeal, I join in that portion of the opinion reversing the
appellate court’s modification of defendant’s sentence.
My concerns in this case are based on the lack of foundation for
Sandra Lambatos’ testimony. Lambatos was employed at the Illinois
State Police Crime Laboratory at the time defendant’s DNA was
connected to the sexual assault at issue. Lambatos testified that the
male DNA profile generated from the victim’s vaginal swabs
matched the DNA generated from a known sample of defendant’s
blood. Lambatos also testified that the statistical probabilities for such
a match were astronomical. The crux of defendant’s argument is that
Lambatos’ opinion was based on a DNA profile that was generated
by Cellmark Laboratory. Due to backlogs at the Illinois State Police
Lab at the time of the testing, that lab often sent blood and semen
samples to Cellmark, located in Maryland, in order for DNA material
to be extracted from the samples. Cellmark would then amplify the
extracted DNA material in order to produce a profile. The profile is
thereafter used to produce a chart for comparison purposes. As
defendant correctly notes, Lambatos did not conduct any of the
scientific procedures used at Cellmark to generate the male DNA
profile from the victim’s vaginal swabs and she had no personal
knowledge of any of the conditions at the lab when the profile was
generated.
The court dismisses defendant’s contentions based on Lambatos’
testimony that “because Cellmark was an accredited laboratory,
calibrations, internal proficiencies, and controls had to be in place for
the DNA analysis to be completed in this case.” Slip op. at 9. The
court concludes that because witnesses like Lambatos are permitted
-20-
in Illinois to give an opinion without disclosing the facts or data upon
which the expert bases her opinion, such testimony is sufficient. Slip
op. at 8. In other words, Lambatos’ foundational testimony was based
upon data reasonably relied upon by other experts in her field, and
defendant’s appellate concerns relate to the weight of the evidence,
not its admissibility. Slip op. at 8-9.
An expert may certainly base her opinion on information
reasonably relied upon by other experts in the field. See, e.g., Wilson
v. Clark, 84 Ill. 2d 186 (1981). But that was not what occurred here.
Strikingly absent from Lambatos’ testimony is any information about
Cellmark’s extraction and amplification processes in generating the
profile that was used to produce the data upon which she relied in her
making comparisons. Lambatos’ “testing” in this case consisted of
her own reading to match up the numbers generated on the computer
charts, which was derived from Cellmark’s underlying scientific
processes. What Lambatos failed to testify to during her examination
was what occurred at Cellmark beginning from when Cellmark
received the package containing the victim’s vaginal swabs and blood
sample to when Cellmark analysts performed the extraction and
amplification procedures. Instead, she speculated that because
Cellmark was accredited, “they would have to meet certain guidelines
to perform DNA analysis for the Illinois State Police so all those
calibrations and internal proficiencies and controls would have had
to have been in place for them to perform the DNA analysis.”
Lambatos’ testimony on this point is insufficient. First, with
respect to the fact of accreditation, Lambatos did not identify when
or by whom Cellmark received its accreditation. Whether a laboratory
is accredited is a fact that can be established without the need of an
expert witness. Here, Lambatos’ testimony does not establish that
Cellmark was accredited; rather, it was her opinion that the laboratory
was accredited at the time it ran the tests. Further, Lambatos did not
base her assumption that “certain guidelines *** would have had to
have been in place” on sources such as the report of another expert,
i.e., the written report of the technicians who generated the profile or
even the lab’s logbook at the time the profile was generated. See
United States v. Lawson, 653 F.2d 299, 301-02 (7th Cir. 1981)
(allowing testifying psychiatrist to base opinion under Rule 703 on
staff reports and defendant’s interviews with other physicians);
O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978)
(allowing physician expert to testify under Rule 703 as to the patient’s
-21-
version of other doctors’ opinion because expert had reports of two
doctors as well as a hospital report). Lambatos’ opinion regarding
whether Cellmark followed proper guidelines at the time the DNA
material was extracted and amplified was not based on anything other
than her rank speculation that it “had to have been done” solely
because Cellmark was an accredited lab.
While I do not believe that Lambatos is required to personally
verify the protocols used by Cellmark to generate the DNA profile
from the swab, she, at the very least, should be able to point to
something concrete in order to give her opinion as to what protocols
were used at the time the profile was generated. She did not. There
was no testimony on which protocols were used. In fact, Lambatos
admitted that Cellmark used procedures and standards that were
different from those used by her own employer, the Illinois State
Police Crime Laboratory. Although Lambatos stated that she
personally “helped develop line proficiency tests to be administered
to analysts at Cel[l]mark,” nothing in her testimony revealed that the
analysts who performed the DNA extraction and amplification in this
case had taken, let alone passed, the tests she had developed or that,
when the tests were run, they were run according to the standards
preferred by the Illinois State Police Lab.
The lack of any information regarding Cellmark’s generation of
the male DNA profile from the victim’s vaginal swabs contrasts
sharply with the testimony the State produced with respect to the
DNA profile generated from defendant’s blood sample by Karen
Kooi, upon which Lambatos also relied to read and match up the
numbers on her chart. Kooi, an employee of the Illinois State Police
Crime Lab at the time, testified as to the protocols she used to
generate the DNA profile taken from defendant’s blood.5 Kooi further
stated that she utilized “clean lab” techniques when she generated the
profile.
This case, therefore, differs from People v. Sutherland, 223 Ill. 3d
187 (2006), upon which the court primarily relies in reaching its
conclusion today. There, the witness in question was an employee of
the laboratory which did the DNA analysis, who not only testified at
trial, but who had also testified at the Frye hearing. Moreover, the
5
Kooi identified the national guidelines that the Illinois State Police
Crime Lab follows and testified that she followed the guidelines in this
case.
-22-
defendant had received from the State, pursuant to Rule 417(b),
extensive information including records reflecting compliance with
quality control guidelines. Sutherland, 223 Ill. 2d at 280-81. In fact,
even the defendant’s own DNA expert was able to testify from the
records produced that the lab’s results were “clean.” Sutherland, 223
Ill. 2d at 282. These facts render Sutherland distinguishable.
Two cases from our appellate court support my point regarding
foundation. In People v. Johnson, a panel of the First Division of the
First District held that a sufficient foundation was established where
the DNA expert, an actual employee of Cellmark, testified that
although she did not personally perform any of the testing used to
generate the male DNA profile from the sexual assault kit, she based
her opinion on records used in the ordinary course of business. People
v. Johnson, 389 Ill. App. 3d 618 (2009). In particular, the witness
relied on a written Cellmark report, which indicated that 10 Cellmark
analysts had been involved in the lab work in the case and that all the
methods used, conclusions and results reached were to a reasonable
degree of scientific certainty. Johnson, 389 Ill. App. 3d at 626-27.
Another witness, who like Lambatos was employed by Illinois State
Police, testified that he compared the Cellmark-generated male DNA
profile to the DNA panel he had generated from saliva obtained from
the defendant and concluded that they were a match. Like Lambatos,
he testified as to the statistical probabilities of the match. In holding
that an adequate foundation for Cellmark’s work had been established
for the Cellmark witness, the court found it significant that the
witness actually worked for Cellmark, which was the lab that
generated the DNA profile from the victim’s samples. Johnson, 389
Ill. App. 3d at 629-30. She also performed an independent review of
the work to make sure all of the procedures done at the lab were
followed correctly, which the court held was sufficient foundation
upon which to partially base her assessment and conclusion. Johnson,
389 Ill. App. 3d at 630. I note that the court stressed, in reaching its
conclusion, that the foundational testimony was stronger than that in
this case, specifically citing the Third Division’s opinion in this case.
Johnson, 389 Ill. App. 3d at 629.
Similarly, in People v. Johnson, 394 Ill. App. 3d 1027 (2009), a
panel from the Sixth Division of the First District held that a
sufficient foundation was established where the DNA expert, again
an actual employee of Cellmark, testified not only about the proper
procedures that were expected to be utilized at her lab, but that the
-23-
case file indicated that those procedures had been followed with
respect to the DNA profile in question. To reach this conclusion, the
witness relied on the records of other Cellmark employees, which
indicated that the proper procedures had been followed. Therefore,
although the witness did not perform any of the testing, her testimony
showed a sufficient foundation of Cellmark’s procedures and
specifications upon which to partially base her assessment and
conclusion. Johnson, 394 Ill. App. 3d at 1040. The court stressed that
the foundation in the case was stronger than that found sufficient by
the appellate court in this case.
Lambatos’ testimony is demonstrably different from the testimony
in either of the Johnson opinions. Lambatos’ direct testimony was
based on two documents offered into evidence by the State, which
consisted of two shipping manifests from FedEx. One manifest
showed that the victim’s vaginal swabs and blood standards were sent
to Cellmark from the Illinois State Police Crime Laboratory on
November 28, 2000, and were received by Cellmark on November
29, 2000. The second manifest showed that the victim’s samples were
“sent back from Celmark [sic]” on April 3, 2001, along with samples
from “other cases” that had nothing to do with the present case.
Lambatos testified that she relied on these two pieces of evidence
when she did the work in this case. I submit that these shipping
manifests are not the kind of “facts or data” contemplated by this
court in Wilson. Unlike the witnesses in the Johnson cases, Lambatos
was not a Cellmark employee. She did not rely on the detailed type of
reports that those witnesses relied upon. She did not know who
performed the tests at Cellmark nor could she testify as to what
protocols, if any, they followed. The shipping manifests, which are
not enough to even establish a proper chain of custody once the
samples reached their destination at Cellmark, certainly cannot
establish whether a laboratory was “clean” or whether Lambatos’
protocols were actually followed.
By accepting Lambatos’ assumption that because Cellmark was
accredited, the protocols she had personally developed for the lab to
use were, in fact, used to generate the DNA profile, the court errs in
finding that an adequate foundation was laid. The court relies on the
fact that Lambatos used her expertise and professional judgment to
compare the DNA profiles in this case. But the problem with this is
that there was no foundation established for the DNA profile
generated by Cellmark. Lambatos’ opinion that the DNA profile
-24-
generated there matched defendant’s DNA profile does not change
that fact. It is certainly the law that alleged infirmities in the
performance of a test usually go to the weight of the evidence, not to
its admissibility. Slip op. at 11. Courts should not automatically
exclude scientific evidence whenever a forensic analyst deviates from
a correct test protocol in minor respects; instead, the deviation would
have to materially affect the outcome in order to warrant exclusion.
E. Imwinkelried, The Debate in the DNA Cases Over the Foundation
for the Admission of Scientific Evidence: The Importance of Human
Error as a Cause of Forensic Misanalysis, 69 Wash. U.L.Q. 19, 46
(1991). Here, however, Lambatos could not offer any testimony to
establish any protocol. Contrary to what the court rests its analysis
upon, there is simply no foundational evidence to “weigh.”
Last, and of equal importance, the court today implies that the
scientific process involved in DNA analysis is “not comparable” to
narcotics Gas Chromotography Mass Spectrometer (GCMS) testing
because Lambatos did not “regurgitate” the results from Cellmark as
experts do with respect to GCMS test results. Slip op. at 10.
Lambatos took on faith the DNA profile generated by Cellmark from
the victim’s samples, assuming that because the lab was accredited all
quality controls were in place when the profile was created. This
seems no different from how expert witnesses in drug cases view the
results from the GSMS machine. Unfortunately, it has been well-
documented in DNA cases that “[q]uality control and quality
assurances procedures that are followed religiously in some labs are
ignored or followed intermittently in others.” W. Thompson, Tarnish
on the “Gold Standard”: Understanding Recent Problems in
Forensic DNA Testing, 30 Champion 10, 11-12 (January-February
2006). The failure to employ quality control and quality assurance
procedures can result in DNA matches in criminal cases that are
wrong because of sample contamination or misconduct on the part of
the technician. 30 Champion at 11-12. This explains why an adequate
foundation is as essential in DNA cases as it is in drug cases. Given
the impact a DNA match has on the trier of fact, courts must be
vigilant in ensuring that DNA evidence is admitted with proper
foundation. This is particularly so in jury cases where lay people
might not be able to appreciate arguments which go to weight once
they hear of a match that is one in a billion.
Based on the foregoing, I would hold that the foundation for
Lambatos’ testimony was insufficient, and the circuit court abused its
-25-
discretion in admitting it. Based on my resolution of defendant’s
foundational challenge, I need not reach defendant’s sixth amendment
confrontation clause argument.
Although I believe the circuit court abused its discretion by
admitting Lambatos’ testimony without proper foundation, the error
does not require a new trial. The testimony of a single witness, if it is
positive and the witness credible, is sufficient to convict a defendant.
People v. Smith, 185 Ill. 2d 532, 541 (1999). In this case, the trial
judge specifically found defendant guilty on the basis of the victim’s
testimony, which he characterized as “highly credible.” The trial
judge also commented specifically on the strength of the victim’s
lineup identification and her in-court identification. The judge found
the victim to be “an outstanding witness” and believed her testimony
“a hundred percent.” These findings indicate to me that the error in
admitting Lambatos’ testimony was harmless. On that basis, I would
affirm the convictions.
JUSTICE BURKE, concurring in part and dissenting in part:
I join the part of Justice Freeman’s special concurrence that
concludes that the circuit court abused its discretion in admitting
Lambatos’ testimony. I write separately because I disagree with the
majority’s resolution of the consecutive-sentencing issue. The
defendant was sentenced to two concurrent natural-life terms for the
aggravated criminal sexual assault counts and a concurrent 15-year
term for aggravated robbery. Defendant received an additional 60-
year prison term for aggravated kidnapping, to be served
consecutively to the natural-life terms. The appellate court held,
pursuant to our decision in People v. Palmer, 218 Ill. 2d 148 (2006),
that a term of years could not be served consecutively to a term of
natural life. Accordingly, the court vacated that portion of the circuit
court’s order imposing consecutive sentences and modified
defendant’s sentence to impose concurrent sentences. 385 Ill. App. 3d
at 371. The majority now reverses the appellate court. Relying on
People v. Petrenko, No. 107503 (June 4, 2010), which overruled
Palmer on this point, the majority in the case at bar has held that a
sentence consecutive to a natural-life sentence was proper. For the
same reasons set forth in my partial concurrence and partial dissent
in Petrenko, I do not believe that good cause exists to overrule
Palmer. Therefore, I would affirm the appellate court below on the
-26-
consecutive-sentencing issue.
-27-