dissenting:
Because I believe that the evidence against defendant Cecil Sutherland, while certainly suspicious, was far from “overwhelming” (155 Ill. 2d at 18), and because the defendant failed to receive a trial free from prejudicial error, I would reverse defendant’s convictions and remand for a new trial. Thus, I respectfully dissent.
I begin with the areas in which the majority and I agree. The majority correctly explained the appropriate standard of review in this case. “When faced with a challenge to the sufficiency of the evidence, the relevant inquiry for the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (155 Ill. 2d at 17.) The reviewing courts apply this standard regardless of whether the evidence is direct or circumstantial.
At trial, David Brundage, an Illinois State Police forensic scientist, testified that the tire impressions found at the crime scene were “consistent” with two models of tires manufactured in North America: the Cooper “Falls Persuader,” and the Cooper “Dean Polaris.” Defendant’s right front wheel had a Cooper “Falls Persuader” on it. Consequently, Brundage was able to conclude that the tire impression “could have been made” by defendant’s right front tire. (155 Ill. 2d at 9.) Along the same lines, Mark Thomas, manager of operations at Cooper Tire Company, concluded that the “probability” was “pretty great” that the same size tire as defendant’s made the impression. However, Thomas acknowledged that there were a “significant” number of such tires on the road.
Kenneth Knight testified for the State that two pubic hairs found in the victim’s rectal area “could have originated” from the defendant. Further, 34 dog hairs found on the victim’s clothes “could have originated” from the defendant’s black labrador, Babe.
With regard to the 29 gold fibers found on the victim’s socks, shoes, underwear, shorts and shirt, Knight similarly testified that 28 of these 29 gold fibers “could have originated” from defendant’s auto carpet. However, Knight acknowledged that he could not conclude that these gold fibers originated from defendant’s auto carpet to the exclusion of all other auto carpets.
With regard to the 12 cotton and 4 polyester fibers found on the front passenger seat of the defendant’s car, Knight concluded that the fibers displayed the same size, shape, and color of the fibers from the victim’s shirt, and thus they “could have originated” from the shirt. In terms of the three polyester fibers found in defendant’s car, Knight stated that they were consistent in diameter, color, shape and optical properties with the fibers from the victim’s shorts, and thus they “could have originated” from the shorts.
Based on the above evidence, the majority concludes:
“Given the overwhelming and overlapping nature of the circumstantial evidence in this case, we are not prepared to say that the evidence is so unreasonable, improbable, or so unsatisfactory as to justify' a reasonable doubt of defendant’s guilt.” 155 Ill. 2d at 18.
The majority’s finding, namely, that the circumstantial evidence was “overwhelming,” I believe is grossly in error. In my opinion, the sum total of all of this circumstantial evidence leads one to the less than convincing belief that it “could have been” the defendant who committed this brutal crime. Nearly half of the proffered circumstantial evidence has holes in it. With regard to the tire impression evidence, Mark Thomas did not state that the “probability” was “pretty great” that it was defendant’s right front tire that made the impression near the crime scene but, rather, that the “probability” was “pretty great” that the same size tire as the defendant’s made the impression. This is a distinction with a great deal of difference. Equally important is Thomas’ concession that there were a significant number of such tires on the road.
In terms of the 12 cotton fibers found in the defendant’s car which the State’s expert, Kenneth Knight, stated could have originated from the victim’s shirt, the defense expert Richard Brisbing noticed differences in the size and color of these cotton fibers. Thus, like the tire impression evidence, this evidence is not as convincing as the majority finds.
Consequently, because the circumstantial evidence suggesting that the defendant committed this crime was far from overwhelming, and because two prejudicial errors occurred which denied the defendant a fair trial, I would reverse defendant’s convictions and remand for a new trial.
The first trial error involves the admission of knives which were found in defendant’s possession at the time of his arrest. At trial, the State admitted into evidence a bayonet knife, a long knife with a jagged edge, and five other knives. The trial court admitted this evidence believing that it had “some slight probative value” and that it would not prejudice the defendant. (155 Ill. 2d at 19.) The majority agrees with the trial court, and states that “the choice of method of execution tends to indicate an affinity for such a weapon.” (155 Ill. 2d at 20.) However, apparently none of these knives has been connected to this crime through forensic tests. Further, they were found in defendant’s possession while he was at the Glacier National Park, not an unlikely place to find an individual carrying knives.
As the majority correctly notes, relevant evidence may be excluded if its prejudicial effect substantially outweighs its probative value. (155 Ill. 2d at 19.) A reviewing court will not disturb a trial court’s determination absent an abuse of discretion. (People v. Shum (1987), 117 Ill. 2d 317, 353.) In this instance, assuming for the moment the probative value of these knives, I believe that their admission resulted in substantial prejudice to the defendant. The fact that knives were found in defendant’s possession several months after the crime, in a location approximately 1,500 miles from the crime scene, and that they were in no way connected to the crime served only to overpersuade the jury that the defendant was a dangerous and violent individual. Thus, their prejudicial effect substantially outweighed their probative value, which was minimal at best.
The second error which I believe requires reversal of defendant’s convictions involved improper statements by the prosecutor during closing argument. Based on People v. Linscott (1991), 142 Ill. 2d 22, and People v. Giangrande (1981), 101 Ill. App. 3d 397, the majority recognizes that the prosecutor overstated the circumstantial evidence regarding the gold fibers and the cotton fibers found on the victim’s socks, shoes, and shorts, and in the defendant’s auto, respectively. (155 Ill. 2d at 22-26.) However, despite this error, the majority reasons that the improper characterization of the evidence did not result in substantial prejudice to the defendant. The majority concludes that because the evidence was not closely balanced, the prosecutor’s improper remarks could not have been a material factor in defendant’s convictions. (155 Ill. 2d at 25.) As noted earlier, I disagree with the majority’s characterization of the evidence as “overwhelming,” and firmly believe that regardless of whether the evidence was sufficient to support a conviction, it clearly was not so overwhelming as to render this prosecutorial error harmless.
For the reasons stated above, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.