Opinion
1-22-1573
05-17-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC LYNON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 19 CR 0248401 Honorable Margaret Ogarek, Judge Presiding.
JUSTICE LYLE delivered the judgment of the court. Presiding Justice Mitchell and Justice Navarro concurred in the judgment.
ORDER
LYLE JUSTICE
¶ 1 Held: We affirm defendant's conviction and sentence where he failed to show that he was prejudiced by trial counsel's allegedly deficient performance.
¶ 2 Following a jury trial, defendant Eric Lynon was found guilty of criminal sexual abuse, then sentenced by the trial court to a term of seven years' imprisonment. During the trial, the State played portions of Mr. Lynon's electronically recorded interview (ERI) with police detectives where Mr. Lynon maintained that the interaction between him and the victim, KBR, was consensual. During the ERI, one of the detectives asked Mr. Lynon if he would be willing to take a polygraph examination. Mr. Lynon initially hesitated to accept, but ultimately agreed to submit to a polygraph test on the condition that a lawyer be present.
¶ 3 On appeal, Mr. Lynon contends that his trial counsel was ineffective in failing to redact the polygraph test discussion from the portion of his ERI that was played for the jury. Mr. Lynon asserts that his counsel was objectively unreasonable in allowing the jury to hear these references to a polygraph examination and that he was prejudiced by this ineffective representation because the trial came down to a credibility contest between his custodial statement and KBR's testimony. For the reasons that follow, we find Mr. Lynon has failed to demonstrate that there is a reasonable probability that the result of his trial would have been different if the polygraph discussion from his ERI had not been played for the jury. We therefore find that trial counsel did not render ineffective assistance and we affirm the judgment of the circuit court.
¶ 4 I. BACKGROUND
¶ 5 At trial, KBR testified that she was 22 years old when she met Mr. Lynon on a dating website called Tagged. She eventually gave him her cellphone number and they continued communicating by phone for about three weeks. KBR saw their relationship as a "possible beginning of a dating relationship." On the evening of January 11, 2019, KBR planned to stay at her cousin's house, but her cousin was not home. She contacted Mr. Lynon about meeting up with him, and he sent her an address. Before she arrived, she told Mr. Lynon that she was menstruating and asked him to purchase tampons and bodywash for her from the store. When she arrived at the address Mr. Lynon had sent, she discovered that it was the Sleep Inn hotel. Mr. Lynon instructed KBR to park next to his vehicle, then he let her into the hotel through a side door and they went into a room together.
¶ 6 Inside the hotel room, KBR told Mr. Lynon that she wanted to take a shower and observed that he had purchased her bodywash and pads. After the shower, KBR put on her clothes and she and Mr. Lynon sat on the bed and talked about their lives. They ordered pizza and drank wine. Mr. Lynon drank four cups of wine, but KBR drank half a cup and refused Mr. Lynon's offer of more wine. After they ate the pizza, KBR told Mr. Lynon that she was tired and wanted to go to sleep because she had work in the morning.
¶ 7 KBR laid down in the bed with her back to Mr. Lynon. After a few minutes, Mr. Lynon started to rub KBR's breasts and she was "okay" with that. He then "lick[ed] and suck[ed]" on her breasts and she was "okay" with that. Mr. Lynon then tried to put his hands between her legs, but she told him to stop. Mr. Lynon did not stop, so KBR again told him to stop and said that she was "on [her] period." Mr. Lynon still did not stop, and then rolled her over onto her stomach. Mr. Lynon pulled KBR's pants and underwear down, climbed on top of her, and told her to relax. KBR kept telling Mr. Lynon to stop, but he did not. KBR could not see Mr. Lynon, but felt his erect penis "sliding up and down" between her "butt cheeks." KBR begged Mr. Lynon to get off of her, but he continued telling her to "relax."
¶ 8 KBR could not get up with Mr. Lynon on top of her. Then, KBR's phone rang. She could tell it was her mother calling based on the ringtone. KBR asked Mr. Lynon to let her text her mother back, but Mr. Lynon continued telling her to relax. A few minutes later, KBR's mother called her phone again. KBR picked up her phone, but Mr. Lynon grabbed it out of her hand and threw it across the room. KBR tried to get away from Mr. Lynon and the two of them fell onto the ground with KBR lying on her back and Mr. Lynon on top of her.
¶ 9 KBR started screaming, "Somebody help me," but Mr. Lynon covered her mouth and nose with his hand. Mr. Lynon again told her to relax and "[l]et me finish," but she continued screaming, "Room 103. Somebody please help me." After a few minutes, Mr. Lynon stood up, moved to the hotel room door, and told KBR that she was free to go. KBR reached for the door handle and attempted to open it while she continued to scream for help, but Mr. Lynon was standing in front of the door with both arms stretched out preventing her from opening it all the way. Eventually, she was able to open the door and leave the room.
¶ 10 KBR ran from the room screaming, "Somebody call 911. He's trying to rape me." KBR ran to the hotel lobby with her pants down and jumped behind the counter. Once she was behind the counter, she asked a hotel employee for a trash can because she felt like she was going to vomit. Eventually, police arrived and KBR told them what happened. Police transported KBR to the hospital where medical personnel performed a rape kit. The following day, she went to the police department where she identified Mr. Lynon in a photograph array as the person who sexually assaulted her. At trial, KBR identified photographs taken from the hotel room which depicted the hotel room, her and Mr. Lynon's clothing, and the pads he purchased for her.
¶ 11 The State then published several video clips from the hotel surveillance system for the jury. The surveillance video clips were included in the record filed on appeal and reviewed by this court. The surveillance video consists of nine video clips without audio. The videos show KBR and Mr. Lynon arriving at the hotel separately and entering the hotel room together. The surveillance video then shows KBR running out of a room down the hallway toward the hotel lobby. When she exits the room, KBR's pants are pulled down past her hips, but her underwear is on. The video shows KBR arriving in the lobby and jumping on top of the front desk and speaking frantically with employees and other people at the hotel. The video continues and shows a security guard speaking with KBR until police and paramedics arrive. Mr. Lynon can be seen in a separate video clip leaving the hotel with his pants on inside out so that the pocket lining is visible.
¶ 12 Rannisha Ormond testified that on January 11, 2019, she was a security officer at the Sleep Inn hotel. When she entered the hotel lobby at 10:20 p.m. that evening, she immediately heard someone screaming. Ms. Ormond saw the screaming woman running toward her shouting, "Help me, help me, help me." Ms. Ormond saw that the woman's pants and underwear were "halfway down." Ms. Ormond contacted her supervisor as she watched the screaming woman jump over the front desk in the lobby. Ms. Ormond noted that the woman was distraught and said, "He tried to rape me." The State played a clip from the hotel surveillance video and Ms. Ormond identified herself and KBR in the video.
¶ 13 The parties stipulated that hospital personnel conducted a sexual assault kit on KBR on the night of the incident. That sexual assault kit was transferred to a forensic scientist with the Illinois State Police. Megan Neff testified that she was the forensic scientist who received KBR's sexual assault kit, which included swabs from KBR's areolas, and she also received a buccal swab from Mr. Lynon. The results of her DNA testing of the swab from KBR's areolas showed a mixture of two people. Ms. Neff assumed that one was KBR and the other was a male DNA profile from which Mr. Lynon could not be excluded. Ms. Neff also analyzed a swab from KBR's buttocks. Ms. Neff identified a major female DNA profile from which KBR could not be excluded, and a minor DNA profile from which Mr. Lynon could not be excluded. The minor DNA profile would be expected to occur in approximately one in three unrelated individuals.
¶ 14 Karen Abbinanti, an expert in the field of forensic DNA analysis, performed a Y chromosome analysis on the sample from KBR's buttock and the buccal swab collected from defendant. This type of testing, as distinguished from general DNA testing, focuses only on the male DNA in the sample. Using Mr. Lynon's buccal swab, Ms. Abbinanti was able to identify a partial Y chromosome profile from KBR's buttock swab in which Mr. Lynon was included. This profile would be expected to occur in approximately one in 2800 unrelated white males, one in 2300 unrelated black males, or one in 2000 unrelated Hispanic males.
¶ 15 Bedford Park police officer Steven Pelino testified that he responded to a call at the Sleep Inn hotel on the evening of January 11, 2019. When he arrived, he observed KBR crying in the lobby of the hotel. After speaking with KBR, he searched the hotel room she indicated for a "male subject," but no one was in the room.
¶ 16 Bedford Park detective Bryon Gorski testified that on the evening of January 11, 2019, he responded to a call of criminal sexual assault at the Sleep Inn hotel. After searching the hotel, Detective Gorski and his partner spoke to KBR at the hospital. KBR was "crying, trembling, and her voice was shaking" as she spoke to the detectives. KBR accompanied the detectives to the Bedford Park police station. After KBR identified Mr. Lynon in a photograph array, Detective Gorski discovered where Mr. Lynon lived. The detectives went to that location and took Mr. Lynon into custody.
¶ 17 Detective Gorski placed Mr. Lynon in an interview room at the Bedford Park police department. Detective Gorski and his partner interviewed Mr. Lynon and that interview was recorded on video. At defense counsel's request, the State edited the recording to remove references that were made to Mr. Lynon's criminal history. The remainder of the ERI was played for the jury in six separate clips. The six clips from the ERI were included in the record filed on appeal and have been reviewed by this court. Mr. Lynon first confirmed that he had previously signed a written acknowledgment of his Miranda rights and did not want a lawyer present. Mr. Lynon then agreed to speak with the detectives, and they informed him of his Miranda rights again.
¶ 18 Mr. Lynon first told the detectives that he and KBR only laid in the bed and watched television. He denied that anything "sexual" occurred and said they did not kiss. He acknowledged that they may have physically touched one another while lying in the bed, but said that nothing "sexually intimate" occurred. He maintained that he did not know why KBR ran out of the hotel room, stating that there was "something seriously wrong with her." When the detectives pressed Mr. Lynon to tell them about what happened to cause KBR to run out of the room, he repeatedly stated that she could do whatever she wanted to and that he did not attempt to sexually assault her or even touch her. He told the detectives "nothing" was happening before KBR ran out of the room.
¶ 19 When the detectives again asked if there was any physical contact between him and KBR, Mr. Lynon stated that they drank some wine and were "flirting." Mr. Lynon stated that he did not "think" that he kissed her and they were only talking. He added that he thought they "may" have "at most" hugged, but "that's it." He denied that he attempted to stop her from leaving the hotel room.
¶ 20 In the final clip of Mr. Lynon's interview, the two detectives and Mr. Lynon entered the empty interview room together. One of the detectives stated that Mr. Lynon asked to continue the interview because he remembered something that he forgot to tell them previously. Mr. Lynon then told the detectives that there was some "intimacy" between him and KBR. He said he was tired that night and had been drinking wine so he barely remembered the details, but he told the detectives that he "believed" that he and KBR kissed that night. He stated that they were in the hotel bed together, "messing around," but his clothes "never came off." He stated that he fondled KBR's breasts under her shirt or bra, but maintained that there was no other sexual contact between them, that neither of them took off their pants, and that the entire interaction was consensual. He said the "messing around" stopped because he "dozed off' and he woke up when KBR ran out of the room 30 or 45 minutes later. In response to the detective's questions about why his pants were inside out on the surveillance video of him leaving the hotel, Mr. Lynon stated that he may have put on another pair of pants over his pants because it was cold outside.
¶ 21 Toward the end of the portion of the ERI played for the jury, the detectives asked Mr. Lynon if he would be willing to submit to a polygraph test and the following colloquy occurred:
"DETECTIVE: Are you willing to do a DNA swab?
MR. LYNON: A DNA swab? Yeah. Yeah, I'll do a DNA swab.
DETECTIVE: Okay. How about a lie detector test?
MR. LYNON: A lie detector test?
DETECTIVE: Would you be willing to take a polygraph if we asked you about this incident?
MR. LYNON: I mean... I. would, but-
DETECTIVE: So, we can go ahead and set that up?
MR. LYNON: A polygraph?
DETECTIVE: Yeah. MR. LYNON: (Sighs). I would do a polygraph, but at the same time. I don't wanna-you know what. I'll do a polygraph. I'll do a polygraph. But I want it done like, with, like, a lawyer. I don't mind doing a polygraph, to be honest with you. I'll answer the questions. I'll do a DNA swab. like (inaudible) we was chillin' I- I did not rape her or force myself on her."
The interview continued for several more minutes where Mr. Lynon denied that KBR ever told him to "stop" or that she was not interested. Eventually, one of the detectives confirmed that Mr. Lynon was willing to submit to a DNA swab. Mr. Lynon said that he was, and the two detectives and Mr. Lynon left the room, ending the recorded portion of the interview played for jury.
¶ 22 Following closing arguments, the jury found Mr. Lynon guilty of unlawful restraint, criminal sexual abuse, and aggravated criminal sexual abuse during the course of committing unlawful restraint, but not guilty of aggravated battery and aggravated criminal sexual abuse during the course of committing aggravated battery. Following a sentencing hearing, the court merged the convictions into a single count of criminal sexual abuse and sentenced Mr. Lynon to a term of seven years' imprisonment.
¶ 23 After the court denied Mr. Lynon's motion to reconsider sentence, he filed a timely notice of appeal. We find that we have jurisdiction to consider the merits of this appeal pursuant to Illinois Supreme Court Rule 606 (eff. July 1, 2017).
¶ 24 II. ANALYSIS
¶ 25 On appeal, Mr. Lynon contends that his trial counsel provided ineffective assistance where she allowed the jury to consider the references to a polygraph test as evidence. Mr. Lynon maintains that it is well-settled that the results of a polygraph test are inadmissible at trial and that the mere reference to a polygraph test is prejudicial such that his trial counsel provided unreasonable assistance in allowing the jury to hear that portion of the ERI and consider it as evidence. He maintains that the reference to the polygraph test harmed his credibility because he hesitated when the detectives asked if he would submit to a polygraph, which suggested to the jury that he was not being truthful and uncertain about his ability to pass the test.
¶ 26 A. Ineffective Assistance
¶ 27 We review claims of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill.2d 504 (1984). "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Cathey, 2012 IL 111746, ¶ 23 (citing Strickland, 466 U.S. at 687). More specifically, a defendant must show that counsel's performance was objectively unreasonable and that there is a" 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' "Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome"; that is, that counsel's deficient performance rendered the result of the trial "unreliable or the proceeding fundamentally unfair." People v. Watson, 2012 IL App (2d) 091328, ¶ 23 (citing People v. Enis, 194 Ill.2d 361, 376 (2000)). "A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness." People v. Simpson, 2015 IL 116512, ¶ 35. Accordingly, we may dispose of a claim of ineffective assistance of counsel on the ground that it lacks a sufficient showing of prejudice without the need to determine whether counsel's performance was deficient. People v. Johnson, 2021 IL 126291, ¶ 53 (citing People v. Givens, 237 Ill.2d 311, 331 (2010)). We will therefore first address Mr. Lynon's contention that he was prejudiced by counsel's allegedly deficient performance.
¶ 28 1. Prejudice
¶ 29 In order to show that he was prejudiced by counsel's deficient performance, a defendant must show that there is a "reasonable probability" that result of the proceeding would have been different. Cathey, 2012 IL 111746, ¶ 23. This is not an "outcome-determinative" test, but, rather, may be satisfied where the defendant can show that counsel's deficient performance "rendered the result of the trial unreliable or the proceeding fundamentally unfair." People v. Jackson, 205 Ill.2d 247, 259 (2001). Therefore," '[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Johnson, 2021 IL 126291, ¶ 54 (quoting Strickland, 466 U.S. at 691). Rather, to satisfy the prejudice prong, the defendant must show "actual prejudice," and not simply speculate that he may have been prejudiced. People v. Patterson, 2014 IL 115102, ¶ 81. Further, a defendant is required to "affirmatively prove" that prejudice resulted from counsel's alleged errors. Johnson, 2021 IL 126291, ¶ 55." 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.' "Id. (quoting Strickland, 466 U.S. at 693).
¶ 30 First, Mr. Lynon asserts that the improper admission of "polygraph evidence" is "automatic grounds" for reversal because of the effect that it has on the jury's ability to weigh witness credibility. Mr. Lynon is correct that the general rule in Illinois is that evidence regarding polygraph examinations and the results of those tests is inadmissible. People v. Jefferson, 184 Ill.2d 486, 492 (1998). "The problems with polygraph evidence are twofold. First, polygraphy is not sufficiently reliable to establish guilt or innocence. Second, the quasi-scientific nature of the test may lead a trier of fact to give the evidence undue weight, notwithstanding its lack of reliability." Id. at 493.
¶ 31 In support of his contention that automatic reversal is required in this case, Mr. Lynon relies on the supreme court's rulings in People v. Baynes, 88 Ill.2d 225 (1981) and People v. Gard, 158 Ill.2d 191 (1994). In Baynes, the defendant took a polygraph examination before the trial. Baynes, 88 Ill.2d at 230. The trial court received into evidence the testimony of the polygraph examiner who stated that in his opinion the defendant was not telling the truth when he answered certain questions during the polygraph examination. Id. The supreme court found that the admission of this polygraph evidence constituted plain error because "[p]olygraph evidence is not reliable enough to be admitted." Id. at 244. The court found that the admission of polygraph evidence in jury trials should be prohibited because there is a significant risk that the jury will regard the evidence as conclusive. Id. The court therefore ordered a new trial. Id.
¶ 32 In Gard, several witnesses testified that they had been given polygraph examinations. Gard, 158 Ill.2d at 203. The supreme court characterized the references to polygraph evidence at the defendant's trial as "casual and commonplace, virtually ubiquitous." Id. The court found that during the trial the polygraph examination of one of the State's witnesses became "the lodestar by which the jury was invited to measure the truth." Id. The court expanded on its ruling in Baynes that the evidence of a polygraph examination of a defendant is inadmissible at trial, finding that the polygraph examination of a witness was also inadmissible at trial. Id. at 204. "Evidence of polygraph testing is rendered no more reliable, and jurors deem it no less worthy of belief, because the person tested was a witness rather than a defendant." Id.
¶ 33 However, in the years since Baynes and Gard were decided, the supreme court has recognized certain exceptions where the State may introduce "polygraph evidence." For example, in Jefferson, the supreme court held that the trial court did not err in allowing the State to introduce polygraph evidence to rebut the defendant's contention that his confession was coerced. Jefferson, 184 Ill.2d at 495-96. The supreme court found that the defendant opened the door for such evidence when she testified that she signed the inculpatory statement based on promises allegedly made to her by the authorities. Id. at 496. Likewise, in People v. Johnson, 208 Ill.2d 53, 104-05 (2003), the supreme court found that the State could properly introduce evidence that the defendant had taken a polygraph test where defense counsel had called into question the "reliability" of his inculpatory statement to police. Therefore, the State may properly introduce or reference polygraph evidence when it does so for the purpose of impeaching the witness who took the exam. See also People v. Jackson, 202 Ill.2d 361 (2002) (discussing the admissibility of polygraph evidence of a State's witness); People v. Binion, 358 Ill.App.3d 612, 295 (2005) (upholding admission of polygraph evidence of State's witness).
¶ 34 As for defendants who seek to introduce polygraph evidence, the supreme court has found that such evidence is admissible where the defendant sought to introduce the evidence to support his claim that his confession was not credible or reliable. People v. Melock, 149 Ill.2d 423, 45965 (1992). The Melock court reasoned that preventing the defendant from introducing the polygraph evidence deprived him of his fundamental right to present a defense. Id. at 465. As this precedent demonstrates, the bar against polygraph evidence is not as ironclad as Mr. Lynon suggests. Moreover, the supreme court in Baynes and Gard was concerned with polygraph test evidence, that is, the results of a polygraph examination, not the fact that the defendant or a witness merely was offered or agreed to take a polygraph test.
¶ 35 Mr. Lynon maintains, however, that we should follow the fourth district's ruling in People v. Lewis, 269 Ill.App.3d 523 (1995) and hold that the mere reference to the fact that the defendant was offered a polygraph test requires reversal. In Lewis, a detective testified that a witness agreed to take a polygraph examination. Id. at 526. Defense counsel made a contemporaneous objection to the testimony and the trial court sustained the objection and instructed the jury to disregard the testimony. Id. However, the court denied defense counsel's motion for a mistrial. Id. On appeal, the fourth district recognized the supreme court's "repeated[]" and "emphatic[]" condemnation of polygraph examinations. Id. at 527 (citing Baynes, 88 Ill.2d at 244; Gard, 158 Ill.2d at 201). The court found that the police officer's reference to the fact that the "State's key witness" agreed to take a polygraph examination was particularly egregious because it was "gratuitous" and "volunteered" by an "experienced police officer." (Emphasis in original.) Id. The court recognized that the trial court did its best to" 'unring the bell'" by striking the testimony and instructing the jury, but nonetheless found that the polygraph reference denied the defendant his right to a fair trial. Id. The court noted the "extensive conflict" between the defendant's statements and the testimony of the witness who agreed to take the polygraph examination. Id. The court determined that the improper polygraph reference "could have substantially enhanced the credibility of [the witness] in the eyes of the jury." Id.
¶ 36 Mr. Lynon contends that Lewis exhibits Illinois court's condemnation of polygraph evidence and demonstrates that even the mere reference to the fact that a witness agreed to take a polygraph test is so prejudicial as to require a new trial. Notably, however, Lewis was decided before the supreme court's decisions in Jefferson, Johnson, and Jackson, relying instead on the decisions in Baynes and Gard. The fourth district examined its holding in Lewis in light of this later-decided supreme court precedent in People v. Finley, 312 Ill.App.3d 892 (2000), In Finley, a police officer testified that he asked the defendant in the hospital whether he would take a polygraph exam. Id. at 894-95. The police officer testified that the defendant told him that he was not interested in taking the test. Id. at 895. Defense counsel moved for a mistrial because of the reference to the polygraph test, but the trial court denied the motion. Id. On appeal, the fourth district first recognized, relying on Jefferson and Melock, that "there is no per se rule" requiring reversal in all cases where a polygraph examination is mentioned and the court must determine whether the reference denied the defendant a fair trial. Id. at 896.
¶ 37 The court distinguished its holding in Lewis, finding that the police officer's testimony in Lewis that the witness agreed to take a polygraph test "profited" the State, but it was unclear in Finley "how defendant was harmed by the evidence that he refused to take a test." Id. The court found that the trial court did not abuse its discretion in denying the motion for a new trial because "there was no showing of bad faith on the part of the witness, because the testimony was stricken and an appropriate instruction was given, and because there was no showing of substantial prejudice to the defendant." Id. at 897.
¶ 38 We find that the circumstances in this case more closely mirror those present in Finley than those in Lewis. Although the trial court here did not instruct the jury to disregard the reference to the polygraph test, as the trial court did in both Lewis and Finley, it is unclear, based on Mr. Lynon's ultimate agreement to take the polygraph test, despite his apparent initial hesitancy, how he was harmed by the evidence. Moreover, there is no indication that the discussion was presented to the jury in "bad faith." The decision in Lewis was also significantly informed by the supreme court's then-hardline stance on polygraph evidence, which had softened somewhat by the time the fourth district decided Finley. At the time Lewis was decided, Baynes and Gard could reasonably be interpreted to hold that there was a per se bar against any reference to polygraph evidence, a concern expressed by the dissents in Gard. Gard, 158 Ill.2d at 206, 208-09 (Miller, J., dissenting, and Heiple, J., dissenting). It was not until the supreme court's ruling in Jefferson, authored by Justice Miller who had dissented in Gard, that it was clear that there was no such per se rule, as the fourth district recognized in Finley.
¶ 39 However, Illinois courts recognized even before the supreme court's rulings in Jefferson and Jackson that the mere fact that the jury is presented with evidence that the defendant agreed to take a polygraph test is not automatic grounds for reversal. In People v. Skiles, 115 Ill.App.3d 816, 827 (1983), the State played a video of the defendant's recorded interview with authorities where the defendant offered to take a polygraph test. In finding no error, the third district acknowledged that polygraph evidence cannot be admitted into evidence. Id. The court determined, however, that the issue here did not concern polygraph evidence because neither party attempted to introduce polygraph test evidence. Id. The court continued that it knew of "no bar to the admission into evidence of a defendant's statement of a willingness to take a polygraph test." Id. The court also noted that the State did not single out the references to a polygraph test as a basis for the conviction and they were "incidental to the confessions and were heard by the jury in the course of playing the entire tape." Id.
¶ 40 In this case, like in Skiles, the polygraph discussion was "incidental" to Mr. Lynon's statement. Neither party referenced the discussion, and the State did not single out the reference to the polygraph test as a basis for the conviction. Like Skiles and Finley, this court knows of no bar to the admission of evidence that a defendant was willing (Skiles) or unwilling (Finley) to take a polygraph test.
¶ 41 Mr. Lynon nonetheless maintains that he was prejudiced by the polygraph evidence because this case amounted to a credibility contest between his custodial statement and KBR's testimony and there is a reasonable probability that his hesitancy to agree to submit to the polygraph test sufficiently damaged his credibility in the eyes of the jury so as to render the result of the trial unreliable. Generally, a court will find that a conviction turned on a "contest of credibility" where the parties present an opposing version of events and there is no extrinsic evidence presented to corroborate or contradict either version. People v. Sebby, 2017 IL 119445, ¶ 63. However, there can be no "credibility contest" where one party's version of events was either implausible or corroborated by other evidence. People v. Daniel, 2018 IL App (2d) 160018, ¶ 30.
¶ 42 In this case, KBR's version of events was corroborated by other evidence and that corroborating evidence rendered Mr. Lynon's version of the events implausible. KBR testified Mr. Lynon removed his pants, pulled down her pants, and placed his penis between her buttocks. Mr. Lynon told the detectives however, that neither he nor KBR ever removed their pants and the only "sexually intimate" contact they had was kissing and Mr. Lynon's fondling of KBR's breasts. KBR's version of the events is corroborated by both the hotel surveillance video and the DNA evidence. The hotel surveillance video depicts KBR exiting the hotel room with the back of her pants pulled down past her hips. The video also shows Mr. Lynon exiting the hotel with his pants on inside out, with the lining of his pockets visible, despite the fact that his pants were on correctly when he greeted KBR upon her arrival at the hotel. Mr. Lynon was unable to explain why his pants were on inside out despite telling the detectives that he never removed his pants except to speculate that he may have put on a second pair of pants over the pants he was wearing.
¶ 43 In addition, Mr. Lynon's version of events could not explain the DNA evidence presented by Ms. Abbinanti. Using Mr. Lynon's buccal swab, Ms. Abbinanti was able to identify a partial Y chromosome profile from the swab from KBR's buttock in which Mr. Lynon was included. This profile would be expected to occur in approximately one in 2800 unrelated white males, one in 2300 unrelated black males, or one in 2000 unrelated Hispanic males. This DNA evidence corroborates KBR's testimony that Mr. Lynon placed his penis on her buttock and renders implausible Mr. Lynon's statements that neither he nor KBR removed their pants in the hotel room.
¶ 44 Finally, throughout the ERI, Mr. Lynon gave varying accounts of the events, first telling the detectives that he did not even touch KBR, then stating that they may have hugged, then telling them that they may have kissed, then stating that they "mess[ed] around" in the bed, and finally stating that he fondled KBR's breasts. Mr. Lynon has failed to demonstrate that the "polygraph evidence" rather than his inconsistent and evasive answers to detectives caused the jury to reject his version of the events. Mr. Lynon's allegations of prejudice therefore amount to simple speculation, and he has failed to demonstrate "actual prejudice." Patterson, 2014 IL 115102, ¶ 81. Because we find that Mr. Lynon has failed to demonstrate that he was prejudiced by trial counsel's allegedly deficient performance, his claim of ineffective assistance of counsel fails.
¶ 45 III. CONCLUSION
¶ 46 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 47 Affirmed.