Opinion
Nos. 1-07-3106 1-07-3464 (cons.)
March 26, 2010.
Appeal from the Circuit Court of Cook County, No. 04 CR 16608, John J. Fleming, Judge, presiding.
This is a case of first impression. This case involves a criminal defendant's pretrial motion for a DNA database search. As far as we know, this is the first case to review a trial court's denial of a motion pursuant to section 116-5 of the Illinois Code of Criminal Procedure, which is the Illinois statute that permits criminal defendants to seek pretrial DNA database searches. 725 ILCS 5/116-5 (West 2006). In addition, "Illinois is one of the few states in the nation to provide a statutory framework" for a criminal defendant who seeks pretrial access to the state's DNA database. E. Murphy, The New Forensics: Criminal Justice, False Certainty and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 790-91 (2007)
Defendant Harvey Wright was prosecuted almost entirely on the basis of a cold-case DNA match. He was convicted of aggravated criminal sexual assault after a jury trial and sentenced to life in prison, although the victim could not identify him as the perpetrator, and there was no other physical evidence linking him to the crime.
Two DNA samples were recovered: from the victim's underwear; and from the victim's rectal swab. The state's forensic expert testified that only the sample from the rectal swabs yielded a "match" to defendant's DNA. However, the analysis of the rectal swabs was done on the basis of only 9 loci, instead of the more standard 13 loci. We have not been asked to determine whether the expert's conclusion of a "match" based on only 9-loci was factually correct. For the underwear, the analysis was done on the basis of 13 loci; but from the analysis of the underwear, the expert could not find a "match"; he could conclude only that defendant could not be excluded as a contributor.
On appeal, defendant claims that the trial court erred by denying his pretrial motion to have the Illinois State Police Department determine the number of 9-loci DNA matches in its offender database. Defendant also makes several other claims, including that the state failed to prove beyond a reasonable doubt that defendant "acted in such a manner as to threaten or endanger the life" of the alleged victim. 720 ILCS 5/12-14(a)(3) (West 1998). In its appellate brief, the State concedes: "[t]he People agree that they failed to prove beyond a reasonable doubt the aggravating factor alleged."
For the reasons stated below, we find that the trial court erred; and we reverse and remand for a new trial.
BACKGROUND 1. Defendant's Pretrial DNA Motion
On June 12, 2006, defendant moved to exclude any DNA evidence obtained from the State's analysis of the victim's rectal swabs. Defendant's motion stated that the analysis of the rectal swabs was done only on the basis of 9 loci; and DNA analysis is typically done on the basis of 13 loci. His motion stated that, normally, "two kits" are used "to develop the DNA profile," and the two kits are called "Profiler" and "Cofiler." Profiler develops "nine locations on the human genome, and Cofiler can develop the four additional locations necessary in developing a full profile." Defendant's motion stated that, "[a]ccording to the paperwork in the case file," the DNA extracted from the rectal swabs was quantified and amplified using both Profiler and Cofiler, but "there is no electronic data or paper printouts from any Cofiler" runs.
Defendant's motion stated that Michael DeFranco, the forensic scientist who extracted the DNA from the rectal swabs, left the employ of the Illinois state police, and Edgar Jove, the new scientist assigned to the case, "noticed this discrepancy in the Cofiler materials, and decided to get the DNA extract in the case to reamplify the DNA in Cofiler for the rectal swabs." However, Jove "located the tube where the extract should have been, and there was nothing in the tube." Later at trial, Jove testified that there were no rectal swabs left to test, because "[a]ll four swabs were consumed in the original extraction."
Defendant moved to exclude the DNA evidence from the rectal swabs, pursuant to Supreme Court Rule 417(b)(i), which requires the proponent of DNA evidence to provide to the adverse party copies of "the case file," including all reports and data relating to the testing performed. 188 Ill. 2d R. 417(b)(i). Since the State failed to produce the data from DeFranco's Cofiler testing of the rectal swabs, defendant sought to exclude any DNA evidence obtained from the rectal swabs.
In the alternative, defendant's motion asked that, if the trial court ruled to admit the 9-loci evidence, then it should order the State to determine how many 9-loci "matches there are in [the State's convicted database." In support of its alternative argument, defendant cited an Arizona study, stating:
"[A] recent examination of Arizona's convicted offender database revealed 120 nine location matches between two inmates in a database of 65,493 offenders. In other words, in Arizona there is a 1 in 700 chance that two individuals will match up at nine locations."
Defendant argued that in order to have "a match," the samples had to match at 13 loci, and that anything less was not a match. The assistant public defenders, who represented defendant, stated that "to [their] knowledge, no study has been performed to determine how many nine loci matches are present in the Illinois database." Defendant asserted that "[p]erforming such a study would give perspective to the strength of the partial profile match developed in this case" and would support defendant's argument that a 13-loci analysis was required.
In his motion, defendant did not ask for the names, addresses, or any identifying information for any DNA profiles that matched his profile at 9 loci in the State's offender database. Defendant asked only for the number of profile pairs that were the same at 9 loci.
In its response to defendant's motion, the State claimed: "The State has much more evidence against the Defendant than this one swab, including [1] a swab from the Victim's underwear that matches the Defendant at all 13 loci, and [2] additional testing is currently underway on swabs that were taken from the Victim's vaginal area." Contrary to what the State asserted in its response, one of the State's forensic experts at trial testified that the DNA from the victim's underwear was not a match to defendant's DNA. As will be discussed more fully below, the expert could conclude only that defendant could not be excluded as a contributor. In addition, contrary to the State's prediction about the vaginal swab, one of the State's experts at trial testified that analysis of the victim's vaginal swabs did not yield a male DNA profile.
At trial, the state explained that even though 13-loci were considered with respect to the underwear, the sample did not yield "a full profile." He testified that the sample yielded only "some of the loci." In addition, for some of the loci, the expert found that there were "different possibilities." The expert testified that, by using "all possible combinations for that particular area of the DNA," he found that "[a]pproximately one in 5 point 4 quadrillion black, one in 4 point 3 quadrillion white, or one in 66 quadrillion Hispanic unrelated individuals cannot be excluded as the male contributors." At trial, the state's expert observed that these numbers were much higher than the population of the earth.
On August 18, 2006, defendant filed a response. The State had argued that Rule 417 did not apply to the case at bar, because it went into effect on March 1, 2001, which was after the date that tests on the rectal swabs and underwear were performed. In his response, defendant argued that Rule 417 applied because the case was still in the pretrial stage.
On March 21, 2007, the trial court heard argument on defendant's motion. Defense counsel informed the court, "[b]asically, your Honor, we will just go on the pleadings." Concerning the 9-loci match, defense counsel stated: "we have to seem to learn [sic] that 9 loci matches are not completely uncommon, this would deprive [defendant] of a fair trial, particularly because this is the only evidence against him, this 9 loci match." The prosecutor immediately responded with "[t]hat's not true," and the trial court interjected: "All right. I read the motion." The trial court then stated that defendant's "motion to exclude evidence based on the destruction of evidence" was denied. Defense counsel then pointed out that there were two filings, so that "the Appellate Court will know" defendant intended to discuss both on appeal. The filing on June 12, 2006, set forth both the motion to exclude and the argument in the alternative for a database search; and the supplemental filing on August 18, 2006. responded to the state's arguments. The trial court indicated that it had read both documents, and that its ruling included both.
After his motion was denied, the defense strategy switched to a consent defense. Defendant had previously filed an answer to the State's discovery request; and his original answer, filed on June 12, 2006, did not allege a consent defense. However, after the trial court's ruling, defendant amended his answer, on June 25, 2007, in order to include a consent defense. His counsel later argued a consent defense in both his opening and closing statements at trial.
2. State's Evidence at Trial
The four day trial began on June 25, 2007, with jury selection, and ended with a verdict of guilty on June 28, 2007. At trial, the State called 11 witnesses. The first witness was the victim, age 24 years old, who had been only 15 years old at the time of the offense and who was unable at trial to identify defendant as the perpetrator. Although the victim was 15 years old at the time of the offense, the State's indictment of defendant made no charges relating to the victim's age.
Five of the State's witnesses were DNA forensic scientists: (1) Therese Biogard who received, from the Chicago Police, a buccal swab kit for defendant and who took actions to preserve the DNA material; (2) Jamie Gibson, who generated a DNA profile from the material recovered from defendant's buccal swab; (3) Brian Schoon, who testified that his analysis of the victim's vaginal swabs did not yield a male DNA profile although semen was present (4) Michael De Franco, who generated DNA profiles from the material recovered from the victim's underwear, rectal swabs, and blood standard; and (5) Edgar Jove, who compared the DNA profile generated for defendant with the DNA profiles generated from the samples recovered from the victim's underwear and rectal swabs.
Officer Thaddeus Hajduk, who obtained the buccal sample from defendant, testified at trial concerning what a buccal sample is: "A buccal sample is obtained on two Q-tips by rubbing the inside of your mouth and obtaining saliva and then is submitted for analysis."
The State's remaining witnesses were: (1) Angela Halpin, the emergency room nurse who examined the victim immediately after the offense and completed a rape kit; (2) Officer Richard Samanas, the evidence technician who retrieved the completed rape kit from the hospital; (3) Officer Thaddeus Hajduk, the evidence technician who obtained the buccal sample from defendant; (4) Detective Kupczyk, who interviewed the victim; and (5) Argentry Dean, the security guard at the bus station whom the victim approached after the offense.
The parties entered two stipulations, which were read to the jury as part of the State's case-in-chief. First, the parties stipulated that Jennifer Schultz, a forensic DNA scientist, received the victim's rape kit, which contained the victim's underwear; blood standard; and vaginal, oral and rectal swabs. If called as a witness, Schultz would testify that semen was found on the underwear and on the vaginal and rectal swabs but not on the oral swabs; and that she took actions to preserve this evidence. Second, the parties stipulated that, on October 12, 1998, defendant resided at 1716 West 14th Street, first floor, in Chicago, Illinois.
4. Victim's Testimony
The victim, who could not identify defendant as the perpetrator, testified about the following events during her direct examination at trial. At the time of trial, she was 24. When she was 15 years old, she traveled with her mother and sisters by automobile to visit her aunt in Iowa. However, when they returned to New York, they left without her. She stayed in Iowa, and later returned by Greyhound bus on September 26, 1998. She was en route by bus from Iowa to New York, when she had a two-hour layover in Chicago, starting at approximately 9 p.m. At the Chicago bus station, she approached strangers asking where she could buy a snack, when a man told her to follow him.
The victim testified that she walked with the man, out of the station and a number of blocks to his apartment, which was on the first floor of a two-family house. The walk lasted about a half-hour. At the house, a woman in the living room was watching television; and the victim walked past the woman and followed the man into a bedroom. The victim said nothing to the woman as she walked past, and the man closed and locked the bedroom door behind them. In the bedroom, she had vaginal sex twice and oral sex twice with the man.
The victim testified that the man then walked her back to the bus station, where he asked a security guard when the next bus to New York was leaving. At that point, she said nothing to the security guard. After the guard informed the man that the next bus to New York was leaving in an hour, she followed the man outside to an alley, where they had vaginal intercourse again. As he was putting his clothes back on, she ran from him, leaving her travel bag behind in the alley. She had carried her travel bag to his apartment and back to the bus station, but she left it in the alley. When she entered the bus station, she approached the same security guard, who had previously spoken with the man, and she told him that "the guy I was with" had raped her. She testified that none of the sexual acts had been consensual.
The victim testified that when the police arrived, she told them what had happened and they took her to a hospital emergency room, where she was examined by a doctor and a nurse. The examination included swabs of her vagina, mouth and rectum. The victim also informed the nurse what had happened. The victim also testified that she had washed her underwear "a couple of days before that" night. After the hospital examination, police officers drove her around, but they could not locate the man's residence. They did locate the alley. Eventually, she boarded a bus and returned home.
The victim testified that, years later, in May 2004, she met in Brooklyn with a Chicago Police detective and an Illinois State's Attorney. Concerning the perpetrator, she testified: "I just remember a scar he had on his face. I don't even remember what he really looked like. I just try to black it out. It was so many years ago."
On cross-examination, the victim testified that she did not return to New York with her mother and sisters, because she "went to hang out with an ex-boyfriend and a couple of friends." She left her aunt's house and did not tell anyone where she was going. She stayed in Iowa, because she was having problems with her mother. She admitted that she had run away a lot. After she returned to her aunt's house, her aunt told her that she had to leave because she refused to follow her aunt's rules.
On cross-examination, the victim admitted that, before she first spoke to the perpetrator, a woman at the train station informed her that there was a grocery store nearby, at a college. The victim had previously relayed this information to the detective. The victim testified that she left the bus station, because "there was like no junk food, stuff that I wanted." However, she admitted that she thought there was a restaurant and vending machines at the bus station. She testified that she was looking for "[j]ust a grocery store." She thought that she had left the bus station and started walking towards the university, when the perpetrator approached her. She told him what kind of junk food she wanted and he told her he would take her to a store.
5. Testimony by DNA Comparison Expert
Edgardo Jove testified that he was a "DNA group supervisor" at the Illinois State Police Forensic Science Center in Chicago, where he had been employed over 11 years. Jove was qualified as an expert "in the field of forensic DNA analysis" without objection from the defense. Jove testified that he made two comparisons in the case at bar. Specifically, he compared DNA data recovered from defendant's buccal swab with DNA data recovered from (1) the victim's underwear and (2) the victim's rectal swabs.
Jove testified that, in making his comparisons, he utilized data generated by other forensic scientists employed by the Illinois State Police. He received the notes and the DNA profiles generated by Michael DeFranco, a previous DNA analyst, before DeFranco left the employ of the Illinois State Police. This DNA data included data from the victim's blood standard, her rectal swabs and her underwear, which had been processed by DeFranco in approximately 1998. Jove testified that he also received DNA data from defendant's buccal swab, which had been processed by Jamie Gibson, another forensic scientist.
Jove testified generally about DNA analysis, explaining that if there is "enough DNA, we look at 13 different areas of DNA" or loci. To identify all 13 loci, a scientist "run[s] two systems." He explained that "[t]he first system has nine different areas of the DNA, plus another area that will determine the sex of the donor, and then the second system will have four areas of the DNA."
In the case at bar, Jove testified first about DNA recovered from the victim's rectal swabs, and then about DNA recovered from the victim's underwear. For the victim's rectal swabs, the notes that Jove received from DeFranco provided results only from the first system, and thus provided only 9 loci, rather than the full 13 loci.
Jove testified that the victim's rectal swabs contained DNA from two individuals, one male and one female. Jove stated that it was common to find the victim's own DNA on her own rectal swab. Jove testified that "[a]ssuming the mixture of human DNA profile identified in the rectal swab is a mixture of [the victim's] and one other individual, a male [9-loci] DNA profile was identified which matches the DNA profile of [defendant] Harvey Wright." Jove testified that the frequency with which he would expect to see this 9-loci male DNA profile occurring in the general population was "approximately one in 420 trillion black[s], one in 670 trillion white[s], or one in 2 point 9 quadrillion Hispanic unrelated individuals."
Jove testified next about the DNA recovered from the victim's underwear, stating that this DNA was a mixture from three people. There was a greater amount of DNA from two of the three people than from the third. Of the two major contributors, one was a female and one was a male. However, Jove could not identify the gender of the third and minor contributor, and this third profile was too "limited" to make any comparisons. Concerning the DNA recovered from the underwear, Jove testified "[a]ssuming [the victim] is one of the major human DNA profiles, an additional male human DNA profile was identified from which [defendant] Harvey Wright cannot be excluded."
On direct examination, Jove clarified that, while he had used the term "match" with respect to the 9-loci analysis on the rectal swab, he could not reach that same conclusion with respect to the 13-loci analysis on the underwear. With the underwear, Jove could conclude only that Wright could "not be excluded"; however, there was no match.
During cross-examination, the trial court barred defense counsel from asking questions about an Arizona study concerning the frequency with which a 9-loci DNA profile had occurred in an offender database:
"DEFENSE COUNSEL: You were interviewed by attorneys from our office regarding this case?
JOVE: Yeah.
DEFENSE COUNSEL: Okay. You were interviewed by an attorney named Andrew Northrup.
JOVE: Yes, I was.
DEFENSE COUNSEL: Mr. Northrup gave you a study from the Arizona database —
PROSECUTOR: Objection.
DEFENSE COUNSEL: — regarding the nine loci matches.
THE COURT: I believe we've had motions in limine on this issue."
During cross-examination, Jove testified that the third contributor to the underwear stain could have been male. On redirect examination, the prosecutor elicited that the DNA from the third contributor could have been there for weeks, if the underwear had not been washed.
6. Conviction, Posttrial Motions and Sentencing
On June 27, 2007, the State rested, and the defense rested without offering evidence. After listening to jury instructions, the jury went home for the day. On June 28, after hearing closing arguments from both sides, the jury found defendant guilty of "aggravated criminal sexual assault, oral" and "aggravated criminal sexual assault, vaginal."
On July 26, 2007, defendant filed a posttrial motion for a new trial; and on October 15, 2007, he filed a supplemental motion. In the supplemental motion, defendant claimed that the trial court had erred in denying his motion relating to the "destruction of [DNA] evidence in violation of Supreme Court Rule 417." On October 15, 2007, the trial court denied defendant's postrial motions for a new trial and sentenced defendant to natural life in prison, without parole. Defendant's motion to reconsider sentence was denied on October 29, 2007, and a notice of appeal was filed on October 30, 2007.
On November 2, 2007, defendant filed a pro se motion entitled: "A Add On Motion for a New Trial." With respect to the DNA motion, the pro se motion stated:
"8. Defendant states there were two DNA samples found on the victim. But the police nor the state's attorney tried to find out where this other sample came from. The state also failed to preserve these samples for testing. For the defense, be it intentional or not, the state has the obligation to prove innocence or guilt, citing State v. Mitchell, 140 Ariz. 551.
13. Defendant states that trial counsel [name] was ineffective when he refused to have the DNA Andrew Northup, who wrote the motion to suppress the DNA evidence, to appear in court to explain his own reasons for filing the motion. Had Andrew Northrup would have argue [sic] his own motion, things would have been different.
14. Defendant states that trial counsel [name] was ineffective when he refuse [sic] to have a [sic] independent DNA test done, after defendant advised attorney that there was some misconduct on the part of Detective Kupczyk and the state attorney when handle [sic] the initial arrest on 4-6-2003 which lead up to this cause. I also informed trial attorney that this issue has never been addressed. Had attorney would have did [sic] so, defendant['s] trial would have been different."
On November 14, 2007, the trial court denied defendant's pro se motion for a new trial. Although the trial judge stated that he did not believe that defendant's motion had sufficiently alleged claims of ineffective assistance of counsel, the judge stated that he was "going to deny it as being late." A second notice of appeal was subsequently filed on December 4, 2007. The appellate court then consolidated the two appeals on November 7, 2008; and this consolidated appeal followed.
7. Supplemental Record
On page 23 of the appellate brief filed by the State Appellate Defender on defendant's behalf, defendant stated that a "test was run by the Illinois State Police in People v. Juan Luna, No. 02 CR 15430" to determine the number of 9-loci matches in its offender database, and that this test "found 903 pairs of nine or more loci matches out of 220,456 offender profiles." On December 31, 2009, this court ordered defendant to supplement the record "with the portions of the Luna record which will substantiate" this statement. SeePeople v. McKown, 226 Ill. 2d 245, 258-59 (2007) (permitting an appellate court to consider scientific information outside of the existing record, when evaluating a trial court's ruling concerning scientific evidence).
Juan Luna and James Degorski were indicted in June 2002 in connection with the murder of 7 individuals at a "Brown's Chicken" restaurant in Palatine, Illinois on January 8, 1993. See generallyPeople v. Degorski, 382 Ill. App. 3d 135, 136 (2008).
On January 8, 2010, defendant supplemented the appellate record with (1) the evidentiary deposition of Donald Parker, the administrator of Illinois' DNA offender database, who was responsible for the 9-loci test of the Illinois offender database in August 2006; and (2) the trial testimony of defense expert Karl Reich and state expert Ranajit Chakraborty, who analyzed the findings of the 9-loci test run by the Illinois State Police. The evidentiary deposition occurred on October 17, 2006; and the trial testimony occurred in May 2007.
Parker, the administrator in charge of our state's offender database, testified at his deposition that, in his opinion, "[i]f it doesn't match across the thirteen loci, then it's not a true match." Partker stated repeatedly that 9-loci comparisons are "not true matches" and that "[i]t's misleading to call them matches." Parker testified that, he started with the Illinois State Police as a forensic scientist trainee in April 1995, and then he rose through the ranks, until he became the administrator of the state's DNA offender database in 2005. His educational background was in microbiology, and he received training and classes in DNA analysis and statistics from the state police. In 1997, he was selected by the directors of the Chicago Crime Forensic Science Center to be part of the state's validation team to analyze a new type of DNA analysis, namely STR testing. Parker was part of the group that published an article on the team's results in the Journal of Forensic Sciences. Parker testified that he had been qualified many times in court as an expert in DNA analysis, and that when he "testified in court, it [was] to give a probability or an odds to a profile."
Parker testified that, in response to an order by the trial court in the Luna case, he ran a search of the Illinois database to determine how many pairs of matches it contained at only 9 loci. Parker was aware that the defense request in the Luna case was based, in part, on a similar search that had been done of the Arizona database. At the time of theLuna search, the Illinois database contained 220,456 DNA profiles, and all the profiles contained 13 or more loci. The database search revealed 903 pairs of individuals who matched at only 9 loci. In other words, 1,806 individuals had the same alleles at 9 loci, as at least one other individual in the database. Parker testified that "[i]f you look[ed] at the further loci, they would be considered nonmatches."
ANALYSIS
On this direct appeal, defendant makes several claims. He claims that the trial court erred (1) by failing to order the Illinois State Police to determine the number of 9-loci matches in its offender database; (2) by barring defense counsel from cross-examining the state's DNA experts on the basis of a similar search of the Arizona offender database; (3) by admitting the victim's out-of-court statements recounting the alleged offense to a nurse; and (4) by admitting a photograph of another alleged victim of a sexual assault by defendant. Defendant also claims that the prosecutor committed misconduct by telling the jury that "the State knows the defendant is guilty." Defendant also asks us to remand, on the ground that the trial court failed to inquire adequately into defendant's pro se claims of ineffective assistance of counsel.
Last but not least, defendant asks this court to reduce his conviction from aggravated criminal sexual assault to sexual assault, because the State allegedly failed to prove guilt on the aggravating element, namely that defendant "acted in such a manner as to threaten or endanger the life" of the alleged victim. 720 ILCS 5/12-14(a)(3) (West 1998). In its appellate brief, the State concedes: "[t]he People agree that they failed to prove beyond a reasonable doubt the aggravating factor alleged."
For the reasons discussed below, we find that the trial court erred by failing to order a DNA database search. Since we reverse and remand on this ground, we do not consider defendant's remaining claims.
1. Standard of Review
We find that our standard of review is abuse of discretion, based on our consideration of the statute at issue and of evidence law, in general.
The statute at issue is section 116-5 of the Illinois Code of Criminal Procedure. 725 ILCS 5/116-5 (West 2006). It was pursuant to this statute that defendant moved the trial court for a DNA database search. Section 116-5 states, in relevant part, that "[u]pon motion by a defendant charged with any offense where DNA evidence may be material to the defense investigation or relevant at trial, a court may order a DNA database search by the Department of State Police." 725 ILCS 5/116-5 (West 2006).
The statute took effect on November 19, 2003; and there are no cases that discuss the appropriate standard of review, for a trial court's denial of a defense motion. However, the statute itself states that the trial court "may" order a DNA database search. As our supreme court has stated many times, the job of a reviewing court in construing a statute is to give effect to the legislature's intent, and the best indication of the legislature's intent is the language it chose to use in the statute. E.g. People v. Cardamone, 232 Ill. 2d 504, 512 (2009). The word "may" indicates that the legislature intended to leave the grant or denial of the requested search, to the sound discretion of the trial judge. People v. Garstecki, 234 Ill. 2d 430, 443 (2009) (use of the word "may" indicates that a rule is "permissive"). In addition, evidentiary rulings are generally reviewed only for an abuse of discretion. People v. Dunmore 389 Ill. App. 3d 1095, 1105 (2009).
However, defendant claims that our review should be de novo, "because the trial court is in no better position that a reviewing court to decide the merits of the motion" for a DNA database search. In support of his argument, defendant cites the Illinois Supreme Court's opinion in People v. Shun, 207 Ill. 2d 47, 65 (2003).
The statute at issue in Shun was the statute that allows a defendant, after he has already been convicted, to move the trial court for post-conviction DNA testing. 725 ILCS 5/116-3 (West 2000), quoted in Shun, 207 Ill. 2d at 64. The statute sets forth detailed criteria for a trial court to consider, and states that the trial court "shall" allow the requested testing after a "determination" that the listed criteria are satisfied. 725 ILCS 5/116-3 (West 2000), quoted in Shun, 207 Ill. 2d at 64. It is well established, under Illinois case law, that an appellate court will review de novo a trial court's denial of a defendant's post-conviction motion, made pursuant to section 116-3. Shum, 207 Ill. 2d at 65; People v. Franks, 323 Ill. App. 3d 660, 662 (2001); People v. Uraste, 316 Ill. App. 3d 307, 310 (2000).
However, we are not persuaded by the line of cases decided under the post-conviction statute, since the post-conviction and the pretrial statutes are very different. First, the post-conviction statute used the word "shall", and the pretrial statute used the word "may." The difference in language indicates that the pretrial statute is discretionary while the post-conviction statute is not. Garstecki, 234 Ill. 2d at 443 (the effect of "change from `may' to `shall'" was "to change the rule from a permissive one to a mandatory one"); People v. Walker, 392 Ill. App. 3d 277, 295 (2009) ("use of the word `shall'" indicates a "mandatory" requirement). Second, the post-conviction statute sets forth a detailed list of criteria that a trial court must consider. By contrast, the pretrial statute sets forth no criteria, at all. The lack of criteria in the pretrial statute is additional evidence that the legislature intended to leave the decision of the pretrial motion up to the trial court's discretion.
For the foregoing reasons, we find that abuse of discretion is the appropriate standard of review, for a trial court's denial of a defendant's motion, made pursuant to section 116-5. 725 ILCS 5/116-5 (West 2006).
2. Forfeiture Issues
In the case at bar, the State claims that defendant forfeited this issue for appellate review by failing to obtain a ruling on his motion. The defendant's pretrial DNA motion asked the trial court to exclude the DNA evidence, and then argued in the alternative for a DNA database search. During the argument on the motion, defense counsel stated that he would rest primarily on his "pleadings." When the trial court denied his motion, the trial court indicated that it had read all the defendant's filings pertaining to defendant's DNA motion, and that the motion was denied. This case is completely different from the case where an entire filing slips trough the cracks after a case is transferred to another judge, and the new judge issues no ruling on the filing at all. People v. Redd, 173 Ill. 2d 1, 35 (1996). Since a party is allowed to rest on his written motion, particularly when the trial judge stressed that he had read it, we find that defendant preserved this issue at the pretrial stage.
The State cites in support People v. Schmitt, 131 Ill. 2d 128 (1989). In Schmidt, our supreme court held that defendant had failed to preserve his severance motion for appeal, where no ruling was made prior to trial, where defendant brought the omission to the trial court's attention during trial, and where defendant then agreed to the conduct of simultaneous but separate bench trials.
In the case at bar, the State also claims that defendant failed to raise the issue of the DNA database search in a posttrial motion. Defendant's postrrial motion referred specifically to his pretrial DNA motion. However, his posttrial motion did not reiterate his alternative argument, stated in his pretrial motion, that if the trial court denied his motion to exclude the DNA evidence, due to destruction of evidence, then the trial court should order a database search. The State claims that defendant's posttrial motion failed to identify specifically the argument at issue and thus his posttrial motion was insufficient to preserve the issue for appellate review.
Illinois Supreme Court has held that a "defendant must both specifically object at trial and raise the specific issue again in a posttrial motion to preserve any alleged error for review." People v. Woods, 214 Ill. 2d 455, 470 (2005); People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). When a defendant has failed to preserve an error for review, we may still review for plain error. Piatkowski, 225 Ill. 2d at 562-63; 134 Ill. 2d R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.").
"[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone threaten[s] to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurs and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471.
For the reasons discussed below in section 5 of this opinion, we find that, even if defendant forfeited the error by failing to raise it specifically in his posttrial motion, the error qualified as "plain error" under the second prong of the plain error doctrine.
3. Statutory Interpretation
As noted, this is a case of first impression. Neither we nor the parties were able to locate another appellate case reviewing a trial court's denial of a defendant's pretrial motion for a DNA database search, pursuant to section 116-5. 725 ILCS 5/116-5 (West 2006). In In re Jesscia M, 385 Ill. App. 3d 894 (2008), we did discuss the statute in dicta. However, this dicta has no bearing on the issues in the case at bar. In re Jessica M observed only that the statute was limited to "genetic marker analysis," which the opinion defined as "computerized patterns of the genetic marker groupings within the database, rather than the initial biological testing of the samples themselves." In re Jessica M, 385 Ill. App. 3d at 911. This is not the issue in the case at bar; and In re Jessica M was overruled on other grounds in People v. Sammantha V, 234 Ill. 2d 359 (2009).
Even though we are without case law, we are not without guidance. As we do in every case of statutory interpretation, we look first and foremost to the language of the statute itself. Cardamone, 232 Ill. 2d at 512. Our primary objective in construing a statute is to give effect to the legislature's intent. Cardamone, 232 Ill. 2d at 512. We consider the statute in its entirety, "keeping in mind the subject it addresses and the legislature's objective in enacting it." Cardamone, 232 Ill. 2d at 512.
The legislature's objective in enacting section 114-5 was to level the playing field. 725 ILCS 5/116-5 (West 2006); see also E. Murphy, The New Forensics: Criminal Justice, False Certainty and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 790-91 (2007) (the purpose of the Illinois statute is to provide the defendant, "upon a particular showing," with "a parallel capacity to investigate an offense through a search of the database"). That purpose is clear from the language of the statute itself, which provides access to the DNA database, to the defendant. The State already has unlimited and unfettered access.
The statute requires a defendant to show only that "DNA evidence may be material to the defense investigation or relevant at trial." 725 ILCS 5/116-5 (West 2006). On appeal, the State does not argue that DNA evidence was not "material to the defense investigation." The materiality of the search request to the defense investigation is shown by the late addition of a consent defense, after the request was denied.
The primary evidence identifying defendant as the offender was a 9-loci analysis between his DNA profile and a male DNA profile obtained from the victim's rectal swabs. As the state's expert conceded at trial, his 13-loci analysis on the victim's underwear failed to yield a "match" A trial court cannot bar a defendant's access to evidence that has a good chance of creating a reasonable doubt in the jury's mind, in light of the facts and circumstances of the case and the other evidence that is likely to be admitted at trial. To do so would be to pervert the purpose of the statute, and call into question the integrity of the criminal process.
That the requested search would have a good chance of leading to "reasonable doubt" evidence was shown by the Arizona study. Now, we also know that an actual study of the Illinois database did yield over 900 pairs of matches at 9 loci. We also know that a similar study of the Maryland offender database yielded similar results. In Maryland, a court in a death penalty case ordered a study of Maryland's offender database, at the defendant's request. K. Strutin, Databases, E-Discovery and Criminal Law, 15 Rich. J.L. Tech. 6, 54 (2009). Although the Maryland database contained fewer than 30,000 profiles, which is a small fraction of the size of the Illinois database, the Maryland search still yielded 32 pairs at 9 loci. Strutin, 15 Rich. J.L. Tech. at 54.
As a result of the Arizona, Maryland and Illinois searches, some legal scholars and scientists have questioned whether the extraordinarily large figures used in court to estimate the probability of a 9-loci "match" are "no better than alchemy." D. Kaye, Trawling DNA Databases for Partial Matches: What is the FBI Afraid Of?, 19 Cornel J.L. Pub. Policy 145, 146 (2009); Strutin, 15 Rich. J.L. Tech. at 54 (after the Arizona, Maryland and Illinois searches, "academics and experts have added their voices in calling for access to the DNA databanks to test the assumptions of profile rarity"). For example, a Stanford mathematician has called these numbers "total nonsense" and "a damned lie." Kaye, 19 Cornel J.L. Pub. Policy at 147 (quoting Dr. Keith Devlin, Director of Stanford University's Center for the Study of Language and Information). He has stated that admitting this testimony into court is "disgraceful," and that courts "may as well admit alchemy and astrology." Kaye, 19 Cornel J.L. Pub. Policy at 147 (quoting Dr. Devlin).
Although the trial court in the case at bar was not presented with the results of the Maryland or Illinois searches, the trial court did have in front of it information from the search of the Arizona database, which revealed 120 pairs of 9-loci "matches" in a database of 65,493 offenders. Kaye, 19 Cornel J.L. Pub. Policy at 153-54 (describing how the Arizona study was conducted and its results). As one legal scholar has asked, if the frequency "for a nine-locus match is anything like `one in 754 million for whites, and one in 561 million for blacks" [as some DNA experts testify], how can it be that a database as small as [Arizona's with] `a mere 65,493 entries' produces even one such match?" Kaye, 19 Cornel J.L. Pub. Policy at 155; E. Murphy, The New Forensics: Criminal Justice. False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 781 (2007) ("recent evidence calls into question the accuracy of using the product rule to convey match probabilities").
Considering that a 9-loci analysis was the primary identification evidence against defendant, the trial court abused its discretion by denying defendant's motion.
4. Consent Defense
At oral argument of this appeal, the State claimed that defendant's use of a consent defense at trial barred this claim on appeal. The State is confusing two statutes: the statute that permits postconviction DNA testing ( 725 ILCS 5/116-3 (West 2006); and the statute that permits pretrial DNA testing ( 725 ILCS 5/116-5 (2006).
A defendant's use of a consent defense at trial does bar him from seeking postconviction DNA analysis. 725 ILCS 5/116-3(c) (West 2006). However, our legislature specifically did not include this bar in its pretrial statute. By contrast, to seek a pretrial search, a defendant must show only that it "may be material to the defense investigation." 725 ILCS 5/116-3(c) (West 2006). Thus, the key issue under the pretrial statute is not whether the defendant intends to use a consent defense; but whether his request showed that the DNA search may have been material to the defense investigation. To rule otherwise would be to rewrite the statute.
Although neither party raised this issue in their appellate briefs, we also find, on the particular facts and circumstances of this case, that defendant's use of a consent defense at trial did not act as a judicial admission of identity on appeal.
"[J]udicial admissions `are formal concessions in the pleadings in the case or stipulations by a party or its counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557-58 (2005), quoting Strong, McCormick on Evidence § 254, at 449 (4th ed. 1992). In other words, if a fact is judicially admitted, the adverse party has no need to submit any evidence on that point, and the admission serves as a substitute for proof at trial. Lowe v. Kang, 167 Ill. App. 3d 772, 776 (1988) (judicial admissions "dispens[e] with proof of a fact claimed to be true, and are used as a substitute for legal evidence at trial"), cited with approval in People v. Howery, 178 Ill. 2d 1, 40-41 (1997). We do not find a judicial admission occurred here, for the following reasons.
First, the Illinois appellate court has previously held, with respect to a defense counsel's statements in a criminal case, that defense "[c]ounsel's opening statement and final argument are not judicial admissions and do not preclude defendant from arguing on appeal the State failed to prove" an element of the offense beyond a reasonable doubt. People v. Neylon, 327 Ill. App. 3d 300, 307 (2002). In Neylon, defendant stood accused of personally discharging a firearm; and his counsel argued in opening statement that defendant had fired a gun inside a residence, because he did not realize that such a firing was against the law. Neylon, 327 Ill. App. 3d at 306. During closing, defense counsel also admitted that defendant owned the gun in question. Neylon, 327 Ill. App. 3d at 307. After the appellate court observed that, for a conviction of this particular offense, the defendant "must possess and discharge his firearm," the appellate court reversed his conviction, holding that there was "no proof defendant personally fired the gun." Neylon, 327 Ill. App. 3d at 307. Thus, the appellate court concluded that, in a criminal case, a defense counsel's concessions in his opening and closing statements constituted "no proof."
The facts of Neylon are remarkably similar to the facts in the case at bar. In both cases, defense counsel conceded that his client had committed the act, of which he stood accused. In our case, the act was sexual penetration; in the Neylon case, it was discharging a gun inside a residence. Neylon, 327 Ill. App. 3d at 306. In both cases, defense counsel argued that their clients lacked the requisite mens rea or state of mind for the crime. In our case, defense counsel argued that the acts were consensual; and in the Neylon case, defense counsel argued that the acts were done under the mistaken impression that they were legal. Neylon, 327 Ill. App. 3d at 306. In Neylon, the appellate court found that counsel's concessions did not qualify as judicial admissions. Neylon, 327 Ill. App. 3d at 307. Applying the holding of Neylon to the facts of our case requires us to reach the same holding here.
Second, on the facts and circumstances of this case, a finding by us that defendant made a judicial admission would be to turn a blind eye to the reality facing this particular defendant. In Howery, a criminal defendant asked our supreme court to find that remarks by a prosecutor in the State's rebuttal closing constituted a "judicial admission"; and our supreme court held that the closing remarks did "not constitute a judicial admission." Howery, 178 Ill. 2d at 42. In a parenthetical, our supreme court cited the civil case of Lowe, for the proposition that "whether or not a statement by an attorney is a judicial admission depends upon the circumstances of the individual case." Howery, 178 Ill. 2d at 41, discussing in a parenthetical Lowe, 167 Ill. App. 3d at 777. Thus, we will review the "circumstances" of the case at bar.
In the case at bar, defendant was facing a type of evidence that juries and courts alike find highly persuasive: a DNA match. People v. Johnson, 389 Ill. App. 3d 618, 619 (2009) (finding that an expert's testimony about a DNA match was "overwhelming" evidence). The American Psychological Association published an article in 2008 that summarized conclusions from three different studies concerning the impact of DNA evidence on a jury. J. Lieberman and T. Miethe, Gold Versus Platinum: Do Jurors Recognize the Superiority of DNA Evidence Compared to Other Types of Forensic Evidence?, 14 Psych Pub. Pol. and L. 27 (2008). The article concluded that DNA evidence has a `"mystical aura.'" 14 Pscyh Pub. Pol. and L. at 33. "Public jurors, on average, rated DNA evidence as 95% accurate, and it was rated as 94% persuasive of a suspect's guilt." 14 Pscyh Pub. Pol. and L. at 52-53. The article warned that ""[t]he strong and largely invariant impact of DNA evidence across experimental conditions suggests that this type of scientific evidence may be so persuasive that its mere introduction in a criminal case is sufficient to seriously impede defense challenges." 14 Pscyh Pub. Pol. and L. at 58.
Although the claimed "match" in this case was based on only a 9-loci analysis instead of the standard 13-loci analysis, the state's expert still claimed that it was a "match." Showing the frequency with which such 9-loci "matches" appeared in the offender database would have provided a strong basis for cross-examination; yet, defendant was denied the ability to develop this evidence. After he was denied the ability to develop this evidence, it would be absurd to criticize him for resorting to a consent defense. Johnson, 389 III, App. 3d at 619 ("[f]aced with overwhelming DNA evidence, the defense in this sexual assault *** case attempted to persuade the jury" that he did not force the victim). It would be like knocking out one leg and criticizing him for hopping on one foot.
5. Plain Error Analysis
The trial court's denial of defendant's motion for a database search violated the second prong of the plain error doctrine. Under the second prong of the plain error doctrine, an error rises to the level of "plain error" when the "error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." Piatkowski, 225 Ill. 2d at 565; Woods, 214 Ill. 2d at 471. In the case at bar, the error challenged the integrity of the judicial process by barring defendant's access to evidence that could have assisted him in establishing his innocence, by possibly casting a serious doubt on the state's identification evidence. The state's own administrator in charge of its DNA offender database testified in another case that a 9-loci analysis is simply not a "match." By contrast, in the case at bar, the state's expert testified that there was a "match" based on a 9-loci analysis; and this "match" was the evidence that identified defendant as the perpetrator. From the 13-loci analysis, defendant could be neither excluded nor identified as the perpetrator. By barring the defense from even the chance to develop evidence that could have undermined the claimed "match," the trial court's error seriously affected the fairness of defendant's trial.
CONCLUSION
For the foregoing reasons, we reverse and remand for a new trial. We find that: (1) the trial court abused its discretion by denying defendant's motion to order the Illinois State Police to conduct a 9-loci database search; and (2) this error violated the second prong of the plain error doctrine. We take no position on whether, on remand, the trial court must order a new search, upon defendant's motion, or whether the trial court may direct the parties to rely on a similar search conducted by the Illinois State Police in another case.
Reversed and remanded with directions.
GORDON, J. and McBRIDE, JJ., concur.