The opinion
Illinois Official Reports
Supreme Court
People v. Barner, 2015 IL 116949
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN
Court: BARNER, Appellant.
Docket No. 116949
Filed April 16, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Lawrence P. Fox, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Appeal Deputy Defender, and Pamela Rubeo, Assistant Appellate Defender,
of the Office of the State Appellate Defender, of Chicago, for
appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita M.
Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle
Katz, Yvette Loizon and Amy M. Watroba, Assistant State’s
Attorneys, of counsel), for the People.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and
Burke concurred in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Defendant John Barner was convicted of two counts of aggravated criminal sexual assault
(720 ILCS 5/12-14(a)(1) (West 1998)) following a jury trial in the circuit court of Cook
County and sentenced to natural life in prison. His convictions and sentence were affirmed on
appeal. People v. Barner, No. 1-06-3738 (2009) (unpublished order under Supreme Court Rule
23). Following defendant’s initial appeal to this court, we vacated the appellate court’s
judgment and remanded the cause to that court for reconsideration in light of People v.
Williams, 238 Ill. 2d 125 (2010). People v. Barner, No. 109320 (Ill. Sept. 29, 2010)
(supervisory order). The appellate court again affirmed defendant’s convictions and sentence.
People v. Barner, No. 1-06-3738 (2011) (unpublished order under Supreme Court Rule 23).
That decision was then vacated pursuant to a new supervisory order from this court to
reconsider in light of People v. Leach, 2012 IL 111534. People v. Barner, No. 112094 (Ill. Jan.
30, 2013) (supervisory order). After reconsideration, the appellate court once again affirmed.
2013 IL App (1st) 063738-U. This court then allowed defendant’s petition for leave to appeal
under Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. July 1, 2013)).
¶2 At issue is whether defendant’s right to confrontation under the sixth amendment of the
United States Constitution (U.S. Const., amend. VI), as held in Crawford v. Washington, 541
U.S. 36 (2004), and its progeny, was violated when three State witnesses were allowed to
testify concerning the DNA laboratory work and conclusions of nontestifying scientists.
¶3 For the reasons that follow, we affirm the judgment of the appellate court.
¶4 BACKGROUND
¶5 On July 14, 2002, defendant was arrested and charged by criminal complaint with the
aggravated criminal sexual assault of F.M. The criminal conduct at issue occurred on the
evening of March 13, 1999, and continued until the next morning.
¶6 Prior to defendant’s trial in November 2006, the State filed motions for leave to present
forensic DNA evidence against defendant through the testimony of three experts: Greg
DiDomenic, Jennifer Reynolds, and Edgardo Jove. The State recognized that some of the
laboratory analysis in this case was completed by nontestifying scientists working at the
Illinois State Police (ISP) crime laboratory and Orchid-Cellmark (Cellmark), a private
laboratory located in Maryland. Nevertheless, the State asserted that it was permissible for
these three witnesses to testify to the technical review each did of the work completed by the
nontestifying DNA analysts.
¶7 In response, defendant claimed that the analysts who completed the actual DNA laboratory
work were required to testify concerning their analysis. According to defendant, any admission
into evidence of the results of their work through the testimony of others would violate his
constitutional right to confrontation. After a hearing, the trial court concluded that the
testimony of the expert witnesses would not contravene Crawford and allowed the State’s
motions. The trial court held that the witnesses could testify to their review, analysis, and
opinion regarding the work they had supervised relating to the underlying DNA work of the
nontestifying scientists.
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¶8 At trial, F.M. testified that on March 13, 1999, at approximately 8 p.m., she was walking
from her sister Brenda’s home on the south side of Chicago to another sister’s home when she
stopped to watch a young “prostitute girl” who was smoking drugs in the street and taking her
clothes off. After approximately 30 to 40 minutes, F.M. heard movement behind her.
Defendant grabbed her by the neck and dragged her toward a nearby abandoned building. As
he pulled her into the building, F.M. grabbed a banister on the porch and defendant told her
“ ‘[l]et go [of] the porch, bitch. Bitch, I’m going to break your neck.’ ” Defendant
subsequently dragged her through the dark building, up a flight of stairs, then up some more
stairs, pushed her into a room, and placed a couch in front of the door.
¶9 F.M. further testified that after they entered the room, defendant ordered her to remove her
clothes and to sit on a mattress on the floor. At first she refused, but ultimately obeyed. F.M.
testified that defendant repeatedly forced her to engage in oral and vaginal intercourse until
morning. She testified that they had vaginal intercourse about four times and that she was
forced to perform oral sex on him twice. She further testified that he forced her to have vaginal
intercourse one more time in the morning. Defendant then led her out of the building and let
her go. As he was helping her out of a window, she saw defendant’s face from a couple of
inches away. After leaving defendant, F.M. ran to her sister’s house and was taken to Provident
Hospital for treatment. At the hospital, a doctor swabbed her mouth and vagina and police took
her underwear, bra, T-shirt, and long underwear.
¶ 10 On May 30, 2002, more than three years after the assault, the police showed F.M. a photo
array at her house and she made a tentative identification of defendant. On July 13, 2002, she
viewed a lineup at the police station and identified defendant as her attacker after each lineup
participant stated the phrase, “Bitch, if you don’t let go, I’ll break your neck.” She also
positively identified defendant in court. F.M. testified that she had been convicted in May 2006
for possession of a controlled substance and received a sentence of probation.1
¶ 11 On cross-examination, F.M. testified that defendant did not let her go to the bathroom, that
she urinated on the floor, and that she had lost her keys during the attack. Defense counsel also
questioned her concerning some inconsistencies on the exact number of times each sex act was
performed.
¶ 12 F.M.’s sister, Brenda J., testified that around 8 a.m. on March 14, 1999, F.M. arrived at her
house “hysterical.” Brenda testified that her sister was crying, screaming, dirty, and beaten up.
F.M. told Brenda that she had been raped.
¶ 13 Sharon Smith, a registered nurse at Provident Hospital, testified that she treated F.M. at
approximately 8:45 a.m. on March 14, 1999. F.M. appeared scared and looked disheveled.
Smith testified that Dr. Bhatt took swabs of F.M.’s vagina and mouth and that she sealed those
swabs in a sexual assault evidence collection kit. She gave the kit to a police officer along with,
among other items, F.M.’s underwear. Smith further testified that she observed blood in F.M.’s
vaginal canal and that she had an abrasion on her right thigh. Smith did not observe any
scratches, bruises, or other marks on F.M.’s body other than the one on the thigh.
1
At the time of defendant’s trial, F.M. was being held in custody for a violation of probation and on
a warrant for failure to appear in court in this case. F.M. testified that she had failed to appear because
she did not want to see defendant again.
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¶ 14 Chicago police officer Gerald Ostafin testified that he received the sexual assault kit from
Smith on March 14, 1999. He kept the items in his continuous custody and control and
inventoried the kit under inventory No. 2105348.
¶ 15 Chicago police detective Paulette Wright testified that she interviewed F.M. at the hospital
at approximately 10:45 a.m. on March 14, 1999. F.M. was very upset and agitated. The
following morning, she took F.M. to the abandoned building where the incident occurred to
investigate and locate the set of keys she had lost. Wright observed a green couch in the third
floor room and testified that F.M. became visibly upset when they entered the space. Wright
did not see urine on the floor or locate any keys. On August 23, 1999, the ISP crime lab
informed Wright that the semen recovered from the item in F.M.’s sexual assault kit produced
a match. Wright tried to contact F.M. by going to her home and that of her sister, but was
unsuccessful for almost three years.
¶ 16 Wright further testified that on May 29, 2002, she again went to F.M.’s home. Wright
showed her a photo array at that time and F.M. made a tentative identification of defendant as
her attacker. She informed Wright, however, that she needed to see him in person. Wright sent
out an “investigative alert” for defendant who was ultimately taken into custody on July 12,
2002. The following day, F.M. viewed a physical lineup. She tentatively identified defendant
and mentioned that he looked thinner to her. F.M. then asked to hear each lineup participant
speak. After hearing defendant’s voice, F.M. said that defendant was “definitely” her attacker.
¶ 17 The State called G.W. as an “other crimes” witness. At the time of trial, G.W. had been
convicted for possession of a controlled substance and forgery and was in custody. On the
evening of March 23, 2002, G.W. was walking within blocks of the abandoned building where
the assault in this case had occurred. G.W. testified that defendant approached her and
attempted to engage her in small talk. He then grabbed her by the hood of her coat and said,
“Shut up bitch before I kill you.” He then dragged her into an abandoned building and ordered
her down the rear stairs. When she refused, he struck her over the head with a bottle of beer. He
pushed her down the stairs and ordered her to take her clothes off. Defendant had vaginal sex
with G.W. and forced her to perform oral sex on him repeatedly before he let her leave in the
morning.
¶ 18 Forensic Evidence
¶ 19 All of the DNA work at issue in this case was conducted between 1999 and 2001.
¶ 20 Brian Hapack, a forensic scientist with ISP, testified that he received F.M.’s sexual assault
kit that was submitted to ISP’s crime lab on March 23, 1999, and inventoried under inventory
No. 2105348. He tested the items in the kit for the presence of sperm using the acid
phosphatase test and slide examination. He determined that there was semen on F.M.’s
underwear, as well as the rectal and vaginal swabs, but not the oral swabs. Hapack sealed and
placed the items into a secured freezer for future DNA analysis.
¶ 21 Chicago police detective Delores Myles testified that on April 26, 1999, she took defendant
to Provident Hospital where she observed a nurse take a blood specimen from him. She sealed
the specimen in a blood specimen kit and inventoried it under No. 2111323.
¶ 22 The record establishes that defendant’s blood standard was collected by police in relation
to the unrelated murder case of Cheryl Cross.
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¶ 23 RFLP DNA Testing
¶ 24 Greg DiDomenic, a forensic DNA analyst at the ISP crime lab, testified that he received the
sexual assault kit containing the vaginal and rectal swabs taken from F.M., her underwear
which was stained by semen, and a sample of her blood. In July 1999, he isolated F.M.’s DNA
profile from the vaginal swab, but was unable to produce a profile for the donor of the sperm
found on the vaginal or rectal swabs because each sample was of insufficient quantity to do so.
A DNA profile of the sperm donor, however, was obtained from the semen stain on F.M.’s
underwear. DiDomenic compared “five locations of DNA” using the “restriction fragment
length polymorphism” (RFLP) analysis method. He explained that at the time he conducted his
analysis, it was established in the scientific community “that there were five genetic markers
used in forensics and those were the ones we used [for our testing].” DiDomenic further
testified that he entered the DNA profile he created into the Combined DNA Index System
(CODIS), ISP’s DNA database, and discovered that it was associated with a standard from
defendant.
¶ 25 DiDomenic testified, over defense counsel’s objection, that subsequent to the CODIS “hit”
he reasonably relied on the work of two other analysts, Tanis Wildhaber and Joanne Olson.
DiDomenic reviewed the laboratory notes produced by Wildhaber, which indicated that on
April 28, 1999, she received defendant’s blood sample which had been inventoried under No.
2111323. She preserved a portion of that sample, dried it down on filter paper, sealed it, and
placed it in frozen storage for future analysis. DiDomenic also reviewed the laboratory notes
produced by Olson, which indicated that she retrieved defendant’s sample on May 1, 1999, and
was able to obtain a DNA profile from his blood that was suitable for comparison. Olson
placed the remainder of defendant’s blood standard in frozen storage. Based upon
DiDomenic’s analysis of the sperm from the semen stain on F.M.’s underwear, and the work of
Olson that produced defendant’s DNA profile, he opined within a reasonable degree of
scientific certainty that the semen identified on the underwear was consistent with having
originated from defendant.
¶ 26 On cross-examination, DiDomenic explained that although he relied on the work of
Wildhaber and Olson, he did not observe either execute their work and did not attempt to
replicate their work by conducting the analysis again himself. Instead, he relied on the written
notes that they made while working at the laboratory and explained that based on his
examination of their notes, his personal experiences working with them, and the fact that he
received the same training and followed the same protocols, he agreed with their conclusions
and believed that they followed all of the proper procedures in doing their work. He further
testified that DNA analysis enables forensic scientists not only to match, but also to exclude
individuals. He explained that forensic scientists look at evidence in a reference sample and
can tell whether a person could, or could not have, contributed to a particular stain.
¶ 27 STR DNA Testing
¶ 28 Dr. Jennifer Reynolds, a forensic DNA expert, testified that she was formerly employed by
Cellmark as its laboratory director. At Cellmark, she supervised DNA analysis in criminal
cases, reviewed data, and drew independent conclusions from the data. According to Dr.
Reynolds, Cellmark assisted the ISP crime lab with a backlog of DNA casework and that it was
standard practice in 2001 for ISP to send such samples to Cellmark. Dr. Reynolds testified,
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over defense counsel’s objection, that a Cellmark case file indicated that on May 1, 2001, it
received from ISP a standard of blood identified as being from defendant. She testified that as
a result of the forensic analysis subsequently completed at Cellmark’s laboratory, a DNA
profile of defendant was produced and sent to ISP. Dr. Reynolds further testified that she
completed a “technical review” of the case file and reasonably relied on information contained
therein. She testified that the analysis performed on defendant’s blood by an unnamed
Cellmark employee was of a type commonly accepted within the scientific community and
followed proper protocols. When asked to explain this conclusion, she stated that she based her
opinion on the case file and the control samples that were run with this case. Dr. Reynolds
testified that she saw no evidence of contamination with defendant’s blood standard. She
acknowledged that she did not complete any laboratory analysis of defendant’s blood herself,
but merely reviewed notes produced by the other analyst who completed the work.
¶ 29 Edgardo Jove, an expert in the field of forensic DNA analysis, testified that he is a group
supervisor in the forensic biology DNA section at the ISP crime lab. He testified, over defense
counsel’s objection, that he performed a technical review of analysis conducted by ISP
forensic chemist Sandra Lambatos.2 He explained that Lambatos performed a newer and more
accurate form of DNA analysis than completed by DiDomenic in 1999. Jove further explained
that this newer method, called the “short tandem repeat” (STR) method, compared 13 areas of
DNA, instead of the five areas of DNA analyzed under the method utilized by DiDomenic.
Jove testified that Lambatos conducted DNA analysis on the semen stain from F.M.’s
underwear and that she obtained a male DNA profile. Lambatos then compared that DNA
profile to defendant’s known standard and concluded that the two matched. Defendant’s
known standard was based on the updated profile completed by an analyst at Cellmark. Jove
explained that the ISP crime lab had a standard practice of sending its DNA samples to
Cellmark for analysis in order to decrease the backlog of cases requiring forensic analysis.
¶ 30 Jove further testified that he performed a “technical review” of the work done by Lambatos
and the Cellmark analyst and concluded that the male DNA profile found in the semen stain on
F.M.’s underwear matched that of defendant. Jove opined that the DNA profile extracted from
the semen stain on the underwear would be expected to occur in approximately “one in 1.4
quadrillion black, one in 130 quadrillion white or one in 70 quadrillion Hispanic unrelated
individuals.” Jove acknowledged that he did not personally perform any laboratory work on
the forensic evidence gathered in this case and that he did not try to duplicate the analysis
completed by either the Cellmark scientists or Lambatos. Jove testified that, based on his
review of Lambatos’s laboratory notes, he was able to conclude that she followed the scientific
protocol established by the ISP, which is generally accepted in the forensic science
community.
¶ 31 Defendant presented no evidence at trial.
¶ 32 In closing argument, the defense argued, inter alia, that F.M. voluntarily met defendant
and they had a “rendezvous.” Defense counsel stated:
2
Lambatos wrote a report of her DNA analysis in this case, dated August 22, 2001, that was not
admitted at trial.
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“She [F.M.] has an intent to lie in this case. She goes off with John Barner. They
stay the night together. At the [end] of the night, he doesn’t give her anything, no
money, nothing. He leaves.
***
And if the State really wanted to make a big deal about DNA, they should have
brought in the people that actually did the test. *** [B]ring in the person that did the
notes, *** bring them in to show what they did, what tests they performed, not
somebody else who looked over their notes.”
¶ 33 The jury found defendant guilty of two counts of aggravated criminal sexual assault. He
was subsequently sentenced to natural life imprisonment.
¶ 34 On appeal, defendant argued, inter alia, that his right to confrontation under Crawford was
violated when the State’s forensic witnesses, some of whom did not conduct laboratory
analysis themselves, testified regarding the conclusions of nontestifying forensic analysts.
2013 IL App (1st) 063738-U, ¶ 39. In affirming defendant’s convictions following our remand
to reconsider in light of Leach, the appellate court concluded that although DiDomenic, Jove,
and Reynolds relied upon the work of other experts in reaching their conclusions, the results of
the work of the nontestifying experts were not testimonial as they are indistinguishable from
those at issue in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012) (plurality opinion).
2013 IL App (1st) 063738-U, ¶ 68. The appellate court held that although some of the
nontestifying experts were employed by a law enforcement agency, nothing in the record
suggests that they could have known whether the profiles, which were not in and of themselves
incriminating, would ultimately confirm the identification of defendant as F.M.’s attacker, or
exonerate him. Id. ¶ 71. The appellate court concluded that the DNA profiles in this case were
not created for the primary purpose of incriminating defendant, but for investigating the
identity of F.M.’s attacker. Id. ¶¶ 70-71. The appellate court also held that the reports upon
which the witnesses relied lacked the requisite “formality and solemnity” to constitute a
testimonial statement. Id. ¶ 71; Williams, 567 U.S. at ___, 132 S. Ct. at 2255 (Thomas, J.,
concurring in the judgment).
¶ 35 Justice Robert Gordon dissented. He believed that defendant’s DNA profile, which was
created by two nontestifying DNA experts from defendant’s blood sample, was prepared for
the primary purposes of accusing a targeted individual and for providing evidence in a criminal
case against him. 2013 IL App (1st) 063738-U, ¶ 95 (Gordon, P.J., dissenting). He therefore
concluded “that the report at issue was testimonial and cannot be admitted as an exception to
the rule against hearsay.” Id. In reaching this conclusion, he emphasized that the nontestifying
witnesses were employees of the ISP crime lab. Id. ¶ 96.
¶ 36 Defendant subsequently filed a petition for leave to appeal in this court under Supreme
Court Rule 315 (Ill. S. Ct. R. 315 (eff. July 1, 2013)), which we allowed.3
3
After allowing defendant’s petition for leave to appeal, we entered an order directing the circuit
court to bind and certify certain documents for filing with this court as a supplemental record. This
material includes ISP and Cellmark lab reports, documents and case files. We also granted the parties
time for additional briefing to address the significance, if any, of these documents to their arguments.
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¶ 37 ANALYSIS
¶ 38 As before the appellate court, defendant contends that his right to confrontation under
Crawford and its progeny was violated when DiDomenic, Dr. Reynolds, and Jove testified
concerning the DNA laboratory work and conclusions of nontestifying scientists at ISP and
Cellmark.
¶ 39 We apply de novo review of this issue because defendant’s claim that his sixth amendment
right of confrontation was violated constitutes a question of law. Leach, 2012 IL 111534, ¶ 64.
¶ 40 The sixth amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against
him.” U.S. Const., amend. VI. This portion of the sixth amendment is known as the
confrontation clause and applies to the states through the fourteenth amendment. People v.
Stechly, 225 Ill. 2d 246, 264 (2007).
¶ 41 Current confrontation clause jurisprudence stems from Crawford. There, the Supreme
Court held that “[w]here testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.” Crawford, 541 U.S. at 68-69. Specifically, “the Sixth amendment demands
what the common law required: unavailability and a prior opportunity for cross-examination.”
Id. at 68. The Court left “for another day any effort to spell out a comprehensive definition of
‘testimonial,’ ” to which its rule applied. Id. However, the Court recognized “[w]hatever else
the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations. These are the modern practices
with closest kinship to the abuses at which the Confrontation Clause was directed.” Id.
¶ 42 Thereafter, in Davis v. Washington, 547 U.S. 813 (2006), the Court explained the
distinction between testimonial and nontestimonial statements:
“Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” Id. at 822.
The Davis Court cautioned in a footnote, however, that it did not mean to “imply *** that
statements made in the absence of any interrogation are necessarily nontestimonial.” Id. at 822
n.1.
¶ 43 Justice Thomas, in his partial concurrence, concluded that out-of-court statements that lack
“some degree of solemnity” are not testimonial in nature. Id. at 836 (Thomas, J., concurring in
part and dissenting in part). He would have found affidavits, depositions, prior testimony, and
confessions sufficiently solemn “to constitute formalized statements” subject to the rule of
Crawford. Id. at 836-37.
¶ 44 The Supreme Court has, on three subsequent occasions, considered whether scientific
reports are testimonial under Crawford and subject to the strictures of the confrontation clause.
¶ 45 First, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court considered
whether sworn certificates from forensic analysts, admitted to attest that the substance seized
from the defendant was cocaine, were testimonial for confrontation clause purposes. Five
members of the Court held in the affirmative. Four members reasoned that “the sole purpose of
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the affidavits[,] was to provide ‘prima facie evidence of the composition, quality, and the net
weight’ of the analyzed substance,” and that it could be safely assumed “that the analysts were
aware of the affidavits’ evidentiary purpose.” (Emphasis in original.) Id. at 311 (quoting Mass.
Gen. Laws ch. 111, § 13). They concluded that although the analysts’ statements might
“qualify as business or official records,” they were prepared specifically for use in a criminal
trial and were, therefore, testimony against the defendant and subject to confrontation. Id. at
324.
¶ 46 Justice Thomas, providing the necessary fifth vote to find a violation of the confrontation
clause, distanced himself from consideration of the primary purpose of the out-of-court
statement. He reiterated his adherence to the position that extrajudicial statements implicate
the confrontation clause “only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions.” (Internal quotation
marks omitted.) Id. at 329 (Thomas, J., concurring).
¶ 47 Next, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), the Court
considered whether a lab report, certifying the results of a blood-alcohol test performed on a
sample taken from the defendant at the time of his arrest for driving while intoxicated, was
properly introduced at trial. Id. at ___, 131 S. Ct. at 2709-10. The signatory analyst did not
testify, but another analyst familiar with the laboratory’s procedures did. Id. at ___, 131 S. Ct.
at 2709-10. The testifying analyst, however, had not participated in or observed the
defendant’s blood test. Id. at ___, 131 S. Ct. at 2709.
¶ 48 In vacating the defendant’s conviction, the Bullcoming Court stressed that the
blood-alcohol test results were testimonial in nature because the report was created solely for
an “ ‘evidentiary purpose’ ” in aid of a police investigation. Id. at ___, 131 S. Ct. at 2717
(quoting Melendez-Diaz, 557 U.S. at 311). Although the report lacked formal certification or
notarization, the formalities attending the creation of the report and its purpose were “more
than adequate” to classify it as testimonial. Id. at ___, 131 S. Ct. at 2717.
¶ 49 Most recently, in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), the Court
considered, similar to this case, whether a DNA expert’s testimony violated the confrontation
clause. The expert witness, employed by the ISP crime lab, testified at a bench trial regarding a
DNA match that incriminated the defendant. Id. at ___, 132 S. Ct. at 2229. The ISP had sent
Cellmark, the same private laboratory utilized in this case, a vaginal swab and directed
Cellmark to conduct DNA analysis. Id. at ___, 132 S. Ct. at 2230. Cellmark returned the
vaginal swab and a report containing the DNA analysis. Id. at ___, 132 S. Ct. at 2230. The
expert witness testified that the DNA profile obtained by Cellmark from the vaginal swab
matched the defendant’s DNA profile, which was obtained from the State’s forensic database.
Id. at ___, 132 S. Ct. at 2230. The expert witness did not have any firsthand knowledge of how
Cellmark handled the vaginal swab, what tests were actually run on the swab or the manner in
which the tests were conducted. Id. at ___, 132 S. Ct. at 2230. The expert witness was
permitted, however, to testify that the DNA taken from the vaginal swab matched to a
reasonable degree of medical certainty the defendant’s DNA. Id. at ___, 132 S. Ct. at 2230. In
Williams, as in the instant case, the report itself was not admitted into evidence. Id. at ___, 132
S. Ct. at 2230.
¶ 50 Five members of the Court held that the expert testimony at issue did not violate the
confrontation clause. Four of the five reasoned that:
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“[T]his form of expert testimony does not violate the Confrontation Clause because
that provision has no application to out-of-court statements that are not offered to prove
the truth of the matter asserted. When an expert testifies for the prosecution in a
criminal case, the defendant has the opportunity to cross-examine the expert about any
statements that are offered for their truth. Out-of-court statements that are related by
the expert solely for the purpose of explaining the assumptions on which that opinion
rests are not offered for their truth and thus fall outside the scope of the Confrontation
Clause.” Id. at ___, 132 S. Ct. at 2228.
¶ 51 The four also provided a “second independent basis” for their decision:
“[W]e also conclude that even if the report produced by Cellmark had been admitted
into evidence, there would have been no Confrontation Clause violation. The Cellmark
report is very different from the sort of extrajudicial statements, such as affidavits,
depositions, prior testimony, and confessions, that the Confrontation Clause was
originally understood to reach. The report was produced before any suspect was
identified. The report was sought not for the purpose of obtaining evidence to be used
against petitioner, who was not even under suspicion at the time, but for the purpose of
finding a rapist who was on the loose. And the profile that Cellmark provided was not
inherently inculpatory. On the contrary, a DNA profile is evidence that tends to
exculpate all but one of the more than 7 billion people in the world today. The use of
DNA evidence to exonerate persons who have been wrongfully accused or convicted is
well known. If DNA profiles could not be introduced without calling the technicians
who participated in the preparation of the profile, economic pressures would encourage
prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as
eyewitness identification, that are less reliable. [Citation.] The Confrontation Clause
does not mandate such an undesirable development. This conclusion will not prejudice
any defendant who really wishes to probe the reliability of the DNA testing done in a
particular case because those who participated in the testing may always be
subpoenaed by the defense and questioned at trial.” Id. at ___, 132 S. Ct. at 2228.
¶ 52 Justice Thomas, again providing the necessary fifth vote, concluded that there was no
violation of the confrontation clause because the statements at issue, while being admitted for
the truth of the matter asserted, lacked the formality and solemnity associated with testimonial
evidence. Id. at ___, 132 S. Ct. at 2255 (Thomas, J., concurring in the judgment). The four
dissenting justices found that the statements were offered for the truth of the matter asserted
and did violate the confrontation clause. Id. at ___, 132 S. Ct. at 2264-65 (Kagan, J.,
dissenting, joined by Scalia, Ginsburg and Sotomayor, JJ.).
¶ 53 Following Williams, this court had an opportunity to consider whether the admission of
expert testimony recounting autopsy findings of another pathologist, and admission of the
autopsy report itself, violated the confrontation clause. In Leach, we analyzed whether an
autopsy report constituted testimonial hearsay. We conducted a comprehensive review of the
Supreme Court’s instructions from Crawford through Williams. We ultimately summarized
the positions of the plurality and dissent in Williams as follows:
“When we must determine whether a forensic report is testimonial in nature, the
Williams plurality instructs us to apply an objective test, looking for ‘the primary
purpose that a reasonable person would have ascribed to the statement, taking into
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account all of the surrounding circumstances.’ Id. at ___, 132 S. Ct. at 2243. If this
inquiry reveals that the forensic report was ‘made for the purpose of proving the guilt of
a particular criminal defendant at trial’ (id. at ___, 132 S. Ct. at 2243), it is testimonial.
The Williams dissent rejects this focus on the targeting of a particular individual,
reminding us that Davis formulated the test as whether the out-of-court statement was
‘made for the primary purpose of establishing “past events potentially relevant to later
criminal prosecution”—in other words, for the purpose of providing evidence.’ Id. at
___, 132 S. Ct. at 2273 (Kagan, J., dissenting, joined by Scalia, Ginsburg and
Sotomayor, JJ.) (quoting Davis, 547 U.S. at 822).” Leach, 2012 IL 111534, ¶¶ 120-21.
¶ 54 In Leach, we found that whichever definition of primary purpose is applied, the autopsy
report was not testimonial because it was not prepared for the primary purpose of accusing a
targeted individual or for the primary purpose of providing evidence in a criminal case. Id.
¶ 122. We also found that under Justice Thomas’s “formality and solemnity” rule, autopsy
reports prepared by a medical examiner’s office in the normal course of its duties are
nontestimonial. Id. ¶ 136.
¶ 55 RFLP DNA Evidence
¶ 56 Turning to defendant’s specific claims, he first challenges Wildhaber’s 1999 report
concerning the preservation of his blood standard, as well as Olson’s 1999 report detailing her
RFLP DNA analysis of his blood standard, as testimonial statements that should not have been
admitted into evidence through the testimony of DiDomenic.
¶ 57 As a threshold matter, the State argues that defendant has forfeited any review of his
contentions surrounding Wildhaber’s and Olson’s work because that argument was not
specifically contained in his petition for leave to appeal. The State is correct that the thrust of
defendant’s argument in his petition related to testimony concerning the analysis completed by
Lambatos. We will address his argument here, however, because it is closely related to the
claim contained in his petition that his right to confrontation was violated when a State’s
witness was allowed to testify concerning the lab work and conclusions of nontestifying
scientists. See People v. McKown, 236 Ill. 2d 278, 310 (2010) (“When an issue is not
specifically mentioned in a party’s petition for leave to appeal, but it is inextricably intertwined
with other matters properly before the court, review is appropriate.” (Internal quotation marks
omitted.)). We also note that the issue was properly preserved below because defendant
repeatedly argued both in the trial and appellate courts that testimony by DiDomenic
concerning Wildhaber’s and Olson’s work on the preservation and testing of his blood
standard violated his right to confrontation.
¶ 58 Now, against the backdrop of Crawford and the subsequent authorities applying it, we
consider the confrontation clause implications, if any, of DiDomenic’s testimony regarding the
work performed by Olson and Wildhaber.
¶ 59 At trial, DiDomenic testified that the semen identified from the stain on F.M.’s underwear
was consistent with having originated from defendant. In reaching this conclusion, DiDomenic
explained that he developed an RFLP DNA profile from the semen stains on the underwear,
that he entered the profile into the CODIS system, and that there was a “hit.” He subsequently
reviewed the laboratory notes and casework of Wildhaber and Olson that had produced
defendant’s RFLP DNA profile and concluded that they matched. He did not testify to the
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details of the data at the RFLP markers and provided no opinion as to the rarity of the RFLP
DNA profile.
¶ 60 As we recognized in Leach, when determining whether a forensic report is testimonial in
nature, the Williams plurality instructs us to apply an objective test, looking for “the primary
purpose that a reasonable person would have ascribed to the statement, taking into account all
of the surrounding circumstances.” Leach, 2012 IL 111534, ¶ 120. If this inquiry reveals that
the forensic report was “made for the purpose of proving the guilt of a particular criminal
defendant at trial, it is testimonial.” Id.
¶ 61 Based on the documents contained in the supplemental record, defendant now
acknowledges that Olson’s and Wildhaber’s work on his blood standard in 1999 was not
performed after the CODIS “hit” in this case but, rather, for the purpose of uploading it into
CODIS in order to compare it to evidence from the unrelated Cheryl Cross murder
investigation. Defendant was not in custody on that matter when he submitted his blood sample
and was ultimately eliminated as a suspect in the Cross murder case.
¶ 62 We are not persuaded by defendant’s argument that the targeted individual test still applies
to Olson’s and Wildhaber’s out-of-court statements because the work of these two scientists
employed by a law enforcement agency was performed at a time when he was a suspect in a
criminal case, even if that case was not the instant case. As with the report at issue in Williams,
the reports by Olson and Wildhaber were produced before any suspect was identified in this
case. The reports were not sought for the purpose of obtaining evidence to be used against
defendant, who was not even under suspicion in this case at the time they were produced, but
for the purpose of resolving the unrelated murder case. As in Williams, the two nontestifying
scientists could not have possibly known that the DNA profile produced at the ISP crime lab
would turn out to later inculpate defendant in the unrelated sexual assault of F.M. Similar to
Williams, the possibility that shoddy lab work or malfeasance by the DNA analysts doing work
in the Cross investigation would somehow produce a match to a person later picked out of a
police lineup by the victim in this case is “beyond fanciful.” Williams, 567 U.S. at ___, 132 S.
Ct. at 2244.
¶ 63 We have also reviewed the laboratory case files and reports contained in the record,
including DiDomenic’s. These documents consist of lab case notes and worksheets, data from
DNA testing, inventory forms, consent for analysis on samples, and conversation logs. These
files and reports are markedly different from the signed laboratory report certifying the results
of the blood-alcohol test performed on the sample taken from the defendant in Bullcoming, or
the sworn certificates from the forensic analysts in Melendez-Diaz, which were admitted into
evidence to attest to the substance that was seized from the defendant. None of the documents
in this case take the form of an affidavit, attestation, certification, sworn statement, or formal
declaration. Similarly, defendant has not cited to any document in the record created by either
Wildhaber or Olson that takes such form. Consequently, we find the documents here lack the
“formality and solemnity” that Justice Thomas has consistently found necessary for a
statement to be testimonial.
¶ 64 For these reasons, we conclude that based upon the Court’s most recent instructions in
Williams, and our holding in Leach, the reports by Olson and Wildhaber were nontestimonial,
and their admission through the testimony of DiDomenic did not violate defendant’s right to
confrontation.
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¶ 65 Defendant also raises, for the first time in this court, a claim that DiDomenic’s testimony
about the “entry of his [original] DNA profile into CODIS” in 1999 by an unknown individual
was testimonial hearsay and should not have been allowed. The same is true with his claim that
DiDomenic’s testimony concerning the analysis performed by Wildhaber and Olson was
impermissible because it was offered for the truth of the matter asserted. Defendant fails to
pinpoint the specific testimony that he is challenging. As the State asserts, defendant did not
raise these issues in the trial court, the appellate court, or in his petition for leave to appeal with
this court. Additionally, defendant’s arguments on these issues are entirely undeveloped and
unclear. For all these reasons, we find these claims forfeited and decline to address them. See
People v. Robinson, 223 Ill. 2d 165, 173-74 (2006) (defendant forfeited this court’s
consideration of an issue where it was not raised in his posttrial motion, his appeal before the
appellate court, or in his petition for leave to appeal to this court); see also People ex rel.
Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 56 (“a reviewing
court is not simply a depository into which a party may dump the burden of argument and
research”).
¶ 66 STR DNA Testimony
¶ 67 Defendant also claims that his right to confrontation was violated through Jove’s testimony
concerning Lambatos’s report from August 2001, regarding her updated STR DNA testing of
F.M.’s underwear and her comparison of that DNA profile to defendant’s STR DNA profile.
Similarly, he challenges Dr. Reynolds’s testimony regarding the forensic analysis completed
by an unnamed scientist at Cellmark which resulted in the creation of defendant’s updated
DNA profile which was produced and sent to ISP. Defendant unconvincingly claims that
documents contained in the record show that ISP and the Chicago police department
communicated throughout the investigation of F.M.’s sexual assault, including after the
CODIS hit, which supports his claim that the new testing performed by Lambatos and
Cellmark was done for the primary purpose of accusing a targeted individual (i.e., defendant)
or creating evidence for use in a criminal case.
¶ 68 The State responds that in 2000-01 DNA databases and laboratories were involved in a
statewide conversion from RFLP DNA analysis to STR technology. According to the State, the
work completed on defendant’s blood standard at Cellmark, and Lambatos’s testing of the
DNA found on the underwear, was done as part of this process. According to the State, this
conversion made it possible for STR profiles to be entered into CODIS, which was
transitioning to using the 13 core STR loci and phasing out of the RFLP markers.
Consequently, the State claims that the purpose of the updated testing in this case had nothing
to do with accusing a targeted individual, namely defendant, but was part of this transition to
the use of STR profiles. The State also points out that all of the DNA testing in this case was
completed approximately one year prior to when defendant was arrested and charged with the
sexual assault of F.M.
¶ 69 We recognize that defendant’s trial occurred in 2006, well before case law on the right to
confrontation developed to include inquiries of whether certain evidence was prepared for the
primary purpose of targeting a specific individual or for use in a criminal prosecution. We can
find nothing in the record, however, that conclusively establishes that the reason Lambatos,
and the Cellmark analysts, performed their work on the samples was due to a statewide
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conversion process.4 The record similarly fails to establish that it was done for the primary
purpose of targeting defendant or creating evidence for use in a criminal prosecution as
defendant urges.
¶ 70 Nevertheless, we do not have to surmise as to the State’s purpose for updating the profiles
using STR DNA technology. We conclude that even if the testimony of Jove and Dr. Reynolds
regarding the lab work and conclusions of the two nontestifying scientists violated defendant’s
right of confrontation, he would not be entitled to a new trial because the error would be
harmless beyond a reasonable doubt.
¶ 71 Admission of testimonial hearsay is error unless the declarant is unavailable and the
defendant has had a prior opportunity for cross-examination. Leach, 2012 IL 111534, ¶ 140
(citing Crawford, 541 U.S. at 68-69). Upon showing of such an error, the defendant is entitled
to a new trial unless it appears beyond a reasonable doubt that the error did not contribute to the
verdict obtained at trial. Id. “When determining whether an error is harmless, a reviewing court
may, (1) focus on the error to determine whether it might have contributed to the conviction;
(2) examine the other properly admitted evidence to determine whether it overwhelmingly
supports the conviction; or (3) determine whether the improperly admitted evidence is merely
cumulative or duplicates properly admitted evidence.” (Internal quotation marks omitted.)
In re Brandon P., 2014 IL 116653, ¶ 50.
¶ 72 In this case, F.M. testified that on the evening of March 13, 1999, defendant dragged her
from the street into an abandoned building, ordered her to remove her clothes, and repeatedly
forced her to engage in oral and vaginal intercourse for hours. Prior to being released by
defendant the following morning, F.M. testified that she was able to see his face from a couple
of inches away. F.M. positively identified defendant as her attacker over a period of years first
in a photo array, then a physical lineup, and finally at trial. Although F.M.’s testimony was
slightly inconsistent on minor details concerning the exact number of times each sex act was
performed, and she was reluctant to testify at trial, she was consistent in her claim that
defendant assaulted her.
¶ 73 After leaving the abandoned building, F.M. immediately went to her sister Brenda’s house.
Brenda testified that when F.M. arrived at her home she was hysterical, crying, dirty, looked
beat up, and said that she had been raped. Smith testified that she treated F.M. at Provident
Hospital at 8:45 a.m. on March 14, 1999. F.M. appeared scared and looked disheveled. While
Smith did not observe any scratches, bruises, or other marks on F.M.’s body, she did observe
blood in her vaginal canal and an abrasion on her right thigh. Detective Wright testified that
she interviewed F.M. at the hospital and F.M. was very upset and agitated. The following
morning, she took F.M. to the abandoned building. Detective Wright observed a couch in the
third-floor room, consistent with F.M.’s testimony, and stated that F.M. became visibly upset
when they entered the space.
4
The State claims that the trial record “clearly establishes” that the STR testing of defendant’s
blood standard at Cellmark was done as part of this statewide process to convert RFLP DNA samples to
STR profiles. In doing so, the State repeatedly cites to a page in the record that includes the background
section of one of its own motions in limine. We obviously cannot rely upon a factual representation
made in the background section of a party’s own motion which cannot be independently established in
the record.
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¶ 74 Additionally, we have already determined that RFLP DNA evidence linking defendant to
the victim was properly admitted at trial. DiDomenic testified that he was able to create a DNA
profile of the sperm donor from the semen stain on F.M.’s underwear. DiDomenic compared
five locations of DNA using the earlier RFLP DNA analysis method. At the time that he
conducted this analysis in 1999, he explained that it was the established method in the
scientific community. DiDomenic testified that he entered the RFLP DNA profile that he
created from F.M.’s underwear into CODIS and there was a “hit.” Based upon DiDomenic’s
own forensic analysis of the sperm from the semen stain on F.M.’s underwear, and his
comparison of defendant’s known DNA profile, he opined that the semen identified on the
underwear was consistent with having originated from defendant.
¶ 75 We also emphasize that the main focus at trial, as illustrated by defense counsel’s closing
argument, did not have to do with the identification of F.M.’s attacker. Instead, the primary
issue for the jury to consider was F.M.’s credibility and whether the jury believed her account
of the assault. Based upon the verdict in this case, the jury found F.M.’s testimony credible and
did not believe the sexual activity was consensual.
¶ 76 Moreover, G.W. testified that defendant attacked her in a very similar fashion, by grabbing
her on the street and forcing her into an abandoned building in the same general area as F.M.
was attacked. G.W. also testified that defendant repeatedly forced her to engage in vaginal
intercourse and to perform oral sex on him over a period of hours until he finally released her
the next morning.
¶ 77 Defendant presented no evidence at trial and did not impeach the State’s witnesses in any
significant way.
¶ 78 For these reasons, we find that even if the testimony of Jove and Dr. Reynolds concerning
the reports of the nontestifying witnesses violated defendant’s right of confrontation, it was
harmless beyond a reasonable doubt. This evidence would be cumulative or duplicative of the
properly admitted DNA evidence, any improperly admitted evidence did not contribute to
defendant’s guilt, and the properly admitted evidence in this case overwhelmingly supports
defendant’s conviction.
¶ 79 CONCLUSION
¶ 80 Accordingly, we affirm the judgment of the appellate court affirming the circuit court.
¶ 81 Affirmed.
¶ 82 JUSTICE KILBRIDE, dissenting:
¶ 83 I dissent from the majority opinion. I joined the majority in People v. Williams, 238 Ill. 2d
125 (2010), where this court held that an expert’s testimony, relying on a DNA report prepared
by a laboratory, did not implicate a defendant’s sixth amendment confrontation right. That
decision was affirmed by the Supreme Court on other grounds. Williams v. Illinois, 567 U.S.
___, 132 S. Ct. 2221 (2012) (plurality opinion). In this case, as in People v. Leach, 2012 IL
111534, I believe the majority erroneously relies on Williams, 567 U.S. ___, 132 S. Ct. 2221,
“a fractured opinion with no majority support for its rationale.” Leach, 2012 IL 111534, ¶ 161
(Kilbride, C.J., dissenting). I believe the majority in this case also erroneously relies on the
isolated position of Justice Thomas in Williams, 567 U.S. at ___, 132 S. Ct. at 2255 (Thomas,
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J., concurring in the judgment), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009)
(Thomas, J., concurring), and Davis v. Washington, 547 U.S. 813, 836 (2006) (Thomas, J.,
concurring in the judgment in part and dissenting in part), to bolster its decision in this case
when that position has never been joined by any other Supreme Court justice. I believe
Williams provides no guidance for resolving this case.
¶ 84 In Leach, I noted that “[t]he most that can be gleaned from the plurality opinion in Williams
is simply that a majority held that admission of the DNA profile under the facts of that case was
permissible.” Leach, 2012 IL 111534, ¶ 163 (Kilbride, C.J., dissenting). Since the Supreme
Court issued the fractured holdings in Williams, many other courts have recognized Williams
as a case of questionable precedential value. See United States v. Katso, 73 M.J. 630, 638 (A.F.
Ct. Crim. App. 2014) (finding “Williams does not provide a definitive test for determining
when a statement is to be deemed testimonial” and, accordingly, applying pre-Williams
confrontation clause law); State v. Dotson, 450 S.W.3d 1 (Tenn. 2014) (finding Williams
provides little guidance and is of uncertain precedential value); State v. Michaels, 95 A.3d 648,
666 (N.J. 2014) (finding “Williams’s force, as precedent, at best unclear” and, accordingly,
applying pre-Williams confrontation clause law); Jenkins v. United States, 75 A.3d 174, 184
(D.C. 2013) (noting that Williams “has not provided any clarity” to confrontation clause
jurisprudence); United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013) (recognizing that
current state of the law for determining when a particular statement is classified as testimonial
is unclear and “far from fixed”); State v. Ortiz-Zape, 743 S.E.2d 156, 161 (N.C. 2013) (noting
“lack of definitive guidance” provided by Williams); United States v. James, 712 F.3d 79, 95
(2d Cir. 2013) (finding Williams does not provide a controlling rule); United States v.
Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (finding plurality’s test in Williams not
“controlling”); State v. Kennedy, 735 S.E.2d 905, 916 (W. Va. 2012) (viewing Williams, a
fractured plurality opinion, “with caution” as “Williams cannot be fairly read to supplant the
‘primary purpose’ test previously endorsed by the Court”).
¶ 85 Additionally, when discussing the RFLP DNA evidence, the majority opinion erroneously
states that “Defendant was not in custody on [the unrelated Cheryl Cross murder investigation]
when he submitted his blood sample and was ultimately eliminated as a suspect in the Cross
murder case.” Supra ¶ 61. On the contrary, defendant was, in fact, under arrest, in police
custody, and under suspicion for a crime when the blood sample was drawn and sent to the lab
for testing. Therefore, Olson’s and Wildhaber’s work was prepared to obtain evidence for use
against defendant in a criminal case (albeit a different criminal case). No case examined by the
majority has determined that the DNA report must be prepared for evidence in the specific case
targeting the defendant. No doubt the DNA report would have been “testimonial” had it been
used as evidence against this defendant in the murder case. I fail to see, however, how the DNA
report now becomes nontestimonial when it is introduced in a criminal prosecution of the same
defendant in a different case. This, logically, cannot be.
¶ 86 I disagree with the majority that any error in the admission of the STR DNA testimony was
harmless, particularly when the majority’s harmless-error analysis relies heavily on the RFLP
DNA evidence that I believe violates Crawford. Additionally, the victim initially named “Carl
Long” as the assailant, but the DNA analysis on his buccal swab standard was canceled after
the CODIS matched to defendant. The ISP crime lab notes indicate the investigating detective
“says victim named Carl Long as an assailant but she has credibility problems” and “cannot
rely on the victim’s statements; says to ‘cancel’ any analysis on Long’s buccal swab standard.”
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The victim in this case was under arrest and in custody at the time of defendant’s trial and
admitted that the State had to keep her locked up to get her to testify against defendant. Given
that the State relied primarily on DNA evidence to convict defendant, taken together with the
conflicting evidence and credibility problems of the victim, I cannot say that any error in the
admission of the DNA testimony was harmless beyond a reasonable doubt.
¶ 87 For these reasons, I respectfully dissent.
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