People v. Sutherland

Docket No. 99047.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CECIL

S. SUTHERLAND, Appellant.

Opinion filed September 21, 2006.–Modified Upon Denial of

Rehearing December 4, 2006.

JUSTICE FITZGERALD delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, Kilbride, and

Garman concurred in the judgment and opinion.

Justices Karmeier and Burke took no part in the decision.

OPINION

Following a jury trial in St. Clair County, defendant Cecil

Sutherland was convicted of aggravated kidnaping (Ill. Rev. Stat.

1987, ch. 38, par. 10–2(a)(2)), aggravated criminal sexual assault (Ill.

Rev. Stat. 1987, ch. 38, par. 12–14(b)(1)), and first degree murder

(Ill. Rev. Stat. 1987, ch. 38, par. 9–1(a)(1)). The circuit court

sentenced defendant to death. This appeal followed. 134 Ill. 2d R.

603.

For the reasons discussed below, we affirm defendant’s

convictions and death sentence and remand for additional sentencing.

BACKGROUND

On July 2, 1987, the body of 10-year-old Amy Schulz was

discovered on a dirt road in rural Jefferson County. Amy had been

strangled, her throat had been slit, and she had been sexually

assaulted. Amy had been missing from her Kell, Illinois, home in

neighboring Marion County since the prior evening.

In early October 1987, four months after Amy’s murder,

defendant (then 32 years old) left his Dix, Illinois, home in Jefferson

County and drove to Montana. Later that month, federal authorities

arrested defendant on charges unrelated to this case. Based in part on

information provided by Montana authorities, on October 22, 1987,

Jefferson County police officers secured a search warrant from a

Jefferson County judge authorizing a search of defendant’s person,

vehicle, and possessions. At the time, defendant was in federal custody

at the Missoula County jail in Missoula, Montana, and defendant’s

vehicle was being held by federal park rangers at Glacier National

Park in Montana. Jefferson County police officers flew to Montana,

where they executed the warrant, seizing defendant’s vehicle and

personal property. They also obtained samples of defendant’s head,

beard, chest and pubic hair. Jefferson County police officers also

arranged for transfer of defendant’s vehicle to Illinois. On October 28,

1987, Jefferson County police officers secured a second warrant

authorizing a search of the vehicle, which police executed in Illinois.

Eight months later, in June 1988, defendant was indicted in

Jefferson County for the aggravated kidnaping, aggravated criminal

sexual assault, and first degree murder of Amy Schulz. Defendant filed

a motion to suppress all evidence seized in Montana pursuant to the

October 22, 1987, search warrant. The circuit court denied the motion

to suppress.

Following a change of venue to Richland County, a jury

convicted defendant of all charges and subsequently found him eligible

for the death penalty. The circuit court sentenced defendant to death.

On direct appeal to this court, we affirmed defendant’s convictions

and sentence. People v. Sutherland, 155 Ill. 2d 1 (1992). Defendant

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filed a petition for a writ of certiorari to the United States Supreme

Court, which was denied. Sutherland v. Illinois, 510 U.S. 858, 126 L.

Ed. 2d 130, 114 S. Ct. 170 (1993).

Defendant thereafter filed a postconviction petition raising

numerous claims. The trial court held an evidentiary hearing on certain

claims, but ultimately dismissed the petition. On appeal to this court,

we reversed defendant’s convictions and sentence and remanded for

a new trial, citing ineffectiveness of trial counsel and improper

prosecutorial argument. People v. Sutherland, 194 Ill. 2d 289, 299-

300 (2000).

On remand, venue was transferred to St. Clair County. Prior to

trial, defendant filed several motions challenging the validity of the

search warrants issued on October 22 and October 28, 1987, and

requesting suppression of all evidence seized pursuant to the warrants.

The trial court denied such motions.

In May 2004, defendant’s retrial began. Briefly, the State offered

evidence that gold fibers found on the victim’s clothing were

consistent with the carpeting and upholstery in defendant’s vehicle,

and that red fibers found in defendant’s vehicle were consistent with

the victim’s clothing. The State also offered evidence that two pubic

hairs found on the victim’s buttocks were microscopically consistent

with defendant’s pubic hair and that the two hairs had the same

mitochondrial DNA (mtDNA) as defendant.1 The State further offered

evidence that animal hairs found on the victim’s clothing could have

originated from defendant’s dog and that tire impressions found at the

crime scene could have been made by defendant’s vehicle. Defendant

countered with evidence that he argued demonstrated that Amy

Schulz was murdered by William Willis, her step-grandfather and a

convicted pedophile. Defendant also challenged the State’s hair and

fiber evidence and introduced evidence that, at the time of Amy’s

abduction, he was watching a movie with his brother.

1

Although the expert testimony concerning the mtDNA evidence will be

set forth later in this opinion, we note that mtDNA, which is identical for all

persons in the same maternal line, is distinct from nuclear DNA, which is

generally considered a unique identifier.

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After five weeks of testimony, the jury returned a verdict of guilty

on all charges. Defendant waived a sentencing hearing and, along with

the State, presented the circuit court with an agreed recommended

sentence of death. The circuit court, after finding defendant death

eligible, accepted the recommendation and sentenced defendant to

death. Defendant’s appeal lies directly to this court. 134 Ill. 2d R. 603.

ANALYSIS

Defendant argues that the trial court erred by declining to hold an

evidentiary hearing on his motions to suppress evidence recovered

pursuant to the two search warrants issued in October 1987; failing to

hold an evidentiary hearing on his motions challenging the affidavits

that supported the two search warrants; allowing the State to

introduce evidence recovered from defendant’s vehicle after the State

failed to produce the vehicle pursuant to defendant’s discovery

request; allowing the prior testimony of crime-scene technician

Richard Caudell, who died before defendant’s retrial, to be read to the

jury; allowing the State to call Sherry Witzel, a member of defendant’s

prior defense team, as a rebuttal witness; and allowing the State to

introduce certain DNA evidence. Defendant also argues that the

State’s evidence failed to establish his guilt beyond a reasonable

doubt.

I. Motions to Suppress Evidence

Defendant argues that the trial court committed reversible error

by declining to hold an evidentiary hearing on his motions to suppress

evidence seized pursuant to the search warrants issued on October 22

and October 28, 1987. The State argues that the trial court did not

abuse its discretion in denying defendant’s request for an evidentiary

hearing on his motions to suppress. According to the State, the

doctrine of collateral estoppel barred defendant from relitigating issues

raised and decided in his first trial and not thereafter challenged on

appeal. See People v. Enis, 163 Ill. 2d 367 (1994).

When reviewing a motion to suppress evidence, “we will accord

great deference to the trial court’s factual findings, and we will reverse

those findings only if they are against the manifest weight of the

evidence; however, we will review de novo the ultimate question of

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the defendant’s legal challenge to the denial of his motion to

suppress.” People v. Sorenson, 196 Ill. 2d 425, 431 (2001), citing In

re G.O., 191 Ill. 37, 50 (2000). The applicability of the collateral

estoppel doctrine, a purely legal question, is also subject to de novo

review. See People v. Daniels, 187 Ill. 2d 301, 307, 320-21 (1999);

People v. Powell, 349 Ill. App. 3d 906, 909 (2004).

In People v. Enis, 163 Ill. 2d 367 (1994), cited by the State, we

considered whether the trial court erred when, on remand for a new

trial, the court refused to reconsider its earlier denial of the

defendant’s motion to quash arrest and suppress evidence. We found

no reversible error. We reasoned that the defendant could have

challenged the denial of his suppression motion in his first appeal and

that the defendant’s failure to do so justified the trial court’s refusal

on remand to reconsider its earlier ruling. “Where a defendant’s

conviction has been reversed for trial error, and the cause is remanded

for a new trial, the doctrine of collateral estoppel bars the relitigation

of a pretrial ruling, such as a motion to suppress, unless the defendant

offers additional evidence or there are other special circumstances.”

Enis, 163 Ill. 2d at 386. In Enis, no special circumstances existed that

would have warranted relitigation of the defendant’s pretrial motion.

Thus, we held that the trial court did not err in its refusal to revisit its

earlier rulings. Enis, 163 Ill. 2d at 387. Accord People v. Gilliam, 172

Ill. 2d 484, 505-06 (1996); People v. Jones, 219 Ill. 2d 1, 19-23

(2006).

Based on our review of the record in the present case, we

conclude that the issues raised in defendant’s suppression motions

filed on remand were previously raised and litigated in defendant’s

first trial and that the doctrine of collateral estoppel bars relitigation

of the trial court’s earlier pretrial ruling. We also conclude that

defendant has failed to identify special circumstances or additional

evidence that would warrant relitigation. Accordingly, the trial court

did not err in declining to hold an evidentiary hearing on defendant’s

suppression motions.

The record discloses that prior to defendant’s first trial, defendant

filed a motion to suppress evidence seized pursuant to the October 22,

1987, search warrant. That warrant, issued by a Jefferson County

judge, authorized the seizure of certain evidence located in Montana,

including defendant’s vehicle, clothing and hair samples. The affidavit

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furnished by Officer Michael Anthis in support of the search warrant

states in relevant part as follows:

“[Amy Schulz] was last seen alive at approximately 9:00 p.m.

[on July 1, 1987] at 4th and Jefferson Streets in Kell, Illinois.

*** At approximately 9:00 p.m. Schulz neighbor Kathy

Simmons stated she saw Amy Schulz walk south on Jefferson

St. *** About five minutes later Simmons saw a tan colored

car with rust spots go south on Jefferson St., in the same

direction Amy Schulz was walking. Amy Schulz was never

seen alive again.

On July 2, 1987, Amy Schulz[’s] body was found

alongside a rural road in Jefferson County ***. Amy had

been sexually assaulted and murdered. *** A footprint was

found on her body and nearby and the ground print was

identified as coming from a Texas Steer brand boot sold by

K-Mart stores.

A tire print was found near Amy Schulz[’s] body and a

cast of that print was analyzed by the Illinois State Police

Forensic Science Laboratory and revealed it to be a ‘Falls

Persuader’ regular bias tire made by Cooper Tire Company.

It was determined that this tire print belonged to the right

side of the vehicle suspected of transporting Amy Schulz to

the crime scene. Hairs were found on her body and the

laboratory determined them to belong to a white male.

That on October 10, 1987 a tan 1977 Plymouth Fury

registered to Cecil S. Sutherland, a white male, was found

abandoned in the Glacier National Park, Montana. Cecil S.

Sutherland was arrested on 10-21-87 by the Federal

authorities. Among his possessions were knives contained in

a duffle bag and Texas Steer brand boots. His vehicle had a

‘Falls Persuader’ regular bias tire on the passenger front side

of his vehicle.

His mother, Joan Sutherland, confirmed that Cecil

Sutherland was living in Kell, Illinois on July 1st and 2nd,

1987. His former employer *** located in Jefferson County

Illinois confirmed that he worked on July 1, 1987 from 8:00

a.m. to 4:00 p.m. He did not work on July 2, 1987.”

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On October 24, 1987, Jefferson County police executed the warrant

in Montana, seizing the vehicle, hair samples from defendant, and

other items.

In defendant’s suppression motion filed prior to his first trial,

defendant raised several issues regarding the Montana search: (1) the

search warrant complaint and supporting affidavit did not allege facts

constituting probable cause; (2) the warrant, issued in Jefferson

County, Illinois, had no legal validity outside of Illinois, the Jefferson

County police had no authority to serve the warrant outside of Illinois,

and no warrant or other process was sought or obtained from the

State of Montana; (3) the Illinois officers did not advise defendant of

his Miranda rights when they questioned defendant about the case and

refused his request for an attorney; (4) the officers illegally executed

the warrant by threat of force and against the defendant’s will, taking

head, beard and pubic hair samples from defendant; (5) the officers

impounded defendant’s vehicle and caused it to be transported back

to Illinois and also seized defendant’s clothing, boots and other

personal belongings without defendant’s knowledge or consent; and

(6) the search was conducted without the knowledge of federal

authorities, in whose custody was defendant at the time of the search.

In opposition to defendant’s suppression motion, the State

argued that defendant lacked standing to challenge the search of the

vehicle because defendant had abandoned the vehicle and therefore

had no legitimate expectation of privacy in the vehicle. The State

further argued that because defendant was in federal custody, the

State of Montana had no jurisdiction or interest in the case and that

Illinois law should govern the admissibility of evidence seized

pursuant to the warrant. In the alternative, the State argued that even

if the warrant was invalid, the good-faith exception to the exclusionary

rule rendered the evidence seized in Montana admissible at trial.

An evidentiary hearing was held on defendant’s motion to

suppress. The same judge who issued the October 22, 1987, warrant

presided at the hearing. Defendant called David Brundage, a forensic

scientist with the Illinois State Police. Brundage testified that the boot

print found at the crime scene was made by a Texas Steer brand boot,

sold only by K mart stores. Brundage also testified that he examined

a plaster cast of a tire print from the crime scene and concluded that

the tire track was made by a Cooper Tire brand tire.

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Defendant also testified at the suppression hearing. According to

defendant, around the first of October 1987, he left Illinois and drove

to Montana in his 1977 Plymouth Fury, stopping only for gas.

Defendant had no particular destination and ended up in Kalispell,

Montana, in Glacier National Park. On October 10, 1987, after

spending one night in the park, his car ran out of gas. Defendant

locked his car and left it in the park. Defendant left a note in the car,

which read:

“Car out of gas. I’m broke. Took what I could with me

and got a ride back to the south. Will not be back for car.

Please call one or both of the numbers on the front or back of

this tablit [sic], let them deside [sic] what to do with the car

and what’s left inside. Title to car is in glove box. Title has

been signed over to my folks.”

Defendant testified that he had no further use for the vehicle and that

it belonged to his parents.

Defendant took a makeshift backpack containing clothes and

other items and secured a ride south. A day or two later, he headed

back north and spent at least a week and a half “living off the land” in

the park. Defendant was subsequently arrested by federal agents and

ultimately pleaded guilty to attempted murder of a federal officer.

Defendant further testified that in late October 1987, while he

was in federal custody in the Missoula County, Montana, jail, Officers

Anthis and Parker, from Jefferson County, Illinois, served defendant

with an Illinois warrant. No federal or Montana state authorities were

present at the time. According to defendant, after learning the purpose

of the officers’ visit, he requested a lawyer. Anthis and Parker refused

the request and told defendant that if he did not voluntarily provide

hair samples, they would call in other officers and remove the hair

themselves. Defendant protested, but provided the samples. Defendant

never gave consent for the removal of his personal belongings or for

the transport of the vehicle to Illinois.

The State called Eric Morey and Officer Anthis. Morey testified

that in 1987 he was a law enforcement ranger with the National Park

Service. On the morning of October 10, 1987, he observed a vehicle

in a remote area of Glacier National Park. Frost covered most of the

vehicle, indicating to Morey that it had been left there overnight.

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Through the driver side window, Morey observed a small spiral

notebook, open on the seat, with a note that read: “Read page one and

two. Then please due [sic] what I ask. Know [sic] have my car towed

in. Thank you.” The note was signed “Steve.”2 Morey gained entry to

the car, which was locked, read pages one and two of the note, and

located the vehicle title. Morey contacted defendant’s mother and a

brother, Michael Sutherland, who expressed no interest in the vehicle.

Defendant’s brother told Morey that the Sutherlands would assign the

title to whoever wanted the vehicle. On October 11, Morey returned

to the vehicle with another ranger. The vehicle was driven to the park

district storage facility and secured. The contents were later

inventoried. On October 24, 1987, the vehicle was turned over to

Illinois officers.

Officer Anthis, with the Jefferson County sheriff’s department in

Mt. Vernon, Illinois, testified that on October 24, 1987, he flew to

Montana with special agent Charles Parker of the Illinois State Police

and David Brundage. Anthis verified that he executed the warrant on

October 24, 1987, in Missoula County, Montana. Anthis identified the

affidavit he provided in support of the warrant and testified that he

made no material misrepresentations in the affidavit, the information

he provided therein was correct to the best of his knowledge and

belief, and he executed the warrant pursuant to the direction of the

court that issued the warrant.

Anthis further testified that on October 23, 1987, in Kalispell,

Montana, he met with the federal officer investigating the Montana

case against defendant and explained the purpose of his visit. The

following day, he and Parker flew to Missoula, Montana, where they

contacted prison authorities and arranged to meet with defendant in

an interview room at the county jail where defendant was in custody.

No other officers were present at the interview and no written

approval to conduct a search of defendant was obtained from any

judicial authority in Montana.

According to Anthis, he and Parker explained to defendant that

they were conducting an investigation in Illinois. Without being asked

2

Defendant’s full name is Cecil Steven Sutherland. The record indicates

that friends and family called defendant by his middle name.

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about his whereabouts on July 1, 1987, defendant volunteered his

itinerary for that date. He declined to answer further questions,

however, and requested an attorney. Anthis gave defendant a copy of

the search warrant and collected hair samples from defendant’s head,

beard, chest and pubic area without protest. Defendant pulled the

hairs himself and placed them in the envelopes Anthis provided. Anthis

denied threatening to use force to obtain the hair samples. Anthis also

testified that he and Parker looked over defendant’s clothing and

personal items held by authorities in Montana. Anthis recalled that

defendant might have had among his possessions a pair of Texas Steer

brand boots, but that the boots may have been a different style from

the one that had left the print at the crime scene. That same day,

Anthis and Parker obtained possession of defendant’s vehicle from

authorities in Glacier National Park. Anthis confirmed that the right

front tire was a Cooper Tire brand Falls Persuader tire. Anthis did not

obtain permission from defendant or his family to take the vehicle.

Following argument, the trial court denied defendant’s motion to

suppress. In its written order, the court made several findings: (1) the

police officers involved acted in good faith in applying for the search

warrant and in executing it; (2) defendant abandoned his vehicle in

Montana and therefore had no right to privacy in his vehicle and no

standing to object to a search of his vehicle; (3) the search warrant

was supported by probable cause as evinced by the facts contained

within the petition and affidavit, specifically by David Brundage’s

identification of a Texas Steer brand boot print and Falls Persuader

tire-track impression made at the crime scene, and the fact that

Montana authorities informed the Jefferson County sheriff’s

department that defendant had a Falls Persuader tire on his vehicle and

Texas Steer brand boots in his possession in Montana; (4) defendant

had no right to privacy in his boots, which had been inventoried by the

jail and were being held in the jail; (5) the hair samples were obtained

from defendant pursuant to a validly issued search warrant without

further coercion, threats or force; and (6) the search warrant was valid

in Montana because it was properly obtained and because defendant

was in federal custody at the time it was served. In its oral ruling, the

trial court also noted that even if the hair samples were not given

voluntarily, “it wouldn’t matter because the State would have gotten

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the samples later on anyway” because the search of the vehicle was

valid.

Although defendant challenged the trial court’s denial of his

suppression motion in his posttrial motion for a new trial, he did not

raise the issue on direct appeal following his first trial. Defendant also

did not argue in his postconviction petition that appellate counsel was

ineffective for failing to raise the issue on direct appeal.

Following remand for a new trial, defendant filed three motions

seeking to suppress the evidence seized pursuant to the October 22,

1987, warrant. Specifically, defendant filed a motion to quash arrest

and suppress evidence, directed to the hair samples taken from

defendant while he was in custody in Montana; a motion to suppress

two pocket knives obtained from federal authorities in Montana; and

a motion to suppress evidence obtained from defendant’s vehicle as a

result of the Montana search. Defendant also filed a separate motion

to suppress evidence seized pursuant to the October 28, 1987, search

warrant. That warrant, issued by the same Jefferson County judge that

issued the October 22 warrant, authorized only a search of

defendant’s vehicle, which had already been transported to Jefferson

County.

In response, the State argued that the issues raised in defendant’s

four new suppression motions were previously litigated at his first trial

and not challenged on appeal, and that the doctrine of collateral

estoppel barred relitigation. The new judge, to whom the case had

been assigned on remand, agreed with the State and denied the four

suppression motions. As stated earlier, we find no error in the trial

court’s application of the collateral estoppel doctrine under the

circumstances present here.

In each of the three suppression motions challenging the Montana

search that defendant filed on remand, he essentially renewed the

arguments he had made in his prior suppression motion. That is,

defendant argued that the search was without his consent; the Illinois

police had no authority to act as law enforcement officers in Montana;

an Illinois warrant is valid only within the State of Illinois; the Illinois

police officers did not attempt to secure a search warrant from an

appropriate federal magistrate or judge in Montana; and state search

warrants have no force or effect on federal property. Each of these

claims was litigated in the earlier suppression motion hearing.

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The only issue not expressly litigated in the earlier hearing was

defendant’s claim, raised only in his motion to suppress evidence

seized from the Montana vehicle search, that “[a] state search warrant

authorizing a search on federal property, or in another state, from an

objective standard, would put a police officer on notice that the

warrant was invalid on its face.” This ground for suppression of

evidence was available to defendant at the time of his original

suppression hearing. “To allow defendant on remand to raise

additional grounds not originally presented to the trial court for

suppression of evidence based on the same search and seizure would

foster piecemeal appeals contrary to the promotion of judicial

economy.” People v. Abata, 165 Ill. App. 3d 184, 188 (1988); see

also People v. Page, 155 Ill. 2d 232, 250 (1993) (“application of

collateral estoppel in the suppression context advances many of the

same policy goals that underlie the doctrine generally, such as the

conservation of judicial resources and the avoidance of repetitive

litigation”).

Considerations of judicial economy aside, the trial court’s earlier

ruling that the police officers acted in good faith encompasses this

new ground for suppression. Defendant’s failure, however, to

challenge on appeal the trial court’s good-faith finding barred

relitigation on remand. See Enis, 163 Ill. 2d at 386. Further, because

defendant also failed to challenge the trial court’s earlier ruling that

defendant had abandoned his vehicle and therefore had no legitimate

expectation of privacy in the vehicle, the issue of whether the officers

were on notice that the warrant was facially invalid is moot. See

People v. Hoskins, 101 Ill. 2d 209, 220 (1984) (“the protections

against unreasonable searches and seizures do not extend to

abandoned property, as the right of privacy in the property has been

terminated”).

With respect to defendant’s suppression motion challenging the

search of the vehicle in Illinois pursuant to the warrant issued on

October 28, 1987, defendant argues that this was a “new and original

motion” and thus not subject to the bar of collateral estoppel.

Although a motion challenging the Illinois vehicle search was not filed

prior to defendant’s first trial, the success of defendant’s new motion

was necessarily dependent on defendant’s capacity to challenge the

search. As already noted, however, defendant did not appeal the trial

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court’s earlier ruling that defendant, having abandoned the vehicle,

had no legitimate expectation of privacy in it. Accordingly, the trial

court, on remand, did not err in declining to entertain this motion.

Defendant next claims that special circumstances exist which

warrant relitigation of his motion to suppress. See Enis, 163 Ill. 2d at

386. Defendant directs our attention to this court’s opinion on

postconviction review in which we held that defendant’s original trial

counsel was ineffective in failing to investigate and present certain

boot and tire evidence and defendant was entitled to a new trial. See

Sutherland, 194 Ill. 2d 298-99. Defendant argues that this court’s

holding that counsel’s representation at trial was ineffective rendered

counsel’s representation prior to trial suspect and negated any

application of collateral estoppel on remand. According to defendant,

this court’s decision ordering a new trial should have alerted the trial

judge on remand to permit defendant to renew his motions to

suppress. Defendant further argues that a “new revelation” exists,

namely, trial counsel’s incompetence at the suppression motion

hearing, which deprived him of a full and fair hearing. See Enis, 163

Ill. 2d at 387.

This court has recognized an exception to the bar of collateral

estoppel where “special” or “exceptional” circumstances exist. Enis,

163 Ill. 2d at 386; Gilliam, 172 Ill. 2d at 506. Special circumstances

have been found where a defendant is acquitted and thereby denied the

opportunity to appeal the trial court’s ruling. In such a case, collateral

estoppel will not bar relitigation of the trial court’s ruling in a

subsequent proceeding. People v. Mordican, 64 Ill. 2d 257, 261

(1976). Similarly, where the evidence a defendant unsuccessfully

sought to suppress in his first trial was not relied upon by the State,

the defendant will not be precluded, on remand, from relitigating the

trial court’s ruling because the issue would have been considered

moot in his first appeal. See People v. Savory, 105 Ill. App. 3d 1023,

1027-28 (1982); see also People v. Smith, 72 Ill. App. 3d 956, 962

(1979) (holding that defendant was not precluded from relitigating

issues on remand concerning the validity of a search warrant where

issues were presented to, but not decided by, the appellate court).

Here, defendant has identified no special circumstances that

prevented him from seeking or obtaining review of the trial court’s

denial of his suppression motion on direct appeal from his first trial or

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in his petition for postconviction relief. Nor has defendant identified

any case law supporting his argument that trial counsel’s

ineffectiveness in failing to investigate and present certain evidence

during his first trial “negates” the applicability of the collateral

estoppel doctrine on remand.

Defendant’s further claim that he did not receive a full and fair

hearing on his suppression motion is unavailing. Generally, the

doctrine of collateral estoppel will only be applied if the party to be

estopped had a “ ‘full and fair opportunity to litigate the issue.’ ”

People v. Pawlaczyk, 189 Ill. 2d 177, 189 (2000), quoting Vroegh v.

J&M Forklift, 165 Ill. 2d 523, 532 (1995); see also Enis, 163 Ill. 2d

at 387 (“[d]efendant does not suggest that he did not receive a full and

fair hearing on his pretrial motions”). Here, defendant’s claim that he

did not receive a full and fair hearing is premised on the alleged

incompetence of original trial counsel at the suppression hearing. This

issue, however, could have been raised on direct appeal from

defendant’s first trial, but was not. See Sutherland, 155 Ill. 2d at 12-

25. We note that defendant did claim, in his postconviction petition,

that “[t]he defense lost the ill-planned motion [to suppress] due to the

lack of appropriate defense witnesses and attorney skill.” Defendant

did not pursue this claim on appeal from the trial court’s denial of

postconviction relief. Issues that could have been raised on appeal, but

were not, will be deemed forfeited. People v. Blair, 215 Ill. 2d 427,

443-44 (2005). Defendant cannot now avoid the effect of this

forfeiture and, in turn, the bar of collateral estoppel, by recasting the

issue of trial counsel’s ineffectiveness at the suppression hearing as a

“new revelation.”

Defendant also argues that additional evidence exists which

warrants relitigation of his motion to suppress. Where a defendant, on

remand, points to “newly discovered evidence” that would have been

pertinent to the trial court’s ruling on the defendant’s motion to

suppress, relitigation of the motion may be warranted and the bar of

collateral estoppel will not apply. Gilliam, 172 Ill. 2d at 506, citing

People v. Holland, 56 Ill. 2d 318, 321 (1974). On remand in the trial

court, defendant asserted that a “litany of new evidence” exists which

warranted relitigation of his motion. The trial court did not find the

new matter sufficient to overcome the bar of collateral estoppel. We

now consider this evidence.

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Montana Law

Defendant first asserts that the information that no Montana

statute or case law gives validity to an Illinois search warrant was not

provided to the Jefferson County judge when he was asked to sign the

two search warrants in October 1987. Defendant explains that this

information was first obtained from a Montana state judge in June

2002.

Information that no Montana law validates an out-of-state

warrant would not have been pertinent to defendant’s motion to

suppress evidence seized pursuant to the warrant that was executed

in Illinois. Although such information would have been pertinent to

defendant’s motion to suppress evidence seized in Montana, such

information can hardly be considered “evidence” in the traditional

sense of the word. See generally Black’s Law Dictionary 595 (8th ed.

2004) (defining evidence as “[s]omething (including testimony,

documents, and tangible objects) that tends to prove or disprove the

existence of an alleged fact”).

Even if we considered Montana law “evidence,” Montana law

was available for research and review at the time of the original

suppression hearing. Merely conducting such research at a later date

does not transform the information thus gathered into new evidence.

Although new legal precedent could provide a basis for relitigating a

suppression motion (Enis, 163 Ill. 2d at 387), defendant does not cite

any such precedent.

In a related vein, defendant asserts that Officer Anthis and

Jefferson County prosecutors were aware, at the time application for

the warrants was made, that an Illinois search warrant may not be

valid in Montana. Defendant cites to testimony from Anthis’

deposition, taken in March 2002. Anthis testified that “preliminary

discussions” about the validity of the warrant in Montana “may have”

taken place in Illinois. He also testified that, “in talking to the officials

out in Montana, they didn’t know if the local judge would allow it [the

search] or if we would have to reapply in the State of Montana.”

Defendant also cites to testimony from the May 2002 deposition of

Officer Parker, who accompanied Anthis to Montana. Parker states,

“There was general conversation about whether the search warrant

would be honored out there [in Montana].” Defendant asserts that this

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information was not provided to the judge when he was asked to sign

the two warrants.

Assuming, without deciding, that the officers’ deposition

testimony constitutes new evidence that was not available at the time

of the suppression hearing, such evidence would not warrant

relitigation of the suppression motion. Evidence that the officers

harbored concerns about the validity of an Illinois warrant in Montana

would not impact the issue of whether the warrant was supported by

probable cause, or whether the warrant was, as a matter of law, valid

in Montana.

Kell Park Incident

Defendant cites testimony from defendant’s second trial

concerning an incident at Kell Park on June 19, 1988. On that date, a

group of citizens held a public forum to give their reasons why they

believed defendant, who had not yet been indicted, was not involved

in Amy Schulz’s abduction and murder. As the speakers tried to

address the crowd, a few individuals blew air horns and shouted.

Officers Anthis and Parker were present in the park but did nothing to

prevent the “disturbance” so the speakers could be heard. According

to defendant, “[t]he failure of Anthis and Parker to act reflects

negatively on their impartiality in their investigation of [defendant].”

Assuming that Anthis and Parker had a duty to prevent the so-

called disturbance at Kell Park, we disagree that their failure to act

necessarily “reflects negatively” on their investigation of defendant. In

any event, this new evidence is irrelevant to whether probable cause

existed for the issuance of the search warrants eight months earlier.

Uninvestigated Leads

Defendant cites evidence that Jefferson County police failed to

pursue two leads that someone other than defendant murdered Amy

Schulz. The first lead involved a report by three men who were in Kell

on the evening of July 1, 1987. Approximately 10 minutes before

Dennis Schulz, Amy’s father, arrived in town looking for Amy, the

witnesses saw a man driving a gray pickup truck pull a child up off the

street and across his lap into the truck. The truck drove east out of

Kell. Police created a composite drawing of the driver. Defendant

-16-

notes that Officer Anthis testified at his deposition that it would have

been logical to pursue this lead, and that Officer Parker testified at his

deposition that he was not aware of any reports indicating that the

lead was pursued. The second lead involved a report to police in El

Dorado, Illinois, that a man had confessed to killing Amy Schulz.

According to defendant, although this information was passed on to

Jefferson County police, no action was taken. Defendant argues that

information regarding these leads was not given to the judge when he

was asked to sign the two search warrants.

Assuming, arguendo, that the foregoing evidence constitutes new

evidence that was not available at the first suppression hearing,

defendant fails to explain in what way this evidence was pertinent to

the trial court’s ruling on the suppression motion.

Defendant’s Compliance With Search Warrant

Defendant asserts that Officers Anthis and Parker provided later

deposition and/or trial testimony that defendant provided hair samples

pursuant to the apparent authority of the Illinois warrant, not

voluntarily, and that defendant was not given Miranda warnings when

Anthis and Parker interviewed defendant in Montana. Defendant

states that this information was not provided to the judge at the

suppression motion hearing. We disagree.

Defendant testified at the suppression hearing that officers

advised him that because he was not under arrest they had no reason

to read him his rights. Officer Anthis did not contradict defendant’s

testimony or imply that he or Parker had, in fact, given defendant

Miranda warnings. Defendant also testified at the suppression hearing

that he challenged the authority of the Illinois warrant and initially

refused to allow Anthis and Parker to execute the warrant for the hair

samples. According to defendant’s testimony, he acquiesced in the

search only after the officers threatened to use force. Officer Anthis

gave a different account of these events, testifying at the suppression

hearing that defendant did not question the validity of the warrant and

was cooperative in providing the hair samples. The later testimony of

Anthis and Parker to which defendant now cites does not contradict

or add to the testimony that was presented at the suppression hearing

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and thus does not provide a basis for relitigating the motion to

suppress.

Preparer of Warrant Documents

Defendant asserts that Anthis and Parker testified during their

depositions that they had not typed or dictated the warrant affidavits

or the warrants themselves and had no idea who prepared these

documents. Defendant concludes: “Thus, the author of these

documents remains a mystery to this day.”

The gist of the testimony from Anthis and Parker is that they

could not recall, at the time of their depositions in 2002, who prepared

the warrants and supporting documents for the searches conducted in

1987. Assuming that the identity of the individual or individuals who

prepared the warrant documentation was somehow relevant to the

issues raised at the suppression hearing, we conclude that the officers’

failed memories on this point provide an insufficient basis to relitigate

defendant’s motion to suppress.

Tire Identification

Defendant cites deposition testimony from Anthis and Parker that

they did not know who provided the information to them, prior to the

drafting of the warrant affidavit, that the tire print at the crime scene

was made by a Cooper Tire brand Falls Persuader tire. Defendant

concludes that the source of this information also “remains a mystery

to this day.” Evidence that the officers could not recall, 15 years later,

who provided the tire identification information incorporated into the

warrant affidavit is not grounds to relitigate defendant’s motion to

suppress.

Defendant also argues that police misled the judge who issued the

warrants about the tire print identification by failing to disclose in the

warrant affidavit that Cooper Tire had already concluded that the tire

print was not made by a Cooper Tire brand tire. Defendant cites two

letters in the record dated September 25 and September 30, 1987, sent

by Cooper Tire to David Brundage, the forensic scientist who

analyzed the tire print. The letters state, respectively, that nothing in

Cooper Tire’s files “even looks close to this impression,” and that the

tire could be a “Goodyear Custom Super Cushion.” Assuming,

-18-

arguendo, that the two letters were not available to the defense at the

time of the first suppression hearing, we conclude that this new

evidence was insufficient to warrant relitigation of defendant’s motion

to suppress.

David Brundage testified at the suppression hearing about the

method he used to identify the brand and style of tire that left the print

at the scene. After narrowing down the number of possible

manufacturers to three or four, Brundage contacted numerous dealers,

manufacturers and distributors for assistance. He admitted that not all

the responses he received verified his own conclusion that the print

could have been made by a Cooper Tire brand tire. Brundage also

testified that he received a telephone call from the product services

manager at Cooper Tire confirming that the print could have come

from a Cooper Tire brand tire. According to Brundage, that telephone

call was received prior to October 22, 1987. The two earlier letters

defendant cites do not necessarily contradict Brundage’s testimony.

Thus, we find no error in the trial court declining to revisit this matter.

Warrant Affidavit for the Illinois Vehicle Search

Defendant also contends that police used misleading information

to obtain the October 28, 1987, warrant which authorized the search

of defendant’s vehicle after it had been transported to Illinois.

Particularly, defendant asserts that police misled the judge who

reviewed the warrant affidavit into thinking that defendant’s boots

could have left the print found at the crime scene despite the fact that

police knew, on October 28, 1987, having inspected defendant’s boots

in Montana, that they could not have left the print. Defendant also

asserts that police misled the judge into believing that defendant’s

vehicle was similar to the car seen by witness Cathy Simmons on the

night Amy disappeared, despite the fact that, contrary to Simmons’

description, defendant’s vehicle did not have rust spots, and

defendant’s vehicle had a different taillight configuration. Defendant

buttresses this claim by citing to a May 2002 interview with Simmons

in which she reported, after viewing photographs of defendant’s

vehicle, and the artist’s sketch of the taillight assembly of the car she

saw on the night of July 1, 1987, that defendant’s vehicle was not the

car she saw that night in Kell.

-19-

We are not persuaded that information concerning the boots and

vehicle identification constitutes newly discovered evidence.

Assuming, however, that this evidence was unavailable at the time of

the earlier suppression hearing, we nonetheless conclude that such

evidence provides an insufficient basis to revisit defendant’s

suppression motion. Defendant’s argument assumes that he had a

legitimate expectation of privacy in the vehicle to which fourth

amendment protection would apply. But as already noted, the trial

court determined that defendant had abandoned the vehicle.

“ ‘Abandoned property is not subject to Fourth Amendment

protection.’ ” People v. Pitman, 211 Ill. 2d 502, 519 (2004), quoting

United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000).

Furthermore, because defendant did not seek review of this ruling in

his direct appeal from his first trial or in his postconviction petition,

defendant has forfeited review. See Blair, 215 Ill. 2d at 443-44.

Accordingly, his present claim challenging the search of the vehicle in

Illinois is rendered moot.

False Information in Affidavit

Defendant also argues that the search warrant affidavit contained

numerous falsehoods and omitted statements which misled the judge

into finding probable cause to issue both the October 22 and October

28 search warrants. Defendant suggests that if an affidavit with the

correct information had been submitted, the judge would not have

found probable cause.

We have reviewed the “corrected” version of the warrant

affidavit submitted by defendant, and note that some of defendant’s

additions to the affidavit include information the police first obtained

during their trip to Montana. For example, defendant has added

language indicating that the Texas Steer brand boots, which were

among defendant’s possessions in Montana, “were a different style”

and the “imprints did not match the boot imprint found at the crime

scene.” Defendant also added language stating that the “rear light

configuration” on defendant’s vehicle, which was first viewed in

Montana, was “different from the rear lights observed by witness

Simmons” on July 1, 1987. Thus, defendant’s argument that the

corrected version of the affidavit would not have supported a probable

cause finding for the issuance of a search warrant can only apply to

-20-

the October 28 warrant obtained after police returned from Montana

and not the earlier warrant. With this limitation, we consider

defendant’s argument.

The purported corrections that defendant has made to the

affidavit do not necessarily involve evidence that was not available at

the time of the earlier suppression hearing. Only “newly discovered

evidence” will justify a departure from the collateral estoppel doctrine.

Gilliam, 172 Ill. 2d at 506. This aside, we find defendant’s present

claim is moot. The warrant issued on October 28, 1987, authorized a

search only of the vehicle, not defendant’s person. As already noted,

however, defendant’s ability to challenge the search of the vehicle is

dependent on whether he had a legitimate expectation of privacy in the

vehicle at the time of the search. The trial court determined this issue

adversely to defendant and defendant never sought review of that

ruling.

In summation, we find that the issues raised in defendant’s four

motions to suppress that were filed on remand raised issues previously

litigated in defendant’s motion to suppress filed prior to his first trial;

defendant failed to appeal the earlier denial of his motion to suppress;

and defendant has failed to identify special circumstances or newly

discovered evidence that would warrant relitigation of the trial court’s

earlier pretrial ruling. Thus, the trial court on remand did not err in

applying the collateral estoppel doctrine and declining to hold an

evidentiary hearing on defendant’s suppression motions.

II. Motions for Franks Hearing

In addition to the four suppression motions defendant filed on

remand, he also filed a motion seeking an evidentiary hearing,

pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98

S. Ct. 2674 (1978), to challenge the two search warrants. Defendant

alleged that Officer Anthis knowingly and intentionally, or with

reckless disregard for the truth, made several false statements and

omitted information from the warrant affidavit. Defendant also filed

an amended motion for a Franks hearing, alleging that the judge who

issued the search warrants was not neutral and detached, and that no

officer could have reasonably believed that the October 22, 1987,

search warrant was valid in Montana. The trial court, relying on its

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earlier ruling denying defendant’s four suppression motions,

determined that a Franks hearing was not warranted. Defendant

argues that the trial court erred, requiring reversal of his convictions

or, in the alternative, a new trial.

The State responds that the issues raised in the Franks motions

were already litigated at the original suppression motion hearing and

defendant, therefore, is collaterally estopped from relitigating those

issues. Alternatively, the State argues that the allegations in

defendant’s motions did not warrant a Franks hearing. Although we

agree with the State that some overlap exists between the issues raised

in defendant’s earlier suppression motion and the issues raised in his

Franks motions, the issues are not identical. We therefore decline the

State’s invitation to apply estoppel principles with a broad brush to

the issues raised in defendant’s Franks motions and will consider the

issues on the merits.

In Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S.

Ct. 2674 (1978), the United States Supreme Court recognized a

limited right to challenge the veracity of the affidavit supporting a

search warrant. In order to overcome the presumption of validity that

attaches to a warrant affidavit and obtain a Franks hearing, a

defendant must make a “substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for

the truth, was included by the affiant in the warrant affidavit” and that

“the allegedly false statement is necessary to the finding of probable

cause.” Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at

2676. A “substantial preliminary showing” is made where the

defendant offers proof that is “somewhere between mere denials on

the one hand and proof by a preponderance on the other.” People v.

Lucente, 116 Ill. 2d 133, 152 (1987). If, after the alleged untruths in

the warrant affidavit are set aside, the remaining statements in the

affidavit are sufficient to establish probable cause, no hearing is

required. Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct.

at 2684. The principles underlying the Franks decision also apply

where information, necessary to a determination of probable cause, is

intentionally or recklessly omitted from the affidavit. People v.

Stewart, 105 Ill. 2d 22, 43 (1984). In such cases, “[t]he defendant

must show that the information omitted was material to the

determination of probable cause and that it was omitted for the

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purpose of misleading the magistrate.” Stewart, 105 Ill. 2d at 44.

Omitted information is “material” where it is of such a character that

had it been included in the affidavit, it would have defeated probable

cause. People v. Hickey, 178 Ill. 2d 256, 282 (1997).

Affidavits must be viewed in a “commonsense,” not a

“hypertechnical,” manner. People v. Thomas, 62 Ill. 2d 375, 380

(1975), quoting United States v. Ventresca, 380 U.S. 102, 109, 13 L.

Ed. 2d 684, 689, 85 S. Ct. 741, 746 (1965); accord Hickey, 178 Ill.

2d at 285. Our function as the reviewing court is not to substitute our

judgment for that of the issuing magistrate but, rather, to ensure that

the magistrate had a substantial basis for concluding that probable

cause existed. Stewart, 105 Ill. 2d at 49, quoting Massachusetts v.

Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721, 727, 104 S. Ct.

2085, 2088 (1984); accord Hickey, 178 Ill. 2d at 285. Probable cause

for a search warrant exists where “ ‘given all the circumstances set

forth in the affidavit *** there is a fair probability that contraband or

evidence of a crime will be found in a particular place.’ ” Hickey, 178

Ill. 2d at 285, quoting Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed.

2d 527, 548, 103 S. Ct. 2317, 2332 (1983). With these principles in

mind, we consider defendant’s claim that the trial court erred by

denying him a Franks hearing.

Defendant argues, in line with his first motion for a Franks

hearing, that Officer Anthis made several misrepresentations in the

warrant affidavit. The first alleged misrepresentation involves the tire

print found at the crime scene. Defendant asserts that the police

investigation revealed that the tire print at the scene could have been

made by a Falls Persuader or Dean Polaris tire, and that the affidavit

should have listed both possibilities. Based on our review of the

record, we agree that the warrant affidavit should have referenced

both types of tires. Inclusion of this additional information in the

affidavit would not, however, defeat probable cause. Analysis of the

tire print disclosed two possible tires as the source. The tire on

defendant’s vehicle satisfied one of them.

Defendant next asserts that the location of the tire print was over

100 feet away from where the body was found and thus was not

“near” the body as set forth in the affidavit. According to the crime-

scene technician, automobile tire impressions were found within 17

feet of the body. Those impressions were traced backward–over 100

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feet–toward the entrance to the oil lease road where the body was

found. Although the plaster casts made by the crime-scene technician

may have been made from tire impressions closer to the entrance of

the oil lease road, those impressions were part of the same tracks

found within 17 feet of the body. Accordingly, use of the word “near”

in the affidavit was not false or misleading.

Defendant also asserts that, contrary to the affidavit, the tire print

was never determined to be from the “right side” of the vehicle

suspected of transporting Amy Schulz. According to David

Brundage’s trial testimony, the plaster casts indicated an alignment

problem with the vehicle and, in his opinion, the print was made by a

tire on the front of the car. The affidavit should have so stated.

Nonetheless, this misstatement in the affidavit does not affect the trial

court’s finding of probable cause. Both descriptions were equally

limiting. That is, whether the tire was on the “front” or “right side” of

the vehicle, the location of the tire that left the print at the scene was

limited to two of four possible locations on a vehicle. The subject tire

on defendant’s vehicle, which was on the right front, fit either

description.

The next alleged misrepresentation concerns the boot print found

at the crime scene. The affidavit states that the “print was identified as

coming from a Texas Steer brand boot,” and that “among defendant’s

possessions were *** Texas Steer brand boots.” Defendant states that

the affidavit was misleading because the Texas Steer brand boots he

owned could not have made the print at the scene. Defendant is

correct that the Texas Steer boots found among his possessions in

Montana could not have left the print at the scene. When Anthis

completed the warrant affidavit on October 22, 1987, however, this

fact was not known to him. Only after Anthis went to Montana and

compared defendant’s boots with the boot print from the crime scene

did he learn that defendant’s boots could not have left the print.

Defendant also asserts that Officer Anthis should have faxed a

photocopy of the boot print to authorities in Montana for comparison

prior to seeking a search warrant. Defendant’s assertion as to what he

believes would have been the better police practice or investigative

technique in this case does not provide a basis for a Franks hearing.

A defendant is required to make a “substantial preliminary showing

that a false statement knowingly and intentionally, or with reckless

-24-

disregard for the truth, was included by the affiant in the warrant

affidavit.” Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct.

at 2676. Anthis’ statement in the affidavit regarding the boots was not

false or misleading.

Defendant further argues that when Officer Anthis applied for the

second search warrant on October 28, 1987, he should have stricken

the reference to the Texas Steer boots. We agree that once Anthis

inspected defendant’s Texas Steer boots in Montana and determined

that they could not have left the print at the scene, the reference to the

boots should have been stricken from the warrant affidavit.

Nonetheless, we decline to consider what effect this would have had

on the existence of probable cause to issue the October 28 search

warrant. Underlying defendant’s argument is his assumption that he

had a legitimate expectation of privacy in the vehicle at the time of the

October 28, 1987, search. As noted earlier in this opinion, the trial

court, prior to defendant’s first trial, ruled that defendant abandoned

the vehicle and therefore had no legitimate expectation of privacy.

Defendant did not appeal that ruling. Accordingly, defendant’s claim

that the October 28 warrant was not supported by probable cause is

moot.

Defendant also asserts that the October 22, 1987, warrant

affidavit was misleading by improperly implying that a nexus existed

between the tan vehicle seen by witness Cathy Simmons on July 1,

1987, and defendant’s tan vehicle. Defendant notes that the affidavit

omitted Simmons’ description of the taillight configuration of the tan

vehicle she saw on July 1, and that the taillight configuration on

defendant’s vehicle was not a match. According to defendant, police

should have contacted Montana authorities to determine whether the

taillight assembly on defendant’s vehicle matched Simmons’

description. We disagree with defendant that the foregoing assertions

are sufficient to warrant a Franks hearing.

Officer Anthis testified at defendant’s first trial that he did not put

much faith in the description of the taillight configuration provided by

Simmons, who was 16 years old at the time of Amy’s murder. Anthis

explained:

“I had talked to the police artist that had done the diagram

[of the taillight assembly based on Simmons’ description].

He’s done several of these and he is also trained in which to

-25-

observe the person he’s getting the information from to see

if they’re trying to be too helpful and it was his personal

feeling that the person was in such a high pressure situation

they were trying to come up with things. And he even felt

that possibly she was superimposing a tail light assembly from

a Chevrolet Impala that her parents owned in order to help us

because of the type of case it was.”

Officer Anthis also testified at defendant’s second trial that he was not

confident in Simmons’ description of the taillight assembly. Franks

does not impose upon police a duty to include information in a

warrant affidavit they reasonably conclude is unreliable. See Stewart,

105 Ill. 2d at 46-47. The fact that Officer Anthis included Simmons’

description of the color of the vehicle does not make his omission of

the taillight description suspect. According to Anthis, Simmons’

description of the color of the vehicle was supported by other

witnesses who reported seeing a vehicle of varying shades of tan or

brown in the area the night of July 1, 1987.

Defendant also argues that upon their return from Montana,

police intentionally failed to show Simmons photographs of

defendant’s vehicle because they knew Simmons would have told

police that defendant’s car was not the car she saw on July 1, 1987.

Although defendant’s argument is not entirely clear, we assume that

defendant is arguing that police should have disclosed, when applying

for the October 28, 1987, search warrant, that defendant’s vehicle did

not match the description provided by Simmons and that this

disclosure would have defeated probable cause for that warrant. As

we have already concluded, however, any claim that the October 28

warrant was not supported by probable cause is moot, in light of

defendant’s failure to appeal the trial court’s earlier determination that

defendant abandoned the vehicle and thus had no legitimate

expectation of privacy in it.

The next alleged misrepresentation in the warrant affidavit

concerns the following statement: “Hairs were found on the victim’s

body and the laboratory determined them to belong to a white male.”

Defendant contends that, according to the State’s expert witnesses,

sex cannot be determined from a hair, and the hairs found on the

victim could only be classified as Caucasian, not Caucasian male.

Defendant notes that the victim was also Caucasian and argues that

-26-

Officer Anthis deliberately misrepresented the evidence in his affidavit

to exclude the possibility that the hairs could have come from a

female, possibly from the victim herself.

We agree that no evidence was offered by the State that the hairs

found on the victim were determined to have originated from a male

and that Anthis’ statement in the affidavit suggesting otherwise was

incorrect. We disagree, however, with defendant’s assertion that

Anthis “deliberately” misrepresented the evidence. “[A] mere assertion

does not give rise to an inference of improper conduct ***.” Stewart,

105 Ill. 2d at 47. Moreover, the record discloses that, contrary to

defendant’s argument, the two pubic hairs found on the victim’s

buttocks could not have originated from the victim because the victim

was prepubertal. In addition, the autopsy disclosed that the victim had

been anally assaulted. Based on this evidence, coupled with the

laboratory finding that the pubic hair came from a Caucasian

individual, police could have reasonably concluded that the assailant

was a “white male.”

The final misrepresentation claimed by defendant relates to

defendant’s residence. The affidavit states that defendant’s mother

confirmed that defendant was living in Kell, Illinois, at the time of the

murder. Defendant, in fact, lived in Dix, Illinois, in neighboring

Jefferson County. Defendant argues that this fabrication was to

mislead the judge reviewing the warrant affidavit by implying that

Amy might know and accept a ride from defendant since both lived in

the same small village. We agree that defendant’s residence was

misstated in the affidavit. Assuming, arguendo, that this misstatement

was deliberate, the finding of probable cause would not have been

adversely affected had the affidavit correctly reported defendant’s

residence in Dix. The proximity of the two communities would have

placed defendant in the general vicinity of the murder on July 1, 1987.

We conclude, as to defendant’s first Franks motion, that

defendant failed to make the substantial preliminary showing required

for a Franks hearing. That is, had the warrant affidavit correctly

reported that the tire print found at the crime could have come from

a Falls Persuader or Dean Polaris tire; the tire print was made by a tire

on the front of the vehicle; the hairs found on the victim were from a

Caucasian individual; and defendant lived in Dix, Illinois, the trial

court’s finding of probable cause would not be altered. In reaching

-27-

this conclusion we are aware that no single piece of evidence to which

the affidavit referred was conclusive. Nonetheless, the affidavit,

viewed in its entirety, supports the determination of probable cause.

See Stewart, 105 Ill. 2d at 49.

Turning to defendant’s amended motion for a Franks hearing,

defendant asserted two additional grounds: the judge who issued the

warrant was not detached and neutral, and the officers’ reliance on the

validity of the October 22, 1987, search warrant was objectively

unreasonable. We find no error in the trial court’s denial of a hearing

on these matters.

As explained above, a Franks hearing is intended to allow a

defendant a limited opportunity to challenge the truthfulness of the

affidavit used by police to obtain a search warrant. Hickey, 178 Ill. 2d

at 281. The new grounds defendant asserted in support of a Franks

hearing do not challenge the truthfulness of the warrant affidavit. In

addition, although the new grounds defendant asserts are cloaked in

terms of the judge’s neutrality and the officer’s objective good faith,

defendant’s argument, at bottom, is that the October 22, 1987,

warrant was invalid outside of Illinois. This issue, however, was

already litigated at the suppression motion hearing prior to

defendant’s first trial. The trial court ruled that the warrant was valid

in Montana. In addition, the trial court ruled that the police officers

acted in good faith in their application and execution of the warrant.

Defendant did not challenge these rulings in his direct appeal

following his first trial or in his postconviction petition. Accordingly,

the trial court on remand did not err in applying estoppel principles

and declining to relitigate these issues.

III. Inevitable Discovery/Abandonment

Before considering defendant’s next error on appeal, we respond

to certain statements by defense counsel regarding the two search

warrants. Counsel forcefully argues that the Jefferson County judge

had no authority to issue a warrant for a search in Montana and that

he was acting merely as a “rubber stamp” for the Jefferson County

police, or an “adjunct law enforcement officer.” See United States v.

Leon, 468 U.S. 897, 914, 82 L. Ed. 2d 677, 693, 104 S. Ct. 3405,

3416 (1984). Counsel makes an equally forceful argument concerning

-28-

the Illinois warrant, contending that the judge “signed the ‘second’

search warrant for the Sutherland car in an effort to correct or erase

the invalidity of the first search warrant signed by him just six days

earlier. This was a transparent attempt to hide the constitutional

violations in serving an Illinois warrant in Montana.” Counsel asserts

that “[o]ver 200 years of legal jurisprudence will be wiped out with

the stroke of a pen if the [judge’s] two search warrants are deemed to

be valid,” and that defendant will be “denied his most basic of

constitutional and human rights.”

By rejecting defendant’s arguments regarding his suppression

motions and his motions for a Franks hearing, we do not hold that the

two search warrants were “valid.” Rejecting defendant’s arguments

also does not signal a departure from “200 years of legal

jurisprudence.” We acknowledge our concern that a circuit court

judge in this state would issue a warrant purporting to authorize local

police officers to execute a search in Montana. The authority of an

Illinois judge clearly does not extend to Montana. See 48A C.J.S.

Judges §71, at 658 (1981) (“a judge deriving his authority from the

sovereign power of the state has no power to exercise his judicial

functions outside the territorial limits of the state”); see also 68 Am

Jur 2d Searches & Seizures §289, at 842 (2000) (“[o]fficers ordinarily

may not execute a search warrant at a place which lies outside of their

jurisdiction”); People v. Lahr, 147 Ill. 2d 379 (1992) (discussing

territorial limitations of police officers). The question of whether to

exclude evidence, however, is a separate question from whether the

search is legal. People v. Turnage, 162 Ill. 2d 299, 307 (1994), citing

Leon, 468 U.S. at 906, 82 L. Ed. 2d at 687-88, 104 S. Ct. at 3412.

Accordingly, whether the Jefferson County judge and Jefferson

County police exceeded the territorial limits of their offices, or

whether the warrant affidavits were defective, is not dispositive of

whether the evidence should have been excluded.

Under the exclusionary rule, on which defendant relies, “courts

are precluded from admitting evidence that is gathered by government

officers in violation of the fourth amendment.” People v. Lampitok,

207 Ill. 2d 231, 241 (2003), citing Mapp v. Ohio, 367 U.S. 643, 649,

6 L. Ed. 2d 1081, 1086, 81 S. Ct. 1684, 1688 (1961). The

exclusionary rule has no “constitutional footing” (People v. Willis,

215 Ill. 2d 517, 531 (2005)), and is not designed to redress the search

-29-

victim’s invasion of privacy (Lampitok, 207 Ill. 2d at 241). Nor is it

designed “ ‘to punish the errors of judges or magistrates.’ ” Turnage,

162 Ill. 2d at 307, quoting Leon, 468 U.S. at 916, 82 L. Ed. 2d at

694, 104 S. Ct. at 3417. Rather, it is a judicially created remedy that

prospectively protects fourth amendment rights by deterring future

police misconduct. Willis, 215 Ill. 2d at 531, citing United States v.

Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613,

620 (1974).

The exclusionary rule is not without its exceptions. Relevant here

is the inevitable-discovery exception. This exception permits evidence,

that would otherwise be inadmissable at trial, to be admitted where the

State can show that such evidence “would inevitably have been

discovered without reference to the police error or misconduct.” Nix

v. Williams, 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct.

2501, 2511 (1984); accord People v. Mitchell, 189 Ill. 2d 312, 342

(2000). As the State notes, in the judge’s oral ruling upholding the

validity of the two search warrants, he alluded to the applicability of

the inevitable-discovery exception. The judge indicated that even if

defendant did not provide the hair samples voluntarily, “it wouldn’t

matter because the State would have gotten the samples later on

anyway” because the search of the vehicle was valid. We understand

the judge’s remarks to mean that even if the seizure of defendant’s

hair was tainted, its lawful seizure was inevitable. We agree with the

judge’s assessment.

The record indicates that the vehicle search yielded hair and fiber

evidence linking defendant to the crime. Specifically, 19 fibers were

recovered from the front passenger seat and carpeting in defendant’s

vehicle which were consistent with the clothing Amy Schulz wore on

July 1, 1987. In addition, numerous animal hairs found in defendant’s

vehicle were consistent with hairs found on Amy’s clothing, all of

which were consistent with hair from defendant’s dog. Further, 28

gold fibers and one gold tuft found on Amy’s clothing were consistent

with the carpeting in defendant’s vehicle, and one gold fiber found on

Amy’s clothing was consistent with the seat fabric in defendant’s

vehicle. Little doubt can exist that such evidence would have provided

the probable cause necessary to support the issuance of a warrant for

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a search of defendant’s person and possessions.3 A search of

defendant’s person, in turn, would have yielded the hair samples from

defendant that were central to the State’s case. If, as the trial court

determined, defendant had no legitimate expectation of privacy in the

vehicle, and thus could claim no fourth amendment protection, the

seizure of defendant’s hair was inevitable. Although defendant

forfeited review of this issue by failing to raise it in his first appeal or

in his postconviction petition, we choose to address the matter now

and lay to rest defense counsel’s claim that defendant was “denied his

most basic of constitutional and human rights.” See People v.

De La Paz, 204 Ill. 2d 426, 432 (2003) (“[t]his court has long

recognized that we may, in appropriate cases, reach issues

notwithstanding their waiver”); Hoskins, 101 Ill. 2d at 219 (“party

who waived the question is bound by his waiver, but the court, which

has the responsibility of reaching a just decision, understandably is

not”).

In defendant’s motions to suppress evidence seized from the

search of his vehicle, defendant invoked the protections of both the

fourth amendment to the United States Constitution (U.S. Const.,

amend. IV), as well as the comparable provision of the Illinois

Constitution (see Ill. Const. 1970, art. I, §6). Defendant does not

argue that our state constitution provides broader protection than the

federal constitution in this situation. We therefore confine our analysis

to fourth amendment jurisprudence. See People v. Caballes, No.

91547 (May 18, 2006); Lampitok, 207 Ill. 2d at 240-41.

Preliminarily, we note that although the State framed the issue as

one of “standing” to challenge the vehicle search, this court, in line

with United States Supreme Court precedent, has dispensed with the

rubric of “standing” when analyzing fourth amendment claims.

3

We need not decide what course of action Jefferson County police should

have taken to effect a proper search in Montana. We need only note that, in

determining whether probable cause for a search warrant exists, Montana

courts, like this court, follow the totality-of-the-circumstances analysis set

forth in Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S.

Ct. 2317, 2332 (1983). See State v. Meyer, 323 Mont. 173, 179, 99 P.3d

185, 189 (2004); State v. St. Marks, 312 Mont. 468, 475, 59 P.3d 1113,

1118 (2002); Hickey, 178 Ill. 2d at 285.

-31-

Pitman, 211 Ill. 2d at 521, citing Minnesota v. Carter, 525 U.S. 83,

87-88, 142 L. Ed. 2d 373, 379, 119 S. Ct. 469, 472 (1998); Rakas v.

Illinois, 439 U.S. 128, 138-40, 58 L. Ed. 2d 387, 398-99, 99 S. Ct.

421, 427-29 (1978). Instead, the relevant inquiry is whether the

person claiming the protections of the fourth amendment had a

legitimate expectation of privacy in the place searched. Pitman, 211

Ill. 2d at 514; People v. Kidd, 178 Ill. 2d 92, 135 (1997), citing

Rakas, 439 U.S. at 143, 58 L. Ed. 2d at 401, 99 S. Ct. at 430. Factors

relevant in determining whether a legitimate expectation of privacy

exists include the individual’s ownership or possessory interest in the

property; prior use of the property; ability to control or exclude

others’ use of the property; and subjective expectation of privacy.

People v. Johnson, 114 Ill. 2d 170, 191-92 (1986). When an

individual abandons property, the right of privacy in the property is

terminated. Hoskins, 101 Ill. 2d at 220; accord Pitman, 211 Ill. 2d at

519-20. Abandoned property may be seized and searched without

probable cause. Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d

668, 688, 80 S. Ct. 683, 698 (1960); Hoskins, 101 Ill. 2d at 220;

People v. Jones, 38 Ill. 2d 427, 432 (1967). Whether defendant had

a legitimate expectation of privacy in the vehicle at the time Jefferson

County police seized and searched it, or whether he had already

abandoned the vehicle, as the trial court ruled, is based on the totality

of the circumstances present in this case. See Johnson, 114 Ill. 2d at

192. We will pay particular attention, however, “ ‘to explicit denials

of ownership and to any physical relinquishment of the property.’ ”

Pitman, 211 Ill. 2d at 520, quoting Basinski, 226 F.3d at 837.

Defendant testified at the suppression hearing that he left Illinois

around the first of October 1987 and drove to Montana. On October

10, 1987, after spending one night in Glacier National Park, his car

ran out of gas. Defendant locked the vehicle and left the keys inside

with a note that clearly stated, “Will not be back for car.” Defendant

signed the title over to his parents and left the telephone numbers of

his parents and a brother. The note stated: “let them deside [sic] what

to do with the car and what’s left inside.” Defendant testified that he

had no further use for the vehicle; it belonged to his parents. During

the 12-day period between the date defendant left the vehicle and his

arrest by federal authorities, defendant did not return to the car. Based

on this testimony, we agree with the trial court that defendant

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abandoned his vehicle. See Jones, 38 Ill. 2d at 432 (holding that car

was abandoned where driver jumped from vehicle and ran to avoid

capture by police following store burglary); People v. Arnett, 217 Ill.

App. 3d 626, 632 (1991) (holding that the defendant, “by leaving his

car on a secluded gravel road, unlicensed, unregistered, and along the

railroad tracks, had no expectation of privacy”).

Defendant makes several arguments as to why the car should not

be considered abandoned. Defendant first argues that the

circumstances here do not come within the Illinois statutory definition

of “abandoned vehicle.” The statutory provision on which defendant

relies, however, has been repealed. See Pub. Act 90–89, eff. January

1, 1998 (repealing 625 ILCS 5/4–100 (West 1996)). Defendant next

argues that, pursuant to federal regulations governing the national

park service, the park rangers failed to follow the procedures in place

for the disposition of impounded property. See 36 C.F.R. §2.22

(1987). Whether the park rangers followed the appropriate procedures

is irrelevant to whether defendant had a legitimate expectation of

privacy in the vehicle.

Defendant further argues that he attempted to make a “gift” of

the vehicle to his parents. According to defendant, he had the requisite

donative intent, but the gift was not completed because acceptance

and delivery did not occur. Defendant contends that because the gift

was defeated, the ownership and privacy rights in the vehicle remained

with him. In the alternative, defendant argues that even if the gift was

accepted, “under Montana law the gift could be invalidated if there

was undue influence, such as the circumstances of being broke, out of

gas and unable to move his car.” We assume defendant means to

argue that if the gift was invalidated, the ownership and privacy rights

remained with him.

Whether a legitimate expectation of privacy exists is not

controlled by “arcane distinctions developed in property and tort law

between guests, licensees, invitees, and the like.” Rakas, 439 U.S. at

143, 58 L. Ed. 2d at 400-01, 99 S. Ct. at 430, citing Jones v. United

States, 362 U.S. 257, 266, 4 L. Ed. 2d 697, 705, 80 S. Ct.725, 733-34

(1960). Similarly, whether defendant had a legitimate expectation of

privacy in his vehicle is not controlled by fine distinctions developed

under Montana gift law.

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Finally, defendant argues that “when a person abandons property,

forsaking all reasonable expectations of privacy, he abandons it to the

whole world. He does not ‘abandon’ it to his parents.” This argument

is without merit. Abandonment, for fourth amendment purposes, may

occur where control of a vehicle is transferred permanently to another

person. See 1 W. LaFave, Search & Seizure §2.5(a), at 649-50 (4th

ed. 2004).

We conclude that where, as here, an individual has left his vehicle

unattended in a public place, transferred title to another person,

expressed in writing his intention not to return for the vehicle, and

later confirms that he had no further use for the vehicle, that vehicle

has been abandoned. Fourth amendment protections do not extend to

abandoned property. Abel, 362 U.S. at 241, 4 L. Ed. 2d at 687-88, 80

S. Ct. at 698; accord Pittman, 211 Ill. 2d at 519; Hoskins, 101 Ill. 2d

at 220. Accordingly, an abandoned vehicle “may be seized by the

police without a warrant and examined with no limitations on the

scope, intensity, or objectives of the examination. It and its contents

may be retained for use as evidence otherwise admissible against the

one who abandoned it.” Duncan v. Maryland, 281 Md. 247, 263, 378

A.2d 1108, 1118 (1977). The hair and fiber evidence recovered from

the vehicle were admissible at trial against defendant. Moreover, the

hair and fiber evidence recovered from the vehicle would have

provided the probable cause necessary to secure a warrant authorizing

a search of defendant’s person in Montana, and the hair samples

recovered from defendant would have been discovered inevitably

through lawful means. Therefore, even if we accept defendant’s

argument that the search of his person in Montana ran afoul of his

fourth amendment rights, the evidence seized was admissible at trial

pursuant to the inevitable-discovery exception to the exclusionary

rule.

IV. Missing Vehicle

Defendant next argues that the State violated his due process

rights, as well as this court’s discovery rules, when it failed to produce

the vehicle seized in Montana pursuant to defendant’s discovery

requests.

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On March 14, 2001, prior to defendant’s second trial, defendant

filed a general discovery request seeking, inter alia, any tangible

objects which were obtained from or belonged to defendant.

Defendant followed that discovery request with a motion on May 21,

2001, expressly seeking production of the vehicle. At the hearing on

this motion, the State indicated that although the evidence taken from

the vehicle had been preserved and made available to defendant, the

vehicle itself could not be located. Based on its investigation, the State

surmised that the vehicle was transferred to the Jefferson County

highway department in the early 1990s and that someone later

disposed of the vehicle, probably after defendant’s direct appeal,

which was decided in 1992. The trial court directed the State to make

available to the defense any information that may come to light

concerning the location or disposal of the vehicle. The vehicle was

never produced, and the State never learned the exact date and

method of the car’s disposal.

On May 17, 2002, defendant filed a motion to dismiss the

indictments or, in the alternative, to “bar testimony about items taken

from the car, tests done on those items, any results of tests or

comparisons, along with any testimony about the car itself.”

Defendant argued that the State’s failure to produce the car effected

a violation of his federal due process rights under Brady v. Maryland,

373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), as well as a

violation of Supreme Court Rule 412, governing disclosures to the

accused (188 Ill. 2d R. 412). The State responded, in relevant part,

that suppression of the evidence recovered from the vehicle was not

warranted because what remained of the vehicle after processing by

the State was simply a shell, and that the vehicle was not “outcome

determinative.” See People v. Newberry, 166 Ill. 2d 310 (1995). The

State also responded that the evidentiary value of the remaining

vehicle was merely “potentially useful” and, in the absence of bad

faith, suppression was not warranted. See Arizona v. Youngblood, 488

U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). The trial court

agreed with the State and denied defendant’s motion.

Defendant argues that the trial court erred in failing to dismiss the

indictments or suppress the evidence seized from the vehicle and

requests this court reverse his convictions outright or, alternatively,

grant him a new trial. We review the trial court’s ruling for an abuse

-35-

of discretion. See People v. Hood, 213 Ill. 2d 244, 256 (2004);

Newberry, 166 Ill. 2d at 318; People v. Walker, 257 Ill. App. 3d 332,

336 (1993); People v. Williams, 137 Ill. App. 3d 736, 740 (1985).

Due Process

Defendant likens the loss or destruction of the vehicle in this case

to the improper suppression of material evidence by the State under

Brady. In Brady, the United States Supreme Court held “that the

suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218,

83 S. Ct. at 1196-97; see also United States v. Agurs, 427 U.S. 97,

110-11, 49 L. Ed. 2d 342, 353-54, 96 S. Ct. 2392, 2400-01 (1976)

(expanding Brady by recognizing a constitutional duty on the part of

the State to disclose exculpatory evidence to the defendant,

irrespective of whether the defendant makes a specific request).

This court has recognized that the Brady analysis is “ill-suited”

in cases where, as here, the evidence has been lost or destroyed. In re

C.J., 166 Ill. 2d 264, 272 (1995), citing People v. Hobley, 159 Ill. 2d

272, 307 (1994). This court instead has applied the analysis in Arizona

v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333

(1988). See C.J., 166 Ill. 2d at 273; Hobley, 159 Ill. 2d at 307; People

v. Ward, 154 Ill. 2d 272, 298 (1992).

In Youngblood, the defendant was convicted of child molestation,

sexual assault and kidnaping. The Arizona Court of Appeals reversed

his conviction because the State had failed to refrigerate and thus

preserve semen samples from the victim’s body and clothing for later

testing. Youngblood, 488 U.S. at 52, 102 L. Ed. 2d at 285, 109 S. Ct.

at 334, citing State v. Youngblood, 153 Ariz. 50, 734 P.2d 592

(1986). The United States Supreme Court granted the State’s

certiorari petition “to consider the extent to which the Due Process

Clause of the Fourteenth Amendment requires the State to preserve

evidentiary material that might be useful to a criminal defendant.”

Youngblood, 488 U.S. at 52, 102 L. Ed. 2d at 285, 109 S. Ct. at 334.

The Court noted that the due process clause, as interpreted in Brady,

makes the good or bad faith of the State irrelevant where the State

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fails to disclose material exculpatory evidence, but that the due

process clause requires a “different result” where the State fails to

preserve evidence “of which no more can be said than that it could

have been subjected to tests, the results of which might have

exonerated the defendant.” Youngblood, 488 U.S. at 57, 102 L. Ed.

2d at 289, 109 S. Ct. at 337. The reason for the different treatment

rested in part on the Court’s observation that “ ‘[w]henever

potentially exculpatory evidence is permanently lost, courts face the

treacherous task of divining the import of materials whose contents

are unknown and, very often, disputed.’ ” Youngblood, 488 U.S. at

57-58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337, quoting California v.

Trombetta, 467 U.S. 479, 486, 81 L. Ed. 2d 413, 421, 104 S. Ct.

2528, 2533 (1984). The Court also noted its unwillingness to read the

due process clause as imposing on police “an undifferentiated and

absolute duty to retain and to preserve all material that might be of

conceivable evidentiary significance in a particular prosecution.”

Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

The Court held “that unless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Youngblood, 488

U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The presence or

absence of bad faith is dependent on the State’s knowledge of the

exculpatory value of the evidence at the time the evidence is lost or

destroyed. Youngblood, 488 U.S. at 56 n.*, 102 L. Ed. 2d at 288 n.*,

109 S. Ct. at 336 n.*, citing Trombetta, 467 U.S. at 489, 81 L. Ed. 2d

at 422, 104 S. Ct. at 2534. Under the facts of Youngblood, the Court

found no due process violation. The Court characterized the failure of

the police to refrigerate the clothing and to perform tests on the semen

samples as negligent, at worst, and in the absence of bad faith, no

violation of the due process clause occurred. Youngblood, 488 U.S.

at 58, 102 L. Ed. 2d at 289-90, 109 S. Ct. at 337-38.

In Hobley, this court commented on the underlying policy

considerations present in the Youngblood case:

“In order to promote the preservation of exculpatory

evidence, there must be the possibility of a sanction where

evidence is lost or destroyed. On the other hand, a defendant

should not be rewarded for the inadvertent loss of a piece of

evidence where other evidence sufficient to support his

-37-

conviction remains. The proper balance between these

competing interests can be accomplished through careful

consideration of (1) the degree of negligence or bad faith by

the State in losing the evidence, and (2) the importance of the

lost evidence relative to the evidence presented against the

defendant at trial.” Hobley, 159 Ill. 2d at 307.

Applying the principles set forth in Youngblood and Hobley, we

conclude that defendant’s claim is without merit. First, defendant

failed to offer anything, other than mere speculation, demonstrating

bad faith by the State. The record reveals that the vehicle was not

introduced into evidence at the first trial in 1989, and that the State

lost track of the vehicle during the ensuing years. The evidence

recovered from the vehicle, including hair, fibers, carpet standards,

fabric standards, the right front tire and wheel, and the entire front

seat of the vehicle, were preserved. When faced with defendant’s

discovery request in 2001, Jefferson County police conducted a search

for the car. The Jefferson County State’s Attorney also pursued the

matter with the Illinois State Police. Defendant suggests that the State

showed “deliberate indifference” to finding the vehicle by refusing to

report the vehicle as stolen in the National Criminal Information

Center (NCIC) computer. The State explained during the hearing on

defendant’s motion that the NCIC guidelines do not permit a vehicle

to be entered as stolen unless there is probable cause to believe that

it is, in fact, stolen. The State’s investigation suggested not that the

car was stolen, but that sometime in the early 1990s an unidentified

individual in the Jefferson County highway department, where the car

had been transferred, took it upon himself to get rid of the vehicle.

Based on the length of time involved, the State’s preservation of the

evidence recovered from the vehicle, and the State’s efforts to

determine the vehicle’s whereabouts, we agree with the trial court that

the State did not act in bad faith.

Second, we disagree with defendant’s assessment of the

evidentiary value of the vehicle relative to the other evidence

introduced at trial. Defendant argues: “There is no single piece of

evidence that is more pivotal, probative and material than the

Sutherland vehicle. The State presented witness after witness as to the

scrutiny of the car and the tests performed on items allegedly taken

from the vehicle, and the conclusions to be drawn; but the Defense

-38-

was powerless to inspect the same crucial piece of evidence.”

Defendant’s argument raises the same concerns we addressed in

People v. Newberry, 166 Ill. 2d 310 (1995).

At issue in Newberry was whether the defendant, who was

charged with unlawful possession of a controlled substance (cocaine),

was entitled to have the charges dismissed where the State destroyed

the substance in question after a specific discovery request. A field test

of the substance conducted by police was negative for cocaine, but a

laboratory test conducted one month later reached a positive result.

The trial court granted defendant’s motion to dismiss the indictments;

the appellate court affirmed. People v. Newberry, 265 Ill. App. 3d 688

(1994). On appeal to this court, the State argued that under

Youngblood the technician’s destruction of the evidence did not rise

to the level of a due process violation because the technician simply

made a mistake and did not act in bad faith. We found Youngblood

distinguishable on its facts and upheld the dismissal of the indictments:

“In Youngblood, the disputed material was not essential for

establishing the defendant’s guilt or innocence. Its value was

speculative, and it played no role in the prosecution’s case.

*** The situation in this case is markedly different. Here, the

evidence in question is more than just ‘potentially useful.’ It

is essential to and determinative of the outcome of the case.

Newberry cannot be convicted of the drug possession

charges absent proof of the content of the disputed

substance, nor does he have any realistic hope of exonerating

himself absent the opportunity to have it examined by his own

experts.” Newberry, 166 Ill. 2d at 315.

Putting aside, momentarily, whether the outcome-determinative

analysis we adopted in Newberry supports defendant’s position, we

observe that the Newberry opinion has been called into question by the

Supreme Court’s decision in Illinois v. Fisher, 540 U.S. 544, 157 L.

Ed. 2d 1060, 124 S. Ct. 1200 (2004) (per curiam). In Fisher, the

Court reversed a decision of the Illinois Appellate Court which had

applied the Newberry analysis to reverse a drug-possession conviction

where the disputed substance was destroyed by police. The Court

disagreed with the outcome-determinative analysis set forth in

Newberry, indicating that the applicability of the bad-faith requirement

in Youngblood does not depend on “the centrality of the contested

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evidence to the prosecution’s case or the defendant’s defense.”

Fisher, 540 U.S. at 549, 157 L. Ed. 2d at 1067, 124 S. Ct. at 1203.

The Court reiterated its holding in Youngblood that the bad-faith

requirement applies where the evidence destroyed is only “potentially

useful” evidence and not “material exculpatory” evidence. Fisher, 540

U.S. at 549, 157 L. Ed. 2d at 1067, 124 S. Ct. at 1203.

We find it unnecessary to decide whether the outcome-

determinative analysis adopted in Newberry still has vitality in light of

the Fisher opinion because, even if it does, Newberry is inapplicable

under the facts present here.

In Newberry, the evidence destroyed by the State–the suspected

cocaine–formed the very basis of the drug-possession charge against

the defendant. Here, the evidence lost or destroyed by the State–the

vehicle–did not form the basis of the kidnaping, sexual assault and

murder charges against defendant. Nor was the vehicle, itself, central

or critical to the State’s case. The critical evidence was the hair, fibers,

carpet standards, and fabric standards removed from the vehicle. This

evidence, along with the suspect tire, wheel, and front seat of the car,

were available to defendant for examination by his own experts. In

addition, unlike the defendant in Newberry, who was deprived of any

opportunity to examine the destroyed evidence, defendant had access

to the vehicle during his first trial and for a time thereafter. Finally,

unlike the Newberry case, where the disputed substance was destroyed

following a specific discovery request, here the trial court found that

the vehicle was lost or destroyed prior to defendant’s discovery

request. Although we agree with defendant that the State never

determined the exact date and method of the vehicle’s disposal, the

trial court could reasonably conclude, based on the prosecutor’s

representations, that the vehicle was likely disposed of after it was

transferred to the Jefferson County highway department in the early

1990s. Under Newberry or Youngblood, defendant’s due process

claim fails.

Before considering defendant’s alternative argument, we note

that defendant pressed only his federal due process rights in the trial

court in connection with the missing auto, whereas before this court

he asserts a violation of both his federal and state due process rights.

Defendant’s state law claim has been forfeited. See Blair, 215 Ill. 2d

at 443-44. Even if we chose to address it, the analysis and result

-40-

would be no different than that set forth above. See People v.

Pecoraro, 175 Ill. 2d 294, 318 (1997) (where this court, in a failure-

to-preserve-evidence case, adhered to the “well-reasoned principles

set forth in Trombetta and Youngblood for purposes of our state due

process clause”).

Discovery Rules

Alternatively, defendant argues that, irrespective of any due

process violation, dismissal of the indictments or suppression of the

evidence recovered from the vehicle was warranted under this court’s

discovery rules. See 188 Ill. 2d R. 412(a)(v) (governing disclosures to

the accused); 134 Ill. 2d R. 415(g)(i) (governing imposition of

sanctions for discovery violations). Defendant relies on the Newberry

opinion. In Newberry, as discussed above, we affirmed the dismissal

of the defendant’s indictments on due process grounds. We also

noted, however, that dismissal of the indictment was sustainable as a

proper discovery sanction under Rule 415(g)(i):

“Rule 415(g)(i) confers broad power on the trial court to

impose sanctions where, as here, the State fails to comply

with its discovery obligations. Where evidence has been

destroyed following a defense request under Rule 412 (134

Ill. 2d R. 412), no showing of bad faith by the State is

required in order for the trial court to act.” Newberry, 166 Ill.

2d at 317-18.

Based on the “pivotal nature” of the evidence destroyed in Newberry,

we found no abuse of discretion in the trial court’s dismissal of the

indictments. Newberry, 166 Ill. 2d at 318.

Defendant’s reliance on Newberry is misplaced. First, as noted

above, the trial court in the present case found that the vehicle was

lost or destroyed before defendant’s discovery request, not following

its receipt, as was the case in Newberry. Second, unlike the suspected

cocaine which was “pivotal” to the State’s drug-possession charge in

Newberry, the vehicle here was not “pivotal” to the kidnaping, sexual

assault, and murder charges against defendant. Accordingly, the trial

court did not abuse its discretion in denying defendant’s motion to

dismiss the indictments as a sanction under Rule 415(g).

-41-

V. Sufficiency of the Evidence

Defendant next argues that the State failed to prove him guilty of

aggravated kidnaping, aggravated criminal sexual assault, and first

degree murder beyond a reasonable doubt.

When considering a challenge to a criminal conviction based upon

the sufficiency of the evidence, our function is not to retry the

defendant. People v. Milka, 211 Ill. 2d 150, 178 (2004). Rather, we

must determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”

(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.

Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106

Ill. 2d 237, 261 (1985). In reviewing the evidence we will not

substitute our judgment for that of the trier of fact. People v. Collins,

214 Ill. 2d 206, 217 (2005). The weight to be given the witnesses’

testimony, the credibility of the witnesses, resolution of

inconsistencies and conflicts in the evidence, and reasonable inferences

to be drawn from the testimony are the responsibility of the trier of

fact. Milka, 211 Ill. 2d at 178; People v. Evans, 209 Ill. 2d 194, 211

(2004). A conviction may be sustained on circumstantial evidence,

provided the elements of the crime have been proven beyond a

reasonable doubt. Milka, 211 Ill. 2d at 178; People v. Buss, 187 Ill. 2d

144, 211 (1999). “The trier of fact need not, however, be satisfied

beyond a reasonable doubt as to each link in the chain of

circumstances. It is sufficient if all of the evidence taken together

satisfies the trier of fact beyond a reasonable doubt of the defendant’s

guilt.” People v. Hall, 194 Ill. 2d 305, 330 (2000). With these

principles in mind, we consider the evidentiary record in detail.

The Victim

In 1987, Amy Schulz, then 10 years old, lived with her father

Dennis, brothers Adam and Ryan (then aged 14 and 12, respectively),

and stepmother, Esther, in a mobile home located a half mile south of

Kell, Illinois. Kell is situated in Marion County just north of County

Line Road, which separates Marion County to the north and Jefferson

County to the south. On July 1, 1987, the date of Amy’s

disappearance and murder, Amy spent the day with her father and

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Ryan at her father’s vacuum cleaner business in Salem. According to

Dennis Schulz, they returned home at 6 p.m. or 6:30 p.m. Amy

changed her clothes, putting on a pair of red, homemade shorts, a red

shirt, white socks, and white tennis shoes. Amy sauteed some

mushrooms for herself and went to visit Gwen and William Willis, her

“step-grandparents.”4 The Willises lived 100 yards north of the

Schulzes across a field. Gwen Willis testified that she and Amy ate

blackberries in the backyard, after which Amy returned home.

Later that evening, Dennis Schulz gave Amy a flashlight and sent

her into town to tell Ryan that Biscuit, one of the family dogs that was

missing earlier, had been found. Because Jefferson Street is the only

road that leads from the Schulz home into Kell, Dennis expected that

Ryan and Amy would meet up at some point. Amy stopped at the

Willis home around 8:30 p.m., stayed a short time, and then left,

walking north on Jefferson Street toward Kell. Ryan never saw Amy,

and Amy never returned home. Amy was last seen by neighbors Cathy

Simmons and Paul Sherwin, who saw Amy walking south on Jefferson

Street at about 9:10 p.m. and 9:15 p.m., respectively. The following

morning an oil-field worker discovered Amy’s body on a dirt oil lease

road in rural Jefferson County.

Vehicle Sightings

Cathy Simmons, who was 16 years old at the time of Amy’s

murder, lived in Kell and knew the Schulz family. She testified that on

the evening of July 1, 1987, she and her sister Cheri took a walk and

saw Amy. Amy asked if they had seen her brother; Simmons told her

no. Simmons and her sister finished their walk, arriving back home at

8:45 p.m. or 8:50 p.m. Simmons stayed on the front porch for a half

hour. At about 9:10 p.m., Simmons again saw Amy, who was headed

south on Jefferson Street. About 5 or 10 minutes later, Simmons saw

a tan, older model vehicle, which she had seen twice earlier that

evening, also headed south on Jefferson Street. Simmons saw the

taillight configuration on the tan-colored car for about 30 seconds,

and worked with a police artist to produce a sketch. The taillights in

4

Gwen Willis was Esther Schulz’s mother; William Willis was Gwen’s

husband.

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the sketch were similar to the taillights on her parents’ vehicle, but

were not a match with the taillights on defendant’s vehicle. Simmons

was not sure whether the drawing accurately reflected what she saw

that night.

Simmons offered conflicting testimony as to whether defendant’s

vehicle was the same color as the vehicle she saw on July 1, 1987. She

also admitted telling the defense investigator in a May 2002 interview,

after being shown photographs of defendant’s vehicle, that

defendant’s car was not the car she saw on July 1, 1987. She noted,

at that time, that the taillights were different and that defendant’s

vehicle had no rust on the right passenger wheel well, unlike the

vehicle she saw in 1987. She also told investigators on July 2, 1987,

that the driver of the vehicle was on the thin side, a description that

would not fit defendant. Defendant’s brother, Kenneth, testified that

in August 1987, defendant, who was 6 feet 3 inches tall, weighed

about 250 or 260 pounds.

Simmons’ sister, Cheri Norton, also testified regarding the walk

they took the night Amy disappeared. Norton recalled that they saw

a vehicle in town that evening that they did not recognize, but she

could not provide a description of the vehicle.

Darlene Prior, a Kell resident, testified that on the night of July

1, 1987, she left her sister’s home, which was located on Jefferson

Street, at about 9 p.m. On her way home, Prior noticed a cream-

colored car which resembled a car she used to own–an older Dodge

Polaris–going faster than she thought it should. The taillights looked

similar to the taillights in the police sketch. Prior did not recall telling

officers on July 10, 1987, that the taillights on the car she saw did not

look like those in the drawing.

The Crime Scene

Richard Caudell, a crime-scene technician with the Illinois State

Police, processed the crime scene. Because Caudell died prior to

defendant’s retrial, Caudell’s testimony from defendant’s first trial was

read to the jury. Caudell testified that the victim was found on a dirt,

oil-lease road in Jefferson County about 108 feet west of where the

lease road meets county road 1975 east (a north-south dirt and oil

road). The victim was lying on her stomach, nude, covered with dust

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and dirt, with a large amount of blood around her head. A large open

wound on the right side of her neck exposed the spinal cord area.

Caudell observed shoe impressions on the victim’s back and hairs

“stuck in the rectum area.”

Caudell also observed a set of tire tracks that began at the

entrance to the oil lease road and ended 17 feet from where the body

lay, as well as a shoe impression in the mud about six feet from where

the tire tracks ended. The shoe impression, which was similar to the

shoe impressions on the victim’s back, was located on what would be

the driver’s side. Although he observed no trail of boot prints leading

to the body, he observed the same tread design on the ground beside

the body. Caudell made plaster casts of the tire tracks and shoe

impression, and bagged the victim’s clothing which was found on road

1975 east. The underpants had been cut or ripped up the sides, and the

red shorts and T-shirt had been turned inside out. The victim’s shoes

and socks were also recovered.

Donald Ostermeyer, a defense expert in crime-scene techniques

and the recovery of evidence, was critical of Caudell. Ostermeyer

testified that Caudell should have removed the hairs from the body

immediately to prevent loss, and that Caudell compromised the crime

scene by placing a sheet over the body. Ostermeyer was also critical

of Officer Anthis, the case agent assigned to investigate the matter,

because he did not view the crime scene until July 3, 1987. He further

testified that police should have talked to oil-field workers about the

tire prints.

The State and defendant offered evidence that the distance from

Kell to the crime scene was approximately 12 miles. Officer John

Kemp testified that the most direct route would take approximately 14

minutes to drive, ending in a desolate area of the county. According

to Kemp, unless the driver knew the area, “you would basically

wander around through there for an extended period of time before

you came back to something you recognized to get you back to a

main road.” The State offered testimony from Officer Kemp and

Russell Hails, a local farmer, which the State argued demonstrated

that defendant was familiar with the area. According to their

testimony, the last family that lived down the road from where the

body was found was the Hufford family. Their home was located

about a half mile from the crime scene. Susan Hufford married

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defendant’s brother Kenneth, and Deborah Hufford married

defendant’s brother Michael.5 The Huffords lived at that location until

the mid-1980s. According to Joan Sutherland, Susan and Kenneth

lived at the Hufford home for a short time. In addition, Officer Kemp

testified that defendant previously lived at County Line Road and

Harmony Road, about 4½ miles from where the body was found.

The Autopsy

Dr. Steven Nuernberger performed an autopsy on July 3, 1987.

The autopsy revealed an incised wound to the victim’s neck, made by

a nonserrated blade, which began left of the midline and had four

separate starting marks. The four marks fused into one deep cut that

ended behind the right ear, severing the jugular vein and the carotid

artery on the right side of the neck and cutting into the cartilage

between the fourth and fifth vertebral body in the spinal cord. In

addition to the incised wound, Dr. Nuernberger observed

hemorrhaging to various neck muscles and the right eye, and that the

larynx had been crushed. He observed no ligature marks. Dr.

Nuernberger testified that these injuries were consistent with

strangulation effected by human hands grasping the victim around the

neck.

Three distinct areas of hemorrhaging beneath the scalp indicated

that the victim had also sustained three blows to the head. In addition,

the inner surface of the upper and lower lips were torn and bruised,

suggesting that “[s]he had been smacked across the mouth.” The

victim’s right ear was torn off at the base, and she had numerous

abrasions and contusions. Dr. Nuernberger observed a discreet heel

print in dirt on the lower back, and a second heel print on the upper

right back that was delivered with “a lot of force,” injuring the skin.

Further examination revealed a subtle abrasion of the labia majus, but

no vaginal penetration. Anal penetration, occurring either shortly

before or after death, was evident, as was a fracture of the right first

rib occurring during the same time frame.

5

At the time of the events at issue here, Michael was married to Tina, who

was also a witness in this case.

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An examination of the internal organs revealed trauma to the

right kidney and that the liver had been torn almost in half, indicating

that “a lot of force” had been applied across the abdomen. Based on

the small amount of internal bleeding that occurred in connection with

the liver injury, Dr. Nuernberger concluded that the injury occurred

postmortem.

Dr. Nuernberger testified that based on his examination, the

victim was strangled first, possibly into unconsciousness, after which

her throat was slit. The pool of blood at the location where the body

was found, and the absence of a trail of blood, indicated that the body

was not moved after her throat was cut. In addition, exsanguination

from the incised wound was more rapid than normal “because

someone stepped on her back and squeezed the blood out of her

body.” Nothing at the crime scene suggested to Dr. Nuernberger that

the confrontation between the victim and her attacker was prolonged;

the confrontation could have occurred in a “frenzied few minutes.”

Dirt on the victim’s feet indicated that the victim may have been

dragged.

Finally, Dr. Nuernberger testified that based on the stomach

contents, if the victim last ate at approximately 6:30 p.m., death

occurred between three to four hours later, i.e., between 9:30 p.m.

and 10:30 p.m.

Boot and Tire Impression Evidence

David Brundage, an expert in footwear and tire track

identification with the Illinois State Police, examined the plaster casts

of the tire and boot impressions from the crime scene. Brundage

determined that the boot print was made by a Texas Steer brand boot

sold only by K mart stores. Brundage acknowledged that the Texas

Steer boots that were among defendant’s possessions in Montana had

a different lug pattern on the sole and could not have left the prints at

the scene. Brundage did not attempt to size the plaster casts of the

boot impressions. Dr. Nuernberger, however, testified that the shoe

impressions on the victim’s back appeared larger than his size 9½

shoe, although the doctor admitted that shoe size was not his area of

expertise. The State also offered testimony from William Bodziak, an

expert in footwear impressions, that the boot which left the print at

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the crime scene was a size 12. Pursuant to directions from Bodziak,

Officer Kemp measured defendant’s feet using three different

methods. Based on Kemp’s measurements, Bodziak concluded that

defendant’s feet are “approximate 12s.” Bodziak could not determine

the size of the shoe that left the print on the victim’s back, but testified

that it was larger than a size 7.

Defendant countered this evidence with testimony from Nicholas

Petraco, an expert in footwear analysis, that the boot that left the

prints at the crime scene was a size 7 or 8. In contrast, defendant’s

Texas Steer boots were size 12 triple E. According to Petraco, the

style of the Texas Steer boot that left the prints at the scene was not

available in a triple E width. Marvin Edelman, a senior buyer at

Meldisco, the company that manufactured Texas Steer boots,

confirmed that the style in question was manufactured in sizes 7

through 13 in medium width only. Edelman noted, however, that if a

customer needed a wider width, he or she could simply go up a half

size.

In addition to Petraco’s testimony, defendant offered the

testimony of his brother, Michael Sutherland, and the testimony of

Charles Parker, formerly a special agent with the Illinois State Police.

Michael recalled that on the night of July 1, 1987, defendant was

wearing his black lace-up boots, and Parker testified that none of the

boots in the Sutherland household matched the prints at the scene.

Tina Sutherland (Michael’s wife) also testified that defendant was

wearing black lace-up boots that evening.

David Brundage also examined the plaster casts of the tire

impressions found at the scene and concluded that the prints were

made by a bias-belted tire, rather than a radial tire. Brundage sent a

black and white photo of the best plaster cast to over 100 tire

manufacturers and distributors for help in identifying the tire that left

that print. Plaiston Tire and Laramie Tire suggested, respectively, that

the print could have been made by a Dean Polaris or Falls Persuader

tire, both manufactured by Cooper Tire. Steve Cramer, the operations

manager for consumer relations at Cooper Tire, also believed the print

could have been made by a Cooper Tire brand tire and suggested that

Brundage obtain a used Falls Persuader tire for comparison. In

September 1987, Brundage obtained a used Falls Persuader tire and

concluded that the plaster casts from the crime scene were consistent

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with the Falls Persuader tire. Brundage also testified that the prints

could have been created by a Dean Polaris tire. He explained that the

minor differences between a Falls Persuader tire and a Dean Polaris

tire that are visible when the tires are new disappear with wear.

Brundage admitted that David Mires, Cooper Tire’s chief

engineer, offered a different opinion. Mires maintained that the print

was not made by a Cooper Tire brand tire but by a Goodyear Custom

Super Cushion, possibly mounted on a trailer. Brundage explained

that he valued Cramer’s opinion over Mires’ opinion because

Cramer’s job at Cooper Tire was to evaluate damaged tires, “so he

was used to looking at tires in a worn condition,” whereas Mires’ job

involved the design of new tires.

Mark Thomas, an engineer in the tire mold design group at

Cooper Tire, was aware that Mires did not believe the print at the

scene was made by a Cooper Tire brand tire, but he did not recall

whether he spoke to Mires about the possibility of the print being

made by a Goodyear tire. Thomas testified that the print from the

scene showed the same number of ribs, grooves, and sipes, and the

same repetitive pitch design, as either the Dean Polaris or Falls

Persuader tire. He further testified that, based on evidence of

“malwear,” the tire would have been mounted on the front of the

vehicle. According to Thomas, 300,000 Falls Persuader and Dean

Polaris tires were produced from 1972 to 1987.

In October 1987, Brundage traveled with investigators to

Montana to examine defendant’s vehicle, which had a Falls Persuader

tire in the right front position. Brundage determined that, with the

exception of additional wear, the tire on defendant’s vehicle exhibited

all the same class characteristics as the plaster cast and that it could

have made the impressions at the crime scene. A positive identification

was not possible because the individual characteristics were either

obliterated or very unclear on the plaster cast.

In November 1987, investigators provided Brundage five

additional tires from other vehicles for examination. In a report dated

December 4, 1987, Brundage concluded that three of the tires, in

addition to the tire from defendant’s vehicle, could not be excluded or

identified as creating the print at the scene. At trial, however, his

conclusion changed. Brundage testified that only one of the tires he

examined could have made the print: defendant’s tire. Brundage

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testified that the day before he took the witness stand, the prosecutor

had asked him to reevaluate the tires, which he did, at the prosecutor’s

office. Brundage explained that the reason for the change in his

opinion was that the investigation of the tires he conducted in the

prosecutor’s office the previous day was “a more thorough

investigation” than the one he had conducted in his laboratory in 1987

and that he had a little more knowledge about tires currently than he

did 17 years earlier.

The defendant offered testimony from a friend and mechanic,

Ronald Lawrence, that sometime after July 24, 1987, but prior to

defendant’s trip to Montana, he changed all four tires on defendant’s

vehicle. Lawrence admitted, however, that in a March 1994 affidavit

he stated that he changed three tires on defendant’s vehicle between

July 28 and August 4, 1987. Lawrence also admitted testifying at a

prior hearing in 1998 that he had changed 10 tires on defendant’s

vehicle between the date of the murder and late August. Vicki

Lawrence, Ronald’s wife, also testified that on July 24, 1987,

defendant was at their home for their son’s tenth birthday party. Vicki

was upset because her husband came home from work and changed

the tires on defendant’s car, rather than coming inside the house for

the party. The first time Vicki went outside they were changing the

right front passenger tire; the second time she went outside they were

changing “the other tire.” Vicki acknowledged that she provided an

affidavit in this case in March 1994 that made no mention of this.

In addition to the Lawrences, defendant’s mother, Joan

Sutherland, testified that she gave a statement to police on October

26, 1987, in which she advised investigators that her son had changed

the front tires on his vehicle after Amy’s murder and prior to his

departure for Montana.

William Anderson, with Gator Tire, testified for the State that he

examined the right front tire from defendant’s vehicle to determine

whether it had been on another vehicle. If the tire had been removed

by hand, he would have expected to see marks on the rim, which he

did not see.

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Human Hairs Recovered From the Body

Richard Caudell, the crime-scene technician, observed hairs

“stuck in the rectum area” of the victim. Dr. Nuernberger, who

performed the autopsy, also observed hairs “adherent to the anal

crease and the buttocks *** by fecal matter.” Kenneth Knight, a

forensic scientist and expert in hair and fiber analysis, examined the

hairs recovered from the victim’s rectum: eight Caucasian head hairs,

which were consistent with Amy’s head hairs; two Caucasian pubic

hairs, which had been forcefully removed from the source; one

Caucasian hair of undetermined body origin; and one animal hair,

whose species could not be identified. The pubic hairs were used to

screen suspects because of their location on the victim and the fact

that the victim was prepubertal and thus had no pubic hair of her own.

In July 1987, Knight conducted microscopic comparisons of the

two pubic hairs found on the victim with pubic hair standards from

Dennis, Esther, Adam and Ryan Schulz, Gwen and William Willis, and

23 other individuals. In making his comparisons, Knight considered 23

characteristics, including the hair’s relative length and color; the hair’s

configuration, i.e., whether the hair was straight, curly, or wavy;

whether the tip of the hair was tapered, broken, rounded, cut or

shaved; whether the root was retched, putrid, or bulbous; the size of

the shaft; whether the base of the hair was pigmented or damaged; the

scale pattern; and the cuticle. Knight explained that to make a

determination that an unknown hair could have originated from the

same source as a known standard, all the characteristics present in the

unknown hair must be present in the standard, with no unexplained

differences. When a difference exists that cannot be explained, the

source of the known standard must be excluded as a source of the

unknown hairs. Based on his microscopic analysis, Knight concluded

that the pubic hairs recovered from the victim were dissimilar to the

pubic hairs standards from the Schulzes, Willises, and the 23 other

individuals and did not originate from them.

Knight also microscopically compared the two pubic hairs with

pubic hair standards from defendant and determined that the hairs

were consistent with each other. Knight noted a difference in

pigmentation in the shaft of defendant’s hair, but considered this

difference insignificant. Knight concluded that the pubic hairs found

on the victim could have originated from defendant. According to

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Knight, five other examiners reviewed his work with regard to

defendant’s hair standards, and all five examiners agreed with his

conclusion.

The pubic hairs recovered from the victim and the standards

obtained from defendant were also subjected to mtDNA analysis.

Harold Deadman, the State’s expert on forensic analysis of hair, fiber,

and DNA, testified that human hair comparisons based on microscopy

are quite difficult because microscopy involves a subjective

examination, and the “ability to get the right answer depends on the

skill of the person doing the comparison.” Deadman further testified

that mtDNA analysis is a more objective technique and, when

performed after microscopy, functions “as kind of a quality control

mechanism,” likely to pick up a mistake by the microscopist. Neither

method, however, provides absolute identification.

The differences between nuclear DNA and mtDNA were

explained by Harold Deadman, as well as John Planz, an expert in the

application of DNA and mtDNA techniques in forensic testing, and

Terry Melton, whose lab, Mitotyping Technologies, performed the

mtDNA analysis in this case. Generally, nuclear DNA is found in the

nucleus of a cell and is transmitted by both parents to their offspring.

In contrast, mtDNA is housed in the mitochondria of a cell, found in

the cytoplasm surrounding the nucleus. No paternal contribution is

made to mtDNA; it is inherited only maternally. Thus, a mother, her

children, the mother’s siblings, and the mother’s maternal ancestors all

have the same mtDNA.

A nuclear DNA molecule has a “double helix” structure and

contains three billion “base pairs” consisting of four chemicals:

adenine, thymine, cytosine and guanine. Although mtDNA also

exhibits a “double helical” form, it is more compact and contains only

about 16,569 base pairs. Scientists conducting DNA analysis of two

samples compare the sequencing of the base pairs in certain control

regions on the DNA strands. A match between two nuclear DNA

profiles is much more discriminating than a match between two

mtDNA profiles.

Terry Melton testified that her laboratory performed an mtDNA

analysis of the two pubic hairs found on the body, and blood samples

obtained from defendant and William Willis, Amy’s step-grandfather.

Melton explained that the mtDNA is first extracted, then copied and

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sequenced, producing a “string of chemical bases 783 long.” The

sequences from the known sample and unknown sample are then

compared. A single difference is inconclusive. Two or more

differences means that the donor of the known sample, along with the

donor’s maternal relatives, are all excluded as the source of the

unknown sample. A complete match between the two sequences

means that the known individual, and his or her maternal relatives,

cannot be excluded as the donor of the unknown sample. If a match

is obtained, a search of the “Scientific Working Group on DNA

Analysis Methods” (SWGDAM) database reveals how rare or

common the sequence may be in the general population, allowing for

further statistical analysis. John Planz explained that the SWGDAM

database, which the Federal Bureau of Investigation (FBI) maintains

and controls, contains over 4,000 mtDNA sequences from primarily

North American populations and is constantly growing.

The mtDNA sequencing performed at Melton’s laboratory

disclosed numerous differences between the mtDNA sequences in the

two pubic hairs found on the victim and in Willis’ blood. Thus, Willis

was excluded as a possible donor of the two pubic hairs. However, a

comparison of the mtDNA sequences from the unknown hairs and

defendant’s blood produced a match.

Melton’s laboratory analyzed a third hair of unknown origin

removed from the sheet used in transporting the body to the morgue.

The mtDNA analysis excluded Willis, the victim, and defendant as the

source of the hair. Melton did not find the absence of a match

significant. She testified that because humans shed between 75 and

100 hairs per day, it is not uncommon to find hairs at a crime scene

that are unrelated to the crime.

Melton’s laboratory analyzed a fourth hair, identified as a human

hair from the victim’s rectal crease. The mtDNA sequence in this hair

was identical to the mtDNA sequences in the two pubic hairs

recovered from the body, as well as the mtDNA sequence obtained

from defendant’s blood.

To determine the significance of the match between the mtDNA

from the three hairs found on the victim and the mtDNA in

defendant’s blood, a search was made of the SWGDAM database.

Melton testified that this type of sequence had never been observed in

the database, indicating a certain rarity in the population. Statistically,

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the sequence observed here would not be expected to occur in more

than six one-hundredths of one percent (.06%) of the North American

population. Stated differently, at least 99.94% of the North American

population would not be expected to have this type of mtDNA

sequence. Melton further explained:

“So the vast majority of people will not have this type, and

we place that with what we call a 95 percent confidence. So

five percent of the time it could be different, but it’s not likely

to be more than that 95 percent of the time.”

Melton also clarified that “we cannot ever eliminate the possibility that

a maternal relative [of defendant] was the donor” of the hairs found

on the victim. Testimony from various family members established

that defendant had numerous maternal relatives, and that defendant,

Michael Sutherland, Kenneth Sutherland, and their uncle Walter

Sinclair, all lived within eight or nine minutes of each other.

Melton further testified that no measurable pooling of genes

exists in any of the regions of the United States that have been

sampled, and she has not seen mtDNA sequences that appear to be

abundant in one region that are not abundant somewhere else. “[W]e

don’t have any indication that we would go out into a particular city

or town and start seeing one type picked at random over and over

again. Not if we have a population to choose from of some size.”

William Shields, a defense expert in population and molecular

genetics, reviewed Melton’s mtDNA reports. Shields testified that

Melton’s reputation in the scientific community was very good and

that the laboratory results Melton obtained were “good clean results.”

Shields disagreed, however, with Melton’s statistical analysis and her

use of the SWGDAM database. In his opinion, Melton underestimated

the frequency of the mtDNA sequence in this case, thus overstating

the significance of the match. Shield’s disagreement stemmed from the

notion of “population substructure, the fact that the frequency of

genetic types will differ among groups of different kinds.” To illustrate

his point, he offered the following example:

“Red heads have a reasonably low frequency. If you look at

the whole world’s population. And, in fact, if I was in ***

what used to be called the Belgium [sic] Congo, and

somebody told me a red head committed a crime, I could

-54-

probably find that there were only three or four red heads in

the population ***, which would give me a pretty good

handle on what was going on. The frequency would be very

low ***. But if I went to an Irish village in a particular place

in Ireland, where 90 percent of the people are red heads, it

would have very little meaning. That’s the difficulty.”

Shields noted that in this case, there are at least three individuals

besides defendant who share the same mtDNA, but that this

information is not reflected in the SWGDAM database used by

Melton. He testified that a way to insure that the worth of the

evidence is not overestimated is to develop an “upper limit,” i.e., a

frequency that the true frequency is not likely to be greater than.

Shields testified that because the population in the geographic area of

the crime is not known, the best estimate of the likelihood that

someone drawn at random from that population would be a match

with the mtDNA from the crime scene is the largest number seen in

any populations that are known. The largest such number seen in any

population reflected in the SWGDAM database is 1 in 12, reflected in

the Thai population. “What it means is we think that if the Thais could

have this level of matching, so could a local population that we’ve not

sampled.”

Robert Makuch, a defense expert in biostatistics, agreed with

Melton’s calculations, but disagreed with her conclusion that “we can

exclude 99.93% of the population as contributors of the questioned

sample.” Melton’s report, which Makuch reviewed, stated that, based

on a database of 4,142 mtDNA sequences, “the 95% confidence limit

is 0.000722, or .07%,” meaning that “there is a 5% chance that the

true frequency in the population exceeds 0.07%.” Makuch explained

that, multiplying 4,142 by .07 yields a value of 3.

“So what it really is saying within 95 percent confidence,

*** it would be reasonable for us to see between zero

matches and up to three matches with a data base of this size.

*** [B]ut then to turn it on its head and then to say that we

can exclude 99.93 percent of the population is in biostatistics,

it’s simply an inappropriate conclusion for those kinds of

data.”

Makuch also testified that from a practical standpoint, we know that

defendant’s siblings have the same mtDNA.

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In rebuttal, the State called Bruce Budowle, a senior scientist

with the FBI who had a primary role in developing the SWGDAM

database. Budowle did not disagree with either Melton’s calculations

or Makuch’s calculations, testifying that the results each obtained are

simply expressed differently. Budowle did, however, disagree with

Shields’ worst case scenario that the mtDNA frequency in this case is

one in 12. Budowle also testified that even in small communities, the

pooling of a particular mtDNA sequence does not occur to the degree

necessary to affect case interpretation.

Additionally, Harold Deadman testified that knowing defendant

has brothers would affect only the associative value of the mtDNA

evidence, but not the value of the microscopic hair comparisons.

Deadman testified that even the hair from identical twins could be

microscopically dissimilar. Thus, although Deadman had not seen any

reports concerning microscopic examinations of the hair of

defendant’s siblings and other maternal relatives, he would not expect

their hair to be microscopically similar to defendant’s hair.

Fibers From Victim’s Clothing and Defendant’s Vehicle

Kenneth Knight, who examined the human hair recovered from

the body, also examined the fiber evidence recovered from the

victim’s clothing and defendant’s vehicle. Knight testified that where

two fibers are consistent with each other, i.e., have no significant or

meaningful differences, the conclusion is that the fibers “could have

originated” from the same source. Harold Deadman testified that a

cross-transference, i.e., a two-way transfer of fibers, adds evidential

value because the odds of finding these fibers by chance is small,

which makes the likelihood that the objects were in contact much

greater. According to Deadman, to find any more than a small number

of matching fibers by pure coincidence is very unlikely.

Knight testified that among the fibers found on the victim’s

clothing were three gold fibers and one gold tuft (comprised of over

30 individual fibers) found on the socks; six gold fibers found on the

shoes; nine gold fibers found on the underpants; eight gold fibers

found on the shorts; and three gold fibers found on the shirt. Knight

compared these fibers with carpet standards from the front and back

of defendant’s vehicle. With the exception of one gold fiber from the

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shirt, all of the individual gold fibers and the gold tuft were consistent

with the carpeting in defendant’s vehicle. Specifically, Knight testified

that the fibers were all large-diameter, trilobal, polyester fibers,

consistent in color, fluorescence, and refraction. The gold fiber on the

victim’s shirt that was inconsistent with the carpeting was a medium-

diameter gold fiber made of nylon. That fiber was consistent with the

fabric in the front and back seats of defendant’s vehicle.

Knight was provided carpet standards from the victim’s

environment, including the Schulz residence, the Willis residence, and

Salem Vacuum Cleaners (Dennis Schulz’s business), for comparison

with the gold fibers found on the victim’s clothing. Knight concluded

that the gold fibers and the gold tuft did not originate from the

victim’s environment, as represented by these standards.

In addition, Knight contacted J.P. Stevens & Co., whose name

was listed on the carpet tag removed from defendant’s vehicle. Robert

Woosley, previously with J.P. Stevens and now a consultant for the

automotive carpet industry, testified that the gold polyester carpet

identified by the carpet tag was manufactured exclusively for Chrysler.

According to Gary Mallett, formerly with the Chrysler corporation,

the type of carpeting installed in defendant’s vehicle was used only in

certain models for model years 1977 and 1978. Erring on the high

side, Mallett estimated that the same type of carpeting was installed

in 80,450 vehicles. Harold Deadman testified that, assuming all the

vehicles in which the same gold carpeting was installed still existed in

1987, the odds were one in 1,400 of picking a car at random with the

same carpeting.

Kenneth Knight further testified regarding the fibers recovered

from defendant’s vehicle, which was transported in a rental truck from

Montana to Mt. Vernon, Illinois, for processing. Knight testified he

did not know how many persons were in the vehicle after July 1,

1987, the date of the murder. Other testimony indicated that a gas

station employee drove the car briefly late in the day on July 1, 1987,

and that during the period from October 10, 1987 (the date the car

was found in Montana), and October 28, 1987 (the date the car was

processed), at least two park rangers had been inside the vehicle. In

addition, testimony from Officer Anthis, who had flown to Montana

and arranged for the transport of the vehicle to Illinois, suggested that

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the car could have been driven a short distance when the Jefferson

County police conducted their initial investigation of the vehicle.

Knight testified that over 6,000 red fibers were recovered from

the vehicle and all but 19 were dissimilar to the victim’s clothing.

Specifically, 12 cotton fibers and 4 polyester fibers from the front

passenger carpeting were consistent with the victim’s shirt, which was

a red polyester and cotton blend. In addition, one red fiber recovered

from the front passenger carpeting, and two red fibers found on the

front passenger seat, were consistent with the victim’s red shorts.

Knight considered this match significant because the victim’s shorts

were homemade out of a fabric not typically used for clothing: a

multilobe, large-diameter polyester fabric. Harold Deadman also

considered the red fibers uncommon. The 19 red fibers were

inconsistent with carpet standards obtained from the victim’s

environment, as well as clothing and a bedspread found in defendant’s

vehicle. Fiber standards from the two park rangers who were inside

the vehicle were not provided to Knight for comparison.

Randall Bresee, a defense expert on fiber analysis, criticized

Knight’s methodology, testifying that Knight’s observations were

largely subjective. According to Bresee, Knight failed to perform a

quantitative analysis of the fibers, such as counting the delusterant

particles, measuring fluorescence, and computing the fiber diameter

values and modification ratios (a quantitative measure of fiber shape).

He also testified that the visual color comparison Knight performed is

error-prone, and that the better method would have been to identify

the dyes used to color the fibers.

Bresee noted that Hoechst Celanese, the company that produced

the polyester used by J.P. Stevens in the manufacture of the carpeting

at issue here, could not specifically confirm that it produced the fibers

found on the victim’s socks. Bresee also opined that any polyester

Hoechst Celanese produced that was “off spec,” or surplus, would

have gone into the marketplace into other goods. Thus, the same

fibers found in the carpeting used in 80,000 Chrysler vehicles would

also be found in other goods such as residential carpeting, floor mats,

and crafts.

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Dog Hair

Kenneth Knight testified that animals generally have three types

of hair: fur, which insulates the animal; guard hairs, which protect the

animal; and tactile hairs, such as whiskers. Guard hairs are used for

comparison because they have the largest number of characteristics to

compare. Knight recovered 32 guard hairs from the victim’s clothing:

14 from the socks, 4 from the shoes, 4 from the underpants, 4 from

the shorts, and 6 from the shirt. In addition, he obtained a single guard

hair from Richard Caudell, which Knight was informed had been

removed from the victim’s underpants. Knight compared these hairs

with hair standards from defendant’s dog, Babe, a black Labrador

retriever, and concluded that the hairs found on the clothing were

consistent with Babe’s hair and could have originated from Babe.

Knight also compared the dog hairs from the victim’s clothing with

hair standards from nine dogs in the victim’s environment, including

five dogs owned by the Schulz family. The hairs found on the victim’s

clothing were dissimilar to these hair standards. In addition, Knight

examined one dog hair recovered from the transport sheet. This hair

was also consistent with Babe’s hair and dissimilar to the hair

standards from the victim’s environment.

Knight testified that during the processing of defendant’s vehicle

he observed animal hair throughout the vehicle and that all of the

tapings from defendant’s vehicle contained dog hair. Knight sampled

90 hairs from the front right passenger carpeting, which he concluded

were consistent with Babe and could have originated from Babe.

Several of the dog hairs found on the victim’s clothing, as well as

standards from defendant’s dog, were provided to Joy Halverson of

QuestGen Forensics for mtDNA testing. Halverson testified that the

same mtDNA process used on human hair is used on animal hair, but

the number of base pairs compared is 655. Like human mtDNA, dog

mtDNA does not distinguish among maternal relatives.

Halverson tested eight animal hairs from the victim’s clothing and

standards from Babe and concluded that the eight hairs were a match

with Babe. In order to determine the significance of the match,

Halverson compared the mtDNA sequence found in this case with the

345 sequences contained in a dog DNA database she developed. The

sequence in this case appeared nine times in her database, indicating

a frequency of 2.6%. She explained that dog mtDNA is less

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discriminating than human mtDNA and that a “match” in this case

means that if the dog population in general were sampled, one out of

38 times the same mtDNA sequence would be seen. Halverson also

testified that evidence suggests no correlation between a dog’s breed

and its mtDNA sequence. Thus, a German Shepherd and a Dachshund

could have the same mtDNA and two German Shepherds could have

different mtDNA.

Christopher Basten, an expert in statistical analysis of DNA

results, reviewed Halverson’s report. He testified that the database

Halverson used was valid and a reasonable approximation of dogs

throughout the United States. According to Basten, an alternative way

of expressing the results Halverson obtained is to say that it is “38

times more likely if Babe or a litter mate is the source than if it’s some

unrelated dog.” Basten applied a confidence interval to Halverson’s

results and obtained a “likelihood ratio of 21, which says that it’s at

least 21 times more likely if Babe or a litter mate is the source than if

it’s some random dog. And you could also say it’s one in 21.”

Robert Makuch, a defense expert on biostatistics, challenged the

validity of Halverson’s database, testifying that 345 sequences is a

small number to be representative of the entire dog population of the

United States. He also testified that the method of obtaining the

sequences must guard against bias and that a random sampling of dogs

from each of the 50 states could produce a database different from the

one Halverson compiled.

Defendant’s Knives

Federal park ranger Robert Burns testified that among the items

he turned over to Jefferson County police were four knives found at

defendant’s campsite, including a hunting knife, a “bayonet-type

knife,” a “survival knife” with a long blade and serrated back edge,

and possibly a pocket knife. Officer Kemp also identified certain

knives in court as belonging to defendant. Investigators found no

blood on these knives or any of the other items from defendant’s

vehicle and campsite. Dr. Nuernberger testified that any sharp,

nonserrated blade or sharp linear object could have been used to cut

the victim’s throat.

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Defendant’s Whereabouts on July 1, 1987

Evidence established that on July 1, 1987, defendant, who lived

in Dix, Illinois, with his parents, went to his regular place of

employment in Mt. Vernon, where he worked from 8 a.m. to 4 p.m.

Joan Sutherland, defendant’s mother, testified that defendant ate

dinner with her that evening, and that they usually ate dinner between

5 p.m. and 6 p.m. After dinner, defendant went to the home of his

brother Michael.

Tina Sutherland, Michael’s wife, testified that on July 1, 1987,

defendant was at their home in Texico, Illinois, which is located about

five miles and five minutes from defendant’s home. Although Tina did

not recall when defendant arrived, she recalled that he and Michael

watched a violent, bloody movie and that defendant left in his vehicle

after the movie ended at 9:30 p.m. Defendant was wearing bib

overalls, a white tank “T-shirt,” and black boots, which he laced up in

her kitchen before he left. Tina admitted that when she spoke to police

in November 1987, she told them that defendant left at 8 p.m. or 8:30

p.m., and that she gave testimony to that effect at a hearing in 1989.

Tina testified that she did not recall the name of the movie defendant

and Michael watched until defendant’s present counsel showed her a

TV guide for that date. The movie they watched was “Red Sonja,”

which ended at 9:30 p.m.–15 minutes after Amy disappeared.

Michael Sutherland testified that defendant arrived at their home

at 5:30 p.m. or 6 p.m. Defendant was wearing black lace-up boots,

which he took off to watch the movie. The movie involved sword

fighting. Michael initially told police defendant left around 9 p.m., and

testified at the prior hearing that defendant left after the movie. When

defense counsel provided Michael a TV guide for July 1, 1987,

Michael was able to identify the movie they watched as “Red Sonja,”

which ended at 9:30 p.m.

In rebuttal, the State called Sherry Witzel, who, in 1989, was an

intern for the Jefferson County public defender, assisting defendant’s

prior counsel. Witzel testified that in May 1989, either Tina

Sutherland or Susan Sutherland gave her a copy of the TV guide for

July 1, 1987. The same woman later told Witzel that defendant was at

her home on the night of July 1, 1987, and that defendant and his

brother watched a movie titled “Big Trouble in Little China.” Witzel

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remembered the name of the movie because she watched the same

movie. “Big Trouble in Little China” ended at 9 p.m.

The State also offered evidence that on the night of July 1, 1987,

at 10:57 p.m., Joan Sutherland, defendant’s mother, received a

telephone call from defendant; a belt had broken in defendant’s car.

Mrs. Sutherland testified that she met defendant at a gas station in Mt.

Vernon, approximately 15 miles from her home. She arrived well after

11 p.m. Mrs. Sutherland and defendant made two trips in her pickup

truck to an Amoco station on the interstate to get the correct size belt.

Defendant installed the belt and Mrs. Sutherland followed him home

in her truck. En route, police stopped their vehicles and spoke with

them briefly. They then drove home. Defendant was at home the next

morning and did not act unusual.

State Trooper Jane Middleton testified that on July 1, 1987, she

was requested to assist in the search for Amy Schulz by setting up a

point on the Marion-Jefferson county line to stop vehicles to see if

anybody had seen Amy. The location was about two-tenths of a mile

west of Jefferson Street. Middleton used her flashlight to flag down

motorists. At about 12:30 a.m. on July 2, 1987, Middleton tried to

flag down defendant’s vehicle, but defendant did not stop until

Middleton “hollered real loud.” He stopped 500 feet east of her.

Middleton identified defendant’s vehicle from photographs and

testified that the driver was heavier set, with brown, unkempt hair, and

facial hair. She made an in-court identification of defendant, testifying

that she recognized him from his eyes and mouth, although she viewed

him primarily from the side. Middleton stated that defendant did not

want to look at her and that he appeared nervous. She made a note of

the stop in her report of July 7, 1987, but did not identify him by name

and could not recall the license plate number. On cross-examination,

Middleton testified that what she wrote in her report was simply, “At

approximately 12:30 AM on the 2nd I checked the vehicle but could

not remember the license plate or the registered owner.”

Larry Martin, formerly a cashier at Harper’s Gas Station in Mt.

Vernon, testified that one evening in early July 1987, prior to July 4,

he noticed a bigger man in bib overalls on the lot working underneath

the hood of his vehicle, which was an older model. After 10 to 15

minutes, the man used the restroom for a minute or two, came inside

and made a telephone call, and then returned to his car. The man

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asked Martin to help him move his vehicle to the south side of the

building. Martin sat in the driver’s seat and steered, while the man

pushed. The man waited inside for his ride, and left with an older

woman in a pickup truck. When Martin left the station at midnight,

the man’s vehicle was still on the lot. About 30 minutes had passed

from the time Martin noticed the man, to the time the man was picked

up. According to Officer Anthis, the most direct route from the crime

scene to Harper’s Gas Station in Mt. Vernon is about 20 miles and

would take about 22 to 24 minutes to drive.

•••

Before considering the sufficiency of the State’s evidence, we

note that we have omitted from the foregoing summary any reference

to the extensive evidence defendant presented at trial which he argued

established that William Willis, the victim’s step-grandfather,

committed the crimes with which defendant was charged. Defendant

has abandoned this argument on appeal, and we therefore find it

unnecessary to recount this evidence, particularly the testimony of the

numerous witnesses whom, as children, were molested by Willis.

Moreover, the jury could have reasonably rejected defendant’s theory

of the case where the mtDNA evidence excluded Willis as a donor of

the two pubic hairs found on the victim’s buttocks. Although

defendant argued that the hairs were unrelated to the crime, the jury

could conclude otherwise based on the sexual assault evidence and Dr.

Nuernberger’s testimony that the hairs were adhered to the anal crease

and buttocks by fecal matter.

As to the sufficiency of the evidence, defendant argues that the

State’s evidence, contrary to the arguments the State made during

closing, failed to connect him to the crime. The State argued in closing

that defendant was familiar with the rural road where the body was

found and that his whereabouts during the critical period from the

time the victim disappeared (approximately 9:15 p.m.) to the time of

death (no later than 10:30 p.m.) were unknown. The State also argued

that the hair and fiber evidence linking defendant to the crimes could

not be simply “coincidence,” particularly where carpeting, animals,

and numerous individuals in the victim’s environment were eliminated

as possible sources of the hair and fiber. Finally, the State argued that

the tire prints, boot prints, defendant’s knives, and the vehicle

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sightings in Kell all had evidentiary value and pointed to defendant.

Defendant contends that even if the jury believed all of the State’s

witnesses and disregarded the evidence defendant presented, the State

failed to meet its burden of proof.

We agree with defendant that some of the evidence introduced by

the State failed to connect defendant to the abduction, sexual assault,

and murder of Amy Schulz. The boot-impression evidence, for

example, established at most that defendant’s shoe size was the same

size as the boot that left the print at the scene and that defendant

owned a pair of Texas Steer brand boots different from the style that

left the print at the scene. In addition, the knives that were among

defendant’s possessions when he was arrested in Montana, which the

State put before the jury, contained no trace evidence linking

defendant to the crimes. Furthermore, evidence suggesting that

defendant’s vehicle was the tan-colored vehicle seen on the night of

July 1, 1987, was marginalized when the State’s witness

acknowledged that she told defense investigators, after seeing

photographs of defendant’s vehicle, that his car was not the car she

saw on July 1.

Of the remaining evidence, no individual item is compelling.

Nonetheless, we cannot say that the remaining evidence, taken

together, and viewed in the light most favorable to the prosecution, “is

so unreasonable, improbable, or unsatisfactory as to justify a

reasonable doubt of defendant’s guilt.” People v. Smith, 185 Ill. 2d

532, 542 (1999).

The State’s tire-impression evidence established that defendant’s

vehicle, which had a Falls Persuader tire in the right front position,

could have left the impressions at the scene. Although the credibility

of the State’s tire expert, David Brundage, was called into question

when he testified inconsistently with his 1987 report, the weight and

credibility of his testimony were for the jury to resolve. See Milka,

211 Ill. 2d at 178. Any conflict in the evidence stemming from the

disagreement between Cooper Tire’s Mark Thomas and Steve Cramer

on the one hand, and David Mires on the other hand, as to the

manufacturer and style of tire that left the print at the scene, and any

conflict as to whether defendant changed the tires before leaving for

Montana, were likewise for the jury to resolve. See Milka, 211 Ill. 2d

at 178.

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The State’s evidence also established that the numerous gold

fibers found on the victim’s clothing were consistent with and could

have come from the gold carpeting and upholstery in defendant’s

vehicle, and that the gold fibers did not come from the victim’s

environment, as represented by certain carpet standards. Evidence also

established that certain red fibers found in defendant’s vehicle, which

experts considered uncommon, were consistent with and could have

come from the victim’s clothing, and that these same red fibers could

not have come from the clothing and bedspread found in defendant’s

vehicle. Although no expert could testify definitively that defendant’s

vehicle was the source of the gold fibers found on the victim’s

clothing or that the victim’s clothing was the source of the red fibers

found in defendant’s vehicle, the State’s expert, Harold Deadman,

considered the association a strong one:

“Each of the fiber associations that *** were reported in

this case have a very small probability of occurring by chance,

some more common than others. But each one has a small

probability of occurring by chance. The combination of all of

them occurring by chance is so small that in my opinion the

probability that Amy Schulz was not in the Sutherland vehicle

shortly before or after she was killed is extremely remote.”

(Emphasis added.)

The State’s microscopic and mtDNA evidence also established

that the dog hairs recovered from the victim’s clothing could have

originated from defendant’s Labrador retriever, Babe, but could not

have originated from the dogs in the victim’s environment.

Additionally, the State established that defendant could have been the

donor of the two pubic hairs found on the victim’s buttocks, as

evinced by the microscopic hair comparisons and mtDNA analysis.

We acknowledge, as every DNA expert in this case has, that mtDNA

evidence cannot exclude defendant’s maternal relatives–including his

brothers and uncle–as donors of the pubic hairs. We also acknowledge

that the State offered no evidence directly excluding defendant’s

brothers and uncle as suspects. Nonetheless, “speculation that another

person might have committed the offense does not necessarily raise a

reasonable doubt of the guilt of the accused.” People v. Manning, 182

Ill. 2d 193, 211 (1998), citing People v. Herrett, 137 Ill. 2d 195, 206

(1990).

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Defendant notes that the State’s own witness Tina Sutherland

provided his alibi when she testified that defendant left her home on

the night of the murder at 9:30 p.m. when the movie “Red Sonja”

ended. The jury learned, however, that Tina Sutherland’s testimony

that defendant left at 9:30 p.m. conflicted with her testimony at an

hearing in 1989 (defendant’s first trial) in which she stated that

defendant left at 8 p.m. or 8:30 p.m. Furthermore, the evidence was

conflicted as to which movie defendant and his brother may have

watched that evening. The jury resolved this conflict against

defendant.

Defendant also directs our attention to the expert testimony he

offered which contradicted the State’s forensics findings, as well as

evidence he argues demonstrates that police mishandled the

investigation. We are cognizant that defendant mounted a vigorous

defense, calling numerous expert and lay witnesses to spotlight what

defendant regarded as weaknesses in the State’s circumstantial case.

Our function, however, as a court of review is not to retry the

defendant or to substitute our judgment for that of the jury. Milka,

211 Ill. 2d at 178; Evans, 209 Ill. 2d at 211. The jury heard the

evidence; it was “not obligated ‘to accept any possible explanation

compatible with the defendant’s innocence and elevate it to the status

of reasonable doubt.’ ” Evans, 209 Ill. 2d at 212, quoting Herrett, 137

Ill. 2d at 206.

We have reviewed the evidence in the light most favorable to the

prosecution, as we must, and hold that the evidence was sufficient, as

a matter of law, to support defendant's convictions.

VI. Caudell Testimony

Richard Caudell, who processed the crime scene and who, with

Kenneth Knight, processed defendant’s vehicle, testified at

defendant’s first trial in 1989. Caudell was deposed by defendant’s

present counsel in October 2001. Caudell died on January 11, 2003,

prior to the instant trial. Shortly after Caudell’s death, defendant filed

a motion to bar Caudell’s testimony at the first trial from being

introduced at defendant’s retrial. The trial court denied the motion,

finding, in relevant part, that “Caudell was subject to unlimited cross

examination” at the prior trial. Defendant argues that the trial court

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erred in denying his motion and requests reversal of his convictions or,

in the alternative, a new trial. We review the trial court’s ruling for an

abuse of discretion. See People v. Harvey, 21

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