People v. Williams

Docket No. 107550.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Cross-

Appellant, v. SANDY WILLIAMS, Appellant and Cross-Appellee.

Opinion filed July 15, 2010.

CHIEF JUSTICE FITZGERALD delivered the judgment of the

court, with opinion.

Justices Thomas, Kilbride, Garman, and Karmeier concurred in

the judgment and opinion.

Justice Freeman specially concurred, with opinion.

Justice Burke concurred in part and dissented in part, with

opinion.

OPINION

After a bench trial in the circuit court of Cook County, the

defendant, Sandy Williams, was convicted of two counts of

aggravated criminal sexual assault and one count each of aggravated

kidnapping and aggravated robbery of L.J. The appellate court

affirmed the defendant’s conviction, but reversed the trial court’s

imposition of a consecutive sentence. 385 Ill. App. 3d 359, 371. On

appeal to this court, the defendant argues that the testimony of an

Illinois State Police forensic analyst, who relied upon a DNA report

prepared by a nontestifying third-party analyst, lacked a sufficient

evidentiary foundation. Alternatively, the defendant argues that this

testimony concerning the report was hearsay presented for the truth

of the matter asserted and violated the defendant’s sixth amendment

confrontation clause right. The State cross-appeals, maintaining the

appellate court improperly reversed the trial court’s imposition of a

consecutive sentence. For the following reasons, we affirm in part and

reverse in part.

BACKGROUND

The State charged the defendant in a 17-count indictment with

aggravated criminal sexual assault, aggravated kidnapping, and

aggravated robbery. The cause proceeded to a bench trial. The counts

that the State ultimately submitted to the judge were counts IV and VI

(aggravated criminal sexual assault under 720 ILCS 5/12–(a)(3)

(West 2000)), count XV (aggravated kidnapping under 720 ILCS

5/10–2(a)(3) (West 2000)) and count XVII (aggravated robbery under

720 ILCS 5/18–5 (West 2000)). The State entered a nolle prosequi on

the remaining counts. The following facts were adduced at trial.

On February 10, 2000, 22-year-old L.J. worked until 8 p.m. as a

cashier at a clothing store in Chicago. On her way home to the south

side of the city, she purchased items at the store for her mother and

went toward her home. As she passed an alley, the defendant came up

behind her and forced her to sit in the backseat of a beige station

wagon, where he told her to take her clothes off. The defendant then

vaginally penetrated L.J. The defendant also contacted L.J.’s anus

with his penis, but did not penetrate. He then pushed L.J. out of the

car while keeping L.J.’s coat, money, and other items. After L.J. ran

home, her mother opened the door and saw her in tears, partially

clothed with only one pant leg on. After L.J. went into the bathroom,

her mother called the police.

Shortly after 9 p.m., Chicago police officers arrived at the home

and found L.J. in the bathtub. She had not yet washed her vaginal

area. After L.J. told the officers what had transpired, the officers

issued a “flash” message for a black male, 5 foot, 8 inches tall,

wearing a black skull cap, a black jacket and driving a beige station

wagon. An ambulance transported L.J. and her mother to the

emergency room. Dr. Nancy Schubert conducted a vaginal exam of

L.J. and took vaginal swabs, which were then sealed and placed into

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a criminal sexual assault evidence collection kit along with L.J.’s

blood sample. The kit was sent to the Illinois State Police (ISP) Crime

Lab for testing and analysis.

On February 15, 2000, forensic biologist Brian Hapack with the

ISP Crime Lab received L.J.’s sexual assault evidence collection kit

and performed tests that confirmed the presence of semen. Hapack

placed the swabs in a coin envelope, sealed the envelope, and placed

the evidence in a secure freezer. Hapack guaranteed the accuracy of

his results by working in a clean environment free from

contamination and by ensuring that the tests functioned properly.

On August 3, 2000, police arrested the defendant for an unrelated

offense and, pursuant to a court order, drew a blood sample from the

defendant. On August 24, 2000, forensic scientist Karen Kooi

performed an analysis on the sample that consisted of four quarter-

sized bloodstains on a filter card. Kooi extracted a deoxyribonucleic

acid (DNA) profile1 and entered it into the database at the ISP Crime

Lab. Meanwhile, the samples from L.J.’s sexual assault kit were sent

to Cellmark Diagnostic Laboratory in Germantown, Maryland, for

DNA analysis on November 29, 2000. Cellmark returned L.J.’s

vaginal swabs and blood standard to the ISP Crime Lab on April 3,

2001. Cellmark derived a DNA profile for the person whose semen

was recovered from L.J. According to ISP forensic biologist Sandra

1

When a DNA laboratory receives a sample of blood, the DNA is

extracted from the fraction containing the nucleic material in the white

blood cells. DNA is a tightly wound strand that measures approximately

six feet in length. Uncoiled, DNA resembles a twisted ladder with rungs

of the ladder made of chemicals called nucleotides. DNA has four different

types of nucleotides (A: adenine, T: thymine, G: guanine, and C: cytosine)

that form interlocking pairs. D. Kaye & G. Sensabaugh, Reference Guide

on DNA Evidence, Reference Manual on Scientific Evidence 485, 491 (2d

ed. 2000). It is the order (sequence) of these building blocks that

determines each person’s genetic characteristics. The great majority of

DNA is identical from person to person but forensic scientists commonly

examine 13 specific regions, or loci, where certain nucleotide patterns are

repeated again and again. These patterns are called “Short Tandem

Repeats” (STRs). The number of repeated sequences determines the length

of an STR. This length of repeated sequences, often called an allele, may

vary between people and is what analysts measure and use for comparison.

D. Kaye & G. Sensabaugh, Reference Guide on DNA Evidence, Reference

Manual on Scientific Evidence 485, 494 (2d ed. 2000).

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Lambatos, whose testimony will be set forth more fully below, the

DNA profile received from Cellmark matched the defendant’s DNA

profile from the blood sample in the ISP database. L.J. identified the

defendant in a line up on April 17, 2001. The defendant was then

arrested for the instant offenses.

At the bench trial, Lambatos was accepted as an expert in forensic

biology and forensic DNA analysis by the trial court. Lambatos began

her testimony with a brief explanation of polymerase chain reaction

(PCR) testing. PCR testing, according to Lambatos, is one of the most

modern types of DNA analysis available and is generally accepted in

the scientific community. Lambatos explained how PCR analysis can

be used to identify a male profile from a semen sample. First, an

analyst conducts a procedure that isolates and extracts DNA from a

sample that may include a mixture from a particular defendant and

the victim. The DNA is not large enough to test at this point, and

requires amplification to form a more workable sample. After

amplification, an analyst can measure the length of an individual

specific strand through a process called electrophoresis. A computer

translates this measurement onto a graph called an electropherogram.

The electropherogram is a representation of the individual’s specified

DNA data into a line with peaks representing the lengths of the DNA

strands of the 13 STR regions. Reports generally also provide a “table

of alleles” showing the DNA profile of each sample. She also stated

that the statistical probability of a match can also be determined by

entering the alleles into a frequency database to learn how common

they are in the general population.

Lambatos further testified that it is a commonly accepted practice

in the scientific community for one DNA expert to rely on the records

of another DNA analyst to complete her work. As mentioned, she

used the DNA profile from Cellmark to match the DNA profile from

the defendant’s blood sample, which was contained in the ISP

database. She stated that, because Cellmark was an accredited

laboratory, it was required to meet “certain guidelines to perform

DNA analysis for the Illinois State Police and so all those calibrations

and internal proficiencies and controls [of the equipment used] would

have had to have been in place for them to perform the DNA

analysis.” Cellmark’s testing and analysis methods were generally

accepted in the scientific community according to Lambatos.

Lambatos, however, admitted that Cellmark had different procedures

and standards for results than the ISP Crime Lab. Nevertheless,

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Lambatos testified that she personally developed proficiency tests for

Cellmark technicians to perform. She further testified that she

routinely relied on results from Cellmark and she did not observe any

chain of custody or contamination problems.

The prosecutor then asked her expert opinion regarding the DNA

match. Defense counsel objected and asserted that Lambatos could

not rely upon the testing performed by another lab. The trial court

replied, “We will see. If she says that she didn’t do her own testing

and she relied on a test of another lab and she’s testifying to that.

We’ll see what she’s going to say.”

Lambatos then testified that a match was generated of the male

DNA profile found in the semen from L.J.’s vaginal swabs to the

defendant’s male DNA profile from the defendant’s blood standard.

In response to defense questioning, Lambatos restated her

interpretation of the alleles at each of the 13 locations. She testified

about several locations where she visually filtered out spurious alleles

and “background noise” and distinguished the defendant’s profile.

Lambatos concluded that in her expert opinion, the semen from L.J.’s

vaginal swab was a match to the defendant. Lambatos testified that

the probability of this profile occurring in the general population was

one in 8.7 quadrillion black, one in 390 quadrillion white, and one in

109 quadrillion Hispanic unrelated individuals. She did not observe

any degradation or irregularities in the sample from L.J.’s vaginal

swab.

She stated that, in general, if “there was a question of a match,

then we would investigate that further by looking at the

electropherograms from all the cases involved and do some more

comparisons on that.” She explained that in looking at Cellmark’s

report, she interpreted it and “I did review their data, and I did make

my own interpretations so I looked at what *** they sent to me and

did make my own determination, my own opinion.” While Lambatos

testified to her conclusion informed by Cellmark’s report, Cellmark’s

report itself was not introduced into evidence. Also, while Lambatos

referenced documents she reviewed in forming her own opinion, she

did not read the contents of the Cellmark report into evidence.

At the conclusion of Lambatos’ testimony, the defendant moved

to strike the evidence of testing completed by Cellmark based upon

a violation of his sixth amendment right to confront witnesses against

him. The defendant also objected on the grounds of foundation, citing

People v. Raney, 324 Ill. App. 3d 703 (2001), and argued insufficient

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evidence was presented regarding the calibration of the Cellmark

equipment. The trial court denied the defendant’s motion to strike.

The trial court stated, “I don’t think this is a Crawford scenario, and

I agree with the State that the evidence is–the issue is, you know,

what weight do you give the test, not do you exclude it and

accordingly your motion to exclude or strike the testimony of the last

witness or opinions based on her own independent testing of the data

received from Cellmark will be denied.”

Following this and other testimony concerning the incident, the

State rested. The trial court denied the defendant’s motion for a

directed finding. The defendant did not present any evidence in his

defense. Thereafter, the trial court found the defendant guilty of two

counts of aggravated criminal sexual assault, and one count each of

aggravated kidnapping and aggravated robbery. The court denied the

defendant’s motion for a new trial.

A sentencing hearing was held. At the hearing, evidence was

presented demonstrating the defendant was convicted and sentenced

for the aggravated sexual assault, armed robbery, and aggravated

kidnapping of G.M. in case number 84–C–12720. The defendant was

paroled in February 1997 and discharged from mandatory supervised

release on February 4, 2000, six days prior to the instant crime.

Following the hearing, the trial court sentenced the defendant to two

concurrent terms of natural life imprisonment for the aggravated

criminal sexual assault counts and a concurrent term of 15 years’

imprisonment for the aggravated robbery count. The court also

ordered that the defendant should serve a consecutive term of 60

years’ imprisonment for the aggravated kidnapping count. The court

denied the defendant’s motion to reconsider his sentence.

On appeal, the appellate court rejected the defendant’s

contentions that the State failed to establish a sufficient foundation

for Lambatos’ opinion (385 Ill. App. 3d at 366); that the State failed

to establish that Cellmark’s equipment was adequately calibrated and

properly functioning (385 Ill. App. 3d at 366); and that the State

failed to establish a sufficient chain of custody based upon Cellmark’s

handling of the evidence (385 Ill. App. 3d at 367).2 The appellate

court next rejected the defendant’s argument that the results of

Cellmark’s testing and analysis were testimonial in nature and

therefore Lambatos’ expert testimony thereto violated the defendant’s

2

The chain of custody issue is presently not before this court.

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constitutional right to confrontation. 385 Ill. App. 3d at 370. The

court noted that the confrontation clause does not bar the use of

testimonial statements for purposes other than establishing the truth

of the matter asserted. The appellate court found that “Cellmark’s

report was not offered for the truth of the matter asserted; rather, it

was offered to provide a basis for Lambatos’ opinion.” 385 Ill. App.

3d at 369. The court stated, “Overall, defendant essentially requests

that we require each and every individual involved in the testing and

analysis of DNA to testify at trial. For obvious reasons in the abstract

and for those provided in the case at bar, we decline to issue such a

ruling.” 385 Ill. App. 3d at 370. Lastly, the court addressed the

sentencing issue. The appellate court, following the decisions of

People v. Dixon, 366 Ill. App. 3d 848 (2006), and People v. Spears,

371 Ill. App. 3d 1000 (2007), and this court’s decision in People v.

Palmer, 218 Ill. 2d 148 (2006), found that a term of years could not

be served consecutive to a term of natural life. 385 Ill. App. 3d at 371.

The appellate court therefore vacated that portion of the circuit

court’s order imposing consecutive sentences for aggravated criminal

sexual assault and aggravated kidnapping, and instead modified the

defendant’s sentence to impose concurrent sentences for those

convictions. 385 Ill. App. 3d at 371. Justice Cunningham filed a

dissent, asserting that the prosecution failed to lay a sufficient

foundation for Lambatos’ testimony. 385 Ill. App. 3d at 371

(Cunningham, J., dissenting).

This court granted the defendant’s petition for leave to appeal.

210 Ill. 2d R. 315. The State has requested cross-relief concerning the

appellate court’s modification of the sentence.

ANALYSIS

Foundational Challenge

The defendant argues generally before this court that the trial

court committed reversible error when it permitted Lambatos to

testify that the defendant’s DNA profile matched the male DNA

profile of the semen in L.J.’s vaginal swabs. The defendant

specifically argues that the trial court erred in admitting Lambatos’

testimony regarding the match because a sufficient foundation was

not established. The defendant additionally argues that Lambatos’

testimony violated his sixth amendment confrontation right under

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.

1354 (2004). We begin with the foundational argument. We apply the

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abuse of discretion standard to the defendant’s foundational challenge

to the trial court’s admission of Lambatos’ expert testimony. People

v. Lovejoy, 235 Ill. 2d 97, 141 (2009); People v. Sutherland, 223 Ill.

2d 187, 281 (2006).

The defendant contends that the trial court should not have

permitted the State’s forensic analyst to testify because of a lack of

sufficient testimony that the Cellmark report was reliable. According

to the defendant, when expert testimony relies upon data obtained

from electronic or mechanical equipment, the proponent of the

testimony must offer foundational proof that the equipment was

calibrated and functioning properly at the time the data was presented

in order to establish that the expert’s testimony is reliable. The State

responds that Lambatos’ testimony that Cellmark’s testing was done

according to valid scientific theory and reliable methodology

provided a sound basis upon which Lambatos could formulate her

opinion. Therefore, the State asserts that it was not obliged to present

additional testimony regarding the calibration and functioning of

Cellmark’s equipment to admit Lambatos’ expert opinion pursuant to

Wilson v. Clark, 84 Ill. 2d 186 (1981). We agree with the State.

In Wilson v. Clark, this court adopted Rules 703 and 705 of the

Federal Rules of Evidence concerning an expert’s testimony at trial.

Wilson, 84 Ill. 2d at 196. Former Rule 703 states in part:

“The facts or data in the particular case upon which an

expert bases an opinion or inference may be those perceived

by or made known to the expert at or before the hearing. If of

a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence in order for the

opinion or inference to be admitted.” Fed. R. Evid. 703

(amended 2000).

The court in Wilson noted that, in a trial context, “[b]oth Federal and

State courts have interpreted Federal Rule 703 to allow opinions

based on facts not in evidence.” Wilson, 84 Ill. 2d at 193. Rule 705

states:

“The expert may testify in terms of opinion or inference

and give reasons therefor without first testifying to the

underlying facts or data, unless the court requires otherwise.

The expert may in any event be required to disclose the

underlying facts or data on cross-examination.” Fed. R. Evid.

705.

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Following Rule 705, we held in Wilson that, at trial, “an expert may

give an opinion without disclosing the facts underlying that opinion.”

Wilson, 84 Ill. 2d at 194. “Under Rule 705 the burden is placed upon

the adverse party during cross-examination to elicit the facts

underlying the expert opinion.” Wilson, 84 Ill. 2d at 194. Thus, an

expert testifying at trial may offer an opinion based on facts not in

evidence, and the expert is not required on direct examination to

disclose the facts underlying the expert’s opinion. Robidoux v.

Oliphant, 201 Ill. 2d 324, 334 (2002).

This court applied Wilson v. Clark to DNA evidence in People v.

Sutherland, 223 Ill. 2d 187 (2006). There, the defendant filed a

motion during trial to bar testimony from Terry Melton, the president

of Mitotyping Technologies, concerning human mitochondrial DNA

(mtDNA). Melton did not complete the actual laboratory “bench

work” on the evidence. Sutherland, 223 Ill. 2d at 281. The defendant

argued that, without the lab technician’s testimony, Melton’s

testimony regarding the mtDNA results was improper. We rejected

that argument, holding that it was enough that Melton relied upon

data reasonably relied upon by other experts in her field. Sutherland,

223 Ill. 2d at 282.

Here, the trial court correctly denied defense counsel’s objection

to the foundation for Lambatos’ expert opinion. It is undisputed that

Lambatos was qualified as an expert in forensic biology and DNA

analysis; Lambatos testified that it is the commonly accepted practice

in the scientific community for a forensic DNA analyst to rely on the

work of other analysts to complete her own work; and Lambatos

based her opinion on information reasonably relied upon by experts

in her field.

As in Sutherland, Lambatos testified that Cellmark’s work on the

vaginal swabs in this case and the results of the PCR analysis

conducted by Kooi are the types of data reasonably relied upon by

experts in her field. Lambatos testified that, because Cellmark was an

accredited laboratory, calibrations, internal proficiencies, and controls

had to be in place for the DNA analysis to be completed in this case.

These internal controls were, according to Lambatos’ testimony, ones

that she personally developed. Lambatos herself reviewed Cellmark’s

data, including the electropherogram, and did not have any question

about the match. Rather, she used her own expertise to compare the

two profiles before her. She also did not observe any problems in the

chain of custody or any signs of contamination or degradation of the

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evidence. Lambatos ultimately agreed with Cellmark’s results

regarding the male DNA profile, and then made her own visual and

interpretive comparisons of the peaks on the electropherogram and

the table of alleles to conclude there was a match to the defendant’s

genetic profile. See P. Gianelli & A. Imwinkelreid, Scientific

Evidence §18.04(b), at 54 (4th ed. 2009) (“in STR testing, the analyst

can visually compare the two electropherograms or rely on a

computerized comparison”).

We also reject the defendant’s specific complaint that there was

no testimony that the instruments used by Cellmark were calibrated

and functioning properly. The defendant principally relies on People

v. Raney, 324 Ill. App. 3d 703 (2001). Raney held that where the

expert testimony is based upon an electronic or mechanical device,

the expert must provide some foundational proof that the device was

functioning properly at the time it was used. Raney, 324 Ill. App. 3d

at 710. The defendant there argued that the State failed to establish a

proper foundation for the admission of scientific results from the gas

chromotography mass spectrometer (GCMS) machine. The court

agreed, finding that the record contained no evidence regarding

whether the GCMS machine was functioning properly at the time it

was used to analyze the substance. Further, the Raney court stated an

expert should be able to explain how the GCMS machine was

calibrated or why she knew the results were accurate. Raney, 324 Ill.

App. 3d at 710, citing People v. Bynum, 257 Ill. App. 3d 502 (1994).

Finding a lack of such an explanation, the court concluded that the

State failed to prove the defendant guilty beyond a reasonable doubt

because of the lack of foundation. Raney, 324 Ill. App. 3d at 711. The

Raney court acknowledged, however, that “[i]t may not be feasible

for each expert to personally test the instrument relied upon for

purposes of determining what is a suspected controlled substance.”

Raney, 324 Ill. App. 3d at 710.

We find that the testing of narcotics using a GCMS machine is

not comparable to the scientific process at issue in this case. At the

defendant’s bench trial, Lambatos did not merely regurgitate results

generated by a machine, as the witness in Raney did. Lambatos

conducted an independent evaluation of data related to samples of

genetic material, including items processed at both Cellmark and the

ISP Crime Lab. Lambatos used her expertise and professional

judgment to compare the DNA profiles. Her examination of the

different alleles from the blood sample and from the semen sample

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indicated a match with the defendant. She also determined the

statistical probability of the match by examining the alleles and

entering them into a frequency database to determine how common

they are in the general population. Further, this case is distinguishable

from Raney because Lambatos maintained that Cellmark necessarily

met the threshold of proper DNA analysis because Cellmark was an

accredited laboratory and followed guidelines that she had personally

developed. We therefore do not accept the defendant’s invitation to

broadly interpret Raney to find an insufficient foundation where an

analyst merely relies upon data obtained from electronic or

mechanical equipment.

Finally, under Wilson, the burden is placed upon the adverse party

during cross-examination to elicit facts underlying the expert opinion.

Wilson, 84 Ill. 2d at 194, citing Fed. R. Evid. 705. The record reveals

substantial cross-examination of Lambatos’ comparison of the DNA

profile from the database to the DNA profile from the sexual assault

kit. The record also reveals that the trial court, sitting as a fact finder,

appropriately weighed the testimony. It stated:

“The DNA expert that testified, the last witness, was in my

view the best DNA witness I have ever heard. Under detail

[sic], lengthy complex cross-examination by the defense on

every single part of her report she explains, she told what was

the basis of her opinion, she was an outstanding witness in

every respect. There is the issue of she didn’t do the actual

test. The testing is farmed out to other labs. Some did the

testing, some are an accredited lab. That was part of the

playback you might say of the Illinois state police forensic

division at that time, and I agree with the State that there is no

misidentification here. This is a match, this is 1 in 8.7

quadrillion, 50 times the population for the last 2000 years.

It’s an absolute match.”

Accordingly, the issue of Lambatos’ reliance on Cellmark’s report

went to the weight of her opinion and not its admissibility. See

Melendez-Diaz v. Massachusetts, 557 U.S. ___, ___ n.1, 174 L. Ed.

2d 314, 322 n.1, 129 S. Ct. 2527, 2532 n.1 (2009) (stating that it was

not the case that “anyone whose testimony may be relevant in

establishing the chain of custody, authenticity of the sample, or

accuracy of the testing device, must appear in person as part of the

prosecution’s case”). The trial court assessed the weight of Lambatos’

testimony and found it convincing.

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We therefore find that the trial court did not abuse its discretion

in finding a sufficient foundation for Lambatos’ testimony and

therefore turn to the defendant’s Crawford argument.

Sixth Amendment

The trial court rejected the defense objection that his sixth

amendment right was violated by Lambatos’ testimony concerning

Cellmark’s report. The appellate court affirmed this decision, finding

that the complained-of statements regarding Cellmark’s report by

Lambatos were not used for the truth of the matter asserted and

therefore the sixth amendment was not implicated. The defendant’s

claim that his sixth amendment confrontation right was violated

involves a question of law, which we review de novo. Lovejoy, 235

Ill. 2d at 141-42.

The sixth amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be confronted

with the witnesses against him.” U.S. Const., amend. VI. This part of

the sixth amendment is called the confrontation clause and applies to

the states through the fourteenth amendment. People v. Stechly, 225

Ill. 2d 246, 264 (2007). In Crawford v. Washington, 541 U.S. 36, 158

L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the United States Supreme

Court held that the sixth amendment’s “primary object” is with

“testimonial hearsay.” Crawford, 541 U.S. at 53, 158 L. Ed. 2d at

194, 124 S. Ct. at 1365. Accordingly, “[t]estimonial statements of

witnesses absent from trial have been admitted only where the

declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Crawford, 541 U.S. at 59, 158 L. Ed.

2d at 197, 124 S. Ct. at 1369. The Supreme Court added an explicit

logical corollary to this statement by pointing out, in a footnote, that

the confrontation clause does not bar the admission of testimonial

statements that are admitted for purposes other than proving the truth

of the matter asserted. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at

197 n.9, 124 S. Ct. at 1369 n.9, citing Tennessee v. Street, 471 U.S.

409, 414, 85 L. Ed. 2d 425, 431, 105 S. Ct. 2078, 2081-82 (1985); see

also Lovejoy, 235 Ill. 2d at 142. Stated another way, we need only

consider whether a statement was testimonial if the statements at

issue were, in fact, hearsay statements offered to prove the truth of the

matter asserted. Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197

n.9, 124 S. Ct. at 1369 n.9; see also Lovejoy, 235 Ill. 2d at 142;

People v. Johnson, 389 Ill. App. 3d 618, 631-32 (2009); People v.

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Melchor, 226 Ill. 2d 24, 34-35 (2007) (vacating appellate court

judgment and remanding with instructions to consider the hearsay

exception first before proceeding to the sixth amendment issue).

The hearsay rule generally prohibits the introduction of an out-of-

court statement offered to prove the truth of the matter asserted

therein. Lovejoy, 235 Ill. 2d at 145; People v. Tenney, 205 Ill. 2d 411,

432-33 (2002). Underlying facts and data, however, may be disclosed

by an expert, not for the truth of the matter asserted, but for the

purpose of explaining the basis for his opinion. Lovejoy, 235 Ill. 2d

at 143. Moreover, it is well established that an expert may testify

about the findings and conclusions of a nontestifying expert that he

used in forming his opinions. Lovejoy, 235 Ill. 2d at 143.

The defendant argues that the State introduced the Cellmark

report to establish the truth of the matter asserted and it is therefore

hearsay. Without Cellmark’s report, according to the defendant,

Lambatos could not have given her testimony that the defendant’s

DNA matched the profile deduced by Cellmark. The State counters

that Lambatos testified about the Cellmark tests only to explain how

she formed her own opinion. Therefore, the only statement that the

prosecution offered for the truth of the matter asserted was Lambatos’

own opinion. According to the State, presentation of the person who

prepared the DNA profile at Cellmark was not necessary for

confrontation purposes. We agree with the State.

This court has long held that prohibitions against the admission

of hearsay do not apply when an expert testifies to underlying facts

and data, not admitted into evidence, for the purpose of explaining the

basis of his opinion. Lovejoy, 235 Ill. 2d at 142. In Lovejoy, a medical

examiner testified that another toxicologist detected six different

types of drugs in the victim’s body after conducting blood tests,

indicating that poisoning caused the victim’s death. Lovejoy, 235 Ill.

2d at 141. The medical examiner testified that he was trained in

toxicology interpretation and that the toxicology report showed lethal

amounts of several medications in the victim’s blood. Lovejoy, 235

Ill. 2d at 141. He explained how the toxicology report added to his

own physical observations during the autopsy and that it aided him in

determining the cause of death. Lovejoy, 235 Ill. 2d at 144. Following

Wilson v. Clark and its progeny, we noted that experts may not only

consider the reports commonly relied upon by experts in their

particular field, but also to testify to the contents of the underlying

records. Lovejoy, 235 Ill. 2d at 143, citing Wilson v. Clark, 84 Ill. 2d

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186 (1981), People v. Pasch, 152 Ill. 2d 133 (1992). Quoting People

v. Pasch, we explained:

“ ‘While the contents of reports relied upon by experts

would clearly be inadmissible as hearsay if offered for the

truth of the matter asserted, an expert may disclose the

underlying facts and conclusions for the limited purpose of

explaining the basis for his opinion. [Citation.] By allowing

an expert to reveal the information for this purpose alone, it

will undoubtedly aid the jury in assessing the value of his

opinion.’ ” Lovejoy, 235 Ill. 2d at 143, quoting Pasch, 152 Ill.

2d at 176.3

Accordingly, we held that the medical examiner’s testimony repeating

the nontestifying analyst’s conclusions was not admitted for the truth

of the matter asserted, but rather was introduced “to show the jury the

steps [the examiner] took prior to rendering an expert opinion in this

case.” Lovejoy, 235 Ill. 2d at 144. Consequently, there was no

confrontation clause violation. Lovejoy, 235 Ill. 2d at 145.

Our appellate court addressed a similar factual situation in People

v. Johnson, 394 Ill. App. 3d 1027 (2009). In Johnson, the defendant

challenged an expert’s testimony regarding DNA test results, arguing

that he had no opportunity to cross-examine the analysts who

conducted the testing. The court observed that experts are permitted

to disclose underlying facts and data to the jury in order to explain the

basis for their opinions. It concluded that the State offered the DNA

report at issue as part of the basis for the expert opinion and no

confrontation violation occurred. 394 Ill. App. 3d at 1034.

Like Lovejoy and Johnson, Lambatos’ testimony about

Cellmark’s report was not admitted for the truth of the matter

asserted. The State introduced this testimony, rather, to show the

underlying facts and data Lambatos used before rendering an expert

opinion in this case. Lovejoy, 235 Ill. 2d at 144. The evidence against

the defendant was Lambatos’ opinion, not Cellmark’s report, and the

testimony was introduced live on the witness stand. Indeed, the report

was not admitted into evidence at all. Rather, Lambatos testified to

3

As we noted in Lovejoy, Federal Rule of Evidence 703, upon which the

Wilson opinion was based, has been amended. Illinois has not adopted the

amended version of Rule 703, and the defendant does not ask us to consider

the amended version of the rule in this case.

-14-

her conclusion based upon her own subjective judgment about the

comparison of the Cellmark report with the existing ISP profile. Cf.

P. Gianelli & A. Imwinkelreid, Scientific Evidence §18.04(b), at 57

(4th ed. 2007) (“when technical problems materialize, it can be very

difficult to interpret the electropherograms. *** Thus, there is room

for subjective judgment”).

For instance, at trial, the defense attorney questioned her if she

confused the defendant’s DNA with L.J.’s DNA. He asked Lambatos

if the alleles were not more consistent with the victim than the

defendant at several loci. When asked about a specific locus called

“T-POX,” Lambatos responded:

“In my opinion with this profile, it is a mixture so when we

have a mixture you are looking at the profile as a whole ***

and it’s important to note that the alleles at each locus on a

DNA molecule that we look at are very common. It is not

uncommon for you and I to have the same alleles at a locus or

you and I to have the same alleles. The power of this DNA

comes with looking at all 13 areas of the DNA because it’s

that uniqueness looking at all 13 that’s going to give us

numbers. And here like a T-POX and in the other two that

you mentioned, there are only two alleles and like I say in my

opinion there are only two people in this profile and it just

may so happen that they share an 8 or that they share an 11 or

it may so happen that she is an 8 and 11 and he is just an 11,

11, or he is an 8, 11 and she is an 8, 8. There’s only certain

possibilities that can be attributed at each locus.”

After defense counsel stated that Lambatos’ interpretation could have

erred because of a degraded sample, she stated:

“Yes, it’s possible to have a degraded sample but if the

sample was degraded, that would be known by our earlier

examination of the evidence [by Hapack]. We determine the

quantity and the DNA that we have and the quality of the

DNA and also after we look at the electropherograms, you can

see the degradation, their specific patterns, and the data looks

a certain way when it is degraded. The peaks aren’t as

defined. They slope off missing here and there. Different

things happen with degradation, and I didn’t see any evidence

of degradation in this particular fraction.”

The defendant’s suggestion that Lambatos was merely a “conduit”

for Cellmark’s report and that the report was entirely dispositive of

-15-

Lambatos’ opinion, and thus hearsay, is not compelling. Her

testimony consisted of her expert comparison of the DNA profile in

the ISP database with the DNA profile from the kit prepared by

Cellmark. She used her own expertise to compare the two profiles

before her: the blood sample prepared by Kooi and the semen sample

prepared by Cellmark. She also did not observe any problems in the

chain of custody or any signs of contamination or degradation of the

evidence. Lambatos ultimately agreed with Cellmark’s results

regarding the male DNA profile. But Lambatos additionally made her

own visual and interpretive comparisons of the peaks on the

electropherogram and the table of alleles to make a conclusion on the

critical issue: that there was a match to the defendant’s genetic

profile. Accordingly, Cellmark’s report was not used for the truth of

the matter asserted and was not hearsay.

The defendant further asserts that the instant matter is “directly

analogous” to the United States Supreme Court’s recent holding of

Melendez-Diaz v. Massachusetts, 557 U.S. ___, 174 L. Ed. 2d 314,

129 S. Ct. 2527 (2009). In Melendez-Diaz, the Court considered

whether a certification by a forensic lab analyst as to the nature and

weight of a controlled substance was a testimonial statement, and thus

its admission in lieu of live testimony by the analyst violated the sixth

amendment right to confrontation. The defendant in that case, Luis

Melendez-Diaz, was charged with cocaine trafficking in an amount

between 14 and 28 grams. Melendez-Diaz, 557 U.S. at ___, 174 L.

Ed. 2d at 320, 129 S. Ct. at 2530. At trial, the prosecution placed into

evidence white plastic bags containing a substance that resembled

cocaine. Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 319-20,

129 S. Ct. at 2530. It also submitted three “certificates of analysis”

showing the results of forensic analysis performed on the seized

substances. The certificates reported the weight of the substances and

stated that the bags “ ‘[have] been examined with the following

results: The substance was found to contain: Cocaine.’ ” Melendez-

Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. The

certificates were sworn to before a notary public by analysts at the

State Laboratory Institute of the Massachusetts Department of Public

Health as required by Massachusetts law. Melendez-Diaz, 557 U.S.

at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2531. Massachusetts law

permitted the use of such affidavits to provide prima facie evidence

of the analyzed substance’s composition, quality and net weight.

Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at

2531.

-16-

In a 5-4 decision, the Court held that, following Crawford, the

analyst’s certificates “were testimonial statements and the analysts

were ‘witnesses’ for purposes of the Sixth Amendment. Absent a

showing that the analysts were unavailable to testify at trial and that

petitioner had a prior opportunity to cross-examine them, petitioner

was entitled to “ ‘ “be confronted with” ’ the analysts at trial.”

Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 322, 129 S. Ct. at

2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S.

Ct. at 1365. The Court found the “case involves little more than the

application of our holding in Crawford.” Melendez-Diaz, 557 U.S. at

___, 174 L. Ed. 2d at 332, 129 S. Ct. at 2542, citing Crawford, 541

U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354.4

The Court based its holding on two rationales derived from

Crawford. First, the forensic analyst’s certificates were within the

“core class of testimonial statements” in Crawford. Because the

critical issue was whether the substance was cocaine, the Supreme

Court found that “[t]he ‘certificates’ are functionally identical to live,

in-court testimony, doing ‘precisely what a witness does on direct

examination.’ ” Melendez-Diaz, 557 U.S. at ___, 314 L. Ed. 2d at

321, 129 S. Ct. at 2532, quoting Davis v. Washington, 547 U.S. 813,

830, 165 L. Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). Second,

the Court stated, “not only were the affidavits ‘ “made under

circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial,” ’

[citation] but under Massachusetts law the sole purpose of the

affidavits was to provide ‘prima facie evidence of the composition,

quality, and the net weight’ of the analyzed substance.” (Emphasis in

original.) Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321, 129

S. Ct. at 2532, quoting Mass. Gen. Laws, ch. 111, §13.

The majority explicitly rejected the suggestion that the

prosecutors were required to call each person involved in the chain of

custody to the witness stand. Responding to the dissent in a footnote,

the majority stated:

4

Justice Thomas, in providing the fifth vote, “join[ed] the Court’s opinion

in this case because the documents at issue in this case ‘are quite plainly

affidavits,’ [citation]. As such, they ‘fall within the core class of

testimonial statements’ governed by the Confrontation Clause. [Citation.]”

Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 333, 129 S. Ct. at 2543

(Thomas, J., concurring).

-17-

“[We] do not hold, and it is not the case, that anyone

whose testimony may be relevant in establishing the chain of

custody, authenticity of the sample, or accuracy of the testing

device, must appear in person as part of the prosecution’s

case. *** ‘[G]aps in the chain [of custody] normally go to the

weight of the evidence rather than its admissibility.’ It is up

to the prosecution to decide what steps in the chain of custody

are so crucial as to require evidence; but what testimony is

introduced must (if the defendant objects) be introduced live.

Additionally, documents prepared in the regular course of

equipment maintenance may well qualify as nontestimonial

records.” (Emphasis omitted.) Melendez-Diaz, 557 U.S. at

___ n.1, 174 L. Ed. 2d at 322 n.1, 129 S. Ct. at 2532 n.1.

Accordingly, the Court in Melendez-Diaz held that the defendant’s

confrontation clause right had been violated.

We find that Melendez-Diaz does not change our determination.

In Melendez-Diaz, the disputed evidence was a “bare-bones

statement” that the substance was cocaine, and the defendant “did not

know what tests the analysts performed, whether those tests were

routine, and whether interpreting their results required the exercise of

judgment or the use of skills that the analysts may not have

possessed.” Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 327,

129 S. Ct. at 2537. Here, Lambatos testified about her own expertise,

judgment, and skill at interpretation of the specific alleles at the 13

loci, and confirmed her general knowledge of the protocols and

procedures of Cellmark. Lambatos also conducted her own statistical

analysis of the DNA match. She did not simply read to the judge,

sitting as a fact finder, from Cellmark’s report. This is in contrast to

Cellmark’s report, which did not include any comparative analysis of

the electropherograms or DNA profiles and was not introduced into

evidence. Cellmark’s electropherogram, rather, was part of the

process used by Lambatos in rendering her opinion concluding that

the profiles matched. Thus, Lambatos’ opinion is categorically

different from the certificate in Melendez-Diaz.

In sum, the State did not offer Lambatos’ testimony regarding the

Cellmark report for the truth of the matter asserted and this testimony

did not constitute “hearsay.” Thus, the trial court and appellate court

properly concluded that Crawford considerations did not apply here.

Lambatos disclosed the underlying facts from Cellmark’s report for

the limited purpose of explaining the basis for her opinion on the

-18-

critical issue concerning whether there was a DNA match between the

defendant’s blood sample and the semen sample recovered from L.J.

By allowing the expert to reveal the information for this purpose

alone, it undoubtedly aided the judge, sitting as the factfinder, in

assessing the value of Lambatos’ opinion. Lovejoy, 235 Ill. 2d at 143,

quoting Pasch, 152 Ill. 2d at 176; see also Johnson, 394 Ill. App. 3d

at 1034 (“The Cellmark report was not offered to prove the truth of

its contents”). Finally, the record demonstrates that the gaps in the

chain of custody went to the “ ‘weight of the evidence rather than its

admissibility’ ” (Melendez-Diaz, 557 U.S. at ___ n.1, 174 L. Ed. 2d

at 322 n.1, 129 S. Ct. at 2532 n.1, quoting United States v. Lott, 854

F.2d 244, 250 (7th Cir. 1988)), and our review of the record shows

that Lambatos’ conclusion was tested “in the crucible of

cross-examination.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199,

124 S. Ct. at 1370; see also Delaware v. Fensterer, 474 U.S. 15, 20,

88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985) (the sixth amendment

“guarantees an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent,

the defense might wish”(emphasis in original)).

Sentencing

We note that the defendant was subject to two mandatory natural

life sentences for his aggravated criminal sexual assault convictions

and a concurrent term of 15 years for the aggravated robbery

conviction. The defendant was also convicted of aggravated

kidnapping, for which the trial court imposed an extended-term

sentence of 60 years in prison. The trial court ordered that the 60-year

sentence was to run consecutively to the end of his natural life

sentences. The appellate court vacated that portion of the circuit

court’s order imposing the consecutive sentence, and instead

modified the defendant’s sentence to impose concurrent sentences for

those convictions. 385 Ill. App. 3d at 371. This court recently held in

People v. Petrenko, No. 107503 (June 4, 2010), that a sentence

consecutive to a natural-life sentence was proper. We therefore

reverse the appellate court on this issue and do not disturb the trial

court’s order.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court is

-19-

affirmed in part and reversed in part.

Appellate court judgment affirmed in part

and reversed in part.

JUSTICE FREEMAN, specially concurring:

I agree that defendant’s convictions and sentences must be

affirmed. With respect to defendant’s appeal in which he raises

several evidentiary challenges, I concur in the court’s judgment for

reasons other than those expressed in its opinion. With respect to the

State’s cross-appeal, I join in that portion of the opinion reversing the

appellate court’s modification of defendant’s sentence.

My concerns in this case are based on the lack of foundation for

Sandra Lambatos’ testimony. Lambatos was employed at the Illinois

State Police Crime Laboratory at the time defendant’s DNA was

connected to the sexual assault at issue. Lambatos testified that the

male DNA profile generated from the victim’s vaginal swabs

matched the DNA generated from a known sample of defendant’s

blood. Lambatos also testified that the statistical probabilities for such

a match were astronomical. The crux of defendant’s argument is that

Lambatos’ opinion was based on a DNA profile that was generated

by Cellmark Laboratory. Due to backlogs at the Illinois State Police

Lab at the time of the testing, that lab often sent blood and semen

samples to Cellmark, located in Maryland, in order for DNA material

to be extracted from the samples. Cellmark would then amplify the

extracted DNA material in order to produce a profile. The profile is

thereafter used to produce a chart for comparison purposes. As

defendant correctly notes, Lambatos did not conduct any of the

scientific procedures used at Cellmark to generate the male DNA

profile from the victim’s vaginal swabs and she had no personal

knowledge of any of the conditions at the lab when the profile was

generated.

The court dismisses defendant’s contentions based on Lambatos’

testimony that “because Cellmark was an accredited laboratory,

calibrations, internal proficiencies, and controls had to be in place for

the DNA analysis to be completed in this case.” Slip op. at 9. The

court concludes that because witnesses like Lambatos are permitted

-20-

in Illinois to give an opinion without disclosing the facts or data upon

which the expert bases her opinion, such testimony is sufficient. Slip

op. at 8. In other words, Lambatos’ foundational testimony was based

upon data reasonably relied upon by other experts in her field, and

defendant’s appellate concerns relate to the weight of the evidence,

not its admissibility. Slip op. at 8-9.

An expert may certainly base her opinion on information

reasonably relied upon by other experts in the field. See, e.g., Wilson

v. Clark, 84 Ill. 2d 186 (1981). But that was not what occurred here.

Strikingly absent from Lambatos’ testimony is any information about

Cellmark’s extraction and amplification processes in generating the

profile that was used to produce the data upon which she relied in her

making comparisons. Lambatos’ “testing” in this case consisted of

her own reading to match up the numbers generated on the computer

charts, which was derived from Cellmark’s underlying scientific

processes. What Lambatos failed to testify to during her examination

was what occurred at Cellmark beginning from when Cellmark

received the package containing the victim’s vaginal swabs and blood

sample to when Cellmark analysts performed the extraction and

amplification procedures. Instead, she speculated that because

Cellmark was accredited, “they would have to meet certain guidelines

to perform DNA analysis for the Illinois State Police so all those

calibrations and internal proficiencies and controls would have had

to have been in place for them to perform the DNA analysis.”

Lambatos’ testimony on this point is insufficient. First, with

respect to the fact of accreditation, Lambatos did not identify when

or by whom Cellmark received its accreditation. Whether a laboratory

is accredited is a fact that can be established without the need of an

expert witness. Here, Lambatos’ testimony does not establish that

Cellmark was accredited; rather, it was her opinion that the laboratory

was accredited at the time it ran the tests. Further, Lambatos did not

base her assumption that “certain guidelines *** would have had to

have been in place” on sources such as the report of another expert,

i.e., the written report of the technicians who generated the profile or

even the lab’s logbook at the time the profile was generated. See

United States v. Lawson, 653 F.2d 299, 301-02 (7th Cir. 1981)

(allowing testifying psychiatrist to base opinion under Rule 703 on

staff reports and defendant’s interviews with other physicians);

O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978)

(allowing physician expert to testify under Rule 703 as to the patient’s

-21-

version of other doctors’ opinion because expert had reports of two

doctors as well as a hospital report). Lambatos’ opinion regarding

whether Cellmark followed proper guidelines at the time the DNA

material was extracted and amplified was not based on anything other

than her rank speculation that it “had to have been done” solely

because Cellmark was an accredited lab.

While I do not believe that Lambatos is required to personally

verify the protocols used by Cellmark to generate the DNA profile

from the swab, she, at the very least, should be able to point to

something concrete in order to give her opinion as to what protocols

were used at the time the profile was generated. She did not. There

was no testimony on which protocols were used. In fact, Lambatos

admitted that Cellmark used procedures and standards that were

different from those used by her own employer, the Illinois State

Police Crime Laboratory. Although Lambatos stated that she

personally “helped develop line proficiency tests to be administered

to analysts at Cel[l]mark,” nothing in her testimony revealed that the

analysts who performed the DNA extraction and amplification in this

case had taken, let alone passed, the tests she had developed or that,

when the tests were run, they were run according to the standards

preferred by the Illinois State Police Lab.

The lack of any information regarding Cellmark’s generation of

the male DNA profile from the victim’s vaginal swabs contrasts

sharply with the testimony the State produced with respect to the

DNA profile generated from defendant’s blood sample by Karen

Kooi, upon which Lambatos also relied to read and match up the

numbers on her chart. Kooi, an employee of the Illinois State Police

Crime Lab at the time, testified as to the protocols she used to

generate the DNA profile taken from defendant’s blood.5 Kooi further

stated that she utilized “clean lab” techniques when she generated the

profile.

This case, therefore, differs from People v. Sutherland, 223 Ill. 3d

187 (2006), upon which the court primarily relies in reaching its

conclusion today. There, the witness in question was an employee of

the laboratory which did the DNA analysis, who not only testified at

trial, but who had also testified at the Frye hearing. Moreover, the

5

Kooi identified the national guidelines that the Illinois State Police

Crime Lab follows and testified that she followed the guidelines in this

case.

-22-

defendant had received from the State, pursuant to Rule 417(b),

extensive information including records reflecting compliance with

quality control guidelines. Sutherland, 223 Ill. 2d at 280-81. In fact,

even the defendant’s own DNA expert was able to testify from the

records produced that the lab’s results were “clean.” Sutherland, 223

Ill. 2d at 282. These facts render Sutherland distinguishable.

Two cases from our appellate court support my point regarding

foundation. In People v. Johnson, a panel of the First Division of the

First District held that a sufficient foundation was established where

the DNA expert, an actual employee of Cellmark, testified that

although she did not personally perform any of the testing used to

generate the male DNA profile from the sexual assault kit, she based

her opinion on records used in the ordinary course of business. People

v. Johnson, 389 Ill. App. 3d 618 (2009). In particular, the witness

relied on a written Cellmark report, which indicated that 10 Cellmark

analysts had been involved in the lab work in the case and that all the

methods used, conclusions and results reached were to a reasonable

degree of scientific certainty. Johnson, 389 Ill. App. 3d at 626-27.

Another witness, who like Lambatos was employed by Illinois State

Police, testified that he compared the Cellmark-generated male DNA

profile to the DNA panel he had generated from saliva obtained from

the defendant and concluded that they were a match. Like Lambatos,

he testified as to the statistical probabilities of the match. In holding

that an adequate foundation for Cellmark’s work had been established

for the Cellmark witness, the court found it significant that the

witness actually worked for Cellmark, which was the lab that

generated the DNA profile from the victim’s samples. Johnson, 389

Ill. App. 3d at 629-30. She also performed an independent review of

the work to make sure all of the procedures done at the lab were

followed correctly, which the court held was sufficient foundation

upon which to partially base her assessment and conclusion. Johnson,

389 Ill. App. 3d at 630. I note that the court stressed, in reaching its

conclusion, that the foundational testimony was stronger than that in

this case, specifically citing the Third Division’s opinion in this case.

Johnson, 389 Ill. App. 3d at 629.

Similarly, in People v. Johnson, 394 Ill. App. 3d 1027 (2009), a

panel from the Sixth Division of the First District held that a

sufficient foundation was established where the DNA expert, again

an actual employee of Cellmark, testified not only about the proper

procedures that were expected to be utilized at her lab, but that the

-23-

case file indicated that those procedures had been followed with

respect to the DNA profile in question. To reach this conclusion, the

witness relied on the records of other Cellmark employees, which

indicated that the proper procedures had been followed. Therefore,

although the witness did not perform any of the testing, her testimony

showed a sufficient foundation of Cellmark’s procedures and

specifications upon which to partially base her assessment and

conclusion. Johnson, 394 Ill. App. 3d at 1040. The court stressed that

the foundation in the case was stronger than that found sufficient by

the appellate court in this case.

Lambatos’ testimony is demonstrably different from the testimony

in either of the Johnson opinions. Lambatos’ direct testimony was

based on two documents offered into evidence by the State, which

consisted of two shipping manifests from FedEx. One manifest

showed that the victim’s vaginal swabs and blood standards were sent

to Cellmark from the Illinois State Police Crime Laboratory on

November 28, 2000, and were received by Cellmark on November

29, 2000. The second manifest showed that the victim’s samples were

“sent back from Celmark [sic]” on April 3, 2001, along with samples

from “other cases” that had nothing to do with the present case.

Lambatos testified that she relied on these two pieces of evidence

when she did the work in this case. I submit that these shipping

manifests are not the kind of “facts or data” contemplated by this

court in Wilson. Unlike the witnesses in the Johnson cases, Lambatos

was not a Cellmark employee. She did not rely on the detailed type of

reports that those witnesses relied upon. She did not know who

performed the tests at Cellmark nor could she testify as to what

protocols, if any, they followed. The shipping manifests, which are

not enough to even establish a proper chain of custody once the

samples reached their destination at Cellmark, certainly cannot

establish whether a laboratory was “clean” or whether Lambatos’

protocols were actually followed.

By accepting Lambatos’ assumption that because Cellmark was

accredited, the protocols she had personally developed for the lab to

use were, in fact, used to generate the DNA profile, the court errs in

finding that an adequate foundation was laid. The court relies on the

fact that Lambatos used her expertise and professional judgment to

compare the DNA profiles in this case. But the problem with this is

that there was no foundation established for the DNA profile

generated by Cellmark. Lambatos’ opinion that the DNA profile

-24-

generated there matched defendant’s DNA profile does not change

that fact. It is certainly the law that alleged infirmities in the

performance of a test usually go to the weight of the evidence, not to

its admissibility. Slip op. at 11. Courts should not automatically

exclude scientific evidence whenever a forensic analyst deviates from

a correct test protocol in minor respects; instead, the deviation would

have to materially affect the outcome in order to warrant exclusion.

E. Imwinkelried, The Debate in the DNA Cases Over the Foundation

for the Admission of Scientific Evidence: The Importance of Human

Error as a Cause of Forensic Misanalysis, 69 Wash. U.L.Q. 19, 46

(1991). Here, however, Lambatos could not offer any testimony to

establish any protocol. Contrary to what the court rests its analysis

upon, there is simply no foundational evidence to “weigh.”

Last, and of equal importance, the court today implies that the

scientific process involved in DNA analysis is “not comparable” to

narcotics Gas Chromotography Mass Spectrometer (GCMS) testing

because Lambatos did not “regurgitate” the results from Cellmark as

experts do with respect to GCMS test results. Slip op. at 10.

Lambatos took on faith the DNA profile generated by Cellmark from

the victim’s samples, assuming that because the lab was accredited all

quality controls were in place when the profile was created. This

seems no different from how expert witnesses in drug cases view the

results from the GSMS machine. Unfortunately, it has been well-

documented in DNA cases that “[q]uality control and quality

assurances procedures that are followed religiously in some labs are

ignored or followed intermittently in others.” W. Thompson, Tarnish

on the “Gold Standard”: Understanding Recent Problems in

Forensic DNA Testing, 30 Champion 10, 11-12 (January-February

2006). The failure to employ quality control and quality assurance

procedures can result in DNA matches in criminal cases that are

wrong because of sample contamination or misconduct on the part of

the technician. 30 Champion at 11-12. This explains why an adequate

foundation is as essential in DNA cases as it is in drug cases. Given

the impact a DNA match has on the trier of fact, courts must be

vigilant in ensuring that DNA evidence is admitted with proper

foundation. This is particularly so in jury cases where lay people

might not be able to appreciate arguments which go to weight once

they hear of a match that is one in a billion.

Based on the foregoing, I would hold that the foundation for

Lambatos’ testimony was insufficient, and the circuit court abused its

-25-

discretion in admitting it. Based on my resolution of defendant’s

foundational challenge, I need not reach defendant’s sixth amendment

confrontation clause argument.

Although I believe the circuit court abused its discretion by

admitting Lambatos’ testimony without proper foundation, the error

does not require a new trial. The testimony of a single witness, if it is

positive and the witness credible, is sufficient to convict a defendant.

People v. Smith, 185 Ill. 2d 532, 541 (1999). In this case, the trial

judge specifically found defendant guilty on the basis of the victim’s

testimony, which he characterized as “highly credible.” The trial

judge also commented specifically on the strength of the victim’s

lineup identification and her in-court identification. The judge found

the victim to be “an outstanding witness” and believed her testimony

“a hundred percent.” These findings indicate to me that the error in

admitting Lambatos’ testimony was harmless. On that basis, I would

affirm the convictions.

JUSTICE BURKE, concurring in part and dissenting in part:

I join the part of Justice Freeman’s special concurrence that

concludes that the circuit court abused its discretion in admitting

Lambatos’ testimony. I write separately because I disagree with the

majority’s resolution of the consecutive-sentencing issue. The

defendant was sentenced to two concurrent natural-life terms for the

aggravated criminal sexual assault counts and a concurrent 15-year

term for aggravated robbery. Defendant received an additional 60-

year prison term for aggravated kidnapping, to be served

consecutively to the natural-life terms. The appellate court held,

pursuant to our decision in People v. Palmer, 218 Ill. 2d 148 (2006),

that a term of years could not be served consecutively to a term of

natural life. Accordingly, the court vacated that portion of the circuit

court’s order imposing consecutive sentences and modified

defendant’s sentence to impose concurrent sentences. 385 Ill. App. 3d

at 371. The majority now reverses the appellate court. Relying on

People v. Petrenko, No. 107503 (June 4, 2010), which overruled

Palmer on this point, the majority in the case at bar has held that a

sentence consecutive to a natural-life sentence was proper. For the

same reasons set forth in my partial concurrence and partial dissent

in Petrenko, I do not believe that good cause exists to overrule

Palmer. Therefore, I would affirm the appellate court below on the

-26-

consecutive-sentencing issue.

-27-