sole vaginal swab taken from deceased victim was destroyed during unilateral testing by State and therefore the swab was unavailable for independent analysis
How later courts described this case
- sole vaginal swab taken from deceased victim was destroyed during unilateral testing by State and therefore the swab was unavailable for independent analysis
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE McNAMARA, dissenting:
I respectfully dissent from the majority holding that prosecutorial remarks made during closing arguments constitute reversible errors. As I stated in my previous dissent, I do not believe that any of the claimed errors warrant reversal, and I would affirm defendant’s conviction. People v. Linscott (1985), 135 Ill. App. 3d 773, 781 , 482 N.E.2d 403 (McNamara, J., dissenting), reversed (1986), 114 Ill. 2d 340 , 500 N.E.2d 420 .
Initially, I summarize the points which I find require my dissent.
I believe the prosecutor’s comments that the victim was raped by a nonsecretor were based on reasonable inferences which could be drawn from the evidence of blood comparison tests performed on the semen, and I find that the majority inaccurately depicts the prejudice of these comments by quoting them side by side when in fact they are separated by 63 pages in the trial transcript’s 83 pages containing the parties’ closing arguments.
I believe the prosecutor’s arguments that the term “consistent” was the equivalent of the terms “not dissimilar,” “identical,” and “matching” were not impermissible statements regarding the hair comparison evidence, especially in light of the fact that the supreme court and both experts used some of the same terms. In addition, the majority deletes an important statement immediately preceding the relevant quotation.
I would also find that the prosecutor’s argument regarding the mathematical probabilities of the hair comparison was not reversible error, and that the majority distorts the entire issue by devoting a substantial part of its opinion to the three complained-of sentences uttered during the lengthy closing arguments and by offering as support an extensive analysis of three technical forensic journal articles which were not in evidence nor cited by the witnesses.
I also disagree with the holding that the vaginal swab should not be admitted during the new trial.
In closing arguments, a prosecutor may base argument on the evidence presented or reasonable inferences drawn from that evidence. (People v. Morrison (1985), 137 Ill. App. 3d 171 , 484 N.E.2d 329 .) A prosecutor is allowed a great deal of latitude during closing argument (People v. Hine (1980), 88 Ill. App. 3d 671 , 410 N.E.2d 1017 ), and the trial court’s determination of the propriety of closing argument will generally be followed on review absent a clear abuse of discretion (People v. Smothers (1973), 55 Ill. 2d 172 , 302 N.E.2d 324 ).
The majority first quotes the prosecutor’s argument that “Karen was raped by a non-secretor ***.” The majority finds that the prosecutor erred both in stating that the victim was raped, and in stating that the semen belonged to a nonsecretor.
As to the first point, the majority asserts that there was “no such evidence or testimony from anyone” that the victim was raped. (159 Ill. App. 3d at 75.) To reach this conclusion, it relies only upon Tahir’s testimony that it was impossible to determine the age of the semen found in the victim. Without explanation, the majority ignores the most obvious circumstantial evidence which might permit a finding that the victim was raped.
The condition of a victim’s clothing and laboratory findings of semen are relevant evidence in a rape case and may constitute incriminating circumstances. (See People v. Pearson (1972), 52 Ill. 2d 260 , 287 N.E.2d 715 ; People v. Kirkwood (1959), 17 Ill. 2d 23 , 160 N.E.2d 766 , cert. denied (1960), 363 U.S. 847 , 4 L. Ed. 2d 1730 , 80 S. Ct. 1623 .) In the present case, photographs introduced into evidence depicted the victim’s body lying face down on the floor with the victim's legs spread widely apart. She was naked except for a nightgown pulled up around her shoulders. In addition, a vaginal smear revealed the presence of seminal material. On the basis of the evidence, then, it is not improper for the prosecutor to ask the jury to infer that the victim was raped. The majority undermines its own reasoning by stating that it was “possible” that the victim was not raped. (159 Ill. App. 3d at 75.) The evidence shows, however, that it was a fair inference to state that the victim was raped.
As to the second point, the majority cites the prosecutor’s arguments that “Karen was raped by a non-secretor and the defendant is a non-secretor. *** Seminal material. One fact it came from a non-secretor. Mr. Linscott is a non-secretor.” (159 Ill. App. 3d at 76.) I believe the majority errs in finding that these two brief comments, made during a lengthy trial, constitute reversible error. Furthermore, prosecutorial comments must be read in context. (People v. Diaz (1984) , 123 Ill. App. 3d 239 , 462 N.E.2d 770 .) The majority dramatizes and magnifies the effect of the prosecutor’s language by placing the two quotations next to each other when they are actually separated by 63 pages in the 83 pages of the transcript which contain the parties’ closing arguments. For several reasons, I do not agree that these isolated comments deprived defendant of a fair trial.
The majority erroneously states that the “made-up” evidence referred to in the quoted language actually indicates that the pool of possible assailants could be drawn “even from the entire population.” (159 Ill. App. 3d at 76.) A careful reading of the record reveals that the contrary is true. Tahir testified that sections of the male population definitely could be excluded, e.g., a secretor with a blood type of “AB.”
In addition, I cannot say the prosecutor’s comment that the semen “came from a non-secretor” is reversible error. (159 Ill. App. 3d at 76.) During closing arguments, both the prosecutor and defense counsel repeatedly referred to “consistency” evidence or argued to the jury that the tests failed to eliminate defendant. The evidence clearly supported these statements. The laboratory tests showed that the semen could be from either a nonsecretor or a secretor with the same blood type as the victim. The record, read as a whole, discloses no basis for a finding that the jury might believe the laboratory evidence definitively determined whether the semen was from a secretor or nonsecretor. A prosecutor may comment on the evidence, even if contradictory evidence was presented. (People v. Gacy (1984), 103 Ill. 2d 1 , 468 N.E.2d 1171 , cert. denied (1985), 470 U.S. 1037 , 84 L. Ed. 2d 799 , 105 S. Ct. 1410 .) The prosecutorial comments at issue here go to the weight of the State’s evidence and arguments, not to the propriety of the arguments. (See People v. Gacy (1984), 103 Ill. 2d 1 , 468 N.E.2d 1171 .) The jury, as the trier of fact, is the proper forum to resolve factual questions such as whether the evidence supported inferences on which the prosecutor commented in closing arguments. See People v. Collins (1985), 106 Ill. 2d 237 , 478 N.E.2d 267 , cert. denied (1985), 474 U.S. 935 , 88 L. Ed. 2d 274 , 106 S. Ct. 267 .
Furthermore, I would find that even if the prosecutorial comments regarding the blood comparisons were improper, the remarks did not substantively prejudice defendant. (See People v. Baptist (1979), 76 Ill. 2d 19 , 389 N.E.2d 1200 .) While the evidence offered some support for the rape charge, the jury found defendant not guilty of rape. The testimony about semen and blood comparisons might have offered some support regarding the issue of whether defendant was even present in the victim’s apartment, but as our supreme court stated, the “State’s primary evidence at trial was defendant’s own statements.” (People v. Linscott (1986), 114 Ill. 2d 340, 344 , 500 N.E.2d 420 .) No substantial prejudice occurred.
After a thorough review of the record, I conclude that in regard to thé blood comparisons, the majority’s strong language accusing the prosecutor of lying is unsupported by the record. The majority incorrectly finds the “prosecutor just simply made up that piece of ‘evidence,’ ” i.e., that the semen was from a nonsecretor. (159 Ill. App. 3d at 76.) It mistakenly characterizes the prosecutor’s argument regarding the blood comparisons as a “false and a stark distortion of the possibility that the defendant was the assailant.” (159 Ill. App. 3d at 76.) I believe the majority’s comments are inappropriate, as the record reveals no evidence of fabrication. Instead, the record shows only an advocate’s forceful argument in an adversarial setting.
The majority next challenges two of the prosecutor’s comments regarding comparisons of hair samples found in the victim’s apartment, and samples taken from defendant. In one remark, the prosecutor stated that there was “[pjubic hair in the woman’s crotch matching Mr. Linscott.” I do not agree that the use of the word “matching” requires reversal. Siegesmund also used the terms “match” and “mismatch.” Notably, the supreme court used the same word when it stated that the “matching of defendant’s hairs to those found at the crime scene, while not conclusive in itself, nonetheless provides additional support to the jury’s verdict.” (People v. Linscott (1986), 114 Ill. 2d 340, 349 , 500 N.E.2d 420 .) I would find no error here.
The prosecutor also argued that laypersons equate the terms “nothing dissimilar” and “identical” with the scientist’s terms “consistent.” While this argument may lack sufficient clarity to substantially aid a jury, I find no reversible error. This is particularly true in light of the fact that the majority places two quotations side by side when they are actually separated by 39 pages. Furthermore, the majority takes the language regarding “identical” hair samples out of context by deleting the remark which prefaces the quotation.
“What does he [Tahir] mean by consistent. He means there is nothing dissimilar.”
This remark accurately restates Tahir’s testimony. Moreover, I cannot find defendant was substantially prejudiced by the argument that “consistent” means “identical” when the term “consistent” was frequently used by Tahir and by both attorneys. Tahir testified that some of the hairs found near the victim were “consistent” with defendant’s hairs. The prosecutor asked Tahir to define the term “consistent.” Tahir stated that if he looks “at both samples at the same time and if [sic] identifying any differences between those two samples there is no dissimilarity, that means it is a [sic] consistent.” If Tbhir found “so much dissimilarity” between hairs, he would not regard them as consistent. On redirect examination, the prosecutor again emphasized that the hairs were only “consistent.” The substantial testimony and argument on this issue highlighted, and left little room for dispute, that the laboratory tests could do nothing more than either exclude or not exclude defendant from a group. The tests could not positively identify the assailant as either defendant or any other person. For example, during cross-examination of Tahir the following colloquy took place:
“Q. And you sure can’t determine from whose head that hair came from, can you?
A. You cannot positively say.
Q. You can’t even say it is similar, can you?
A. I said consistent.
Q. You did not use the word similar did you?
A. No.
Q. Similar means alike, doesn’t it?
* * *
A. Similar means to me is similar. That is all I can say.
***
Q. You have not used that word [“similar”]?
A. I have used [it] a few times.
Q. But you did not use it in this case, did you?
A. No.
***
Q. Well, what does consistent mean to you?
A. *** [I]f there are two hairs and you look in the microscope and you did not find any dissimilarities in those two samples, to me [they] are consistent.
Q. All right, let me rephrase it this way then — if you don’t find any inconsistencies then it is consistent with, is that right?
A. Yes.
* * *
A. And you cannot positively say that this hair came from this individual. *** [You] only could say *** it is consistent with.”
Significantly, Siegesmund explained that it is easier to establish “with a reasonable degree of scientific certainty that hair could not have come from someone. It’s more difficult to establish whether hair indeed did come from someone.”
Thus, I believe that Tahir’s own use of the word “dissimilar” and the extensive testimony regarding the terminology was such that the jury would not be confused. I cannot agree, therefore, with the majority’s conclusion that the prosecutor’s comments regarding these terms were a “distortion of Tahir’s testimony” and a “distortion of the meaning of the evidence.” (159 Ill. App. 3d at 79.) Furthermore, the majority’s characterizations of the prosecutor’s choice of words as “clever, but definitely misleading,” and as “gamesmanship” are unsupported by the record. 159 Ill. App. 3d at 79.
The majority next challenges another portion of the closing arguments, primarily focusing on three sentences uttered by the prosecutor concerning mathematical probabilities which were included in hair comparison studies published by the forensic scientist, Gaudette. The majority attacks both the form and substance of these three sentences.
As to the form, the majority found it misleading for the prosecutor to restate questions he had asked the defense expert, without following up with a recitation to the jury of the witness’ answers. After reviewing the record, I cannot say that such an obvious advocate’s technique was prejudicial, confusing to the jury, or tantamount to reversible error. The jury heard the defense expert’s testimony, and this sole reference to the mathematical probabilities in closing argument does not demand a new trial. Moreover, defendant did not suffer substantial prejudice as a result of the argument. Even if the answers had been recited verbatim, defense counsel made no attempt to elicit any testimony during redirect examination of the prosecution’s expert which might have explained or expanded upon the sketchy references to the probabilities made during cross-examination.
In regard to the merits of the mathematical probabilities mentioned in the three complained-of sentences, the majority finds that “the figures from Gaudette’s study have no application to the hair comparisons that were made in [this] case, and *** that the figures from Gaudette’s study do not have general application to hair comparisons ***.” (159 Ill. App. 3d at 80.) To support this conclusion, the majority offers an exhaustive review of three articles written by Gaudette. I question this court’s authority to review these articles.
Neither the witnesses nor the attorneys cited any article by Gaudette during the trial. The identification of the articles first appears in defendant’s briefs before this court. During the trial, the only mention of a possible source was the prosecutor’s reference to Gaudette’s “study in the early to middle 70’s *** with regard to percentages and probabilities of hair comparisons.” The only apparent basis relied upon by the majority as authority for it to review the publications appears in a footnote asserting that the majority “assume[s] that the prosecutor was fully aware of what is stated in Gaudette’s study” since “it was the prosecutor who first brought up” the study during cross-examination of Siegesmund. (159 Ill. App. 3d at 80 n.5.) I believe the majority exceeded its power when it reviewed the merit of the scientific information contained in these articles.
In addition to questioning our authority to review the articles, I find the majority’s reasoning objectionable on other grounds. The majority undertakes an extensive analysis of the research, methods, tests, types and number of comparisons revealed in Gaudette’s published articles. The parties, however, offered no testimony from any expert forensic witnesses to thoroughly explain to the jury the scientific principles relied upon by the majority, and consequently it was not possible to probe the expert opinions through cross-examination regarding these highly technical and possibly controversial studies. The majority devotes an inordinate amount of its analysis to this issue. I must conclude, therefore, that a primary basis of its decision to reverse and remand rests upon an untenable assertion.
Furthermore, the majority’s extensive review of the Gaudette articles and research is particularly inappropriate in light of the extremely sketchy testimony offered by the witnesses on the mathematical probabilities. The portion of Siegesmund’s limited testimony regarding Gaudette which was most emphasized by both parties at trial concerned his use of a comparison microscope and his approval of elemental analysis, and did not concern the mathematical probabilities. In order to demonstrate this fact, I set forth the full extent of the testimony regarding Gaudette, which is found in the 1,700-page trial transcript:
“PROSECUTOR: You are aware of a forensic scientist by the name of Barry Gaudette, are you not?
SIEGESMUND: Gaudette is one of the proponents of X-ray analysis.
Q. Mr. Gaudette performed a study in the early to middle 70’s, did he not, with regard to the percentages and probabilities of hair comparisons?
A. Absolutely.
Q. And his technique that he used was with a comparison microscope, was it not, sir?
A. He used comparison. And he, also, used other microscopes.
Q. But he used a comparison microscope. The one microscope you did not use, is that correct?
A. Yes, he did use that, also.
Q. And his probabilities came to the substance that a match between two head hairs is likely in one out of every 4,500 cases, is that correct?
A. Well, can I explain that?
Q. I’ll rephrase the question. Did he not come up with a figure that any two individuals, the probability they would have matching head hairs is a likelihood in one out of 4,500?
A. It depends on how many hairs you are talking about.
Q. Would you say, the more hairs you have to compare, the closer to that figure you get?
A. The higher the probability, that is correct.
Q. So in this case if we have but one hair, that Mr. Tahir linked to Mr. Linscott, that would have that much meaning, is that correct?
A. Yes. Using the conventional techniques that Gaudette used, yes.
Q. That Gaudette used, that’s correct?
A. Yes.
Q. If you have two to three hairs, your information is a little better, is that correct?
A. Yes. Only if you do those forty tests that he recommends.
Q. Fine. If you had, approximately, seven or eight hairs, you have more information to base it on?
A. According to Gaudette, that would give you a higher probability. If you did the forty tests.
Q. Did Mr. Gaudette, also, establish there is a difference between head hair and pubic hair?
A. Absolutely.
Q. The probabilities that any two people would have the same pubic hair are one in eight hundred?
A. Yes.
Q. Is that the figure Mr. Gaudette gave?
A. That is correct.”
On redirect examination, defense counsel asked Siegesmund only about Gaudette’s approval of elemental analysis, and made no effort to inquire about the statistical figures which had been briefly mentioned during cross-examination. On re-cross-examination, Siegesmund was questioned briefly only about Gaudette’s use of a comparison microscope and approval of elemental analysis. The record clearly shows the scantiness of testimony regarding the mathematical probabilities, and thus highlights the majority’s disproportionate attention given to that testimony.
Defense counsel commented in closing argument that he was “not going to weigh that expert testimony. You heard both of them. It’s your function.” I believe the majority should follow this well-established principle. Instead, it disturbs the jury verdict based upon technical scientific information which was not before the jury.
In reference to these mathematical probabilities, the majority again makes unsupported accusations. It states that the prosecutor “misled the jury by recalling only his questions” and ignoring the answers. The majority depicts the comments as “outright fabrications” and characterizes the argument as “a calculated, rank misrepresentation” and as “a distortion of the witness’s testimony.” (159 Ill. App. 3d at 81.) As I have demonstrated, there is no basis in the record for these charges.
Finally, because it is remanding for a new trial, the majority raises the issue of the relevancy of the vaginal swab evidence. Notwithstanding my opinion that the cause need not be remanded, I do not agree that the evidence should be excluded during the new trial. The evidence shows that the laboratory results fail to exclude defendant. The qualifying factors which limit the value of those tests were repeatedly stated to the jury. The jury should be allowed to determine the weight to be given to this evidence.
In addition, I believe the majority errs by holding at this stage that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. The supreme court referred to the evidence that defendant was placed in a category of nonsecretors along with nearly half of the population. The court noted the limited value of the evidence, but did not entirely discount it. (People v. Linscott (1986), 114 Ill. 2d 340 , 500 N.E.2d 420 .) I would find that, similar to the hair comparisons, the blood comparison was “not conclusive in itself, [but] nonetheless provides additional support to the jury’s verdict.” See People v. Linscott (1986), 114 Ill. 2d 340, 349 , 500 N.E.2d 420 (referring to hair comparisons only).
The majority briefly refers to the State’s “advertent destruction of the vaginal swab” as requiring exclusion of the evidence under Supreme Court Rule 415(g). (159 Ill. App. 3d at 84 n.7.) The trial court’s discretion to exclude evidence in order to remedy a discovery violation is a harsh remedy and should be used only in the most egregious circumstances. (See People v. Anderson (1980), 80 Ill. App. 3d 1018 , 400 N.E.2d 675 .) I do not believe the State acted egregiously when it had the swab flown to England for further tests performed by an impartial independent forensic laboratory, and the test results were immediately sent to defense counsel. Such a sanction would be disproportionate to the discovery violation, and defendant made no showing of how he was prejudiced by the violation. (See People v. Loggins (1985), 134 Ill. App. 3d 684 , 480 N.E.2d 1293 .) I would allow the introduction of the evidence at the new trial.
I would affirm the judgment of conviction.