People v. Fountain

2016 IL App (1st) 131474, 62 N.E.3d 1107

• Court: Appellate Court of Illinois
• Decided: August 23, 2016
• Docket: 1-13-1474
• Status: Unpublished

Opinion

2016 IL App (1st) 131474

SECOND DIVISION August 23, 2016

No. 1-13-1474

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 07 CR 10190 ) TIMOTHY FOUNTAIN, ) ) Honorable Charles P. Burns Defendant-Appellant. ) Judge Presiding ______________________________________________________________________________

JUSTICE SIMON delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Justice Hyman dissented with opinion.

OPINION

¶1 Following a jury trial, defendant Timothy Fountain was found guilty of two counts of

murder and one count of armed robbery. The trial court sentenced defendant to a mandatory term

of natural life in prison for the two counts for murder concurrent with a 30-year sentence for

armed robbery. On appeal, defendant claims that (1) the trial court committed reversible error in

refusing to grant defendant a meaningful continuance following the State’s disclosure of a new

DNA report days before the trial, (2) he received ineffective assistance of counsel, (3) the trial

court erred in failing to conduct a Frye hearing on the admissibility of historical cell site

analysis, (4) he was denied his right to a fair trial when a State witness made improper and No. 13-1474

prejudicial comments, and (5) the State made improper comments during rebuttal. For the

following reasons, we affirm.

¶2 BACKGROUND

¶3 Defendant was charged with multiple counts of murder, armed robbery, and burglary

following the shooting deaths of Graciela Rodriguez and Nicholas Guerrero, and armed robbery

of Maggy’s Food Store on August 4, 2005, in Chicago. Before defendant’s trial, the State moved

to present evidence that a cell phone subscribed to by defendant was in the area of the store

around the time of the crimes. The State enlisted FBI Agent Joseph Raschke to testify about

historical cell site analysis. Defendant argued that the State failed to establish a proper

foundation for this evidence where Raschke could not demonstrate the methodologies he used in

concluding that defendant’s phone was in the area of the store. Defendant also asked for a Frye

hearing arguing that historical site analysis was new and novel and that it was not generally

accepted within the scientific community. The trial court denied defendant’s motions.

¶4 At trial, Brandon Grzesiak testified that on August 5, 2005, he and his friend nicknamed

“Millhouse,” went to Maggy’s Food Store around noon. They knew the woman who worked

behind the counter and called her “Maggy.” As they walked to Maggy’s, Grzesiak saw a person

standing at the bus stop outside the store. The bus stop was just four to five feet away from the

front door at Maggy’s. Grzesiak testified that the man at the bus stop was wearing a dark green

shirt, blue jean shorts, and a black White Sox hat. Grzesiak did not know the man and only took

a “quick glimpse” of the man on his way into Maggy’s. He testified that he and his friend

proceeded inside the store and bought two Swisher Sweets to empty out and fill with marijuana

so that they could get high that afternoon. Upon leaving the store, Grzesiak again looked at the

man at the bus stop. Grzesiak and that man made eye contact for a few seconds before the man

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looked away. Grzesiak identified defendant in court as the man he saw at the bus stop in front of

Maggy’s Food Store.

¶5 Luis Campagna, a Frito-Lay delivery man, testified that on August 4, 2005, he walked

into Maggy’s Food Store to the last of three aisles and saw a man lying on the floor in a pool of

blood. He went back outside the store and called the police. He did not see anyone coming out of

the store while he was loading his hand cart and did not notice any cars driving away. Police

officers arrived within minutes and cleared and secured the area.

¶6 Chicago police officer Christopher Chausse responded to a call on August 4, 2005, of a

person being shot at Maggy’s Food Store at 4458 South California Avenue in Chicago. When

Chausse arrived there at 12:21 p.m., he encountered Louis Campagna. Officer Chausse saw

victim Guerrero lying face down in a puddle of blood, and in the back room he saw the victim

Rodriguez, lying face down.

¶7 Detective Velma Guerrero and her partner Detective William Gehrke arrived at Maggy’s

after the victims were transported to Mt. Sinai Hospital and before the forensic investigator

arrived. Police investigator Raymond Jaster and his partner arrived at Maggy’s on August 4,

2005, at about 1:40 p.m. Detective Guerrero directed Jaster to the back room of the store. In the

back room, where one of the victims was found, Jaster found blood on the floor, a video recorder

on a chair, and an expanded 0.5 caliber cartridge on the floor underneath a chair. The VCR

recording system used at the store recorded the video from several cameras onto a VHS tape.

There were two lottery tickets inside the lottery register, one with the number 5051, and the other

with the number 5157. Police collected a cash tray from the register, the tray from the lottery

machine, and a cigar box.

¶8 Detective Guerrero testified that, after removing the VCR, which still had the tape inside,

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she took it to a multi-agency technical office to have the tape removed. The tape was removed,

copied onto a disk, and numerous still images were taken from the video. Detective Guerrero

stated that she viewed that videotape probably hundreds of times. The videotape was admitted

into evidence and Detective Guerrero testified as to its contents. Detective Guerrero recognized

Millhouse approaching the counter in the video and Grzesiak by a cooler. Detective Guerrero

also observed a young girl approach the counter and then reappear later in the scene. A few

seconds after the young girl and Grzesiak left the store, the suspect walked in wearing a dark

green shirt, a black White Sox baseball cap, denim shorts, and a belt. The suspect was holding a

silver phone. The video shows the victim Rodriguez talking to the suspect. Then, the suspect

checked the doorknob of the entrance to the rear area. The suspect asked for two lottery tickets:

5157 and 5051. The suspect then pointed a gun at Rodriguez through the cash window and

ordered her to open the door to the register. The suspect removed money from the cash register

and looked under the counter. The suspect then leaded Rodriguez out of the cash register area

while asking her for the videotape. The video then showed the suspect escorting Rodriguez

toward the rear office. The video ends at that point.

¶9 Officer Juan Chavez testified that he viewed the video surveillance tape and recognized

one of the customers who entered the store before the suspect came in. That person was Brandon

Grzesiak, a young man whose brother had been on Chavez’s youth basketball team. Chavez told

Detective McCormack that he recognized Grzesiak and went to find him. On August 8, 2005,

Officer Chavez saw Grzesiak near a McDonald’s located in the 3800 block of South Archer

Avenue. Chavez talked to Grzesiak and together they drove to a gas station at 35th Street and

South California Avenue near Maggy’s where they met with Detective McCormack.

¶ 10 On August 18, 2005, Detective McCormack spoke with Lieutenant John Farrell about the

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lottery tickets recovered from the scene. One of those tickets was for number 5157, and

McCormack ran that number in the Chicago police database as a south side address. McCormack

checked the photographs of those who had a “5157” address in Chicago against individuals who

looked like the composite put together by Grzesiak as well as the likeness of the offender as seen

on the store video. After that search process, Detective McCormack came up with defendant’s

name. Officer Emmett McClendon testified that he met defendant on September 22, 1998, and at

that time, he gave his address as 5157 South Union Avenue. Sharon Moransky, a county

employee, testified that she met defendant on March 29, 1999, and that defendant gave his

address as 5157 South Union Avenue.

¶ 11 Following Grzesiak’s encounter with Chavez, Grzesiak went to the police station and

participated in composing a computer-generated sketch of the man he saw at the bus stop. After

giving a description of the man he saw, Grzesiak viewed the surveillance video and recognized

himself and Millhouse on the tape. On August 19, 2005, Grzesiak identified defendant’s photo

from a photo array. On April 12, 2007, Grzesiak viewed a lineup and identified defendant as the

person he saw outside Maggy’s and on the surveillance video pointing a gun at the victim

Rodriguez.

¶ 12 Dr. Valerie Arangelovich, a forensic pathologist, performed the autopsies on victims

Rodriguez and Guerrero and stated that they both died from single gunshot wounds to the head.

Both bullets were fired from the same firearm. The pathologist took fingernail clippings from

both the victims’ hands and sealed them in an envelope before giving them to the police. The

pathologist testified that victim Guerrero exhibited multiple pinpoint abrasions and contusions

near his left eye, consistent with being hit with a hard metal handgun. Victim Guerrero in

addition to having a gunshot wound on the left side of his head, had a gunshot wound on the

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mid-portion of his right index finger.

¶ 13 Amy Winters, a DNA analyst from Orchid Cellmark Laboratory, received the swabs of

the fingernails of both the victims and performed DNA testing on them. Using the swabs from

DNA clippings, she amplified the extracted DNA and produced an electropherogram graph. The

graph displayed 13 specific locations (loci) in the DNA. The 13 loci are used in the national

DNA database that is used to search profiles.

¶ 14 Sarah Walker analyzed the victims’ blood standards. She learned that there was a mixed

DNA profile obtained from Guerrero’s left-hand fingernail clippings. The minor profile was a

man, and 8 of the 13 loci were identified. At the time of her report, there was no suspect, and the

partial mixed profile was not compared to any other profile.

¶ 15 Davere Jackson, a forensic scientist in the DNA section of the Illinois State Police (ISP),

compared the minor DNA profile obtained from Guerrero’s left-hand fingernail clippings to a

standard one from defendant. In 2007, Jackson concluded that defendant could not be excluded

from that minor DNA profile and could be included as a donor. In 2012, after reading a report

from defense’s expert, Lawrence Mueller, Jackson reviewed her file and observed that she did

not put all of the complete types of alleles at one of the locations; specifically location “D8” in

the deduced minor profile: 13/16 and 14/16. Jackson’s new report was issued on October 17,

2012. Jackson testified that the data did not change, but she erred in failing to write down the

additional alleles at that location in her initial report. Jackson maintained that her opinion in 2007

and 2012 was that defendant could not be excluded as a contributor to the partial profile, and she

opined that 1 in 1.7 billion black men would have this profile.

¶ 16 Pauline Gordon, a forensic scientist with the ISP, received the DNA profiles that Orchid

Cellmark obtained from the fingernails of Guerrero. Gordon reviewed Cellmark’ s profile and

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determined that there were some alleles at particular locations of the minor profile that had not

been suggested by Cellmark, but should have been part of that profile. In 2012, Gordon reviewed

the minor profile recovered from Guerrero’s fingernail clippings and made a new comparison to

the standard from defendant. Following Jackson’s new report, on October 19, 2012, Gordon

issued an amended report. Gordon determined that defendant could not be excluded from having

contributed to the minor male DNA profile recovered from Guerrero, meaning that defendant

was included as a donor to that minor profile. She opined that 1 in 56 billion black men would

have this profile.

¶ 17 Gordon explained that the discrepancy between her calculation of the frequency and

Jackson’s calculation from 2007 arose from the process now available that allows the application

of statistics to those locations where there was partial information, allowing her to do more

calculations at that location. She testified that neither her interpretation nor Jackson’s would

exclude defendant from the DNA profile. Gordon acknowledged that Cellmark found that the

minor profile at locus TH01 showed a 7/9, and that defendant was a 7/7 at that locus. Gordon

stated that 7/9 found by Cellmark was a “database profile” and that she created an “interpretation

profile.” She also testified that Cellmark and ISP have “different guidelines” that account for

different interpretations at the TH01 locus. At D18S51, Gordon testified that there was allelic

dropout. Allelic dropout means that the minor profile at that locus was not copied sufficiently

and fell below the detection threshold. Contrary to Jackson’s 2007 report that considered 16/16

an option at D8, Gordon did not consider 16/16 as an option at that location. Gordon

acknowledged that it was true that there are other possible contributors to the minor profile other

than defendant. She explained that they would need to have a known buccal standard from

another individual to determine that.

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¶ 18 Solandia Haddock testified that she was the subpoena specialist for U.S. Cellular.

Defendant purchased a Kyocera KE 434 phone and became a U.S. Cellular customer on July 16,

2005, with a phone number 773-329-8846. The Kyocera is a regular nonflip phone, and, at that

time, was available in either silver or blue. The call detail records for defendant’s account on

August 4, 2005, showed 19 incoming calls between 5 a.m. and 10:50 p.m.

¶ 19 FBI Agent Joseph Raschke testified as an expert in the field of historical cell site

analysis. He stated that he worked on 150 to 200 cases where he was asked to determine the

location of a cell phone. Raschke testified that when a call is placed, the phone sends a signal to

a cell tower. When a call is received, the cell tower sends a signal with the information to the cell

phone. A call detail record is generated that shows the time and the date the call occurred, which

phones were involved, and which cell towers were used. A phone can search up to six towers,

and the call detail records do not show which towers the phone could connect with at any given

moment. There is a presumption that the phone will use the nearest tower. Raschke’s coworker,

Nicky Skovran, did the initial analysis in the case. Raschke took all of her materials, including

her report, redid the analysis, and concurred with her findings.

¶ 20 Raschke used a PowerPoint presentation that he prepared to assist in his testimony.

Defendant’s call detail records showed that on August 4, 2005, from 10:01 a.m. up to and

including 11:24 a.m., defendant’s cell phone used the cell tower at 130th Street and Vermont

Avenue, Tower 4, for 10 calls. The call records from 11:24 a.m. through 11:54 a.m. showed

defendant’s phone connecting to a succession of different towers heading near the Dan Ryan

Expressway.

¶ 21 At 11:54 a.m., defendant’s phone received an incoming call and was connected to Tower

102 at 47th Street and Ashland Avenue. At 11:56 a.m., his phone was connected to Tower 219

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on Artesian Avenue, the tower just southwest of Tower 102. At 11:57 a.m., defendant’s phone

was connected back to Tower 102. Both towers were located near Maggy’s. At 12:09 p.m.,

defendant’s phone connected again to Tower 219. The next call to defendant’s phone came at

12:12 p.m., which resulted in his phone connecting to Tower 81, which was north and a bit east

of Tower 219 and just under a mile from Maggy’s. At 12:13 p.m., a call to defendant’s phone

connected his phone back to Tower 219. Raschke testified that defendant was most likely located

in a place that would use both of those towers. A call at 12:16 p.m. caused defendant’s phone to

connect again to Tower 219. When defendant’s phone received a call at 12:18 p.m., his phone

connected to Tower 66, the tower just south and west of Maggy’s. Next, between 12:09 p.m. and

12:18 p.m., defendant received five phone calls and defendant’s phone was located near the

location of Maggy’s.

¶ 22 The next call to defendant’s phone was at 1:10 p.m., and defendant’s phone connected to

Tower 4 around 127th Street and I-57. Between 1:10 p.m. and 1:24 p.m., defendant’s phone

received eight calls and all caused his phone to connect to Tower 4 near his girlfriend’s house at

12752 South Morgan Street. Raschke opined that the lack of calls to defendant’s phone between

12:18 p.m. and 1:10 p.m. could have been because no one attempted to call his phone or that the

phone was turned off during that time.

¶ 23 The defense called Dr. Laurence Muller as an expert in the area of population genetics.

Muller reviewed the reports from Cellmark, ISP, as well as the electropherograms in this case.

Muller reviewed Jackson’s report from 2007, which said that defendant could not be excluded as

a contributor, and he believed that Jackson’s conclusion was inconsistent with the statistical

calculation that was done because it focused on a group of genetic profiles, none of which

matched defendant. Looking at the statistical calculation in the 2007 report, specifically at D8

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locus, the ISP concluded that the minor contributor had a profile of 16/16. Defendant had a 14/16

at D8; therefore Muller concluded that defendant could not have been a contributor. Muller

wrote that conclusion in his December 2011 report.

¶ 24 Muller also noted the discrepancy at TH01. At that locus, Cellmark found that the minor

profile was a 7/9, while defendant was a 7/7 at that location. Muller testified that the State’s

explanation for this discrepancy, that the interpretations were for different purposes, was not

adequate. Regarding the allelic dropout at D18S51, Muller testified that defendant was a 18/19 at

that locus, the only allele identified at that locus is a 15. If the 15 is the only genetic variant, then

defendant would be excluded. If defendant was a contributor, then his contribution did not

amplify sufficiently to be recorded. Mueller did not believe it was the conservative approach to

assume allelic dropout at this location. If there was no allelic dropout, then this evidence is more

consistent with an exclusion, rather than an inclusion. Muller acknowledged that there was a

combination that included defendant, but also there was no way to determine which combination

was correct. Muller testified that the first ISP report from 2007 produced a total of 21,504

different genetic profiles, Jackson’s new report with the new data included had 64,512 possible

profiles, and the final ISP report issued by Gordon produced 86,016 possible profiles.

¶ 25 Luis Lechuga also testified on defendant’s behalf. Lechuga was 14 years old on August 4,

2005. He testified that, at around 2 p.m. or 3 p.m., he went to Maggy’s, a place he usually visited

several times a day. After he walked in, he noticed a black man come in wearing a baseball cap.

Lechuga stated that defendant was not the man he saw that day. About 30 seconds later, an older

man, whom Lechuga knew as “Nicholas,” also came in the store and said something in Spanish.

¶ 26 Lechuga testified that he felt that something was wrong and went to the back of the store.

He unlocked the back door, came out on 45th street and walked back to the front of the store. He

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testified that he walked back to the front of the store and saw a black man leaving the store with

cigarette boxes and then getting into a car with two other black men. That man was wearing a

green shirt, blue jeans, and a White Sox hat. Lechuga testified that a Frito-Lay guy told him not

to go inside and that he had just called the police.

¶ 27 On cross-examination, Lechuga acknowledged that the week he was testifying was the

first time that he told any investigator that he was inside Maggy’s when the two people were

killed. Lechuga testified that, when the police interviewed him on August 14, 2005, he never told

them he went inside Maggy’s because his mother did not want him to get involved. Instead, he

told the police that he was going to Tastee Freez and that he was across the street from Maggy’s

when he saw a man with a black White Sox hat coming out of that store. He also told the police

that the man had a cell phone and got into a green car. Lechuga testified that he saw Guerrero’s

legs after the Frito-Lay man opened the door.

¶ 28 In rebuttal, the State called Detective Guerrero. Detective Guerrero testified that

Guerrero’s body was not found “anywhere near” where Lechuga said he had been. Guerrero was

not found by the chip aisle, but by the cooler. The back door to the store out of which Lechuga

claimed to have fled had two bolt locks, and the door was still locked when the detectives

arrived. Next, investigator John Duffy from the Cook County State’s Attorney’s Office testified

that he interviewed Lechuga on October 26, 2012. Lechuga told Duffy that he was not clear if he

could not identify the man or if his mother had encouraged him not to identify anyone for his

own safety.

¶ 29 The jury found defendant guilty of two counts of murder and one count of armed robbery.

The court sentenced defendant to natural life for the two murder convictions, concurrent with a

30-year sentence for armed robbery. This appeal followed.

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¶ 30 ANALYSIS

¶ 31 Continuance

¶ 32 Defendant argues that the trial court abused its discretion in a failing to grant defendant a

meaningful continuance following the State’s disclosure of new DNA reports from its experts

days before the trial. Defendant claims that the State’s new reports filed in October 2012, a few

days before defendant’s trial, were different from the first DNA report filed in 2007, which

indicated that defendant was a partial match to the minor DNA profile recovered from the

fingernail clippings of the victim Nicholas Guerrero. Defendant explained that the defense

needed to evaluate the new reports, consult with their expert and fully investigate the new

information when the previous report excluded defendant as a contributor. Defendant contends

that the trial court’s insistence on keeping a trial date in the light of the new reports denied his

right to a fair trial.

¶ 33 It is well settled that the granting or denial of a continuance is a matter resting in the

sound discretion of the trial court, and a reviewing court will not interfere with that decision

absent a clear abuse of discretion. People v. Walker, 232 Ill. 2d 113, 125 (2009). Whether there

has been an abuse of discretion necessarily depends upon the facts and circumstances in each

case and “ ‘[t]here is no mechanical test *** for determining the point at which the denial of a

continuance in order to accelerate the judicial proceedings violates the substantive right of the

accused to properly defend.’ ” Id. (quoting People v. Lott, 66 Ill. 2d 290, 297 (1977)). Factors a

court may consider in determining whether to grant a continuance request by a defendant in a

criminal case include the movant’s diligence; the defendant’s right to a speedy, fair, and

impartial trial and the interests of justice; the history of the case; the complexity of the matter;

and the seriousness of the charges as well as docket management judicial economy and

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inconvenience to the parties and witnesses. Id. at 125-26.

¶ 34 Where it appears that the refusal of additional time in some manner embarrassed the

accused in the preparation of his defense and thereby prejudiced his rights, a resulting conviction

will be reversed. People v. Lewis, 165 Ill. 2d 305, 327 (1995). We cannot find an abuse of

discretion without the defendant having shown that he was prejudiced by the court’s denial.

People v. Coleman, 203 Ill. App. 3d 83, 100 (1990).

¶ 35 Here, we cannot say that the trial court abused its discretion. The trial court carefully

considered relevant factors such as the interests of justice, the fact that the case had been on the

docket for 6 years. The trial court also properly assessed the complexity of the DNA evidence,

judicial economy, and inconvenience to the parties and their witnesses in deciding to grant

defendant the requested one day continuance to review the new DNA reports.

¶ 36 Contrary to counsel’s argument at oral argument that the trial court “mechanically”

refused to grant defendant a meaningful continuance, the record reflects that the court considered

the issue over the course of three hearings. Specifically, on October 18, 2012, defense counsel

acknowledged that she received Davere Jackson’s revised DNA report from October 17, 2012.

The trial court continued the case for the next day to “see what the [defense] expert opinion is

and I’ll make a determination whether or not the case needs to be continued.” After hearing

additional arguments on this issue at the hearing on October 19, 2012 when a new report was

received from Gordon, the court again continued the case until October 22, 2012, stating that

“when I get all the information, I will decide whether or not it is prudent to give you a

continuance.” On October 22, 2012, counsel argued that “knowing what the court’s position is

on the continuance because you told us last week, we are asking for just a day, one day so that

we can do our due diligence with our attorneys getting ready, with documents that were just

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tendered as well as talking with our consultant and seeing if—what there is here that we can

digest.” Finally, on October 22, 2012, the day when the trial was scheduled to begin, the trial

court granted defendant's request to continue the case to the next day for jury selection. The trial

court determined that a one day continuance was warranted noting that defendant still had ample

time to investigate the ramification of the State's new DNA reports until the DNA experts would

testify at trial almost a week later. The trial court observed that in the new report Jackson

admitted to making an error in failing to properly note all the relevant DNA data, although her

initial conclusion that defendant could not been excluded remained the same as in 2007. As

such, after careful deliberation, the trial court exercised its discretion and granted defendant's

request for one day continuance.

¶ 37 In addition, the new reports were not a surprise for the defense whose expert pointed out

Jackson’s mistake in his 2011 report. The 2007 report inferred a 16/16 profile and defendant had

a 14/16, so based on the noted data, defendant could not have been a match. However, Jackson’s

conclusion that she could not exclude defendant as a contributor did not change from 2007 to

2012. The new report stated that 16/16 profile was still possible, but that 14/16 and 13/16 were

also possible, making defendant a potential contributor. Again, defendant knew about the flaws

in the State’s DNA data interpretation since 2011 and the 2012 State’s report, just as the 2007

report, concluded that defendant could not have been excluded as a contributor. At most, the new

report exposed flaws in the State’s initial interpretation of DNA data, flaws that defense was

familiar with since 2011. The trial court properly concluded that defendant would use all the

information provided in Jackson’s new DNA report as meaningful ways to cross-examine the

State’s DNA expert witness on her noted data and her conclusions.

¶ 38 Furthermore, defendant fails to offer any argument on how he was prejudiced by the

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court’s decision to grant defendant a one day continuance as opposed to a more lengthy

continuance. Seven days passed between receiving the State’s revised analysis on October 18

and the State expert’s testimony at trial on October 25. The record reflects that defense counsel

extensively attacked the revised DNA reports. On cross-examining, using Jackson’s charts,

defense counsel had Jackson highlight for the jury that defendant was a 14/16 at D8 locus when

in her 2007 report Jackson concluded that the partial minor profile at D8 was a 16/16.

¶ 39 Similarly, Dr. Lawrence Muller, the defense expert, who testified on October 29,

highlighted the differences between the 2007 analysis, his analysis, and the revised analysis from

2012, emphasizing Jackson’s flaws in the interpretation of the DNA data in her 2007 report. He

pointed out the D8 locus in which the 2007 report inferred a 16/16 profile and that defendant had

a 14/16 so there could not have been a match. Based on the extensive cross-examination of the

State’s expert witness and the detailed testimony of the defense expert witness, we cannot say

that the defense was not adequately prepared during the trial proceedings. See People v. Balfour,

2015 IL App (1st) 122325. To the contrary, defendant fails to show what else defense counsel

could have done if given a more lengthy continuance or how was he prejudiced by the court’s

decision to grant the requested one day continuance. 1

¶ 40 The dissent speculates that a meaningful continuance would have been, as counsel argued

during oral argument on appeal, three weeks. However, such a request was not made in the trial

court. Counsel requested a one day continuance and the trial court granted it. The defendant did

not present in the trial court reasons or a basis for a continuance longer than one day, which he

1 Defendant’s contention for the first time at oral argument that the defense counsel could have consulted and hired a statistics expert since Dr. Muller was an expert in population genetics is waived when defendant failed to raise it in his briefs. See Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”).

15 No. 13-1474

ultimately got. Defendant's counsel never moved for or asked the court for a longer continuance

nor moved the court for more time to hire a new expert. The court cannot have abused its

discretion when it granted all the relief defendant sought.

¶ 41 Furthermore, the dissent extensively points out the weakness in the State's different DNA

reports and uses the defense's trial exhibit to expose their flaws. But all the weaknesses, flaws

and different conclusions in the State's DNA reports were raised, argued, highlighted and

emphasized to the jury by the defense. The jury had all the evidence and considered what weight

to give it and whether it proved the charge beyond a reasonable doubt. We cannot, as the dissent

apparently wants, substitute our judgment for theirs. Accordingly, the trial court's decision to

grant the requested one day as opposed to an unrequested longer continuance was not "arbitrary,

fanciful, or unreasonable or that no reasonable person would take the view adopted by the trial

court." See People v. Strobel, 2014 IL App (1st) 130300, ¶ 7.

¶ 42 Ineffective Assistance of Counsel

¶ 43 Defendant argues in the alternative that his defense counsel was ineffective for failing to

exclude DNA evidence entirely as irrelevant. Defendant contends that, pursuant to the State’s

revised DNA report, defendant was a match to the minor profile that was found in the left hand

fingernail clippings of Nicholas Guerrero. Defendant maintains that defense counsel should have

moved to exclude the DNA evidence entirely, where a less than 13 loci match had no probative

value. Additionally, defendant argues that defense counsel was ineffective for failing to move for

a DNA database search to determine how many individuals in the Illinois database matched at 8

loci.

¶ 44 Claims of ineffective assistance of counsel are reviewed under the two-prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 209 Ill. 2d 194, 219-20

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(2004). Under Strickland, a defendant must prove that (1) counsel’s performance was deficient in

that it fell below an objective standard of reasonableness and (2) the deficient performance

prejudiced the defense in that absent counsel’s deficient performance there is a reasonable

probability that the result of the proceeding would have been different. Strickland, 466 U.S. at

687, 694. Under the first Strickland prong, defendant must demonstrate that his attorney’s

performance fell below an objective standard of reasonableness. People v. Enoch, 122 Ill. 2d

176, 201 (1988); see also People v. Stewart, 104 Ill. 2d 463, 491-92 (1984) (“Effective assistance

of counsel refers to competent, not perfect representation.”).

¶ 45 Further, in order to establish deficient performance, the defendant must overcome the

strong presumption that the challenged action or inaction may have been the product of sound

trial strategy. People v. Manning, 241 Ill. 2d 319, 327 (2011). Matters of trial strategy are

generally immune from claims of ineffective assistance of counsel. Id.; People v. Smith, 195 Ill.

2d 179, 188 (2000). The only exception to this rule is when counsel’s chosen trial strategy is so

unsound that “counsel entirely fails to conduct any meaningful adversarial testing.” (Internal

quotation marks omitted.) People v. Cooper, 2013 IL App (1st) 113030, ¶ 63. In other words, the

presumption that the challenged action or inaction was the product of sound trial strategy may be

overcome where no reasonably effective defense attorney, confronted with the circumstances of

the defendant’s trial, would engage in similar conduct. People v. Watson, 2012 IL App (2d)

091328, ¶ 24.

¶ 46 Here, defense counsel’s decision to challenge the State’s DNA evidence in a different

way than moving to exclude it was a matter of trial strategy unchallengeable under Strickland.

The record indicates that defense counsel extensively attacked the credibility of the State’s DNA

experts regarding their new revised reports, which they created after defense expert, Dr. Muller,

17 No. 13-1474

opined that, contrary to the conclusion in the 2007 State’s initial report, the data excluded

defendant as a minor contributor. Defense counsel also presented the testimony of defense

expert, Dr. Muller, who pointed out the flaws in the State’s initial DNA report, and highlighted

in two charts the differences between his analysis, the State’s initial DNA report, and the State’s

revised reports from its experts, Jackson and Gordon.

¶ 47 Similarly, in closing argument, defense counsel zealously attacked the reliability of the

State’s DNA evidence emphasizing, for instance, that the new reports were written just days

before the trial: “when? Last Friday.” Counsel argued, among other things, that the jury should

disregard the State’s DNA reports not excluding defendant since “none of [State’s reports]

match.” Counsel highlighted Dr. Muller’s testimony, his detailed charts, and his opinion that up

to 86,000 other people would not be excluded using the State’s DNA reports. Counsel ended the

lengthy attack on the DNA evidence stating “why these last minute re-interpretations. Try to

make the DNA case stick against my client. Where it doesn’t stick.” Therefore, the record clearly

establishes defense counsel’s efforts and strategy during the trial and at closing arguments to

undermine the State’s DNA evidence by attacking the credibility and the reliability of the State’s

experts and DNA reports. See People v. Daniels, 301 Ill. App. 3d 87, 100 (1998) (holding trial

counsel was not ineffective for failing to more vigorously oppose DNA evidence: “It appears

defense counsel’s trial strategy was to use the State’s DNA evidence as a weapon to attack the

credibility of all forensic evidence.”); see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 56

(“[W]e conclude that defense counsel’s failure to object to the admission of [DNA] evidence did

not amount to ineffective assistance of counsel.”).

¶ 48 Defendant cites People v. Wright, 2012 IL App (1st) 073106, in support of his argument

that the DNA evidence in this case should have been excluded entirely because an 8 loci match

18 No. 13-1474

was insufficient to be treated as a match. In Wright, the DNA evidence constituted essentially the

sole evidence used to identify the defendant from a felony database as the perpetrator of a sexual

assault where the victim could not identify her attacker. Wright, 2012 IL App (1st) 073106, ¶ 81.

Wright addressed the trial court’s error in failing to order a pretrial DNA database search where

the primary evidence to identify the defendant as the offender was a 9 loci analysis between his

DNA and a male DNA profile obtained from the victim’s rectal swabs. Id. The database search

request was made pursuant to section 116-5 of the Code of Criminal Procedure of 1963 (725

ILCS 5/116–5(a) (West 2012)), which requires a defendant to show only that “DNA evidence

may be material to the defense investigation or relevant at trial.” Id. In Wright, the majority

acknowledged the fact that it was not asked to determine whether the expert’s conclusion of a

“match” based on only 9 loci was correct but, instead, it had been asked to determine whether the

trial court abused its discretion in denying the defense the ability to investigate and impeach that

conclusion. Wright, 2012 IL App (1st) 073106, ¶ 86. In addition, the court addressed the

defendant’s claim that his trial counsel was ineffective in his handling of the pretrial DNA

motion and for failing to hire an independent DNA expert. Id. ¶ 103. Specifically, the Wright

majority concluded that counsel rendered ineffective assistance by asking the trial court to order

a database search that had already been done and, moreover, had been done at the request of the

same counsel.

¶ 49 The facts and analysis in Wright are not pertinent to the instant case, which did not rely

solely on the DNA evidence to identify an otherwise unknown offender. Here, the DNA

evidence was a part of the State’s case, and the State did not argue that the DNA evidence in and

of itself established that defendant’s DNA was a true match, but argued that defendant could not

be excluded as a contributor to the DNA profile recovered from one the victims. Moreover,

19 No. 13-1474

unlike Wright, here, trial counsel extensively cross-examined the State’s DNA expert concerning

the statistical meaning of the partial DNA profile comparison, presented the testimony of his

own expert and argued before the jury that in the light of the partial 8 loci match and the State’s

various DNA reports, the DNA evidence should be given little weight. Accordingly, defendant’s

reliance of Wright is misplaced.

¶ 50 Furthermore, even if defense counsel would have moved to exclude DNA evidence in its

entirety, defendant cannot show that such a motion would have been granted by the trial court.

See People v. Mitchell, 2011 IL App (1st) 083143, ¶ 35 (“In the absence of Illinois authority that

DNA evidence is excludable as a matter of law based on the evidence being ‘too inconclusive,’

we reject the instant defendant’s claim that the equivocal nature of [the] expert[’s] opinion

rendered his testimony legally inadmissible” and holding that a match at just 4 loci was relevant

and admissible); cf. People v. Smith, 2012 IL App (1st) 102354, ¶¶ 170, 177 (Gordon, J.,

dissenting) (concluding that counsel’s failure to exclude the DNA evidence in its entirety fell

below a reasonable standard when a 6 loci match was “lacking in probative value”).

¶ 51 Next, defendant’s claim that defense counsel’s performance was unreasonable for failing

to request a DNA database search to determine how many individuals in the Illinois database

matched at 8 loci lacks merit. Aside from being a matter of trial strategy, defense counsel,

through the defense expert’s testimony made it clear to the jury that there may had been many

others that could not have been excluded at 8 loci. Specifically, Dr. Muller testified that the first

report from 2007 produced a total of 21,504 different genetic profiles, Jackson’s new report with

the new data included had 64,512 possible profiles, and the final ISP report issued by Gordon

produced 86,016 possible profiles.

¶ 52 Defendant’s reliance on People v. Watson, 2012 IL App (2d) 091328, in arguing that his

20 No. 13-1474

counsel was deficient for failing to move for a database search to challenge the statistical

probability testimony is misplaced. In Watson, the only evidence connecting the defendant to the

crime was a partial DNA match and defense counsel asked the State’s DNA expert only three

questions on cross-examination. Watson, 2012 IL App (2d) 091328, ¶ 26. Defense counsel did

not point out through either cross-examination or argument to the jury that the lack of a complete

DNA sample was critical because that missing DNA evidence could exclude the defendant as

being the one who committed the crime. Id. This court thus found that defense counsel’s

representation of the defendant constituted ineffective assistance of counsel because “it was

objectively unreasonable for counsel to refrain from pursuing, in any regard, a challenge to the

significance, if any, of the alleged [partial DNA match].” (Emphases in original.) Id. ¶ 31. Here,

as previously mentioned, defense counsel challenged the DNA evidence wherever possible,

engaged in vigorous cross-examination, and presented testimony of the defense expert to rebut

the testimony of the State’s DNA experts. Accordingly, Watson is clearly distinguishable from

the instant case.

¶ 53 Furthermore, defendant failed to show that he was prejudiced by counsel’s alleged

deficient performance when the remaining evidence against him presented at trial was

substantial. To prevail on an ineffective assistance of counsel claim, a defendant must satisfy

both the performance and prejudice prongs of Strickland. People v. Evans, 209 Ill. 2d at 220.

Regarding the second Strickland prong, a reasonable probability that the result would have been

different is a probability sufficient to undermine confidence in the outcome or, put another way,

that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally

unfair. Id. A reasonable probability of a different result is not merely a possibility of a different

result. Id.

21 No. 13-1474

¶ 54 At trial, defendant was identified by Brandon Grzesiak as the man outside Maggy’s

shortly before the murders and as the man holding a gun in the store video. In addition,

defendant’s previous address matching one of the lottery tickets found at the crime scene as well

as defendant’s cell phone records corroborated Grzesiak’s identification. Those records indicate

that, after leaving the area around his girlfriend’s house that morning, defendant’s cell phone was

near Maggy’s around the time of the murders. Based on the entire evidence presented at trial, we

cannot say that but for counsel’s alleged deficient performance in failing to ask for a complete

bar of the DNA evidence or in failing to request a DNA database search, there was a reasonable

probability that the result of defendant’s trial would have been different. Accordingly,

defendant’s ineffective assistance of counsel claims fail on this basis as well.

¶ 55 Frye Hearing

¶ 56 Defendant next argues that the trial court erred when it determined that a hearing

pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was unnecessary on the

admissibility of historical cell site analysis. The State introduced this evidence to establish that

defendant was in the vicinity of the crimes during the time period surrounding the commission of

the crimes. Defendant contends that a Frye hearing was necessary before cell site data could be

admitted because locating a phone in relation to the cell sites to which it connected is a

methodology that has not gained general acceptance and is “new” or “novel” for purposes of

Frye.

¶ 57 In Illinois, the admission of expert testimony is governed by the standard first expressed

in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In re Commitment of Simons, 213 Ill. 2d

523, 529-30 (2004). Known as the “general acceptance” test, the Frye standard dictates that

scientific evidence is admissible at trial only if the methodology or scientific principle upon

22 No. 13-1474

which the opinion is based is “sufficiently established to have gained general acceptance in the

particular field in which it belongs.” Frye, 293 F. at 1014. In this context, “general acceptance”

does not mean universal acceptance, and it does not require that the methodology in question be

accepted by unanimity, consensus, or even a majority of experts. Donaldson v. Central Illinois

Public Service Co., 199 Ill. 2d 63, 78 (2002). Instead, it is sufficient that the underlying method

used to generate an expert’s opinion is reasonably relied upon by experts in the relevant field. Id.

at 77. Significantly, the Frye test applies only to “new” or “novel” scientific methodologies. Id.

at 78-79. Generally speaking, a scientific methodology is considered “new” or “novel” if it is

“ ‘original or striking’ ” or “does ‘not resembl[e] something formerly known’ ” or used. Id. at 79

(quoting Webster’s Third New International Dictionary 1546 (1993)). Our standard of review is

de novo. Simons, 213 Ill. 2d at 530-31. On appeal, when determining whether a Frye hearing was

warranted, a reviewing court is free to consider court opinions from other jurisdictions. Id. at

531.

¶ 58 Here, the trial court did not err in denying defendant’s request for a Frye hearing because

Agent Raschke’s testimony regarding historical cell site information was not the product of new

or novel scientific principle and methodology. The State presented a map showing the locations

of the cell sites to which defendant’s phone connected and the times at which those connections

occurred. The State argues that this is not scientific evidence, because creating the map involved

no more than reading defendant’s cell phone records and transferring that information to a map.

Reading the coordinates of cell sites from phone records and plotting them on a map is not a

scientific procedure or technique, and the Frye standard is not applicable. State v. Patton, 419

S.W.3d 125, 129-30 (Mo. Ct. App. 2013).

23 No. 13-1474

¶ 59 Regardless whether historical cell site evidence is scientific, the use of cell phone

location records to determine the general location of a cell phone is not “new” or “novel” and has

been widely accepted as reliable by numerous courts throughout the nation. See, e.g., People v.

Powell, 2015 IL App (5th) 120258-U, ¶ 87 ( “[t]his methodology has consistently been deemed

reliable and has been widely accepted by numerous courts”); Stevenson v. State, 112 A.3d 959,

968 (Md. Ct. Spec. App. 2015) (holding that the circuit court properly declined to conduct a Frye

hearing into the use of call detail records to determine the time and location of defendant’s cell

phone’s connection to particular cell towers and noting the technique’s reliability and wide

acceptance by numerous courts); United States v. Schaffer, 439 Fed. App’x. 344, 347 (5th Cir.

2011) (concluding that the field of “historical cell site analysis” was “neither untested nor

unestablished”); United States v. Dean, No. 09 CR 446, 2012 WL 6568229, at *5 (N.D. Ill. Dec.

14, 2012) (finding that expert testimony relating to cell site records was reliable and would assist

the trier of fact to determine a fact at issue, and noting that “such testimony is generally accepted

in the Seventh Circuit”); United States v. Fama, No. 12-CR-186, 2012 WL 6102700, at *3

(E.D.N.Y. Dec. 10, 2012) (noting that “[n]umerous federal courts have found similar testimony

reliable and admissible” (internal quotation marks omitted)); United States v. Jones, 918 F. Supp.

2d 1, 5 (D.D.C. 2013) (collecting cases that conclude that historical cell site analysis is neither

untested nor unestablished); United States v. Rosario, No. 09-CR-415-2, 2014 WL 6076364, at

*2-3 (S.D.N.Y. Nov. 14, 2014) (concluding that an FBI Special Agent’s cell-site analysis

testimony was based on techniques sufficiently reliable to be admitted under Federal Rule of

Evidence 702 (Fed. R. Evid. 702)); State v. White, 2015-Ohio-3512, 37 N.E.3d 1271, at ¶ 29

(“We agree with those federal courts concluding that cell-site analysis testimony, like that given

by Horan, is reliable.”); Pullin v. State, 534 S.E.2d 69, 71 (Ga. 2000) (“the technology in

24 No. 13-1474

question has reached a scientific stage of verifiable certainty to be admissible in the trial of this

case”).

¶ 60 Defendant cites United States v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012),

claiming that historical cell site analysis is a new methodology for purposes of Frye. In Evans, a

cell site expert used a “granulization theory” to estimate the location from which several of the

defendant’s phone calls had originated. Evans, 892 F. Supp. 2d at 952-56. Observing that factors

such as topography, physical obstructions, and the signal strength of another tower can impact

whether a cell phone connects to the tower closest to it, the court noted, however, that the

granulization theory did not fully account for the fact that a cell phone does not always use the

closest tower. Id. at 953, 956-57. Further noting, among other things, that the granulization

theory had not been generally accepted in the scientific community, the court held that the theory

was unreliable and that the expert could not testify about it. Id. at 955-57.

¶ 61 Here, the defendant’s reliance on Evans is misplaced because Agent Raschke did not use

a granulization theory to estimate the locations from where the defendant’s calls had been made.

Agent Raschke rather used historical data from the defendant’s cell phone records to demonstrate

the towers that the defendant’s phone had actually activated. Accordingly, defendant’s reliance

on Evans is misplaced. See People v. Powell, 2015 IL App (5th) 120258-U, ¶ 87 (and cases cited

therein) (observing numerous courts that have limited Evans to its facts). Accordingly, based on

the general acceptance of the underlying techniques, we find that the trial court did not err in

declining to conduct a Frye hearing when the use of historical cell site analysis was not the

product of new or novel scientific principle or methodology.

¶ 62 Agent Raschke’s Testimony

25 No. 13-1474

¶ 63 Defendant argues that he is entitled to a new trial because the trial court erroneously

allowed FBI Agent Raschke to testify without sufficient foundation to the conclusion that

defendant’s phone was “at or near” Maggy’s when the crimes were committed. According to

defendant, Raschke used defendant’s call detail records to approximate the location of his phone

but Raschke did not testify regarding how the approximation was done. Defendant contends that

Raschke never testified regarding the reach of each tower, he never performed any confirmatory

testing in his analysis, and he never made any calculations to determine the actual reach of each

tower or even an estimated reach of each tower.

¶ 64 Defendant does not dispute that Raschke was qualified as an expert to testify in the field

of historical cell site analysis. Under Rule 705 of the Illinois Rules of Evidence (Ill. R. Evid. 705

(eff. Jan. 1, 2011)), an expert is allowed to give an opinion without divulging the basis for it and

shifts the burden to the opposing party to elicit and to explore the underlying facts or data on

cross-examination. People v. Simpson, 2015 IL App (1st) 130303, ¶ 37. Rule 705, codified

preexisting case law placing the burden on the adverse party during cross-examination to elicit

facts underlying expert opinion. Id.; Ill. R. Evid., Committee Commentary (eff. Jan. 1, 2011) (the

newly enacted Illinois Rules of Evidence merely codified existing case law whenever the Illinois

Supreme Court “had clearly spoken”); People v. Williams, 238 Ill. 2d 125, 137 (2010) (observing

that in Wilson v. Clark, 84 Ill. 2d 186 (1981), the Illinois Supreme Court had adopted the

identical Rule 705 of the Federal Rules of Evidence); cf. People v. Safford, 392 Ill. App. 3d 212,

221 (2009) (for expert testimony to be admissible, the proponent must lay an adequate

foundation establishing that the information on which the expert based his or her opinion is

reliable). Whether the foundational requirements have been met is a question of law that we

review de novo. Id.

26 No. 13-1474

¶ 65 Here, contrary to defendant’s argument, the record indicates that although Raschke was

qualified as an expert to testify in the field of historical cell site analysis, he thoroughly

explained the basis for his testimony establishing a sufficient foundation for his findings.

Raschke testified that he based his findings on how cell phones and cell towers interact and

explained that a cell phone was basically a radio that has a transmitter and a receiver. When a

call is placed, the phone sends a signal with the information to the cell phone; when the cell

phone receives a call, the cell tower sends a signal with that information to the cell phone. At the

time when that interaction takes place, a call detail record is generated and the call detail record

will indicate the time and date that occurred, which phones were involved in that call, and then

which cell towers were being used during that call.

¶ 66 Raschke further explained that if a user moves throughout the network during a phone

call, the towers and sectors employed will continuously change. Raschke testified that a cell

tower closest in proximity to a cell phone will generally give the strongest signal but that

coverage areas can sometimes overlap. Sometimes, an obstruction may prevent the closest tower

from providing the strongest signal, depending on where the phone was located. The cell phone

switches from tower to tower to ensure the best signal. Raschke explained that a call detail

record is generated with each call indicating the time and date, the phone used and cell towers

that were used. He testified that historical cell site analysis involves the analyst using his training

and expertise with cellular technology and call detail records to analyze and interpret those

records and tower lists from the phone company to determine the approximate locations where a

phone was when a call was placed and received.

¶ 67 Using defendant’s cell phone records and a map of the locations of the U.S. Cellullar

towers in July 2005, Raschke traced the towers used by defendant’s phone from 10 a.m. through

27 No. 13-1474

1:24 p.m., showing that his phone moved from the general area around his girlfriend’s house up

north to the general area of Maggy’s around the time of the murders and then back to the general

area around his girlfriend’s house. Raschke did not attempt to identify the exact locations or

addresses from where the calls from the defendant’s phone had been made. Instead, Raschke

acknowledged that he did not know the specific location of defendant’s cell phone at those times

and made general references to the towers and sectors that had been used during the calls, as

plotted on the map.

¶ 68 Furthermore, defendant’s attorney performed a vigorous cross-examination regarding the

process, the methodology used, and highlighted the fact that Raschke never testified regarding

the reach of each tower nor made any calculations to determine the actual reach of each tower.

Raschke explained during cross-examination that he did not do those things because tower

configurations were different in 2005 than at the time of his analysis and “[t]here’s just been too

much change for that [confirmatory testing].” Moreover, since Raschke testified as an expert

under Illinois Rule of Evidence 705, any issues regarding the details Raschke provided to

support his opinion that defendant’s cell phone was in the area of Maggy’s during the time when

the crimes occurred went to the weight, not the admissibility of the evidence. See People v.

Simpson, 2015 IL App (1st) 130303, ¶ 38. But Raschke’s testimony about the methodology and

his reading of the call detail records for defendant’s phone established a sufficient foundation for

his testimony. Therefore, the trial court did not err in admitting Rachke’s testimony regarding the

time and location of the cell towers used by defendant’s phone.

¶ 69 The Witness’s Comment

¶ 70 Defendant next contends that he is entitled to a new trial where the jury heard Detective

McCormack’s improper and prejudicial testimony that he searched through “criminal histories”

28 No. 13-1474

in the Chicago police database. Detective McCormack testified that he ran the lottery number

5157 through the police database as a south side address, came up with numerous people, and

clicked on their “criminal histories.” Defendant claims that although the comment was stricken,

Detective McCormack’s testimony that he found an association between the number 5157 and

defendant’s name was prejudicial, improper other-crimes evidence that the jury should never

have heard.

¶ 71 Evidence of collateral crimes, i.e., crimes for which the defendant is not on trial, is

inadmissible to merely establish the defendant’s propensity to commit crimes. People v.

Lindgren, 79 Ill. 2d 129, 137 (1980). The improper introduction of other-crimes evidence is

harmless error when a defendant is neither prejudiced nor denied a fair trial based upon its

admission. People v. Nieves, 193 Ill. 2d 513, 530 (2000). Admission of other-crimes evidence is

reviewed under an abuse of discretion standard. People v. Donoho, 204 Ill. 2d 159, 182-83

(2003). A trial court abuses its discretion only when its ruling is arbitrary, fanciful, or where no

reasonable person would take the view adopted by the trial court. Id. at 182.

¶ 72 Here, there was no direct evidence at the conviction stage of the trial that the defendant

had engaged in criminal conduct prior to the offense for which he was being tried. At most,

Detective McCormack’s testimony may have raised an inference in the jurors’ minds that the

defendant had a criminal history. However, the record reflects that the trial court promptly struck

Detective McCormack’s comment regarding the “criminal history” following defense counsel’s

objection. Nonetheless, defendant argues that the trial court abused its discretion when it failed to

prevent the State from eliciting testimony connecting lottery ticket number with defendant’s

name. We disagree.

29 No. 13-1474

¶ 73 Steps in the investigation of a crime and events leading up to an arrest are relevant when

necessary and important to a full explanation of the State’s case to the trier of fact. People v.

Lewis, 165 Ill. 2d 305, 346 (1995) (citing People v. Hayes, 139 Ill. 2d 89, 130 (1990)).

“[E]vidence of other-crimes is not admissible merely to show how the investigation unfolded

unless such evidence is also relevant to specifically connect the defendant with the crimes for

which he is being tried.” (Emphasis in the original.) Id. In the instant matter, Detective

McCormack’s testimony connecting defendant’s name to the lottery ticket with the number 5157

recovered from the crime scene was important for the State’s case to unveil how the

investigation leading to defendant’s identification proceeded. Specifically, following Detective

McCormack’s investigation, a photographic array was created containing defendant’s picture

that was shown to Brandon Grezesiak who ultimately identified defendant as the person sitting

outside Maggy’s just minutes before the crime was committed.

¶ 74 We find that the cases defendant cites to support his contention that the trial judge abused

his discretion are inapposite. For instance, in People v. Barnes, 182 Ill. App. 3d 75 (1989), an

unlawful use of firearms case, the State questioned the defendant, his companion, and three

police officers about a large amount of cash the defendant had at the time he allegedly committed

the crime. The State again emphasized the defendant’s possession of the cash in closing

argument. Id. at 80-83. We held that such bad character evidence was inadmissible because

“clearly the amount of cash recovered from defendant’s possession was irrelevant to proving he

was guilty of the unlawful use of a firearm. Yet, from the very onset of trial *** the jury was

bombarded with this irrelevant evidence, which took on the appearance of being a central issue

to be considered by the jury in its assessment of defendant’s credibility and which could only

have suggested to the jury that the cash was obtained through some illegal means.” Id. at 83-84.

30 No. 13-1474

¶ 75 Similarly, in People v. Harbold, 124 Ill. App. 3d 363 (1984), this court found that the

prosecutor intentionally committed misconduct by eliciting testimony concerning weapons found

at the defendant’s residence. The prosecutor in Harbold offered evidence of weapons as

“indicative of the type of person [defendant was].” Id. at 384. This court found that the error was

not harmless where the trial court’s admonishment to the jury to disregard any reference to a

weapon was made several minutes after the reference and where the prosecutor engaged in a

“consistent tactic of bolstering its case with irrelevancy.” Id.

¶ 76 Here, unlike Barnes and Harbold, the single reference to “criminal history,” which was

promptly stricken by the trial court, and Detective McCormack’s testimony associating

defendant’s name to the lottery ticket did not prejudice defendant or deny him a fair trial

considering the entire evidence presented at trial. See People v. Evans, 209 Ill. 2d 194, 219, 221

(2004) (holding that admission of defendant’s statement that “I come up here a lot” when

escorted to his jail cell “was brief and nonspecific” and “overshadowed by extensive evidence of

defendant’s guilt”); People v. Towns, 157 Ill. 2d 90, 106-07 (1993) (rejecting defendant’s

ineffective assistance of counsel claim, holding that the defendant was not prejudiced by the

introduction of the remarks, “ ‘I would go back to jail’ ” and “ ‘I can’t go back to jail’ ”).

¶ 77 The evidence at trial against defendant was substantial. Brandon Grzesiak identified

defendant as the person that he saw outside of Maggy’s just minutes before the crimes were

committed. Before seeing defendant in the video recovered in the store, Grzesiak provided a

description of him and helped the detectives create a sketch of the suspect. Fifteen days after the

murders, Grzesiak identified defendant as the person he saw at the bus stop and as the person in

the store video. On April 12, 2007, Grzesiak viewed a physical lineup and again identified

defendant.

31 No. 13-1474

¶ 78 Defendant contends that the evidence against defendant was “littered with weaknesses

and, at minimum, closely balanced.” Defendant claims that Grzesiak’s identification of

defendant was doubtful since he failed to identify defendant in a photo array. However, assuming

that this was true, 2 the testimony that a prosecution witness looked through a photo book without

identifying defendant was harmless in light of overwhelming identification of defendant in a

photo array, in a lineup, and at trial. See People v. Hayes, 168 Ill. App. 3d 816 (1988). In

addition, defendant’s cell phone records and the partial DNA evidence recovered underneath

Guerrero’s fingernails corroborated Grzesiak’s identification. Therefore, in the light of the

substantial evidence against defendant, even assuming that the trial court erred in allowing the

testimony of Detective McCormack associating defendant’s name with one of his addresses and

his lottery ticket number, the error was harmless as it did not prejudice defendant or deprive him

of a fair trial.

¶ 79 Prosecutor’s Comments During Rebuttal

¶ 80 Defendant next contends that the prosecutor made improper comments during rebuttal

when arguing to the jury that defendant’s theory of defense was that there was a “grand

conspiracy” against him involving all the State’s witnesses. According to defendant, aside from

being a mischaracterization of defendant’s defense, the State’s remarks misled the jury into

thinking that they had to find the existence of a “frame up” in order to acquit. Defendant urges

this court to reverse his conviction and remand for a new trial when the prosecutor’s argument

distorted the burden of proof and violated his right to a fair trial.

¶ 81 Defendant acknowledges that he did not object to this error at trial and asks us to review

the forfeited error under the plain error doctrine. Under plain error review, we will grant relief to

a defendant in either of two circumstances: (1) if the evidence is so closely balanced that the 2 The record is not clear on this matter. 32 No. 13-1474

error alone threatened to tip the scales of justice against the defendant, or (2) if the error is so

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167,

178-79 (2005). Under the closely balanced prong of plain error review, the defendant must show

prejudicial error. Herron, 215 Ill. 2d at 187. The defendant bears the burden of persuasion with

respect to prejudice. People v. Lewis, 2015 IL App (1st) 130171, ¶ 31.

¶ 82 In presenting a closing argument, the prosecutor is allowed a great deal of latitude and is

entitled to argue all reasonable inferences from the evidence. People v. Jones, 2014 IL App (3d)

121016, ¶ 37. The prosecutor is allowed to comment on the evidence and reasonable inferences

from the evidence, including a defendant’s credibility or the credibility of the defense’s theory of

the case. Id. The standard of review applied to arguments by counsel is similar to the standard

used in deciding whether a plain error was made: comments constitute reversible error only when

they engender substantial prejudice against a defendant such that it is impossible to say whether

or not a verdict of guilt resulted from those comments. People v. Henderson, 142 Ill. 2d 258, 323

(1990). During rebuttal, prosecutors are entitled to respond to comments made by the defendant

“ ‘which clearly invite a response.’ ” People v. Ramos, 396 Ill. App. 3d 869, 875 (2009) (quoting

People v. Kliner, 185 Ill. 2d 81, 154 (1998)). As with other aspects of argument, rebuttal must be

considered in context with the other portions, including defendant’s argument. Id.

¶ 83 Here, after reviewing defendant’s closing argument and the State’s response, we find that

the State’s remarks regarding a grand conspiracy theory were invited by defendant’s remarks in

the closing argument. Defendant’s closing argument initially began by inferring that the entire

evidence at trial was distorted: “[t]his case illustrates that the police may have started with the

very best of intention *** But then—and maybe it was the media attention or the pressure from

33 No. 13-1474

the community to solve this horrible crime. And it was horrible. But it illustrates what happens

when the police and the ISP crime lab get over anxious. They discount it instead of paying

attention to it. They reject the evidence that doesn’t go with their theory. And they do whatever it

takes to make it fit.”

¶ 84 From there the argument addressed and questioned the believability of every State’s

witness. Counsel stated that, “it made Detective McCormack’s job easier because now they have

a target. He and fellow detectives went about trying to build their case against [defendant].”

Counsel then attacked the testimony of Brandon Grzesiak stating that “Brandon had a flawed

opportunity to observe. It led to his flawed identification of my client.” Counsel also added that

“[Grzesiak] knew who he was supposed to pick out. It is not just clues, inadvertent or not by the

police. But pressure to perform. To identify the man.”

¶ 85 Next, counsel referred to testimony of the U.S. Cellular representative Solandia Haddock

and argued that she could not identify at trial the phone in the video as the exact phone that was

associated with defendant. The testimony of Agent Raschke was questioned along with the cell

phone evidence in the case, which according to counsel “was nothing more than a red hearing,

ladies and gentleman. Because agent Raschke had to admit it didn’t prove that the phone was

inside that circle which contained Maggy’s Foods.”

¶ 86 The argument continued with counsel’s lengthy remarks on the DNA evidence and the

CPD’s investigation including the lottery tickets that were recovered from the crime scene and

questioning the detectives’ motives for investigating the lottery ticket with the number 5157. For

instance, counsel noted that “all the State’s Illinois Police crime lab analyst that did DNA work

in this case knew the target was my client *** So CPD had selected [defendant] as the target. So,

their analysis which excluded [defendant], and nobody disputes that *** simply wouldn’t do. So

34 No. 13-1474

ISP then went back and tried to build a scientific case against [defendant].” Counsel also stated

the following regarding the DNA testing in this case:

“Here Orchid Cellmark, the blind analysis, had one answer. Davere Jackson’s report

had a different answer. Davere Jackson’s 2012 report had another [sic], yet another

answer. And the ISP 2012 had still another.

Why these last minute interpretations [sic]. To try to make the DNA case against

my client stick. Where it doesn’t stick. They want to hide behind their protocols. The

change in the way they do their job. Really. Because how can a protocol that allows

untold re and re and re-interpretations ever result in anything reliable. Ever been

trustworthy. How can analysts under these kinds of protocol solidly interpret data. They

certainly couldn’t in this case.

Don’t let them fool you in calling what was done here science, ladies and

gentleman. They are hiding behind what it should have been. While just making excuses

for why it wasn’t.”

¶ 87 In short, defendant questioned the veracity and believability of every single piece of

evidence in the State’s case-in-chief. Moreover, counsel anticipated that the State “may get up

here and say ladies and gentlemen, [defendant] must be the luckiest man in the universe. With all

of this circumstantial evidence against him.”

¶ 88 Given the nature and the extent of defendant’s accusation, the prosecutor’s response was

in the realm of invited comment:

“After listening to that closing argument, this man sitting right over here must be

the victim of the grandest conspiracy to frame you will ever hear. Think about it ladies

and gentlemen. Based on what Miss Lisco just told you, all the witnesses in this entire

35 No. 13-1474

case, no matter where they are from, no matter what they do, they are all out to get him.

They must be all out to get [defendant]. All of these witnesses came into this courtroom,

raised their right hand and decided, independent of one another, without getting together

beforehand, decided let’s frame him. And then let that real killer go.

***

And then, all of these agencies *** and all of these people *** they have all

conspired against [defendant].

Besides Brandon Grzesiak, you have Nicholas Guerrerro’s fingernails involved

in this conspiracy to frame. You have Orchid Cellmark scientists. They don’t even live

and work in this state. They want to put a case on him.

In addition to all those people, conspiring to frame him, Mr. Hammoudeh,

come on in and bring that video camera with you. Let’s get that video involved in this

conspiracy. And the Illinois State Lottery Commission. Come on in. Let’s frame this guy.

Let the real killer go. We are not going to stop here. US Cellular, a big corporation. Come

on in. Say this guy bought a phone, just three weeks before these double murders. And, in

addition to US Cellular, the FBI. Come on. Joe [Raschke], come on in. Come on in and

put a case on this guy. And now, ladies and gentlemen, in addition to all those people, all

this, we have the Chicago Police Department.

[CPD] still sent [clothes] to the lab. Does that sound like a frame job? By the

way, negative for blood. Does that sound like a frame job?

36 No. 13-1474

And with all those people, and all of those agencies, we now learn from it, from

Miss Lisco’s closing argument, that the Guerrero family and the Rodriguez family, they

are in the conspiracy too. They want to frame [defendant] too. And all the people in the

community by Maggy’s Food Store. They want to put a case on him too. And let the real

killer go free.

If she is calling Davere Jackson and Pauline Gordon liars, because they have

some interest, bias, or motive, well, what about the fingerprint expert from the crime lab.

Shouldn’t they be putting a frame job together against him too.

Their witnesses say he can’t be excluded. Not once, twice. . . I guess, I guess, I

hate to say this, but maybe Mr. Muller is involved in this conspiracy to frame too.

Oh, by the way, if [scientists] are overwhelmed like she said, then when did

they have the time to frame an innocent man.

This is the defense of deperation. That’s what it is.

The scientists at this crime lab, she suggesting is involved in this grand

conspiracy, didn’t find his fringerprints on the items here.”

¶ 89 Defendant claims that these comments amount to an accusation of conspiracy and

encumbered him with the burden to show that the State’s witnesses had conspired to frame him.

37 No. 13-1474

We disagree. As the record clearly reflects, the State’s rebuttal closing was comprised

significantly of responses to defendant’s argument. Neither the portions quoted in the brief nor

the complete argument demonstrates any impropriety. Instead, defendant responded fairly to

defendant’s accusations. People v. Ramos, 396 Ill. App. 3d 869, 876-77 (2009); People v.

Phillips, 392 Ill. App. 3d 243, 275 (2009).

¶ 90 Furthermore, the State’s rebuttal argument never approached the position that defendant

had to prove the State’s witnesses were lying or had fabricated evidence in order for defendant to

be acquitted. The comments were invited by the defense’s closing argument that the State’s

witnesses could not and should not be believed. See People v. Temple, 2014 IL App (1st)

111653, ¶ 74 (“the State’s comments about a conspiracy were a direct response to the defense’s

attack on the credibility of the state witnesses and therefore was not a misstatement of the law or

an attempt to distort the burden of proof” (internal quotation marks omitted)). Consequently, we

find no impropriety in any aspect of the State’s rebuttal closing argument.

¶ 91 We also find the case on which defendant relies to be inapplicable. See People v. Wilson,

199 Ill. App. 3d 792 (1990). In Wilson, the defendant argued that the State had improperly

shifted the burden during closing by asking the jurors whether it was “ ‘curious to anyone the

defense would have you believe everybody in this case is guilty except the Defendant.’ ” Wilson,

199 Ill. App. 3d at 796. This court found that the comments sent a message to the jury that the

defendant had a burden to show the State’s witnesses had lied in order to prove his innocence,

improperly shifting the burden. Id. at 797. In Wilson, this court reasoned that “[t]o inform a jury

that to believe the defense witnesses the jury must find that each of the State’s witnesses was

lying is a misstatement of law.” Id. at 796.

38 No. 13-1474

¶ 92 Here, in contrast, the State’s comments about a conspiracy were a direct response to the

defense’s attack on the credibility of the State witnesses and therefore “was not a misstatement

of the law or an attempt to distort the burden of proof.” See People v. Lash, 252 Ill. App. 3d 239,

253 (1993) (stating that “[c]learly, whether defendant’s theory of defense is reasonable in light of

the evidence produced is within the scope of proper rebuttal comment”). In addition, Wilson was

decided before the supreme court’s decisions in Banks and Coleman, where the supreme court

distinguished situations where a prosecutor permissibly argued that a jury would have to believe

the State’s witnesses were lying in order to believe the defendant’s version of events versus

improperly arguing that the jury would have to believe the State’s witnesses were lying in order

to acquit defendant. People v. Banks, 237 Ill. 2d 154, 184-85 (2010) (citing People v. Coleman,

158 Ill. 2d 319, 346 (1994)). Here, the prosecutor never argued that the jury would have to

believe the State’s witnesses were lying in order to acquit defendant. Accordingly, defendant’s

reliance on Wilson is misplaced.

¶ 93 Furthermore, even assuming arguendo that an error occurred, there was no plain error

because, as established previously, the evidence at trial was not closely balanced. Likewise,

defendant cannot establish plain error under the second prong of the plain error analysis. Under

the second prong, the defendant must prove there was plain error and that the error was “so

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process.” Herron, 215 Ill. 2d at 187. Error in closing argument does not fall into the type

of error recognized as structural. People v. Cosmano, 2011 IL App (1st) 101196, ¶ 78. Having

found no error, defendant is not entitled to relief under the plain error review. See Ramos, 396

Ill. App. 3d at 873. Therefore, defendant’s claim fails on appeal.

¶ 94 CONCLUSION

39 No. 13-1474

¶ 95 Based on the foregoing, we affirm the judgment of the trial court.

¶ 96 Affirmed.

¶ 97 JUSTICE HYMAN, dissenting.

¶ 98 I believe the trial court abused its discretion in refusing to grant Fountain a meaningful

continuance to prepare for the State’s new DNA evidence, disclosed mere days before trial. This

evidence, which is highly unconvincing and open to subjective interpretations, likely had an

outsize effect on the jury’s verdict. The rest of the State’s case against Fountain was weak,

particularly the eyewitness identification and the cell-phone evidence. Given all this, I believe

the trial court’s refusal to grant a meaningful continuance prejudiced Fountain. I also believe that

the majority’s ill-considered opinion does a disservice to the law governing DNA evidence.

¶ 99 The Trial Court Should Have Granted a Meaningful Continuance

¶ 100 The majority concludes that the trial court did not abuse its discretion in refusing a

meaningful continuance to review the additional DNA evidence promulgated by the State mere

days before the beginning of trial. I disagree; given the impact and importance of this evidence,

the trial court should have allotted defense counsel more time to adequately review it.

¶ 101 As the majority points out, the trial court considered the issue several times, but that does

not insulate the decision from review. The trial court seemed to base its decision, in part, on the

fact that the DNA experts were not scheduled to testify until several days into the trial, so

Fountain’s counsel would have time to prepare. Never mind the fact that Fountain’s counsel

would be spending those intervening days conducting the actual trial and preparing for the first

set of witnesses. We should not expect criminal defense attorneys (or prosecutors) to effectively

conduct pretrial investigation on nuanced, multifaceted, and consequential matters while also

managing the day-to-day demands of an on-going trial.

40 No. 13-1474

¶ 102 Factors Weigh in Favor of Granting Meaningful Continuance

¶ 103 Whether the trial court should have granted a meaningful continuance rests on the

consideration of a number of factors. People v. Walker, 232 Ill. 2d 113, 125 (2009). Each of

these factors weighs in Fountain’s favor. Fountain’s counsel diligently requested the continuance

immediately after the State disclosed the new DNA evidence (about which more will be said). It

is hard to see how the interests of justice have been served by the trial court’s denial. Surely

there can be no speedy-trial concerns; after six years, another week or two would not have

changed matters. And Fountain was faced with grave criminal charges, and a decades-long

prison sentence.

¶ 104 The case’s history also weighs in Fountain’s favor. The majority correctly notes that this

case had been on the trial court’s docket for six years, but it is worth remembering why. For the

first three years of its pendency, the State was pursuing the death penalty against Fountain.

Because of this, defense counsel spent (as required) a large portion of its pretrial time preparing

for a possible capital sentencing hearing.

¶ 105 Throughout that time, the trial court pushed defense counsel to prepare faster. For

example, when defense counsel needed time to have Fountain’s mental state evaluated, the trial

court stated that this was “just another way for you to buy more time and delay the case that

much longer.” Once the death penalty was taken off the table (by legislative action), the case

accelerated, and trial was set for July 2012.

¶ 106 But, not until May 2012, did the State disclose that the cell-phone-tower evidence

(discussed in detail later). That necessitated a number of continuances as defense counsel tried to

prepare for this new scientific evidence. Yet the trial court insisted on setting an October 22 trial

date even though defense counsel protested that they were not ready to proceed due to the new

41 No. 13-1474

cell-phone evidence. When Fountain’s counsel stated that it would file a Frye motion

challenging that evidence, the trial court said, “I wish I had a penny for every time I mentioned

in the record how old this case is” and repeatedly stated that October 22 was a firm trial date.

¶ 107 Just four days before the trial date, on October 18, the State first disclosed that Davere

Jackson had written a new DNA report. Fountain’s counsel asked for a continuance, and the trial

court told the parties to return to court the next day: “I’ve been barking like a sea lion asking for

fish for the last year and a half trying to get this case going.” On Friday, October 19, defense

counsel moved to bar Jackson’s testimony and stated that they needed to consult an expert.

Meanwhile, the State still had not disclosed yet another new report from the Illinois State Police

(ISP) (it did so that Friday afternoon). The court agreed to hold the case until Monday, October

22, stating that it might give defense counsel a continuance.

¶ 108 Presumably, defense counsel spent an unpleasantly stressful weekend. In court on

October 22, the state tendered yet more discovery to defense counsel. The trial court asked

counsel, “Why do you need a day right now?” To which defense counsel responded, “Knowing

what the court’s position is on the continuance because you told us last week—we are asking for

just a day, one day so that we can do our due diligence *** with documents that were just

tendered as well as talking to our consultant.” The trial court granted this paltry one-day

continuance because it did not want to change the witnesses’ travel plans and refused to bar

Jackson’s testimony.

¶ 109 When the trial court complained about how long the case had been sitting on the docket,

its complaints were justified—but directed at the wrong party. The late DNA disclosures were

not the first time the State’s decisions forced Fountain’s counsel to change its trial strategy and

beg for more time to prepare.

42 No. 13-1474

¶ 110 Given this context, it is completely sensible that Fountain’s counsel would seek only “one

day” as a continuance. Though Fountain’s counsel gave reasons for needing more time, the trial

court had made it amply clear, over the course of years, that it was determined to hold the trial as

soon as possible and would have been unsympathetic to any reasonable request. In the face of

this unyielding attitude, Fountain’s counsel cannot be faulted for asking for a crumb. In

paragraph 40, the majority reasons that because Fountain’s counsel asked for and received one

day, that ends the matter. My colleagues fail to appreciate that Fountain’s counsel was stuck

between a rock and a hard place. Defense counsel should not have to choose between provoking

or exasperating the trial judge and harming a client’s prospects.

¶ 111 There would have been some inconvenience to the parties and witnesses had there been a

lengthy delay. At oral argument, Fountain’s counsel specified that a “meaningful” continuance

would have been three weeks. (In paragraph 40, the majority erroneously characterizes this as

speculation on my part.) But expert witnesses already were scheduled to fly into Chicago from

out of state for their testimony. On the other hand, it seems contrary that Fountain should bear

the burden of that problem when the State disclosed these reports at an unduly late date. Perhaps

the better practice would have been to bar these new reports (as Fountain’s trial counsel

requested).

¶ 112 Complexity of the Evidence Required Meaningful Continuance

¶ 113 Complexity Favors Leniency on Additional Time

¶ 114 The majority already has described the substance of the DNA testimony without

explaining this important evidence. This is not a situation where a traditional “battle of the

experts” between the State and the defense gave rise to a claim that the jury should have believed

one side’s expert over another. This case was far more troubling, because the State’s experts did

43 No. 13-1474

not even agree with each other!

¶ 115 The State DNA experts ultimately promulgated four—yes, four—separate reports on the

minor-profile DNA: from Cellmark labs in 2006 (testified to by Sarah Walker), from Davere

Jackson of the ISP in 2007, from Pauline Gordon of the ISP in 2012, and another report from

Jackson in 2012 (these last two reports being the cause of the request for continuance). All four

reports interpreted the same data but came to four different conclusions.

¶ 116 The Cellmark technicians analyzed the DNA (a “mixed” profile from two different

persons), which had been taken from under Nicholas Guerrero’s fingernails. The mixed profile

needed to be separated into its components: the “major” profile from Guerrero and the “minor”

profile from an unknown person, presumably the murderer. Each profile would contain DNA

alleles, which are genes at specific locations, or “loci” on a chromosome. Cellmark produced an

“electropherogram” showing the presence of these alleles at 14 loci. (Only 13 of these loci are at

issue; the fourteenth locus was the X/Y locus showing male contributors.) It was this

electropherogram printout that each DNA expert was required to interpret. The printout looks

like an EKG, with jagged “peaks” of various heights.

¶ 117 At the most basic level, each expert had to determine whether each peak was high enough

to show the presence of DNA allele. A peak showed the presence of DNA; a flat line would

show that DNA was not present. Since Guerrero was one of the contributors to the mixed profile,

the peaks tended to be high at points known to match Guerrero’s own DNA profile. But the

peaks from the second, “minor” contributor were smaller, and of various sizes. For those peaks,

there was a wide range of interpretations. The experts apparently had no agreed-on standard as to

what size peak was “enough” to draw a conclusion for a particular locus. Quite literally, the State

experts’ disagreement boiled down to “that’s not enough” versus “sure it is.” Here is a summary

44 No. 13-1474

(taken from defense exhibit No. 17) showing the disagreement between the four reports:

Locus Fountain Cellmark ISP 3/13/07 Jackson 10/17/12 ISP 9/26/06 10/19/12 D3S1358 16/16 Not used 15/16; 16/16 15/16; 16/16 15/16;16/16

vWA 15/16 15/16 15/16 15/16 15/16

FGA 24/25 24/25 24/25 24/25 24/25

D8S1179 14/16 Not used 16/16 13/16;14/16;16/16 13/16;14/16

D21S11 28/32.2 28/32.2 28/32.2 28/32.2 28/32.2

D18S51 18/19 Not used Not used Not used Not used

D5S818 12/12 12/12 12/12;12/13 12/12;12/13 12/12;12/13

D13S317 11/12 Not used 12/8; 12/9; 12/10;12/11; 12/8;12/9;12/10; 12/8; 12/9; 12/12;12/13;12/14;12/15 12/11;12/12;12/13; 12/10;12/11; 12/14; 12/15 12/12;12/13; 12/14; 12/15 D7S820 8/12 Not used 12/7; 12/8; 12/9; 12/10; 12/7; 12/8; 12/9; 12/7; 12/8/ 12/11; 12/12; 12/13; 12/10; 12/11; 12/9; 12/10; 12/14 12/12; 12/13; 12/11;12/12; 12/14 12/13; 12/14 D16S539 9/14 9/14 9/14 9/14 9/14

TH01 7/7 7/9 7/7 7/7 7/7; 7/9

TPOX 8/10 8/10 10/6; 10/7; 10/8; 10/9; 10/6; 10/7; 10/8; 10/6; 10/7; 10/10; 10/11; 10/12 10/9; 10/10; 10/11; 10/8; 10/9; 10/12 10/10;10/11; 10/12 CSF1PO 11/12 Not used 12/7; 12/8; 12/9; 12/10; 12/7; 12/8; 12/9; 12/7; 12/8; 12/11; 12/12; 12/13; 12/10; 12/11; 12/9; 12/10; 12/14 12/12; 12/13; 12/11;12/12; 12/14 12/13; 12/14

¶ 118 The Cellmark analysts examined the electropherogram and found not enough information

(i.e., the peak was not high enough) to make a “call” (determine the alleles) at six loci (D3, D8,

D18, D13, D7, and CSF). Yet Jackson and Gordon felt comfortable making a call at D3, D8,

45 No. 13-1474

D13, D7, and CSF. (They agreed that there was not enough information at D18.) The FBI

requires results at eight loci for an unknown profile to be submitted to its database. See Federal

Bureau of Investigation CODIS and NDIS Fact Sheet, available at https://www.fbi.gov/services/

laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet. Cellmark’s analysis barely met

this standard.

¶ 119 The Cellmark analysts examined locus TH01 and determined that the mixed profile donor

was a 7/9. (The numbers indicate that the donor had seven “repeats,” or repeated DNA

sequences, on one side of the locus and nine repeats on the other side.) Jackson, in both her 2007

and 2012 reports, determined it was actually 7/7. Gordon stated that it could be either a 7/7 or a

7/9. Fountain is a 7/7; thus, under Cellmark’s interpretation he was excluded as the donor, but

significantly, Gordon and Jackson included him (though they did not agree with each other as to

the possible alleles at that locus).

¶ 120 Jackson’s 2012 report made a fundamental change from her 2007 report, at the D8 locus.

Originally, Jackson had analyzed this locus as one possibility: 16/16. (Fountain is a 14/16.) In

2012, Jackson decided that she should have written three possible alleles at that locus: 13/16,

14/16, and 16/16. Confusingly, Jackson testified that even in 2007, her opinion was that Fountain

could not be excluded (though his 14/16 did not match her original report at that locus); she

appeared to attribute the change to a clerical error made in 2007 that she corrected in 2012. To

top it off, Gordon did not agree with either of Jackson’s reports; she interpreted the D8 locus to

include only 13/16 and 14/16 as possible alleles.

¶ 121 In the end, there were only four loci about which all four state reports agreed as to the

possible alleles. Four of thirteen loci. Astonishingly, Illinois courts have admitted such partial

DNA evidence and testimony. See People v. Mitchell, 2011 IL App (1st) 083143, ¶ 10 (four loci

46 No. 13-1474

compared); People v. Smith, 2012 IL App (1st) 102354, ¶ 20 (6 of 10 available loci, 9% of

African-Americans were included as contributors). The problem is not limited to Illinois: other

states also admit these partial DNA samples because of a lack of standards to determine whether

DNA samples, or statistical calculations derived from them, are credible. See, e.g., People v.

Coy, 669 N.W.2d 831, 836 (Mich. Ct. App. 2003) (five loci); State v. Bailey, 677 N.W.2d 380

(Minn. 2004) (five loci plus sex gene). But a match does not conclusively identify a subject, even

when every locus matches. See State v. Wright, 2011 MT 92, ¶¶ 21-25, 360 Mont. 246, 253 P.3d

838. And “[t]he dangers of partial matches have been known for over a decade.” People v.

Wright, 2012 IL App (1st) 073106, ¶ 83.

¶ 122 It is not surprising that the DNA testing did not produce conclusive results at all 13 loci.

After all, this was a miniscule amount of material drawn from underneath the victim’s fingernails

(and a “mixed” profile, making it exceedingly difficult, since the experts had to tease out

Guerrero’s results from the mixture before determining the profile of the “minor” contributor).

¶ 123 Incredibly, there appears to be no common standard on which the State experts relied in

drawing their conclusions. Even within the ISP, Jackson and Gordon disagreed about the

possible alleles at two loci (D8 and TH01). They are not alone in this. In one study, biologists

gave electropherograms from an actual criminal case to 17 expert DNA analysts and asked them

to determine whether a suspect could be excluded from the results. Itiel E. Dror & Greg

Hampikian, Subjectivity and bias in forensic DNA mixture interpretation, 51 Sci. & Justice 204,

205 (2011). Though all 17 analysts worked in the same laboratory and followed the same

interpretation guidelines, their results differed. Id. One concluded that the suspect could not be

excluded as the contributor; 12 concluded that he was excluded; and 4 determined that the data

was inconclusive. Id. The authors determined that there was “an element of subjectivity” in

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interpreting DNA. Id.

¶ 124 From this, one could easily conclude that the strength of the DNA evidence presented to a

jury might depend only on which analyst was assigned to do the analysis. Such arbitrary

randomness does not comport with due process nor does it give confidence that the State is

pursuing the actual perpetrator.

¶ 125 Despite these evident shortcomings, the State experts testified that the minor donor’s

profile (matching Fountain’s at the particular loci) would occur rarely. These probability

statistics rely on the product rule, which multiply loci frequencies to determine the probability of

a random match using a population genetic statistics database. Wright, 2011 MT 92, ¶ 22, 360

Mont. 246, 253 P.3d 838. In many cases, experts applying the product rule testify that the

likelihood of another match is so rare that it is likely no other living human being would share

that genotype profile. See State v. Lopez, 45 A.3d 1, 11 (R.I. 2012) (DNA expert testified that

probability of another individual matching the profiles was 1 in 11.45 quadrillion); State v.

Bander, 208 P.3d 1242, 1244 (Wash. Ct. App. 2009) (prosecution calculated another person

sharing defendant’s profile was 1 in 470 billion); People v. Hill, 107 Cal. Rptr. 2d 110, 114 (Cal.

Ct. App. 2001) (expert testified defendant’s DNA had genetic profile occurring in 1 of 5.89

trillion African-Americans). The State experts testified variously that the probability could be 1

in 1.7 billion or 1 in 56 billion (another example of the disagreements within the State’s case).

The State repeatedly emphasized these large numbers in its closing argument: “You have to

leave this planet. Perhaps with Captain Kirk and go to other solar systems. If you are lucky, find

eight more planet Earths that are populated with seven billion people on each planet, to start

looking for this rare a profile.”

¶ 126 But these probabilities can be powerfully misleading. Scientists and legal scholars have

48 No. 13-1474

questioned whether the high numbers testified in court estimating the probability of a nine-loci

“match” are “no better than alchemy.” David H. Kaye, Trawling DNA Databases for Partial

Matches: What Is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 145 (2009). The high

numbers may sound impressive but may not be grounded in reality. See id. at 148 (“There is

something to the notion that one should not take the number of zeroes in the random-match

probabilities too seriously.”); see also Erin Murphy, The New Forensics: Criminal Justice, False

Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 781 (2007)

(“recent evidence calls into question the accuracy of using the product rule to convey match

probabilities”). And juries can easily mistake the meaning of such a number: “we expect one of

180 million people to have this profile” does not mean that the odds are 180 million to one that a

defendant is not the source of the DNA. See Andrea Roth, Safety in Numbers? Deciding When

DNA Alone is Enough to Convict, 85 N.Y.U. L. Rev. 1130, 1148 (2010) (explaining difference

between “random match probability” and “source probability”); see also McDaniel v. Brown,

558 U.S. 120, 128 (2010). The actual odds that a defendant is the source of the DNA depend

heavily on the size of the suspect population in the area. Roth, supra, at 1148.

¶ 127 The rare probabilities derived from the product rule can easily be overblown and thus

have the potential to deprive defendants of their right to a fair trial. I am concerned that is what

happened at this trial. And the accuracy of the probability statistics depends on the accuracy of

the loci determinations. As the computer scientists are wont to say GIGO (garbage in, garbage

out), this principle most definitely applies here.

¶ 128 For evidence to be admitted, there must be a minimum standard of loci matches, and

none has yet been promulgated in Illinois. If the DNA evidence is even slightly relevant, judges

admit it, but judges currently are ill-equipped to determine its relevance. Judges also should take

49 No. 13-1474

a more active role to ensure accepting this kind of evidence willy-nilly does not unfairly

prejudice defendants. I certainly am not suggesting that DNA evidence should be excluded but

wish to emphasize the trial court’s duty to balance the probative value against the evidence’s

prejudicial effect. DNA evidence, in particular, can be uniquely prejudicial and misleading.

¶ 129 Both the State and the majority downplay the necessity of a continuance by claiming that

Davere Jackson’s opinion never changed between her first and second reports, but this refutation

misses the point. In her 2007 report, Jackson’s opinion (that Fountain was not excluded) made no

sense because it did not match her data showing exclusion at the D8 locus. (Fountain is 14/16,

but her first report determined that the minor profile was 16/16.) In the 2012 report, Jackson’s

opinion was unchanged but her report suddenly matched her conclusion. This inevitably changed

defense strategy as to Jackson. The State also disclosed another ISP report (from Gordon), which

differed still further from the three earlier reports.

¶ 130 Only a week before trial, Fountain’s counsel had two state reports to compare and

analyze. The State then disclosed two more reports, essentially doubling the DNA evidence

when the trial was imminent. Each of these reports had different conclusions needing thorough

understanding and presentation to a jury through cross-examination and testimony from defense

expert Dr. Mueller or possibly a new expert altogether, had they only had the time. It is hard to

imagine evidence in a criminal trial more byzantine than DNA evidence.

¶ 131 The State’s jamming of Fountain’s counsel with two new reports at the eleventh hour, the

inherently complex and multifaceted nature of the reports, and the DNA evidence in this case

warrant the trial court having granted a fair and substantial continuance and this court having

reversed the verdict on that basis.

¶ 132 Fountain Was Prejudiced by Trial Court’s Decision

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¶ 133 The majority concludes, based on trial counsel’s performance, that Fountain was not

prejudiced by the lack of continuance because trial counsel did an adequate job presenting Dr.

Mueller and cross-examining the state experts. Prejudice, in this context, is a question of “what

if?” (At oral argument, Fountain argued that he might have hired a different expert to address the

differences between the State reports. This is waived; it should have been raised earlier.) I have

no doubt that Fountain’s counsel tried their best to confront this new evidence, but how can we

say what was adequate under these extenuating circumstances?

¶ 134 We should consider the prominence that this evidence held within the trial. It was the

centerpiece of the State’s case and was inordinately complex scientific testimony and ripe for

confusion. See Jonathan J. Koehler, Linguistic Confusion in Court: Evidence from the Forensic

Sciences, 21 J.L. & Pol’y 515, 517 (2013) (confusion in understanding DNA evidence has been

documented and is relatively common). DNA evidence possesses an aura of infallibility and can

potentially impress on the jury that the case against the defendant appears more compelling and

more potent than other evidence, and therefore, the potential for a wrongful conviction increases.

See Kimberly Cogdell Boies, Misuse of DNA Evidence is Not Always a “Harmless Error”: DNA

Evidence, Prosecutorial Misconduct, and Wrongful Conviction, 17 Tex. Wesleyan L. Rev. 403,

405 (2011) (“Given the widespread belief in the reliability of DNA evidence, prosecutors must

be held to the highest standard, when DNA evidence is involved.”). And the State relied heavily

on this evidence in its closing argument.

¶ 135 DNA testing can be an unreliable indicator of guilt. For example, in 1999, Raymond

Easton was charged with burglary after law enforcement matched his DNA to a DNA database at

only six loci. Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook.

L. Rev.13, 49-50 (2001). DNA experts predicted a 1 in 37 million probability that a random

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person’s DNA would match. Id. at 50. But Easton had an alibi, and so the authorities tested four

more loci, which showed that Easton’s DNA did not match the DNA found at the crime scene.

Id.

¶ 136 Easton’s case underscores how human error can lead to inconclusive, if not false, results.

See Adam Liptak, The Nation; You Think DNA Evidence Is Foolproof? Try Again, New York

Times (Mar. 16, 2003), http://www.nytimes.com/2003/03/16/weekinreview/the-nation-you-

think-dna-evidence-is-foolproof-try-again.html. “The problem with DNA testing is not that it

results in falsely positive results. The problem is the human factor.” Id. This human factor came

to play a central role in Fountain’s case.

¶ 137 Given the complexity of the evidence, and the vital role this evidence took on in the trial,

to conclude that somehow Fountain was not prejudiced by the trial court’s decision is both naive

and erroneous.

¶ 138 Weakness of State’s Case

¶ 139 In his direct appeal, Fountain did not argue that the evidence as a whole was insufficient

to support a conviction. (Perhaps he should have.) But review of the State’s other evidence is

required to demonstrate the harmfulness of the trial court’s error regarding the continuance.

¶ 140 Cell-Phone-Tower Evidence

¶ 141 In addition to the DNA evidence, the State relied heavily on the cell-site tower evidence

from FBI Agent Joseph Raschke. The cell-phone records allowed Raschke to create a map of

which cell-phone towers “pinged” Fountain’s cell phone during the hours surrounding the

murder. Though Raschke was careful to specify that he could not pinpoint the phone’s precise

location during the murder, the State argued at length that this evidence showed Fountain’s

presence at Maggy’s during the murder: “the only reasonable inference you can make is that

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phone is inside that triangle. Could not be outside.” But this evidence is actually quite weak.

¶ 142 Critically, the phone records could not show whether Fountain was carrying that specific

cell phone on that day—the records only tracked the phone’s physical location but did not

identify who was carrying or using it. Moreover, the State premised its theory on the idea that

Fountain’s phone would have pinged off the nearest cell-phone tower and that because the phone

pinged off towers near Maggy’s, Fountain himself must have been near Maggy’s. But this theory

has a number of shortcomings.

¶ 143 When a cell phone scans for signal, it “looks” for six different towers. As Raschke

explained, the phone does not necessarily link to the nearest tower, it links to the tower with the

strongest signal. Though the nearest tower is often strongest, the signal strength can be affected

by obstacles such as buildings. Raschke had no way of accounting for whether the phone linked

to towers near Maggy’s because it could not link to towers that might have been closer to the

phone’s location (and Raschke’s maps show dozens of other towers on the south side of

Chicago).

¶ 144 Raschke’s analysis could not account for nonoperational towers. If Fountain stood

beneath a broken cell-phone tower further away from Maggy’s, the phone would then “search”

for the next-nearest tower, which might be closer to Maggy’s though several blocks away from

Fountain. Raschke’s map showed a number of towers in the same neighborhood that did not

“ping” off the cell phone, and he could not say whether those towers were functioning. Similarly,

if a tower becomes overloaded, the phone will switch to another tower regardless of the caller’s

distance from it.

¶ 145 Raschke could not say whether the phone was moving or still when it pinged off different

towers despite the State’s theory depending on the idea that Fountain was in one place—

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Maggy’s—for a time. The FBI’s written report specified that the range of each tower could be

one to two miles. In other words, Fountain could have been many blocks away from the towers

that are close to Maggy’s when the cell phone pinged them.

¶ 146 Finally, the State’s theory becomes even less convincing when examined closely.

Raschke’s map created a “box” of four towers connecting to the phone over a 24-minute period,

with Maggy’s inside that “box.” But consider the size of the box: each of the towers was at least

a mile and a half to two miles away from the other towers, so the box contained several square

miles of the city. Fountain’s phone’s presence within that box tells us little about his activities

that day.

¶ 147 If Fountain had given an alibi that he was outside the city on the day of the murder,

perhaps the cell phone evidence would be more convincingly inculpatory. As it stands, I do not

find it persuasive.

¶ 148 Eyewitness Identification

¶ 149 I will now turn to the other primary evidence against Fountain: Brandon Grzesiak’s

eyewitness identification.

¶ 150 According to Grzesiak, he and a friend went to Maggy’s that day to buy cigars to turn

into marijuana cigarettes; on his way in, and out of, the store, Grzesiak saw and briefly made eye

contact with the man at the bus stop, who was wearing a baseball cap. These glimpses lasted

only a few seconds at most, and Grzesiak had no reason to look carefully at the man or

remember his face (since Grzesiak had no idea of what was about to take place). Grzesiak had

never seen the man before and presumably saw a number of other strangers that day and the days

that followed. It was not until four days after the murder that Grzesiak learned about the incident

and was first asked to recollect a stranger he had seen on that day. Two weeks after the murder,

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Grzesiak viewed the first photo array. And in 2007, almost two years after the murders, Grzesiak

viewed a lineup and identified Fountain.

¶ 151 Both the judicial and executive branches of Illinois have recognized the potential of

eyewitness testimony to inculpate the wrong person. See People v. Tisdel, 338 Ill. App. 3d 465,

467-68 (2003); Report of the Governor’s Commission on Capital Punishment, at 127-28 (2002).

Courts throughout the country have reached similar conclusions. See People v. Starks, 2014 IL

App (1st) 121169, ¶¶ 85-90 (Hyman, J., concurring) (listing other state and federal courts that

have noted unreliability of eyewitness identifications).

¶ 152 These concerns are not an abstract invention of defense lawyers. Indeed, the scientific

community has questioned, for well over a century, whether eyewitnesses can give a reliable,

accurate identification. Gary L. Wells, Amina Memon & Steven D. Penrod, Eyewitness

Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 47 (2006) (hereinafter

Wells et al., Eyewitness Evidence, supra, at 54). In the 1930s—before the advent of DNA

testing—mistaken eyewitness identifications were recognized as the main source of wrongful

convictions. Id. at 48.

¶ 153 Our pattern jury instructions deal with this problem by instructing jurors to consider

“[t]he opportunity the witness had to view the offender at the time of the offense,” “[t]he

witness’s degree of attention at the time of the offense,” “[t]he witness’s earlier description of the

offender,” “[t]he level of certainty shown by the witness when confronting the defendant,” and

“[t]he length of time between the offense and the identification confrontation.” Illinois Pattern

Jury Instructions, Criminal, No. 3.15 (4th ed. 2000). Fountain’s jurors received this instruction,

and Grzesiak’s identification directly hits every one of those concerns.

¶ 154 Grzesiak’s opportunity to view the man at the bus stop was fleeting: a few seconds in

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total. The amount of time the witness has to view the potential suspect affects his or her ability to

make a correct identification; longer “exposure time” greatly boosts accuracy rates. Amina

Memon, Lorraine Hope & Ray Bull, Exposure Duration: Effects on Eyewitness Accuracy and

Confidence, 94 Brit. J. Psychol. 339, 348 (2003) (reviewing study where participants were given

either 12 or 45 seconds of exposure to target’s face).

¶ 155 Further, the baseball cap covering the man’s head hampered Grzesiak’s ability to view

the man’s face. Self-evidently, when a person covers part of his or her face, recognizing the face

becomes harder, not easier. One study quantified this problem by instructing participants to view

a videotaped liquor store robbery and later attempt to identify the perpetrator in a lineup; for half

of the viewings, the perpetrator wore a hat covering his hair and hairline. Predictably, the

presence of the hat affected the participants’ ability to identify him: 45% identified him in the

lineup if he had not been wearing a hat, but only 27% identified him if he was wearing a hat.

Wells et al., Eyewitness Evidence, supra, at 54. This surely applies to Grzesiak, who was unable

to describe the man’s hair because of the baseball cap.

¶ 156 Second, Grzesiak’s degree of attention that day was slight. He had no reason to pay any

particular attention to the man he saw at the bus stop. He had no idea that the man at the bus stop

was about to commit murder, or that anything was about to happen at Maggy’s. This differs from

the situation where an eyewitness sees a crime committed and makes a concerted effort to

remember details of the perpetrator’s appearance.

¶ 157 Third, Grzesiak’s earliest description of the offender was vague. The most detail Grzesiak

offered involved the man’s clothes; Grzesiak did not recognize the man. And his participation in

the composite sketch process did not help matters. These computerized “pick a facial feature”

programs seem to do a poor job of creating a suspect’s face because witnesses remember faces

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holistically, not as a collection of component parts. (The difference between remembering a

famous face—say, Michael Jordan’s—and remembering precisely what Michael Jordan’s nose

looks like.) Gary L. Wells & Lisa E. Hasel, Facial Composite Production by Eyewitnesses, 16

Current Directions Psychol. Sci. 6, 7-9 (2007).

¶ 158 Worse, the research suggests the process of building a composite taints the process of

remembering. Having a witness build a composite face can damage memory of the original face

and make it more difficult for the witness to recognize the original face in a lineup. Wells et al.,

Eyewitness Evidence, supra, at 65. Even asking a witness to verbally describe a suspect has a

distinct tendency to decrease the witness’s ability to accurately identify the subject at a later

lineup. See Christian A. Meissner & John C. Brigham, A Meta-Analysis of the Verbal

Overshadowing Effect in Face Identification, 15 Appl. Cognit. Psychol. 603, 604 (2001). These

identification procedures could not have bolstered Grzesiak’s earlier descriptions.

¶ 159 Fourth, Grzesiak’s level of certainty about his identification wavered—at various times

he had told attorneys that he did not get a good look at the suspect’s face. But even if his

confidence had been unwavering, it would still be troubling. Even confident witnesses will be

wrong in large numbers—perhaps as much as 20% to 30% of the time. Wells et al., Eyewitness

Evidence, supra, at 66; see also Memon et al., supra, at 349 (“confidence is not a reliable

indicator of accuracy under long exposure”). And, eyewitness confidence in identification can be

affected by inadvertent feedback from law enforcement. Lynn Garrioch & C.A. Elizabeth

Brimacombe, Lineup Administrators’ Expectations: Their Impact on Eyewitness Confidence, 25

L. & Hum. Behav.. 299, 313 (2001) (“Our lineup administrators were told expressly to not

provide feedback to witnesses about their lineup decisions, yet they still influenced witness

confidence.”). Further, witnesses may overestimate the amount of time they saw a suspect’s face,

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artificially inflating their confidence. Memon et al., supra, at 349. Grzesiak testified that he saw

the man’s face for just a few seconds in total, but there was no reason for him to even look at the

man for that long as Grzesiak passed in and out of the store.

¶ 160 Fifth, the lengthy delay—four days—between the time when Grzesiak saw the man at the

bus stop and the day police asked him to identify that stranger makes the identification less

reliable. “Longer delays led to fewer correct identifications *** and more false identifications.”

Wells et al., Eyewitness Evidence, supra, at 54. The more time passes between the acquisition of

the memory and attempting to retrieve it, the more trouble the witness will have with retrieval,

and the less accurate will be the memory. Lauren O’Neill Shermer, Karen C. Rose & Ashley

Hoffman, Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony, 27

J. Contemp. Crim. Just. 183, 186 (2011). If you were approached by police on a Friday and

asked to describe a specific stranger you saw in passing while doing an errand on the previous

Monday, could you accurately describe that person’s clothing, facial features, or complexion?

¶ 161 Beyond the concerns evinced in the pattern jury instructions, there were other disturbing

aspects to this evidence.

¶ 162 While police misconduct during lineups has been addressed and reduced by reforms, the

precautions taken to ensure accuracy might not be enough. In one study asking participants to

view lineups, each participant was told the target person might not be in the lineup and given the

option of indicating the target was not present. Memon et al., supra, at 342. Yet, despite these

cautionary instructions, 88% of the participants indicated that they had expected the target to be

in the lineup. Id. at 347-48. Thus, the similar warnings given to Grzesiak that the suspect might

not be in the viewed lineup may not have had any effect on his assumptions. Why would

Grzesiak think that the police would bother having him view a lineup that did not contain the

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suspect?

¶ 163 Further, police conduct can taint a witness’s recollection, even if the police are not trying

to do so. Subtle suggestions can produce false reports. Steven J. Frenda, Rebecca M. Nichols &

Elizabeth F. Loftus, Current Issues and Advances in Misinformation Research, 20 Current

Directions in Psychol. Sci. 20, 22 (2011). For example, several studies asked participants if they

had seen news footage of well-known events. Though no footage existed, anywhere between

40% and 60% of participants stated that they had seen the news footage. Id. at 22. Worse, other

studies showed that suggestions can plant false memories of personal events even if the events

were impossible (such as meeting Bugs Bunny at Mickey Mouse’s Disneyland). Id. Here, where

Grzesiak was asked over and over to describe and then identify a suspect, it would take only a

few innocent, passing suggestions about Fountain’s appearance to alter his memory of the

stranger. Such “misinformation” is particularly effective when the passage of time fades the

witness’s original, and here, fleeting and faint, memory of the event. Elizabeth F. Loftus,

Planting Misinformation in the Human Mind: a 30-Year Investigation of the Malleability of

Memory, 12 Learning & Memory 361, 361 (2005).

¶ 164 For another example, postidentification feedback from police can distort a witness’s

confidence in an identification. Worse, this kind of feedback after a mistaken identification has

the real potential to impair a witness’s memory of the actual perpetrator, making later

identification of the correct suspect less likely. See Lara Smalarz & Gary L. Wells,

Contamination of Eyewitness Self-Reports and the Mistaken-Identification Problem, 24 Current

Directions in Psychol. Sci. 120, 121 (2015). The feedback can be as blatant as verbal approval of

the witness’s selection or as subtle as an officer “looking pleased” if the witness selects the

suspect. Id. at 123. Even when police administering lineups are instructed not to provide

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confirmatory feedback, their knowledge of which lineup member is the suspect can influence the

witness’s confidence in the identification. Id. at 122. Grzesiak participated in many identification

procedures, exponentially increasing opportunities for such feedback.

¶ 165 None of this should be seen as implying that either the police or Grzesiak set out to frame

Fountain by cooking up a false identification. But the circumstances in this case were ripe for

misidentification. Again, Grzesiak saw a stranger only in passing and saw the stranger for

seconds, having no idea this person would be important until four days after the murder. And,

Gresiak could only see part of the person’s face (because of the baseball cap). When the police

contacted Grzesiak, they showed him a surveillance video, then had him make a composite

sketch, and then showed him multiple photo arrays and a lineup, the last of which occurred

almost two years after the murder. His testimony was inherently unreliable.

¶ 166 The state had to use this evidence to bolster its shaky, unconvincing scientific evidence.

Agent Raschke could only place Fountain’s cell phone in the general vicinity of Maggy’s (an

area where literally thousands of people live and congregate) but could not pinpoint its location.

The State’s DNA experts could not even agree with each other on how to interpret the mixed and

partial DNA profile.

¶ 167 In paragraph 41, the majority downplays these problems, reasoning that the jury went

through the evidence presented and came to a decision. But this misses the point: when the trial

court’s erroneous ruling has such a decisive impact on the presentation of evidence, we cannot

have confidence in the jury’s verdict. I believe that the trial court’s decision to deny a longer

continuance had a profound effect on the outcome. Because I believe that the trial court erred in

denying Fountain a reasonable continuance and that error prejudiced Fountain given the overall

weakness of the State’s case, I must dissent.