THIRD DIVISION AUGUST 27, 2008
No. 1-06-3463
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 10786 ) SANDY WILLIAMS, ) The Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following a bench trial that included inculpatory deoxyribonucleic acid (DNA) evidence,
defendant, Sandy Williams, was convicted of two counts of aggravated criminal sexual assault,
aggravated kidnaping and aggravated robbery. He was subsequently sentenced to two concurrent
terms of natural life imprisonment for the aggravated criminal sexual assault counts; a
consecutive term of 60 years’ imprisonment for the aggravated kidnaping count; and a concurrent
term of 15 years’ imprisonment for the aggravated robbery count. On appeal, defendant contends
that the trial court erred in admitting the inculpatory DNA evidence because sufficient foundation
was not established for the forensic scientist’s opinion testimony on the matter. Defendant
additionally contends that admission of the forensic scientist’s opinion testimony violated
defendant’s confrontation rights according to Crawford v. Washington, 541 U.S. 36, 158 L. Ed.
2d 177, 124 S. Ct. 1354 (2004). Defendant finally contends that the trial court erroneously
ordered that his aggravated kidnaping sentence run consecutive to his sentence of natural life
imprisonment for aggravated criminal sexual assault. 1-06-3463
The evidence adduced at trial demonstrated that, on February 10, 2000, defendant
grabbed the 22-year-old victim, L.J., as she was walked home from work, forced her into a car
and repeatedly sexually assaulted her. Once finished, defendant took the victim’s money and
some of her personal belongings and fled. The victim immediately ran home and reported the
incident.
The victim later went to the hospital, where she provided a blood sample and a vaginal
swab for a sexual assault kit (kit). Doctor Nancy Schubert sealed the samples in the kit and
placed it in a secured lock box in the emergency room. Early the next morning, Detective
Michael Baker obtained the kit from the emergency room and inventoried it prior to sending the
kit to the Illinois State Police crime lab (Crime Lab) for testing and analysis.
Prior to going to the hospital, the victim spoke to the police and described defendant as a
black male, standing 5 feet 8 inches tall, wearing a black skullcap, black jacket and jeans and
driving a beige station wagon. The police subsequently issued a "flash” message including that
description. Pursuant to the "flash” message, two officers stopped an individual matching the
perpetrator’s description. The suspect, James McChristine, agreed to accompany the officers to
the hospital where the victim was being treated. The victim first viewed McChristine’s driver’s
license and stated that there was potential that he was her attacker; however, she asked to view
him in person. As a result, the victim viewed McChristine in the hospital parking lot and there
was conflicting evidence presented as to whether the victim positively identified McChristine at
that time. Notwithstanding, the victim again viewed McChristine at a police station thereafter
and confirmed that McChristine was not her offender.
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Defendant was arrested on August 3, 2000, on an unrelated offense. While in custody,
defendant was required to provide a blood sample for the police DNA database. John Duffy, an
investigator for the State’s Attorney’s office, placed defendant’s blood sample into a sealed
envelope. Duffy then inventoried the sample and sent it to the Crime Lab for testing and
analysis. In March 2001, a DNA "hit” was generated in the database linking defendant to the
underlying offenses. As a result, on April 16, 2001, L.J. viewed a lineup and positively identified
defendant as her attacker. Defendant was subsequently charged with the instant offenses.
Karen Kooi, a forensic scientist at the Crime Lab, testified that she received defendant’s
sealed blood sample on August 24, 2000, and performed a short tandem repeat (STR) analysis on
a portion of the sample. Kooi obtained a DNA profile from the sample and entered it into the
Crime Lab database, which is used to compare DNA profiles to blood samples from unsolved
crimes. While extracting defendant’s DNA profile from his blood sample, Kooi acted in
accordance with the nationwide standards for DNA analysis.
Brian Hapack, a forensic scientist at the Crime Lab, testified that he received the victim’s
sealed kit on February 15, 2000, and performed two tests on the vaginal swabs in order to detect
the presence of semen. First, Hapack conducted an acid phosphastase test and received the
highest indication for semen, four plus positive. Next, Hapack conducted an Abacard test and
again received a positive result for the presence of semen with two pink lines. Hapack
guaranteed the accuracy of his results by working in a clean environment free from
contamination and by ensuring that the tests functioned properly. Hapack did not perform any
tests on the victim’s blood sample. Thereafter, Hapack sealed both the vaginal swabs and the
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blood sample in envelopes and placed them in a secure freezer in order to secure the evidence for
future testing, as was a common practice in the scientific community.
Sandra Lambatos, a forensic scientist at the Crime Lab, testified, as an expert in forensic
biology and forensic DNA analysis, that a procedure known as polymerase chain reaction (PCR)
enables forensic examiners to extract a male DNA profile from semen, which could then be
compared to the DNA from a suspect’s blood in order to garner a statistical probability that the
DNA matched.
In particular to the instant case, Lambatos testified that the victim’s kit was sent, in a
sealed condition, to Cellmark Diagnostic Laboratory (Cellmark), an accredited crime lab in
Maryland, for further analysis. According to Lambatos, at the time, the Crime Lab commonly
sent evidence samples to Cellmark to expedite analysis. The samples were sent via Federal
Express, which was a generally accepted manner of transporting DNA evidence in the scientific
community. A Crime Lab shipping manifest indicated that the victim’s kit was shipped to
Cellmark on November 28, 2000, in a sealed condition; was received by Cellmark on November
29, 2000; and was returned to the Crime Lab on April 3, 2001. According to Lambatos, the
Crime Lab shipping manifest was generated in the ordinary course of business and was kept in a
secure area of the lab.
Lambatos further testified that she used the comparison method described earlier to
conclude that the semen obtained from the victim’s vaginal swabs, as identified by Hapack, and
the male DNA profile produced from defendant’s blood sample, as identified by Kooi, were a
match. The probability of the match was 1 in 8.7 quadrillion unrelated black individuals, 1 in
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390 quadrillion unrelated white individuals and 1 in 109 quadrillion unrelated Hispanic
individuals.
On cross-examination, Lambatos admitted that she was unaware of what happened to the
Federal Express package containing the victim’s kit when it arrived at Cellmark. Lambatos
further admitted that she did not examine or perform any physical testing of the samples herself;
rather, she based her opinion, in part, on the results generated by Cellmark. In particular,
Cellmark provided a DNA profile for the semen recovered from the victim’s vaginal swabs using
electropherograms and allele charts. Although she did not personally observe Cellmark perform
the tests on the evidence at issue, Lambatos averred that, because Cellmark was an accredited
laboratory, it was required to meet "certain guidelines to perform DNA analysis for the Illinois
State Police and so all those calibrations and internal proficiencies and controls [of the
equipment used] would have had to have been in place for them to perform the DNA analysis.”
Lambatos, however, admitted that Cellmark had different procedures and standards for results
than the Crime Lab. Nevertheless, Lambatos maintained that Cellmark analysts generally
performed proficiency tests that she personally developed.
According to Lambatos, Cellmark’s electropherogram tests revealed a mixture of DNA
profiles; therefore, Lambatos opined that Cellmark subtracted the victim’s profile, as generated
from the vaginal swab, from the sample in order to deduce the male’s DNA profile, namely,
defendant’s. Lambatos admitted that Cellmark’s results demonstrated a minor presence for
unaccounted genetic material, which she described as "white noise.” Lambatos then entered the
retrieved male DNA profile into the Crime Lab database to search for a match. Lambatos
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admitted that it was possible to have a degraded evidence sample; however, she did not observe
any evidence degradation in the instant case. According to Lambatos, she reviewed Cellmark’s
results; made her own interpretations; and formed her own opinion of the evidence.
On redirect examination, Lambatos clarified that the results demonstrating a mixture only
produced DNA profiles for the victim and defendant. In her expert opinion, Lambatos stated that
Cellmark’s testing and analysis methods were generally accepted in the scientific community.
Lambatos further testified that she routinely relied on results from Cellmark and she did not
observe any problems with the chain of custody or contamination of the evidence at issue.
At the conclusion of Lambatos’ testimony, defense counsel moved to exclude that portion
of her testimony related to Cellmark’s testing based upon Crawford and a lack of established
foundation. In particular, defense counsel argued that the evidence presented lacked a suitable
foundation in terms of the chain of custody; who handled the evidence; how the equipment was
calibrated; how the tests were run; and what procedures were followed. Following the parties’
arguments, the trial court concluded that Crawford was inapplicable. In so ruling, the court
stated:
"I’ve read a lot of memorandums of law about Crawford. The premier memorandum is
written by Appellate [C]ourt [J]ustice Quinn. I’ve read his memorandum, his updated
memorandum which he updates every year. I don’t think this is a Crawford scenario, and
I agree with the State that the evidence is – the issue is, you know, what weight do you
give the test, not do you exclude it and accordingly your motion to exclude or strike the
testimony of the last witness or opinions based on her own independent testing of the data
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received from Cel[l]mark1 will be denied.”
The trial court ultimately found defendant guilty as previously described. The court
subsequently denied defendant’s motion for a new trial and proceeded to sentencing. In
aggravation, the State presented the testimony of G.M., an individual whom defendant kidnaped,
repeatedly raped and robbed in 1984. Defendant’s criminal record further demonstrated that he
was paroled for those offenses, including aggravated criminal sexual assault, in February 1997
and was discharged from parole on February 4, 2000, less than a week before the instant offense.
Following additional evidence in aggravation and mitigation, the court sentenced defendant to
two concurrent terms of natural life imprisonment for the aggravated criminal sexual assault
counts; a consecutive term of 60 years’ imprisonment for the aggravated kidnaping count; and a
concurrent term of 15 years’ imprisonment for the aggravated robbery count. Thereafter, the
court denied defendant’s motion to reconsider that sentence. This timely appeal followed.
Defendant first contends that the trial court erred in admitting the DNA evidence
produced by Cellmark where a sufficient foundation was not established to demonstrate that the
equipment used was adequately calibrated and properly functioning, and where the State failed to
establish a sufficient chain of evidence based upon Cellmark’s handling of the evidence.
At the outset, we note that neither argument was waived for purposes of our review.
Despite the State’s insistence that defendant expressly waived review of his chain of custody
argument, our review of the record reveals that defense counsel included the issue in his oral
motion to exclude Lambatos’ testimony and in his posttrial motion as well. See People v. Enoch,
1 According to the parties, the transcript reflects an improper spelling of the laboratory.
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122 Ill. 2d 176, 186 (1988). Accordingly, we review defendant’s arguments.
The admission of Lambatos’ expert testimony was within the trial court’s sound
discretion; therefore, we will not overturn that decision absent an abuse of discretion. People v.
Eyler, 133 Ill. 2d 173, 211 (1989).
In Wilson v. Clark, 84 Ill. 2d 186 (1981), our supreme court adopted Rule 703 of the
Federal Rules of Evidence, holding that an expert may offer an opinion based upon facts not in
evidence if those facts are "of a type reasonably relied upon by experts in the particular field.”
People v. Raney, 324 Ill. App. 3d 703, 706 (2001), citing Wilson, 84 Ill. 2d at 193. Moreover,
where expert testimony is based upon an electronic or mechanical device, the expert must
provide some foundational proof that the device was functioning properly at the time it was used.
Raney, 324 Ill. App. 3d at 710-11; People v. Bynum, 257 Ill. App. 3d 502, 514 (1994).
Notwithstanding, in a post-Bynum and post-Raney decision, this court approvingly cited People
v. Hill, 169 Ill. App. 3d 901 (1988), for the proposition that a chemical analyst need not
personally determine the reliability of the instrument being used to perform the evaluation at
issue. People v. Rucker, 346 Ill. App. 3d 873, 890 (2003), citing Hill, 169 Ill. App. 3d at 911.
Thereafter, it is the defendant’s responsibility to challenge the sufficiency or reliability of the
basis for the expert’s opinion during cross-examination, and the determination of the weight to
be given that expert’s opinion is left to the finder of fact. Adams v. Family Planning Associates
Medical Group, Inc., 315 Ill. App. 3d 533, 550 (2000), citing People v. Lipscomb, 215 Ill. App.
3d 413, 435 (1991).
In the case at bar, Lambatos was qualified, without objection, as an expert in forensic
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biology and forensic DNA analysis and concluded, based upon her expertise, Kooi’s analysis of
defendant’s blood, Hapack’s analysis of the semen found on the victim’s vaginal swabs and
Cellmark’s report detailing the DNA profile generated from the semen on the victim’s vaginal
swabs, that the semen belonged to defendant. Although she admittedly did not perform the
actual tests on the evidence, Lambatos familiarly testified regarding the PCR procedure, which
was used to extract the male DNA profile from the semen found on the vaginal swabs.
Moreover, Lambatos repeatedly averred that Cellmark was an accredited laboratory and therefore
was required to follow specified guidelines in order to perform DNA analysis. Lambatos
additionally provided that Cellmark’s testing and analysis methods were generally accepted in the
scientific community, so much so that she routinely relied on Cellmark’s facility. Accordingly,
despite Lambatos’ inability to speak to the precise conditions of Cellmark’s equipment and
testing of the instant samples, we find that she provided a sufficient foundation upon which to
partially base her assessment and conclusion. See People v. Sutherland, 223 Ill. 2d 187, (2006)
(where the supreme court dismissed the same argument because the defendant did not mount a
challenge against the facts relied upon by the expert as not typically relied upon in the relevant
field).
Defendant relies heavily on Raney to support his argument that the foundation was
inadequate because Lambatos could not testify that Cellmark’s equipment was calibrated and
working properly. Raney, 324 Ill. App. 3d at 710-11. The Raney court, however, recognized that
it may not be feasible to require that an expert personally test the instrument relied upon for
making the relevant determination. Raney, 324 Ill. App. 3d at 710. Moreover, the instant case is
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distinguishable from Raney in that Lambatos provided "some foundational proof as to the fact
that the instrument was functioning properly at the time it was used” (Raney, 324 Ill. App. 3d at
710), where she maintained that Cellmark’s testing necessarily met the threshold of proper DNA
analysis. In comparison, the expert in Raney did not provide any testimony that the machine
used was calibrated and working properly or how she knew its results were accurate. Raney, 324
Ill. App. 3d at 710. Consequently, defendant’s argument is based upon pure speculation that the
equipment may not have been working properly, and such speculation is best tested during cross-
examination. See Adams, 315 Ill. App. 3d at 550. The record reveals that defense counsel
thoroughly cross-examined Lambatos on the basis of her opinion. Accordingly, the issue of
Lambatos’ reliance on Cellmark’s report went to the weight of her opinion and not its
admissibility. The trial court assessed the weight of Lambatos’ testimony and clearly found it
convincing.
We next turn to defendant’s argument regarding the chain of custody of the victim’s kit.
Specifically, defendant argues that the State failed to demonstrate a sufficient chain of evidence
because it did not offer any evidence regarding whether Cellmark "employed protective measures
to guard against contamination of the samples.”
Where physical evidence is not readily identifiable or may be susceptible to tampering,
contamination or exchange, the State is required to establish a chain of custody "that is
sufficiently complete to make it improbable that the evidence has been subject to tampering or
accidental substitution.” People v. Woods, 214 Ill. 2d 455, 467 (2005). Our supreme court
further instructed:
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"Unless the defendant produces evidence of actual tampering, substitution or
contamination, a sufficiently complete chain of custody does not require that every person
in the chain testify, nor must the State exclude every possibility of tampering or
contamination; the State must demonstrate, however, that reasonable measures were
employed to protect the evidence from the time that it was seized and that it was unlikely
that the evidence has been altered.” Woods, 214 Ill. 2d at 467.
In those circumstances, any deficiencies in the chain of custody are considered against the weight
of the evidence and not its admissibility. Woods, 214 Ill. 2d at 467.
In the case at bar, defendant does not take issue with the chain of custody of the victim’s
kit prior to its transport to Cellmark; therefore, we focus only on that portion of the chain.
Lambatos testified that the Crime Lab kept a shipping manifest in the ordinary course of business
in a secure area which detailed the arrival and departure of specified evidence samples. In regard
to the relevant evidence here, the shipping manifest reflected that the victim’s kit was sent to
Cellmark on November 28, 2000, in a sealed condition via Federal Express, a generally accepted
manner of transporting DNA evidence within the scientific community; was received by
Cellmark the next day; and was returned to the Crime Lab on April 3, 2001. Lambatos was
unaware of the express condition of the samples when they arrived at Cellmark; however, based
on her expertise, Lambatos testified that the sample did not show any signs of degradation. We
are not persuaded by defendant’s argument that the chain of custody was inadequate because no
Cellmark analyst testified regarding the condition and handling of the samples, where Lambatos
testified regarding the reasonable measures employed to safeguard the evidence. See Woods,
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214 Ill. 2d at 467 (every person in the chain of custody need not testify). Accordingly, the State
established a prima facie demonstration that the chain of custody was sufficient.
Defendant briefly argues that the State could not establish a chain of custody based upon
the shipping manifests because they were inadmissible business records produced for purposes of
litigation in violation of section 115-5(c)(2) of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/115-5(c)(2) (West 2006)). Defendant, however, has waived review of this argument
where he barely mentioned it and did not cite to any relevant authority outside the statute, in
violation of Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). "A reviewing court is
entitled to have issues clearly defined with pertinent authority cited and cohesive arguments
presented [citation], and it is not a repository into which an appellant may foist the burden of
argument and research [citation]; it is neither the function nor the obligation of this court to act as
an advocate or search the record for error.” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993).
Defendant further argues that he sufficiently rebutted the State’s prima facie case because
he presented evidence of contamination vis-a-vis Cellmark’s reported mixture of DNA profiles
and presence of unaccountable genetic material. We disagree. Lambatos clearly testified that the
mixture at issue was a combination of only defendant’s and the victim’s DNA profiles.
Moreover, in regard to the unaccounted-for genetic material, Lambatos categorically designated
it "white noise.” Consequently, we do not find that defendant presented sufficient evidence to
suggest that the samples were tampered with or contaminated. Accordingly, Lambatos’
testimony regarding Cellmark’s testing and analysis was properly admitted on the basis of the
State’s sufficient chain of custody.
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Defendant next contends that the results of Cellmark’s testing and analysis were
testimonial in nature and therefore Lambatos’ expert testimony in reference thereto violated
defendant’s constitutional right to confrontation, where no Cellmark representative was presented
for cross-examination. The State responds that Lambatos’ testimony regarding Cellmark’s
analysis was not testimonial hearsay, and thus, defendant’s confrontation rights were neither
implicated nor violated.
In People v. Spicer, 379 Ill. App. 3d 441 (2007), this court recently provided that, where a
defendant claims that a trial court admitted a hearsay statement in violation of the confrontation
clause, we defer on review to the trial court’s evidentiary ruling unless that discretion has been
frustrated by an erroneous ruling of law. Spicer, 379 Ill. App. 3d at 451.
Pursuant to Crawford, "[w]here testimonial statements are at issue, the only indicum of
reliability sufficient to satisfy constitutional demands is the one the Constitution actually
proscribes: confrontation.” Crawford, 541 U.S. at 68-69, 158 L. Ed. 2d at 203, 124 S. Ct. at
1374. Hence, since no Cellmark representative was available for cross-examination, the
purported question before us is whether Cellmark’s report constituted improper testimonial
evidence. Crawford, however, reiterated that "the [Confrontation] Clause also does not bar the
use of testimonial statements for purposes other than establishing the truth of the matter asserted.
See Tennessee v. Street, 471 U.S. 409, 414, 85 L. Ed. 2d 425, 431, 105 S. Ct. 2078, 2081-82
(1985).” Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197, 124 S. Ct. at 1370. As a result, we
must initially determine whether Lambatos’ reliance on the Cellmark results was hearsay. See
Spicer, 379 Ill. App. 3d at 449 ("hearsay analysis and sixth amendment analysis are completely
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different”).
Hearsay generally prohibits the introduction of an out-of-court statement offered to prove
the truth of the matter asserted therein. Spicer, 379 Ill. App. 3d at 449. However, underlying
facts and data may be disclosed by an expert, not for the truth of the matter asserted, but for the
purpose of explaining the basis of his opinion. People v. Nieves, 193 Ill. 2d 513, 528 (2000),
citing People v. Pasch, 152 Ill. 2d 133, 176 (1992); People v. Almighty Four Hundred, 287 Ill.
App. 3d 123, 132 (1997). Moreover, "[i]t is well established that an expert may testify about the
findings and conclusions of a nontestifying expert that he used in forming his opinions.” People
v. Jones, 374 Ill. App. 3d 566, 579-80 (2007).
Defendant argues that Cellmark’s report was inadmissible hearsay because it was
necessarily offered for the truth of the matter asserted where Lambatos could not conclude that
defendant’s semen was present on the victim’s vaginal swabs absent the DNA profile generated
by Cellmark. We disagree. Cellmark’s report was not offered for the truth of the matter
asserted; rather, it was offered to provide a basis for Lambatos’ opinion. Lambatos clearly
testified that she performed her own evaluation of the data, which included Kooi’s findings,
Hapack’s findings and Cellmark’s report, prior to forming her opinion.
In Almighty Four Hundred, this court provided:
"[a]n expert witness may base his or her opinion on information that has not been
admitted into evidence so long as that information is reliable and is of a type reasonably
relied upon by experts in that field. Rule 703 did not, however, create an exception to the
hearsay rule. [Citation]. The underlying facts or data upon which an expert in a
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particular field is found to have reasonably relied are not admitted for their truth.
[Citation]. Rather, these facts are admitted for the limited purpose of explaining the basis
for the expert witness’ opinion. [Citation]. Furthermore, it is for the circuit court, in the
exercise of its discretion, to determine whether the underlying facts or data upon which an
expert bases an opinion are of a type reasonably relied upon by experts in the particular
field.” Almighty Four Hundred, 287 Ill. App. 3d at 132.
Similar to the facts of Lipscomb, Lambatos relied on Cellmark’s report, which included data of
the type generally relied upon by experts in the field. Lipscomb, 215 Ill. App. 3d at 435 (the
expert’s opinion was properly admitted even though it was based on a final report which included
data generated by individuals that did not testify).
Moreover, defense counsel vigorously cross-examined Lambatos regarding her opinion
and was free to call another expert to dispute that opinion. It was, therefore, the trial court’s duty
to determine the weight of Lambatos’ testimony. Adams, 315 Ill. App. 3d at 550. Furthermore,
the record does not affirmatively show that the instant trial judge considered anything but
competent evidence. People v. Schmitt, 131 Ill. 2d 128, 138-39 (1989) (a trial judge is presumed
to consider only competent evidence unless the record affirmatively demonstrates otherwise). On
the contrary, defendant objected to Lambatos’ testimony and the Honorable Kenneth Wadas
entertained arguments on the matter, yet determined that the opinion based on Cellmark’s reports
was admissible. Simply put, the report was not introduced to prove the truth of Cellmark’s
results consequently the Confrontation Clause was not violated. Crawford, 541 U.S. at 59 n.9,
158 L. Ed. 2d at 197, 124 S. Ct. at 1370. Further, because we have already determined that it
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was reasonable for Lambatos to rely on Cellmark’s report, we find that Lambatos’ testimony
regarding the Cellmark report was properly admitted to assist in explaining the basis of her
ultimate opinion. See Nieves, 193 Ill. 2d at 528.
Overall, defendant essentially requests that we require each and every individual involved
in the testing and analysis of DNA to testify at trial. For obvious reasons in the abstract and for
those provided in the case at bar, we decline to issue such a ruling.
Defendant finally contends that the trial court erred in sentencing him to a term of
imprisonment consecutive to his term of natural life. The State responds that the plain language
of section 5-8-4 of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-8-4
(West 2006)) and section 12-14 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-
14 (West 2006)) require that defendant’s prison term for aggravated kidnaping run consecutive to
his term of natural life for aggravated criminal sexual assault.
Although the imposition of a sentence is within a trial court’s discretion, we review the
propriety of defendant’s sentence de novo because it involves a question of law.2 People v.
Chaney, 379 Ill. App. 3d 524, 527 (2008).
Section 5-8-4 of the Code of Corrections provides that a "court shall impose a
consecutive sentence” if a defendant was convicted of a violation of section 12-14 of the
Criminal Code. 730 ILCS 5/5-8-4(a)(ii) (West 2006). Moreover, pursuant to section 12-14(d)(2)
of the Criminal Code, an individual, like the instant defendant, who has been convicted of
aggravated criminal sexual assault after having been previously convicted of aggravated criminal
2 We note that neither party provided the proper standard of review for this issue.
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sexual assault "shall be sentenced to a term of natural life imprisonment.” 720 ILCS 5/12-
14(d)(2) (West 2006).
In People v. Dixon, 366 Ill. App. 3d 848 (2006), this court resolved the question before us
and in People v. Spears, 371 Ill. App. 3d 1000 (2007), this third division approvingly cited and
relied on Dixon to resolve the same issue. Following the supreme court’s logic in People v.
Palmer, 218 Ill. 2d 148 (2006), that, under the principles of natural law and within the plain
meaning of the consecutive sentencing statute, only one natural life sentence may be served, we
concluded that a term of years could not be served consecutive to a term of natural life because a
defendant is only capable of serving one natural life sentence. Spears, 371 Ill. App. 3d at 1008;
Dixon, 366 Ill. App. 3d at 856, citing Palmer, 218 Ill. 2d at 164. "His natural life sentence
without parole means that he will remain in prison for the remainder of his life and at the
conclusion of this sentence, his life is over.” Spears, 371 Ill. App. 3d at 1008. Consequently, the
instant defendant, like that in Spears, cannot serve a 60-year term at the conclusion of his term of
natural life. Accordingly, pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)),
we vacate that portion of the trial court’s order sentencing defendant to consecutive terms of
natural life and 60 years’ imprisonment and modify his sentence to reflect concurrent terms.
Based on the foregoing, we affirm the judgment of the circuit court of Cook County in
relation to defendant’s convictions. We vacate that portion of the circuit court’s order imposing
consecutive sentences for aggravated criminal sexual assault and aggravated kidnaping, and
instead modify defendant’s sentence to impose concurrent sentences for those convictions.
Affirmed in part and vacated in part; sentence modified.
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QUINN, P.J., concurs.
CUNNINGHAM, J., dissents.
JUSTICE CUNNINGHAM dissenting:
Because I believe the complete failure to lay a sufficient foundation should have barred a key
State witness from presenting critical DNA testimony, I must respectfully dissent.
This analysis requires some clarification of the facts of the case. The attack on the victim
occurred on the night of February 2, 2000. A man grabbed the victim from behind, forced her
into a beige station wagon, robbed her, sexually assaulted her, and then pushed her out of the car.
That same evening the police stopped a man in a car near the crime scene who matched the
victim=s description of her assailant. According to police testimony, this man voluntarily
accompanied them to the hospital where the victim was being treated. When shown the man=s
driver=s license photograph, the victim said he looked like her assailant, but she told the police
officer that she wanted to see the man in person. A police officer took the victim to the hospital
parking lot where the man was being held. That police officer testified at trial that when the
victim observed this man, she positively identified him as her attacker. The police officer=s
testimony was contradicted by the victim, who claimed that in the hospital parking lot she first
saw the man sitting in a police car, and she had some doubts about whether he was her assailant.
The police then took the man out of the car and she told them he was not her assailant. Although
the victim claimed that she told the police officer that the man was not her assailant, nonetheless,
it is undisputed that the police subsequently took her to the police station to look at the man
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again, at which time she said he was not her assailant. No DNA material was taken from this
man. Fourteen months passed before the victim first identified another man, the defendant
Williams, in a lineup, as her assailant. She had never seen the defendant before she was
attacked.
The eyewitness testimony of the victim, if believed by the trier of fact without additional
bolstering evidence, may meet the State=s burden of proof of the defendant=s guilt beyond a
reasonable doubt. People v. Bannister, 378 Ill. App. 3d 19, 39, 880 N.E.2d 607, 625 (2007); see
People v. Smith, 185 Ill. 2d 532, 545, 708 N.E.2d 365, 371 (2007) (stating this proposition of
law, but reversing the conviction outright because of serious impeachment of the eyewitness
which resulted in the State failing to meet its burden of proof). In this case the testimony of the
victim, although impeached by her initial contradictory identification of another man as her
assailant, could have been sufficient evidence of the defendant=s guilt. But it is clear that the
State=s strongest evidence, which greatly bolstered the victim=s testimony, was the testimony of
the Illinois State Police Crime Lab=s forensic scientist, Sandra Lambatos.
Lambatos testified that the DNA in vaginal swabs of semen recovered from the victim
matched the defendant=s DNA. She described the odds of this match occurring as 1 in 390
quadrillion for white people, 1 in 8.7 quadrillion for black people and 1 in 109 quadrillion for
Hispanic people. If valid, this is devastating evidence whether it is heard by a jury or a judge.
The problem is that this testimony should never have been admitted because the State never
established a proper foundation for its admission.
This court has repeatedly set out the foundation required before an expert may give his or
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her opinion based upon machine-generated results which are not in evidence. The State must
establish a foundation which includes some evidence that the machine producing those results
was functioning properly when it was used for testing. People v. Raney, 324 Ill. App. 3d 703,
709-11, 756 N.E.2d 338, 343-45 (2001); People v. Bynum, 257 Ill. App. 3d 502, 513-14, 629
N.E.2d 724, 732-34 (1994). The defendant in Raney was convicted of possession of cocaine
with intent to deliver. A State forensic scientist from the Illinois State Police Crime Lab (Crime
Lab) testified that she had used a gas chromatography mass spectrometer (GCMS) to determine
that substances recovered from the defendant were cocaine. The witness testified that the results
of GCMS testing were generally relied upon by experts in her field and that the testing she
utilized was generally accepted in the scientific community. But she failed to provide any
evidence that the GCMS she used was operating properly. Nor did she testify that she had done
any testing to verify its accuracy or to determine that it was in good operating condition. Raney,
324 Ill. App. 3d at 707- 09, 756 N.E.2d at 342-44. Raney had preserved this issue by objecting
to the witness= qualification as an expert, and by moving for a directed finding based upon a lack
of foundation for this evidence. Because there was no competent evidence that Raney was in
possession of illegal drugs, we reversed his conviction outright for lack of sufficiency of the
evidence. We first set out this standard in Bynum, holding that an insufficient foundation was
laid for the opinion of an expert witness concerning the nature of drugs recovered from the
defendant because the State=s expert did not testify that the GCMS was generally relied upon by
experts in the field. The expert also failed to testify regarding how the machine was calibrated or
how she knew the results of this analysis were correct. Bynum, 257 Ill. App. 3d at 513-14, 629
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N.E.2d at 732. However we then found this issue to have been waived by the defendant because
he did not object to it at trial. Bynum, 257 Ill. App. 3d at 514-15, 629 N.E.2d at 732-34.
As the majority notes, in the case before us there is no question of waiver or forfeiture.
The defendant properly preserved these issues by contemporaneous objection at trial and in his
motion for a new trial. Accordingly, the holding of Raney is directly applicable to this case.
Over the defendant=s objection, forensic scientist Sandra Lambatos was permitted to testify that
the defendant=s DNA matched the vaginal swabs taken from the victim and that the odds against
this occurring randomly were astronomical. But the foundation testimony in this case was even
weaker than that in Raney. Unlike the testifying scientist in Raney, Lambatos did not perform or
even observe the critical procedure which was allegedly used to isolate the defendant=s DNA. In
fact Lambatos had no knowledge of whether the machine used in the testing was functioning and
whether it was accurately calibrated, or anything else about it. Neither did she personally know
anything about any of the procedures used in the laboratory where the testing was done. The
DNA data identified as the defendant=s which was provided to Lambatos by the Cellmark
Laboratory (Cellmark) was taken from the vaginal swabs of the victim. This sample was sent to
Cellmark, an out-of-state laboratory in Maryland. Once it was mailed there, Lambatos knew
nothing of how the material was handled or tested. She knew only that she subsequently
received test results back from Cellmark. She merely matched the defendant=s DNA as provided
to her by Cellmark to the DNA later recovered from the defendant. As the State conceded in oral
argument before this court, Lambatos could not have reached her conclusion without relying on
the tests performed by technicians at Cellmark.
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Lambatos did not observe the tests done by Cellmark, nor could she state that the tests
were done in accordance with established protocols or accurate calibrations. She could only state
that as an accredited laboratory, Cellmark was required to meet certain guidelines. She obviously
could not testify that these guidelines were followed in this particular case. She also admitted
that genetic material other than that of the defendant or the victim had been found in the tested
material at Cellmark, although she dismissed this as Abackground noise.@ Like the expert witness
in Raney, Lambatos did not testify regarding whether the test upon which her opinion was based
had been properly performed, with proper calibrations and safeguards. Again like the witness in
Raney, she did testify that the type of procedure used by Cellmark was generally accepted in the
scientific community, but this failed to demonstrate that the testing procedure in this particular
case was properly performed.
These are not idle concerns. DNA evidence is powerful because it always appears to be
based on pure science. It can convict the guilty or free the innocent. The importance of DNA
evidence has been highlighted in society at large. Courts have been known to take judicial notice
that improperly performed DNA tests have resulted in wrongful convictions. In Brown v.
Farwell, 525 F.2d 787, 796-97 (9th Cir. 2008), the district court=s decision granting the
defendant=s habeas corpus petition was affirmed because the defendant presented expert
testimony establishing that the State=s DNA expert at trial had grossly exaggerated the odds that
the defendant was the assailant. In Houston, Texas, the police crime laboratory temporarily shut
down its DNA laboratory and faced the prospect of retesting DNA samples in thousands of
criminal cases because of a State audit which revealed misinterpreted data, poorly trained
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workers, shoddy records, and a leaky roof which contaminated evidence. A.. Liptak and R.
Blumenthal, New Doubt Cast on Crime Testing in Houston Cases, New York Times, August 5,
2004. It was reported that at least one defendant was wrongly convicted of rape and served four
years in prison before he was exonerated and released. In addition, in a preliminary review and
retesting of 360 DNA cases, experts were unable to confirm the original results in 18 cases.
Further, many criminal convictions have been reversed and remanded for new trials because of
improper DNA evidence. Annotation, Admissibility of DNA Identification Evidence, 84 ALR 4th
313, Section 10 (1991).
In this case, the record clearly establishes that an insufficient foundation was presented
concerning whether proper procedures and protocols were followed in testing by Cellmark,
located in Maryland. The majority refers to Lambatos= generalized testimony concerning the
sufficiency of the protocols, testing, and methods of analysis ordinarily followed by Cellmark.
The majority also refers to Lambatos= testimony that Cellmark=s methods were generally accepted
in the scientific community. But none of this testimony applied to the testing done by Cellmark
in this case. Lambatos had no knowledge of what occurred at Cellmark with respect to the
testing in this case . Indeed there was no evidence that she had any personal knowledge
regarding how Cellmark and its staff conducted their work. The cases cited establish that absent
a proper foundation, it was error to permit the expert testimony of forensic scientist Lambatos
concerning a match between the defendant=s DNA and the DNA found in the samples taken from
the victim.
In light of the case law cited, the majority equivocates. It spends a great deal of time in
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an exhaustive summary of the DNA testimony presented at trial. But the fundamental fact that
cannot be avoided is that the State=s expert, Lambatos, had to rely on Cellmark technicians=
testing which allegedly identified the defendant=s DNA in the victim=s sample. As previously
noted, in oral argument the State conceded that without the DNA profile produced at Cellmark,
Lambatos could not have testified to a match between the defendant=s DNA and that found in the
material taken from the victim. Lambatos simply compared that DNA profile to one obtained
from the defendant=s blood and found a match.
Faced with case law concerning the necessary foundation for evidence derived from
scientific testing, which the majority appears to admit continues to be good law in this State, the
majority cites to numerous inapplicable cases. They are all inapplicable for a number of reasons.
For example, there was a determination that the defendant had waived the issue of the sufficiency
of a foundation for evidence of scientific testing (People v. Sutherland, 223 Ill. 2d 187, 237, 860
N.E.2d 178, 279 (2006)); the defense stipulated to the validity of the testing procedure (People v.
Rucker, 346 Ill. App. 3d 873, 892-94, 803 N.E.2d 31, 46-47 (2003)); the expert who performed
the testing actually testified in court concerning the validity of that test (People v. Hill, 169 Ill.
App. 3d 901, 910-11, 524 N.E.2d 604, 610-11 (1988)). In the case before us there was no
forfeiture or waiver, no stipulation, and no testimony by the technicians who performed the
critical test
I also note that there was insufficient chain-of-custody evidence presented by the State
concerning the materials tested by Cellmark. The evidence established that materials were sent
by Federal Express from the Illinois Crime Lab to Cellmark in Maryland along with samples
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from twenty other cases. It was received in Maryland on November 29, 2000. The evidence also
established that the Crime Lab received test results back from Cellmark by Federal Express on
April 3, 2001. But no witness could account for the manner in which this material was kept or
treated at Cellmark for the 126 days that it was there. In that period there were many ways in
which the materials could have been compromised. Under cross-examination by the defense,
forensic scientist Karen Abbinanti, who performed the DNA testing on the defendant=s blood at
the Illinois Crime Lab, provided numerous examples of possible sources of contamination.
Abbinanti testified that a sample could be contaminated if someone sneezed on it or dripped
sweat on it. There could be cross-contamination from other samples. To guard against these
possibilities, she said that she used a clean technique. Lab personnel wore lab coats, masks and
gloves. Before examining material, they would clean their area with a ten percent bleach
solution and in between examinations would clean their instruments with the same solution.
Prior to performing her testing, Abbinanti also checked the calibration of the instrument she
used. The record is absolutely silent as to whether any of these precautions were taken at
Cellmark in this case, or whether any contaminating incidents occurred. We do know, according
to forensic scientist Lambatos, that the sample she received back from Cellmark also contained
genetic material not consistent with that of either the victim or the defendant. Lambatos testified
that she did not believe it came from a third person, but was merely Abackground noise@
generated by the sensitive testing. Nonetheless we have genetic material tested by technicians
yielding so called Abackground noise@ yet those technicians did not testify as to their methods,
safety procedures or calibration of instruments. We have genetic material that may have been
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contaminated, and we have the trial court=s refusal to allow the defense to obtain the testimony of
the technicians who actually performed the testing at Cellmark.
As cited by the majority, the law is that physical evidence which is susceptible to
tampering or contamination requires the State to establish a chain of custody that makes it
improbable that such tampering or contamination occurred. People v. Woods, 214 Ill. 2d 455,
466-67, 828 N.E.2d 247, 255 (2005). Not every person who handled the evidence must testify,
but the State must establish that reasonable measures were used to protect the evidence from the
time it was obtained. Clearly this burden was not met by the State in this case. There is
absolutely no testimony or evidence concerning the manner in which the sample was treated or
tested during the 126 days that it was under the control of Cellmark. Adhering to proper
foundational procedure is critical when DNA evidence is presented. Such evidence is powerfully
persuasive. In a case like this, where the identification testimony is weak, special care is
necessary to ensure that all aspects of the required foundational process have been followed.
Finally, the majority suggests that it may not have been Afeasible@ to require the expert
who testified, Lambatos, to personally test the instrument relied upon. This presents a false
choice and undermines the importance of established law on this issue. The issue is whether the
technicians who performed the test were required to testify. This was a case in which a
conviction would necessarily result in a sentence of life in prison without the possibility of
parole. Under these circumstance, the importance of adhering to the tenets of well settled law
cannot be overstated. In this bench trial, I can fathom no legitimate reason for the trial court to
refuse to allow the defendant to avail himself of this fundamental procedural safeguard. The
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court could have postponed the remainder of the trial to allow the defense to subpoena the
Cellmark technicians who performed the DNA test. Given what is at stake, slight inconvenience
to the State or the trial court should not be the overriding factor. The failure to do this, in my
judgment has resulted in a grievous error requiring reversal and remand for a new trial. In so
finding, I must also comment on the State=s effort to muddy the waters by including in their brief,
copious, irrelevant facts concerning other crimes committed by the defendant. But, the only
reason to include those details would have related to an issue regarding sentencing. The only
sentencing issue in this case, the validity of a term sentence imposed consecutive to a life
sentence, required no detailed description of the defendant=s prior offenses.
For all these reasons, I would reverse and remand for a new trial.
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