People v. Banks, 1–13–1009.

CourtUnited States Appellate Court of Illinois
Citation67 N.E.3d 442,2016 IL App (1st) 131009
Docket NumberNo. 1–13–1009.,1–13–1009.
Parties The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. David BANKS, Defendant–Appellant.
Decision Date09 November 2016

Michael J. Pelletier, Alan D. Goldberg, and Robert Hirschhorn, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, Amy M. Watroba, and Sheilah O'Grady–Krajniak, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 On the morning of September 8, 1990, the Chicago Fire Department responded to a fire in the basement of a multi-unit apartment building at 1058–1060 West Lawrence Avenue in Chicago. The bodies of a 55–year–old woman and a 79–year–old man and were discovered in the fire. The manner of death was determined to be homicide, and the fire was determined to have been caused by arson. A 12–year–old girl, T.C., reported having been raped and doused in fire accelerant by the offender in the basement but escaped to call for help.

¶ 2 Defendant David Banks was arrested after a 2005 "cold hit" in the DNA database. He was charged by indictment with 24 counts of first degree murder and one count of arson in regards to the double homicide and sexual assault. The indictments alleged that defendant murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the jury found defendant guilty of arson as well as the two murders. The trial court sentenced defendant to two terms of natural life imprisonment for the murders, to be served consecutively, and a term of 15 years' imprisonment for arson, also to be served consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA evidence at trial; (2) he was prejudiced by the "misuse" of his prior criminal record at trial; (3) he was prejudiced by comments by a testifying police officer regarding his invocation of his right to remain silent and his request for counsel; and (4) he was deprived of the effective assistance of trial counsel for a series of alleged trial errors. For the following reasons, we affirm.

¶ 3 BACKGROUND1

¶ 4 Defense counsel filed several motions prior to trial2 including motions asking to suppress defendant's statement and motions relating to the introduction of DNA evidence at trial, asking to bar the introduction of other crimes evidence at trial, asking to be allowed further testing of the biological materials and databases for use at trial, and requesting greater latitude in the cross-examination of the State's DNA expert. Relevant to this appeal, defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C.Cir.1923) ) regarding whether DNA testing without the original controls or blanks was a scientifically valid methodology, (2) to exclude the DNA evidence where some of the material was inadvertently lost during testing in the laboratory, and (3) a search of the National DNA index system "for actual 9–loci pair matches that actually exist in the databases for the 9–loci identified in this case," and "for the frequency of each of the alleles identified in this case as they actually exist in the databases."

¶ 5 After a hearing, the trial court denied the request for a Frye hearing regarding the DNA testing without the original blanks, stating: "Frye does not apply once determined that the scientific method is generally accepted" and noting that "[t]here is no Frye standard plus reliability standard, no independent evaluation of the theory or the reliability once the general acceptance threshold has been met. Reliability comes from general acceptance." The court explained that defendant's arguments regarding the DNA testing "goes to the weight, not the admissibility under Frye, " and that defendant's concerns could be addressed at trial through "vigorous cross-examination presentations of contrary evidence such as expert testimony." It stated: "The Frye standard applies only if scientific principle and technique or test offered is new or novel."

¶ 6 The court also held a hearing on defendant's motion for relief in conjunction with destruction of DNA or related evidence. The court denied the motion, finding that the DNA, which was inadvertently spilled during laboratory testing, was not materially exculpatory evidence and that it was not destroyed in bad faith. Additionally, the court admonished defense counsel that use of the term "destroyed" was not appropriate, stating, "It's spilled, right? We're talking semantics here, something certainly wasn't destroyed in a bad faith sense or somebody just took something and obliterated it. * * * What we have here is something that's spilled during a test requested by the parties[.]"

¶ 7 Defendant's motion for a DNA database search was filed with the trial court on May 20, 2010. By that motion, defendant explained that he was arrested based on a "partial, 9 Loci DNA match to a buccal swab taken from him." The motion also stated:

"5. The Illinois State Police Forensic Scientist in this case, Cynara C. Anderson, opined that the statistical probabilities of such a match were 1 in 52 million Black, 1 in 390 billion White, or 1 in 200 billion Hispanic unrelated individuals at the 9 loci profiled.
6. However, the Forensic Scientist from the Illinois State Police printed a State Match Detail Report that indicates that the ‘Locus Match Stringency’ parameters were set at high, which nevertheless resulted in 2 matches, 1 at 10 Loci and 1 at 6 Loci; presumably the ‘10 Loci’ match is actually the 9 Loci match excluding the Amelogenin Loci (X,Y). It is not clear what the other 6 Loci match was.
7. Moreover, an Arizona database search of 65,493 specimens revealed 120 pairs of 9–loci matches; an Illinois database yielded 900 pairs of matches at 9 loci; and a Maryland study 32 pairs of 9–loci in a database of less than 30,000. Wherefore, the State's theoretical statistical analysis, which lends relevancy and weight to the State's DNA evidence is seriously in doubt considering actual DNA searches of real profiles that exist in actual DNA databases."

Defendant specifically requested the court to order the State Police to search the following databases: "a. offenders maintained under 730 ILCS 5/5–4–3(f) ; b. unsolved crimes maintained by state and local DNA databases by law enforcement agencies; and/or c. the National DNA index system" using the following formulas:

"a. for actual 9–loci pair matches that actually exist in the databases;b. for the actual 9–loci identified in this case, but utilizing Low, Medium and High locus Match Stringency; and
c. for the actual frequency of each of the alleles identified in this case as they actually exist in the databases."

This motion was held in abeyance.

¶ 8 On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining to the court:

"THE COURT: Database search motion withdrawn?
[PUBLIC DEFENDER CHRIS ANDERSON:] Yes, motion for DNA Database search. I was able to actually find—the FBI had actually done a CODIS allele frequency analysis for each of the databases, so I didn't need it because I have it now.
THE COURT: Okay. That database motion is withdrawn.
[PUBLIC DEFENDER ANDERSON:] That issue is done. After further discussions with the lab, I realize that by entering the profile in this case that they are searching all additional cases in the CODIS database against that COPA [sic ] any new ones put in so that in effect is being done anytime—
THE COURT: I believe [Assistant State's Attorney Mary Lacy] mentioned that on the last court date that they continually search during the pendency of the case.
[PUBLIC DEFENDER ANDERSON:] Right—well, perpetually they search. Third the issue is the National DNA Search using the profile in this case for purposes of trial strategy, general strategy, we are not pursuing that issue, Judge. So all of these things that we requested have been resolved, so I'm asking leave to withdrawal [sic ] that motion, Judge.
THE COURT. Okay."

¶ 9 Defendant also filed a motion to suppress his statement, as well as a supplemental motion to suppress statements. At the end of the hearing, the trial court made extensive findings of fact, after which it denied the motion, noting:

"For the foregoing reasons, respectfully your motion to suppress statements is denied. The court specifically finds that the defendant was advised of his rights, that he waived his rights until he asked for an attorney when all questions ceased * * *.
He was never confronted with material misrepresentations. The statements, whatever they were obtained [sic ] by the defendant, from the defendant, were not obtained as a result of physical or psychological or mental coercion.
The court finds whatever statements that the defendant made were voluntarily of his own free will. And the first time the defendant invoked his right to attorney was to [the assistant State's Attorney] after which questioning ceased. Respectfully, your motion to suppress statements is denied."

Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant's propensity to commit sexual attacks and to motive and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the court allowed evidence of the prior sexual assault as evidence of defendant's propensity to commit sexual attacks, motive, and intent, as two of the murder counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court determined:

"It is clear that in viewing the proof of other crimes sought to be admitted, it's relevant to the
...

To continue reading

Request your trial
8 cases
  • People v. Williams
    • United States
    • United States Appellate Court of Illinois
    • February 20, 2020
    ...2019 IL App (1st) 162999, ¶ 58, 442 Ill.Dec. 875, 160 N.E.3d 1055 ; People v. Banks , 2016 IL App (1st) 131009, ¶ 123, 409 Ill.Dec. 230, 67 N.E.3d 442. Matters of trial strategy are generally immune from claims of ineffective assistance of counsel. Manning , 241 Ill. 2d at 327, 350 Ill.Dec.......
  • People v. Gonzalez
    • United States
    • United States Appellate Court of Illinois
    • May 7, 2019
    ...he did not preserve his challenge by raising the issue at trial. See People v. Banks , 2016 IL App (1st) 131009, ¶ 71, 409 Ill.Dec. 230, 67 N.E.3d 442 (to preserve an issue for appeal a defendant must object at trial and raise the issue in a posttrial motion). However, the State does not ar......
  • People v. Wilson, 1-14-3183
    • United States
    • United States Appellate Court of Illinois
    • September 22, 2017
    ...at trial, the State misses its opportunity to cure any error." People v. Banks, 2016 IL App (1st) 131009, ¶ 71, 409 Ill.Dec. 230, 67 N.E.3d 442. Defendant did not object to the State's DNA evidence at trial, nor did he raise this issue in his posttrial motion. As a result, defendant deprive......
  • People v. Hamerlinck, 1–15–2759
    • United States
    • United States Appellate Court of Illinois
    • March 29, 2018
    ...the evidence but to its foundation and thus is subject to forfeiture. People v. Banks , 2016 IL App (1st) 131009, ¶ 68, 409 Ill.Dec. 230, 67 N.E.3d 442 (citing People v. Woods , 214 Ill. 2d 455, 471, 293 Ill.Dec. 277, 828 N.E.2d 247 (2005) ). The application of forfeiture to such claims is ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT