People v. Cheek

• Decision Date: 18 November 1982
• Docket Number: No. 55086,55086
• Citation: 442 N.E.2d 877,93 Ill.2d 82,66 Ill.Dec. 316
• Parties: , 66 Ill.Dec. 316 The PEOPLE of the State of Illinois, Appellant, v. Frederick Leroy CHEEK, Jr. Michael ASBELL, Appellee, v. Steve BRIENEN, Sheriff, Appellant.
• Court: Illinois Supreme Court

Page 877

442 N.E.2d 877

93 Ill.2d 82, 66 Ill.Dec. 316

The PEOPLE of the State of Illinois, Appellant, v. Frederick Leroy CHEEK, Jr.

Michael ASBELL, Appellee, v. Steve BRIENEN, Sheriff, Appellant.

No. 55086.

Supreme Court of Illinois.

Nov. 18, 1982.

Tyrone C. Fahner, Atty. Gen., Chicago, and Ronald C. Dozier, State's Atty., Bloomington (Melbourne A. Noel, Jr., Mike Weinstein, Michael V. Accettura, and Val Gunnarsson, Asst. Attys. Gen., and Robert J. Biderman and David E. Mannchen, State's Attys. Appellate Service Com'n, Springfield, of counsel), for the People.

Daniel D. Yuhas, Deputy State Appellate Defender, and David Bergschneider, Asst. State Appellate Defender, Springfield, for appellee.

CLARK, Justice:

The relator, Michael Asbell, was arrested in Normal, Illinois, on March 16, 1980. He was not charged with any criminal activity in Illinois, but the State filed a complaint in extradition on March 24, 1980, requesting his commitment for not less than 30 days, to allow the Florida authorities to obtain a governor's warrant for extradition. On May 5, 1980, the Governor of Florida filed a demand for the return of Frederick Leroy Cheek, Jr., a/k/a Mike Asbell, to Florida. A governor's warrant by Governor James Thompson was also filed on that date. The amended information and judgment of conviction which were attached to the complaint for extradition bore only the name of Frederick Leroy Cheek, Jr., and stated that the individual named had been found guilty of burglary and sentenced to 15 years' imprisonment. A fugitive warrant, which was also attached to the complaint for extradition, stated that Frederick Leroy Cheek, Jr., had escaped from the Florida Department of Corrections on September 25, 1979. The only underlying document to the governors' warrants that used the caption "Michael Asbell, a/k/a Frederick Leroy Cheek, Jr." was an affidavit from the Secretary of the Department of Corrections of Florida, Louie L. Wainwright, directed to the Governor of Florida, asking for a requisition upon the Governor of Illinois.

The Illinois arrest records listed relator's name as "Mike Asbell, a/k/a William Ballard," because when the relator was arrested in Illinois, he was driving an automobile which the police believed was stolen from Florida by William Ballard. No charges were ever filed against the relator in regards to the automobile. The record does not indicate why no charges were filed.

The relator filed two petitions for a writ of habeas corpus. One was filed on June 16, 1980, and the other on July 10, 1980. On August 20, 1980, a hearing was held on those petitions and the relator was discharged by the trial court. On appeal by the State, the appellate court upheld the trial court's order discharging the relator. (95 Ill.App.3d 392, 50 Ill.Dec. 921, 420 N.E.2d 238.) The State filed a petition for leave to appeal (73 Ill.2d R. 315(a)), which was granted.

On appeal before this court, the State asserts that the governors' warrants were in proper form and established a prima facie case against the relator so as to shift the burden of proof regarding identification to the relator. The State further asserts that the trial court erred in discharging the relator because he failed to meet his alleged burden of proof. Lastly, the State contends that, assuming arguendo the burden of proof to establish the relator's identity was on the State, there was sufficient evidence to establish that the relator, Michael Asbell, was Frederick Leroy Cheek, Jr.

At the hearing on the habeas corpus petitions the relator testified that he was passing through Normal from Dania, Florida, on his way to Chicago when he was arrested. He testified that the police knocked on his motel room door and asked him if he was driving a 1977 Pontiac with Florida plates. He told them he was and they asked for his identification. The police called the police station and thereafter placed the relator under arrest. The relator testified that at no time was he told why he was being arrested.

The relator testified that his given name at birth was Michael Asbell. He further testified that he never used the alias Frederick Leroy Cheek, Jr., and denied that he had ever been convicted of burglary, sentenced to 15 years' imprisonment, or escaped from a Florida correctional institution.

The relator testified that he was living in Long Beach, California, on March 29, 1978, the date of Cheek's conviction, but was living in Florida on September 25, 1979, when Cheek escaped from the Florida penitentiary.

Since his arrest, the relator testified that he had been fingerprinted 14 times. The reason he was given by the correctional officers for the necessity of the duplicate fingerprints was that his first set of prints had not been "verified."

The State's first witness at the hearing was Randall Scott, a correctional officer for the McLean County sheriff's department. He testified that he had taken two sets of the relator's fingerprints in response to a request from his sergeant. His sergeant, he testified, had told him that Mr. Asbell's fingerprints had come back unclassifiable several times when they were submitted into a facsimile machine. Scott explained that the facsimile machine is a machine into which a person's fingerprints are submitted in order to obtain a proper identification. The fingerprints that are fed into the machine are compared with records kept by the Illinois Bureau of Investigation and the Federal Bureau of Investigation in an attempt to match them up and obtain a proper identification. Scott testified that he though one of the sets of fingerprints that he had taken from Michael Asbell had come back classifiable, but he did not really know because he had not run the facts machine the day Mr. Asbell's fingerprints were allegedly sent.

Detective Charles Crowe, a 13-year veteran of the Bloomington police department was called as the State's next witness. He testified that he had been a detective for eight or nine years and had received fingerprint training in 1974. His fingerprint training consisted of 80 hours of training in the classification and identification of fingerprints from the University of Illinois Police Training Institute. Crowe also testified that he had received certification two years earlier as a latent-print examiner, a certification which did not require an examination. Crowe had been qualified as an expert for purposes of court testimony on three prior occasions. Although Crowe estimated that he had compared latent prints with known prints approximately 150 times, some of them photostatic copies of fingerprint cards, he had never testified as an expert based on a photostatic-comparison examination.

Crowe testified that fingerprints are unique to each individual and that he had never encountered a situation where two individuals had the same fingerprints. When comparing fingerprints, he testified, there is no standard number of points of similarity generally accepted as establishing an identification of a latent print; however, if there is any dissimilarity, identity is not established. Crowe testified that the FBI uses a 12-point test of similarity to make a positive identification. He explained that he uses a 10-point test because that is the standard that is relied upon by Bob DuBois from the Pekin Crime Laboratory.

Crowe testified that he examined and compared the right thumbprint of a fingerprint card containing the fingerprints of Michael Asbell taken by Officer Randall Scott on March 16, 1980, and the right thumbprint of a photostatic copy of the fingerprint card for Frederick Leroy Cheek, Jr., provided by the Florida authorities and attached to the Governor's warrant. He examined the prints for 15 minutes and found 10 points of similarity and no points of dissimilarity. The reason he compared the right thumbprints on each exhibit was because the photostatic copy of Frederick Leroy Cheek's fingerprints from Florida was blurred and smudged. Crowe's comparison of the thumbprints was limited to the top left portion of the thumbprints because even a portion of that print on the photostatic copy sent from Florida was blurred. Crowe testified that it was possible to make the identification even though the print was not the "clearest in the world." He testified that he had compared portions of latent prints in the past to make identifications. Crowe's opinion, based on his experience and training and his examination of the two prints, was that the thumbprints belonged to the same individual.

The State's next witness was McLean County Deputy Sheriff Robert Boyd. As part of his duties with the sheriff's department, Boyd testified that he was usually involved in all extradition proceedings in McLean County. On March 17, 1980, Boyd first became aware that an individual was being held who was claimed to be a fugitive from Florida. Boyd then contacted Linda Hightower of the Department of Corrections in Tallahassee, Florida, and asked her to send a copy of their fugitive warrant and their governor's warrant for the person they knew as Frederick Leroy Cheek, Jr. Boyd received the warrants, and later received an envelope which contained a photograph which was marked, "Cheek, Frederick # 063872." Boyd wrote a notation on the back of the photograph that indicated that he had received it on June 24, 1980, at 1 p.m., and put his name on it. Boyd testified that he showed the photograph and the envelope to the State's Attorney of McLean County and then put them in his file. Both exhibits, the photograph and the envelope, Boyd testified, were in substantially the same condition as when he received them. When Boyd was asked if he recognized the individual in the photograph, defense counsel objected on the basis of lack of authentication, and the trial court judge sustained the objection.

Boyd was also asked about a "rap sheet" from the FBI which allegedly was received by inserting Michael Asbell's fingerprint card into...