People v. Lipscomb

• Decision Date: 28 June 1991
• Docket Number: No. 4-90-0385,4-90-0385
• Citation: 158 Ill.Dec. 952,215 Ill.App.3d 413,574 N.E.2d 1345
• Parties: , 158 Ill.Dec. 952 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent R. LIPSCOMB, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1345

574 N.E.2d 1345

215 Ill.App.3d 413, 158 Ill.Dec. 952

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vincent R. LIPSCOMB, Defendant-Appellant.

No. 4-90-0385.

Appellate Court of Illinois Fourth District.

June 28, 1991.

Alan Brunell, Chicago, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Beth McGann, Staff Atty., for plaintiff-appellee.

Presiding Justice LUND delivered the opinion of the court:

On February 16, 1990, defendant Vincent Lipscomb was found guilty by a jury sitting in the circuit court of Champaign County of committing two acts of aggravated criminal sexual assault. (Ill.Rev.Stat.1989, ch. 38, par. 12-14.) He was subsequently sentenced to consecutive 12-year prison terms, with said sentences to be served consecutively to another seven-year sentence on an unrelated matter. Defendant now appeals.

I. FACTS

On February 23, 1989, defendant was indicted on four counts of aggravated criminal sexual assault. (Ill.Rev.Stat.1989, ch. 38, par. 12-14.) Counts I and II alleged that on August 26, 1988, defendant committed forcible acts of vaginal and oral penetration, using his penis on V.V. Counts III and IV involve another time and another victim, K.R., and, having been severed from this case, are no longer involved in the current controversy.

The discovery filed by the State establishes that on September 26, 1988, the State received a search warrant allowing it to seek samples of defendant's hair, saliva, and blood. On March 31, 1989, defendant filed a motion seeking to quash this warrant or, in the alternative, to have a Franks hearing. (See Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667.) The court denied defendant's motion in both regards.

Defendant also filed a motion requesting a pretrial hearing pursuant to Frye v. United States (D.C.Cir.1923), 293 F. 1013, to determine the scientific reliability and the admissibility of the DNA fingerprinting or identification process. DNA fingerprinting is the procedure for the forensic use of DNA technology to determine the likelihood of a sample of blood, tissue, or sperm coming from a given person. As will be seen later, in this case the evidence is the primary evidence used to establish defendant's guilt. The court granted the motion and a hearing commenced on October 9, 1989.

A. Frye Hearing

Dr. Michael Baird testified that he is a geneticist employed by Lifecodes Corporation, a for-profit corporation created to refine DNA testing for a variety of purposes. They performed DNA testing for forensic purposes as well as for detection of different diseases such as leukemia and other genetic diseases. His responsibility is to oversee the testing done in the forensic and paternity areas of the company. He was qualified as an expert in the field of genetics. In his opinion, DNA fingerprinting falls in the field of genetics, population genetics, molecular biology, and forensic science.

Dr. Baird explained that DNA stands for the chemical deoxyribonucleic acid and is the genetic material which is found in each person. There are approximately three billion base pairs of DNA in every cell in each human being. The combinations of these are different for every individual, with the exception of identical twins. The DNA is joined together like a long, twisting ladder. The procedure used for DNA testing involves breaking the ladder into fragments, ordering the fragments by size, looking for specific fragments, and then comparing the location of the fragments from the forensic sample with those from the blood sample. The methodology used for DNA testing is restriction fragment length polymorphism (RFLP) analysis, which was first developed in 1978.

Lifecodes' procedures involve six steps. First, DNA must be isolated from the forensic sample which is the semen, blood, or tissue, or from the known blood samples. Next, that DNA is cut, using a restriction enzyme to create DNA fragments. This is an enzyme which will cut the DNA strand every time it finds a certain code in the DNA. This code appears many thousands of times, and it will appear in different areas of the DNA chain for different people.

The third step is the electrophoresis procedure, which involves placing the DNA in a gel and passing a slight electrical current through the gel. This causes the DNA fragments to move, resulting in their being separated by size from small to large on a continuum. DNA fragments are measured in terms of the number of base pairs (Bp) or kilobase pairs (Kb). The fourth step involves transferring this array of DNA to a membrane for testing using the southern blot transfer technique. Once this has been done, this membrane can be used repeatedly and stored for long periods of time.

The next step is the hybridization step. This involves the use of specific DNA probes. These probes are fragments of DNA and are designed to recognize a comparable fragment of DNA on the membrane. The probes can be polymorphic or nonpolymorphic. Polymorphic means that the location of the fragment varies greatly among individuals. Nonpolymorphic means it is the same for all individuals. Thus, the use of a nonpolymorphic probe should reveal a DNA fragment in the same location on each membrane. However, use of the polymorphic probe will result in DNA fragments being found in different locations for different individuals. All probes are radioactive. The DNA on the probe binds with the DNA in the sample, leaving a radioactive spot. Once the probes have been applied, the final step, autoradiography, occurs. Here, a piece of X-ray film is placed on top the membrane, and the radioactive probe creates a picture showing the result of the test. This is referred to as the autoradiograph (or autorad for short). Baird explained these steps are used in all laboratories doing DNA research. The only difference in procedures used by laboratories other than Lifecodes is the type of enzyme used to cut the DNA and the type of probes used. These steps are accepted as reliable by the general scientific community.

Once the autorads are created, then an examination is done involving the forensic sample autorad, the victim's blood autorad, and the defendant's blood autorad, to see if there is a match between the forensic sample and the defendant's blood sample. If an autorad shows that any probe does not match, then the subject is positively excluded. The first step in the matching procedure is performing independent visual exams. These were done independently by the forensic scientist who did the RFLP test and by Lifecodes' three Ph.D.'s. These are done in the blind, meaning that each probe is viewed for a match separately from the other probes.

Baird explained that Deborah Vining was the forensic scientist who performed the test in this case. She has a Master's degree and previous forensic experience. She was trained and tested by Lifecodes, and he reviewed her work in this case. It was his opinion that she properly followed all the steps. He explained that in this case they used eight probes. One was a bacteria probe to check for contamination. Two were nonpolymorphic probes to ensure there was no shifting or any other difficulty with the test procedures. Finally, there were five polymorphic probes to be used for the matching. He showed the court the actual matching of defendant's blood sample with the forensic sample. He also explained that if there had been a problem with contamination, it would most likely have produced a negative result.

Baird stated that the comparison is made visually and also mathematically. If the visual examination determines the presence of a match, then the fragments are sized in terms of Kb pairs (or 1,000 Bp). This is done by measuring how far the fragments moved in the gel, since the smaller fragments move farther than the larger ones. Two measurements of each band are made, and these are averaged. The original measurements are in base pairs or .001 Kb but, when they are averaged, that is done to 10-Bp or .01 Kb. These averages for each band or probe from the forensic sample are compared to the suspect's sample. A match is declared if they are identical. For matching purposes, Lifecodes uses an acceptable error of three standard deviations, or plus or minus 1.8% of the measurement. In this case, all defendant's samples matched numerically with the forensic test.

If a match is found, then a frequency for the occurrence of that particular result must be determined. Lifecodes has an ever-expanding data base for different ethnic groups. This is done using whole blood samples and compiling them in the computer. The method of finding the frequency of a particular band is to take the suspect's results for a given probe and create a bin for that size fragment by taking a range of plus or minus 1.8%. The frequency is then determined by counting the number of occurrences in that bin as compared to the total in the data base. The final frequency of a person's DNA appearing is determined by multiplying the frequencies of the respective probes together. Thus, the more probes used the greater the restriction. In this case, four probes were used originally. These resulted in frequencies of 1 in 58, 1 in 87, 1 in 415, and 1 in 39, or a combined value of 1 in 81.6 million, meaning the likelihood of these four DNA results showing up in any individual is 1 in 81.6 million. Once the fifth probe was added (1 in 84), Lifecodes determined that the relative frequency of this pattern involving these five probes occurring in the black population would be 1 in 6.8 billion.

Dr. P. Michael Conneally also testified. He is a professor of genetics and neurology at Indiana University and teaches genetics. He does research in human gene mapping involving human disease research and is board certified in genetics. He was qualified as an...