People v. Watson

• Decision Date: 25 January 2012
• Docket Number: No. 2–09–1328.,2–09–1328.
• Citation: 965 N.E.2d 474
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Troy S. WATSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

965 N.E.2d 474

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Troy S. WATSON, Defendant–Appellant.

No. 2–09–1328.

Appellate Court of Illinois, Second District.

Jan. 25, 2012.

Thomas A. Lilien, Deputy Defender, Linda A. Johnson, Office of the State Appellate Defender, Elgin, for Troy S. Watson.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford (Stephen E. Norris, Deputy Director, Timothy J. Ting, State's Attorneys Appellate Prosecutor, Mt. Vernon, of counsel), for the People.

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Troy S. Watson, was convicted of residential burglary ( 720 ILCS 5/19–3(a) (West 2006)). On December 3, 2009, the trial court denied defendant's pro se posttrial motion alleging, in part, ineffective assistance of counsel based on counsel's failure to challenge the allegedly marginal statistical significance of admitted deoxyribonucleic acid (DNA) evidence. On December 10, 2009, the court sentenced defendant to 30 years' imprisonment. Defendant did not file a postsentencing motion.

¶ 2 On appeal, defendant argues that both trial and posttrial counsel provided ineffective assistance. Specifically, defendant asserts that, where the only evidence the State produced against him constituted a partial DNA "match," trial counsel provided ineffective assistance in that she did not: (1) cross-examine the State's DNA expert or present any evidence regarding the fact that the partial profile should be considered a "nonmatch" and was not, in fact, unique; (2) present any expert testimony to establish that the statistical calculations relied upon by the State and its expert were flawed; and (3) understand the DNA evidence or ensure that it was properly explained to the jury. As to posttrial counsel, defendant asserts that counsel provided ineffective assistance where he was appointed for the purpose of filing postsentencing motions but, instead, filed only a notice of appeal. For the following reasons, we conclude that defendant was denied the effective assistance of trial counsel. We reverse his conviction and remand for a new trial with new counsel. We do not reach the issue of whether posttrial counsel was ineffective.

¶ 3 I. BACKGROUND

¶ 4 On August 17, 2007, Anna Berman was house-sitting for her boyfriend's uncle, Craig Corcoran. When she arrived at Corcoran's residence, the back door was ajar and, inside, items were disturbed and various belongings were missing. The items stolen from the residence included a laptop computer, a video game system, and a flatscreen television. Berman telephoned the police.

¶ 5 The police investigation revealed that a patio chair was pulled under a bathroom window; the bathroom storm window was removed and broken, the interior window was pried open, and it appeared that the screws on the window lock were unscrewed to gain entry to the home through the bathroom. No usable fingerprints were recovered from the window, bathroom, or remainder of the house. A tennis shoe or other footwear imprint was found on the toilet seat underneath the entry window; a lift of the print was not tied to defendant. Police collected small hairs found on the broken glass of the window and a screwdriver (which did not belong to Corcoran) found in the master bedroom and sent them to be tested by the State Police crime lab for possible DNA evidence.

¶ 6 Approximately 16 months later, on December 31, 2008, a buccal swab was used to collect defendant's DNA.

¶ 7 Blake Aper, a forensic scientist employed by the State Police, testified that he performed DNA analyses comparing defendant's DNA with the DNA collected from the screwdriver and hairs recovered from the crime scene. In approximately 36 pages of trial transcript, Aper was admitted as an expert in DNA analysis, he explained generally what DNA is and how the analysis works, and he explained that the laboratory types 13 loci on the DNA to create a profile.¹ The laboratory prefers to have a minimum of three nanograms of DNA to profile. Further, Aper explained that, while buccal swabs taken from individuals typically result in full 13–loci DNA profiles, it is not expected that full profiles will be recovered from samples left at crime scenes. DNA information from such a sample can be lost due to environmental factors, if someone was wearing gloves when handling the item from which the sample was recovered, if the source of the sample is not a "good DNA shedder," if that individual did not handle the item for a long period or did not handle it roughly, or if the item does not have a good surface onto which to transfer DNA.

¶ 8 Aper testified specifically regarding the samples collected from the crime scene as compared to defendant's DNA. First, as to the screwdriver, Aper explained that the swab recovered only 1.1 nanograms of DNA. From that low-level sample, Aper was able to obtain information from only 3 loci, as opposed to the 13 loci normally viewed. Aper concluded that the sample contained a mixture of more than one person's DNA. He compared defendant's DNA to the three loci and excluded defendant as having contributed to the sample.

¶ 9 Next, as to the hairs recovered from the window, Aper testified that the sample constituted 2 ½ nanograms of DNA. Again, Aper was not able to get a full profile from all 13 loci; rather, the sample allowed him to obtain information from only 7 of the 13 loci. Aper compared defendant's DNA standard to the seven-loci DNA profile recovered from the window. He concluded that he "was not able to exclude [defendant] as contributing to that stain."

¶ 10 To explain his process, Aper prepared, and the jury was shown, charts reflecting defendant's DNA profile and the types Aper obtained from the screwdriver and the hairs from the window. Aper explained that, on each chart, there were markings reflecting the 13 DNA loci. At each locus, there was a notation reflecting the type obtained at that locus, and if there was no DNA recovered at a locus, there was a notation reflecting that. Aper then demonstrated for the jury how the chart reflecting the types recovered from the screwdriver compared with defendant's profile such that defendant could be excluded as having contributed to the mixed sample. Aper next explained the comparison process and results obtained when comparing defendant's DNA profile to the seven-loci profile recovered from the hairs:

"I look at the first location. There's a 1618; [defendant is] a 1618. Second location, 1417; he's a 1417. Third location, 1921; he's a 1921. Fourth location, 1213; he's a 1213. This [fifth] location 2931.2; he is a 2931.2. Since there is no information in my crime scene profile at this location, no comparisons really happen here. So I go down to here, this D5 [sixth location] where there's a 1012, [defendant] has a 1012.

This D13 [seventh] location I have a type 10, and he has a 1013. So he's got some. There is one type that's consistent with this profile, but I did not observe the 13 there. But the problem is when we get low level DNA samples, sometimes we have information below, let's say, our threshold for analysis. And that's what happens sometimes we get, let's say, our threshold is set at 150; and that's just telling you how high—how much DNA is there. For a threshold of 150, sometimes you can have information below our threshold, and that doesn't show up on the chart. So this information here was strong enough for me that I could not exclude him as a contributor because it's possible that a 13 is at this location, but it's below our threshold."

Aper was asked, "[W]ith regard to the DNA swabbing from the window, which you said the defendant cannot be excluded, what are the odds of finding that DNA profile in the general population?" (Presumably, such that, like defendant, someone else's DNA would, at those seven loci, match the profile from the hairs on the window.) He replied: "Approximately 1 in 1.4 billion black, 1 in 103 million white, and 1 in 170 million Hispanic individuals cannot be excluded from having contributed to that stain." As defendant is a white male, "you would have to sample roughly 103 million white people to find someone that also cannot be exclude[d] from that profile from that window." Aper testified that he had checked earlier that morning, and the population of the United States is roughly 307 million people.

¶ 11 Defense counsel's entire cross-examination of Aper follows:

"COUNSEL: Mr. Aper, you were just testifying about a general population, people in the general population. Your findings then take into consideration only people who are unrelated to [defendant]; is that correct?

APER: That's correct.

COUNSEL: And that's because people who are related share similar types of DNA?

APER: Yes. That's possible."

¶ 12 On re-cross, defense counsel clarified that, while only identical twins would share exactly the same DNA at all 13 levels, a relative might share some levels.

¶ 13 Outside the presence of the jury, defense counsel noted that defendant wanted her to cross-examine Aper on the fact that defendant became a suspect in this case as a result of, as counsel put it, a "hit" in the State's database of convicted felons (which contained defendant's DNA profile). The court agreed with counsel that informing the jury that defendant was a convicted felon would not have been helpful to his case. Defendant's motion for a directed verdict at the close of the State's case was denied. Defendant presented no evidence.

¶ 14 In closing, defense counsel highlighted that the sole piece of evidence the State presented to link defendant to the burglary was the DNA evidence recovered from the hairs on the window. She reminded the jury that: (1) there were no eyewitnesses; (2) no fingerprints were recovered; (3) there was no evidence linking the bathroom footprint to defendant; (4) the DNA testing of the screwdriver that was presumably used during the break-in did not match defendant; and ...