People v. Wright

Decision Date30 March 2012
Docket Number1–07–3464.,Nos. 1–07–3106,s. 1–07–3106
Citation971 N.E.2d 549,2012 IL App (1st) 073106,361 Ill.Dec. 447
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Harvey WRIGHT, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

2012 IL App (1st) 073106
971 N.E.2d 549
361 Ill.Dec.
447

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Harvey WRIGHT, Defendant–Appellant.

Nos. 1–07–3106, 1–07–3464.

Appellate Court of Illinois,
First District, Sixth Division.

March 30, 2012.


[971 N.E.2d 553]


Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Scott F. Main, Assistant Appellate Defender, Chicago, for Appellant.

Anita M. Alvarez, State's Attorney, County of Cook, Chicago (James E. Fitzgerald, Mary Needham, William L. Toffenetti, Assistant State's Attorneys, of counsel), for the People.


OPINION

Presiding Justice R. GORDON delivered the judgment of the court, with opinion.

[361 Ill.Dec. 451]¶ 1 This is a case of first impression. This case involves a criminal defendant's pretrial motion for a DNA database search. As far as we know, this is the first case to review a trial court's denial of a motion governed by section 116–5 of the Illinois Code of Criminal Procedure of 1963, the Illinois statute that permits criminal defendants to seek pretrial DNA database searches. 725 ILCS 5/116–5 (West 2006). In addition, “Illinois is one of the few states in the nation to provide a statutory framework” for a criminal defendant who seeks pretrial access to the state's DNA database. Erin Murphy, The New Forensics: Criminal Justice, False Certainty and the Second Generation of Scientific Evidence, 95 Calif. L.Rev. 721, 790–91 (2007). Compare with State v. Dwyer, 2009 ME 127, ¶ 16, 985 A.2d 469 (since there is no specific statute in Maine authorizing pretrial DNA database searches, a pretrial search motion was decided solely on general evidentiary principles).

¶ 2 Defendant Harvey Wright was prosecuted almost entirely on the basis of a cold-case DNA match. He was convicted of aggravated criminal sexual assault after a jury trial and sentenced to life in prison, although the victim could not identify him [361 Ill.Dec. 452]

[971 N.E.2d 554]

as the perpetrator, and there was no other physical evidence linking him to the crime.

¶ 3 Two DNA samples were recovered: from the victim's underwear and from the victim's rectal swab. The State's forensic expert testified that only the rectal sample yielded a “match” to defendant's DNA. However, the analysis of the rectal swabs was done on the basis of only 9 loci, instead of the more standard 13 loci. For the underwear, the analysis was done on the basis of 13 loci; but from the analysis of the underwear, the expert could not find a “match”; he could conclude only that defendant could not be excluded as a contributor.

¶ 4 On appeal, defendant claims that the trial court erred by denying his pretrial motion to have the Illinois Department of State Police determine the number of nine-loci DNA matches in its offender database. Defendant also makes several other claims, including that the State failed to prove beyond a reasonable doubt that defendant “acted in such a manner as to threaten or endanger the life” of the alleged victim. 720 ILCS 5/12–14(a)(3) (West 1998). In its appellate brief, the State concedes: “The People agree that they failed to prove beyond a reasonable doubt the aggravating factor alleged.”

¶ 5 For the reasons stated below, we find that the trial court erred, and we reverse and remand for a new trial.

¶ 6 BACKGROUND
¶ 7 1. Defendant's Pretrial DNA Motion

¶ 8 On June 12, 2006, defendant moved to exclude any DNA evidence obtained from the State's analysis of the victim's rectal swabs. Defendant's motion stated that the analysis of the rectal swabs was done on the basis of only 9 loci and DNA analysis is typically done on the basis of 13 loci. His motion stated that, normally, “two kits” are used “to develop the DNA profile,” and the two kits are called “Profiler” and “Cofiler.” Profiler develops “nine locations on the human genome, and Cofiler can develop the four additional locations necessary in developing a full profile.” Defendant's motion stated that, “[a]ccording to the paperwork in the case file,” the DNA extracted from the rectal swabs was quantified and amplified using both Profiler and Cofiler, but “there [are] no electronic data or paper printouts from any Cofiler” runs.

¶ 9 Defendant's motion stated that Michael DeFranco, the forensic scientist who extracted the DNA from the rectal swabs, left the employ of the Illinois State Police, and Edgar Jove, the new scientist assigned to the case, “noticed this discrepancy in the Cofiler materials, and decided to get the DNA extract in the case to reamplify the DNA in Cofiler for the rectal swabs.” However, Jove “located the tube where the extract should have been, and there was nothing in the tube.” Later at trial, Jove testified that there were no rectal swabs left to test, because “[a]ll four swabs were consumed in the original extraction.”

¶ 10 Defendant moved to exclude the DNA evidence from the rectal swabs, pursuant to Illinois Supreme Court Rule 417(b)(i) (eff. Mar. 1, 2001), which requires the proponent of DNA evidence to provide to the adverse party copies of “the case file,” including all reports and data relating to the testing performed. Since the State failed to produce the data from DeFranco's Cofiler testing of the rectal swabs, defendant sought to exclude any DNA evidence obtained from the rectal swabs.

¶ 11 In the alternative, defendant's motion asked that, if the trial court ruled to admit the nine-loci evidence, then it should order the State to determine how many nine-loci “matches there are in [the State's] convicted database.” In support [361 Ill.Dec. 453]

[971 N.E.2d 555]

of his alternative argument, defendant cited an Arizona study, stating:

“[A] recent examination of Arizona's convicted offender database revealed 120 nine location matches between two inmates in a database of 65,493 offenders. In other words, in Arizona there is a 1 in 700 chance that two individuals will match up at nine locations.”

Defendant argued that in order to have “a match,” the samples had to match at 13 loci and that anything less was not a match. Defense counsel stated that, “to [their] knowledge, no study has been performed to determine how many nine loci matches are present in the Illinois database.” Defendant asserted that “[p]erforming such a study would give perspective to the strength of the partial profile match developed in this case” and would support defendant's argument that a 13–loci analysis was required.


¶ 12 In his motion, defendant did not ask for the names, addresses, or any identifying information for any DNA profiles that matched his profile at nine loci in the State's offender database. Defendant asked only for the number of profile pairs that were the same at nine loci.

¶ 13 In its response to defendant's motion, the State claimed: “The State has much more evidence against the Defendant than this one swab, including [1] a swab from the Victim's underwear that matches the Defendant at all 13 loci, and [2] additional testing is currently underway on swabs that were taken from the Victim's vaginal area.”

¶ 14 Contrary to what the State asserted in its response, one of the State's forensic experts at trial testified that the DNA from the victim's underwear was not a match to defendant's DNA. As will be discussed more fully below, the expert could conclude only that defendant could not be excluded as a contributor. At trial, the State explained that, even though 13 loci were considered with respect to the underwear, the sample did not yield “a full profile.” He testified that the sample yielded only “some of the loci.” In addition, for some of the loci, the expert found that there were “different possibilities.” The expert testified that, by using “all possible combinations for that particular area of the DNA,” he found that “[a]pproximately one in 5 point 4 quadrillion black, one in 4 point 3 quadrillion white, or one in 66 quadrillion Hispanic unrelated individuals cannot be excluded as the male contributors.” At trial, the State's expert observed that these numbers were much higher than the population of the earth. In addition, contrary to the State's prediction about the vaginal swab, one of the State's experts at trial testified that analysis of the victim's vaginal swabs did not yield a male DNA profile.

¶ 15 The State's response also claimed that defendant had failed to provide it with a copy of the Arizona study and that Illinois Supreme Court Rule 417 (eff.Mar.1, 2001) did not apply to the case at bar, because it went into effect on March 1, 2001, which was after the date that tests on the rectal swabs and underwear were performed. As noted above, Rule 417(b)(i) requires the proponent of DNA evidence to provide to the adverse party copies of “the case file,” including all reports and data relating to the testing performed. Ill. S.Ct. R. 417(b)(i) (eff.Mar.1, 2001). Since the State failed to produce the data from DeFranco's Cofiler testing of the rectal swabs, defendant sought to exclude any DNA evidence obtained from the rectal swabs.

¶ 16 On August 18, 2006, defendant filed a “supplemental” motion. In this response, defendant argued that Rule 417 applied because the case was still in the pretrial stage. Defendant also stated that [361 Ill.Dec. 454]

[971 N.E.2d 556]

he had previously provided a copy of the Arizona study to Edgar Jove, the State's DNA expert. In addition, defendant attached a copy of the five-page Arizona report. The report is entitled “9+ Locus Match Summary Report,” and it states that it was prepared as a special report by the Arizona Department of Public Safety, pursuant to court order. The study lists matches, match by match, that occurred at 9, 10, 11 and 12 loci. The report states that the matches that occurred at 11 and 12 loci are siblings. The report states that any relationship between the 9–loci matches and the 10–loci matches “has not been determined.” The report lists each individual pair that matched, with identifying numbers for each one in the pair.

¶ 17...

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