FIFTH DIVISION December 13, 2013 No. 1-11-1116

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 CR 7754 ) CRANDALL WILLIAMS, ) Honorable ) Frank Zelezinski, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Hall concurred in the judgment and opinion. Justice Lampkin dissented, with opinion.

OPINION

¶1 Defendant Crandall Williams was convicted, after a bench trial, of (1) first

degree murder, (2) home invasion and (3) armed robbery. After hearing factors in

aggravation and mitigation, the trial court sentenced him to consecutive terms of

80 years for first degree murder, 20 years for home invasion, and 20 years for

armed robbery, for a total of 120 years in the Illinois Department of Corrections

(IDOC).

¶2 On this direct appeal, defendant raises only one issue for our consideration.

He argues that he was denied due process of law when the trial court based its No. 1-11-1116

finding of guilt at his bench trial on a mistaken recollection of the testimony of the

defense's DNA expert. For the following reasons, we reverse and remand for a

new trial.

¶3 I. Background

¶4 In the case at bar, someone broke into the home of 82-year-old Walter

Pinianski, burglarized his house and stabbed him to death. The only issue at trial

was the identity of the perpetrator. There were no eyewitnesses, and defendant

was not arrested at the crime scene but rather three years later.

¶5 The State's identification evidence consisted solely of: (1) DNA evidence;

and (2) the testimony of a jailhouse informant. The DNA evidence was obtained

from a pair of bloody gloves found inside the victim's home. The blood came only

from the victim, but a swab of the inside of the gloves revealed a mixture of DNA

material which was contributed by at least three different individuals. Thus, at

least three different people had worn the gloves.

¶6 The DNA evidence was reviewed by two laboratories that did the original

tests and generated the data; and by two experts retained by each side to review

the already-generated data and offer additional interpretations of it. The two

laboratories were operated by the Illinois State Police and Bode Laboratories; and

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the two experts were Dr. Rick Staub of Cellmark Laboratory, for the State; and Dr.

Karl Reich of Independent Forensics Laboratory, for the defense. Of these four

laboratories – the Illinois State Police, Bode, Cellmark and Independent Forensics

– only Dr. Staub of Cellmark concluded that defendant was a match. Dr. Staub

disagreed with all the other laboratories including the Illinois State Police.

¶7 Of the three laboratories engaged by the State, not one agreed with the other.

All three – the Illinois State Police, Bode Laboratories, and Cellmark Laboratories

– interpreted the data differently and reached different conclusions about which

alleles from the mixture could be attributed to the major contributor. Although

acknowledging that he disagreed with the other experts, the State's expert, Dr.

Staub of Cellmark, testified that he alone interpreted the data to identify the alleles

belonging to the major contributor in such a way that they matched defendant's

profile. Dr. Staub admitted that he had defendant's profile in his possession, as he

was trying to determine the profile of the major contributor, and that he did not

rely on mathematical calculations in determining which alleles belonged to the

major contributor, although he admitted that "[g]enerally, there is a mathematical

relationship." However, on rebuttal, he testified that he made some calculations

while the defense expert was testifying.

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¶ 8 The defense expert, Dr. Karl Reich of Independent Forensics, explained why

the mixture made an identification impossible and why all that could be concluded

was that defendant could not be excluded as a possible contributor.

¶9 At the close of the bench trial, the trial court found that the testimony of

James Worthem, the jailhouse informant, "must be viewed with extreme caution"

and that it was merely "corroborati[ve] [of the] other evidence." No other witness

placed defendant in the neighborhood where the offense occurred, and there was

no statement by defendant to the police. However, relying primarily on the DNA

evidence, the trial court found defendant guilty. In describing the DNA evidence,

the trial court mistakenly stated: "regardless of all, Dr. Reich did, through

laborious cross-examination, have to indicate that certainly it was still the

defendant." It is this mistake in recalling the testimony of defendant's sole witness

that is at issue on appeal.

¶ 10 A. The State’s Evidence

¶ 11 The State’s first witness was Patricia Pinianski, the victim’s daughter. She

testified that Walter lived at 12500 South Paulina Street in Calumet Park for 48

years. In 2005, Patricia’s husband was suffering from brain cancer, and Patricia

called Walter every couple of days to let him know how her husband was doing.

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On February 9, 2005, when Patricia was unable to reach her father, she called the

Calumet Park police to request a wellness check.

¶ 12 Patricia testified that Walter’s house was very neat and uncluttered. He kept

a lot of cash in various places in the house, such as in an envelope in a closet

above the doorway; in a compartment of an old desk in the living room; and in a

drawer in his bedroom.

¶ 13 The State’s second witness, Angela Sanchez, testified that, on February 4,

2005, she worked as a bank teller at the Great Lakes Bank located at 13057 South

Western Avenue in Blue Island. At 1:51 p.m. on that day, Walter Pinianski made a

deposit of two checks totaling $1660.99 into his account, and withdrew $800 in

cash.

¶ 14 The State’s third witness was Judith Boyer, an assistant vice president of

security at Great Lakes Bank, who identified a Great Lakes Bank’s savings deposit

slip with Walter Pinianski’s name on it. The automated stamp on the back of the

slip indicated that the deposit was made on February 4th, 2005, at 1:51 p.m., and

that the bank teller who processed the transaction was Angela Sanchez, whose

teller identification number was 718. The automated stamp was done in the

ordinary course of business of Great Lakes Bank.

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¶ 15 The State’s next witness was Judith Chapan, a 911 dispatch operator at the

Calumet Park police department, who identified call records from February 6,

2005, that had been authored by her partner.1 The records documented 911 calls by

Walter Pinianski, and indicated that Walter’s first call was at 1:34 a.m. on

February 6, 2005. The record of this call stated: “[a] male subject was knocking on

the door asking for $5.00. Last seen walking southbound on Paulina from

address.” Walter’s next call was at 1:36 a.m. and concerned “a male subject

banging on the door.”

¶ 16 The State’s next witness, John Shefcik, was a patrol officer at the Calumet

Park police department in February 2005. On February 9, 2005, at 9:18 p.m., he

was assigned to do a wellness check on Walter Pinianski at his residence. While

Shefcik had been to Walter’s residence to check on his well-being several times

before, he had not been there that week.

¶ 17 Shefcik testified that Walter’s house is a small brick ranch home on a pie-

shaped double lot with a large yard which wraps around the house. There is no

garage. To the north is an alley which also borders the Metra train tracks. To the

1 Chapan did not testify that she was a custodian of these records. However, no objection was made at trial to Chapan testifying about the records created by her partner.

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east is Paulina Street. To the west, behind the house, is an alley, and then Page

Street. Thus, the only neighbor is located to the south of Walter’s house.

¶ 18 Shefcik further testified that, when he arrived at Walter’s residence, it was

snowing outside and the house was completely dark which was unusual. Shefcik

knocked on the front door, but received no response. He walked around the house

and noticed that, on the north side of the house, the basement window had been

broken. There were no footprints in the snow leading to the broken window and

there was no broken glass in the yard. Shefcik returned to the front door and

turned the doorknob, which was unlocked. When he had been to Walter’s house

on previous occasions, the door had always been locked, and Walter had opened

the door for him.

¶ 19 Prior to entering the house, Shefcik called for backup. He did not enter the

house until Sergeant Jones arrived, and they both entered together. Just inside the

front door was a large living room with couches and a television set. Shefcik

observed that the cushions from the couch were on the floor. After one walked

through the living room, there was a small hallway with a bedroom to the

immediate left and another bedroom to the immediate right. The kitchen was

located in the back of the house. When Shefcik looked in the kitchen, he observed

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the victim, Walter Pinianski, lying on the kitchen floor. As Shefcik and Jones

performed a protective sweep for possible offenders, Shefick observed envelopes

and papers strewn about Walter’s bedroom.

¶ 20 Illinois State Trooper James Gainer testified that he was the crime scene

investigator assigned to this case and that he arrived at 12500 South Paulina at

10:28 p.m. on February 9, 2005. He entered the residence through the front door

and went into the living room area. The area looked ransacked, with couch

cushions on the floor and papers strewn about. Gainer walked through the living

room and the hallway, and entered the kitchen, where he observed the victim,

Walter Pinianski, lying on the floor in a pool of dried blood. Gainer then went

downstairs to the basement and observed that the window on the north side of the

basement had been broken. There were glass fragments on the floor below the

window and in the laundry tub below the window.

¶ 21 Gainer photographed the scene and processed the scene for fingerprints.

Specifically, he developed latent prints from a PVC pipe located directly below the

broken window and from a washing machine also in the basement. The prints on

the PVC pipe and on the washing machine both showed a pattern of small black

dots. While he was in the living room, he noticed and collected a pair of white

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gloves that contained black rubber dots in a pattern resembling the patterns in the

prints obtained from the PVC pipe and the washing machine.

¶ 22 The next morning, on February 10, 2005, Gainer went to the Cook County

medical examiner’s office to attend Walter’s autopsy. He photographed and

documented the autopsy, and obtained Walter’s fingerprints and created a blood

card for him. A blood card contains a sample of the victim’s blood. It is a small

three-by-five index card, on which is placed five droplets of the victim’s blood for

future testing. Gainer was able to collect a set of fingerprints only from Walter’s

right hand, as Walter’s left hand was too decayed. Gainer returned to the scene on

February 10, 2005, to photograph a telephone box on the west side of Walter’s

residence, and observed that the wires to the box had been cut.

¶ 23 Gainer further testified that, on March 25, 2008, he went to 12415 South

Honore Street in Calumet Park with several police officers from the Illinois State

Police and the South Suburban Major Crimes Task Force. They met defendant

there who agreed to return to the police department with them. At the police

department, Gainer collected a buccal swab from the inside of both of defendant’s

cheeks.

¶ 24 The medical examiner who performed the autopsy did not testify, but a

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certified “Report of Postmortem Examination,” a self-authenticating document,

was admitted into evidence pursuant to section 115-5.1 of the Code of Criminal

Procedure (725 ILCS 5/115-5.1(West 2010)). According to the report, Walter died

from multiple stab wounds. Walter’s death certificate was also admitted into

evidence, but only for the limited purpose of establishing the date of his death, the

identity of the decedent, and his age at the date of his death.

¶ 25 James Worthem, an inmate at IDOC, testified about several conversations

he had with defendant while Worthem was in custody at Cook County Jail. On

April 18, 2008, defendant, whom Worthem knew as “Little C,” approached him

and asked if he knew anything about burglaries and DNA. During their

conversation, defendant mentioned some houses in Calumet Park which all looked

the same and that he often asked people in these houses if they needed help

because the houses often flood.

¶ 26 On the following day, April 19, 2008, defendant approached Worthem

again, when Worthem was in his cell with his cellmate. This time the conversation

concerned DNA. Worthem told defendant what he knew about DNA, including

that “if you are locked up, they do a cotton swab in your mouth and if you did do

that while you were incarcerated, that you are registered on the data as a certain

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DNA.”2 Defendant told Worthem that he had burglarized a house two blocks away

from his mother’s house, and that he may have left inside the house a pair of white

canvas gloves which he had received from his father.

¶ 27 On the next day, April 20, 2008, defendant approached Worthem a third

time. Their conversation was about the glove and the burglary. According to

Worthem, defendant stated that he used the glove to break the basement window,

that the glove had blood on it, and that he had left it inside the house. Defendant

told Worthem that the glove was made of white canvas with a bunch of little black

rubber grips on the outside. The house was down the street from the Chicago

borderline of “Cal Park.” Defendant also told Worthem how he and his partner,

Pierre, entered the house. They knocked on the door and nobody answered, so they

went down to the basement windows. Defendant punched a hole through the glass,

and then they crawled through the broken window into the basement. They went

upstairs and heard someone say, “Is anybody there?” Defendant then noticed an

old man coming towards them and waving his arms. Defendant did not know if the

man was coming to attack him, so he took out his knife and began stabbing him.

2 However, as stated above, State Trooper Gainer testified that defendant agreed to go with the officers to the police station so that they could obtain a buccal swab from him.

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Defendant said that “it [felt] like a pin stabbing a cushion.”3 Defendant stabbed the

man for a few seconds, and the victim was screaming. Defendant kept stabbing

until the victim lay quiet on the floor. After the stabbing, defendant and his partner

ransacked the house. Defendant discovered some military pennants in a closet, and

kept them as souvenirs. He also took cash, but he did not tell Worthem how much.

Worthem asked defendant for his full name, and defendant stated that his full

name was Crandall Williams.

¶ 28 Worthem testified that he was not promised anything in exchange for his

testimony and that he came forward voluntarily and made all the contacts with the

State because he has a lot of family members in the military, including a cherished

grandfather, and he felt sorry for the victim and felt it was “the right thing to do.”

Worthem was aware that the State can do favors for witnesses because he had

previously cooperated with federal law enforcement officers in drug stings in 2005

and 2006. At the time of his trial testimony, Worthem had a pending

postconviction petition and a 2-1401 petition, but he told the State’s Attorney’s

office that he did not want their help. Worthem admitted that he had previously

3 Later, on cross-examination, Worthem testified that defendant said that on May 6, 2008.

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been convicted for robbery and armed robbery and that he “practiced law” pro se

and had used aliases in the past.

¶ 29 Worthem testified on cross-examination that he made a statement on a

videotape on May 6, 2008, about this incident. The statement was taken at IDOC

in the presence of Assistant State’s Attorney (ASA) D’Angelo4 and police

investigators. At that time, Worthem did not volunteer that his cellmate was also

present during his conversations with defendant. In addition, Worthem may have

mentioned on the videotape that defendant told him that he hurt his hand when he

broke the window, and that he was bleeding inside the glove.5 Further, Worthem

testified that defendant had told him on May 6, 2008, instead of April 20, 2008,

that stabbing the old man felt like a pin stabbing a cushion.

¶ 30 Katherine Sullivan testified that she was a forensic biologist with the

Illinois State Police (ISP) at the Joliet Forensic Science Laboratory, and the parties

stipulated that she was an expert in the field of forensic DNA. She testified both

about the basics of DNA science as well as what she did in this particular case.

4 Worthem did not provide a first name for the ASA. 5 Worthem's testimony was later contradicted by the testimony of Katherine Sullivan, one of the State's experts, who testified that the blood appeared to be only from the victim. Although the defense flagged this contradiction in its brief to this court, the State did not try to explain it away.

13 No. 1-11-1116

She explained that everyone except identical siblings has different DNA, and that

polymerase chain reaction (PCR) is a process to make copies of DNA. Further, she

explained the procedures that she uses in her DNA analysis. First, the DNA has to

be extracted from the material that it is in, and placed in a liquid solution. Then the

amount of DNA needs to be quantified, and the PCR process is used to tag the

areas of DNA to be profiled. She uses an instrument to detect those tags, and she

uses some software to develop the DNA type from the sample and to make a

comparison to the standard that is submitted for the case.

¶ 31 After describing the DNA process in general, Sullivan then testified about

the DNA analysis she did for this case. She received the gloves from the crime

scene in a brown paper bag, and collected hair and fiber from the outside of the

gloves and swabbed the inside. These swabs were dried and placed in a separate

envelope that she labeled Exhibit 1-A. She also prepared a portion of the blood

standard for the victim. She removed five circles with dark red stains from the

victim’s blood card, and placed them in a separate envelope that she labeled

Exhibit 10-A. The swabs and blood standard were ultimately sent to Bode

Technology Group (Bode) for analysis.

¶ 32 On March 26, 2008, Sullivan received defendant’s buccal swab. She then

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performed a DNA analysis on the swab and developed a DNA profile from it for

defendant, which she then sent to Orchid Cellmark Laboratories (Cellmark) along

with (1) Bode’s original data from the swabs of the gloves, (2) a profile that Bode

had developed from the swabs of the gloves, and (3) Walter’s original blood

standard.

¶ 33 Sullivan also did an analysis of the gloves for the presence of bloodstains,

and they tested positive for the presence of blood. She then removed a portion of

that stain so a DNA analysis could be performed on it. She developed a profile

from the bloodstain, and compared it to the DNA profile for Walter that Bode had

developed from Walter’s original blood standard. Sullivan interpreted the data and

concluded with a reasonable degree of scientific certainty that the DNA profile

which she had recovered from the bloodstain matched Walter’s DNA profile. The

DNA profile from the bloodstain on the glove would be expected to occur in

approximately 1 in 610 quadrillion blacks, 1 in 15 quadrillion Hispanics or 1 in

5.9 quadrillion white unrelated individuals. The bloodstain appeared to have

originated from the outside of the glove, because it was visible from both sides but

covered more area on the outside of the fabric than on the inside.

¶ 34 On cross-examination, Sullivan testified that, prior to 2006, she had

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received additional standards from Quinten Campbell, Edward Bell, and Calvin

Truitt, which she submitted to Cellmark for comparison. Further, the result from

the bloodstain on the glove appeared to be from a single contributor, since there

was no evidence of a mixture of multiple contributors.6 Where there is a mixture,

the order of the contributors cannot be determined.

¶ 35 The parties stipulated that, if called to testify, Abby Mulkenez would be

accepted as an expert in forensic DNA analysis. She would testify that from May

24, 2005, through August 11, 2005, she was a DNA analyst for Bode Technology

Group, Inc., and that Bode was a subcontractor for the Illinois State Police

Forensic Sciences Command performing forensic DNA analysis. On May 24,

2005, Bode received Exhibits 1-A and 10-A from the Illinois State Crime Lab in

Joliet. These exhibits were processed for DNA typing and for analysis of the 13

CODIS Short Tandem Repeat Loci. Exhibit 1-A contained a mixture of multiple

donors, while Exhibit 10-A produced a complete profile of Walter Pinianski, the

victim. Walter was not one of the contributors to the profile obtained from Exhibit

6 As we previously observed, Sullivan's testimony that the blood found on the glove came from a single contributor, that the blood was from the victim and that the blood originated from the outside of the glove contradicted Worthem's videotaped statement that defendant told him that defendant hurt his hand when he broke the window, and that he was bleeding inside the glove.

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1-A. Although this was not stated in the stipulation, we observe that Exhibit 1-A

contained the swabs from the inside of the glove prepared by Sullivan and that

Exhibit 10-A was the victim's blood standard also prepared by Sullivan.

¶ 36 The State’s next witness was Dr. Rick Staub, whom the parties stipulated

was an expert in the field of forensic DNA analysis. Dr. Staub testified that he was

employed as the Laboratory Director of Scientific Operations at Orchid Cellmark

Laboratory in Dallas, Texas (Cellmark), which did contract work for the Illinois

State Police. The Illinois State Police asked Cellmark to compare: (1) Bode’s data

concerning an unknown DNA sample and (2) a known DNA profile developed by

the Illinois State Police for defendant. Thus, when reviewing Bode's data to

determine whether it revealed a major profile and, if so, what the major profile

was, Dr. Staub already had in front of him defendant's profile. When asked

whether it was common among experts in the field of DNA analysis to refer to and

rely on other experts’ data, he replied that it was "not uncommon."

¶ 37 Dr. Staub did not perform any tests on the items, and only interpreted the

data generated by Bode and the Illinois State Police. According to Dr. Staub, the

unknown sample from Bode contained a mixture of multiple individuals, but he

believed he was able to identify a major contributor. As part of his review, he

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looked at an electropherogram which he explained is a chart with peaks and lows

that looks comparable to an ekg. This chart is generated by "a laser detection

instrument that runs the sample through a very thin glass capillary. When it comes

out at the end, a laser light hits the sample through the window and the DNA

molecules have flourescent tags on that that then will light up." Dr. Staub

explained that "every time we see a peak [on the chart] that's where a DNA

fragment has come through the instrument."

¶ 38 Dr. Staub testified that he was aware that the unknown sample came from

swabs from a pair of gloves, and that the known profile came from defendant’s

buccal swab. The known profile was very clear because it was a “single source

profile.” Dr. Staub opined that the standard from defendant matched the major

profile from the gloves with a reasonable degree of scientific certainty. In his

opinion, the statistical probability of a match between the major profile and a

random individual was only 1 in 196.6 quadrillion.

¶ 39 On cross-examination, Dr. Staub explained that the test he performed was

called short tandem repeats (STR), which refers to areas of DNA in which there

are small molecule combinations that repeat a certain number of times. The

numbers on an electropherogram represent the number of repeats, and the number

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of repeats differs from person to person. At each location, a person inherits one

number from his mother, and one number from his father. Sometimes, the

electropherogram shows just one number at a certain location, which indicates the

person inherited the same allele from both parents at that locus. When a sample

shows more than two numbers at one of the locations on the electropherogram, it

indicates a mixture of DNA. However, when the peaks on the electropherogram

have a certain mathematical proportion to each other, it is possible to say that they

go together. Sometimes, it is possible to determine a major profile from a minor

profile, as evidenced by the peak heights on the electropherogram. Dr. Staub

agreed with Bode’s conclusion that there were at least three contributors to the

unknown sample from the glove.

¶ 40 Dr. Staub acknowledged that the profile determined by the Illinois State

Police did not agree with his profile at one locus.

¶ 41 Dr. Staub was shown Defendant's Exhibit 1 which he identified as the

electropherogram showing Bode's results from the "profiler plus" test on the swabs

from the gloves; and Defendant's Exhibit 2 which he identified as the

electropherogram showing Bode's results from the "cofiler" test. The "profiler

plus" test reveals nine loci, plus gender; while the cofiler test reveals six loci.

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Two of the loci from the cofiler test overlap with two of the loci from the profiler

test, yielding a total of 13 loci. Each locus has a different name. For example, the

first locus, which appears on the top left of Defendant's Exhibit 1, is called D-3,

and Dr. Staub circled it and labeled it. He also circled and labeled the locus called

D-13. For D-3, Dr. Staub testified that two peaks were very high, as compared to

three much smaller peaks. Turning to D-13, Dr. Staub testified that the chart

showed three peaks, which were labeled 11, 12 and 13. Dr. Staub concluded that

the peaks labeled 11 and 13 were the major contributor. Dr. Staub further testified

that, although the peak labeled 12 was smaller, it was not nearly as small as the

small peaks in D-3.

¶ 42 Dr. Staub explained that, since the 12 was between the 11 and the 13, the 12

peak could be accounted for by a "phenomenon called stutter." Dr. Staub

concluded that "often times when you have a peak between two other peaks, it is

even emphasized even more." However, Dr. Staub testified that the same

phenomenon could also account for the height of the 11th peak, which he had

concluded was part of the major profile.

¶ 43 Dr. Staub concluded that his "feeling was that the most likely major profile

[at D-13] was an 11, 13." He testified that he did not perform any mathematical

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calculations with regard to the peak heights. He testified that "just by looking at

it, and rationalizing it, I determined that." Dr. Staub admitted that "[g]enerally,

there is a mathematical relationship."

¶ 44 Dr. Staub also testified that he had not reviewed any of the lab validation

from Bode for the purpose of this case analysis; that there will be variances from

instrument to instrument; and that there will be certain peak height differences

from instrument to instrument within one lab and from lab to lab.

¶ 45 Dr. Staub was then shown Defense Exhibit 2, which was the chart showing

the results from the cofiler test, and he circled and labeled D-3 on the top left of

the chart. D-3 was one of the loci that appeared on both charts. Dr. Staub then

circled and labeled T-POX which was located at the center of Defense Exhibit 2.

¶ 46 Dr. Staub acknowledged that, at T-POX, Bode concluded that only the peak

labeled 9 belonged to the major contributor. Dr. Staub disagreed with Bode's

conclusion, and concluded that both the peaks labeled 9 and 11 belonged to the

major contributor. When asked whether he had mathematically calculated the

ratios between the peak heights, he stated that he "may have done it like in

passing," but he testified that he did not "have those documented." Dr. Staub

relied on Bode’s electropherogram, but not on its interpretation.

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¶ 47 Dr. Staub testified that he was familiar with the concept of coincidental

matches and he was familiar with the study that determined that loci in DNA

profiles of different individuals will coincide at 9, 10 and even 11 loci. Also he

could not determine, with respect to major and minor contributors, when a

particular contribution was added to a sample. Thus, he could not determine

whether the major contributor was the first or last contributor.

¶ 48 On redirect examination, Dr. Staub testified that he was asked to compare

the unknown sample from the swabs of the gloves to the known profile developed

by the Illinois State Police from defendant’s buccal swab. His interpretation of

locus D-13 was that the 11 and 13 constituted the major profile. When he

reviewed defendant’s DNA profile at locus D-13, the alleles were also 11and 13.

In addition, it was his opinion that the profile developed from defendant’s buccal

swab coincided with what he found to be the major profile at 13 loci. Thus, he

believed defendant’s DNA profile to be a match.

¶ 49 On recross, Dr. Staub testified that, when he was determining the major

profile from the unknown sample, he had the results for defendant's DNA profile.

¶ 50 The State rested, and the defense moved for a directed finding, which was

denied.

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¶ 51 B. The Defense’s Evidence

¶ 52 The defense then called Dr. Karl Reich, the chief scientific officer of

Independent Forensics Laboratory in Hillside, Illinois, whom the parties stipulated

was an expert in DNA testing. Dr. Reich testified that he was asked to review the

DNA mixture obtained from the swabs of the gloves in this case. He explained that

mixture interpretation is "quite complicated" for several reasons. First, the

reagents used to develop a DNA profile were originally developed for the analysis

of a single source, so "the original intent" for this type of analysis was only to

analyze DNA material from a single source. Second, the number of contributors

adds to the complexity. Third, the amounts of DNA material contributed to the

mixture by the different individuals can vary. Fourth, the different contributors

may share common alleles at a particular locus, which can cause the peaks on the

electropherogram for that locus to be higher.

¶ 53 In this case, Dr. Reich reviewed reports from Bode, the Illinois State Police

and Cellmark, which each provided different interpretations of the same

electropherogram. Although they were looking at the same electropherogram, each

lab made its own determinations concerning the major and minor contributors.

¶ 54 Dr. Reich testified that, with respect to the D-13 locus, Bode concluded that

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the 11 peak and the 13 peak on the chart were both from the major contributor, and

the 12 peak was from a minor contributor. By contrast, with respect to the same

D-13 locus, the Illinois State Police concluded that it was not possible to resolve

whether the 11, 12 and 13 peaks belonged to a major or minor contributor. When

it is not possible to resolve a mixture, such as this one, with three alleles at one

locus, there are at least six possible options for a major contributor at that locus:

(1) 11, 12; (2) 11, 13; (3) 11, 11; (4)12, 13; (5)12, 12; and (6)13,13.

¶ 55 With respect to the T-POX locus, Dr. Reich testified that Bode concluded that

only the 9 peak was from the major contributor and that the 8, 10 and 11 peaks

were from minor contributors. By contrast, with respect to the same T-POX locus,

the Illinois State Police concluded that both the 9 and 11 peaks were from the

major contributor. Dr. Staub agreed with Bode with respect to the D-13 locus but

disagreed with them with respect to the T-POX locus; and he agreed with the

Illinois State Police with respect to the T-POX locus but disagreed with them with

respect to the D-13 locus. Dr. Staub's agreements and disagreements aligned with

defendant's profile.

¶ 56 Dr. Reich testified that he was familiar with the concept of coincidental

matches, which referred to “the demonstrated ability" of non-related individuals to

24 No. 1-11-1116

have DNA profiles that coincide at 9, 10 or 11 loci. This concept affects how the

results shown on the electropherogram can be interpreted in this case. Dr. Reich

explained:

“Because there are two loci, *** T-POX and D-13, that have at

least two possible interpretations maybe three,*** that the final

decision as to what the major profile might be, has some

ambiguity and that ambiguity coupled with the understanding

that non-related individuals can match at high numbers of

alleles*** introduces much more doubt into *** one of the

final conclusions that has been reached.

***

Any alteration from the profile of an individual will

exclude that profile as identifying that person. So, a full profile

of 13 loci under current scientific conclusions is sufficient to

identify one person from all others. That profile has a number

of results. An alteration of even one of those results, excludes

that individual from being that contributor. Even one allele out

of the whole thirteen.”

25 No. 1-11-1116

When asked whether, in light of the possible alternate profiles put forth by Bode

and Illinois State Police, the case presented profiles that would not match

defendant, Dr. Reich replied: "Absolutely."

¶ 57 Dr. Reich further testified that it is impossible to determine the order of

contributors to a mixture, even when the major and minor contributors can be

determined. He explained:

“The major and minor contributor refer exclusively to the

rough approximation of how much nucleic acid of each

the contributors might have added into the sample. They

do not speak to the timing or the order of any of the body

fluids or skin cells that were added to the evidentiary

item.”

¶ 58 On cross-examination, the State asked Dr. Reich, locus by locus, whether

the alleles listed in defendant's profile appeared anywhere on the

electropherogram, without regard to whether they were from the major or minor

contributors. For each question, the State asked simply "do you see" the alleles on

the chart. The State did not ask him to interpret or explain what he could "see."

The defense objected to this line of questioning as "misleading" and "improper"

26 No. 1-11-1116

and was overruled both times. When Dr. Reich tried to answer in scientific terms,

the prosecutor told him to answer just yes or no, and the defense objected but it

was overruled. Later, the prosecutor stated: "I am going to strike that [answer],

because there is no question pending. Doctor, when I ask you a question answer it.

Don't volunteer any information." However, the trial court overruled the

prosecutor's statement and let that particular answer stand, which was that the 11

peak at the T-POX locus from the unknown sample was from the minor

contributor, while defendant's profile was both 9 and 11 at the T-POX location.

¶ 59 On redirect, Dr. Reich testified that the State had not asked him about which

alleles belonged to the minor contributors and that, if one changed one's

interpretation of what constituted the major profile, it could include or exclude

other profiles. On recross, Dr. Reich testified that defendant could not be

excluded.

¶ 60 The defense moved to admit into evidence defendant's exhibits 1 and 2,

which were the electropherograms for the swabs of the gloves, and they were

admitted. Defendant was admonished by the trial court concerning his right to

testify, and the defense rested.

27 No. 1-11-1116

¶ 61 C. State’s Rebuttal Evidence

¶ 62 The State called Dr. Staub in rebuttal who testified that he had made some

mathematical calculations while Dr. Reich was testifying. He testified that, if you

added up "the peak heights at each locus, [for] what I'm calling the major

contributor," then the major contributor accounts for "anywhere from 75 to 85

percent of the total DNA." With respect to the D-13 locus, if the alleles for the

major contributor were 11, 11, then the major contributor would be contributing

only 39% at that locus, and if the alleles were 11,12, then he would be

contributing only 62%. However, Dr. Staub failed to provide the percentage for

an 11, 13, which is what he believed were the alleles from the major contributor at

that locus, so the record is silent on whether this percentage fell within the 75 to

85 percent range that he had delineated.

¶ 63 Dr. Staub testified that, with respect to the T-POX locus, that a 9, 9 or a 11,

11 "would not make sense" because they would "come[] out to maybe 58% or 28%

of the total." By contrast, "if he is 9, 11, which I called, he is 86%." However,

Bode determined that the minor contributors included not only an 11, but also an 8

and a 10, and Dr. Staub provided no percentages for a 9, 8, or a 9, 10. Thus, the

record is silent as to whether the percentages for a 9, 8, or a 9, 10 would have also

28 No. 1-11-1116

fallen into the percentage range that Dr. Staub delineated. A profile with these

combinations would have excluded defendant.

¶ 64 II. Trial Court’s Findings

¶ 65 At the conclusion of the bench trial, the trial court made the following

findings. A horrendous crime had been committed against an 82-year-old man in

his home when someone broke in and stabbed him to death. The victim was in the

habit of keeping money in his house and had been to the bank shortly before the

crime. The perpetrator had entered the victim’s residence through a basement

window, and then had come up the stairs, where he encountered the victim and

stabbed him and left him on the kitchen floor. The victim’s entire residence was

ransacked and the phone lines had been cut. Much of the evidence in this case

“revolves around a pair of gloves” recovered from the crime scene. The gloves had

patterns on them that matched the prints found on the PVC pipe and the washing

machine underneath the broken basement window. The gloves had the victim’s

blood on the outer surface, which indicated that “the person wearing those gloves

was involved in the bloodying of the victim which lead to his death.” Expert

witnesses from both sides agreed that DNA material from at least three people was

found on the inside of the gloves. The trial court then stated:

29 No. 1-11-1116

“[Dr.] Staub testified on behalf of the State that the

major contributor of the DNA, above all other

individuals who at some point may have wore

these gloves, was a standard which matched the

defendant, unquestionably.

The defendant refuted him through Dr.

Reich. However, regardless of all, Dr. Reich did,

through laborious cross examination, have to

indicate that certainly it was still the defendant,

who through every standard taken, was one of the

individuals whose DNA was on those gloves,

though he disputes whether or not he was a major

contributor.

***

There is no question by the Court that he

was a contributor of DNA to those gloves.

[Dr.] Staub did testify that he was a major

contributor, by the evidence that I have.

30 No. 1-11-1116

Furthermore, in this case, it certainly does support

Dr. Staub’s finding, that evidence which the Court

looks at is the testimony of the State’s jailhouse

witness.”

¶ 66 The trial court then found that the testimony of Worthem “must be viewed

with extreme caution.” Worthem was a convicted felon, and serving time in IDOC.

He was aware that if he cooperated, he could receive a deal from the State.

Therefore, he “probably would do anything to have that happen.” However,

Worthem’s testimony provided information that coincided with the evidence

presented and explained other questionable facts in this case:

"[Worthem] testified that the defendant

admitted during the course of their conversation

that he entered Mr. Pinianski’s house through

breaking in a window, as the evidence technician’s

evidence indicates.

He indicates that the defendant talked

about leaving a glove, or gloves, there, which we

do have gloves which ultimately the DNA

31 No. 1-11-1116

establishes the defendant had been wearing.

During these conversations defendant also

admitted [to] taking property from the victim after

[he] stabbed him numerous times, as he indicated

like stabbing a cushion with a knife that the

defendant had.”

¶ 67 The trial court concluded that the facts presented by Worthem’s testimony

were “so similar to other evidence here, they become more than just coincidences

and they come to a point where the Court has to look at them as they are

corroborating other evidence and find, in fact, that certainly there is only one

person who this information could have come from, and that is the defendant.”

¶ 68 Based on these findings, the trial court found defendant guilty on March 14,

2011, of first degree murder, home invasion, and armed robbery. On April 11,

2011, defendant moved for a new trial, which was denied. After hearing factors of

aggravation and mitigation, the trial court sentenced defendant to 80 years for first

degree murder, 20 years for home invasion, and 20 years for armed robbery, with

all sentences running consecutively. Defendant then filed a motion to reconsider

the sentence, which was also denied. This appeal followed.

32 No. 1-11-1116

¶ 69 ANALYSIS

¶ 70 On this direct appeal, defendant claims that he was denied due process of

law when the trial court based its finding of guilt at his bench trial on a mistake in

recalling the testimony of defendant's sole witness. In support, defendant relies

primarily on two cases: People v. Mitchell,

(1992); and People v.

Bowie,

(1976). The State does not discuss or cite these cases

in its brief to this court, nor does the State make any attempt to distinguish the

facts of these cases from the facts in the case at bar.

¶ 71 Instead, the State treats defendant's claim as a claim of insufficient

evidence, and also argues that defendant has waived this issue by failing to object

at trial and in a posttrial motion. First, as we discuss in more detail below, a claim

of insufficient evidence is different from a claim that a trial court affirmatively

made a mistake in its decision-making process. Second, a claim of insufficient

evidence is not waived even if defendant does not raise it in the court below.

People v. Enoch,

(1988) (holding that the doctrine of waiver

does not apply when a defendant challenges the sufficiency of the evidence).

¶ 72 The State also argues that the trial court's recollection was not faulty,

because the defense expert's statement that defendant could not be excluded is the

33 No. 1-11-1116

same as concluding that "certainly it was" defendant. However, there is an

exponential difference between a conclusion that someone could not be excluded

based on a consideration of some loci, and a certain identification based on a full

13-loci match. People v. Wright,

.

¶ 73 For the following reasons, we reverse and remand for a new trial.

¶ 74 I. Standard of Review

¶ 75 Our supreme court has held that the failure of the trial court to recall and

consider evidence that is crucial to a criminal defendant's defense is a denial of the

defendant's due process. People v. Mitchell,

(1992); see also

People v. Simon,

; People v. Carodine,

(2007); People v. Morgan,

(1976)

(conviction reversed where the trial court failed to recall defendant's witnesses);

People v. Bowie,

(1976) (conviction reversed where the

trial court failed to recall crucial evidence of the defense). A trial judge sitting as

a trier of fact must consider all the matters in the record before deciding the case.

People v. Bowen,

(1992); Bowie,

.

Where the record affirmatively shows that the trial court failed to recall crucial

defense evidence when entering judgment, the defendant did not receive a fair

34 No. 1-11-1116

trial. Simon,

; Bowen,

;

Bowie,

. Whether a defendant's due process rights have been

denied is an issue of law and, thus, our review is de novo. People v. K.S.,

(2008). Under the de novo standard of review, this court owes

no deference to the trial court. Townsend v. Sears, Roebuck & Co.,

(2007).

¶ 76 While a question of law is decided de novo, a trial court's credibility

determinations are entitled to great deference, and they will rarely be disturbed on

appeal. People v. Siguerza-Brito,

(2009); Bowie,

. In a bench trial, it is the job of the trial judge, sitting as the factfinder, to

make determinations about witness credibility. Siguerza-Brito,

;

Bowie,

.

¶ 77 In the case at bar, the trial court made a credibility determination about the

jailhouse informant, finding that his testimony "must be viewed with extreme

caution" and that the court would use it merely as "corroborating [the] other

evidence." The trial court's conclusion that Worthem's testimony must be viewed

with suspicion is well supported by the record. Worthem was a self-described

jailhouse lawyer who had struck deals before in return for information, and parts of

35 No. 1-11-1116

his testimony contradicted the record. For example, in his videotaped statement,

Worthem mentioned that defendant told him that defendant hurt his hand when he

broke the window, and that he was bleeding inside the glove. However, one of the

State's experts testified that the blood originated from the outside of the glove and

that this blood belonged only to the victim. Thus, the trial court described the

informant's testimony only as evidence that "support[s] Dr. Staub’s finding." As

the trial court itself observed, the only other evidence was the DNA evidence.

¶ 78 As for the DNA evidence, the trial court could have made a credibility

determination between the dueling DNA experts, finding one more credible than

the other. However, it did not do so. In fact, the trial court found: "The defense

refuted [Dr. Staub] through Dr. Reich." Instead, the trial court mistakenly recalled

the defense expert as agreeing with the State expert on the ultimate issue: that

"certainly it was" defendant. Due to the trial court's mistaken recollection, there

was hardly any credibility determination for it to resolve between the two testifying

experts. C.f. Mitchell,

(rejecting the State's argument that the trial

court did not find a witness credible where the trial court never said that).

¶ 79 In sum, with respect to the standard of review, we will review de novo the

legal question of whether defendant's due process rights were denied, while

36 No. 1-11-1116

deferring to the trial court's credibility determination that the jailhouse informant's

testimony was merely corroborative.

¶ 80 II. Mistaken Recall of the Evidence

¶ 81 As noted above, in the case at bar, defendant relies primarily on People v.

Mitchell,

(1992), and People v. Bowie,

(1976). In Mitchell, our supreme court stated: "We find the trial court's failure to

recall defendant's testimony [is] a violation of defendant's due process rights and

error." Mitchell,

. In Bowie, this court held that the defendant did

not receive a fair trial because the trial judge did not remember or consider the crux

of the defense when entering judgment. Bowie,

. See also

People v. White,

(1989) ("the trial judge erred in

considering facts not in evidence," and "[g]iven that fact and the overall weight of

the evidence, we cannot find that the error was harmless and must therefore reverse

the trial court's decision").

¶ 82 The error in Mitchell occurred at a pretrial suppression hearing rather than at

trial. The issue was whether the defendant was free to leave an interrogation at the

police station. The defendant testified that, prior to the interrogation, when he and

the officers were standing outside his home, he told the officers that he wanted to

37 No. 1-11-1116

go back inside to dress in warmer clothes. The defendant testified that the officers

refused to let him go and "drag[ged]" him into the police vehicle and that, after

arriving at the police station, one of the officers told him: "We [are] not going to let

you go until we get what we want out of you." Mitchell,

. At the

end of the suppression hearing, the trial court denied the defendant's motion to

suppress his confession, stating: "There was no testimony that I recall that said the

defendant at any time said he felt he could not leave, or that he was asked – or that

he asked whether he could leave and denied that permission." (Brackets in

original.) Mitchell,

.

¶ 83 In Mitchell, the State argued, first, "that the trial court did not base its findings

solely on the absence of such testimony." Mitchell,

. Our

supreme court rejected this argument, stating: "the trial court clearly did not base

its decision on all of the circumstances, as it failed to recall the testimony most

crucial to defendant's argument." Mitchell,

.

¶ 84 The State argued, second, that the trial court simply did not find the defendant

credible. Mitchell,

.7 Rejecting this second argument, the

The supreme court in Mitchell also rejected defendant's waiver argument, 7

which we discuss below in section IV of this opinion. Mitchell,

- 26.

38 No. 1-11-1116

supreme court stated that the trial court never "state[d] that defendant was not a

credible witness." Mitchell,

. The supreme court observed: "The

State's argument rests upon the fact that the [trial] court found against defendant.

However, while the court found against defendant, it also failed to recall the crux

of defendant's testimony in doing so." Mitchell,

.8

¶ 85 Similar to Mitchell, the trial court in the case at bar recalled the opposite of

what was stated. The trial court recalled the defense expert as saying that

"certainly it was" defendant, when the defense expert emphasized repeatedly and

throughout his testimony that certainty was not possible. As in Mitchell, the State

argues here that the trial court did not base its verdict solely on this error. Like our

supreme court, we reject this argument, since "the trial court clearly did not base its

decision on all of the circumstances, as it failed to recall the testimony most crucial

to defendant's argument." Mitchell,

. As in Mitchell, the State

argues here that the trial court simply found the witness less credible. Like our

supreme court, we reject this argument, since the trial court never stated that the

The Mitchell court held that, even if one reversed the outcome of the 8

proceeding in which the error occurred and suppressed the confession at trial, the other evidence at trial was "so overwhelming" as to make the due process violation harmless. Mitchell,

. We discuss harmless error in the next section of this opinion.

39 No. 1-11-1116

defense witness "was not a credible witness" or that the State expert was more

credible. Mitchell,

. In fact, the trial court's reliance on what it

perceived to be the defense expert's testimony showed that the trial court did, in

fact, find him to be a credible witness.

¶ 86 Like our supreme court did in Mitchell and for the same reasons, we find that

the trial court's failure to recall crucial testimony from the only defense witness was

a due process violation.

¶ 87 Our conclusion is bolstered by our consideration of Bowie, in which this court

held that the defendant did not receive a fair trial because the trial judge did not

recall the crux of the defense case when entering judgment. Bowie,

.

¶ 88 Bowie involved a bench trial in which the defendant was accused of hitting a

police officer. Bowie,

. The main issue was who hit

whom first. Bowie,

. On that issue, the defendant testified:

" '[the police officer] had a tight grip on my arm and I told him that it wasn't

necessary, that I wasn't going anywhere and he said, I don't tell him what to do, and

he hit me up beside my head and I grabbed my head and blood started rushing

down and he hit me again.' " (Emphasis in original.) Bowie,

.

40 No. 1-11-1116

During closing argument, defense counsel stated that the defendant testified he was

bleeding, and the trial court interjected: " 'I didn't hear that. I heard nothing about

that the defendant stating anything about that he was bleeding, strike that out.' "

(Emphasis in original.) Bowie,

. This court held that the trial

court's statement constituted affirmative evidence that it "did not remember or

consider the crux of the defense when entering judgment." Bowie,

. As a result, we reversed and remanded for a new trial. Bowie,

.

¶ 89 The facts of our case present an even stronger case for reversal than the facts

of Bowie. In Bowie, the mistakenly recalled evidence concerned whether the

defendant was bleeding, which was not the main issue in the case. As stated above,

the main issue in Bowie was who hit whom first. Whether the defendant hit the

officer first, or the officer hit the defendant first, the Bowie defendant could still

have ended up bleeding. Thus, whether the defendant bled was neither the main

issue in the Bowie case nor a fact that would prove the main issue. However, the

appellate court still found that the trial court's statement constituted affirmative

evidence that it failed to consider "the crux" of the defendant's case, where the

defendant's testimony about bleeding was part of the same sentence that the officer

41 No. 1-11-1116

hit him first. Bowie,

. Also, the appellate court found the trial

court's statement to be affirmative evidence that the court failed to consider

evidence "when entering judgment," even though the statement occurred during

closing argument and not during the trial court's statement of its findings and

reasons for its judgment. Bowie,

.

¶ 90 The facts of our case present an even stronger case for reversal than the facts

of Bowie because, first, the mistakenly recalled fact concerned the primary issue in

the case: was it "certainly" defendant who committed the crime? Second, the

mistakenly recalled fact occurred during the trial court's ruling so we know that it

was actually a part of its decision-making process.

¶ 91 Thus, pursuant to Mitchell and Bowie, we find that a due process violation

occurred, and we proceed in the next section to determine whether this error was

harmless.

¶ 92 III. Harmless Error

¶ 93 After finding a due process violation, an appellate court must still consider

whether the violation was harmless. Mitchell,

. Even due process

violations are subject to a harmless error review. Mitchell,

.

However, we may affirm only if, after considering all the other evidence, we can

42 No. 1-11-1116

find that the error was harmless beyond a reasonable doubt. White,

(conviction must be reversed where the trial court's error in considering facts

not in evidence was not harmless, in light "of the overall weight of the evidence").

An error is harmless only if the State can demonstrate, beyond a reasonable doubt,

that the error did not contribute to the verdict. People v. Patterson,

(2005) ("The State bears the burden of proof"). In the case at bar, the State has

failed to demonstrate, beyond a reasonable doubt, that the error did not contribute

to the verdict.

¶ 94 As noted above, the only issue at trial was one of identification. There were no

eyewitnesses; and defendant was not arrested at the crime scene, but rather was

arrested three years after the offense. No one testified that they had observed

defendant in the neighborhood at any time, either before or after the offense; and

there was no statement by defendant to the police.

¶ 95 The State's identification evidence consisted solely of: (1) DNA evidence;

and (2) the testimony of a jailhouse informant. The trial court found that the

informant's testimony "must be viewed with extreme caution" and that it was

merely "corroborati[ve] [of the] other evidence." As stated above, this conclusion

43 No. 1-11-1116

is well supported by the record, and we will not disturb the trial court's credibility

determination.

¶ 96 The only other identification evidence was the DNA evidence obtained from

a pair of bloody gloves found in the victim's home. Although the blood was solely

from the victim, a swab of the inside of the gloves revealed additional DNA

material.

¶ 97 All the experts in this case agreed that the DNA material at issue was a

mixture of DNA from at least three individuals, maybe more. The defense expert

testified the mixture revealed six possible DNA profiles. Thus, at least three people

had worn those gloves; and both the State and defense experts agreed that, with a

mixture, the order of contributors cannot be determined. All three laboratories

engaged by the State in this case – the Illinois State Police, Bode and Cellmark –

disagreed on how to interpret the results of the mixture. Although acknowledging

his disagreement with the other laboratories, Dr. Staub of Cellmark testified that he

was nonetheless able to identify a major contributor that matched defendant's

profile.

¶ 98 While the trial court could have resolved the dispute between Dr. Staub and

Dr. Reich, the defense expert, by finding Dr. Staub more credible, the court was not

44 No. 1-11-1116

so persuaded. Instead, the trial court found defendant guilty by mistakenly

recalling that Dr. Reich agreed with Dr. Staub on the most important question

before the court: "certainly it was" defendant. We cannot find that a mistake

concerning the most important question facing the trial court was harmless beyond

a reasonable doubt.

¶ 99 IV. State's and Dissent's Arguments

¶ 100 As a final matter, we address the State's main arguments: that this is really a

claim of insufficient evidence and that defendant waived the issue.

¶ 101 First, the State treats defendant's claim of mistaken recall as merely a claim

of insufficient evidence, although they are very different claims, subject to

completely different standards of review.

¶ 102 When reviewing a claim of insufficient evidence in a bench trial, we presume

that the trial court accurately recalled and considered all the evidence. Simon,

(we presume, in a bench trial, that the trial court

"considered only competent evidence in reaching its verdict"); Mitchell,

(the trial court must consider "all of the circumstances"); Bowie,

("the trial judge must consider all the matters in the record before

deciding the case"). As a result, its determination is entitled to a great deal of

45 No. 1-11-1116

deference on appeal. We will not reverse its determination unless, after viewing

the evidence in the light most favorable to the State, we find that no rational trier of

fact could have reached the same conclusion as the trial court. People v.

Baskerville,

.

¶ 103 By contrast, with a claim of mistaken recall, the record contains affirmative

evidence that the trial court made a mistake in its decision-making process, thereby

undercutting the presumption that serves as the very foundation for the deferential

standard of review in an insufficient evidence claim -- that the trial court accurately

recalled and considered all the evidence. Simon,

(where a record contains affirmative evidence that the trial court did not accurately

recall or consider crucial defense evidence when deciding judgment, defendant did

not receive a fair trial); Bowen,

("where the record

affirmatively shows the trial judge did not consider the crux of the defense when

entering judgment, the defendant did not receive a fair trial"); Bowie,

(same).

¶ 104 As a result, the claim of mistake must be reviewed under a completely

different standard of review. Instead of the highly deferential standard applied to a

trial court's ruling in an insufficient evidence claim, we review de novo the

46 No. 1-11-1116

question of whether the record reveals that the trial court made an affirmative

mistake in its decision-making process. C.f. People v. K.S.,

(2008) (although "[a]trial court's decision on whether to limit discovery is

reviewed for abuse of discretion," we "review de novo whether a defendant was

denied due process and, if so, whether that denial was prejudicial").

¶ 105Thus, we are not persuaded by the State's treatment of defendant's claim as

merely a claim of insufficient evidence.

¶ 106 Second, the State argues that defendant waived his claim by failing to object

at trial and to raise it in a posttrial motion. People v. Piatkowski,

(2007) (generally, to preserve error for review on appeal, a defendant must

both object at trial and in a posttrial motion). Even if we accepted the State's

waiver argument, it would not change our decision, because the error rises to the

level of plain error. Piatkowski,

(a defendant must show a clear

error and that the error alone severely threatened to tip the scales of justice against

him); People v. White,

(a defendant must show that the

verdict may have resulted from the error and not the evidence). As we explained

above, the evidence in the case at bar was not overwhelming, and this error could

have been the piece of evidence that tipped the scales of justice against defendant.

47 No. 1-11-1116

¶ 107 However, we are not persuaded by the State's waiver argument for the same

reasons that our supreme court rejected the identical argument in Mitchell. As

stated above, in Mitchell, the trial court denied the defendant's suppression motion

stating that it did not recall any testimony by the defendant that he was not free to

leave, when the defendant had, in fact, testified that the police had dragged him to a

police vehicle and told him at the police station that they were not going to let him

go until they had obtained what they wanted. Mitchell,

. On

appeal, the State argued that the defendant waived the issue when he failed to

object during the trial court's ruling. Mitchell,

. The supreme

court rejected this argument, stating "a defendant need not interrupt a trial court to

correct a trial court's misapprehension, after defense counsel has just argued the

same to the court." Mitchell,

. Similarly, in the case at bar,

defense counsel had just argued, through Dr. Reich's testimony, that the DNA

evidence was inconclusive and thus he was not required to interrupt the trial court

to point out that the court was wrong. As a result, we do not find that the defense

waived this claim by not objecting during trial.

48 No. 1-11-1116

¶ 108 The defense also did not waive this claim when it stated in its posttrial

motion simply that "defendant was denied due process of law."9 Similarly, in

Mitchell, the defendant's posttrial motion contained only a general objection to the

trial court's failure to suppress evidence, without specifying the trial court's

mistaken recall of the evidence. Mitchell,

. Nonetheless, the

supreme court rejected the State's claim of waiver, stating "[t]he trial court's failure

to recall crucial evidence is of the type of constitutional error which may be later

raised in a post-conviction hearing, and we thus do not find the matter waived" by

the defendant's failure to raise it with specificity in his posttrial motion. Mitchell,

. Thus, the defense did not waive this claim by not objecting

during the trial court's ruling or with greater specificity in its posttrial motion.

¶ 109 The dissent contains a number of factual inaccuracies. However, we will

address here only the most salient ones.

¶ 110 First, the dissent stated that,"although [Dr. Reich's] report criticized the ISP

concerning the 11, 12 and 13 alleles at the D-13 locus for not conducting a search

of the database that included all of the alleles, he acknowledged [on cross

9 In its brief to this court, the State claims that the defense conceded in its brief that it failed to object both at trial and in a posttrial motion. In fact, the defense made this concession only with respect to trial.

49 No. 1-11-1116

examination] at trial that the ISP's search of 11, 12 and 13 actually did include all

the alleles." That statement is factually incorrect. The dissent is confusing

"allelles" with "profiles."

¶ 111 On direct examination, Dr. Reich explained that the ISP had found three

peaks or alleles at the D-13 locus and had not been able to resolve which ones

belonged to a major or minor contributor. When it is not possible to resolve a

mixture, such as this one, with three alleles at one locus, there are at least six

possible profiles for a major contributor at that locus: (1) 11, 12; (2) 11, 13; (3) 11,

11; (4) 12, 13; (5) 12, 12; and (6) 13, 13. On cross-examination, the prosecutor

read from the portion of Dr. Reich's report in which Dr. Reich had criticized the

Illinois State Police laboratory for not running a database search for all six profiles

possible at that location. While Dr. Reich stated that all three alleles appeared on

the Illinois State Police's report, he observed on cross-examination that the report

did not indicate that a "wild card search" had been done at that location for all six

possible profiles. Thus, the dissent's statement that he had acknowledged a search

had been done is factually inaccurate.

¶ 112 Second, the dissent states that "Dr. Reich identified the alleles of defendant

that were present at each one of the 13 loci." That statement is factually incorrect.

50 No. 1-11-1116

Alleles come in pairs. For defendant's alleles to be present, the pair would have to

be present at each location, as part of a particular contributor. In other words, if

defendant's alleles at a location are 9 and 11, and there's a 9 from a major

contributor and an 11 from a minor contributor at the same location, then those

alleles cannot possibly come from defendant. One cannot take a 9 from one person

and an 11 from another person to make a match, because defendant is only one

person. Alleles from two different people can never be a match and to indicate that

it can is patently incorrect.

¶ 113 What Dr. Reich was asked to do on cross-examination was to read numbers

off a chart, as though it was an eye exam. He was asked to read the numbers,

without any reference to pairs of alleles or whether a particular number belonged to

a major or minor contributor. For example, the following exchange occurred

during cross-examination:

"ASA: What about at T-POX, what is the

defendant's alleles?

DR. REICH: Nine and 11.

ASA: And do you see 9 and 11 in the Bode chart?

DR. REICH: There is 9 and 11 in the Bode chart."

51 No. 1-11-1116

However, on direct examination, Dr. Reich explained that Bode concluded that

only the 9 peak was from the major contributor, while the 8, 10 and 11 peaks were

from minor contributors. Thus, for defendant's alleles to be present at the T-POX

location, he would have to be two people – taking the 9 from the major contributor

and the 11 from a minor contributor! Dr. Reich did not testify to that and, as a

result, the dissent's statement that Dr. Reich identified "the alleles of defendant" as

"present at each one of the 13 loci" is factually inaccurate.

¶ 114 It is significant that, in the portion of the testimony quoted by the dissent, the

prosecutor asks Dr. Reich if "defendant's alleles" are present, and he answers only

that "the alleles" are present, refusing to adopt the prosecutor's characterization of

the alleles as "defendant's." On redirect examination, defense counsel clarified that

Dr. Reich's statements on cross-examination were made without reference to major

and minor contributors which could change the interpretation.

¶ 115 Third, the dissent emphasizes the "omission" in Dr. Reich's report, in that the

report, prepared two years prior to trial, did not discuss the T-POX location.

However, when asked about it on cross-examination, Dr. Reich testified that it was

not in "this" two-year old report. When asked about it again, Dr. Reich reiterated

that it was "not corrected" in the two-year old report, and the prosecutor failed to

52 No. 1-11-1116

ask a follow-up question about whether it had since been "corrected" in another

document. The lack of a follow-up question possibly explains why this alleged

omission had no effect on the trial court's findings.

¶ 116 Fourth, the dissent's characterization of the defense's closing argument leads

to the impression that the defense conceded the DNA issue. However, the defense

began its argument with the observation that the DNA evidence was "inconclusive

[as to] who was the major contributor." The defense then made arguments in the

alternative that, even if one assumed that defendant had worn the glove, there was a

mixture of three people and there was no way of knowing when he wore it or

whether he was the last person. While there were other inaccuracies, we took the

time here to address only the most significant.

¶ 117 V. Double Jeopardy

¶ 118 Since we are remanding this case for a new trial, we must consider whether

another trial would violate the double jeopardy clause. People v. Ward,

. If the totality of the evidence presented at defendant's first trial was

sufficient for a rational trier of fact to find that the essential elements of the crime

were proved beyond a reasonable doubt, then there is no double jeopardy violation

on retrial. Ward,

. As discussed above, the trial court was not

53 No. 1-11-1116

so persuaded by the State's expert as to chose between the two experts and find the

defense expert less credible. However, the State's evidence, if believed, was

sufficient to establish defendant's guilt beyond a reasonable doubt. Ward,

. Thus, there is no double jeopardy impediment to retrial here. Ward,

.

¶ 119 CONCLUSION

¶ 120 For the foregoing reasons, we find that defendant's due process rights were

violated and that the error was not harmless beyond a reasonable doubt. Thus, we

must reverse and remand for a new trial.

¶ 121 Reversed and remanded.

54 No. 1-11-1116

¶ 122 JUSTICE LAMPKIN, dissenting:

¶ 123 I respectfully dissent and would affirm defendant's convictions. I do not

agree with the majority's conclusion that the trial court based its finding of guilt on

a mistaken recollection of Dr. Reich’s testimony. Defendant has argued on appeal

that the trial court incorrectly stated that Dr. Reich conceded that defendant’s DNA

was on the gloves and disputed only whether defendant was a major or minor

contributor. Defendant asserts that Dr. Reich disputed whether the DNA evidence

was sufficient to link defendant to the gloves at all. A review of the record

establishes that the trial court’s recollection of all the evidence, including Dr.

Reich’s testimony, was completely accurate.

¶ 124 Defendant acknowledges that he failed to object to the trial court’s

recollection of the testimony. Moreover, the record establishes that defendant

failed to raise this specific issue in his posttrial motion. Defendant argues,

however, that the rule of forfeiture is relaxed in this instance because an objection

by the defense “would have fallen on deaf ears” and the defense “was not required

to interrupt the trial court to repeat arguments that had just been made in closing.”

I do not agree with defendant’s characterization of the defense’s closing argument.

According to the record, the defense did not argue that defendant’s DNA profile

55 No. 1-11-1116

was not found on the gloves but, rather, that at least two other people also wore the

gloves and no evidence established beyond a reasonable doubt that defendant was

the last person to wear the gloves during the murder. Moreover, at the hearing on

defendant’s motion for a new trial, the defense argued that the DNA mixture found

in the gloves included two other people’s DNA besides defendant’s DNA and thus

was not sufficient to prove his guilt of the crime beyond a reasonable doubt.

Nevertheless, whether defendant’s mistaken recollection argument is considered on

the merits or under a plain error analysis, the first step is to determine whether error

occurred. People v. Piatkowski,

(2007). For the reasons that

follow, I would find no error here to excuse defendant’s forfeiture of this issue.

¶ 125 A trial court’s failure to recall and consider testimony crucial to a

defendant’s defense may result in a denial of the defendant’s due process rights.

People v. Mitchell,

(1992). In a bench trial, the trial court is

presumed to have considered only competent evidence in reaching its verdict,

unless that presumption is rebutted by affirmative evidence in the record. People v.

Gilbert,

(1977). Where the record affirmatively indicates

that the trial court did not remember or consider the crux of the defense when

entering judgment, the defendant did not receive a fair trial. People v. Bowie, 36

56 No. 1-11-

, 180 (1976). In a bench trial, the trial court is not required to

mention everything that contributed to its findings. People v. Curtis,

(1998). A reviewing court may take into account any facts in the

record which support an affirmance of the trial court’s findings, even where the

trial court does not explicitly state that it relied on those facts.

¶ 126 Before conducting an analysis of this issue, an accurate summary of the

relevant testimony and court proceedings is necessary. According to the record,

Dr. Staub, the State’s witness, testified that he deduced a major profile from the

DNA mixture sample that had come from the gloves. At least three unknown

individuals contributed to that DNA mixture. When Dr. Staub compared the

reference standard that had come from defendant’s buccal swab with the profile of

the DNA mixture found in the gloves, Dr. Staub concluded that defendant’s

reference standard matched the major profile deduced from the DNA mixture. He

determined that the statistical likelihood of the match was 1 in 196.6 quadrillion.

Dr. Staub’s conclusions agreed with the conclusions by Bode Laboratories except

for one difference. Specifically, at the T-POX site, Bode called the 9 marker as a

major contributor, but Dr. Staub called the 9 and 11 markers as a major contributor

because it was very clear that the major profile was a very significant portion of the

57 No. 1-11-1116

entire DNA in that sample and if it was not included, then the analysis would

attribute too much of the rest of the DNA to the minor contributors. Moreover, the

Illinois State Police (ISP) deduced a profile for search purposes, so at the D-13

locus, it had an additional allele in comparison to Dr. Staub’s deduced profile.

Concerning electropherograms and DNA mixture interpretations, high peaks at

various loci indicated a major profile whereas other peaks indicated minor

contributors. However, sometimes a minor contributor could share an allele with

the major contributor and that potentially could make one of the taller peaks go

even higher.

¶ 127 Dr. Staub was aware of a study that determined there could be coincidental

matches in DNA database searches of up to 9, 10 or even 11 locations of profiles

between individuals, but that study used a very different standard of methodology

than a forensic database search, which finds a profile from a piece of evidence and

compares it to the database. A forensic database search looks for one profile in a

database, not any profile. When asked if he was aware that there could be

coincidental matches between a deduced profile and an individual profile at 9, 10,

11 or more locations, Dr. Staub responded:

58 No. 1-11-1116

“Well, you can actually determine the exact probability of that.

In this particular case when there are 13 markers, the likelihood of a

random match, is one in seven quadrillions. So, basically, for all

intent and purposes, it means you won’t find a match unless you

actually have the same person.”

Dr. Staub testified that when one looks at the 13 separate and distinct loci that are

used to determine a DNA profile, the standard from defendant appeared at each one

of the 13 loci that Dr. Staub had developed in his major profile. At every one of

the 13 loci that Dr. Staub developed in his major profile, the defendant’s DNA was

an exact match.

¶ 128 For the defense, Dr. Reich testified that a full profile of 13 loci is sufficient

under the scientific standard to identify one person from all others. However, DNA

mixture interpretation can be complicated because multiple contributors can share

common alleles at a particular locus. Dr. Reich stated that because the D-13 and T-

POX loci here had at least two and maybe three possible interpretations, there was

some ambiguity in the conclusions reached in the interpretations of Bode, the ISP,

and Dr. Staub concerning the components of the major profile. If a profile of 13

loci has a number of alternate results, then an alteration of even 1 allele out of the

59 No. 1-11-1116

whole 13 would exclude that individual from being a contributor. Dr. Reich stated

that the possibility of nonrelated individuals having DNA profiles that can match at

up to 9, 10, or sometimes 11 loci casts further doubt on the conclusions reached in

the interpretations of Bode, ISP and Dr. Staub. Dr. Reich asserted that the alternate

interpretations by Bode, ISP and Dr. Staub concerning the D-13 and T-POX

locations meant there was a possibility of there being alternate profiles that would

match the major profile. Because there were at least three contributors to the mixed

DNA sample found in the gloves, then at least three individuals left either body

fluid or cells or both behind in the gloves. Defendant, however, could not be

excluded from the DNA profile from the swab taken from the inside of the gloves.

¶ 129 Concerning the interpretations of the electropherogram by Bode, the ISP,

and Dr. Staub, Dr. Reich noted that the ISP at the D-13 location did not distinguish

12 as a minor contributor and thus did not resolve the mixture at that location.

Consequently, according to Dr. Reich, there were six possible profiles as the

contributors, taking into account the opportunities for both homozygous and

heterozygous results. Moreover, it was impossible to make any determination

concerning the timing or order that each contributor made to the mixed DNA

sample.

60 No. 1-11-1116

¶ 130 On cross-examination, Dr. Reich acknowledged that his report failed to

mention the T-POX location. Furthermore, although his report criticized the ISP

concerning the 11, 12 and 13 alleles at the D-13 locus for not conducting a search

of the database that included all of the alleles, he acknowledged at trial that the

ISP’s search of 11, 12 and 13 actually did include all the alleles. He acknowledged

that, aside from the D-13 and T-POX loci, he agreed with Dr. Staub’s interpretation

for the 11 remaining loci.

¶ 131 Initially, when the prosecutor asked if Dr. Reich would “agree with the

statement that [defendant’s] alleles appear at each one of the 13 separate loci that

[were] tested,” Dr. Reich responded that he “would say it a little differently.”

Consequently, the prosecutor questioned Dr. Reich concerning each one of the 13

sites, and Dr. Reich identified the alleles of defendant that were present at each one

of the 13 separate loci. When the prosecutor again asked if “defendant’s alleles are

present at each one [of] the 13 loci,” Dr. Reich responded:

“The scientific response is he is not excluded. That is the

correct approach--*** That is the correct wording.”

The prosecutor continued:

61 No. 1-11-1116

“Q. Doctor, listen to my question. It’s [sic] calls for a simple

look at each one of the charts. As we went through it, each one of the

defendant’s alleles are present in the Bode chart, correct?

A. Each one of the numbers is present on both charts.

Q. The numbers came from the electropherogram from the

defendant’s [DNA] standard, correct?

A. Correct.

Q. So, the defendant’s alleles are on each one of the 13 loci on

the [DNA] profile determined by Bode, coming from the swabs of the

gloves, correct?

A. The alleles are present, that is correct.

Q. Okay. And each of the 13 loci, correct?

A. We have gone through them one by one and they are,

correct.” (Emphasis added.)

¶ 132 In the State’s rebuttal case, Dr. Staub countered Dr. Reich’s testimony that

questioned Dr. Staub’s interpretation that called the 11 and 13 markers at the D-13

location as the major profile. Specifically, Dr. Staub explained that Dr. Reich was

incorrect in speculating that the major contributor could be a homozygous 11, 12 or

62 No. 1-11-1116

13. In adding up peak heights at each locus, Dr. Staub determined that the major

contributor was 75% to 85% of the total DNA. Consequently, it would not make

sense for the major contributor to be homozygous at any of the markers because

then he would be contributing too low of a percentage to the total DNA. The same

analysis held true for the T-POX location, where Dr. Staub called the 9 and 11

markers as the major profile, which was 86% of the total DNA. Bode’s conclusion

for D-13 was the same as Dr. Staub’s. Moreover, ISP chose not to resolve the

mixture at D-13 because it was searching the database for a profile and thus chose

to be conservative and use the 11, 12 and 13 markers so ISP would not miss it.

ISP’s purpose to search for an individual in the database was completely different

from Dr. Staub’s purpose to try to identify someone by comparing defendant’s

known standard with the unknown standard.

¶ 133 According to the record, the experts testified on the same day and were the

last witnesses to testify before the hearing concluded on a Friday. Instead of

proceeding to closing argument, the trial court continued the matter to Monday

afternoon so the trial court could review all its notes that were spread over a

number of days.

63 No. 1-11-1116

¶ 134 At closing argument, the defense argued, inter alia, that the State was relying

on sympathy for the victim to win this case and ignoring and avoiding the

substandard circumstantial evidence that failed to connect defendant to this

offense. The defense argued that the State was “hinging [its] case on the fact that

[defendant’s] DNA may possibly be connected to a piece of evidence that cannot

be excluded, from an inside glove that was found inside of a house where [the

victim] was found dead.”

¶ 135 Concerning the DNA evidence, the defense argued that the experts agreed

that the DNA taken from the glove was a mixture of at least three sources, so at

least three people wore that glove at some point. The defense argued that the DNA

evidence was inconclusive as to who was the major contributor at the D-13 and T-

POX loci because the different labs that tested the DNA had different conclusions

and it can be very complicated to determine who was the major or minor

contributor to a DNA mixture. “[W]hile there may be doubts as to whether or not

[defendant] is a major contributor at the D-13 and T-POX locations, there is no

definitive evidence that either the major contributor of DNA or the minor

contributor of that DNA committed that crime.” Even if a person was determined

to be a major contributor, it did not mean he owned the gloves or was the one that

64 No. 1-11-1116

stabbed the victim because it was scientifically impossible to determine whether

the major DNA contributor was the last person to have worn the gloves.

¶ 136 The defense argued that the State ignored all other leads and evidence once

defendant was established as a potential DNA contributor to the mixture found in

the gloves. No reliable evidence connected defendant to the crime because,

although evidence showed that defendant and other people wore the gloves, there

was no explanation as to how the gloves got in the victim’s house, how defendant

brought the gloves into the house, when defendant had the gloves on, or who else

had the gloves on. “The only thing that you could plausibly take from this

evidence, and it’s still not proof beyond a reasonable doubt, is that at some point in

his lifetime, [defendant] touched that glove.”

¶ 137 The prosecutor argued, inter alia, that there was no question that the major

profile in the DNA mixture found in the gloves was defendant’s DNA. Although

the defense had argued that defendant merely could not be excluded as a

contributor, the evidence established that defendant’s DNA was present at every

one of the 13 loci tested in CODIS. Dr. Staub testified that defendant was the

donor of the major profile in the gloves and that match could occur only once in

196.6 quadrillion. The prosecutor argued that Dr. Staub’s testimony was credible

65 No. 1-11-1116

and was not impeached. Dr. Reich, in contrast was not credible and was impeached

by the omissions in his report, which failed to discuss the T-POX site and

inaccurately claimed that the ISP had failed to conduct a database search using all

the alleles present at the D-13 site.

¶ 138 The prosecutor recounted how, when he started to cross-examine Dr. Reich

about the profile that was developed and the comparison made by Dr. Staub, Dr.

Reich “refused to even acknowledge that the defendant’s DNA is present at all 13

loci.” Notably, the defense objected on the ground that the argument misstated the

evidence and the court sustained that objection. The prosecutor then recounted

how he had to go through each of the 13 loci and make Dr. Reich read the markers

listed in the Bode chart and the chart of defendant’s DNA standard.

“Clearly, Dr. Reich wanted to fight on each and every level until,

finally, I had to go through and ask him at each site did he see it at one

si[t]e–it was almost like Ses[a]me Street. What do you see here and

what did you see there.”

¶ 139 The trial court’s oral ruling finding defendant guilty spans about nine pages

in the transcript. The trial court recounted the evidence, which included the cut

telephone wires, the broken glass of the basement window, the fingerprint

66 No. 1-11-1116

standards recovered from the PVC pipe and washing machine, and the pattern on

the prints that matched the rubber-grip dot pattern on the gloves that were

recovered at the scene and stained with the victim’s blood. The trial court stated

that at least three people contributed to the DNA evidence recovered from inside

the gloves. Dr. Staub testified that the profile of the major contributor of the DNA,

above all other individuals who at some point may have worn those gloves,

unquestionably matched defendant. Dr. Reich was called to refute Dr. Staub, but

after a “laborious” cross-examination,

“[Dr. Reich had] to indicate that certainly it was still the defendant,

who through every standard taken, was one of the individuals whose

DNA was on those gloves, though he disputes whether or not

[defendant] was a major contributor.

The Court looks at the fact that it was only the defendant who

was testified to as being the one who left his DNA standards

throughout every portion testified to and there’s no question in this

Court’s mind that the defendant’s DNA was within those gloves.

There is no question by the Court that he was a contributor of

DNA to those gloves.

67 No. 1-11-1116

Doctor Staub did testify that he was a major contributor, by the

evidence that I have.”

¶ 140 Furthermore, the trial court concluded that the testimony of Worthem, the

State’s jailhouse witness, supported Dr. Staub’s finding. The court stated, “in this

case it certainly does support Dr. Staub’s finding, that evidence which the Court

looks at is the testimony of the State’s jailhouse witness.” The court went on to

note that, although Worthem’s testimony had to be viewed with extreme caution

due to potential bias, his testimony coincided with the evidence presented and

included information that he could only have received from defendant, such as

defendant’s entry into the victim’s home, leaving his gloves behind at the scene,

the type of property taken from the victim, and the victim’s injuries. Those facts,

“because they are so similar to other evidence here, they become more

than just coincidences and they come to a point where the Court has to

look at them as they are corroborating other evidence and find, in fact,

that certainly there is only one person who this information could have

come from, and that is the defendant.

***

68 No. 1-11-1116

The Court has viewed all facts here, looked at any other

hypothesis of why this occurred and how it occurred and I am

convinced beyond a reasonable doubt that [it] was the defendant who

perpetrated an[d] completed these crimes and killed the victim and,

therefore, as to all charges, I find the defendant guilty.”

¶ 141 The trial court’s comments did not demonstrate an erroneous recollection of

the evidence, but rather, reflected the court’s observation concerning Dr. Reich’s

attempt to cast doubt on Dr. Staub’s interpretations at the D-13 and T-POX loci by

suggesting that at least two other interpretations were possible at those loci.

Specifically, the trial court observed that, after a laborious cross-examination

where the prosecutor took Dr. Reich through a series of questions concerning each

of the 13 loci, Dr. Reich did finally acknowledge that defendant’s alleles were

present on each one of the 13 loci on the DNA profile taken from the swab of the

gloves. The trial court correctly observed that, although Dr. Reich asserted that his

alternative possible interpretations at the D-13 and T-POX loci introduced some

ambiguity as to what the major profile was, Dr. Reich had conceded that a full

profile of 13 loci was sufficient under scientific standards to identify an individual

as a match.

69 No. 1-11-1116

¶ 142 The record here does not affirmatively demonstrate that the trial court

incorrectly recalled Dr. Reich’s testimony. Dr. Reich testified right after Dr. Staub

on the last day of the hearing, which occurred on a Friday, and the trial court

scheduled closing argument for the following Monday afternoon in order to review

all the evidence before ruling. Thus, there is affirmative evidence that the trial

court reviewed the testimony at issue immediately prior to making its ruling.

Moreover, during closing argument, when the State argued that Dr. Reich “refused

to even acknowledge that the defendant’s DNA is present at all 13 loci,” the trial

court sustained defendant’s objection on the ground that the argument misstated the

evidence.

¶ 143 Additionally, the trial court’s statements were not inconsistent with Dr.

Reich’s testimony and the other evidence presented. Defendant takes issue with

the trial court’s statement that Dr. Reich had to acknowledge that defendant was

one of the individuals whose DNA was on the gloves. Although the trial court did

not use the same words used by Dr. Reich, defendant cannot credibly dispute that

Dr. Reich conceded, during cross-examination, that defendant’s alleles were

present at all 13 loci of the DNA profile taken from the gloves. In addition, Dr.

Staub refuted Dr. Reich’s testimony that tried to cast doubt on Dr. Staub’s

70 No. 1-11-1116

conclusions concerning the D-13 and T-POX loci. Specifically, Dr. Staub

explained how the peak heights determined the percentage range of DNA

contributed by the major profile and ultimately refuted Dr. Reich’s speculations

about a homozygous contributor. Dr. Staub also explained that the ISP’s decision

not to resolve the mixture at D-13 was due to the fact that the ISP was searching

the database for a profile and did not cast doubt on Dr. Staub’s and Bode’s

consistent conclusions concerning D-13.

¶ 144 I disagree with the majority’s assumption that the trial court did not find Dr.

Staub’s testimony more credible than Dr. Reich’s testimony. The record

established that Dr. Reich’s testimony concerning the D-13 and T-POX loci was

impeached by omissions in his report. Moreover, where the trial court accurately

summarized the evidence and stated that there was “no question in this Court’s

mind that the defendant’s DNA was within those gloves,” the majority’s

assumption that the trial court found Dr. Reich just as credible as Dr. Staub is not

reasonable. Contrary to the law, the majority would penalize trial courts that do not

articulate findings in accordance with a particular word choice that is to the

majority’s liking. See Curtis,

(in a bench trial, the trial

court is not required to mention everything that contributed to its findings). Even

71 No. 1-11-1116

though the trial judge did not utter the words: “I find Dr. Staub’s testimony

credible and Dr. Reich’s testimony not credible,” there is no doubt, based on the

judge’s statements in his ruling, that the judge found credible Dr. Staub’s

conclusion that defendant was a 13-loci match to the majority profile recovered

from the gloves, and found not credible Dr. Reich’s attempts to cast doubt on that

conclusion.

¶ 145 I also disagree with the majority’s attempt to minimize the weight the trial

court accorded Worthem’s testimony. The trial court noted that Worthem’s

testimony had to be considered with caution, but the trial court ultimately found

that Worthem’s testimony contained certain facts of the crime that corroborated Dr.

Staub’s findings and Worthem’s conversations with defendant were the only likely

source of Worthem’s knowledge. When considered in context, it is apparent that

the trial court neither misstated nor misrecollected Dr. Reich’s testimony or any of

the evidence presented by the parties.

¶ 146 Defendant further argues that the trial court’s incorrect recollection goes to

the crux of the theory of the defense at the trial court level. I disagree. According

to the record, during closing argument, the defense no longer disputed the fact that

the testimony of both Drs. Staub and Reich had established that defendant’s alleles

72 No. 1-11-1116

were found at 13 loci of the profile taken from the gloves. Rather, the defense

argued that, even if the court was not convinced by Dr. Reich’s assertions

concerning ambiguity at the D-13 and T-POX loci, defendant still was not

connected to the crime scene because at least three individuals contributed to the

DNA mixture recovered from the gloves at the crime scene and no evidence

established that defendant was the last person to have worn those gloves before

they were abandoned at the crime scene. Defendant’s argument on appeal is not

entirely consistent with the theory he argued before the trial court, and he cannot

claim error on appeal by arguing an alternate and inconsistent theory.

¶ 147 I cannot find that the trial court improperly recalled Dr. Reich’s testimony.

Moreover, there was other testimony that supported the trial court’s verdict. No

error occurred here, and I would affirm the trial court’s decision.

73