SECOND DIVISION December 14, 2021 1-17-0888

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 CR 4658 ) WILLIAM MOORE, ) Honorable ) Angela Munari Petrone, Defendant-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: Defendant’s convictions for murder and aggravated criminal sexual assault are affirmed. We affirm the trial court’s order denying defendant’s motion to suppress custodial statements; although the officer arrested defendant pursuant to an investigative alert instead of a warrant, the investigative alert was supported by probable cause and therefore defendant’s arrest was valid; trial counsel’s performance was not deficient because counsel was not required to file a futile motion to dismiss the aggravated criminal sexual assault charge; the trial court did not err in limiting defendant’s cross-examination of certain witnesses; and defendant was not deprived of a fair trial by the prosecution’s comments during closing arguments. ¶2 Following a retrial after remand from this court, a jury found defendant William Moore

guilty of the murder and aggravated criminal sexual assault of Magdalena Idzikowska. The trial

court sentenced defendant to life imprisonment without parole for murder and a concurrent term

of 30 years’ imprisonment for aggravated criminal sexual assault. 1-17-0888

¶3 On appeal, defendant contends: (1) his custodial statements should be suppressed because

the statements he made were the product of an arrest that was based on an investigative alert

instead of a warrant; (2) trial counsel was ineffective for failing to seek the dismissal of the

aggravated criminal sexual assault charge on statute of limitations grounds; (3) defendant was

deprived of the opportunity to mount a meaningful defense; and (4) he was denied a fair trial

when the prosecutor made improper comments during closing arguments.

¶4 We affirm for the following reasons.

¶5 BACKGROUND

¶6 On March 4, 2008, defendant was indicted for the murder and aggravated criminal sexual

assault of Magdalena in November 2001. A jury found defendant guilty of those charges, and the

circuit court sentenced defendant to concurrent, respective terms of life imprisonment without

parole and 30 years’ imprisonment. However, the appellate court reversed defendant’s

convictions and remanded the cause to the circuit court for a new trial based on trial counsel’s

unreasonable failure to object to the admission of other crimes evidence contained in the video of

his interrogation. People v. Moore,

.

¶7 Motion to Suppress

¶8 On remand, defendant filed a “motion to quash arrest and suppress evidence illegally

seized.” Defendant alleged he was unlawfully arrested pursuant to an investigative alert instead

of a valid warrant. Citing Justice Salone’s special concurrence in People v. Hyland,

, defendant stated the Chicago police department’s practice of issuing

investigative alerts effectively side-steps judicial review by giving the police arrest warrant

power. Defendant also stated he was arrested without probable cause because his conduct prior

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to his arrest could not be reasonably interpreted by the arresting officers as probable cause that

he committed or was about to commit a crime.

¶9 At the hearing on defendant’s suppression motion, Sergeant Torres testified on February

5, 2008, she and her partner stopped defendant’s car and arrested him based solely on an

investigative alert. Torres stated on cross-examination she knew the investigative alert concerned

a murder and a positive DNA association. On redirect examination, Torres stated the

investigative alert was issued with probable cause to arrest by the detective division and not a

magistrate.

¶ 10 Detective Michael Hammond testified he issued the investigative alert in February 2008

after receiving approval from a supervisor, and he described the facts underlying the alert. In

May 2004, he questioned defendant about Magdalena’s cellphone records, which showed a call

between her cellphone and a cellphone number associated with defendant on the night of her

murder. During the investigation, defendant initially denied having a cellphone with him that

night but then changed his story. Defendant claimed he had the cellphone with him but gave it to

his friend Derrick Coleman, who talked to Magdalena. Defendant also stated he never had sex

with Magdalena, and he agreed to the collection of buccal swabs, which were sent to the crime

lab for analysis. In June 2004, the crime lab reported that defendant’s DNA profile matched

semen recovered from Magdalena. Then in December 2007, Hammond interviewed Coleman,

who denied meeting or talking to Magdalena.

¶ 11 The trial court denied defendant’s motion in a written order finding there was probable

cause to issue the investigative alert and to arrest defendant.

¶ 12 Jury Retrial

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¶ 13 At retrial in 2016, Wanda Idzikowska testified she last saw her daughter Magdalena on

November 24, 2001. Magdalena was 21 years old and lived at home. Wanda and her daughter

commuted to work in Magdalena’s green Nissan Altima. When they spoke around 7:00 p.m.,

Magdalena mentioned she might pick up boxes from Dominick’s because they were moving. She

last spoke with her daughter around 11:00 p.m. but did not see her leave the apartment. The next

morning, two police officers came to the apartment and told her Magdalena was killed. Wanda

identified her daughter at the medical examiner’s office later that day.

¶ 14 Israel Gonzalez testified he was on his way to work at the Marathon gas station on Ogden

Avenue, when he noticed a familiar green Nissan Altima parked on a commercial side street by

the local mill. The gas station had previously serviced the Nissan, which was driven by a young

lady. When he arrived at the gas station, a regular customer from the mill waved him over to the

Nissan. There, he saw the lifeless body of the young lady in the back seat. He ran back to the gas

station and called 911.

¶ 15 William O’Connor, a forensic investigator, testified he and his partner, Steve Strzepek,

arrived at the scene around 10:00 a.m. The victim was lying unclothed on the back seat with her

legs outside the car; her underwear and jeans were pulled down to her ankles. There were .40-

caliber cartridge casings inside and outside the car and a large amount of blood on the back seat.

In addition to the cartridge casings, O’Connor and his partner recovered bullet fragments, blood,

and hair. They also photographed the scene and bagged the victim’s hands to preserve trace

evidence.

¶ 16 Dr. Ponni Arunkumar, the chief medical examiner in Cook County, testified about the

victim’s autopsy, which was performed by former assistant medical examiner Dr. Kendall

Crowns. Dr. Arunkumar reviewed the autopsy protocol prepared by Dr. Crowns, which included

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notes and photographs. In Dr. Arunkumar’s expert opinion, the victim’s death was caused by

eight gunshot wounds and the manner of death was homicide.

¶ 17 On cross-examination, Dr. Arunkumar noted Dr. Crowns took vaginal and anal swabs

from the victim and sent them to a lab for analysis. Dr. Arunkumar also noted there were no

visible injuries to the victim’s vagina and anus despite the circumstances surrounding the

victim’s discovery.

¶ 18 Dr. Arunkumar stated, on redirect examination, the absence of external injuries to the

victim’s genitalia does not rule out the possibility of a nonconsensual encounter. The doctor

explained, “It just means that there were no injuries in the vaginal area. One cannot make a

determination of rape based on the presence or absence of injuries.”

¶ 19 Raymond Schnoor, a former detective, testified on May 17, 2004 he and detectives

Hammond and Pietryla interviewed defendant. With defendant’s consent, an evidence technician

collected a buccal swab and thumb prints. Subsequently in 2007, Schnoor traveled to NASA

headquarters in Cape Canaveral and met with an analyst who tried unsuccessfully to enhance

video footage obtained from surveillance cameras near the crime scene. On cross-examination,

Schnoor explained NASA was unable to analyze the video footage sooner because of the space

shuttle disaster in 2003.

¶ 20 Karen Abbinatti, a forensic scientist, testified in June 2004 she examined the victim’s

underwear and jeans for the presence of bodily fluids. Neither tested positive for the presence of

semen.

¶ 21 Charlotte Word, a lab director at Cellmark, testified she received DNA standards

collected from the victim and Juwan Spruill in 2001. She stated the DNA profile identified on

the victim’s vaginal and rectal swabs excluded Juwan Spruill as a possible source.

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¶ 22 Brian Schoon, a forensic scientist, testified in 2004 he developed a DNA profile from the

buccal swabs collected from defendant. He also had DNA profiles generated from standards

taken from Juwan Spruill and the victim. He compared defendant’s DNA profile with the male

DNA profile that Cellmark, a DNA testing lab, obtained from the victim’s vaginal and anal

swabs collected in 2001. He determined the DNA profiles matched. On cross-examination,

Schoon stated he also compared defendant’s DNA profile with a mixture of DNA profiles that

Cellmark obtained from the victim’s fingernail clippings and determined the mixture was not

suitable for making a positive association with defendant.

¶ 23 Derrick Coleman testified he played dominoes with defendant in 2001. Coleman viewed

a photograph of Magdalena and stated he did not recognize her. He added defendant did not

introduce him to any women or hand him a phone to speak with any women.

¶ 24 Tamara Colon testified she met defendant in 1997 when they worked at the same grocery

store; she was 17 and defendant was in his 40s. They socialized but did not have a romantic

relationship. In 1998, Colon left her job at the grocery store to work at Union Health Service

where she met Magdalena. Colon kept in touch with defendant and would occasionally go out to

dinner with him. Around Sweetest Day in October 2001, defendant visited her at Union Health

Service. He brought her a card, flowers, and lunch. Colon rode around with defendant, and they

talked for about 25 minutes. Magdalena accompanied them.

¶ 25 On cross-examination, Colon clarified she did not have a physical relationship with

defendant. She also mentioned Magdalena was saving up for an apartment with her boyfriend,

Juwan Spruill, and Magdalena had more than one cellphone.

¶ 26 Juwan Spruill testified on the Saturday after Thanksgiving in 2001, he and Magdalena

spent the day hanging out at his parents’ house in Bellwood. Around 10:30 p.m., he went to work

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at H&M International and Magdalena went home to her family. At 11:15 p.m., he talked to

Magdalena on the phone for a few minutes. Around 2:30 a.m., he took a break and watched a

movie with his supervisor, Jaton Brown, because a train derailed. He tried to call Magdalena

during his break, but she did not answer. When his shift ended at 6:30 a.m., he went home and

slept. In the afternoon, detectives came to the house and informed him that Magdalena was

murdered.

¶ 27 Jaton Brown testified he was the night shift supervisor for H&M International in 2001.

On the night of November 24, he supervised a small team including Juwan Spruill, who

remained onsite for the entire shift.

¶ 28 Cellphone records showed Magdalena called defendant’s home phone at 10:13 p.m. on

November 23, 2001 and at 3:22 p.m. on November 24, 2001. At 10:59 p.m. on November 24,

Magdalena called defendant’s cellphone. The call lasted 20 seconds. Magdalena called

defendant’s cellphone again at 11:05 p.m. This time, the call lasted 23 minutes. No more calls

were made from Magdalena’s cellphone after that call.

¶ 29 Detective Michael Hammond testified he was assigned to the investigation of

Magdalena’s death in late 2001. On May 17, 2004, he and fellow detectives interviewed

defendant based on phone records showing calls between him and Magdalena on the night of her

death. Defendant initially denied any knowledge of Magdalena. When shown her photograph,

defendant stated he met Magdalena when he visited Tamara Colon at Union Health Service, and

he had no further contact with Magdalena. Although defendant claimed he never owned a

cellphone in his entire life, Hammond noticed defendant was wearing a cellphone on his belt.

Eventually, defendant admitted he had a cellphone in 2001. Defendant explained he bought the

cellphone registered under someone else’s name and he could only use it for about a month

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before service was cut off. Defendant initially claimed he gave the cellphone to Gregory Johnson

before Thanksgiving 2001 and that Johnson had subsequently died. However, defendant changed

his story when shown records of calls made to his family home and workplace, and he admitted

there was no Gregory Johnson.

¶ 30 Defendant told Detective Hammond he exchanged phone numbers with Magdalena when

they met. They talked on the phone several times and Magdalena asked him to introduce her to

some “players.” On the night in question, Magdalena called him as he was driving with Derrick

Coleman. He handed the cellphone to Coleman, who talked to Magdalena about meeting up. He

did not speak to Coleman again after dropping him off.

¶ 31 Detective Hammond further testified on February 5, 2008 fellow officers arrested

defendant based on the investigative alert that he issued. Hammond and Detective Schnoor

interviewed defendant. Portions of the interrogation video were published to the jury. Defendant

admitted talking to Magdalena on the phone but maintained he never had sex with her.

¶ 32 The State rested its case in chief and the trial court denied defense counsel’s motion for a

directed verdict.

¶ 33 Thereafter, Kathleen Gahagan, a former forensic scientist, testified she processed the

victim’s car for fingerprints. She also found three pairs of sunglasses and a broken cellphone

screen.

¶ 34 Kamilah Bowie testified she and Magdalena were good friends. They met working at the

same telemarketing company and enjoyed socializing at parties. When Magdalena started dating

Juwan Spruill, Bowie and Magdalena spent less time socializing together. Magdalena spent a lot

of time with her boyfriend and even tattooed his name on her upper thigh.

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¶ 35 Defendant testified he met Magdalena in October 2001 when he visited Tamara Colon at

Union Health Service. Defendant described his relationship with Colon as physical and not

romantic. According to defendant, Magdalena asked if he had any friends with money and then

gave him two phone numbers to reach her. When Magdalena called him several weeks later to

follow up, he mentioned his friend Derrick Coleman.

¶ 36 On November 24, Magdalena called defendant at work and said she needed money to

move out of her parents’ apartment because they did not like her boyfriend. Defendant was

unable to talk with Magdalena at the time, so he told her to call back later. After work, defendant

played dominoes with Derrick Coleman. He mentioned Magdalena, but Coleman was not

interested in meeting her. After playing dominoes, defendant received a call on his cellphone

from Magdalena. She asked to borrow $900, but he told her no. When she called him again, he

agreed to give her $200 in exchange for sex. Later, Magdalena met defendant at his home, and

they had unprotected sex. Defendant paid Magdalena, who left in a hurry. That was the last time

he saw her. Defendant admitted he lied to police about not having sex with the victim and lied

about his friend, Coleman, talking on the phone to the victim. Defendant testified he lied to

police to get their attention off him because detectives told him he would get the death penalty if

he had sex with the victim.

¶ 37 After the defense rested, the State called former commander Wayne Wiberg and

Detective Hammond in rebuttal. They denied threatening defendant with the death penalty when

they questioned him.

¶ 38 During closing argument, the State commented without objection that Magdalena’s

boyfriend’s DNA did not appear in her forensic swabs and “the only person’s DNA who

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appeared in the vaginal and rectal swabs, excluding [Magdalena] herself, was the defendant’s.”

The jury subsequently found defendant guilty.

¶ 39 Defendant filed a motion for a new trial arguing the trial court erred in denying his

suppression motion and restricting his examination of witnesses. The trial court denied the

motion after a hearing. Defendant also filed a motion for additional DNA testing of the victim’s

vaginal and anal swabs because several alleles were not attributed to the primary male profile

that Cellmark obtained from those swabs. The trial court denied the motion after noting

defendant failed to show any testing methods that were not previously available. This appeal

follows.

¶ 40 ANALYSIS

¶ 41 Defendant contends his custodial statements should be suppressed because he was

arrested based on an investigative alert and not a warrant. He relies on People v. Bass,

, ¶ 71, aff’d in part, vacated in part,

, where a divided

panel of this court held an arrest is unconstitutional when based on an investigative alert issued

by the Chicago Police Department. The State argues that the portion of the Bass decision

defendant relies upon has been vacated.

¶ 42 In reviewing a trial court’s ruling on a motion to suppress, we will uphold the court’s

findings of historical fact and credibility determinations unless they are against the manifest

weight of the evidence. People v. Bass,

. Where, as here, there are no

meaningful facts in dispute and the issue involves merely the application of law to undisputed

facts, our standard of review is de novo. People v. Butorac,

;

People v. Love,

(2002).

¶ 43 Investigative Alerts

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¶ 44 In his reply brief, defendant acknowledges our supreme court vacated the portion of Bass

addressing the constitutionality of investigative alerts; the supreme court resolved the case on

narrow grounds and did “not express any opinion on limited lockstep analysis, its application to

warrants or investigatory alerts, or the constitutionality of investigative alerts.” People v. Bass,

. Defendant maintains the appellate court majority in Bass correctly

decided that warrantless arrests based solely on investigative alerts are unconstitutional even

when supported by probable cause.

¶ 45 Defendant’s reliance on the appellate court majority opinion in Bass is misplaced because

the portion of the opinion analyzing the constitutionality of investigative alerts was vacated by

our supreme court. Bass,

. Defendant correctly notes Hyland, Jones, and

Starks expressed concerns about the use of investigative alerts instead of arrest warrants.

However, those decisions merely noted the existence of an issue without deciding it.

¶ 46 Before and after our supreme court’s decision in Bass, this court has consistently rejected

the constitutional challenge that defendant raises here. People v. Little,

(citing People v. Braswell,

; People v. Simmons,

; People v. Bahena,

;

and People v. Thornton,

). We agree with this line of cases

that hold that a constitutionally permissible arrest can be made pursuant to an investigative alert

as long as the alert is supported by probable cause. Simmons,

(quoting Braswell,

).

¶ 47 Here, Detective Hammond’s use of an investigative alert to arrest defendant did not

violate the Illinois Constitution because it was based on probable cause. When detectives

questioned defendant in the investigation of the murder, he denied ever having sex with the

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victim. However, vaginal and anal swabs taken from the victim were compared to the DNA

standard obtained from defendant, and they matched with a random chance ratio of 1 in 2.8

quintillion unrelated Black individuals. Defendant’s DNA was on both the vaginal and rectal

swabs. Further investigation showed although defendant initially denied owning a cellphone,

records showed several calls were made between the victim’s cellphone and a phone possessed

by defendant at the time of the victim’s murder. Based on the evidence uncovered by detectives

in their investigation, including defendant’s denials he had sex with the victim and the match of

defendant’s DNA to the DNA sample attributed to the offender, police had probable cause to

arrest defendant when they did, and thus, the arrest pursuant to the investigative alert based on

probable cause is valid. See Simmons,

(the police had probable

cause to arrest the defendant based on an investigative alert); see also Thornton,

(probable cause supported the defendant’s arrest incident to an investigative

alert). Accordingly, we affirm the trial court’s order denying defendant’s motion to suppress

custodial statements.

¶ 48 Ineffective Assistance of Trial Counsel

¶ 49 Defendant next contends trial counsel was ineffective for failing to seek the dismissal of

the aggravated criminal sexual assault charge on the grounds that the limitations period for

aggravated criminal sexual assault had expired when he was charged in 2008 for the November

2001 aggravated criminal sexual assault. Claims of ineffective assistance of counsel are

governed by the two-part analysis set forth by the Supreme Court in Strickland v. Washington,

(1984). People v. Patterson,

, ¶ 81.

¶ 50 To prevail, a defendant must demonstrate (1) counsel’s performance was objectively

unreasonable and (2) a “reasonable probability that, but for counsel’s unprofessional errors, the

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result of the proceeding would have been different.” (Internal quotation marks omitted.) Id.

(quoting Strickland,

). Because a defendant must satisfy both parts of the

Strickland analysis to prevail, we need not reach the issue of prejudice if we find that counsel’s

performance was not deficient. People v. Ramirez,

(citing

People v. Coleman,

(1998)). Also, it is elementary that “[a]n attorney’s

performance will not be deemed ineffective for failing to file a futile motion.” People v. Stewart,

(2006). “Defense counsel is not required to make losing motions or

objections in order to provide effective legal assistance.” People v. Moore,

; People v. Mercado,

(2009). That is the case here because

we find the limitations issue raised by defendant has no merit.

¶ 51 When the offense was committed in November 2001, the applicable statute of limitations

for aggravated criminal sexual assault was three years. Defendant therefore argues the statute of

limitations for the aggravated criminal sexual assault charge against him expired in November

2004, three years after the offense was committed. Because he was not charged with aggravated

criminal sexual assault until 2008, defendant claims he was prejudiced when counsel failed to

seek dismissal of the charge.

¶ 52 The State concedes that in November 2001 when the offense was committed, the

applicable limitations period to file aggravated criminal sexual assault charges was three years.

However, the State claims that the applicable limitations period was extended by the legislature

in July 2004, before the expiration of the original 3-year limitations period. Therefore, the State

concludes that defendant is subject to the extended limitations period.

¶ 53 At the time the offense was committed in this case, section 3-5, also known as the

general limitations statute, provided that charges for aggravated criminal sexual assault were

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required to be brought within three years after their commission, except as extended under

section 3-6. See 720 ILCS 5/3-5(b) (West 2000). At that time, section 3-6, also known as the

extended limitations statute, provided in relevant part that a prosecution for aggravated criminal

sexual assault could be “commenced within 10 years of the commission of the offense if the

victim reported the offense to law enforcement authorities within 2 years after the commission of

the offense.” See 720 ILCS 5/3-6(i) (West 2000).

¶ 54 In 2004, by amending the general limitations statute, the legislature effectively

eliminated the reporting requirement in the extended limitations statute in criminal sexual assault

cases where the victim was murdered during the offense or within two years after the offense.

This amendment became effective July 29, 2004, which was four months before the expiration of

the original limitations period in this case. The amendment provides that a prosecution may be

commenced at any time for “any offense involving sexual conduct or sexual penetration *** in

which the DNA profile of the offender is obtained and entered into a DNA database within 10

years after the commission of the offense and the identity of the offender is unknown after a

diligent investigation.” See 720 ILCS 5/3-5(a)(2) (West 2004) (P.A. 93-834) (eff. July 29, 2004).

The legislature expressly stated the amendment applies to circumstances where either “the victim

is murdered during the course of the offense or within 2 years after the commission of the

offense.” See

¶ 55 In this case, it is undisputed that the DNA of the offender was obtained from samples in

the rape kit. The DNA profile of the then-unknown offender was uploaded to the CODIS

database in 2002. It is further undisputed that the identity of the offender was unknown in 2002

when the DNA was submitted to the database and the police investigation had not yet identified a

suspect. The State argues that the requirements of the statute to extend the limitations period

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were therefore present in this case because: (1) the victim was murdered; (2) the offender was

unknown when the DNA was submitted; and (3) the DNA of the unknown offender was entered

into the CODIS database within ten years of the offense.

¶ 56 Defendant argues police acquired in June 2004 a lab report showing a DNA match

between his DNA and the DNA sample of the unknown offender taken from the victim.

Defendant claims his identity became known in June 2004, before the effective date of the

amended statute in July 2004, therefore the requirement of the amended statute that “the identity

of the offender is unknown after a diligent investigation” was not met because as defendant

states in his reply brief, “Here, the 2004 amendment applied to circumstances where a [sic] DNA

was obtained and uploaded and the offender’s identity is still unknown through diligent

investigation on or after the effective date of July 29, 2004. 720 ILCS 5/3-5(a)(2).”

¶ 57 Defendant maintains the limitations period should be given a prospective application to

address only the identification of offenders who are unknown after July 2004. However, we

reject defendant’s argument as contrary to the law in Illinois because statutory amendments

extending limitations periods are considered procedural changes which are applied retroactively

to cases where defendant had not acquired the right to dismissal before the effective date of the

amendment. “Whether an amendment may be deemed retroactive depends upon whether it

relates to substantive rights, or whether it merely affects the remedy or matter of

procedure.” Dworak v. Tempel,

(1959) (citing Orlicki v. McCarthy,

(1954)). Generally, amendments relating to substantive rights must be applied prospectively.

However, amendments that merely affect the remedy or a matter of procedure are generally

applied retroactively. Becharas v. Cummings,

(1997) (citing

Orlicki, 4 Ill. 2d at 347–48). Statutes of limitations have been historically classified as procedural

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in character and amendments to them have been applied retroactively.

(citing Orlicki,

).

¶ 58 By definition, a retroactive law is a “legislative act that looks backward or contemplates

the past, affecting acts or facts that existed before the act came into effect.” Black’s Law

Dictionary (11th ed. 2019). When we apply the amendment to section 3-5 retroactively as

required by law, we look to the facts of the case as they existed in November 2001. In November

2001, the offender was unknown, the victim was killed, and the unknown offender’s DNA was

entered into the CODIS database within ten years of the offense. We conclude the requirements

of the amended statute were met.

¶ 59 Defendant argues that to apply an extended statute of limitations to his case would be an

unjust application of ex post facto laws. However, it is well-settled that a defendant is subject to

any extensions of a limitations period enacted by the legislature before the running of the

original limitations period. People v. Stone,

(2007). The legislature

“can extend the period of limitations as to criminal offenses which occurred prior to the effective

date of the change without violating the constitutional prohibition against ex post facto laws” if

the original limitations period has not expired, which is the case here.

(quoting People v.

Anderson,

(1973)). In this case, the amendment was made effective on July

29, 2004, before the original limitations period for charging aggravated criminal sexual assault in

this case expired on November 25, 2004.

¶ 60 In People v. Anderson,

(1973), our supreme court found that a

statutory amendment extending a statute of limitations was intended to apply to all cases, except

where a defendant had become entitled to discharge prior to the effective date. “[A] legislative

body can extend the period of limitations as to criminal offenses which occurred prior to the

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effective date of the change without violating the constitutional prohibition against ex post facto

laws, so long as the extended period does not apply to any case in which the accused has

acquired, as of the effective date of the change, a right to acquittal through the running of the

original statute.”

Here, the amendment to the general limitations statute became effective in

July 2004. At that time, defendant had not acquired a right to dismissal based on the running of

the original 3-year limitations period. Accordingly, the amendment applied retroactively to the

aggravated criminal sexual assault charge in this case and does not constitute an ex post facto

law.

¶ 61 Defendant argues the statute of limitations, as it existed when the offense was committed,

expired in November 2004 and the prosecution did not plead a basis to extend that period and

was therefore defective. Defendant contends trial counsel was ineffective for failing to seek the

dismissal of the defective aggravated criminal sexual assault charge. Even assuming trial counsel

had filed a successful pretrial motion to dismiss the aggravated criminal sexual assault charge

based on the State’s failure to plead any exceptions to the statute of limitations in the indictment,

the remedy is the dismissal of the charge and not an acquittal. People v. Gray,

(2009). The State could then amend the aggravated criminal sexual assault charge with

any necessary allegations. Id.; accord People v. Frazier,

(the

State would have refiled the charges). The outcome would not have changed. Accordingly,

defendant’s claim of ineffective assistance of counsel fails. See People v. Cray,

(1991) (the State's failure to include tolling or extending information in the indictment is a

technical error and allows for reindictment).

¶ 62 The plain language of the amendment reflects the legislature’s response to circumstances

where, as here, the victim was murdered during the commission of the aggravated criminal

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sexual assault, and the amendment set forth conditions that “the DNA profile of the offender is

obtained and entered into a DNA database within 10 years after the commission of the offense

and the identity of the offender is unknown after a diligent investigation.” See Pub. Act 93-834,

§ 5 (eff. July 29, 2004) (amending 720 ILCS 5/3-5(a)).

¶ 63 Under these circumstances, counsel’s performance is not deficient for failing to pursue a

futile motion. Stewart,

. Counsel is not required to make losing motions or

objections to provide effective legal assistance. See Moore,

;

Mercado,

. Because defendant’s statute of limitations argument has no

merit, his claim that he received ineffective assistance of trial counsel necessarily fails.

¶ 64 Confrontation Clause

¶ 65 Defendant also contends he was deprived of the opportunity to mount a meaningful

defense where the trial court sustained the State’s objections to defense counsel asking

defendant’s girlfriend whether she ever saw defendant with a gun and the medical examiner

whether a sexual assault had occurred. He argues the cumulative effect of these errors denied

him a fair trial. We disagree.

¶ 66 A defendant has a constitutional right to confront the witnesses against him. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This includes the right to present a defense. People

v. Hayes,

(2004) (citing People v. Manion,

(1977)). Even

so, a defendant’s rights under the confrontation clause are not absolute. People v. Johnson,

. The confrontation clause guarantees an opportunity for effective

cross-examination but “not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” (Internal quotations omitted.)

(citing People v. Jones,

(1993) (quoting Delaware v. Fensterer,

(1985)). A trial court has

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broad discretion in refusing evidence as irrelevant if it is uncertain or remote in time. Hayes, 385

Ill. App. 3d at 583. We review a trial court’s limitation of cross-examination for an abuse of

discretion. Johnson,

.

¶ 67 Wanda Hale testified she and defendant were seeing each other in 2001. She had moved

to Alabama and kept in touch with defendant. She later returned to Chicago and was living with

defendant in 2008 when he was arrested.

¶ 68 The trial court sustained the State’s objection when defense counsel asked defendant’s

girlfriend on cross-examination whether she ever saw defendant with a gun. During a sidebar, the

trial court explained, “whether the defendant had a gun in front of the woman he lived with that

has no bearing and is immaterial to the issue of whether he had a gun with the victim on the date

in question.” Critically, as the State points out, defense counsel did not ask defendant’s girlfriend

whether she saw defendant with a gun “around the time of the shooting.” Any testimony from

defendant’s girlfriend about defendant’s possession of a gun would be uncertain, remote, and

thus irrelevant to the offenses at issue. See Hayes,

(proffered testimony

about a gun that a witness wanted to sell two months before the shooting was both uncertain and

remote to shed light on who brought the gun on the date of the offenses). Accordingly, we cannot

say the trial court abused its discretion in sustaining the State’s relevancy objection.

¶ 69 The trial court also sustained the State’s objection when defense counsel asked Dr.

Arunkumar on cross-examination, “Can you say within a medical degree of certainty that a

sexual assault occurred based upon the condition of the vagina?” The doctor testified on redirect

examination the absence of external injuries to the victim’s genitalia does not eliminate the

possibility of a nonconsensual encounter. According to the doctor, “It just means that there were

no injuries in the vaginal area. One cannot make a determination of rape based on the presence or

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absence of injuries.” An expert may offer an opinion on an ultimate issue so long as that opinion

is not couched as a legal conclusion. Brettman v. Virgil Cook & Son, Inc.,

. Defense counsel’s question called for a legal conclusion from the doctor about

whether the victim was sexually assaulted and invited speculation about the absence of injuries.

The doctor’s testimony in that regard would shed no light on the possibility of a nonconsensual

encounter. Accordingly, we cannot say the trial court abused its discretion in sustaining the

State’s objection to defense counsel’s question, nor can we say the trial court denied defendant a

fair trial.

¶ 70 Prosecution’s Closing Argument

¶ 71 Nonetheless, defendant maintains he was denied a fair trial when the prosecution made

improper comments during closing arguments. He claims the prosecution falsely told the jury

“there’s only one set of DNA inside [the victim’s] vagina, only one set of DNA inside [the

victim’s] rectum, and it’s not her boyfriend, it’s not—it’s not the real killer who she must have

been going to see, it’s the defendant’s DNA.” He acknowledges his failure to make a

contemporaneous objection and asks this court to review the issue under the plain error rule.

Before doing so, we must consider whether the prosecutor’s comments were reversible error.

People v. Gonzalez,

(2008); People v. Ali,

.

¶ 72 The prosecution has broad leeway in making closing arguments so long as they are based

on the evidence or reasonable inferences drawn from the evidence. Gonzalez,

. Challenges to the prosecution’s comments during closing arguments must be considered in

view of the entire closing arguments.

We will not reverse a jury’s verdict based on improper

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comments during closing arguments unless they substantially prejudiced defendant and

constituted a material factor in his conviction.

¶ 73 During closing argument, the State commented without objection that Magdalena’s

boyfriend’s DNA did not appear in her forensic swabs and “the only person’s DNA who

appeared in the vaginal and rectal swabs, excluding [Magdalena] herself, was the defendant’s.”

The State also commented that the absence of semen on the victim’s underwear, which was

pulled around her ankles, suggested the DNA recovered from swabs of her vagina and anus

originated from the killer. The State further noted defendant claimed he had consensual,

unprotected sex with the victim, and defense counsel also argued defendant had consensual sex

with the victim. Although defendant finds significance in the presence of several alleles that

were not attributed to the primary male profile that Cellmark obtained from swabs of the victim’s

vagina and anus, the State’s comments were based on the evidence adduced at trial and

reasonable inferences from that evidence. See Gonzalez,

(the prosecutor’s

remarks were properly supported by the evidence and reasonable inferences drawn therefrom). In

view of the entire closing arguments, we find no error in the prosecution’s comments; any

possible error was not substantially prejudicial and did not constitute a material factor in

defendant’s conviction.

¶ 74 CONCLUSION

¶ 75 Accordingly, we affirm defendant’s convictions and sentence for the murder and

aggravated criminal sexual assault of Magdalena Idzikowska.

¶ 76 Affirmed.

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