FIRST DISTRICT THIRD DIVISION November 30, 2022

No. 1-20-0162

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 13613 ) STEVEN DIXON, ) Honorable ) Peggy Chiampas, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant Steven Dixon appeals the trial court’s first stage dismissal of his pro se

postconviction petition. He contends his appellate counsel was ineffective for failing to argue on

direct appeal that the trial court erred in admitting expert testimony regarding bloodstain patterns

without a sufficient foundation.

¶2 On October 13, 1991, 16-year-old Tiffany Lindsey was found beaten and stabbed to

death inside her apartment located at 47th Street and Drexel Boulevard in Chicago. Defendant

admitted he was with Lindsey that morning and told police an unknown individual entered the

apartment and attacked them. No charges were filed in 1991 because DNA analysis was not

available at that time. The tests conducted then were only for the presence of human blood.

Following new DNA testing in 2009, defendant was arrested and charged with Lindsey’s

murder. In April 2015, a jury found defendant guilty of first degree murder, and the trial court No. 1-20-0162

subsequently sentenced defendant to a term of 40 years in prison. We outline the evidence

presented at defendant’s trial as necessary for our disposition of this appeal. A full discussion of

the evidence presented at defendant’s trial was set forth in People v. Dixon,

.

¶3 In 1991, Lindsey was living in her own apartment with her one-year-old son Kendall. On

October 11, 1991, Lindsey threw a party at her apartment for friends, including defendant,

defendant’s sister Candice Hogans, defendant’s girlfriend Tameko Brown, and Tiffany

Henderson Williams. Williams stayed at the party until around 3 or 4 a.m. on October 12. On the

morning of October 13, 1991, Hogans saw defendant at their family home. Defendant looked

shocked and had injuries on his chest and stomach. He told her that “someone came at him and

[Lindsey]” and that someone should check on Lindsey. Hogans called Williams and Brown.

Williams went to Lindsey’s apartment with her sister and found Lindsey’s back door was not

closed or locked, which was unusual. She entered the apartment and saw Lindsey’s son covered

in blood and then found Lindsey’s body. Williams described Lindsey’s face as “beat up really

bad,” and Lindsey was covered; there was “a sheet wrapped from her waist like to her neck.”

Williams’s sister tried to find a pulse but was unsuccessful. They exited the apartment with

Kendall and told someone to call the police. Brown arrived at Lindsey’s building after the police

had arrived. Both women identified a pair of underwear discovered in Lindsey’s living room as

belonging to defendant.

¶4 The police investigator testified that there were no signs of forced entry at Lindsey’s

apartment. Several items were recovered near Lindsey’s body: a Phillips head screwdriver, a

padlock, two blue knife handles without the blades, a knife blade, a Newport cigarette case, a

bottle of Hennessey cognac, and a can of “Old English” malt liquor. The investigator also

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recovered a washrag from the floor near the kitchen sink and a second opened can of “Old

English” from the kitchen table. Defendant’s clothing was recovered at the hospital.

¶5 Lieutenant Scott DeDore met with defendant at Mercy Hospital. The lieutenant observed

scratches on defendant’s face. He informed defendant of his Miranda rights and defendant

agreed to speak with him. See Miranda v. Arizona,

(1966).

“Defendant told the lieutenant that he was sleeping on the floor of

Lindsey’s apartment while Lindsey was sleeping on the couch. He woke up

because ‘he heard screams and he felt he was being cut.’ He ‘jumped’ up, got

dressed as he had only been wearing his pants, and fled the apartment. ***

Defendant estimated this happened at approximately 7 a.m. When the lieutenant

asked defendant if he called police or tried to help Lindsey, defendant responded

that he was in shock and worried about himself. Lieutenant DeDore described

defendant’s demeanor as ‘very calm.’ Defendant did not provide a description of

the person who cut him. Defendant did not ask about Lindsey’s condition.”

Dixon,

, ¶ 17.

¶6 A medical examiner testified about Lindsey’s 1991 autopsy report, which disclosed

multiple blunt and sharp force injuries to her face, head, and neck, as well as a beaten body. A

handle-less knife blade was protruding from Lindsey’s neck from left to right. The knife blade

severed Lindsey’s carotid artery. Lindsey also had a displaced skull fracture on her right temple,

which broke through the skull and bruised her brain. Her fingernails, clothing, and blood were

collected as evidence. The medical examiner estimated that she would have stayed in motion for

a matter of seconds up to possibly a minute or two after the neck wound was inflicted. A

toxicology report indicated there was no evidence of drugs or alcohol in Lindsey’s system. A

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police investigator found three teeth on the carpet next to Lindsey’s body. Her hands were placed

in bags to preserve any evidence under her fingernails.

¶7 In 2009, Detective Patrick Smith was assigned to investigate Lindsey’s murder as part of

his work in the cold case unit. He was aware that some of the evidence had been submitted to

Orchid Cellmark laboratory (Cellmark) for DNA testing. After he received the results from the

DNA testing, Detective Smith attempted to locate defendant and subsequently collected a blood

sample from defendant in October 2010.

¶8 Cellmark conducted the testing on the evidence with DNA samples from Lindsey,

defendant, and Kendall. The DNA results disclosed the following:

“Samples of blood stains on living room carpet, window shade and the

washrag: Single source DNA consistent with Lindsey

Padlock: Mixed profile, the major contributor profile was Lindsey,

Kendall could not be excluded as to the minor profile. No conclusion could be

reached as to defendant as a contributor

Cigarette box: Mixed profile consistent with mixture of Lindsey and

Kendall. Defendant was excluded as a DNA contributor

Screwdriver shaft: Mixed profile consistent with mixture of Lindsey and

Kendall. Defendant was excluded as a DNA contributor

Screwdriver handle: DNA profile consistent with Lindsey

Knife blade from living room floor: DNA profile consistent with Lindsey

Knife handle #1: DNA profile consistent with Lindsey

Knife handle #1 (nonblood area): Major profile consistent with Lindsey,

minor consistent with Kendall. Defendant was excluded as DNA contributor

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Knife handle #2 (nonblood area): Partial DNA profile was mixture of

defendant and Lindsey, Kendall could not be excluded.

Fingernail clippings from Lindsey: Mixed profile, major profile consistent

with Lindsey and partial profile consistent with defendant. Kendall was excluded.

Blood crusts from Lindsey’s fingernails: Partial predominant profile

consistent with defendant

Cuttings from defendant’s sweatshirt hood, inside sweatshirt waistband,

left jacket sleeve, right jacket sleeve, and inside front panel of jacket: DNA

profile consistent with defendant

Cuttings from back of left leg of defendant’s jeans: Mixed profile, major

full profile consistent with Lindsey, minor partial from unknown individual. No

conclusion could be drawn as to defendant, Kendall was excluded

Cuttings from right front leg of defendant’s jeans: Single source DNA

profile consistent with Lindsey

Cutting from defendant’s right shoe: Single source DNA profile consistent

with Lindsey

Swab of defendant’s right hand: Mixed profile, major profile originated from

Lindsey and defendant could not be excluded as minor contributor. Kendall was

excluded.” Id. ¶ 23.

¶9 Investigator Thomas Merchie performed the blood spatter analysis on defendant’s

clothing in early 2011. During voir dire, he testified that he was trained in blood pattern analysis

with over 220 hours of specific training during his 24-year career as a crime scene investigator

with the Illinois State Police and that he had previously testified as an expert in blood pattern

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analysis 10 to 12 times. He admitted that he did not have a science degree and had not published

any papers or articles in the field. The court tendered Investigator Merchie as an expert in blood

pattern stain analysis, and no objection was made on the record.

¶ 10 During his testimony, he opined that the blood drops on defendant’s right shoe came

from the toe area and traveled toward the rear of the shoe. This opinion was based on the tail of

the blood drop moving toward the back of the shoe. Investigator Merchie testified that

defendant’s right shoe had over 100 bloodstains, but none of the stains were on the back of the

shoe. Based on the size, number, and pattern of the bloodstains, he opined that the source of the

blood was in front of where the shoe was pointed. The stains were not left by incidental contact,

and the size of the bloodstains indicated a blunt force trauma. In comparison, defendant’s left

shoe had fewer bloodstains, approximately 20 to 30 stains, and they were located on the top and

the right side of the shoe.

¶ 11 Investigator Merchie also analyzed defendant’s jeans for blood spatter. He found more

stains on the right leg than the left, and the majority of the stains were below the knee. He

testified that the absorbency of the cloth distorted the stains at times, because the spread in the

absorbed fabric caused some of the stains to not show direction. Investigator Merchie opined

that, because the stains on both the shoes and the pants were similar in size and shape, it

indicated that both items were in the same or approximately the same location when the blood

struck them. He opined that the shoe was mostly likely on the floor and within two to three feet

from the source of the blood.

¶ 12 Investigator Merchie conceded that his report did not include some of the details

disclosed in his testimony. Specifically, in his report, he stated that the shoes and pants were

“within several feet” of the blood source. He also did not state in his report that the left shoe was

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facing the blood source, that the right shoe and pants were closer to the blood source, or that the

right pant leg and right shoe were together at the time of impact. He did not perform

mathematical calculations to determine angles of the blood pattern because it was not necessary

for his analysis. He admitted that his opinion was partially shaped by the crime scene photos.

¶ 13 Defendant testified on his own behalf. He grew up in the same neighborhood as Lindsey

and had known her most of his life. In October 1991, defendant was 16 years old and lived with

his family. He had been in a relationship with Brown for two years, and she was pregnant with

his child. He also had a sexual relationship with Lindsey that had been going on for two years.

Brown and Lindsey were best friends, but defendant stated that Brown did not know about his

relationship with Lindsey.

¶ 14 Lindsey moved to a different neighborhood, near 47th Street and Drexel Avenue, in the

summer of 1991. Defendant estimated that he had visited Lindsey at her apartment five or six

times. The apartment had two entrances, a front door and a back door. He used the back door

because he did not like the guys in her neighborhood who would be in the front of Lindsey’s

apartment. According to defendant, Lindsey supported herself by selling drugs, and he and

Lindsey sold drugs together.

¶ 15 Lindsey had a party at her apartment the weekend of her murder, which defendant

attended with a friend. Lindsey had thrown the party because the guys in her neighborhood did

not like that she was selling drugs and the party was to show them “that she had people who had

her back.” Defendant left the party at some point with his friend and went to sell drugs for an

hour or two to make money. He later took the bus back to Lindsey’s apartment. When he got to

Lindsey’s apartment, it was late, and the party was over. He entered through the back door. He

7 No. 1-20-0162

had consensual sex with Lindsey on the floor while her child was asleep on the couch.

Afterwards, he slept on the floor of the apartment, and Lindsey slept on the couch with her child.

¶ 16 Defendant woke up after hearing “loud screams.” He could not tell where the screams

were coming from. Once he started to wake up, he “felt a sharp object coming at [him].” The

sharp object was coming from someone else in the apartment. He felt the object on his face and

his abdomen. He could not see who was attacking him. Defendant described the room as “semi”

dark with no lights on and the sun was not up. Defendant wrestled with the person, but he still

could not see the person’s face or tell whether the person was black or white. He assumed the

attacker was a man. He could not see the sharp object the attacker was holding. He could not say

how long the wrestling lasted; he stated that it felt like hours but probably lasted “a matter of

minutes.” The wrestling ended when defendant was hit in the head with an unknown object.

Defendant testified that this strike caused him to become “semi conscious.” After he was hit in

the head, he did not see where the attacker went, and he did not see where Lindsey was.

¶ 17 When defendant became more conscious, he saw Lindsey on the floor. He went over to

Lindsey and noticed she had something in her neck. Defendant tried to pull the knife out of her

neck, but the handle fell off. He testified that Lindsey was still breathing. He stated that, “It was

like she had tried to say something, and blood had spurted, and I was, like, man, I’m fixin’ to get

some help.” Defendant then grabbed his shoes, shirt, and jacket, and ran out of the apartment.

His clothes had been close to him on the floor, but he forgot to take his underwear. Defendant

exited through the back door. He did not close Lindsey’s back door and burglar gate.

¶ 18 Once home, he told his family to have someone go check on Lindsey “because somebody

had ran in the house on us.” His mother then took him to Mercy Hospital. While at the hospital,

defendant remembered speaking to the police, but he did not remember the police asking him for

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a description of the attacker. He denied killing Lindsey. He denied having any sort of fight or

disagreement with Lindsey.

¶ 19 On cross-examination, defendant testified that the party at Lindsey’s apartment was on

Saturday, October 12, 1991. He stated a few of his friends knew he had been having consensual

sex with Lindsey, but his girlfriend Brown did not know. He did not know if Williams knew

about his relationship with Lindsey, but it was possible she knew.

¶ 20 When defendant was wrestling the attacker, they were not face to face but were “in close

proximity.” His hands were on this person’s body, but he did not know what part of the body.

Defendant testified that it was a violent struggle and they moved around the apartment. He did

not know if the person ever fell down, but it was possible that they pushed each other. During the

struggle, he never felt or saw where Lindsey or her child were located. He did not hear Lindsey

or her child during the struggle. The attacker was able to cut him while they fought. Defendant

did not know if he was hit in the head by the person he was fighting. He was struck on the right

side in the back of his head. Defendant testified that he was unconscious after being struck, but

he did not know how long he was out. It was so dark in the apartment that he could not see the

whites of the attacker’s eyes. When he woke up after being struck, the apartment was lighter, and

he was able to see. As he left, defendant did not knock on any doors in the building for help or

ask anyone to call the police or an ambulance. When he was at the hospital, he was “sure” he

told the police he was hit in the head. He also told the police he struggled with the attacker in the

apartment.

¶ 21 In rebuttal, the State recalled three witnesses. Lieutenant DeDore testified that defendant

did not tell him that defendant had been struck in the head, that defendant had struggled with the

attacker, that defendant had been knocked unconscious, or that he observed a knife protruding

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from Lindsey’s neck. Defendant did tell Lieutenant DeDore that the attack happened around 7

a.m. An evidence technician testified that, when he photographed defendant’s injuries at Mercy

Hospital, he had no information that defendant had been struck in the head. If he had been told

about this injury, he would have photographed defendant’s head.

¶ 22 Williams testified that Lindsey’s party occurred on Friday, October 11, 1991, and the

purpose was not to let the local drug dealers know that Lindsey was selling drugs and she was

not intimidated by them. Lindsey did not have a party on Saturday, October 12, 1991. Williams

was “real close” with Lindsey, and they shared the details of their romantic lives together.

Lindsey did not have a sexual relationship with defendant, and Williams was not aware of a

secret affair between defendant and Lindsey. Williams admitted it was “possible” that there were

things Lindsey did not tell her.

¶ 23 Following closing arguments, the jury found defendant guilty of first degree murder.

Defendant filed a motion for a new trial, which the trial court denied. The trial court

subsequently sentenced defendant to 40 years in prison.

¶ 24 On direct appeal, defendant argued that (1) the State failed to prove him guilty beyond a

reasonable doubt, (2) the trial court erred in denying his motion to suppress during trial regarding

the warrantless seizure of his clothing from the hospital, (3) he was denied a fair trial when the

prosecution introduced irrelevant and prejudicial photographs of Lindsey’s son and the

prosecutor made improper comments during closing arguments, and (4) his mittimus should be

corrected to reflect a single conviction for first degree murder. Dixon,

-

U, ¶ 3. This court affirmed defendant’s conviction and sentence, with a correction to the

mittimus to indicate one conviction for first degree murder. Id. ¶¶ 90-91.

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¶ 25 In October 2019, defendant filed his pro se postconviction petition, alleging that (1) his

appellate counsel was ineffective for failing to raise a claim that the testimony of Investigator

Merchie lacked a foundation to qualify as an expert and that bloodstain pattern analysis was

unreliable and (2) his sentence violated the United States Constitution and the proportionate

penalties clause of the Illinois Constitution based on the holding of Miller v. Alabama,

(2012). In support of his claims related to Investigator Merchie, defendant attached a portion

of an unpublished report, titled “Strengthening Forensic Science in the United States: A Path

Forward,” which was submitted to the United States Department of Justice in 2009. Defendant’s

exhibit was a six-page excerpt of this report discussing the reliability of bloodstain analysis.

¶ 26 In December 2019, the trial court dismissed defendant’s petition at the first stage and

found defendant’s claims were frivolous and patently without merit. Regarding the claims of

ineffective assistance of appellate counsel, the court found that Investigator Merchie was

properly certified as an expert, bloodstain pattern analysis is generally accepted by the scientific

community, and Investigator Merchie testified about his methodology in support of his

testimony. The court further concluded that defendant’s petition “merely rehashes his counsel’s

arguments during cross-examination” and his arguments “merely go to the weight of Merchie’s

testimony, not the foundation.”

¶ 27 This appeal followed.

¶ 28 The Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 through 122-

7 (West 2018)) provides a tool by which those under criminal sentence in this state can assert

that their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.

§ 122-1(a); People v. Coleman,

(1998). Postconviction relief is limited to constitutional deprivations that occurred at

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the original trial. Coleman,

. “A proceeding brought under the [Post-Conviction

Act] is not an appeal of a defendant’s underlying judgment. Rather, it is a collateral attack on the

judgment.” People v. Evans,

(1999). “The purpose of [a postconviction]

proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that

were not, and could not have been, determined on direct appeal.” People v. Barrow,

(2001). Where a petition attaches a constitutional label to allegations that do not raise a

constitutional issue, dismissal is required. See People v. Flores,

(1992)

(the supreme court observed that the defendant’s claim of ineffective assistance of

postconviction counsel lacked a constitutional basis because the right to counsel in

postconviction proceedings is statutory, not constitutional).

¶ 29 At the first stage, the circuit court must independently review the postconviction petition

within 90 days of its filing and determine whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). “A postconviction petition is frivolous or

patently without merit when its allegations, taken as true and liberally construed, fail to present

the gist of a constitutional claim.” People v. Harris,

(2007). A petition is

frivolous or patently without merit only if it has no arguable basis in law or fact. People v.

Hodges,

(2009). A petition lacks an arguable basis in law or fact if it is “based

on an indisputably meritless legal theory,” such as one that is “completely contradicted by the

record,” or “a fanciful factual allegation,” including “those which are fantastic or delusional.”

.

¶ 30 If the court determines that the petition is either frivolous or patently without merit, the

court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2018). At the

dismissal stage of a postconviction proceeding, the trial court is concerned merely with

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determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity

that would necessitate relief under the Post-Conviction Act. Coleman,

. The

circuit court is not permitted to engage in any fact-finding or credibility determinations.

. At this stage of the proceedings, we are to accept well-pleaded factual allegations of a

postconviction petition and its supporting evidence as true unless they are positively rebutted by

the record of the original trial proceedings. People v. Sanders,

. We

disregard any legal conclusions unsupported by allegations of fact. People v. Wilborn,

.

¶ 31 On appeal, defendant argues that he presented a meritorious claim of ineffective

assistance of appellate counsel for failing to assert on direct appeal that the trial court erred in

admitting Investigator Merchie’s testimony. Specifically, defendant contends that Investigator

Merchie’s testimony lacked a proper foundation for his expert testimony because he admitted

that he did not conduct any measurements or calculations in forming his opinion as to the angle

at which the blood made contact with defendant’s pants and shoes. Defendant asserts that this

claim of ineffective assistance of appellate counsel has an arguable basis in both law and fact.

Defendant has not pursued the other claims presented in his petition on appeal and has therefore

forfeited those claims. See People v. Munson,

(2002) (concluding that the

petitioner abandoned several postconviction claims by failing to raise them on appeal).

¶ 32 A claim of ineffective assistance of counsel on appeal is cognizable under the Post-

Conviction Act. People v. Mack,

(1995). Claims of ineffective assistance of

counsel are resolved under the standard set forth in Strickland v. Washington,

(1984). In Strickland, the United States Supreme Court delineated a two-part test to use when

evaluating whether a defendant was denied the effective assistance of counsel in violation of the

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sixth amendment. Under Strickland, a defendant must demonstrate that counsel’s performance

was deficient and that such deficient performance substantially prejudiced defendant.

.

“Claims of ineffective assistance of appellate counsel are measured against the same standard as

those dealing with ineffective assistance of trial counsel.” People v. Childress,

(2000). At the first stage of proceedings, a petition alleging ineffective assistance of counsel

may not be summarily dismissed if (1) it is arguable that counsel’s performance fell below an

objective standard of reasonableness and (2) it is arguable that the defendant was prejudiced.

People v. Cathey,

. Unless the underlying issue is meritorious, petitioner

suffered no prejudice from counsel’s failure to raise it on direct appeal. Childress,

. Further, it is essential that a postconviction claim of ineffective assistance of appellate

counsel set forth an error of constitutional dimension that occurred during the trial, which

counsel failed to raise on direct appeal. People v. Cole,

.

¶ 33 Defendant does not challenge Investigator Merchie’s qualifications to testify as an expert

witness in the field of bloodstain pattern analysis. Rather, he focuses on whether Investigator

Merchie sufficiently disclosed the scientific basis for his conclusions to establish the reliability

of the underlying information. According to defendant, Investigator Merchie’s testimony was

“riddled with scientific uncertainty,” which calls the foundation for his opinion into doubt

because he used “vague terms,” such as “indicated,” “most likely,” “good chance,” and

“approximate.” He further asserts that Investigator Merchie’s failure to use any measurements or

calculations in reaching his conclusions amounted to him asking the jury to “take his word for

it.” Defendant points to Investigator Merchie’s testimony that (1) the sole of defendant’s right

shoe was “most likely on the floor within two to three feet” of the source of the blood, (2) the

bloodstains on defendant’s right shoe “indicated” that the shoe was “basically pointed towards

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the source” of the blood, and (3) there was a “good chance” that defendant’s shoes and pants

“were in the same approximate location when the blood struck both items.” Defendant also

asserts that Investigator Merchie testified to multiple findings that were not included in his

written report, such as his testimony that defendant’s shoes were within two to three feet of the

source while his report stated the shoes were likely within several feet of the source, that his

report did not state that defendant’s shoes and pants were likely together at the time of impact,

and that his report omitted the right shoe and pant leg were closer to the source.

¶ 34 Expert testimony is admissible if the proffered witness is qualified as an expert, a

foundation is laid as to the bases for the expert’s opinions, and the testimony would assist the

trier of fact in understanding the evidence. People v. Simmons,

.

The proponent of the testimony must lay an adequate foundation for the testimony by showing

that the facts or data relied upon by the expert are of a type reasonably relied on by experts in

that particular field.

A scientific methodology need not be universally accepted or even

accepted by a majority of experts in the field; rather, it is sufficient if the expert’s opinion was

based on the methodology reasonably relied upon by experts in that field. People v. Comier,

. “ ‘If a proper foundation has been laid, the expert’s testimony is

admissible, but the weight to be assigned to that testimony is for the jury to determine.’ ”

Simmons,

(quoting Fronabarger v. Burns,

(2008)).

¶ 35 “To be qualified as an expert in a particular field, a person ‘need only have knowledge

and experience beyond that of an average citizen.’ ” People v. McNeal,

(quoting Thompson v. Gordon,

(2006)). An expert may

become an expert through practical experience alone.

“ ‘Formal academic training or specific

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degrees are not required to qualify a person as an expert; practical experience in a field may

serve just as well to qualify him.’ ” People v. Tondini,

(quoting

Lee v. Chicago Transit Authority,

(1992)). A witness may be qualified to

testify as an expert “by knowledge, skill, experience, training, or education.” Ill. R. Evid. 702

(eff. Jan. 1, 2011). Expert testimony for bloodstain analysis has been recognized in Illinois for

several decades. See People v. Knox,

(1984) (finding a sufficient

foundation for a police officer’s expertise in bloodstain analysis based on his testimony as to the

source of his training, the techniques he had learned, and their application in the field).

¶ 36 Moreover, “[t]he expert may testify in terms of opinion or inference and give reasons

therefor without first testifying to the underlying facts or data, unless the court requires

otherwise. The expert may in any event be required to disclose the underlying facts or data on

cross-examination.” Ill. R. Evid. 705 (eff. Jan. 1, 2011); see People v. Simpson,

; People v. Williams,

(2010) (“If of a type reasonably

relied upon by experts in the particular field in forming opinions or inferences upon the subject,

the facts or data need not be admissible in evidence ***.” (Internal quotation marks omitted.)).

“ ‘[A]ny weakness in the basis of an expert’s opinion goes to the weight of the testimony; it

should not affect its admissibility if the facts, data, or opinions are reasonably relied upon by

experts in the relevant field.’ ” Comier,

(quoting People v. Lind,

(1999)). Under Rule 705, “the burden is placed upon the adverse party

during cross-examination to elicit facts underlying the expert opinion.” Williams,

.

¶ 37 The record explicitly details Investigator Merchie’s training and his knowledge of

bloodstain pattern analysis. At trial, Investigator Merchie was qualified as an expert in bloodstain

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pattern analysis. He testified that he worked as a crime scene investigator with the Illinois State

Police for 24 years with over 2000 hours of specialized training. He had over 220 hours of

specific training in bloodstain pattern analysis, including multiple week-long training classes

beginning in 1990. He had been qualified as an expert in bloodstain pattern analysis 10 to 12

times. Investigator Merchie did not have a degree in the sciences, but that was not common for

experts in this field.

¶ 38 In addition to his extensive training, Investigator Merchie detailed the methodology of

bloodstain pattern analysis and testified that these methods and principles are generally accepted

in the scientific community. He explained that bloodstain pattern analysis is “the study of static

aftermath of a bloodletting event.” He used the blood as it landed and dried for his analysis,

including on clothing and in photos. The purpose of this analysis is to gain information by

“examining, documenting, and observing the stains and what we use as the size, shape, locations,

the distribution, the numbers, and the pattern types of these stains to help us make a

determination in our analysis.” This information can help determine the position of the victim,

whether the victim was moved, the sequence of events, and whether anything was moved.

Bloodstain pattern analysis uses mathematics, physics, and biology to produce results.

Bloodstains form on “two dimensional surfaces, and from observations of their size, shape, and

distribution, conclusions can be drawn as to the mechanism that gave rise to their formation.” He

explained how blood drops fall according to the law of physics until it strikes a surface and,

when it impacts on surface at less than a 90 degree angle, then the bloodstain will have an

“elongated or elliptical appearance,” and the trail of the drop will indicate the direction of travel.

He used a magnifying glass with a scale in it to measure the length and width of the bloodstain.

This testimony about his extensive training and the methodology used to analyze bloodstains

17 No. 1-20-0162

formed the foundation for Investigator Merchie’s qualifications as an expert witness.

¶ 39 Defendant has not alleged that Investigator Merchie’s methods and principles were not

generally accepted in the scientific community, nor that Investigator Merchie lacks training in

this field of expertise. Instead, he bases his argument on Investigator Merchie’s conclusions

regarding the crime scene in this case. However, defendant’s claims relate to the weight to be

afforded Investigator Merchie’s testimony, not the foundation for qualification as an expert

witness. See Comier,

(“[A]ny weakness in the basis of an

expert’s opinion goes to the weight of the testimony ***.” (Internal quotation marks omitted.)).

As we explain further below, defendant’s challenge to the weight of the expert’s opinion does

not amount to a constitutional infirmity.

¶ 40 Following his testimony about his training and methodology as foundation for his expert

opinion, Investigator Merchie detailed his analysis of the bloodstain pattern from this case. In

2011, he was directed to review evidence from Lindsey’s 1991 homicide, including a belt, a pair

of shoes, a pair of pants, a sweatshirt, and a jacket. Investigator Merchie detailed his analysis of

the shoes, beginning with the right shoe. He found over 100 individual stains on the toe, the top

of the vamp, and the eyelet area of the right shoe, which ranged in size from a submillimeter to

approximately six millimeters. He did not find sufficient bloodstains on the back of the shoe for

an analysis.

¶ 41 The information about the size, the pattern, and the number of bloodstains on the right

shoe “indicated that the source of the blood, of the liquid blood was extended someplace in front

of the shoe as the way the shoe pointed.” The source was “out straight from the toe area,” and

blood broke down into smaller stains as it came towards the shoe. “And that’s why on the toe

was the more rounded perpendicular, and on the top which is a horizontal surface and on the

18 No. 1-20-0162

sides which is a surface not facing that source the stains were more elongated showing that they

struck—that the direction was still pointed towards *** the toe.” In his opinion, these stains

could not have been left by incidental contact and were classified as impact splatter. This size of

bloodstains was typical to blunt force trauma of an object. He observed that there were fewer

stains on the left shoe compared to the right shoe, with approximately 20 to 30 stains at the most

on the entire shoe. He also noted that the stains were not “straight on the shoe” but were more

toward the right side of the shoe.

¶ 42 Investigator Merchie also detailed his analysis of the pants. He found many more stains

on the right leg than on the left leg, and the majority of the stains on both legs were from the cuff

to the knees. He noted that the absorbency of the cloth distorted the patterns and did not show

direction. Based on the number of stains, he opined that the right pant leg and the right shoe were

“closer to the source of the spatter” than the left pant leg and left shoe. The stains also indicated

that the right pant leg and right shoe were “in the same or approximately the same location”

when the blood struck both items. The toe of the right shoe was pointed toward the source of the

blood, with the sole most likely on the floor and within two to three feet from the source of the

blood.

¶ 43 On cross-examination, defense counsel thoroughly questioned Investigator Merchie

regarding his reports and methodology. He repeatedly questioned Investigator Merchie about his

lack of measurements and calculations. Investigator Merchie responded, “There w[ere] no

calculations to do.” He explained that, based on his training and education, he was trying to

determine direction and angle of impact.

¶ 44 Defendant’s petition, as framed, does not plead the denial of a substantial constitutional

claim. Stated another way, and accepting all of the factual allegations as true and disregarding

19 No. 1-20-0162

legal conclusions unsupported by fact, defendant’s petition amounts to nothing more than a

sufficiency of the evidence claim or reasonable doubt argument. Specifically, he does not dispute

that the methodology employed by Investigator Merchie was reasonably relied on by experts in

bloodstain pattern analysis. Rather, he argues that Investigator Merchie’s conclusions were

subjective and lacked scientific certainty. “Where the results of a scientific procedure or

methodology have been accepted by a court based on its reliability, the certainty of a qualified

expert regarding conclusions drawn through use of that procedure or methodology goes to the

weight of the testimony, not admissibility.” People v. Cole,

(1988).

“ ‘[T]he basis for a witness’ opinion generally does not affect his standing as an expert; such

matters go only to the weight of the evidence ***.’ ” Simmons,

(quoting Snelson v. Kamm,

(2003)). “And ‘the weight to be assigned to an

expert opinion is for the jury to determine in light of the expert’s credentials and the factual basis

of his opinion.”

(quoting Snelson,

). Further, arguments about the

persuasiveness of an expert’s conclusions go to weight, not admissibility. McNeal,

(citing Snelson,

).

¶ 45 As detailed above, Investigator Merchie thoroughly set forth his training in bloodstain

analysis, beginning in 1990 with over 200 hours of instruction and training. He also explained

the methodology employed in his analysis to determine the location of items in relation to the

blood source based on the direction and size of the bloodstains. Defendant has not pled any

allegations to challenge or rebut the foundation for Investigator Merchie’s testimony that the

methods he used were reasonably relied on by experts in the field. Defendant’s argument does

not raise any challenges to this testimony; rather he focuses on a few points related to this

specific case. These claims go to the weight to be given Investigator Merchie’s testimony, not

20 No. 1-20-0162

the foundation. Because his argument relates to the weight afforded to Investigator Merchie’s

conclusions, defendant is in essence challenging the sufficiency of the evidence at trial.

However, it is well established that sufficiency of the State’s evidence is not a proper issue for a

postconviction proceeding. People v. Evans,

, ¶ 30. It has long been

established that reasonable doubt of a defendant’s guilt is not a proper issue for a postconviction

proceeding. People v. Frank,

(1971). Succinctly stated, it is not the purpose of

the Post-Conviction Act to redetermine guilt or innocence. People v. Eddmonds,

(1991). Again, the purpose of a postconviction proceeding is to allow inquiry into

constitutional issues relating to the conviction or sentence that were not, and could not have

been, determined on direct appeal. Barrow,

. Defendant unsuccessfully

challenged the sufficiency of the evidence on direct appeal. See Dixon,

, ¶¶ 50-59. That claim has already been rejected by this court and cannot be relitigated

again.

¶ 46 Moreover, trial counsel effectively cross-examined Investigator Merchie on these points,

which allowed the jury to evaluate the testimony, and it was up to the jury to determine the

weight given. The jury, as the trier of fact, was responsible for making determinations regarding

the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences

to be drawn from the evidence. People v. Wright,

. Thus, any weaknesses in

Investigator Merchie’s expert opinion went to the weight of the testimony and did not affect its

admissibility. See Comier,

, ¶ 83.

¶ 47 We also find defendant’s reliance on People v. Safford,

(2009), and

People v. Jones,

, to be misplaced. Jones was vacated following the

death of the defendant pursuant to a supervisory order entered by the Illinois Supreme Court and

21 No. 1-20-0162

is no longer good law. See Simmons,

(“We cannot consider

Jones, as that judgment has no effect.”). Defendant’s argument in his reply brief that this court

should continue to follow the reasoning in Jones is not well taken. “The effect of a vacated order

is that of a void order.” Kelch v. Watson,

(1992). As the court in

Simmons concluded, this court cannot “consider Jones, as that judgment has no effect.”

Simmons,

.

¶ 48 In Safford, a latent print examiner testified that the defendant’s fingerprint matched one

found near the scene of a shooting, but he did not explain how he arrived at that conclusion.

Safford,

. The examiner explained that his practice was to look at three

levels of detail on each fingerprint during his analysis in order to come up with points of

comparison, but he does not take notes when he finds points of comparison, nor does he record

how or why he arrives at his conclusions. He only notes whether a latent print matches a known

print, and he never testified to any number of points of comparison that he found between the

latent print and the defendant’s print.

. The defendant argued on appeal that the trial

court erred in allowing the examiner to testify as to his conclusion that the latent print recovered

belonged to the defendant without ever testifying to the evidentiary basis for his opinion.

. The majority of the reviewing court concluded that the lack of evidentiary foundation for

the expert’s testimony prevented the defense from conducting a meaningful cross-examination.

. Based on this conclusion, the Safford court held that this testimony failed to

disclose an adequate foundation for the examiner’s opinion, rendering his testimony

inadmissible.

. “If the foundation for the expert’s opinion is not subject to scrutiny,

the jury may ascribe an ‘aura of reliability and trustworthiness’ to the expert’s conclusion.”

.

22 No. 1-20-0162

¶ 49 In his dissent, Justice Wolfson found that the expert’s testimony was sufficient to place

his conclusions before the jury.

(Wolfson, J., dissenting). He further noted that the

examiner disclosed the methods he used in comparing the prints and his conclusion and that the

lack of testimony concerning the points of comparison went to the weight of the examiner’s

opinions, not the admissibility.

He stated that the lack of specificity in the examiner’s

testimony was a point of “vigorous” cross-examination and that it was up to the jury to decide

whether to accept the testimony.

.

¶ 50 The majority opinion in Safford has since been heavily criticized by multiple appellate

panels. See People v. Robinson,

(observing that it could “find no

published case following Safford’s reasoning”); People v. Wilson,

(finding that Safford’s “ultimate holding—namely, that to establish an adequate

foundation for an expert opinion, the expert must testify to the factual basis for the opinion on

direct examination—runs counter to Wilson [v. Clark,

(1981)], Williams, and

Rule 705, all of which stand for the basic proposition that the basis of an expert’s opinion is a

matter for cross-examination”); Simmons,

(“And looking to

Safford itself, we conclude that its analysis was flawed. While the court in Safford cited the

principle that the information on which an expert bases his opinion must be reliable [citation], it

did not correctly analyze that principle.”); People v. Negron,

(finding Safford to be “an outlier case”).

¶ 51 We similarly decline to follow Safford and find it distinguishable from the facts in this

case. Investigator Merchie not only set forth his methodology, but he also described the basis for

his opinions. During his testimony, he referred to photographs of the shoes and pants to explain

his opinions and his reasoning. Specifically, he explained his conclusion that the right pant leg

23 No. 1-20-0162

and shoe were closer to the blood source based on the number of bloodstains. He further

explained that the sole of the shoes was likely on the floor, based on the placement of the

bloodstains. He testified that this methodology was generally accepted within the scientific

community. Unlike in Safford, Investigator Merchie fully detailed the basis for his opinions and

described his findings to the jury. Any weaknesses in his opinion went to its weight, not the

admissibility. See Safford,

(Wolfson, J., dissenting). Defendant does not

cite any reasoned authority for his position on appeal apart from Safford and Jones, which this

court has refused to follow for the reasons stated above. Again, we find that an adequate

foundation was presented for Investigator Merchie’s opinions and that defendant’s claims relate

to the weight afforded by the jury to those opinions.

¶ 52 Defendant also attached a six-page excerpt of an unpublished report titled “Strengthening

Forensic Science in the United States: A Path Forward,” which was submitted to the United

States Department of Justice in 2009, discussing the reliability of bloodstain analysis. See Nat’l

Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009),

https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf [https://perma.cc/6JNH-6M3R]. While we

acknowledge this report’s inclusion, it does not alter the foundation the State set forth for

Investigator Merchie’s testimony. Moreover, this report does not diminish the fact that blood

pattern analysis is widely accepted in the scientific community; it only notes some might say that

bloodstain pattern analysis is more subjective than scientific. Significantly, the report does not

support defendant’s argument that a sufficient foundation was not set forth for Investigator

Merchie’s expert testimony.

¶ 53 Since defendant’s contentions go to the weight of Investigator Merchie’s testimony, he

failed to present an arguable claim that his appellate counsel’s decision not to raise this claim

24 No. 1-20-0162

was objectively unreasonable. Defendant’s suggestion that Investigator Merchie’s expert

testimony lacked foundation has been clearly rebutted by the record. See Sanders,

. As discussed, a sufficient foundation was set forth to support Investigator

Merchie’s expert opinion. He explicitly testified that his methodology was a type reasonably

relied on by experts in bloodstain pattern analysis. Defendant has never alleged that bloodstain

pattern analysis is not accepted by the scientific community, which he would have had to plead

to state a constitutional claim. Since the underlying issue lacks merit, defendant cannot establish

that he arguably suffered any prejudice from counsel’s failure to raise it on direct appeal. See

Childress,

. Accordingly, defendant’s claim of ineffective assistance of

appellate counsel fails, and his postconviction petition was properly dismissed as frivolous and

patently without merit.

¶ 54 Even if defendant had raised a foundation claim, which we do not find, he has not shown

ineffective assistance of appellate counsel under Strickland because defendant cannot establish

that he was arguably prejudiced. As previously stated, under Strickland, a defendant must

demonstrate that counsel’s performance was deficient and that such deficient performance

substantially prejudiced defendant. Strickland,

. If a case may be disposed of on

the ground of lack of sufficient prejudice, that course should be taken, and the court need not

ever consider the quality of the attorney’s performance.

. In evaluating sufficient

prejudice, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

. “Strickland requires actual prejudice be shown, not mere speculation as to prejudice.”

People v. Bew,

(2008).

25 No. 1-20-0162

¶ 55 Defendant contends that Investigator Merchie’s testimony was “the linchpin of the

State’s case” because his opinion was the closest to direct evidence that supported the State’s

theory that defendant was the perpetrator. We disagree. The substantial DNA and circumstantial

evidence provided overwhelming evidence to support defendant’s conviction. Even if the

bloodstain pattern evidence were excluded, there was compelling evidence of defendant’s guilt.

Defendant’s DNA was found under Lindsey’s fingernails. Lindsey’s DNA was found on

defendant’s bloodstained pants and shoes. This evidence supported the State’s theory that

defendant kicked and beat Lindsey before stabbing her with a knife. And the horrendous beating

suffered by Lindsey was corroborated by the pathologist’s report. Additionally, one of the knife

handles contained a DNA mixture of defendant’s and Lindsey’s DNA.

¶ 56 Further, defendant’s own testimony demonstrates his consciousness of guilt. According

to defendant, an unknown assailant broke in and brutally murdered Lindsey, but defendant

suffered only minor injuries. However, police found no evidence of forced entry at Lindsey’s

apartment. Defendant then left without seeking any help for Lindsey, went home, and suggested

someone check on Lindsey. When Williams went to Lindsey’s apartment, the back door was left

open, which was unusual because Lindsey always locked her door. Defendant also stated that he

had a secret sexual relationship with Lindsey that was unknown to Lindsey’s friends and at the

same time defendant’s girlfriend was eight months pregnant with his child. Defendant’s account

changed from what he initially told police after Lindsey’s murder to his trial testimony. Notably,

he failed to include details in his initial statement immediately following Lindsey’s death that he

later recounted in his trial testimony. First, defendant testified that he struggled with an unknown

assailant in Lindsey’s apartment and that he was struck in the head by the assailant and lost

consciousness. However, Lieutenant DeDore testified in rebuttal that defendant never mentioned

26 No. 1-20-0162

a struggle with the assailant or being struck in the head during the hospital interview.

Investigator Brasic also stated in rebuttal that he would have photographed defendant’s head if a

head injury had been reported. Next, Lieutenant DeDore testified that defendant did not tell him

that defendant touched and attempted to remove the knife in Lindsey’s neck.

¶ 57 While defendant alleged that Lindsey sold drugs to support herself, no illegal substances

were found in her system. The trial evidence rebutted defendant’s statement and, in fact, offered

a motive for him to kill Lindsey. Thus, even without the bloodstain analysis, the State

overwhelmingly established defendant’s guilt beyond a reasonable doubt. Accordingly,

defendant has not shown it was arguable that he was prejudiced by his appellate counsel’s failure

to challenge the admission of Investigator Merchie’s testimony. See Cathey,

. His claim of ineffective assistance of appellate counsel is without merit.

¶ 58 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook

County.

¶ 59 Affirmed.

27 No. 1-20-0162

People v. Dixon,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 13613; the Hon. Peggy Chiampas, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Katie Anderson, State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Matthew Connors, and Hayden Dinges, Assistant Appellee: State’s Attorneys, of counsel), for the People.

28