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                              Appellate Court                            Date: 2019.07.17
                                                                         13:18:13 -05'00'



                  People v. King, 2018 IL App (2d) 151112



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           SHADWICK R. KING, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-1112



Filed             August 21, 2018



Decision Under    Appeal from the Circuit Court of Kane County, No. 14-CF-1229; the
Review            Hon. James C. Hallock, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Gabriel A. Fuentes and Clifford W. Berlow, of Jenner & Block LLP,
Appeal            of Chicago, for appellant.

                  Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
                  Delfino, David J. Robinson, and Victoria E. Jozef, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                  Justices Jorgensen and Schostok concurred in the judgment and
                  opinion.
                                             OPINION

¶1        Defendant, Shadwick R. King, appeals his conviction of first degree murder (720 ILCS
     5/9-1(a)(1) (West 2014)) and sentence of 30 years’ incarceration, following a jury trial in the
     circuit court of Kane County. Because defendant was prejudiced by the improper introduction
     of a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new
     trial.

¶2                                     I. BACKGROUND
¶3       The common law record, trial transcripts, photographs, and videos in evidence show the
     following. We will supplement the facts as necessary in the analysis section of the opinion.

¶4                               A. The Body on the Railroad Tracks
¶5        On July 6, 2014, between 6:02 and 6:05 a.m., an eastbound Union Pacific freight train
     passed through Geneva Station in Geneva, Illinois. Locomotive engineer Devin Satchell saw
     no one on or near the railroad tracks. The tracks were surrounded by heavy brush, although
     there were access points at breaks in the brush.
¶6        An eastbound Metra passenger train traveling on track 1 approached Geneva Station at
     6:36 and left it at 6:37 a.m. The train was under the Route 25 overpass when student engineer
     Alex Perez informed engineer Robert Soto Jr. of a “body, or something” on track 2. Perez
     began blowing the train’s horn. Soto saw a woman lying awkwardly on the track. She had a
     blank stare and was not moving.
¶7        At approximately 6:39 a.m., the train came to an emergency stop, and crew members Dan
     Mongelli and Joel Cavender stepped out to investigate. Cavender observed that the woman’s
     shirt was halfway up her back and that she did not move or breathe. Mongelli saw the woman’s
     shirt lift, and he informed his dispatcher, “I believe this broad’s still breathing.” However,
     when he got within a foot of the woman and squatted down to look at her, he saw that she was
     not breathing. He determined that her shirt had lifted in the breeze. Mongelli noticed that her
     neck was “laid” across the track “in a perfect manner” so that an oncoming train would strike
     it. He also noticed a purple color around her mouth, brush (described by another witness as
     dried leaves and a blade of grass) in her hair, a cell phone nearby, and “spotting” on her leg.
     This “spotting” was later determined by paramedic Gary Grandgeorge and deputy coroner Lisa
     Gilbert, who also responded to the scene, to be “lividity.” Mongelli realized at the scene that
     the woman was deceased. Mongelli and Cavender waited for the police to arrive.
¶8        Geneva police sergeant George Carbray arrived on the scene at approximately 6:55 a.m.
     According to Carbray, the body was lying on its left side, facing west. The head and neck were
     positioned over the northern rail. A pink iPhone was placed against a couple of railroad spikes
     on the opposite side of the rail from the body. It would later be determined that there were no
     fingerprints on the phone.
¶9        The body was clad in a gray top, black running shorts with no spandex liner, and black and
     pink running shoes. The shorts were loose, and there were no underpants beneath them. A
     dried leaf was on the lower abdomen, just above the pubic area. A Maidenform underwire bra
     was pulled up, half exposing the breasts.



                                                -2-
¶ 10       Carbray found no pulse. He believed that the woman had been dead for some time, but he
       wanted a medical opinion, so he called for paramedics. They attached a heart monitor to the
       body but found no heartbeat. Grandgeorge testified that the monitor detected “pulseless
       electrical activity,” which can carry on “for some time” after a person dies. The paramedics did
       not make resuscitation efforts because it appeared that the woman had been deceased for “quite
       some time.” EMT Michael Antenore noted that the woman’s skin was a “cyanotic purple”
       color and that the pupils were “fixed and dilated.” Antenore also noted that the paramedics had
       mud on their shoes, due to an overnight rain, but that the woman’s running shoes were clean.
¶ 11       The woman was later identified as 32-year-old Army reservist Kathleen King, defendant’s
       wife. Their home was located 1200 to 1300 feet from where she was found. People who were
       in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see anyone
       running or see any cars in nearby Esping Park. Esping Park was just north of the tracks and had
       walking paths providing access to the tracks. Defendant’s neighbors did not see him or his
       SUV out between 6 and 6:30 a.m.
¶ 12       Defendant’s and Kathleen’s 10-year-old son, Brandon, testified that Kathleen ran in
       Esping Park. According to Brandon, when running, Kathleen customarily wore an armband
       into which she tucked her iPhone. She also wore either glasses or contact lenses and earbuds.
       When her body was found, she was not wearing contacts or glasses. Her contacts, armband,
       and earbuds were found in her home during a later search.

¶ 13                                    B. The Fourth of July Party
¶ 14       At approximately 6 p.m. on July 5, 2014, Kathleen, defendant, and their three boys, then
       ages nine, seven, and five, arrived at the home of her father, Kurt Kuester, in Elk Grove Village
       for a Fourth of July celebration. During the evening, defendant drank three or four beers, and
       Kathleen drank a bottle and a half of wine. According to Kathleen’s younger sister Kristine,
       Kathleen demonstrated a maneuver to render someone unconscious that she had learned in the
       Army. At about 10:30 or 10:45 p.m., Kathleen and defendant left the party. The boys stayed
       overnight with Kurt. According to Kristine, Kathleen did not have any injuries or bruises that
       night.
¶ 15       The next morning, Kristine learned from the Geneva police that Kathleen had died. At
       approximately 10:40 a.m. on July 6, Kristine telephoned Kurt and told him that Kathleen was
       dead. In a second phone call that morning, Kristine told Kurt not to allow defendant to have the
       boys.
¶ 16       Kurt testified that he frantically started screaming, “What are you talking about?” when
       Kristine broke the news to him of Kathleen’s death. At about that time, defendant was
       approaching the front door, which Kurt thought was unusual, because defendant “never”
       picked up the children. Kurt asked defendant, “Where is Kathleen?” Defendant replied, “We
       were fighting and she went running at 6:30 to clear her head.” Kurt told defendant: “Kathleen
       is dead, Shad.” Defendant bent over and said: “I didn’t do anything. I didn’t do anything.”
       According to Kurt, defendant did not ask what had happened to Kathleen or where she was.

¶ 17                                C. Police Interviews of Defendant
¶ 18      Elk Grove Village police officers Angela Garza and Eric Perkins responded to a call at
       Kurt’s residence on July 6 at 11:44 a.m. Defendant told Garza that Kurt would not allow him to


                                                   -3-
       take his children because Kathleen was deceased. Defendant stated that he and Kathleen had an
       argument over her seeing a man whom she met in the military and that defendant told her to
       choose between the other man and him. Then, according to defendant, Kathleen went running
       by the river at 6:30 a.m. Defendant stated that he came to Kurt’s home to pick up the children,
       but that no one was home, so he drove to Kathleen’s grandmother’s house in Chicago. He
       arrived between 9 and 9:30 a.m., but no one was there, so he drove back to Kurt’s house.
       Defendant asked if Kathleen was okay. Garza and Perkins transported defendant to the Geneva
       police station. Garza testified that defendant was so upset and anxious that it was not safe for
       him to drive himself. According to Garza, 20 minutes into the ride, defendant asked how
       Kathleen had died, but the officers did not have those details.
¶ 19       At 1 p.m., Geneva police detectives Robert Pech and Brad Jerdee interviewed defendant.
       The video of the interview is in evidence. Defendant explained to the detectives that Kathleen
       was away in basic training from February 7 to June 14, 2014. Defendant took a leave of
       absence from his insurance job to take care of the children while Kathleen pursued her Army
       career. According to defendant, when Kathleen returned home, he learned of her relationship
       with a man he called “Keno,” whom she met in the military. Defendant stated that he
       mentioned divorce but, he said, Kathleen refused to consider it. Defendant also stated that he
       agreed that Kathleen could move out of state with the children to be with Keno as long as she
       agreed that defendant could have the boys during the summer. Defendant further stated that he
       told Tim Casey, Kristine’s fiancé, that he might miss their wedding because of marital
       problems.
¶ 20       Casey (Kristine’s husband at the time of trial) confirmed what defendant said that he had
       told him. Casey also testified that he had helped cover up Kathleen’s affair by lying to
       defendant about Kathleen’s whereabouts on one occasion.
¶ 21       Defendant told Detectives Pech and Jerdee that he and Kathleen went to a bar in Geneva
       after they left Kurt’s party the night of July 5. According to the bartender, she served defendant
       five bottles of Miller Lite and Kathleen four glasses of wine. A man named Chad joined the
       Kings and bought them each a shot. Chad testified that he did not see any bruises on Kathleen’s
       face.
¶ 22       Defendant told the detectives that he and Kathleen left the bar at approximately 1:45 a.m.
       and got home at about 2 a.m. Defendant was brushing his teeth while Kathleen was texting
       someone on her iPhone. When Kathleen put the phone down where defendant would be sure to
       see the message she had written, he saw that she was sending a romantic text to Keno.
¶ 23       The record shows that the man’s name was Billy Keogh. The record also shows that he and
       Kathleen had exchanged over 3000 text messages. In one message, Kathleen asked Keogh to
       marry her. Kristine was aware of her sister’s relationship with Keogh and had helped Kathleen
       keep it from defendant.
¶ 24       Defendant told the detectives that, when he saw Kathleen’s text to Keogh, he picked up her
       phone and texted Keogh to leave her alone. Defendant stated that he also texted Keogh that he
       was going to bed with Kathleen.
¶ 25       The record shows that 11 texts about defendant and Kathleen having sex were sent to
       Keogh from Kathleen’s phone between 4:18 and 4:57 a.m. The record also shows that, after
       defendant took Kathleen’s phone from her that morning, she used another device to
       communicate with Keogh.


                                                   -4-
¶ 26       According to defendant’s statement to the detectives, he and Kathleen stayed up until 5
       a.m. on July 6 talking about her desire to attend officers’ school. Defendant denied that he and
       Kathleen argued about Keogh. Throughout the interview, defendant expressed that he accepted
       that his wife was having an affair. Defendant stated that he went to bed and slept for about an
       hour and that Kathleen was also in the bed. According to defendant, Kathleen went running at
       about 6:30 a.m. Defendant said that she usually ran by the river. Defendant stated that Kathleen
       was wearing black and pink running shoes but that he could not remember what else she was
       wearing.
¶ 27       At times during the interview, defendant was tearful. He ventured that Kathleen must have
       been hit by a car. One of the detectives told him that Kathleen’s death was not accidental.
       Defendant repeatedly stated, sometimes indignantly, that he did not, and could not, have
       harmed her.
¶ 28       According to defendant, after Kathleen went running, he left the house to get donuts, as
       was his Sunday habit. At 9:30 a.m., he called and texted Kathleen to find out Kurt’s phone
       number so that he could pick up the boys. Defendant stated that he left the house at about 9:30
       a.m., waved to the neighbors, and went to Kurt’s house. No one was home, so he drove to
       Kathleen’s grandmother’s home in Chicago. No one was there, so he drove back to Kurt’s
       home.
¶ 29       One of the detectives asked defendant how he got a “fat” lip. Defendant rubbed the right
       side of his bottom lip but denied that his lip was “fat.” At trial, Pech testified that defendant’s
       right bottom lip was slightly swollen.
¶ 30       The detectives took defendant home, where he gave them permission to search and
       photograph his house. Pech described a messy house, with leaf fragments on the kitchen floor.
       Police again searched defendant’s home on July 8, 2014, pursuant to a search warrant. Among
       the items collected was dried vegetation matter throughout the house and on a still-wet
       comforter that was in the washing machine. At trial, the State did not produce evidence
       forensically linking the vegetation found in the house and the vegetation that was found on
       Kathleen’s body. During the search, police also found earbuds and an armband into which a
       phone could be inserted. Police also noted the presence of assorted sports bras.
¶ 31       On July 8, 2014, Pech and Jerdee conducted a second videotaped interview with defendant,
       this time after Miranda warnings. Pech informed defendant that Kathleen died of asphyxiation.
       Throughout the interview, the detectives presented defendant with various scenarios in which
       he accidentally killed Kathleen. Defendant repeatedly denied doing anything, or even being
       capable of harming Kathleen. Defendant denied knowing what happened to her. When Pech
       falsely informed defendant that his fingerprints were found on Kathleen’s neck, defendant
       denied knowing how they got there. He suggested that he might have touched her.

¶ 32                               D. The Charge and Pretrial Motions
¶ 33      On July 11, 2014, the Kane County state’s attorney charged defendant by information with
       two counts of first degree murder related to Kathleen’s death. Following a preliminary hearing
       and a finding of probable cause, the case was assigned to Judge James C. Hallock. On
       September 15, 2014, the information was superseded by a two-count indictment for first
       degree murder.



                                                    -5-
¶ 34       On July 14, 2014, the State moved pursuant to a federal statute (18 U.S.C. § 2703(d)
       (2012)) for an order for the disclosure of registration records pertaining to defendant’s and
       Kathleen’s cell phones for July 5 and 6, 2014. Defendant made an oral motion, which the court
       denied, to declare the statute unconstitutional on the ground that the fourth amendment
       requires a warrant rather than a court order. On July 17, 2014, the court granted the State’s
       motion to obtain the cell phone records.
¶ 35       On July 18, 2014, defendant moved for substitution of judge as of right (725 ILCS
       5/114-5(a) (West 2014)). In a written order dated September 3, 2014, the court, identified only
       as “Judge 42,” denied the motion on the ground that Judge Hallock had made a substantive
       ruling in denying defendant’s motion to declare the federal statute unconstitutional, making the
       motion for substitution of judge untimely. The matter then remained in Judge Hallock’s
       courtroom.
¶ 36       On January 15, 2015, the State filed its motion in limine No. 1, seeking leave to call Mark
       Safarik as an expert witness in crime scene analysis. The motion stated that Safarik was a
       “crime scene and behavioral analyst” for a private company known as Forensic Behavioral
       Services. The motion further stated that Safarik had 23 years’ experience with the FBI,
       including as a supervisor with the Behavioral Analysis Unit (BAU). Safarik had been, in the
       vernacular, an FBI profiler. The substance of Safarik’s proposed testimony was contained in a
       written report that he authored, which apparently was submitted separately to the trial court but
       is not in the record.
¶ 37       The record shows that Safarik worked as a police officer, handling violent crimes for seven
       years before joining the FBI. While in the FBI, Safarik attended training courses in various
       disciplines, including forensic pathology, death investigation, and criminal behavior.
¶ 38       The court granted the motion in limine over defendant’s objection. In ruling that Safarik’s
       testimony would be admissible if Safarik were qualified as an expert at trial, the court noted
       that Safarik’s opinions would have to be rendered “pursuant to his qualifications” and that he
       would not be permitted to identify “the defendant as the killer by direct testimony.” Nor, the
       court ruled, would Safarik be allowed to give profiling testimony. The court found that
       Safarik’s “specialized knowledge” was “reliable” and “relevant” and that the general subject
       matter of his testimony would assist the jury to understand the evidence and to determine the
       facts. Specifically, the court found that the positioning of Kathleen’s body on the railroad
       tracks was “a matter beyond the common experience of most jurors and is [a] subject of
       difficult comprehension.”

¶ 39                                        E. The Trial
¶ 40       The jury trial commenced on March 2, 2015. In addition to the evidence detailed above, the
       following testimony was presented.

¶ 41                                      1. Dr. Mitra Kalelkar
¶ 42       The State called forensic pathologist Dr. Mitra Kalelkar. Dr. Kalelkar performed an
       autopsy on Kathleen on July 7, 2014. Dr. Kalelkar noted the clothing on the body, as described
       above. Dr. Kalelkar also noted that the heel of one sock was twisted around the ankle and that
       one of the bra straps was twisted. Dr. Kalelkar testified to the presence of antemortem (before
       death), postmortem (after death), and perimortem (at the time of death) abrasions and bruises,


                                                   -6-
       some of which were inconsistent with Kathleen having fallen or collapsed on the train tracks.
       Specifically, she testified that an antemortem bruise under the chin was consistent with
       someone’s hands having been around Kathleen’s neck or Kathleen having tried to pry
       someone’s hands off her neck. Dr. Kalelkar opined that an antemortem bruise on the upper left
       arm was consistent with someone grabbing her. Dr. Kalelkar noted a red mark on the neck that
       did not contribute to Kathleen’s death and a trail of saliva mixed with stomach contents on the
       cheek. According to Dr. Kalelkar, the stomach contained a minimal amount of brown fluid,
       and a toxicology report showed the presence of caffeine. At the time of the autopsy, Kathleen’s
       blood alcohol concentration was 0.15.
¶ 43        Dr. Kalelkar filled in her autopsy protocol with “asphyxiation” as the cause of death. In her
       trial testimony, she expanded on that to include manual strangulation. She testified that she
       found petechial hemorrhages in the eyes and epiglottis mucosa1 and that she also found focal
       hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.

¶ 44                                          2. Mark Safarik
¶ 45        Safarik, a former police officer and FBI profiler with no medical training, testified, over
       objection, that the lividity on Kathleen’s body was inconsistent with her having died on the
       train tracks. Over objection, Safarik testified to his opinion that the cause of death was manual
       strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as
       listed by Dr. Kalelkar, and then eliminated all but manual strangulation as fitting the facts.
       Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was
       killed in her residence, and that someone close to her, not a stranger, staged the scene. Safarik’s
       testimony will be examined in more detail in the analysis section of the opinion.

¶ 46                                    3. Dr. Larry William Blum
¶ 47       Following the denial of his motion for a directed verdict, defendant presented his case. He
       called Dr. Blum, a forensic pathologist, who testified that Kathleen died of a cardiac event
       brought on by stress, alcohol intoxication,2 lack of sleep, and caffeine consumption. Dr. Blum
       opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail,
       and expired. According to Dr. Blum, her bruises and lividity were consistent with that
       scenario. Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes
       and focal hemorrhages at the base of the tongue, but he opined that those findings, standing
       alone, did not support a conclusion that Kathleen was manually strangled. Dr. Blum also
       testified that Dr. Kalelkar’s autopsy report was incomplete because “asphyxiation” as a cause
       of death was nonspecific.
¶ 48       Defendant’s testimony essentially mirrored the statements that he gave to the police.
¶ 49       In rebuttal, Dr. Kalelkar testified that her autopsy findings led her to conclude that
       Kathleen died of asphyxiation due to pressure applied to her neck. She testified that Dr. Blum’s
       diagnosis of a cardiac event ignored evidence of strangulation. Kristine testified in rebuttal that
       her family’s medical history could not account for Kathleen’s premature demise.

          1
             The epiglottis is cartilage that projects upward behind the tongue. Webster’s Third New
       International Dictionary 763 (1993).
           2
             Dr. Blum testified that Kathleen’s blood alcohol concentration was 0.26 at its peak.

                                                    -7-
¶ 50      During the prosecution’s rebuttal closing argument, the prosecutor argued that it was
       “okay” for the jurors to have questions about the evidence and “still convict the defendant.”
¶ 51      The jury found defendant guilty of first degree murder, and, after denying his posttrial
       motion, the court sentenced defendant to 30 years’ incarceration. This timely appeal followed.

¶ 52                                          II. ANALYSIS
¶ 53       Defendant raises six arguments: (1) the court erred in denying his motion for substitution
       of judge, (2) the court erred in admitting Safarik’s testimony, (3) the court erred in permitting
       Kathleen’s family to dwell on their suffering at her loss, (4) the prosecution improperly
       defined reasonable doubt in its closing argument, (5) defendant was not proved guilty beyond a
       reasonable doubt, and (6) the cumulative effect of the trial errors requires reversal.

¶ 54                              A. The Motion for Substitution of Judge
¶ 55       The day after the court granted the State’s motion for disclosure of defendant’s and
       Kathleen’s cellular telephone records, defendant filed a motion for substitution of judge as of
       right, pursuant to section 114-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
       5/114-5 (2014)). A defendant is entitled to an automatic substitution of his or her trial judge if
       he or she meets the following requirements: (1) the motion is made within 10 days after the
       case is assigned to the judge, (2) the motion names only one judge, unless the defendant is
       charged with a Class X felony, in which case he or she may name two judges, (3) the motion is
       in writing, and (4) the motion alleges that the judge is so prejudiced against the defendant that
       he or she cannot receive a fair trial. People v. Tate, 2016 IL App (1st) 140598, ¶ 13. Section
       114-5 also provides for naming two judges where the offense charged may be punished by
       death or life imprisonment. 725 ILCS 5/114-5(a) (West 2014). Additionally, the motion must
       be made before the judge makes a substantive ruling. Tate, 2016 IL App (1st) 140598, ¶ 13.
       Where a motion for substitution of judge is improperly denied, all of the court’s actions
       subsequent thereto are void. People v. Klein, 2015 IL App (3d) 130052, ¶ 79. We review
       de novo a ruling on a motion for substitution of judge as of right. In re D.M., 395 Ill. App. 3d
       972, 977 (2009).
¶ 56       Here, the question is whether Judge Hallock made a substantive ruling when he (1) denied
       defendant’s motion to declare the federal statute granting access to cellular records
       unconstitutional and (2) granted the State’s motion for access to those records. Defendant
       argues that Judge Hallock ruled merely on a discovery matter that was not substantive because
       it was collateral to the merits of the case. A ruling that does not go to the merits or relate to any
       issue of the crimes charged is not a substantive ruling. See People v. Ehrler, 114 Ill. App. 2d
       171, 178-79 (1969).
¶ 57       The federal statute on required disclosure of customer communications or records provides
       that a court order for disclosure of electronic communications shall issue “only if” the
       governmental entity seeking such disclosure offers “specific and articulable facts” showing
       that there are “reasonable grounds” to believe that the contents of the records sought are
       “relevant and material” to an ongoing criminal investigation. 18 U.S.C. § 2703(d) (2012). In its
       motion, the State alleged the following facts to show “reasonable grounds”: (1) Kathleen’s cell
       phone was found near her body, (2) Kathleen was not murdered where her body was found,
       (3) defendant had been in possession of Kathleen’s cell phone, (4) cadaver dogs alerted on the
       backseat of defendant’s car, and (5) defendant at all times had his own cell phone with him.

                                                     -8-
       The State argued that those facts supported its contention that the cell phone records were
       necessary to pinpoint the locations of defendant and Kathleen during the relevant time periods.
¶ 58       In considering whether the State presented “specific and articulable” facts supporting its
       request for the records, Judge Hallock necessarily considered aspects of the merits of the case.
       The State’s motion was not a routine motion for “court-ordered discovery,” pursuant to Illinois
       Supreme Court Rule 412 (eff. Mar. 1, 2001), as defendant maintains, but was brought pursuant
       to a federal statute limiting the disclosure of electronic communications to situations in which
       reasonable cause is shown. That showing depends upon the underlying facts of the case.
¶ 59       Defendant also argues that Judge Hallock’s constitutional ruling was not substantive
       because he ruled only on the procedural matter of whether a warrant, rather than a court order,
       was required. Defendant distinguishes People v. Wilfong, 17 Ill. 2d 373, 375 (1959), where a
       motion for substitution of judge was properly denied after the defendant unsuccessfully
       challenged the constitutionality of the statute under which he was indicted. Defendant in our
       case points out that he did not challenge the constitutionality of the statute under which he was
       charged, but brought a procedural challenge to the federal statute’s method of disclosure of
       electronic communications.
¶ 60       At oral argument, we granted the State’s motion for leave to cite Carpenter v. United
       States, 585 U.S. ___, 138 S. Ct. 2206 (2018), in which the United States Supreme Court held
       that a warrant is required before a governmental entity can seize electronic communications
       pursuant to 18 U.S.C. § 2703(d). We are not persuaded of Carpenter’s relevance.
       Nevertheless, we believe that the ruling in our case was substantive. It went to the State’s
       ability to acquire evidence to use in prosecuting defendant. Consequently, we hold that the
       court did not err in denying the motion for substitution of judge.

¶ 61                                        B. Reasonable Doubt
¶ 62        We next consider defendant’s argument that he was not proved guilty beyond a reasonable
       doubt. Because we determine that defendant is entitled to a new trial based upon an evidentiary
       error, to prevent the risk of double jeopardy, we must also consider this argument. See People
       v. Macon, 396 Ill. App. 3d 451, 458 (2009). When a defendant challenges the sufficiency of the
       evidence, the reviewing court must determine whether, viewing all of the evidence in the light
       most favorable to the State, any rational trier of fact could have found the essential elements of
       the crime beyond a reasonable doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005).
¶ 63        Defendant asserts that Dr. Kalelkar’s testimony, contradicted as it was by Dr. Blum, was
       insufficient to prove that Kathleen’s death was a homicide. The corpus delicti in a murder case
       consists of two essential elements: (1) the fact of death and (2) the fact that the death was
       caused by the criminal agency of some person. People v. Jones, 22 Ill. 2d 592, 595 (1961).
       Here, Dr. Kalelkar testified that Kathleen died as a result of asphyxiation due to manual
       strangulation. Dr. Blum disagreed, testifying that Kathleen’s death resulted from a cardiac
       event, that is, natural causes. When confronted with a “battle of the experts” (see People v.
       Smith, 253 Ill. App. 3d 443, 446-47 (1993) (classic battle of the experts is different experts
       examining roughly the same information and arriving at opposite conclusions)), it is for the
       trier of fact to evaluate each expert’s testimony and weigh its relative worth in context. People
       v. Sims, 374 Ill. App. 3d 231, 251 (2007).
¶ 64        Here, aside from contrasting the testimony of the two experts, defendant also maintains
       that Dr. Kalelkar did not complete her autopsy protocol with “any indication” of the cause of

                                                   -9-
       death, calling it only “asphyxiation.” That determination, defendant argues, is too equivocal to
       support a conclusion that the manner of death was homicide. Defendant relies on People v.
       Ehlert, 211 Ill. 2d 192 (2004), which also involved an opinion rendered by Dr. Kalelkar.
¶ 65       In Ehlert, the defendant was convicted of the first degree murder of her newborn child.
       Ehlert, 211 Ill. 2d at 194. The issue was whether the child was born alive. Ehlert, 211 Ill. 2d at
       194. Dr. Kalelkar performed the autopsy, found no unusual cause of death, and later told a
       police officer that she could not tell for sure whether the baby was born alive. Ehlert, 211 Ill.
       2d at 199. She left blank the space on the death certificate where she would normally fill in the
       manner of death and instructed the police to investigate further. Ehlert, 211 Ill. 2d at 199. After
       the police advised her of their investigation, which included witnesses’ statements, she
       concluded that the baby had been born alive. Ehlert, 211 Ill. 2d at 199. Dr. Kalelkar then filled
       in the manner of death on the certificate as “homicide.” Ehlert, 211 Ill. 2d at 208. At trial,
       however, Dr. Kalelkar testified that the manner of death could have been natural causes.
       Ehlert, 211 Ill. 2d at 209. The appellate court reversed the defendant’s conviction, and our
       supreme court affirmed, holding that there was reasonable doubt as to the defendant’s criminal
       agency. Ehlert, 211 Ill. 2d at 209-10.
¶ 66       Ehlert is inapposite. Here, contrary to defendant’s contention, Dr. Kalelkar did not
       equivocate on the cause or manner of death. “Asphyxiation” certainly encompasses a killing
       (see Webster’s Third New International Dictionary 130 (1993)), and at trial, relying on her
       autopsy findings, the doctor was clear and specific that Kathleen’s neck had been compressed.
       Accordingly, we conclude that any rational trier of fact could have found that Kathleen’s death
       was caused by some person’s criminal agency. Consequently, we also hold that retrial is not
       barred by double jeopardy.

¶ 67                                      C. Safarik’s Testimony
¶ 68        As noted, the trial court granted the State’s motion in limine No. 1, allowing Safarik’s
       testimony over defendant’s objection. We will not reverse a trial court’s ruling on a motion
       in limine absent an abuse of discretion. People v. Holman, 257 Ill. App. 3d 1031, 1033 (1994).
       Also, the court made evidentiary rulings during Safarik’s testimony. The admission of
       evidence is within the trial court’s sound discretion and will not be reversed unless that
       discretion was clearly abused. Snelson v. Kamm, 204 Ill. 2d 1, 33 (2003).
¶ 69        Safarik testified that, as director of Behavioral Services International, he conducts
       “analyses and interpretations” of complex violent crime scenes and violent crimes to
       “understand essentially what happened in the crime, how it happened[,] and why the events
       unfolded the way that they did.” Safarik testified that he also conducts “equivocal death
       evaluations” in cases where the “manner of death is not well established.” According to
       Safarik, the Kane County State’s Attorney’s Office asked him to examine the evidence from
       the scene where Kathleen’s body was found, to determine (1) whether the scene was staged,
       (2) the offender’s risk level, (3) a general offender motive, and (4) the “behavioral
       manifestations at the scene,” meaning the offender’s modus operandi, ritual behavior, and
       staging behavior.
¶ 70        Safarik testified that he typically reviews crime reports, criminal investigation reports,
       crime scene photographs, autopsy protocols, autopsy photographs, diagrams and sketches of
       the crime scene, and witness statements. He also reviews any toxicology reports. If he needs
       the information, Safarik will ask to see the statements of witnesses who talked to the police

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       about the victim’s habits. Safarik testified that he will also consider, as he did in the present
       case, an accused’s statements, if they contribute to an understanding of the timeline of events
       leading up to a murder. In the present case, Safarik considered Brandon’s statements as to
       where Kathleen usually ran and the app on her iPhone that recorded that she usually ran in
       Esping Park, but not near the railroad tracks.
¶ 71        From his review of the case, Safarik concluded the following: (1) Kathleen did not usually
       run on the railroad tracks; (2) defendant’s statement to police that Kathleen left the house to go
       running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an
       hour later, when the death scene photographs were taken, which indicated that she died prior to
       6:30 a.m.; (3) the lividity on Kathleen’s right leg was inconsistent with her position on the
       railroad tracks; (4) if she had been running, her shorts would have been tied and not loose;
       (5) the absence of an undergarment or a liner in Kathleen’s running shorts was inconsistent
       with her being out for a run; (6) because Kathleen had “fairly large” breasts, running in an
       underwire bra would have been painful; (7) Kathleen had a large selection of sports bras, so
       she would not have been running in an underwire bra; (8) the presence of the underwire bra
       was inconsistent with defendant’s statement that Kathleen possessed running gear;
       (9) Kathleen’s twisted bra strap would have been “very uncomfortable” and was inconsistent
       with the way she would have put on the bra; (10) there was no sexual motive to the crime,
       because Kathleen’s bra was covering half her breasts; (11) it was unlikely that Kathleen would
       have put on her left sock with the heel twisted toward the top of her foot; (12) a clump of hair in
       her right sock was inconsistent with the way a person would dress herself; (13) Kathleen was
       not wearing an armband, which was inconsistent with witnesses’ statements that she wore one
       when running; (14) the absence of earbuds was inconsistent with witnesses’ statements that
       Kathleen listened to music while running; (15) the leaf material on Kathleen’s body was
       inconsistent with that in the area where the body was found; (16) Kathleen’s iPhone was placed
       on the tracks by someone; (17) a trail of dried saliva mixed with blood running down
       Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks,
       indicating that she was on the tracks after the saliva had dried; (18) Kathleen was moved onto
       the tracks after she died in a different location; (19) Kathleen died as a result of manual
       strangulation; (20) a red mark on Kathleen’s neck was consistent with hands having been
       around her neck; (21) a bruise under Kathleen’s chin was consistent with someone having
       strangled her; (22) every form of asphyxiation except manual strangulation was ruled out; (23)
       Kathleen’s injuries were inconsistent with a fall on the tracks; (24) scrapes on Kathleen’s shins
       were postmortem because there was no blood; (25) Kathleen was incapacitated by alcohol and
       did not see the attack coming; (26) the attack came on very quickly; (27) strangers do not stage
       crime scenes; (28) a staged crime scene indicates that the killer was someone close to the
       victim; (29) the offender attempted to make Kathleen’s death look like an accident; (30) the
       leaf material found on Kathleen’s body was from her residence; and (31) based on the timeline
       defendant gave to the police, Kathleen was killed in her residence.
¶ 72        Defendant argues that Safarik was improperly allowed to give an opinion as to the cause of
       death in a close case where the cause and manner of death were contested by two
       well-qualified, board-certified, forensic pathologists. Defendant additionally contends that
       Safarik improperly opined on matters that were within the ken of the jurors when he testified
       that the death scene was staged. Defendant asserts that Safarik essentially gave the State’s
       closing argument.


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¶ 73       Expert testimony such as Safarik’s falls under the general rubric of “crime scene analysis,”
       which involves the “gathering and analysis of physical evidence.” See Simmons v. State, 797
       So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an expert
       in the cause and manner of death as well as the habits or characteristics of people who stage
       crime scenes. Profiling evidence usually involves a witness describing common practices,
       habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687
       (2002). Thus, Safarik also proffered profiling evidence.
¶ 74       At oral argument, we asked the State what Safarik’s area of expertise was. That question
       was perspicacious because the State could not readily answer it. Indeed, Safarik’s opinions
       ranged from forensic pathology, to botany, to the sartorial. Under the guise of expert “crime
       scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was
       sufficient to convict defendant. As the State admitted at oral argument, the purpose of Safarik’s
       testimony was to “plug the holes” in the State’s case.
¶ 75       Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that, “[i]f scientific, technical or
       other specialized knowledge will assist the trier of fact to understand the evidence or to
       determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education, may testify thereto in the form of an opinion or otherwise.”
       “Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d
       at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized
       knowledge” and offers “subjective observations and comparisons based on the expert’s
       training, skill, or experience.” Simmons, 797 So. 2d at 1151. Therefore, such testimony is not
       subject to the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Simmons,
       797 So. 2d at 1151.
¶ 76       We first consider defendant’s argument that Safarik was not competent to testify to
       Kathleen’s cause of death. Defendant asserts that an expert’s opinion cannot exceed the area of
       his or her expertise, relying on People v. Perry, 229 Ill. App. 3d 29 (1992). In Perry, the
       defendant was convicted of killing her infant son by lying on top of him and smothering him
       with a pillow. Perry, 229 Ill. App. 3d at 30-31. The appellate court reversed that conviction and
       remanded for a new trial where the State’s pathologist opined that the child’s death was not an
       accident because a sleeping mother would not roll on top of an active child without the child
       making its distress known. Perry, 229 Ill. App. 3d at 32. The court held that the pathologist’s
       expertise did not extend to determining the ability of a sleeping mother to “feel” her child.
       Perry, 229 Ill. App. 3d at 33. While we agree that an expert cannot express an opinion on a
       subject beyond his or her qualifications (see Bachman v. General Motors Corp., 332 Ill. App.
       3d 760, 784 (2002) (mechanical engineer with 35 years’ experience could not testify to the
       cause of a collision)), the question here is whether the cause of a person’s death is the subject
       of only expert medical testimony or whether a lay person can so opine.
¶ 77       The rule in Illinois is that medical testimony is not necessary to prove the cause of death
       where the facts proved are such that every person of average intelligence would know from his
       or her own knowledge or experience that a wound was mortal. Waller v. People, 209 Ill. 284,
       288 (1904); People v. Davidson, 82 Ill. App. 2d 245, 250 (1967). Thus, in Davidson, the
       coroner’s testimony that the victim was dead, coupled with other testimony establishing a
       criminal agency causing her death, was sufficient to sustain the murder verdict,
       notwithstanding the lack of medical testimony as to the cause of death. Davidson, 82 Ill. App.
       2d at 250. In Jones, a corpus delicti case (supra ¶ 63), the evidence of the cause of death was

                                                   - 12 -
       sufficient without medical testimony where the evidence showed that the defendant shot the
       victim, the victim fell and was found lying in a pool of blood, and the victim was immediately
       removed to a mortuary. Jones, 22 Ill. 2d at 597.
¶ 78        Here, medical evidence of the cause of Kathleen’s death was necessary because a lay
       person of average intelligence would not know what killed her. She was found lying on the
       railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The
       body was warm, and there was no immediate evidence of foul play. Consequently,
       Safarik—no matter how many crime scenes he had attended as a police officer, how much
       study he had done on violent crime scenes as an FBI profiler, or how many courses he had
       attended—was not qualified by knowledge, skill, experience, training, or education to opine on
       the cause and manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is
       admissible if the proffered expert is qualified by knowledge, skill, experience, training, or
       education to render an opinion).
¶ 79        For the court to allow Safarik to opine that Kathleen died of manual strangulation was
       especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s
       cause of death and presented his own equally well-qualified forensic pathologist to testify that
       she died of natural causes. Through Safarik’s inadmissible testimony, the State essentially
       “broke the tie” by presenting a second opinion to corroborate Dr. Kalelkar’s. We hold that
       Safarik’s opinion as to the cause of death was so highly prejudicial that we must reverse
       defendant’s conviction.
¶ 80        We also note that it was beyond Safarik’s expertise to opine on the effects of lividity. As a
       veteran of violent crime scene investigations, Safarik could doubtless identify the presence of
       lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s
       body on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity
       correlates to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038,
       ¶ 6 (forensic pathologist pinpointed time of death in part by analyzing lividity on victim’s
       body).
¶ 81        In the same vein, Safarik should not have been permitted to testify that the vegetation on
       Kathleen’s body came from her home because such an opinion was beyond his expertise and
       the State presented no evidence of such a correlation. To be admissible, an expert’s opinion
       must have an evidentiary basis, or else it is nothing more than conjecture and guess. City of
       Chicago v. Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.
¶ 82        Next, we consider defendant’s contention that the remainder of Safarik’s testimony was
       prejudicial because it consisted of conclusions that the jurors could draw for themselves. A
       requirement of expert testimony is that it will assist the trier of fact in understanding the
       evidence. Snelson, 204 Ill. 2d at 24. Expert testimony addressing matters of common
       knowledge is not admissible unless the subject matter is difficult to understand and explain.
       People v. Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when
       it involves knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72
       (2005). Here, Safarik testified to conclusions that the ordinary juror could draw: an
       experienced runner would not have dressed in the garments in which the body was found;
       Kathleen would not have left her contacts, earbuds, and armband at home when she went
       running; she would not have been running on the railroad tracks when her habit was to run in
       the park; and she would not have put on a sock with the heel twisted to the top of her foot. We
       agree with the Superior Court of New Jersey’s conclusion in State v. Lenin, 967 A.2d 915, 925

                                                   - 13 -
       (N.J. Super. Ct. App. Div. 2009), that none of this type of testimony should have been
       admitted.
¶ 83       In Lenin, the court held that Safarik’s testimony about the “characteristics of the victim and
       the crime scene” was inadmissible because he was “simply testifying about logical conclusions
       the ordinary juror could draw from human behavior.” Lenin, 967 A.2d at 927. The court also
       held that behavioral-science testimony, such as Safarik’s, must be evaluated under the test for
       admission of scientific evidence. Lenin, 967 A.2d at 926. We disagree with the latter holding
       because, as discussed, we believe that the better view is that crime-scene-analysis testimony is
       not scientific. See Simmons, 797 So. 2d at 1151.
¶ 84       Further, in our case, Safarik ventured beyond “crime scene analysis” into profiling when he
       testified to the characteristics of persons who stage crime scenes. Profiler testimony has been
       excluded by other states’ supreme courts as unreliable. Mertz, 218 Ill. 2d at 72-73. In Mertz,
       our supreme court declined to opine on the admissibility of such evidence, holding that any
       error in admitting a profiler’s testimony comparing three distinct crime scenes, with a view as
       to whether they could be connected, was harmless because police officers had testified to the
       similarities that they had observed. Mertz, 218 Ill. 2d at 73-74. The court emphasized that the
       profiler did not explicitly opine that the defendant committed the uncharged offenses that the
       profiler had studied. Mertz, 218 Ill. 2d at 72.
¶ 85       Here, in testifying that a staged scene indicates that the killer is someone close to the
       victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer because,
       under the circumstances, no one else fit that profile. Our case is more like People v. Brown,
       232 Ill. App. 3d 885 (1992), than Mertz. In Brown, the First District held that the defendant,
       who was charged with possession of a controlled substance with intent to deliver, was
       prejudiced by profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill.
       App. 3d at 898. The court noted that the testimony “consisted of a complete profile of a drug
       dealer which corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown,
       232 Ill. App. 3d at 899-900.
¶ 86       Trial courts are obliged to balance the probative value of expert testimony against its
       prejudicial effect. Lerma, 2016 IL 118496, ¶ 23. Here, the court performed this analysis in
       ruling on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying
       defendant as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say
       indirectly what he could not say directly. We follow Brown and hold that such profiling
       evidence is inadmissible.
¶ 87       The State argues that the admission of Safarik’s testimony was harmless error because
       (1) he drew conclusions that the jurors could have drawn on their own and (2) his testimony
       was cumulative. In Mertz, the court held that the admission of profiling testimony was
       harmless because “any inferences drawn by [the profiler] were commonsense ones that the
       jurors no doubt had already drawn for themselves.” Mertz, 218 Ill. 2d at 74. That reasoning
       does not apply in our case, where one of the claimed errors is that Safarik’s testimony was
       inadmissible precisely because it was within the knowledge of the average juror. Ironically, the
       court’s discussion in Mertz supports defendant’s argument.
¶ 88       We also reject the argument that Safarik’s testimony was cumulative. While Dr. Kalelkar
       opined that Kathleen died of manual strangulation and also opined on the staging of the death
       scene, her testimony was undermined by the fact that she did not complete her autopsy


                                                   - 14 -
       protocol. As the State forthrightly conceded at oral argument, Safarik’s testimony was
       designed to “plug the holes.”
¶ 89       Also, unlike in Brown, where the error was found to be harmless, the evidence of guilt in
       the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and
       conclusions. There was no eyewitness, no confession, and no forensic evidence connecting
       defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s
       motion in limine No. 1 and to permit the testimony at defendant’s trial.
¶ 90       On retrial, the arguments that defendant raises concerning evidence of Kathleen’s family’s
       suffering and the State’s rebuttal closing argument are likely to arise, so we briefly address
       them.
¶ 91       Kristine testified that she was close to Kathleen (that Kathleen was like her mother) and
       that Kathleen had shopped for Kristine’s wedding gown. Kristine described how upset she was
       when she was told of Kathleen’s death and that she was pacing and crying. Kurt testified that
       he was frantic and screaming when he heard the news of Kathleen’s death. The court overruled
       defendant’s objections to this testimony. While some reference to the victim’s family is proper
       and inevitable (People v. Campos, 227 Ill. App. 3d 434, 449 (1992)), evidence that dwells on
       the victim’s family is unduly prejudicial. People v. Bernette, 30 Ill. 2d 359, 371 (1964). Here,
       the evidence of the family’s emotional attachments and reactions went beyond anything that
       was relevant and was introduced solely for its emotional impact. On retrial, such testimony is
       inadmissible.
¶ 92       In his rebuttal closing argument, the prosecutor told the jurors that it was “okay” for them
       to have “questions” about the evidence and still convict defendant. The prosecutor gave an
       example of a permissible question dealing with what point of access defendant took to get the
       body onto the railroad tracks. He then reiterated that the jurors could have questions, “as long
       as those questions don’t amount to a reasonable doubt.” This argument was an improper
       attempt to define and dilute the State’s burden of proof (see People v. Evans, 2016 IL App (3d)
       140120, ¶ 59 (prosecutor’s rebuttal remarks improperly conflated the beyond-a-reasonable-
       doubt standard with a question of whether the defendant’s actions were reasonable, lessening
       the State’s burden of proof)), and nothing close to it is permitted on retrial. It is well
       established in Illinois that “reasonable doubt” needs no definition. People v. Amos, 46 Ill. App.
       3d 899, 902 (1977).
¶ 93                                        III. CONCLUSION
¶ 94       For the foregoing reasons, the judgment of the circuit court of Kane County is reversed,
       and the cause is remanded for a new trial.

¶ 95      Reversed and remanded.




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