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                               Appellate Court                           Date: 2018.02.09
                                                                         09:43:14 -06'00'




                   People v. Escort, 2017 IL App (1st) 151247



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MICHAEL ESCORT, Defendant-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-15-1247



Filed             November 22, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-521; the
Review            Hon. Kevin M. Sheehan, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Robert Hirschhorn, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Joseph Alexander, and Tilesha Northern, Assistant State’s Attorneys,
                  of counsel), for the People.



Panel             PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                  court, with opinion.
                  Justices Connors and Delort concurred in the judgment and opinion.
                                             OPINION

¶1        The defendant, Michael Escort, was convicted of murder and sentenced to 60 years’
     imprisonment. He now appeals, arguing, inter alia, that he was not proven guilty beyond a
     reasonable doubt. For the reasons that follow, we reverse the defendant’s conviction and
     sentence.
¶2        The following facts are taken from the evidence introduced by the State at the defendant’s
     trial. On October 3, 1989, Mary Smith (hereinafter also referred to as the victim) was found
     dead in the courtyard of an abandoned warehouse located at 5801 South Lowe Avenue in
     Chicago. When found, she was naked, and articles of her clothing were found on the roof of the
     building. Mary Smith’s death was treated as a homicide, but the initial investigation failed to
     result in any arrest.
¶3        In July 2011, the Chicago police department submitted swabs taken from the victim’s body
     and articles of her clothing to Cellmark Forensics in Dallas, Texas, for biology and DNA
     testing and the development of DNA profiles suitable for comparison with known DNA
     profiles of individuals in a national database. Cellmark Forensics received two vaginal swab
     sticks, two rectal swab sticks, and two oral swab sticks. The cotton parts of those swabs had
     been separated and were also received by Cellmark Forensics. The swab sticks and actual
     cotton swabs were tested for sperm cells. Sperm cells were detected on the vaginal and rectal
     swab sticks as well as on both the vaginal and rectal cotton swabs, but not on the oral swab
     sticks. The testing revealed many sperm cells on the swabs taken from the victim’s vagina,
     which, according to the testimony of a forensic casework supervisor employed by Cellmark
     Forensics, was indicative of a recent encounter. Fewer sperm cells were detected on the swabs
     taken from the victim’s rectum. DNA analysis was performed on the swab sticks and the cotton
     swabs. The material was divided into two samples: sperm and non-sperm. The analysis
     conducted on the non-sperm fraction of the material on the vaginal swab sticks revealed a
     partial predominant DNA profile for a male identified as “unknown male number 1.” The
     analysis of the sperm fraction of the material from the vaginal swab sticks also revealed a
     partial predominant DNA profile for a male identified as unknown male number 1. No other
     profiles suitable for comparison were detected from the vaginal swab sticks. The analysis of
     the non-sperm fraction of the material from the vaginal swabs revealed a partial DNA profile
     consistent with the victim’s profile. Analysis of the sperm fraction of the material from the
     vaginal swab revealed a complete DNA profile for unknown male number 1. The rectal swab
     sticks and the rectal swabs were combined into one sample for DNA analysis. The analysis of
     the non-sperm fraction produced a DNA profile consistent with the victim’s profile, but no
     DNA profile was obtained from the sperm fraction. Semen was found in the crotch area of
     pants that were recovered from the roof of the warehouse. Analysis of both the sperm fraction
     and the non-sperm fraction from the semen stain produced DNA profiles consistent with a
     male identified as “unknown male number 2,” but inconsistent with that of unknown male
     number 1. Analysis was also done on the semen stains on the victim’s panty hose. Examination
     of the non-sperm fraction of the semen on the crotch area of the victim’s panty hose revealed
     that it was from two people, including at least one unknown male. However, no conclusion
     could be drawn from that analysis as to whether either unknown male number 1 or unknown
     male number 2 was a contributor. Analysis of the sperm fraction revealed that three individuals
     were the source. However, again no conclusion could be drawn from that analysis as to

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     whether either unknown male number 1 or unknown male number 2 was a contributor. The
     results of the testing conducted by Cellmark Forensics were reported to the Chicago police
     department and also furnished to the Illinois State Police crime laboratory.
¶4       The Illinois State Police conducted a comparison of the unknown male DNA profiles that
     were developed by Cellmark Forensics with known profiles in a national database. The
     comparison revealed an association between the DNA profile of unknown male number 1,
     developed from the analysis of the victim’s vaginal swabs, and the defendant’s known profile.
¶5       After being informed of the association between the defendant’s known DNA profile and
     the DNA profile for the unknown male number 1, Chicago police detectives located the
     defendant and, with his agreement, took DNA swabs from his cheeks and lower lip. Those
     swabs were sent to the Illinois State Police crime laboratory for analysis and comparison with
     the DNA profiles developed from the swabs from the victim’s body. The comparison revealed
     that the DNA profile identified from the sperm fraction of the victim’s vaginal swab matched
     the defendant’s DNA profile. The comparison also revealed that the defendant was a
     contributor to both the sperm fraction and the non-sperm fraction of the samples from the
     vaginal swabs and the vaginal swab sticks. The defendant’s DNA profile was not found in the
     sample from the semen stain on the victim’s pants. The comparison of the defendant’s DNA
     profile with the non-sperm fraction of the sample from the victim’s panty hose yielded
     insufficient information to either include or exclude the defendant as a contributor. The
     defendant’s DNA was not found on the sperm fraction of the sample from the panty hose, and
     he could, therefore, be excluded as a contributor.
¶6       On December 6, 2012, the defendant was arrested, and on January 3, 2013, he was charged
     by indictment with four counts of murder arising from the death of Mary Smith. One of the
     four counts was based upon felony murder for which the predicate felony was criminal sexual
     assault. The defendant elected to be tried by a jury.
¶7       Prior to trial, the State filed a motion seeking leave of court to introduce proof that the
     defendant had two prior convictions for aggravated criminal sexual assault. In support of its
     motion, the State invoked section 115-7.3 of the Code of Criminal Procedure of 1963 (725
     ILCS 5/115-7.3 (West 2012)). The trial court granted the motion, finding that the probative
     value of the propensity evidence outweighed its prejudicial impact. However, at trial, the State
     elected to introduce evidence of only one of the defendant’s prior convictions; namely, the
     1991 aggravated criminal sexual assault on T.P., the 13-year-old daughter of the defendant’s
     then-girlfriend.
¶8       The defendant’s trial commenced on December 1, 2014. Harold Smith, the victim’s
     brother, testified that the victim was addicted to drugs and had been working as a prostitute. On
     the evening of October 2, 1989, he and the victim went to a “drug house” where they used
     crack cocaine. According to Harold, he sent the victim to buy additional drugs. When she did
     not return, he went looking for her. Harold testified that he saw the victim from a distance; she
     waved and said that she would be back. He stated that this was the last time that he saw the
     victim alive.
¶9       The State called the following individuals as witnesses: Officer Carl Brasic, a forensic
     investigator; Detective Denise Trouche, a serologist; Robert Berk, a trace evidence analyst
     employed by the Illinois State Police; Kelli Byrd, a forensic casework supervisor employed by
     Cellmark Forensics; Officer Edward Carroll from the cold case unit of the Chicago police
     department; and Ryan Paulsen, a forensic scientist employed by the Illinois State Police. These

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       individuals testified to the gathering of evidence at the location where the victim was found,
       the fact that swabs were taken from the victim’s body, the submission of those swabs and
       articles of the victim’s clothing for analysis, the results of that analysis, the association found
       between the DNA profile developed from material from the vaginal swabs and vaginal swab
       sticks and the defendant’s known profile, the collection of comparison swabs from the
       defendant’s cheeks and lower lip, and the comparison of the DNA profile developed from the
       swabs taken from the defendant with the DNA profiles developed from the victim’s vaginal
       swabs and vaginal swab sticks.
¶ 10       The State also called Dr. Steven Cina, a forensic pathologist with the Cook County medical
       examiner’s office, as a witness to testify to the findings of the autopsy, which was performed
       on the victim’s body on October 3, 1989. Dr. Cina testified that the condition of the victim’s
       body when initially examined indicated that she had not been dead very long as there was no
       evidence of rigor mortis, livor mortis, or stiffening of any of her muscles or joints. According
       to Dr. Cina, the victim had only been dead for several hours. He stated that the autopsy
       revealed that the victim sustained multiple injuries to her head and neck. Hemorrhaging
       beneath her scalp was noted, indicating blunt force trauma to the head. Also noted were
       extensive fractures to the bony plate above the victim’s left eye socket. Dr. Cina was of the
       opinion that the extensive abrasions on the right side of the victim’s head were caused by a
       rough heavy object. The injuries to the victim’s neck consisted of abrasions and bruising to the
       lateral structures, which were associated with internal injuries. Dr. Cina testified that the
       victim suffered a fracture of the laryngeal cartilage and a fracture of the hyoid bone; injuries
       typically associated with strangulation. There were minor injuries to the victim’s chest, and on
       her back were large abrasions, which were compatible with her body having been dragged over
       a rough surface. Dr. Cina testified that no injuries were found on the victim’s vagina or anus.
       He was of the opinion that the victim died of strangulation and that the blunt force injuries to
       her head were a contributing cause.
¶ 11       As its final witness, the State called T.P. She testified to the facts surrounding the
       defendant’s sexual assault upon her in 1991. She stated that, in the course of the attack, the
       defendant choked her.
¶ 12       Following T.P.’s testimony, the State rested. Thereafter, the defendant moved for a
       directed verdict of not guilty, arguing that the State’s evidence proved only that he had sexual
       relations with the victim but not that he had murdered her. The trial court denied the
       defendant’s motion, and the defendant then rested without introducing any evidence.
¶ 13       Following their deliberations, the jury found the defendant guilty of murder. The trial court
       denied the defendant’s posttrial motion and subsequently sentenced him to 60 years’
       imprisonment. Following the denial of the defendant’s motion for reconsideration of his
       sentence, he filed the instant appeal.
¶ 14       In urging reversal of his conviction and sentence, the defendant argues, inter alia, that the
       State failed to prove him guilty of Mary Smith’s murder beyond a reasonable doubt. According
       to the defendant, the State proved only that he was one of several men who had sexual relations
       with the victim prior to her death. In response, the State argues that the circumstantial evidence
       introduced at trial was sufficient to establish the defendant’s guilt beyond a reasonable doubt.
¶ 15       When, as in this case, a defendant challenges the sufficiency of the evidence supporting a
       conviction, we must determine whether, after viewing the evidence in a light most favorable to
       the prosecution, any rational trier of fact could have found the essential elements of the crime

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       charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v.
       Brown, 2013 IL 114196, ¶ 48. “This standard of review applies in all criminal cases whether
       the evidence is direct or circumstantial.” People v. Ehlert, 211 Ill. 2d 192, 202 (2004).
¶ 16        In this case, there is no direct evidence linking the defendant to the death of the victim.
       Nevertheless, “[c]ircumstantial evidence is sufficient to sustain a criminal conviction,
       provided that such evidence satisfies proof beyond a reasonable doubt of the elements of the
       crime charged.” People v. Hall, 194 Ill. 2d 305, 330 (2000).
¶ 17        As a reviewing court, we will not reverse a criminal conviction “unless the evidence is so
       improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of [the]
       defendant’s guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005). However, if, after an
       examination of the evidence, we conclude that the evidence is so unsatisfactory or
       inconclusive that it creates a reasonable doubt of the defendant’s guilt, we must reverse the
       conviction. People v. Smith, 185 Ill. 2d 532, 541-42 (1999).
¶ 18        Proof of any criminal offense requires proof of two concepts: “first, that a crime occurred,
       *** and second, that it was committed by the person charged.” Ehlert, 211 Ill. 2d at 202. In this
       case, the State clearly proved that Mary Smith was murdered. The issue presented is whether
       the evidence introduced by the State was sufficient to establish, beyond a reasonable doubt,
       that the defendant committed the murder.
¶ 19        The State argues that the evidence in this case supports the inference that the defendant was
       the last person to see the victim alive. In support of its conclusion in this regard, the State notes
       that (1) the defendant had sexual relations with the victim as evinced by his DNA profile on the
       sperm and non-sperm samples from victim’s vaginal swabs and the swab sticks, (2) the
       quantity of the defendant’s sperm cells on the vaginal swab indicates a recent encounter, and
       (3) Dr. Cina’s opinion that the victim had only been dead for several hours when her body was
       first examined on the morning of October 3, 1989. Based on these facts, the State also contends
       that a reasonable trier of fact could infer that the defendant had sexual relations with the victim
       shortly before her death. The State next asserts that, since the defendant’s DNA was not found
       on the victim’s panty hose, the trier of fact could also infer that the victim did not have an
       opportunity to put her panty hose back on after having sex with the defendant. From these
       facts, the State concludes that a reasonable trier of fact could find, beyond a reasonable doubt,
       that the defendant murdered Mary Smith.
¶ 20        We find several flaws with the State’s reasoning. First, the fact that Kelli Byrd, the forensic
       casework supervisor employed by Cellmark Forensics, testified that the “many, many sperm
       cells” present on the victim’s vaginal swab “would indicate a more recent encounter,” does not
       support the conclusion that, because the defendant’s DNA profile was found on these sperm
       cells, he had sexual relations with the victim shortly before her death. In fact, Byrd testified
       both that semen can remain in a woman for up to 72 hours after sexual intercourse and that
       there is no way of telling when DNA is deposited on a person. Although the fact that sperm
       cells containing the defendant’s DNA profile were found in a great quantity on the victim’s
       vaginal swab and the vaginal swab sticks may well support a reasonable inference that the
       defendant had sexual relations with the victim after the other individuals whose DNA was
       detected on the swabs taken from the victim’s body, that fact does not establish a temporal link
       between the defendant’s sexual encounter with the victim and the time of her death. Dr. Cina
       opined that the victim had only been dead for several hours before her body was first
       examined, but he rendered no opinion as to the time that elapsed between the victim’s last

                                                     -5-
       sexual encounter and her death. As for the analysis of the victim’s panty hose, Byrd testified
       that the Cellmark Forensics analysis could not support a conclusion as to whether unknown
       male number 1, now known to be the defendant, was a contributor to the sperm or non-sperm
       fractions of the samples analyzed. Although Ryan Paulsen testified that, based upon the
       comparison analysis performed at the Illinois State Police crime laboratory, the defendant
       could be excluded as a contributor to the sperm fraction of the sample taken from the victim’s
       panty hose, he also stated that the defendant could neither be included nor excluded as a
       contributor to the non-sperm fraction of the sample.
¶ 21       Distilled to its finest, the State’s evidence could reasonably support only a determination
       that the defendant had sexual relations with the victim at some time during the 72-hour period
       prior to her death. It would be pure speculation to conclude that the defendant and the victim
       had sexual relations shortly before her death or that he was the last person to see the victim
       alive. However, guilt may not rest on speculation. People v. Martin, 26 Ill. 2d 547, 551 (1963).
¶ 22       Our examination of the record in this case leads us to conclude that the evidence introduced
       by the State was so weak as to create a reasonable doubt on the issue of whether the defendant
       committed the murder of Mary Smith. Consequently, we reverse the defendant’s conviction
       and sentence and, therefore, find no need to address any of his other claims of error.

¶ 23      Reversed.




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