                                          2016 IL App (1st) 131009
                                               No. 1-13-1009
                                       Opinion Filed November 9, 2016

                                                                                     THIRD DIVISION


                                                  IN THE
                                  APPELLATE COURT OF ILLINOIS
                                            FIRST DISTRICT

                                                       ) Appeal from the
     THE PEOPLE OF THE STATE OF ILLINOIS,              ) Circuit Court
                                                       ) of Cook County,
          Plaintiff-Appellee,                          ) Illinois.
                                                       )
     v.                                                ) No. 05CR17342
                                                       )
     DAVID BANKS,                                      ) The Honorable
                                                       ) Kevin M. Sheehan,
           Defendant-Appellant.                        ) Judge Presiding.
                                                       )
                                                       )
     _____________________________________________________________________________

           PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with
           opinion.
           Justices Lavin and Cobbs concurred in the judgment and opinion.

                                                  OPINION

¶1         On the morning of September 8, 1990, the Chicago Fire Department responded to a fire

        in the basement of a multi-unit apartment building at 1058-1060 West Lawrence Avenue in

        Chicago. The bodies of a 55-year-old woman and a 79-year-old man and were discovered in

        the fire. The manner of death was determined to be homicide, and the fire was determined to

        have been caused by arson. A 12-year-old girl, T.C., reported having been raped and doused

        in fire accelerant by the offender in the basement but escaped to call for help.
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¶2          Defendant David Banks was arrested after a 2005 “cold hit” in the DNA database. He

        was charged by indictment with 24 counts of first degree murder and one count of arson in

        regards to the double homicide and sexual assault. The indictments alleged that defendant

        murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of

        criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the

        jury found defendant guilty of arson as well as the two murders. The trial court sentenced

        defendant to two terms of natural life imprisonment for the murders, to be served

        consecutively, and a term of 15 years’ imprisonment for arson, also to be served

        consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA

        evidence at trial; (2) he was prejudiced by the “misuse” of his prior criminal record at trial;

        (3) he was prejudiced by comments by a testifying police officer regarding his invocation of

        his right to remain silent and his request for counsel; and (4) he was deprived of the effective

        assistance of trial counsel for a series of alleged trial errors. For the following reasons, we

        affirm.

¶3                                            BACKGROUND 1

¶4          Defense counsel filed several motions prior to trial 2 including motions asking to suppress

        defendant’s statement and motions relating to the introduction of DNA evidence at trial,

        asking to bar the introduction of other crimes evidence at trial, asking to be allowed further

        testing of the biological materials and databases for use at trial, and requesting greater

        latitude in the cross-examination of the State’s DNA expert. Relevant to this appeal,


            1
              This court provides an extensive background in order to give full consideration to the many fact-
        intensive issues defendant raises on appeal.
            2
              There was extensive motion practice as well as hearings in this case, much of which concerned
        the fact that the prosecution began as a capital case. As this is not germane to the issues at bar, this
        court will not concern itself with this portion of the case history.

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        defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C.

        Cir. 1923)) regarding whether DNA testing without the original controls or blanks was a

        scientifically valid methodology, (2) to exclude the DNA evidence where some of the

        material was inadvertently lost during testing in the laboratory, and (3) a search of the

        National DNA index system “for actual 9-loci pair matches that actually exist in the

        databases for the 9-loci identified in this case,” and “for the frequency of each of the alleles

        identified in this case as they actually exist in the databases.”

¶5         After a hearing, the trial court denied the request for a Frye hearing regarding the DNA

        testing without the original blanks, stating: “Frye does not apply once determined that the

        scientific method is generally accepted” and noting that “[t]here is no Frye standard plus

        reliability standard, no independent evaluation of the theory or the reliability once the general

        acceptance threshold has been met. Reliability comes from general acceptance.” The court

        explained that defendant’s arguments regarding the DNA testing “goes to the weight, not the

        admissibility under Frye,” and that defendant’s concerns could be addressed at trial through

        “vigorous cross-examination presentations of contrary evidence such as expert testimony.” It

        stated: “The Frye standard applies only if scientific principle and technique or test offered is

        new or novel.”

¶6         The court also held a hearing on defendant’s motion for relief in conjunction with

        destruction of DNA or related evidence. The court denied the motion, finding that the DNA,

        which was inadvertently spilled during laboratory testing, was not materially exculpatory

        evidence and that it was not destroyed in bad faith. Additionally, the court admonished

        defense counsel that use of the term “destroyed” was not appropriate, stating, “It’s spilled,

        right? We’re talking semantics here, something certainly wasn’t destroyed in a bad faith


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        sense or somebody just took something and obliterated it. *** What we have here is

        something that’s spilled during a test requested by the parties[.]”

¶7         Defendant’s motion for a DNA database search was filed with the trial court on May 20,

        2010. By that motion, defendant explained that he was arrested based on a “partial, 9 Loci

        DNA match to a buccal swab taken from him.” The motion also stated:

                           “5. The Illinois State Police Forensic Scientist in this case, Cynara C.

                   Anderson, opined that the statistical probabilities of such a match were 1 in 52

                   million Black, 1 in 390 billion White, or 1 in 200 billion Hispanic unrelated

                   individuals at the 9 loci profiled.

                           6. However, the Forensic Scientist from the Illinois State Police printed a

                   State Match Detail Report that indicates that the ‘Locus Match Stringency’

                   parameters were set at high, which nevertheless resulted in 2 matches, 1 at 10

                   Loci and 1 at 6 Loci; presumably the ‘10 Loci’ match is actually the 9 Loci match

                   excluding the Amelogenin Loci (X,Y). It is not clear what the other 6 Loci match

                   was.

                           7. Moreover, an Arizona database search of 65,493 specimens revealed

                   120 pairs of 9-loci matches; an Illinois database yielded 900 pairs of matches at 9

                   loci; and a Maryland study 32 pairs of 9-loci in a database of less than 30,000.

                   Wherefore, the State’s theoretical statistical analysis, which lends relevancy and

                   weight to the State’s DNA evidence is seriously in doubt considering actual DNA

                   searches of real profiles that exist in actual DNA databases.”

        Defendant specifically requested the court to order the State Police to search the following

        databases: “a. offenders maintained under 730 ILCS 5/5-4-3(f); b. unsolved crimes


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        maintained by state and local DNA databases by law enforcement agencies; and/or c. the

        National DNA index system” using the following formulas:

                           “a. for actual 9-loci pair matches that actually exist in the databases;

                           b. for the actual 9-loci identified in this case, but utilizing Low, Medium

                    and High locus Match Stringency; and

                           c. for the actual frequency of each of the alleles identified in this case as

                    they actually exist in the databases.”

        This motion was held in abeyance.

¶8          On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining

        to the court:

                           “THE COURT: Database search motion withdrawn?

                           [PUBLIC DEFENDER CHRIS ANDERSON:] Yes, motion for DNA

                    Database search. I was able to actually find—the FBI had actually done a CODIS

                    allele frequency analysis for each of the databases, so I didn’t need it because I

                    have it now.

                           THE COURT: Okay. That database motion is withdrawn.

                           [PUBLIC DEFENDER ANDERSON:] That issue is done. After further

                    discussions with the lab, I realize that by entering the profile in this case that they

                    are searching all additional cases in the CODIS database against that COPA [sic]

                    any new ones put in so that in effect is being done anytime—

                           THE COURT: I believe [Assistant State’s Attorney Mary Lacy]

                    mentioned that on the last court date that they continually search during the

                    pendency of the case.

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                           [PUBLIC DEFENDER ANDERSON:] Right—well, perpetually they

                   search. Third the issue is the National DNA Search using the profile in this case

                   for purposes of trial strategy, general strategy, we are not pursuing that issue,

                   Judge. So all of these things that we requested have been resolved, so I’m asking

                   leave to withdrawal [sic] that motion, Judge.

                           THE COURT. Okay.”

¶9         Defendant also filed a motion to suppress his statement, as well as a supplemental motion

        to suppress statements. At the end of the hearing, the trial court made extensive findings of

        fact, after which it denied the motion, noting:

                           “For the foregoing reasons, respectfully your motion to suppress

                   statements is denied. The court specifically finds that the defendant was advised

                   of his rights, that he waived his rights until he asked for an attorney when all

                   questions ceased ***.

                           He was never confronted with material misrepresentations. The

                   statements, whatever they were obtained [sic] by the defendant, from the

                   defendant, were not obtained as a result of physical or psychological or mental

                   coercion.

                           The court finds whatever statements that the defendant made were

                   voluntarily of his own free will. And the first time the defendant invoked his right

                   to attorney was to [the assistant State’s Attorney] after which questioning ceased.

                    Respectfully, your motion to suppress statements is denied.”

        Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior

        crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant’s propensity

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          to commit sexual attacks and to motive and intent, as two of the murder counts on trial were

          predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the

          court allowed evidence of the prior sexual assault as evidence of defendant’s propensity to

          commit sexual attacks, motive, and intent, as two of the murder counts on trial were

          predicated on the alleged sexual assault of T.C. Specifically, the court determined:

                             “It is clear that in viewing the proof of other crimes sought to be admitted,

                     it’s relevant to the issues of defendant’s propensity to commit sexual attacks and

                     to motive and intent. The statute [and] case law mandates this Court to allow the

                     People to present evidence of other crimes discussed above.”

¶ 10          Defendant also moved to bar the use of the 1984 sexual assault case and a 1990 murder

          conviction for impeachment purposes should he testify. The State agreed not to use the 1984

          sexual assault case for impeachment. The court then allowed evidence of the 1990 murder

          conviction “for the very limited purpose” of impeachment in the event defendant were to

          testify.

¶ 11          At trial, T.C. testified she was a 12-year-old sixth grader in September 1990. She lived in

          the second floor apartment at 1060 West Lawrence with her mother, stepfather, and two

          sisters. She had slept overnight at her father’s house a few blocks away and was returning to

          her own apartment at approximately 8:30 on the morning in question. Although she did not

          know how big she was at the time of the attack, she testified she was smaller at the time of

          the attack in 1990 than she was at the time of trial. At the time of trial, she was 4 foot, 11

          inches tall and weighed 90 pounds. As she approached the back entrance to her building, a

          man grabbed her from behind and covered her mouth with his hand. He dragged her down to

          the basement apartment where she saw a woman and a man. She recognized the woman as


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          Pat, the building manager, and the man as a resident of the building. Both of the victims had

          their hands tied and their mouths gagged. Pat was moaning. The man was on the floor, not

          moving. The offender hit and kicked T.C. He ordered her to remove her pants and

          underpants. He pulled them off of her after she resisted. He then stuck his finger and penis

          into her vagina. While this was happening, T.C. heard Pat say, “don’t hurt her, let her go.”

          The attacker responded, “shut up, I kill you.”

¶ 12         After sexually assaulting T.C., the assailant picked Pat up off of the floor and put her on a

          bed. Then he walked to the man, still on the floor, and kicked him. T.C. then watched as the

          assailant poured what looked and smelled like gasoline on both the woman and the man. He

          then returned to T.C., picked her up, and laid her on the floor near the bed. He soaked her

          pants and underpants in gasoline and ordered her to put them back on. When she refused, he

          put them on her. She then watched him rummage in his duffel bag and retrieve a bicycle

          chain lock. He put the chain around T.C.’s neck and choked her with it. She tried to fight and

          resist, but slipped in and out of consciousness. When she came back to consciousness, she

          was laying on the floor. She acted like she was dead and watched her assailant look for

          matches. He found the matches and lit a fire on the bed near Pat. T.C. continued to play dead

          as the room filled with smoke and fire, and she watched the attacker grab his duffel bag and

          leave through the front door. After he left, she got up, attempted unsuccessfully to rouse Pat

          and the man, and then escaped. She ran upstairs to her apartment, told her mother what

          happened, and they left the building. T.C. was taken to the hospital.

¶ 13         At trial, T.C. described her attacker as having long hair pulled back in a ponytail and

          wearing a sleeveless shirt. T.C. also described a big “greenish color” tattoo that “was looking

          like a dragon” on his arm. She remembered he was wearing a chain around his neck that held


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          two credit card-sized cards. T.C. did not identify defendant at trial has her assailant. In 1991,

          she identified another man, Albert Chaney, as her assailant. Chaney was arrested at that time,

          but subsequently cleared by DNA evidence and released in 1993.

¶ 14         Joanne Vo, T.C.’s mother, testified she heard banging on her apartment door at

          approximately 11:15 a.m. on September 8, 1990, and opened the door to find T.C. crawling

          on the ground, her face black and red, and a line on her neck. T.C. smelled like gasoline and

          her clothes were wet and dirty. Vo took T.C. to the hospital.

¶ 15         T.C. was examined at Children’s Memorial Hospital by Dr. Ramona Slupik. Dr. Slupik

          testified that T.C. had been severely traumatized. Her eyes were swollen, the whites of her

          eyes were red and had burst blood vessels, and she had bruise marks and a strangulation

          mark around her neck. Dr. Slupik testified that T.C. was “trembling, but she was coherent”

          during the examination, and was able to answer the doctor’s questions. T.C.’s genital area

          had swollen labia, a thin bloody discharge, and slightly dried white secretions on the outside

          of the hymen. In Dr. Slupik’s opinion, there was “convincing evidence of blunt force

          penetrating trauma,” or “penile penetration.” Dr. Slupik confirmed the presence of sperm

          under a microscope, took cultures to test for sexually transmitted diseases, and then collected

          DNA swabs from the oral cavity, vagina, and rectum, as well as fingernail scrapings for a

          rape kit. These items were each labeled individually, sealed, and sent to the crime lab.

¶ 16         The parties stipulated that nurse Mary Whiteford took the rape kit from Dr. Slupik and

          put it in hospital storage, that the kit was then retrieved by nurse Sandra Roy and given to

          Chicago Police evidence technician Roy Fondren, who then stored it with the evidence and

          recovered property section of the police department. The parties stipulated that a proper chain

          of custody was maintained over the kit at all times.


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¶ 17         Retired Fire Marshall Louis Outlaw testified that he responded to a fire alarm at the

          three-story apartment building at 1058-1060 West Lawrence on September 8, 1990. The fire

          was extinguished by the time he arrived, and he spoke with firefighters on the scene. Outlaw

          determined the fire was mainly contained to the basement apartment. He then entered the rear

          basement apartment and saw a male victim on the floor who appeared to have had his throat

          slashed and a female victim on a bed who was badly burned over her entire body. Outlaw

          determined an accelerant had been used to advance the fire, that the ignition source was a

          human action such as an open flame, and that someone had purposely set the fire.

¶ 18         Illinois State Police acting trace chemistry group supervisor Alan Osoba, who at the time

          of the fire worked as a criminalist or police chemist for the Chicago Police Department’s

          crime laboratory, testified he tested T.C.’s recovered clothing as well as four debris cans

          collected from the fire scene for accelerants. T.C.’s clothing and three of the four debris cans

          contained petroleum distillate residue such as diesel fuel or charcoal lighter fluid.

¶ 19         Retired Chicago Police Detective Wayne Johnson testified that he was working as a

          detective assigned to the violent crimes unit in September 1990. He arrived at the scene of

          the crime around 1:30 p.m. and went in to the basement apartment to process the crime

          scene. He then went to the hospital to interview T.C. He testified T.C. described her attacker

          as: “male, black approximately six feet tall, approximately 200 pounds with long hair worn in

          a ponytail, growth—beard growth on his face, a short sleeved shirt, white Nike gym shoes,

          and a sliver chain around his neck that displayed two cards that she compared to credit cards

          at the time.” She said he carried a tubular gray duffel bag. He testified that T.C. was

          traumatized, but that a few days later she was able to provide more detail about her attacker.

          At that time, T.C. said “she thought he had a tattoo on his upper arm that to her looked like a


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          dragon.” She described it as light blue or faded blue green in color, but was unable to give

          great detail due to the lighting and the traumatic nature of the attack.

¶ 20         Dr. Edmund Donoghue, then the Cook County Medical Examiner, testified that he

          performed the autopsies of both Hedgpath and Soucy. He determined that both victims died

          before the fire was set, Hedgpeth of strangulation and Soucy from blunt force trauma. He

          described Hedgpeth as a 55-year-old white female with burns over 100% of her body,

          including full thickness burns. Hedgpeth also had internal injuries including fractures

          consistent with manual strangulation. Dr. Donoghue described Soucy as a 79-year old white

          male with partial thickness burns on much of his body. Soucy had a 2-inch deep wound

          through his right eye, consistent with being stabbed with an ice-pick-like instrument. He also

          had numerous skull and rib fractures consistent with being stomped or kicked, as well as a

          laceration to his neck involving the jugular vein consistent with his neck being cut with a

          knife.

¶ 21         Forensic Scientist Edgardo Jove testified that he worked at the Chicago Police

          Department crime lab from 1991 to 1996. He received the rape kit taken from T.C. for testing

          on July 20, 1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic

          slides; and fingernail samples. He examined the vaginal smears for the presence of sperm and

          tested the body fluids found on the vaginal swab. He then sent the samples for DNA testing

          to the Illinois State Police forensic lab in Springfield. Jove testified that he maintained a

          proper chain of custody over the items.

¶ 22         Dr. Elizabeth Benzinger testified as an expert in the field of forensic DNA analysis.

          Although by the time of trial she worked with the Ohio Bureau of Criminal Investigation,

          from 1990 to 1996 she worked at the Illinois State Police crime lab and was one of four


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          individuals who set up the forensic DNA typing program from the Illinois State Police in

          Springfield. She testified that she received sealed items including T.C’s vaginal swab and

          blood samples from T.C. and Albert Chaney pertaining to this case in October 1993. She

          described DNA to the jury as a “long string like molecule” that is “the blueprint of life.” She

          described its usefulness in forensic analysis as:

                             “DNA is useful for forensic analysis because scientists believe that no two

                     individuals have the exact same DNA except for identical twins. So we are able to

                     look at the DNA from one person, their oral swab, their saliva, their blood, all the

                     tissue of their body, their bones, their semen, all have the same DNA. So we can

                     compare a sample from the blood or an oral swab from the mouth to DNA from a

                     crime scene, such as blood or semen, and use that to determine if the individual

                     could be the source of that crime scene sample.”

¶ 23         She described four steps to DNA tests: (1) extract the DNA from the item using a reagent

          that is “essentially high tech laundry detergent,” which helps get the DNA out of, for

          example, the shirt it may have been on; (2) solubilize the DNA, or get it into solution and

          remove the other parts of the cell, separating a sexual assault sample into a male sample and

          a female sample; (3) determine “how much DNA we have” and amplify the DNA; and (4)

          examine the different areas of the DNA that are known to be highly variable and make

          comparisons. She explained that DNA amplification is “essentially chemical Xeroxing” in

          order to improve the sensitivity of DNA tests. Dr. Benzinger explained that, in 1993, testing

          included using an RFLP method “that is responsible for the bar code-like patterns that we see

          on TV” that did not use the amplification and was not very sensitive, and also a method

          based on the amplification process known as DQ-Alpha. The DQ-Alpha test “examines some


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          variation in the DNA on one of the chromosomes.” She said the DQ-Alpha test is “only one

          test compared to what we use today which is an array of tests.”

¶ 24         When Dr. Benzinger received the samples from T.C. and Chaney, she numbered T.C.’s

          blood standard 1, Chaney’s blood standard 2, and the vaginal swab 3. Dr. Benzinger testified

          that she then extracted T.C.’s and Chaney’s DNA from the blood samples. She also extracted

          DNA from the vaginal swab. Dr. Benzinger ran controls and created a reagent blank during

          her testing. She explained the controls process:

                             “Q. [ASSISTANT STATE’S ATTORNEY DAVID WEISS:] When

                     you’re doing this test, do you work with any types or do you perform any types of

                     control to determine whether or not you’ve done anything to contaminate or do

                     anything to the sample?

                             A. [DR. BENZINGER:] A. Yes, because of the sensitivity of these tests,

                     we run controls to tell us whether we are introducing extraneous DNA and also

                     whether our methods are working correctly.

                             So the controls I used were samples that I worked with that I placed only

                     reagents in, only the chemicals that I was using. And my expectation was that I

                     should get no DNA type from them if they were not introducing DNA on their

                     own.

                             Q. Was that the result, no DNA?

                             A. Yes.”

¶ 25         Dr. Benzinger obtained profiles using DQ-Alpha testifying from the blood standards of

          T.C. and Chaney, as well as from the vaginal swab. The profile from the vaginal swab did

          not match the profile from Chaney’s blood standard. This excluded him from having

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          contributed to the vaginal sample, that is, he was not the source of the semen on the vaginal

          swab. Dr. Benzinger then followed the lab’s procedure: she dried the DNA she had extracted

          from the vaginal sample on a piece of filter paper, froze it to preserve it, and sealed it. She

          testified she maintained a proper chain of custody at all times during her testing.

¶ 26         On cross-examination, Dr. Benzinger agreed that DQ-Alpha testing has now been

          replaced by DNA testing known as short tandem repeat, or STR, testing. DQ-Alpha tests at

          one area of variation in a sample, while STR can test at 13 locations of a sample. In other

          words, DNA testing has improved over the years to be more sensitive.

¶ 27         Chicago Police detective Thomas McIntyre was assigned to the cold case squad in 2002,

          when he began a file review of the murders of Hedgpeth and Soucy. After learning that the

          rape kit had been destroyed, he learned that DNA had been extracted from the kit samples.

          He sought out the DNA extracts. Detective McIntyre located the DNA extracts in February

          2005 and submitted them for DNA analysis. Later that year, he received the name of an

          individual who had been identified in the FBI database from Anderson, who informed him

          she needed a confirmatory buccal swab. On Jun 29, 2005, Detective McIntyre obtained a

          warrant for a swab from defendant, and an evidence technician took a buccal swab from

          defendant and photographed the tattoo of green roses on his right arm on June 30, 2005.

          Detective McIntyre traveled to Peoria to arrest defendant and then transported defendant

          back to Chicago.

¶ 28         The parties stipulated that retired Chicago Police evidence technician Kerry Watters

          would testify that she collected a buccal swab from defendant on June 30, 2005. She also

          photographed his arm and tattoo at that time. The buccal swab standard was subsequently




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          submitted to the Illinois State Police crime lab for DNA analysis, and a proper chain of

          custody was maintained over the evidence at all times.

¶ 29          Illinois State Police forensic scientist Cynara Anderson testified as an expert in her

          chosen field. Defense counsel cross-examined her as to her qualifications, asking her if she

          had formal training in population statistics and DQ-Alpha testing. As to her qualifications,

          she testified she had completed both a forensic biology training program and a DNA analysis

          training program, and had been previously qualified as an expert in both biology and DNA

          on numerous occasions. She admitted she does not have “formal training in DQ-Alpha,” and

          explained that population genetics was “one of our modules in our DNA training as well as I

          completed course work in my college education.” She opined that population genetics were

          “to a certain extent” one of her areas of expertise. She testified she had studied “about the

          extent of actual preference of DNA” as “they actually exist in the population,” and agreed

          she had studied statistics and population statistics. She agreed that the majority of her

          training and expertise “is with respect to DNA, not to statistics.”

¶ 30          Anderson testified that she received DNA samples of extracted DNA in the T.C. case in

          February 2005. 3 Sample 1A was a DNA standard extracted from T.C., sample 2A was a

          DNA standard extracted from Chaney, and sample 3A was the female fraction (F1), sperm

          fraction (F2), and DNA extracted from the vaginal swab (F3). Anderson testified that,

          because the DNA was dried inside the tubes, she began by adding liquid to sample 1A, the

          standard from T.C., and sample 3A, the extractions from the vaginal swab. She also created a

          blank to monitor the analyses for any contamination. After creating the blank, she had five


              3
               Anderson testified she first received the incorrect evidence package in July 2004. She looked at
          the package, saw that it was not what she needed, and sent it back. She received the correct package
          in February 2005 and proceeded to test the contents as described herein.

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          tubes altogether. She tested the blank tube, which should not contain any DNA, and did not

          receive a DNA result. This meant that she had not introduced any contamination throughout

          her analysis. Therefore, she began the process of amplification, or making copies of the DNA

          in order to have a sufficient amount to “get a decent DNA profile from the extracted DNA.”

          She transferred the DNA from T.C., F1, F2, and her blank to tubes and put them in a machine

          to be amplified. Anderson testified that, during the preparation of the amplification stage, she

          dropped the F2 tube (the sperm fraction from the vaginal swab) onto her exam paper. She

          was still able to put the required amount of DNA into the first tube for the 9-loci

          amplification, but was unsure if she had enough for the second tube for the other 4-loci

          amplification. She put the DNA into the two tubes and amplified it. After amplification, the

          samples, one 9-loci tube and one 4-loci tube, were ready to be put into another instrument in

          order to generate the DNA profiles. In the 9-loci tube, the non-sperm fraction (F1) generated

          a profile matching the standard from T.C., and the sperm fraction generated an unknown

          male profile. Anderson did not get any results from the 4-loci tube. She testified it is not

          uncommon to not get results on the 4-loci tube.

¶ 31         On May 23, 2005, Anderson entered the unknown male profile into the FBI database and

          got two possible matches. One of these possible matches was defendant along with his

          various aliases, and the other matched to a private laboratory. She telephoned the private

          laboratory and determined that they had made an error in uploading certain information such

          that, in the end, the second possible match was not a match. The nine loci matched to

          defendant. Anderson requested a “confirmatory standard” from the Chicago Police so she

          could perform an analysis to confirm the hit. She received that confirmatory standard in




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          September 2005, and extracted a DNA profile which matched the profile identified in the F2

          sperm fraction taken from T.C.’s vaginal swab.

¶ 32         Anderson testified that she then performed a statistical calculation of how rare the profile

          identified in the F2 sperm fraction would be in a given population. She testified:

                             “A human DNA profile was identified in Exhibit 3A, which matches the

                     DNA profile of [defendant]. This profile will be expected to occur in

                     approximately 1 in 52 billion blacks, 1 in 390 billion white, or 1 in 200 billion

                     Hispanic unrelated individuals at the nine loci I worked with.”

¶ 33         Anderson also testified that, after she entered the sperm fraction in the database, the DNA

          profile is “continually run as of now,” that every time somebody puts a profile in the

          database, it is run against the DNA in this case. Since the database hit on defendant’s profile

          in 2005, it has never hit to any other person or any other profile in the database. If it were to

          hit on another individual or profile, Anderson would be notified.

¶ 34         On cross-examination, Anderson explained her process for generating the probability

          statistics for the rarity of the DNA profile. She testified that there are 13 loci from which to

          test. The value at each loci has a frequency of occurrence, and there are two possibilities at

          each loci. The chances of the two values at each loci are added together and then multiplied

          for the next location. Anderson acknowledged on cross-examination that she was only able to

          determine the values at nine loci because she spilled the DNA, that she did not know the

          profile for the additional four loci, and that if any of the remaining four loci did not match

          defendant, he would be excluded as the offender.

¶ 35         Blake Willey, a former administrator at Somerset Nursing Home, located two blocks

          from the scene of the crime, testified that defendant worked at the nursing home from May


                                                       17
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          1990 to February 1991. During that time, nursing home personnel had to wear picture

          employee identification cards and carry time clock punch cards. The picture identification

          card was white and “about the size of a credit card.” He testified that some employees wore

          their identification on a chain around their neck.

¶ 36         Chicago Police Lieutenant Anthony Wojcik testified he was a sergeant in the cold case

          homicide investigation unit on June 30, 2005. He spoke with defendant that day in an

          interview room at the police station. After advising defendant of his rights, defendant

          indicated he understood them. Then Lieutenant Wojcik went over his rights a second time.

          He asked defendant if he understood he was under arrest for the murders of Hedgpeth and

          Soucy, as well as for the rape and attempted murder of a young girl, and for arson of the

          residential building at 1060 West Lawrence. Defendant said he understood that was why he

          was in custody. Defendant asked what was happening in the case. Lieutenant Wojcik told

          defendant that the detectives were just about finished with their investigation and had

          contacted the State’s Attorney’s office. He told defendant a State’s Attorney was on her way

          to the police station and would review the case with the detectives and determine whether

          charges should be brought against him. Wojcik testified, “I told him this investigation has

          shown without doubt that you’re the guy that committed those crimes that you’re under arrest

          for. I said I believe you’re going to be charged with those crimes.” Defendant asked what the

          statute of limitations for the crimes was, and Wojcik told him there was no statute of

          limitations on “murder related crime.”

¶ 37         Lieutenant Wojcik testified:




                                                       18
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                            “Well, he was quiet for a little while, then he just said I’m tired. He said

                     I’m tired of denying that I know anything about this and then he stated—he said

                     it’s these blackouts, man. He said I can’t control the blackouts.

                                                    ***

                            He said, yes, throughout his life there would be periods of time where he

                     would have these blackouts. When he had these blackouts, he said the others

                     would take over. He said when the others took over he said I did f***d up things

                     that he was then held responsible for and he said in regards to this incident there

                     are things I do remember and some of it that he didn’t remember.

                                                    ***

                            I said, what do you mean by the others? He says that there are two

                     individuals, that they were inside of him, and he said at times they would take

                     over—they would take over his body.

                                                    ***

                            I asked him what happened *** in this incident [with the murders of

                     Hedgpeth and Soucy]. He says—he said I blacked out and the others took over.”

¶ 38         According to Wojcik, defendant recalled that a day or two prior to the incident, he

          walked by a gas station and saw a black woman he knew drinking beer with Lawrence

          Soucy. The woman introduced Soucy to defendant, and defendant started drinking with them.

          At some point, Soucy told defendant he had some money in a can at his apartment.

          Eventually defendant and Soucy walked back to Soucy’s basement apartment together.

          Defendant returned to Soucy’s apartment a day or two later and started looking for the can of




                                                      19
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          money. Soucy came in and asked defendant what he was doing, and a white woman entered

          the apartment and shouted at defendant to get out. Wojcik testified:

                             “The next thing he said that he remembered was he was running from the

                     rear of the building and the building was burning and it was on fire. He said he

                     ran through an alley to get away from there, and then later he realized that his hair

                     was frizzed. He said it was frizzed, and then he said it was singed from the flames

                     in the heat.

                             ***

                             He said he went to a beauty salon in the neighborhood, and he had his hair

                     trimmed and then he got a perm.”

¶ 39         Lieutenant Wojcik said he asked defendant if he knew the two individuals had been

          killed, asked him why his semen was in the young girl, and why he set the building on fire.

          He testified defendant responded:

                             “He says when I blacked out he said the others must have made me do

                     things then that I don’t remember.”

¶ 40         Lieutenant Wojcik testified defendant said he did not remember ever having seen or met

          T.C. Defendant confirmed he was employed at Somerset House and thought he was on duty

          or working when he went to Soucy’s apartment. Defendant also told Wojcik that he wore his

          ID cards around his neck, he wore his long hair back in a ponytail, and he had a tattoo on his

          arm. Defendant identified a photograph of the building at 1058-1060 West Lawrence as

          Soucy’s building. Lieutenant Wojcik then asked defendant if he would speak with the

          assistant State’s Attorney, and defendant said he would.




                                                      20
       1-13-1009


¶ 41         On cross-examination, defense counsel asked Lieutenant Wojcik why he did not request a

          court reporter to record defendant’s statement. Wojcik responded:

                             “[B]ecause at a certain point the defendant asked for an attorney, so we

                     didn’t get to that point where we would have called for a court reporter.

                             ***

                             *** [I]t would have been—when I got done talking to him it was about

                     4:15. I want to say it was some time around a little bit after 5:00 o’clock or so

                     when he asked for an attorney. When I was in there with the State’s Attorney was

                     the first time he asked for an attorney.”

          Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was

          the responsibility of the State’s Attorney. He said:

                             “The State’s Attorney would make [the decision to call a court reporter] in

                     consult with [defendant] if he was willing to do that, but while the State’s

                     Attorney was speaking to [defendant] he requested an attorney. So at that time all

                     conversation stops.”

¶ 42         The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,

          arguing that the witness repeatedly emphasized that defendant had requested an attorney. The

          trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel

          replied, “Because I didn’t want to emphasize that he had brought it out[.]” The trial court

          denied the motion for a mistrial, saying “what prompted the part about the attorney is

          because you [defense counsel] asked him questions about why weren’t charges approved

          before the State’s Attorney got there,” and “the only logical answer he could say upon your

          continuing questioning is, well, because he asked for an attorney. It was not brought out


                                                       21
       1-13-1009


          volitiously [sic] by him. In my opinion it was brought out by your continuing questions for

          that area.”

¶ 43          Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of

          questions about what he did and did not do while questioning defendant. Specifically,

          defense counsel asked a series of questions regarding why Wojcik did not drive defendant up

          to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon

          where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to

          find the salon, but did not drive defendant there to do so. Counsel again asked why, when

          defendant allegedly had said the salon was in the neighborhood but was unsure of the street it

          was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.

          Wojcik answered:

                               “Again, Counsel, I probably would have done that, but he asked for an

                        attorney, which means at that point everything—any conversations I was having

                        with him about the case had to stop, including putting him in a car and having him

                        to point locations out.”

¶ 44          At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a

          new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an

          attorney. The trial court denied the motion, responding:

                               “The problem with this is the way you asked the question once it came out

                        once the charges were approved upon [the assistant State’s Attorney] arriving

                        there and it came out that he asked for an attorney and didn’t obviously want to

                        talk to her without one, this was a natural response to a question about after he




                                                        22
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                     was through talking putting him in the car and taking him somewhere and having

                     him find someone.

                             This is exactly what happens when you are not directing him to a

                     particular time. You simply asked a question. I just wanted you to make a record.

                     Your motion for a new trial is denied. This is the fourth time he stated he wanted

                     an attorney.”

¶ 45         Assistant State’s Attorney Christa Bowden testified that she arrived at the police station

          around 3:00 p.m. on June 30, 2005. She was a trial supervisor in the felony review unit at the

          time. She spoke with defendant along with Lieutenant Wojcik. She introduced herself to

          defendant, advised him of his rights, and told him that she was an attorney but not his

          attorney. They talked for approximately 30 to 40 minutes. Assistant State’s Attorney Bowden

          testified that defendant acknowledged having talked with Lieutenant Wojcik, and she asked

          him to tell her what they had spoken about. She testified:

                             “A. [ASSISTANT STATE’S ATTORNEY BOWDEN:] Well, I had asked

                     him if he would tell me the things that he was talking to [Wojcik] about, and he

                     told me that he remembered that he had been drinking—around the time of the

                     incident he had been drinking with an older white guy and a black woman at a

                     filling station and that he left the filling station with the older white guy, and the

                     black woman didn’t come and that he and the older white guy went to a building.

                     The next thing that he remembered after that was that he was running down an

                     alley and ended up at a beauty parlor.




                                                      23
1-13-1009


                    Q. [ASSISTANT STATE’S ATTORNEY MARY JO MURTAUGH:]

             And did he also tell you that he believed that something weird had happened that

             day?

                    A. Yes. He said as he was running down this alley he knew that something

             had happened, but the next thing he knew he was at a beauty parlor. After he said

             that [ ] he didn’t remember between going to the building with the older white

             guy and running down the alley thinking something weird had happened and

             ending up at the filling station, he said at that time that he was ready to die and he

             just wanted to get it over with.

                                            ***

                    Q. Did David Banks tell you anything about when he seemed to get his

             life together that something happens?

                    A. Right. So after he said this statement about just wanting to get it over

             with, that prompted an inquiry about what are you talking about. He said, well,

             every time he seems to get his life together and gets a job, gets an apartment, gets

             a woman, people go on and mess things up for him; and he knows that people

             mess things up for him because other people tell him that they do things that mess

             things up for him.

                                            ***

                    He said he should be in prison so these things don’t happen.”

   When Assistant State’s Attorney Bowden asked defendant who these people were, he

   described them as being a person named Durell, who was a murderer, a person named Snow

   who is nine years old, and a 63-year-old Portuguese man “who was a pervert, who would

                                                24
       1-13-1009


          screw anything, in his words, even little girls.” She testified that defendant said, “These

          three, Durell, Snow, and unnamed Portuguese would do things, and he would be the person

          that would have to take responsibility for those things.” She said defendant told her he

          wanted to tell the truth, that he did not dispute his DNA being at the crime scene, but instead

          simply did not remember what happened before he was running down the alleyway towards

          the beauty parlor.

¶ 46         Defendant’s statement was neither reduced to writing nor recorded in any way.

¶ 47         The trial court then instructed the jury:

                               “Ladies and gentlemen, in a moment evidence will be received that the

                     Defendant has been involved in an incident other than those charged in the

                     indictment before you. This evidence will be received on the issue of Defendant’s

                     propensity. And may be considered by you only for that limited purpose.”

¶ 48         Then, G.R. testified regarding the sexual assault defendant committed against her on

          November 12, 1984. On that afternoon, G.R. was pushing her 11-month old daughter in a

          stroller near the 5500 block of South Wabash in Chicago. Defendant crossed the street in

          front of her and stopped her. He put his hand in his pocket, pointed it at her and said, “Bitch

          don’t move; I have a gun.” G.R. begged for her life. Defendant directed her towards a

          secluded area down a gangway, under a back porch in a “little basement area,” and told her

          to remove her clothes. When she had one leg out of her pants, defendant noticed a man in a

          nearby yard. He told G.R. to get up. She got dressed and he instructed her to move. He took

          her into the basement of another apartment building. He told her to take her clothes off and

          he removed his own pants. He then forced his penis into G.R.’s mouth, put his mouth on her

          vagina, and had vaginal sex with her. Afterward, he apologized and offered to pay her not to


                                                         25
       1-13-1009


          tell anybody. He walked her home and helped her carry the child up the stairs in her stroller.

          G.R.’s sister, the sister’s boyfriend, and G.R.’s boyfriend were all in the apartment.

          Defendant sat down in the apartment while G.R. went into her bedroom with her boyfriend.

          She told her boyfriend defendant had just raped her. G.R. called the police, who came to the

          apartment and arrested defendant.

¶ 49         The State rested. Defendant asked for a directed verdict, which the court denied.

¶ 50         Defendant testified on his own behalf. He admitted having worked at Somerset House,

          but denied that he wore his identification cards on a chain around his neck. He denied having

          ever met Hedgpeth, Soucy, or T.C. He denied having ever been in the building at 1058-1060

          West Lawrence. He denied having had anything to do with the crime. He admitted he spoke

          with Detective Wojcik and Assistant State’s Attorney Bowden, but denied having told them

          he was at all involved in this crime. He denied having told them he had blackouts, nor that

          there were people inside of him who made him do things. He admitted having worn his hair

          in a ponytail, but denied that his hair got frizzed or singed in the fire or that he went to a

          beauty salon in the neighborhood to get it fixed after the fire. He showed his tattoo to the

          jury. The tattoo, on his right arm, was of roses and a bare-chested woman. He explained that

          he got the tattoo in 1994 to cover up a previous tattoo. The previous tattoo, which he got in

          1989, was of the letters “BGGS” with a pitchfork running through it, which was a symbol of

          the street gang to which he belonged. Defendant recalled that in September 1990, he lived

          with a woman named Darlene and took care of her children. He testified he told the

          detectives that, on the day of the crime, Darlene was in the hospital and he was babysitting

          her children on the Southside of Chicago.




                                                      26
       1-13-1009


¶ 51         The defense rested. The State then entered a certified copy of defendant’s conviction for

          murder. The trial court advised the jury:

                             “Evidence of the Defendant’s previously [sic] conviction of an offense

                     may be considered by you only as it may affect his believability as a witness, and

                     must not be considered by you as evidence of his guilt of the offense with which

                     he is charged.”

¶ 52         At the close of arguments by both parties, the trial court instructed the jury, in part:

          “[a]ny evidence that was received for a limited purpose should not be considered by you for

          any other purpose.”

¶ 53         The jury returned a verdict of guilty on all counts: intentional and knowing murder of

          Irene Hedgpeth and Lawrence Soucy, felony murder based on the offense of criminal sexual

          assault, felony murder based on the offense of arson, and arson.

¶ 54         Defense counsel filed a motion for a new trial, which the court denied.

¶ 55         At sentencing, the trial court merged the felony murder counts into the intentional and

          knowing murder counts. It also noted defendant’s prior conviction for murder and the sexual

          assault case. The trial court sentenced defendant to natural life without parole for each count

          of first degree murder, and a 14-year term of imprisonment for arson, to be served

          consecutively to the two natural life sentences. Defense counsel filed a motion to reconsider

          the sentences, which was denied.

¶ 56         Defendant appeals.

¶ 57                                             ANALYSIS

¶ 58                                          I. DNA Evidence




                                                      27
       1-13-1009


¶ 59         Defendant first challenges the admission of DNA evidence at trial, arguing that the case

          “rose and fell on the DNA evidence,” which evidence, he argues, should never have been

          admitted in the first place. He contends (1) there was an unexplained, inexcusable gap in the

          chain of custody of the DNA evidence between Dr. Benzinger and Anderson; (2) the trial

          court erred in not granting a Frye hearing as to whether Anderson’s methodology was

          accepted in the scientific community; (3) the trial court erred when it denied defense

          counsel’s motion for relief with regard to the spilled genetic material; and (4) the trial court

          erred in limiting the cross-examination of Anderson regarding studies on 9-loci matches. We

          address each argument in turn.

¶ 60         Initially, we disagree with defendant’s characterization of his trial as one which rested

          solely on DNA evidence. In his brief on appeal, defendant argues that “[t]his was, at all

          times, a DNA-driven case.” He reminds the court that the prosecutor in closing arguments

          repeated Anderson’s testimony that the semen recovered from T.C.’s vagina matched

          defendant’s DNA at 9 loci, which would be expected to occur in approximately 1 in 52

          million Black individuals. He argues “this was a case which rose and fell on the DNA

          evidence. In fact, there was virtually no forensic evidence tying him to the two murders.” He

          says that, because this was such an old case and defendant only came to the attention of the

          police 15 years after the murders occurred based on a “cold hit” DNA match, “[w]ithout the

          DNA *** there is no case here.”

¶ 61         It is true the DNA profile generated in this case matched defendant’s profile when run

          through the FBI database in 2005. A confirmatory buccal swab was obtained from defendant

          at that time, then, which provided confirmation that defendant’s DNA matched the DNA

          evidence recovered in this case at 9 loci. However, in this court’s opinion, there was


                                                      28
       1-13-1009


          additional evidence presented at trial that also ties defendant to this crime. Most tellingly,

          defendant provided an inculpatory statement to Lieutenant Wojcik and then to Assistant

          State’s Attorney Bowden in which he implicated himself in the crime. Although the

          statement was not memorialized in writing or in a recording, both Wojcik and Bowden

          testified to the statement in great detail. In his statement, defendant admitted to knowing

          victim Soucy. He described having met him days before the murder and visiting his

          apartment. He described how Soucy kept a can of money in his apartment and how, on the

          day of the murders, he returned to Soucy’s home to search for the can of money. His search

          was interrupted first by Soucy and then by Hedgpeth, who demanded he leave. Defendant

          told both Wojcik and Bowden that he then blacked out. The next thing he remembered, he

          said, was running down an alley away from the burning building, his long hair singed by fire.

          He also told both Wojcik and Bowden in great detail that individuals inside of him cause him

          to do bad things, saying the “others” inside him must have put his semen inside T.C. He told

          Lieutenant Wojcik that he wore his hair long and in a ponytail around the time of the

          murders, that he worked at Somerset House during that time, and that he wore his work

          identification cards on a chain around his neck.

¶ 62         Defendant’s statement was corroborated by former Somerset administrator Blake Willey,

          who testified defendant worked at nearby Somerset House during the time of the murders,

          that employees were required to wear identification cards which were approximately the size

          of credit cards, and that many employees wore these cards around their necks. Defendant’s

          statement was further corroborated by T.C.’s testimony that her attacker was a Black man

          with long hair pulled into a ponytail who wore a chain around his neck with two credit card-




                                                      29
       1-13-1009


          sized cards on it. Essentially, defendant confessed that he committed the crimes under the

          influence of the “others” inside of him.

¶ 63          For these reasons, we disagree with defendant’s representation that the case was based

          solely on DNA evidence, but instead find that the DNA was one piece of the evidence by

          which the jury found defendant guilty.

¶ 64                                         A. The Chain of Custody

¶ 65          Defendant first contends the circuit court erred in admitting the DNA evidence where

          there allegedly was a gap in the chain of custody regarding the DNA evidence between

          forensic scientists Dr. Elizabeth Benzinger and Cynara Anderson. Specifically, defendant

          argues that, where Dr. Benzinger testified she preserved the extracted DNA by putting it on a

          piece of filter paper which she then dried and froze, Anderson testified she received the

          extracted DNA evidence in “tubes.” On appeal, defendant argues that these descriptions do

          not match to such an extent that there was a complete breakdown in the chain of custody that

          should have resulted in the exclusion of any resulting DNA testing completed on those

          materials. We disagree.

¶ 66          As a threshold matter, we note that the State argues on appeal, and defendant apparently

          concedes, 4 that he has forfeited this issue for purposes of appeal by failing to object to it at

          trial and by failing to raise it in his posttrial motion. See People v. Thompson, 238 Ill. 2d 598,

          611-12 (2010) (“To preserve a claim for review, a defendant must both object at trial and

          include the alleged error in a written posttrial motion.”) (citing People v. Enoch, 122 Ill. 2d

          176, 186 (1988)). Nonetheless, defendant urges us to consider his claim under the plain error

              4
               Although defendant does not specifically state that he failed to preserve this issue, he argues on
          appeal that we should review his complaint as plain error. He argues that “this is the kind of error that
          the Supreme Court has deemed cognizable under the plain error doctrine—there was a ‘complete
          breakdown’ in the required chain of custody. People v. Woods, 214 Ill. 2d 455, 471-72 (2005).”

                                                          30
       1-13-1009


          doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Any error, defect, irregularity, or

          variance which does not affect substantial rights shall be disregarded. Plain errors or defects

          affecting substantial rights may be noticed although they were not brought to the attention of

          the trial court.”); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 67         The plain error doctrine “bypasses normal forfeiture principles and allows a reviewing

          court to consider unpreserved claims of error in specific circumstances.” Thompson, 238 Ill.

          2d at 613. Specifically, the plain error doctrine permits “a reviewing court to consider

          unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely

          balanced that the error alone threatened to tip the scales of justice against the defendant,

          regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that

          error is so serious that it affected the fairness of the defendant’s trial and challenged the

          integrity of the judicial process, regardless of the closeness of the evidence.” People v.

          Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing Herron, 215 Ill. 2d at 186-87); see also

          Thompson, 238 Ill. 2d at 613. Under either prong of the plain error doctrine, the burden of

          persuasion remains on the defendant. People v. Lewis, 234 Ill. 2d 32, 43 (2009).

¶ 68         Our supreme court has said:

                             “We reject the notion that a challenge to the State’s chain of custody is a

                     question of the sufficiency of the evidence. A chain of custody is used to lay a

                     proper foundation for the admission of evidence. Accordingly, a defendant’s

                     assertion that the State has presented a deficient chain of custody for evidence is a

                     claim that the State has failed to lay an adequate foundation for that evidence. See

                     2 J. Strong, McCormick on Evidence § 212, at 9 (5th ed. 1999). Thus, a challenge

                     to the chain of custody is an evidentiary issue that is generally subject to waiver


                                                       31
       1-13-1009


                     on review if not preserved by defendant’s making a specific objection at trial and

                     including this specific claim in his or her posttrial motion.” Woods, 214 Ill. 2d at

                     471.

          Notwithstanding, our supreme court has recognized that a challenge to the State’s chain of

          custody can be reviewed for plain error in the rare case where there is a complete breakdown

          in the chain. People v. Alsup, 241 Ill. 2d 266, 277 (2011) (citing Woods, 214 Ill. 2d at 471-

          72). The Woods court provided an example for plain error review, saying, “in those rare

          instances where a complete breakdown in the chain of custody occurs—e.g., the inventory

          number or description of the recovered and tested items do not match—raising the

          probability that the evidence sought to be introduced at trial was not the same substance

          recovered from defendant, a challenge to the chain of custody may be brought under the plain

          error doctrine.” Woods¸ 214 Ill. 2d at 471-72. The court explained: “When there is a

          complete failure of proof, there is no link between the substance tested by the chemist and

          the substance recovered at the time of the defendant’s arrest. In turn, no link is established

          between the defendant and the substance. In such a case, a failure to present a sufficient chain

          of custody would lead to the conclusion that the State could not prove an element of the

          offense ***.” Woods, 214 Ill. 2d at 472.

¶ 69         When the State seeks to introduce an object into evidence, it must lay a proper foundation

          through either its identification by witnesses or through establishing a chain of possession.

          Woods, 214 Ill. 2d at 466. The character of the object the State seeks to introduce determines

          which method to establish a foundation the State must employ. Woods, 214 Ill. 2d at 466. If

          an item is “readily identifiable and [has] unique characteristics, and its composition is not

          easily subject to change,” the party may elicit testimonial evidence showing that the item is


                                                      32
       1-13-1009


          the same item recovered and that it is in substantially the same condition as when it was

          recovered.” Woods, 214 Ill. 2d at 466. If the evidence is “not readily identifiable or may be

          susceptible to tampering, contamination or exchange,” (Woods, 214 Ill. 2d at 467) the party

          must establish a sufficient chain of custody “that is sufficiently complete to make it

          improbable that the evidence has been subject to tampering or accidental substitution”

          (internal quotation marks omitted) (Alsup, 241 Ill. 2d at 274). Once the State has established

          this prima facie case, the burden shifts to the defendant to show actual evidence of

          tampering, alteration, or substitution. Alsup, 241 Ill. 2d at 274-75. Our supreme court has

          cautioned:

                              “In the absence of such evidence [of tampering, alteration, or substitution]

                       from defendant, a sufficiently complete chain of custody does not require that

                       every person in the chain testify, nor must the State exclude every possibility of

                       tampering or contamination. [Citation.] It is not erroneous to admit evidence even

                       where the chain of custody has a missing link if there was testimony which

                       sufficiently described the condition of the evidence when delivered which

                       matched the description of the evidence when examined. [Citation.] At this point,

                       deficiencies in the chain of custody go to the weight, not admissibility, of the

                       evidence. [Citation.].” Alsup, 241 Ill. 2d at 274.

¶ 70         The admission of evidence at trial is a matter left to the discretion of the trial court, and

          the court’s decision on that point will not be disturbed absent an abuse of that discretion.

          People v. Pikes, 2013 IL 115171, ¶ 12. An abuse of discretion occurs when the ruling is

          arbitrary, fanciful, or unreasonable or when no reasonable person would adopt the trial

          court’s view. People v. Taylor, 2011 IL 110067, ¶ 27.


                                                         33
       1-13-1009


¶ 71         As noted, defendant failed to properly preserve this issue for appeal. He did not object to

          the foundation for the evidence at trial, nor did he raise the issue in his posttrial motion.

          Therefore, the issue is forfeited. See, e.g., Enoch, 122 Ill. 2d at 186. Our supreme court has

          noted that forfeiture in cases such as this is particularly appropriate because, where the

          defendant fails to object to the foundation of evidence at trial, the State misses its opportunity

          to cure any error. See Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is

          particularly appropriate when a defendant argues that the State failed to lay the proper

          technical foundation for the admission of evidence” because the “lack of a timely and

          specific objection deprives the State of the opportunity to correct any deficiency in the

          foundational proof at the trial level”). Under the plain error rule, we consider whether any

          error has occurred at all. Lewis, 234 Ill. 2d at 43; People v. Wilson, 404 Ill. App. 3d 244, 247

          (2010) (“There can be no plain error if there was no error at all ***.”). This requires a

          “substantive look” at the issue raised. People v. Johnson¸ 208 Ill. 2d 53, 64 (2003). We will

          therefore first review defendant’s claim to determine if there was any error before

          considering it under plain error.

¶ 72         Here, the chain of custody presented by the State at trial regarding the collected DNA

          evidence was sufficiently complete. Chicago Police crime lab forensic scientist Jove testified

          he received the rape kit taken from T.C. in July 1993. The kit contained oral, rectal, and

          vaginal swabs and smears; microscopic slides; and fingernail samples. After performing his

          examinations on the specimens, he sent the samples to the Illinois State Police forensic lab

          for DNA testing. He testified he maintained a proper chain of custody over the items.

¶ 73         Forensic scientist Dr. Benzinger testified at trial that she received blood reference

          samples from T.C. and Albert Chaney in October 1993. She specifically testified that the


                                                       34
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          items were sealed when she received them. She numbered T.C.’s blood standard 1, Chaney’s

          blood standard 2, and the vaginal swab 3. She extracted DNA from the blood standards and

          the vaginal swab. She then dried the extracted DNA onto a piece of filter paper, froze it to

          preserve it, and sealed it. She specifically testified she maintained a proper chain of custody

          at all times during her testing.

¶ 74          Illinois State Police forensic scientist Anderson testified she received tubes with dried,

          extracted DNA inside them on February 16, 2005. 5 The extracted DNA she received matched

          the numbers provided by Dr. Benzinger: 1A was the extracted DNA from T.C., 2A was the

          extracted DNA from Chaney, and 3A was the extracted DNA from the vaginal swab.

          Anderson specifically described the evidence package she received:

                              “At this time I received the tubes of extracted DNA that the prior DNA

                      analyst had created. So there was our Exhibit 1A, which is extracted DNA from

                      [T.C], our Exhibit 2A which was reportedly extracted DNA from Albert Chaney,

                      and Exhibit 3A, which contained the F1 which is the female fraction or the non-

                      sperm fraction, the F2 which is the sperm fraction, and the F3 fraction of

                      extracted DNA from the vaginal swab of [T.C.].”

¶ 75          Defendant’s argument that there was a “complete breakdown” in the chain of custody is

          unavailing where, through the above testimony, the State presented a sufficient foundation

          and chain of custody to show that the DNA extracts received by forensic scientist Anderson



              5
               Defendant focuses on the fact that, on July 8, 2004, Anderson received the incorrect evidence
          package to test. Specifically, Anderson testified at trial that she initially received “a package, but it
          wasn’t the evidence I was looking for” and explained it was “Just some envelopes. They were marked
          as being swabs from [T.C.], Albert Chaney and [T.C.], but that was not what I was looking for[.]” She
          requested “different information” and received the package with “the tubes of extracted DNA that the
          prior DNA analyst had created” on February 16, 2005. In our opinion, this demonstrates Anderson’s
          attention to detail and does not in any way reflect negatively on her work.

                                                          35
1-13-1009


   were the same DNA extracts tested and preserved by forensic scientist Dr. Benzinger. See,

   e.g., Alsup, 241 Ill. 2d at 274. Because the State has presented a prima facie case that the

   chain of custody was sufficiently complete to make it “improbable that the evidence has been

   subject to tampering or accidental substitution,” the burden shifts to defendant to show actual

   evidence of tampering, alteration, or substitution of the evidence. (Internal quotation marks

   omitted.) Alsup, 241 Ill. 2d at 274. The defendant fails to do so. In fact, the defense provided

   no evidence at trial that there was any tampering, exchange or contamination of the DNA

   material. Defendant, in fact, did not object in any way to the foundation of this evidence at

   trial. See, e.g., Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is particularly

   appropriate when a defendant argues that the State failed to lay the proper technical

   foundation for the admission of evidence,” because the “lack of a timely and specific

   objection deprives the State of the opportunity to correct any deficiency in the foundational

   proof at the trial level”). 6 Our review of the record does not show inconsistency in the

   descriptions of the evidentiary material at issue, and the alleged discrepancy does not amount

   to a “complete breakdown” in the chain of custody. Once the State established the probability

   that the evidence was not compromised, and defendant failed to show actual evidence of

   tampering or substitution, deficiencies in the chain of custody go to the weight, not the

   admissibility, of the evidence. Alsup, 241 Ill. 2d at 275. We find no abuse of discretion in the


       6
        This, in fact, is a prime example of the importance of a timely and specific objection when
   laying a proper technical foundation for the admission of evidence. Here, Benzinger testified she
   dried the extracted DNA onto a substrate, or a piece of filter paper, which she then froze to preserve.
   Benzinger also testified regarding the process of extracting DNA from a substrate by using what she
   described as a “high tech laundry detergent.” Anderson testified that she received tubes containing the
   “extracted DNA that the prior DNA analyst had created.” Had the evidence been challenged at trial,
   the parties could have clarified whether, for example, the tubes containing the extracted DNA actually
   contained the piece of filter paper onto which Benzinger had dried the extracted DNA. Because there
   was no objection at trial, there was no further exploration of the description of the received DNA
   evidence.

                                                   36
       1-13-1009


          trial court’s determination to allow the DNA evidence in at trial. See Pikes, 2013 IL 115171,

          ¶ 12. We therefore find no plain error here. See Wilson, 404 Ill. App. 3d at 247 (“There can

          be no plain error if there was no error at all ***.”).

¶ 76                                          B. No Frye Hearing

¶ 77         Defendant next contends that the trial court erred in denying his request for a Frye

          hearing regarding whether forensic scientist Anderson’s methodology was accepted in the

          scientific community. Specifically, defendant argues that he was entitled to a Frye hearing

          because the scientific protocols evolved between when his DNA was tested in 2005 and the

          time of trial in 2013. We disagree.

¶ 78         In Illinois, the admission of expert testimony is governed by the standards expressed in

          Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); In re Commitment of Simons, 213 Ill. 2d

          523, 529 (2004). Under Frye, scientific evidence is only admissible at trial if the

          “methodology or scientific principle upon which the opinion is based is ‘sufficiently

          established to have gained general acceptance in the particular field in which it belongs.’ ” In

          re Commitment of Simons, 213 Ill. 2d at 529-30 (quoting Frye, 293 F. at 1014)). General

          acceptance of a methodology “does not require that the methodology *** be accepted by

          unanimity, consensus, or even a majority of experts.” In re Commitment of Simons, 213 Ill.

          2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002),

          abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d at 530. The trial

          court will apply the Frye test only if the scientific principle, technique, or test offered by the

          expert to support his or her conclusion is new or novel. In re Marriage of Bates, 212 Ill. 2d

          489, 519 (2004). Generally, a scientific technique is new or novel if it is original or striking

          or does not resemble something formerly known or used. Donaldson, 199 Ill. 2d at 79. Under


                                                        37
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          Frye, the court considers the general acceptance of a scientific methodology, not the

          particular conclusions at issue in a particular case. People v. McKown, 226 Ill. 2d 245, 255

          (2007). There is no “Frye-plus-reliability” test in Illinois, in which the court first determines

          if the technique or methodology is accepted and then considers whether it is reliable. People

          v. Nelson, 235 Ill. 2d 386, 431 (2009).

¶ 79         There is a dual standard of review regarding the admissibility of expert testimony. Abuse

          of discretion review applies when the question is whether “an expert scientific witness is

          qualified to testify in a subject area, and whether the proffered testimony is relevant in a

          particular case.” In re Commitment of Simons, 213 Ill. 2d at 530-31. De novo review applies

          when this court must determine “whether a Frye hearing is required and, if so, whether the

          scientific technique at issue is generally accepted in the relevant scientific community.” In re

          Commitment of Simons, 213 Ill. 2d at 530-31.

¶ 80         Here, prior to trial, defendant filed a motion requesting a Frye hearing on the

          admissibility of the DNA evidence against him. By that motion he argued that, because the

          rape kit and the original blanks and controls made by Dr. Benzinger were no longer

          available, forensic scientist Anderson created new blanks and controls for testing. Defendant

          claims this subsequent testing by Anderson, though consistent with scientific protocol at the

          time of testing, was contrary to scientific protocol by the time of trial and, accordingly, was

          impermissible. In part, the motion alleged:

                             “It has subsequently been learned that the Illinois State Crime Lab lost the

                     controls or blanks each of the original 3 fractions of DNA. However, a new

                     control or blank was manufactured and used. Such a method is no longer

                     acceptable under current protocols of the lab. This is the reasons [sic] that the Lab


                                                        38
       1-13-1009


                     had refused to test the 3rd Fraction of DNA. Testing was performed on the First

                     [sic] two fractions under this not acceptable method of DNA testing. The analyst,

                     Cynara Anderson, who performed that testing and used new blanks or controls

                     has told Defense Counsel that she has no idea if it is generally accepted in the

                     scientific community, as required by Frye, to use the results of the previous

                     testing because the method used is not currently permitted as an acceptable

                     Forensic DNA testing procedure. Additionally, the original vitullo kit (rape kit)

                     has been lost or destroyed, so re-testing under generally accepted DNA testing

                     procedures is not an option.”

          Defendant argues Anderson’s methodology was appropriate and accepted in 2005, but that

          the FBI standards changed in 2009 to include more stringent rules regarding testing

          procedures.

¶ 81         After a hearing on the motion, the trial court denied the request for a Frye hearing

          regarding the DNA testing without the original blanks, stating: “Frye does not apply once

          determined that the scientific method is generally accepted” and noting that “[t]here is no

          Frye standard plus reliability standard, no independent evaluation of the theory or the

          reliability once the general acceptance threshold has been met. Reliability comes from

          general acceptance.” The court further explained that defendant’s arguments regarding the

          DNA testing “goes to the weight, not the admissibility under Frye,” and that defendant’s

          concerns could be addressed at trial through “vigorous cross-examination presentations of

          contrary evidence such as expert testimony.” It stated, “[t]he Frye standard applies only if

          scientific principle and technique or test offered is new or novel.”




                                                       39
       1-13-1009


¶ 82          Although defendant argues on appeal that the DNA evidence should have been

          inadmissible because the methodology used by Anderson was outdated at the time of trial

          (but not at the time of testing), this argument is actually based on the trial court’s denial of

          defendant’s motion requesting a Frye hearing. On appeal, defendant does not challenge the

          trial court’s ruling and does not argue that the trial court abused its discretion in denying the

          motion for a Frye hearing. Defendant did not preserve this issue by objecting at trial or

          including it in his posttrial motion (Enoch, 122 Ill. 2d at 186), and he has not argued on

          appeal that we should consider it based on plain error (Herron, 215 Ill. 2d at 186-87). We

          therefore find this issue to be forfeited.

¶ 83          Even if the issue was not forfeited, however, and we considered it under a plain error

          analysis, we would still find no error. See, e.g., Wilson, 404 Ill. App. 3d at 247 (“There can

          be no plain error if there was no error at all ***.”). A Frye hearing is limited to situations

          where the technique or test is new or novel, or, for example, where the scientific test does not

          resemble a formerly known or used test. See In re Marriage of Bates, 212 Ill. 2d at 519 (trial

          court will apply the Frye test only if the scientific principle, technique, or test offered by the

          expert to support his or her conclusion is new or novel); Donaldson, 199 Ill. 2d at 79

          (generally, a scientific technique is new or novel if it is original or striking or does not

          resemble something formerly known or used). At the time she ran the test in 2005, Anderson

          followed all relevant protocols. We find no error in the trial court’s determination that no

          Frye hearing was required where the test and methodology used by Anderson was not new or

          novel.

¶ 84                    C. DNA Exclusion Based on Inadvertent Laboratory Spillage




                                                       40
       1-13-1009


¶ 85         Next, defendant contends that the trial court erred when it denied his motion to exclude

          the DNA evidence where a portion of the DNA material was spilled during laboratory

          testing. He claims he was prejudiced because, had the evidence not been spilled, it is possible

          the subsequent test on the remaining four DNA loci may have excluded him.

¶ 86         Defendant filed a motion for relief in conjunction with destruction of DNA or related

          evidence, by which he sought, in pertinent part, to exclude the DNA evidence because of the

          spillage. The court denied the motion after a hearing, finding that the evidence was not

          materially exculpatory and that it was not destroyed in bad faith. Additionally, the court

          admonished defense counsel that the use of the term “destroyed” was inappropriate, noting

          that the evidence was not “destroyed in a bad faith sense or somebody just took something

          and obliterated it. *** What we have here is something that’s spilled during a test requested

          by the parties[.]”

¶ 87         As for the spill itself, forensic scientist Anderson described the spill at trial in the

          following manner:

                               “A. [FORENSIC SCIENTIST ANDERSON:] There was an incident that

                     occurred during the application stage, during the preparation of amplification

                     stage.

                               Q. [ASSISTANT STATE’S ATTORNEY WEISS:] What happened

                     during the amplification stage?

                               A. When it was time for me to take my DNA and put it into my tubes to

                     amplify my F2 fraction, which is the sperm fraction of the vaginal swab, I

                     dropped that tube of DNA onto my exam paper. So I was able to put the required

                     amount of DNA into—there are two—so if I have a tube for F1, the DNA from


                                                       41
1-13-1009


            my F1 tube will be split into two additional tubes for amplification. One tube will

            give me nine loci, and the other tube will give me four loci.

                   So when I was preparing my samples to split them into their nine loci tube

            and four loci tube, I dropped my tube of DNA, and it spilled on the paper.

                   So I did have some in my tube after some spilled out, so I was able to put

            what I needed into the tube for the nine loci, but I had an undetermined amount

            left over in that tube to put in the tube that would have given me four loci. So I

            wasn’t sure of my target, but I know I put in less than what I needed in that

            second tube.

                   Q. But you were able to obtain a test for the nine loci, correct?

                   A. Yes. I had more than enough for what I needed for the nine loci tube.

            But I had an undetermined amount target for the four loci tube.

                   Q. Just so we’re clear, all these fractions F1, F2, F3, that’s all coming

            from the sperm sample, correct?

                   A. From the vaginal swab of [T.C.].

                   Q. All coming from the vaginal swab?

                   A. Yes.

                   Q. And were there different samples or did you learn of different things

            that were in the vaginal swab?

                   A. Yes, after amplification, the samples are ready to be put on another

            instrument that will result in me having a DNA profile. So after amplification, I

            set up that procedure and then I have a DNA profile.



                                              42
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                             And it led to my non-sperm fraction having a profile matching [T.C.]. And

                     my sperm fraction having a profile of an unknown male profile. And then I also

                     verified that my blank was clean.

                             But the tube that was giving me four loci, it flat lined. I didn’t get

                     anything.

                             Q. But it’s not uncommon that you only have nine loci in cases, is it?

                             A. It’s not uncommon. Sometimes you may only end up with nine loci, not

                     because of just dropping a tube.”

¶ 88         Anderson acknowledged on cross-examination that she was only able to determine the

          values at nine loci because she spilled the DNA, that she did not know the profile for the

          additional four loci, and that if any of the remaining four loci did not match defendant, he

          would be excluded as the offender. Specifically, she said:

                             “Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those

                     [remaining four un-resulted loci] is different than David Banks, then you could

                     say with scientific certainty that he is not the offender; is that correct?

                             A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.

                             Q. But you don’t know what those are, correct?

                             A. That’s correct.

                             Q. In fact, you spilled that DNA on your table, correct?

                             A. That’s correct.”

¶ 89         The State relies on Arizona v. Younglood, 488 U.S. 51 (1988) (Stevens, J., concurring,

          and Blackmun, J., dissenting, with Brennan and Marshall, JJ., joining), in support of its

          argument that a defendant must show that the evidence was destroyed in bad faith in order

                                                       43
       1-13-1009


          for relief. In Youngblood, the defendant was convicted of child molestation, sexual assault,

          and kidnapping. During the medical treatment of the victim, doctors collected evidence of the

          attack using a sexual assault kit, including samples of blood, saliva, and hair. These samples

          were refrigerated at the police station. The victim’s underwear and T-shirt, which contained

          small amounts of semen, were also collected by the police but not refrigerated or frozen.

          Youngblood, 488 U.S. at 52-53. Using the evidence from the sexual assault kit, a

          criminologist determined that sexual contact had occurred, but he did not perform any other

          tests. He replaced the kit in the refrigerator. Later, the criminologist was unable to obtain

          conclusive results in testing the underwear and T-shirt due to the small quantity of semen

          present. Youngblood, 488 U.S. at 54. At trial, the defendant argued that the victim had erred

          in identifying him in a photographic lineup as the assailant. The trial court instructed the jury

          that, if they found that the State had destroyed or lost the evidence, they might “infer that the

          true fact is against the State’s interest.” (Internal quotation marks omitted.) Youngblood, 488

          U.S. at 54. The jury found the defendant guilty, but the Arizona Court of Appeals reversed,

          finding a violation of due process where the loss of the evidence was material to the defense.

          Youngblood, 488 U.S. at 54.

¶ 90         The United States Supreme Court considered the extent to which the due process clause

          of the fourteenth amendment requires the State to preserve evidentiary material that might be

          useful to a criminal defendant. Considering the “ ‘area of constitutionally guaranteed access

          to evidence,’ ” the Youngblood court reversed, finding that the defendant was required to

          demonstrate bad faith on the part of the State in the destruction or loss of the evidence.

          Youngblood, 488 U.S. at 55 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867

          (1982)). The Court found that the due process clause “required a different result when we


                                                       44
       1-13-1009


          deal with the failure of the State to preserve evidentiary material of which no more can be

          said than it could have been subjected to tests, the results of which might have exonerated the

          defendant.” Youngblood, 488 U.S. at 57. The Court justified the difference in treatment

          between a situation in which the State fails to disclose to the defendant material, exculpatory

          evidence, and a situation where potentially exculpatory evidence is permanently lost, as

          necessary in order to avoid placing on the courts the “ ‘treacherous task of divining the

          import of materials whose contents are unknown and, very often, disputed’ ” (Youngblood,

          488 U.S. at 58 (quoting California v. Trombetta, 467 U.S. 479, 486 (1984))) and placing on

          the police an absolute duty to retain and preserve material that might be of conceivable

          evidentiary significance in a particular prosecution. Youngblood, 488 U.S. at 58. The

          Youngblood Court held that “unless a criminal defendant can show bad faith on the part of

          the police, failure to preserve potentially useful evidence does not constitute a denial of due

          process of law.” Youngblood, 488 U.S. at 58. The court characterized the failure of the police

          to refrigerate the clothing and to perform tests on the semen samples as negligent, at worst,

          and in the absence of bad faith, no violation of the due process clause occurred. Youngblood,

          488 U.S. at 58.

¶ 91         In Illinois, our supreme court has held that there was no due process violation where there

          was no demonstration of bad faith by the State when the evidence in question—the

          defendant’s vehicle—was lost or destroyed before trial. People v. Sutherland, 223 Ill. 2d 187,

          237 (2006). The Sutherland court, guided by Youngblood, held that the defendant “failed to

          offer anything, other than mere speculation, demonstrating bad faith by the State.”

          Sutherland, 223 Ill. 2d at 237.




                                                      45
       1-13-1009


¶ 92         Here, we find no error by the trial court in requiring a showing of bad faith by the

          defendant before it would exclude the DNA evidence. Where, as here, the evidence in

          question is not exculpatory, a defendant must show bad faith in failing to preserve the

          evidence. Youngblood, 488 U.S. at 58 (“unless a criminal defendant can show bad faith on

          the part of the police, failure to preserve potentially useful evidence does not constitute a

          denial of due process of law”). Defendant offers nothing but mere speculation to demonstrate

          bad faith by the State. In fact, there is no demonstration here of anything other than an

          inadvertent spill by a scientist who then was able to complete the 9-loci sample (also known

          as the Pro-filer component) with a match to defendant, and attempted to complete the other

          4-loci sample (also known as the Co-filer component), which ended with no results. This, as

          the trial court explained, was a mere accident and was absent of bad faith. Where defendant

          could not show that the spilled DNA evidence was materially exculpatory, and could not then

          fulfill his burden to show bad faith in the loss or destruction of the DNA evidence, the failure

          to preserve the evidence did not constitute a due process violation under Youngblood, and the

          exclusion of the evidence was not necessary.

¶ 93         We note here with some concern that defense counsel on appeal, who, as he should,

          argues vigorously in defense of defendant, goes beyond what appears to be the truth in this

          particular argument. In his opening brief, he argues that the State “botch[ed] the Co-Filer

          test” and this spill “consumed all the remnants [of the DNA sample] usable for testing.” This

          is belied by the record, however, which shows that on August 4, 2011, the trial court ordered

          additional DNA analysis on the DNA extract that remained from the vaginal swabs.

¶ 94         Additionally, we acknowledge defendant’s concern that this ruling puts him in a logically

          inconsistent, difficult position in which, to obtain a remedy for the absence of testing, he first


                                                       46
       1-13-1009


          must obtain the testing, or know and be able to demonstrate the outcome of the testing. While

          we recognize this concern, defendant does not offer this court any authority by which we

          should disregard the established authority discussed herein. Under Youngblood and

          Sutherland, defendant’s claim is unavailing.

¶ 95         We find that the trial court properly denied defendant’s motion to exclude the DNA

          evidence based on the loss of DNA material during testing.

¶ 96                      D. Limiting the Questioning of the DNA Expert at Trial

¶ 97         Next, defendant claims the trial court erred when it limited the defense in its cross-

          examination of forensic scientist Anderson at trial. Specifically, defendant argues that the

          trial court should have allowed defense counsel to question Anderson regarding database

          searches done in Illinois and Arizona regarding a determination of how many 9-loci matches

          exist within an offender database. Defendant believes he merits a new trial where he was

          denied the ability to meaningfully challenge the scientific evidence presented by the State.

¶ 98         Initially, the State argues that, although defendant filed a motion for DNA testing prior to

          trial, he later withdrew that motion (as discussed in the background section, above).

          Therefore, the State claims that this motion is no longer in at issue. Defendant admits the

          motion was withdrawn when defense counsel “received what he believed was adequate data

          for his purposes.” Defendant, however, responds that the State’s analysis elevates form over

          substance where, as here, the issues at question were further dealt with during the trial. We

          agree with the State that defendant can no longer argue specific to the withdrawn motion, but

          also agree with defendant that the issues “were put back in play by the State” when the State

          sought at trial to bar cross-examination of its expert due to her unfamiliarity with specific

          studies on 9-loci match frequencies.


                                                      47
       1-13-1009


¶ 99         During trial but before the presentation of testimony by the forensic scientists, the State

          asked the court to preclude questions regarding searches done of the offender sections of the

          Arizona and Illinois databases where 9-loci matches were examined. The following colloquy

          occurred outside the presence of the jury:

                              “[ASSISTANT STATE’S ATTORNEY MARY LACY:] Judge, the third

                     witness Cynara Anderson who is going to testify about DNA results in this case,

                     counsel informs us he wants to ask the witness about studies done on an Arizona

                     database, an Illinois database where nine loci matches were examined.

                              She has no knowledge about such studies and the results of the studies. So

                     we ask—aside which they’re irrelevant. So we would ask that that question not

                     occur.

                              THE COURT: [Public Defender] Mr. Anderson, when I sustained the

                     objection previously, this can be on the record, you’re asking somebody

                     something they have no knowledge of.

                                                       ***

                              I don’t know if [Anderson] is aware of the Arizona studies or the Illinois

                     studies on nine loci, whether she has read them or not. But certainly if she is not

                     aware and hasn’t read them, she can’t be asked about them.

                              [PUBLIC DEFENDER ANDERSON:] I think what the State had talked to

                     me about was that they didn’t want the substance of these studies coming out

                     because she didn’t know about them. Obviously, I’m not going to bring out

                     something that the witness is unaware of because it wouldn’t be in evidence.




                                                        48
1-13-1009


                   But I intend to ask, and I think I have a right to ask her, if she is aware of

            any studies about nine loci matches in the actual population, or if she looked into

            whether there are such studies.

                   THE COURT: When you say studies, do you have [a] specific study

            you’re going to ask her about or are you asking about studies—just the general

            term studies?

                   [PUBLIC DEFENDER ANDERSON:] In fact, there are three studies.

            There is Arizona, there is Illinois, which is a little surprising she is not aware of

            that one and—

                   THE COURT: She’s not aware of Arizona and not aware of Illinois.

                   [PUBLIC DEFENDER ANDERSON:] And there is Maryland.

                                           ***

                   But the fact that she is holding herself out as an expert in DNA and

            matches in database and hasn’t even looked to see how many people actually

            match at nine, I think that is relevant that she hasn’t even looked.

                                           ***

                   THE COURT: If she’s unaware of Illinois, Maryland and Arizona, those

            are the three studies you’re talking about, if she is unaware of something, how can

            you question her on it?

                   [PUBLIC DEFENDER ANDERSON:] If she has even looked is the

            question.

                                           ***



                                              49
1-13-1009


                     The State has told me, and I will accept their representation, that she

            doesn’t know about this. This goes to her ability to—this goes to her qualification

            as an expert. A person who is an expert in the field of DNA, forensic DNA who is

            testifying about a partial nine loci match who has made no effort to see what the

            results of that are in the actual population I think is relevant that the expert makes

            no efforts—

                     THE COURT: Let me ask you this. If you ask her if she has looked at

            these three studies and she says no, are you prepared to prove up those studies

            exist?

                                           ***

                     Because we’re not going to leave a question hanging where someone

            didn’t look at something and they’re being held not knowing what those things

            say.

                     You say you’re not bringing the results. So what is the jury going to get

            out of this? You’re setting up a straw person to knock them down. Have you

            looked at this study, this study, or this study? No, no, no. Then what are you

            going to argue? She doesn’t even look at studies.

                     [PUBLIC DEFENDER ANDERSON:] Judge, it’s not a straw person. The

            fact of the matter is she is unaware of actual studies that exist. I’m not making this

            up. There are studies. I have a good faith basis for asking this. There are actual

            studies.

                     THE COURT: If you want to ask her if she is aware of these studies and

            she can give an answer yes or no[.]”


                                             50
        1-13-1009


           Ultimately, the court accepted defense counsel’s representations that he would simply ask

           Anderson if she was aware of the existence of the studies and, if she answered yes, then ask

           if she was aware of the results on 9-loci matches. The court specifically ruled that defense

           counsel could ask “whatever foundational questions you want to ask” about whether the

           expert was “aware” of the searches or “looked” at the searches. Defense counsel, however,

           did not ask Anderson the two questions the court would allow.

¶ 100         We first address the applicable standard of review. Defendant urges this court to employ

           a de novo standard, arguing that this is a review of a motion for forensic testing. The State

           responds that the proper standard is abuse of discretion, as the motion itself was withdrawn

           and the argument now applies only to the court’s ruling limiting the cross-examination of

           forensic scientist Anderson. We agree with the State. “Clearly, the scope and extent of cross-

           examination and re-cross-examination are within the discretion of the court.” Adams v. Sarah

           Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007) (citing People v. Kirchner, 194

           Ill. 2d 502, 536 (2000)). “ ‘[C]ross-examination should be kept within fair and reasonable

           limits, and it is only in a case of clear abuse of such discretion, resulting in manifest

           prejudice to the defendant, that a reviewing court will interfere.’ [Citation.]” Adams, 369 Ill.

           App. 3d at 998. As we are reviewing the propriety of the court’s limiting the scope of cross-

           examination, we will apply an abuse of discretion standard.

¶ 101         Defendant’s argument here is based on the frequencies to which Anderson testified, that

           is, that defendant’s DNA would be expected to occur in 1 in 52 million black males. He

           concedes that the frequencies in this case were calculated using generally accepted

           methodology, and acknowledges our supreme court’s decision in People v. Miller, 173 Ill. 2d

           167 (1996)), which first approved of the use of the statistical method (known as the product


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           rule) which was used in this case. He argues, however, that the circuit court’s rulings, which

           “effectively barred inquiry into the questionability of 9-loci matches,” gave too much weight

           to the match.

¶ 102         To support his claim, defendant relies in People v. Wright, 2012 IL App (1st) 073106, to

           argue that the results of offender database searches call the reliability of the frequency

           calculations in this case into question. In Wright, a different division of this court discussed

           the merits of DNA analysis in court procedures. In Wright, the cold-case DNA evidence

           constituted essentially the sole evidence used to identify the defendant from a felony

           database as the perpetrator of a sexual assault where the victim could not identify her

           attacker. Wright, 2012 IL App (1st) 073106, ¶ 81. Addressing the trial court’s error in failing

           to order, pursuant to a section 116-5 (725 ILCS 5/116-5 (West 2006)) motion, a pretrial 9-

           loci analysis between his DNA and a male DNA profile obtained from the victim’s rectal

           swabs, the Wright court ultimately reversed and remanded for a new trial. Wright, 2012 IL

           App (1st) 073106, ¶ 132.

¶ 103         The Wright majority acknowledged the fact that they were not asked to determine

           whether the expert’s conclusion of a “match” based on only nine loci was correct but,

           instead, they had been asked to determine whether the trial court abused its discretion in

           denying the defense the ability to investigate and impeach that conclusion. Wright, 2012 IL

           App (1st) 073106, ¶ 86. The court stated:

                              “The dangers of partial matches have been known for over a decade. For

                      example, in a highly publicized English case, Raymond Easton was charged in

                      1999 with burglary after police had a ‘ “cold hit” ’ with his DNA in a database.

                      Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67


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            Brook. L. Rev. 13, 49-50 (2001); Allison Pari, Note, An International DNA

            Database: Balancing Hope, Privacy, and Scientific Error, Note, 24 B.C. Int’l &

            Comp. L. Rev. 341, 368-69 (2001). His DNA ‘matched’ the DNA from the crime

            scene at six loci. Since British police estimated that there was only a 1 in 37

            million chance that such a match would occur at random, he was charged with

            burglary. Mnookin, supra, at 50; Pari, supra, at 368-69. When Easton, who had

            advanced Parkinson’s disease, had an alibi, the police ran a test at more loci and

            discovered that his DNA did not match at all. Mnookin, supra, at 50; Pari, supra,

            at 368-69. The charges were, of course, dropped. Mnookin, supra, at 50; Pari,

            supra, at 368-69.

                   As a result of the Arizona, Maryland and Illinois searches, some legal

            scholars and scientists have questioned whether the extraordinarily large figures

            used in court to estimate the probability of a nine-loci “match” are “no better than

            alchemy.” David H. Kaye, Trawling DNA Databases for Partial Matches: What

            Is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 146 (2009); Strutin,

            supra, at 54 (after the Arizona, Maryland and Illinois searches, ‘academics and

            experts have added their voices in calling for access to the DNA databanks to test

            the assumptions of profile rarity’). For example, a Stanford mathematician has

            called these numbers ‘ “total nonsense” ’ and ‘ “a damned lie.” ’ Kaye, supra, at

            148 (quoting Keith Devlin, Damned Lies, Mathematical Association of America

            (2006), available at http://www.maa.org/devlin/devlin_10_06.html.). He has

            stated that admitting this testimony into court is ‘ “disgraceful,” ’ and that courts

            ‘ “may as well admit alchemy and astrology.” ’ Kaye, supra, at 147 (quoting



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            Keith Devlin, Damned Lies, Mathematical Association of America (2006),

            available at http://www.maa.org/devlin/devlin_10_06.html.).

                   Although the trial court in the case at bar was not presented with the

            results of the Maryland or Illinois searches, the trial court did have in front of it a

            report from the search of the Arizona database, which revealed 120 pairs of 9-loci

            ‘matches’ in a database of 65,493 offenders. 19 Cornell Kaye, supra, at 154-55

            (describing how the Arizona study was conducted and its results). As one legal

            scholar has asked, if the frequency ‘for a nine-locus match is anything like “one in

            754 million for whites, and one in 561 million for blacks” [as some DNA experts

            testify], how can it be that a database as small as [Arizona’s with] “a mere 65,493

            entries” produces even one such match?’ Kaye, supra, at 155; Erin Murphy, The

            New Forensics: Criminal Justice, False Certainty, and the Second Generation of

            Scientific Evidence, 95 Calif. L. Rev. 721, 781 (2007) (‘recent evidence calls into

            question the accuracy of using the product rule to convey match probabilities’).

                   We have not been asked to determine whether the expert’s conclusion of a

            ‘match’ based on only nine-loci was correct. We have been asked to determine

            whether the trial court abused its discretion in denying the defense the ability to

            investigate and impeach this conclusion. Considering that a nine-loci analysis was

            the primary identification evidence against defendant, the trial court abused its

            discretion by denying defendant’s motion. Cf. People v. Watson, 2012 IL App

            (2d) 091328, ¶ 25 (defense counsel was ineffective for failing to probe the

            statistical meaning of a seven-loci ‘match’ when plenty of arguments and

            evidence were available).” Wright, 2012 IL App (1st) 073106, ¶¶ 83-86.



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¶ 104          A different division of this court disagreed with the holding in Wright and found it

           unpersuasive. See People v. Crawford, 2013 IL App (1st) 100310. The Crawford court

           considered, in part, the question of whether a defendant was denied the effective assistance of

           trial counsel where counsel failed to convey to the jury the significance of a partial DNA

           match. Crawford, 2013 IL App (1st) 100310, ¶ 123. The Crawford court found that the

           theories relied upon by the Wright majority regarding the significance of the offender

           database searches have been discredited. Specifically, the Crawford defendant argued, in

           part, that he was denied the effective assistance of trial counsel because counsel failed to

           cross-examine the DNA expert in such a way that the expert would “explain why the

           frequency of the evidentiary profile was not as unique as she suggested.” Crawford, 2013 IL

           App (1st) 100310, ¶ 128. The court held there was no ineffective assistance of counsel where,

           in part:

                      “defendant’s complaints regarding the failure to argue with respect to an alleged

                      search of the Illinois DNA database that revealed nearly 2,000 profiles that

                      matched at nine loci has been discredited. As defendant’s own source explains,

                      these database trawls seek all possible pairs in a database (rather than one specific

                      nine-loci grouping), which result in a staggering number of comparisons. See

                      David H. Kay, Trawling DNA Databases for Partial Matches: What Is the FBI

                      Afraid of?, 19 Cornell J.L. & Pub. Pol’y 145, 157 (2009). For example, if the

                      database for the state of Arizona contains 65,493 entries, a comparison search

                      would produce over 2 billion distinct pairs. Id. A search for 9 loci or more out of

                      13 loci (or, 715 distinct combinations of 9 items out of 13) would produce 1.5

                      trillion ‘opportunities to find nine-locus matches’ within the Arizona database. Id.


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                      Applying the same methodology to defendant’s asserted claim of 220,456 profiles

                      in the Illinois database would result in 24.3 billion distinct pairs and a

                      corresponding 17.4 trillion opportunities to find 9-locus matches out of 13-loci. If,

                      as defendant claims, there were ‘903 pairs of profiles matching at 9 loci,’ that

                      probability would be vanishingly small when compared with 17.4 trillion possible

                      pairs, and trial counsel’s argument as to this point would not have been of even

                      arguable merit.” Crawford, 2013 IL App (1st) 100310, ¶ 133.

           Because counsel could not be ineffective for making a “fruitless argument,” the Crawford

           court concluded that trial counsel could not have been ineffective for failing to hire an expert

           and develop an argument that the offender database searches impeached the statistics in that

           case. Crawford, 2013 IL App (1st) 100310, ¶ 133.

¶ 105         We disagree with defendant’s assertion that Wright is “precisely on point.” Specifically,

           the Wright majority opinion does not demand a trial court allow cross-examination of a DNA

           expert regarding a potential database search in all cases involving partial DNA profiles.

           Rather, in a fact-specific analysis, the Wright court held that, where the Wright defendant had

           fully preserved the issue for appeal, and where the expert had been provided the specific

           study in question for review prior to trial, and the State had already obtained a favorable

           ruling on the motion in limine on that specific issue, the trial court erred in “barring any

           questions about [the study]” (Wright, 2012 IL App (1st) 073106, ¶ 132). Here, in contrast,

           the State had not obtained a favorable ruling on the motion in limine, but instead, defense

           counsel had withdrawn the motion of its own accord, and, importantly, the trial court did not

           bar all questions about the study. Rather, as defendant concedes on appeal, the trial court

           specifically ruled that defense counsel could ask “whatever foundational questions you want


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           to ask” about whether the expert was “aware” of the searches or “looked” at the searches.

           Defense counsel, however, failed to take advantage of this opportunity and did not ask the

           expert questions about the database searches. For these reasons, Wright does not offer

           assistance to the case at bar.

¶ 106          We find no abuse of discretion here, where the trial court properly limited the cross-

           examination of the DNA expert to subjects relevant to the case and to her expertise, and the

           DNA expert employed an approved statistical method when she calculated the DNA

           frequencies.

¶ 107          In summary, we find no error in the admission of DNA evidence at trial.

¶ 108                                       II. Other Crimes Evidence

¶ 109          Next, defendant contends he was deprived a fair trial where the court allowed the

           “misuse” of his prior criminal record. Specifically, defendant argues that the jury was

           misinformed as to the proper way to use evidence of prior convictions because the jury

           instructions provided them did not draw a distinction between a conviction adduced for

           impeachment purpose and one adduced for propensity purposes. To be clear, defendant does

           not contest the admission of the other crimes evidence at trial. Rather, defendant claims that

           the instructions provided to the jury in this case were both inadequate and incorrect in that

           they did not explicitly include the names of the offenses for which defendant was previously

           convicted. We disagree.

¶ 110          Initially, we note that defendant failed to preserve this issue for review where he neither

           objected at trial nor included this issue in his posttrial motion. See Thompson, 238 Ill. 2d at

           611-12 (“To preserve a claim for review, a defendant must both object at trial and include the

           alleged error in a written posttrial motion.”) (citing Enoch, 122 Ill. 2d at 186-87). “Generally,


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           a defendant forfeits review of any supposed jury instruction error if he does not object to the

           instruction or offer an alternative at trial and does not raise the issue in a posttrial motion.”

           People v. Downs, 2015 IL 117934, ¶ 13. This encourages a defendant to raise issues before

           the trial court, “thereby allowing the court to correct its errors before the instructions are

           given, and consequently precluding a defendant from obtaining a reversal through inaction.”

           Downs, 2015 IL 117934, ¶ 13 (citing Piatkowski, 225 Ill. 2d at 564). However, “substantial

           defects” in criminal jury instructions are not waived by the failure to object “if the interests

           of justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). Rule 451(c) is coextensive with

           the plain error clause of Illinois Supreme Court Rule 615(a) and is construed identically.

           Piatkowski, 225 Ill. 2d at 564. As noted previously, the plain error doctrine allows a

           reviewing court to consider unpreserved error “when (1) a clear or obvious error occured and

           the evidence is so closely balanced that the error alone threatened to tip the scales of justice

           against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error

           occured and that error is so serious that it affected the fairness of the defendant’s trial and

           challenged the integrity of the judicial process, regardless of the closeness of the evidence.”

           Piatkowski, 225 Ill. 2d at 565. Under the plain error rule, we consider whether any error has

           occurred at all. Lewis, 234 Ill. 2d at 43; Wilson, 404 Ill. App. 3d at 247 (“There can be no

           plain error if there was no error at all ***.”). This requires a “substantive look” at the issue

           raised. People v. Johnson¸ 208 Ill. 2d 53, 64 (2003). We will therefore first review

           defendant’s claim to determine if there was any error before considering it under plain error.

¶ 111         “The purpose of jury instructions is to provide the jury with the correct legal principles

           applicable to the evidence, so that the jury may reach a correct conclusion according to the

           law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81 (2008). It is sufficient if the


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           instructions given to the jury, considered as a whole, fully and fairly announce the applicable

           law. Bannister, 232 Ill. 2d at 81; People v. Mohr, 228 Ill. 2d 53, 65 (2008) (On review, the

           question is whether the instructions, considered as a whole, fully and fairly announce the law

           applicable to the theories of the parties). Supreme Court Rule 451(a) requires that, where a

           court in a criminal case determines that the jury should be instructed on a subject, and the

           Illinois Pattern Jury Instructions contains an applicable instruction, then the IPI “ ‘shall’ be

           given unless the court determines it does not accurately state the law.” People v. Durr, 215

           Ill. 2d 283, 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)).

¶ 112          A trial court’s decision regarding jury instructions and verdict forms is reviewed under an

           abuse of discretion standard. People v. Battle, 393 Ill. App. 3d 302, 313 (2009) (citing People

           v. Jones, 175 Ill. 2d 126, 131-32 (1997)). It is within the discretion of the trial court to

           determine the applicability of specific jury instructions. People v. Castillo, 188 Ill. 2d 536,

           540 (1999).

¶ 113          Here, the trial court allowed the State to present evidence that defendant committed a

           sexual assault against G.R. in 1984 as relevant to defendant’s propensity to commit sexual

           attacks, motive, and intent. Prior to trial, the State filed a motion in limine seeking to

           introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the

           issues of defendant’s propensity to commit sexual attacks and to motive and intent, as two of

           the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing

           arguments from the parties, the court allowed evidence of the prior sexual assault as evidence

           of defendant’s propensity to commit sexual attacks, motive, and intent, as two of the murder

           counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court

           determined:


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                               “It is clear that in viewing the proof of other crimes sought to be admitted,

                       it’s relevant to the issues of defendant’s propensity to commit sexual attacks and

                       to motive and intent. The statute [and] case law mandates this Court to allow the

                       People to present evidence of other crimes discussed above.”

¶ 114          During trial and prior to presenting the testimony of G.R., the trial court instructed the

           jury:

                               “Ladies and gentlemen, in a moment evidence will be received that the

                       Defendant has been involved in an incident other than those charged in the

                       indictment before you. This evidence will be received on the issue of Defendant’s

                       propensity. And may be considered by you only for that limited purpose.”

¶ 115          The court also allowed evidence of the 1990 murder conviction “for the very limited

           purpose” of impeachment in the event defendant were to testify. Specifically, after defendant

           testified, the State entered a certified copy of defendant’s conviction for murder. The trial

           court advised the jury:

                               “Evidence of the Defendant’s previously [sic] conviction of an offense

                       may be considered by you only as it may affect his believability as a witness, and

                       must not be considered by you as evidence of his guilt of the offense with which

                       he is charged.”

¶ 116          At the close of trial, the court instructed the jury regarding the presumption of innocence.

           It then instructed the jury, in pertinent part:

                               “Any evidence that was received for a limited purpose should not be

                       considered by you for any other purpose.

                                                        ***

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        1-13-1009


                      Evidence of a defendant’s previous conviction of an offense may be considered

                      by you only as it may affect his believability as a witness and must not be

                      considered by you as evidence of his guilt of the offense with which he is

                      charged.

                             Evidence has been received that the Defendant has been involved in an

                      offense other than those charged in the indictment. This evidence has been

                      received on the issue of the Defendant’s propensity and may be considered by you

                      only for that limited purpose. It is for you to determine what weight should be

                      given to this evidence on the issue of propensity.”

¶ 117         The jury instructions with which defendant is concerned are Illinois Pattern Jury

           Instructions, Criminal, No. 3.13 and No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th

           No. 3.13 and No. 3.14) IPI Criminal 4th No. 3.13 states:

                             “Evidence of a defendant’s previous conviction of an offense may be

                      considered by you only as it may affect his believability as a witness and must not

                      be considered by you as evidence of his guilt of the offense with which he is

                      charged.” IPI Criminal 4th No. 3.13.

           There is no blank in IPI Criminal 4th No. 3.13 to insert the name of the offense of which the

           defendant was previously convicted.

¶ 118         IPI Criminal 4th No. 3.14 states:

                             [1] Evidence has been received that the defendant[s] [(has) (have)] been

                      involved in [(any offense) (offenses) (conduct)] other than [(that) (those)] charged

                      in the [(indictment) (information) (complaint)].




                                                       61
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                              [2] This evidence has been received on the issue[s] of the [(defendant’s)

                      (defendants’)] [(identification) (presence) (intent) (motive) (design) (knowledge)

                      (_________)] and may be considered by you only for that limited purpose.

                              [3] It is for you to determine [whether the defendant[s] [(was) (were)]

                      involved in [(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what

                      weight should be given to this evidence on the issue[s] of ________.” (Emphasis

                      added.) IPI Criminal 4th No. 3.14.

¶ 119         As given, IPI Criminal 4th No. 3.14 states:

                              Evidence has been received that the defendant has been involved in an

                      offense other than those charged in the indictment.

                              This evidence has been received on the issue of defendant’s propensity

                      and may be considered by you only for that limited purpose.

                              It is for you to determine what weight should be given to this evidence on

                      the issue of propensity.

           Like IPI Criminal 4th No. 3.13, IPI Criminal 4th No. 3.14 does not have a blank in which

           parties or the court can insert the name of the offense in which the defendant was involved.

¶ 120         Here, each instruction given the jury was taken from the Illinois Pattern Jury Instructions,

           and each accurately stated the law. Accordingly, the instructions comported with Supreme

           Court Rule 451(a), which requires that, where a court in a criminal case determines that the

           jury should be instructed on a subject, and the Illinois Pattern Jury Instructions contains and

           applicable instruction, then the IPI “ “shall’ be given unless the court determines it does not

           accurately state the law.” Durr, 215 Ill. 2d at 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July

           1, 1997)). In addition, the oral instructions given by the court at the close of the case matched

                                                         62
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           the IPI instructions. Moreover, as noted above, the court repeatedly informed the jury that the

           other crimes were being admitted for limited purposes. Specifically, the court told the jury

           immediately prior to G.R.’s testimony that her testimony was received only on the issue of

           defendant’s propensity, and, when the State introduced a certified copy of defendant’s prior

           murder conviction, the court informed the jury that the evidence was to be considered only as

           it may “affect [defendant’s] believability as a witness, and must not be considered by you as

           evidence of his guilt of the offense with which he is charged.” These jurors, who were

           properly instructed by the trial court, are presumed to follow their instructions. See, e.g.,

           People v. Wilmington, 2013 IL 112938, ¶ 49 (“Absent some indication to the contrary, we

           must presume that jurors follow the law as set forth in the instructions given them.”).

¶ 121         We find no error here, where, when considered as a whole, the jury instructions in this

           case fully and accurately informed the jury of the applicable law, and the court carefully

           instructed the jury throughout the trial and at the close of trial that the other crimes evidence

           was to be considered for particular, limited purposes.

¶ 122         Defendant also contends he was denied the effective assistance of trial counsel where his

           counsel did not tender alternative instructions to the jury. Specifically, defendant claims

           counsel should have tendered modified other crimes instructions that specifically identified

           defendant’s previous crimes and the purpose for which each was allowed into evidence.

           Defendant urges that the proper instructions would have been:

                              “Evidence of a Defendant’s previous conviction on the offense of murder

                      may be considered by you only as it may affect his believability as a witness and

                      must not be considered by you as evidence of his guilt of the offenses with which

                      he is charged.”


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           And:

                              “Evidence has been received that the Defendant has been involved in a

                      prior sexual assault. This evidence has been received on the issue of Defendant’s

                      propensity and may be considered by you only for that limited purpose. It is for

                      you to determine what weight should be given to this evidence on the issue of

                      propensity.”

¶ 123         Every defendant has a constitutional right to the effective assistance of counsel. See U.S.

           Const., amends VI, XIV; Ill. Const. 1970, art. 1, § 8. Claims of ineffective assistance of

           counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668

           (1984). People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). To establish a claim

           of ineffective assistance of counsel, a defendant must show that his attorney’s representation

           fell below an objective standard of reasonableness and that he was prejudiced by this

           deficient performance. Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d 504. Failure to

           make the requisite showing of either deficient performance or sufficient prejudice defeats the

           claim. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). To satisfy the first prong, a

           defendant must overcome the presumption that contested conduct which might be considered

           trial strategy is generally immune from claims of ineffective assistance of counsel. People v.

           Martinez, 342 Ill. App. 3d 849, 859 (2003). To establish prejudice, a defendant must show

           there is a reasonable probability that, but for counsel’s insufficient performance, the result of

           the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000).

           Specifically, the defendant must show that counsel’s deficient performance rendered the

           result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.




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¶ 124         Defendant’s claim in this regard fails because, as noted above, he was not prejudiced as a

           result of the jury not receiving modified instructions. In addition, defendant’s claim fails

           because he is unable to overcome the presumption that the contested conduct was not sound

           trial strategy, where counsel could have reasonably made the sound strategic determination

           not to focus the jury’s attention on defendant’s prior crimes. See People v. Johnson, 368 Ill.

           App. 3d 1146, 1161 (2006) (Defendant was unable to show his trial counsel was ineffective

           where counsel failed to request a limiting instruction for other-crimes evidence because

           “[c]ounsel may have made a tactical decision not to request such an instruction to avoid

           unduly emphasizing the other-crimes evidence.”).

¶ 125         III. Defendant’s Invocation of His Right to Remain Silent and His Request for Counsel

¶ 126         Next, defendant contends the trial court erred in denying his motion for a mistrial based

           on Lieutenant Wojcik’s testimony on cross-examination that all questioning of defendant

           ceased when defendant asked for a lawyer. Defendant contends this error “places an

           impermissible cost on the exercise of constitutional rights, and severely prejudices

           [defendant’s exercise of his rights] and the provision of a fair trial.” We disagree.

¶ 127         The record in this matter reveals that, after defendant was provided with his Miranda

           rights, defendant made an oral statement regarding the crimes. Although he did not admit in

           this statement that he was the perpetrator of the crimes, he admitted to familiarity with the

           apartment complex and the murder victim Soucy, admitted he worked in the nearby area,

           admitted he was in Soucy’s apartment when he got angry and “blacked out,” only awaking

           mentally as he was fleeing the burning building, with his hair singed from fire. This

           statement was presented by Lieutenant Wojcik and assistant State’s Attorney Bowden at trial




                                                        65
        1-13-1009


           as an inculpatory statement. Defendant subsequently declined to memorialize that statement

           when he asked for an attorney.

¶ 128         On cross-examination at trial, defense counsel asked Lieutenant Wojcik why he did not

           request a court reporter to record defendant’s statement. Wojcik responded:

                              “[B]ecause at a certain point the defendant asked for an attorney, so we

                      didn’t get to that point where we would have called for a court reporter.

                              ***

                              *** [I]t would have been—when I got done talking to him it was about

                      4:15. I want to say it was some time around a little bit after 5:00 o’clock or so

                      when he asked for an attorney. When I was in there with the State’s Attorney was

                      the first time he asked for an attorney.”

           Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was

           the responsibility of the State’s Attorney. He said:

                              “The State’s Attorney would make [the decision to call a court reporter] in

                      consult with [defendant] if he was willing to do that, but while the State’s

                      Attorney was speaking to [defendant] he requested an attorney. So at that time all

                      conversation stops.”

¶ 129         The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,

           arguing that the witness repeatedly emphasized that defendant had requested an attorney. The

           trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel

           replied, “Because I didn’t want to emphasize that he had brought it out[.]” The trial court

           denied the motion for a mistrial, saying “what prompted the part about the attorney is

           because you [defense counsel] asked him questions about why weren’t charges approved

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        1-13-1009


           before the State’s Attorney got there,” and “the only logical answer he could say upon your

           continuing questioning is, well, because he asked for an attorney. It was not brought out

           volitiously [sic] by him. In my opinion it was brought out by your continuing questions for

           that area.”

¶ 130          Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of

           questions about what he did and did not do while questioning defendant. Specifically,

           defense counsel asked a series of questions regarding why Wojcik did not drive defendant up

           to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon

           where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to

           find the salon, but did not drive defendant there to do so. Counsel again asked why, when

           defendant allegedly had said the salon was in the neighborhood but was unsure of the street it

           was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.

           Wojcik answered:

                                “Again, Counsel, I probably would have done that, but he asked for an

                         attorney, which means at that point everything—any conversations I was having

                         with him about the case had to stop, including putting him in a car and having him

                         to point locations out.”

¶ 131          At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a

           new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an

           attorney. The trial court denied the motion, responding:

                                “The problem with this is the way you asked the question once it came out

                         once the charges were approved upon [the assistant State’s Attorney] arriving

                         there and it came out that he asked for an attorney and didn’t obviously want to


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        1-13-1009


                      talk to her without one, this was a natural response to a question about after he

                      was through talking putting him in the car and taking him somewhere and having

                      him find someone.

                              This is exactly what happens when you are not directing him to a

                      particular time. You simply asked a question. I just wanted you to make a record.

                      Your motion for a new trial is denied. This is the fourth time he stated he wanted

                      an attorney.”

¶ 132         Under Doyle v. Ohio, 426 U.S. 610, 619 (1976), it is error to comment on a defendant’s

           post-arrest silence or his request for counsel. Doyle, 426 U.S. at 619. However, “ ‘Doyle

           applies only when a defendant invokes his right to remain silent.’ ” People v. Velez, 388 Ill.

           App. 3d 493, 508 (2009) (quoting People v. Patterson, 217 Ill. 2d 407, 445 (2005)). In

           Illinois, once a defendant makes a post-Miranda oral statement, the introduction of evidence

           that the defendant subsequently refused to memorialize that statement does not necessarily

           violate the fifth amendment or conflict with the Doyle opinion. See, e.g., People v.

           Christiansen, 116 Ill. 2d 96, 120 (1987) (recognizing that where a defendant fails to remain

           silent after being apprised of his right to do so and instead makes oral statements, the

           defendant has relinquished his rights under the fifth amendment and cannot claim that

           testimony indicating he was unwilling to subsequently memorialize his oral statements

           violated his right to remain silent); People v. Ruiz, 132 Ill. 2d 1, 16 (1989) (under

           Christiansen, the State is allowed “to introduce, in its case in chief, evidence that a defendant

           made an oral statement but refused to provide a written statement, on the theory that the

           defendant did not exercise his right to silence”); People v. Lindgren, 111 Ill. App. 3d 112,

           117 (1982) (“It is not error to elicit a complete recitation of police procedure, even if the


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           recitation includes reference to a defendant’s exercise of his constitutional rights, so long as

           the recitation is not argued to be indicative of guilt”).

¶ 133          Here, the evidence in question was not adduced in order to establish defendant’s guilt, but

           was adduced in response to questioning as to why defendant’s statement was not

           memorialized, as well as in regards to police procedure (e.g., why the officers did not take

           defendant to the area of the crime and look for the hair salon in order to confirm defendant’s

           statement). Aside from the cross-examination of Lieutenant Wojcik, there was no further

           mention of defendant’s request for counsel, and the State did not reference the testimony in

           its closing arguments. We find no error in the cross-examination testimony here.

¶ 134          Moreover, where we find no error in this cross-examination testimony, it follows that

           defendant’s argument that he was denied the effective assistance of counsel where counsel

           directed the cross-examination that brought out the comments regarding defendant’s

           invocation of his fifth amendment rights also fails. Palmer, 162 Ill. 2d at 475-76 (failure to

           make the requisite showing of either deficient performance or sufficient prejudice defeats the

           claim).

¶ 135                              IV. Ineffective Assistance of Trial Counsel

¶ 136          Finally, defendant contends he was denied the effective assistance of trial counsel where

           counsel allegedly made a series of errors regarding the DNA evidence at trial. Defendant

           claims he was prejudiced where counsel should have (1) thoroughly challenged forensic

           scientist Anderson regarding the DNA spillage, (2) recognized and then explored the alleged

           chain of custody violation, (3) asked the allowed two questions regarding the 9-loci database

           searches, and (4) specifically requested the trial court follow the Wright decision. Defendant




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           argues he merits a retrial where the combination of the above errors denied him a fair trial.

           We disagree.

¶ 137         As noted above, to establish a claim of ineffective assistance of counsel, a defendant must

           show that his attorney’s representation fell below an objective standard of reasonableness and

           that he was prejudiced by this deficient performance. Strickland, 466 U.S. at 687-88;

           Albanese, 104 Ill. 2d 504. Failure to make the requisite showing of either deficient

           performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To

           satisfy the first prong, a defendant must overcome the presumption that contested conduct

           which might be considered trial strategy is generally immune from claims of ineffective

           assistance of counsel. Martinez, 342 Ill. App. 3d at 859. To establish prejudice, a defendant

           must show there is a reasonable probability that, but for counsel’s insufficient performance,

           the result of the proceeding would have been different. Easley, 192 Ill. 2d at 317. To do so,

           the defendant must show that counsel’s deficient performance rendered the result of the

           proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.

¶ 138         As to defendant’s first claim, that he was denied the effective assistance of counsel where

           counsel did not sufficiently challenge forensic scientist Anderson regarding the DNA

           spillage, we disagree that counsel was ineffective where, even if counsel’s performance were

           deficient, defendant would still be unable to show resulting prejudice. See, e.g., Palmer, 162

           Ill. 2d at 475-76 (failure to make the requisite showing of either deficient performance or

           sufficient prejudice defeats an ineffectiveness claim). Our review of the record shows that

           trial counsel vigorously challenged Anderson’s testing and results, as well as the spillage of

           the DNA material. For example, after the State brought out on direct examination that the

           spill occurred, defense counsel elicited testimony on cross-examination that Anderson was


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           only able to determine the values at nine loci because she spilled the DNA, that she did not

           know the profile for the additional four loci, and that if any of the remaining four loci did not

           match defendant, he would be excluded as the offender:

                              “Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those

                      [remaining four un-resulted loci] is different than David Banks, then you could

                      say with scientific certainty that he is not the offender; is that correct?

                              A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.

                              Q. But you don’t know what those are, correct?

                              A. That’s correct.

                              Q. In fact, you spilled that DNA on your table, correct?

                              A. That’s correct.”

¶ 139         Defense counsel also thoroughly questioned Anderson regarding her education and

           qualifications, eliciting testimony during her qualification as an expert regarding her training

           in population genetics and DQ-Alpha testing. Counsel then argued in closing that Anderson

           was not sufficiently trained in statistics. Additionally, counsel emphasized in closing

           argument that the full profile was not known because of the spillage, telling the jury:

                              “That they’ve proven [their] case when their expert spills the rapist DNA,

                      and they don’t have a full profile and it’s because of what they did that they don’t

                      have it.”

           Defense counsel in this case vigorously cross-examined Anderson regarding her background,

           experience, qualifications, and the spill itself. Defendant cannot show a reasonable

           probability that further cross-examination regarding the spill would have changed the result

           at trial. See Easley, 192 Ill. 2d at 317 (to establish prejudice, a defendant must show there is a

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           reasonable probability that, but for counsel’s insufficient performance, the result of the

           proceeding would have been different). Defendant’s attempt to show that he was denied the

           effective assistance of counsel fails.

¶ 140         Defendant’s argument that he was denied a fair trial where counsel failed to sufficiently

           challenge the chain of custody also fails because, as we have determined inter alia, there was

           no breakdown in the chain of custody. Defense counsel, therefore, was not ineffective for not

           challenging the chain of custody of the DNA extracts where there was no breakdown in the

           chain of custody.

¶ 141         Defendant’s claim that he was denied a fair trial where trial counsel should have asked

           forensic scientist Anderson the two allowed questions regarding the Arizona and Illinois

           database searches also fails for lack of resulting prejudice. As noted above, the trial court

           heard arguments from the parties regarding whether or not Anderson could be examined

           regarding the database searches. Ultimately, the court ruled that defense counsel could only

           ask Anderson two questions regarding the studies of database searches: whether she was

           aware of the studies’ existence and, if so, whether she was familiar with their contents. The

           court expressly ruled that the substance of the searches would not be admissible. Defendant

           now claims that trial counsel should have asked the two allowed questions and then called its

           own expert, Donald Parker, who works in the Illinois State Police forensic sciences

           command DNA indexing laboratory, as a witness to testify about the results of the search of

           the Illinois offender database. Defendant, as noted above, concedes that the frequencies in

           this case were calculated using generally accepted methodology, and acknowledges our

           supreme court’s decision in Miller, 173 Ill. 2d 167, which first approved of the use of the

           statistical method (known as the product rule) which was used in this case. Even if Parker


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           had been called to testify in this case, he would have been limited to reciting the results of the

           searches; he would not have been able to testify that those search results in any way called

           into question the DNA frequencies testified to by Anderson in this case because the DNA

           results in this case were calculated in accordance with generally accepted methodology.

           Defendant’s ineffective assistance argument fails where he is unable to show resulting

           prejudice.

¶ 142         Finally, defendant’s argument that trial counsel was ineffective where, “had defense

           counsel simply asked the circuit court to comply with this court’s decision in Wright, the

           result would necessarily have changed,” also is unavailing where counsel did, in fact, ask the

           court to follow Wright. For example, in his May 20, 2010, motion for DNA database search,

           defense counsel stated, in part:

                               “8. Wherefore, defendant requests the following DNA database searches

                        pursuant to 725 ILCS 5/116-5 and People v. Wright, 2010 Ill. App. LEXUS 245

                        (Ill. App. 1st Dist., 2010) (reversible error for trial court failing to grant

                        defendant’s motion for a DNA Database Search in a 9 loci match case) ***.”

           The State filed a response to that motion, and defense counsel filed a reply in which he again

           cited Wright and asked the court to follow it. Counsel is not ineffective for failing to “simply

           ask” the court to comply with a particular case when the record clearly shows that trial

           counsel did precisely that. Defendant, therefore, cannot show resulting prejudice, and his

           ineffective assistance of counsel argument is unavailing.

¶ 143                                           CONCLUSION

¶ 144         For all of the foregoing reasons, the decision of the circuit court of Cook County is

           affirmed.


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¶ 145         Affirmed.




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