People v. Pope
Annotate this Case
NO. 4-95-0021
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
KERRY L. POPE, ) No. 94CF182
Defendant-Appellant. )
) Honorable
) Dennis K. Cashman,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
A jury found defendant, Kerry L. Pope, guilty of one
count of aggravated criminal sexual assault (720 ILCS 5/12-
14(a)(2) (West 1992)) and one count of aggravated battery of a
child (720 ILCS 5/12-4.3(a) (West 1992)), for which he was
sentenced to consecutive terms of 60 years' and 30 years' impris-
onment respectively.
Defendant appeals, arguing that (1) the trial court
erred by admitting deoxyribonucleic acid (DNA) evidence because
the polymerase chain reaction (PCR) amplification-based proce-
dures for DNA identification are not generally accepted in the
scientific community; and (2) the prosecutor's improper closing
argument deprived him of a fair trial. We affirm.
I. BACKGROUND
Prior to trial in August 1994, defendant sought a
continuance to conduct a Frye hearing (see Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)) to determine the admissibility of
DNA test results based on PCR analysis. Because the Illinois appellate courts had not ruled on the admissibility of such
evidence, the trial court granted the motion. Before reviewing
the evidence presented at the Frye hearing, we provide background
information on both DNA structure and PCR analysis.
A. DNA Structure and Identification
The following background information is taken from
Thomas M. Fleming, Annotation, Admissibility of DNA Identifica-
tion Evidence, 84 A.L.R.4th 313 (1991), unless otherwise noted.
The DNA molecule is a long, threadlike structure resembling a
twisted ladder packed into the chromosomes in every nucleated
cell. Each side of the ladder is composed of a chain of sugars
and phosphates, while the rungs attached to them consist of pairs
of molecules called bases. While most sections of this chain of
bases are largely the same among humans, certain sections are
variable. Thus, a gene--the sequence of bases responsible for
producing a particular protein--may be polymorphic, having two or
more possible variations called alleles. Because of poly-
morphisms in human genetic structure, no two individuals (except
for identical twins) have identical base sequences throughout
their DNA.
The PCR amplification method of DNA identification,
first devised in 1985, is one of two kinds of DNA tests most
commonly used for identification. The other method is restric-
tion fragment length polymorphism (RFLP) analysis, which our
supreme court recently held to be generally accepted in the rele-
vant scientific community. People v. Miller, 173 Ill. 2d 167,
188, 670 N.E.2d 721, 731 (1996). By 1990, the PCR method was one
of the most widely used techniques in medical and biological re-
search. People v. Lee, 212 Mich. App. 228, 264, 537 N.W.2d 233,
250 (1995). PCR-based techniques allow testing of DNA samples
that have degraded as well as samples which are very small, such
as a single strand of hair.
In the PCR-based DQ-Alpha procedure, an analyst looks
at one particular gene, the DQ-Alpha gene, which is genetically
inherited and appears in varying forms in different people. Lee,
212 Mich. App. at 264-65, 537 N.W.2d at 250. Six readily detect-
able alleles are present in the DQ-Alpha locus, and they are
identified with the following numbers: 1.1, 1.2, 1.3, 2, 3, and
4. These alleles are combined in pairs in each individual, and
the six combinations result in 21 possible "genotypes," each of
which appears in varying proportions within the population.
In the PCR DQ-Alpha procedure, DNA is extracted from a
sample, purified, and added to a buffer solution containing
chemical primers (small pieces of DNA that recognize the four
bases) and an enzyme called "TAQ polymerase." The solution is
then modified (denatured) by being placed in a thermal cycler
which cycles it through several successive temperature plateaus.
During each cycle, the primer targets a specific gene and will
bind to the genetically complementary portion of the DNA; fur-
ther, TAQ polymerase works to copy the targeted gene. After 30
to 40 cycles, the DNA strand containing the targeted gene has
been amplified billions of times.
The amplified DNA is then flooded over a nylon membrane
onto which have been dotted a number of "allele-specific" probes,
each of which is designed to recognize one sequence of the
targeted gene. This may result in a color reaction and a visible
dot on the membrane wherever a probe has identified one of the
alleles. A blue dot is a match; a blank is a nonmatch. The
amplified DNA may then be typed for the various DQ-Alpha geno-
types. This process is referred to as the reverse dot blot
hybridization or the blue-dot procedure.
If the DQ-Alpha genotype of a suspect is different from
that of the evidence sample, the suspect is excluded as a source
of the evidence. If the suspect and the evidence sample have the
same genotype, then the suspect is included as a possible source.
The probability that some other, unrelated individual would also
match the evidence sample is equal to the frequency of the
genotype in the relevant population.
B. The Frye Hearing
At the Frye hearing, the trial court deter-mined that
Dr. Jenifer Ann Lindsey, a Federal Bureau of Investigation (FBI)
special agent and a forensic serologist assigned to the DNA
analysis unit, could testify as an expert in forensic serology
and DNA analysis. Dr. Lindsey explained that the FBI uses two
techniques based on PCR analysis--namely, DQ-Alpha typing and
polymarker typing. The FBI has been using the DQ-Alpha typing
technique since 1992 and the polymarker typing technique since
August 1994 (after examining the polymarker technique "for well
over a year" through validation and case studies).
Dr. Lindsey testified in detail regarding the PCR DQ-
Alpha typing procedure. She specifically noted that FBI analysts
perform 32 cycles in the thermal cycler to replicate the targeted
gene. Dr. Lindsey also testified regarding the PCR-based
polymarker typing procedure. She stated that in polymarker
typing, an analyst simultaneously amplifies the DQ-Alpha gene as
well as five additional gene regions. Dr. Lindsey also explained
the FBI's quality control measures (designed to prevent contami-
nation) and control amplification procedures.
Dr. Lindsey stated that she completed 50 case studies
comparing polymarker typing results and RFLP results and found
that in all 50 cases the ability to discriminate between two
different people was the same for the polymarker and the RFLP
procedures. The case studies revealed that some people who were
excluded as sources by RFLP testing were included as possible
sources by DQ-Alpha typing. DQ-Alpha typing and polymarker
typing together provide a power of discrimination (the ability to
differentiate between individuals based on the DNA test results)
of over 99%. Dr. Lindsey stated that DQ-Alpha typing is being
used by many private laboratories, and polymarker typing was
first put on the market in January 1994. She also opined that
both DQ-Alpha typing and polymarker typing are generally accepted
in the scientific community.
Dr. Lindsey further testified regarding the FBI's
method of calculating the statistical probability of a random
match. By using the product rule, the FBI estimates the statis-
tical probability of a random match between the DNA sample taken
from the crime scene and the defendant's DNA sample. In making
this estimate, the FBI compares the DNA samples to a previously
constructed population database. Because the PCR polymarker
systems are two allele or three allele, the FBI may rely on a
smaller database. Thus, the PCR Caucasian database contains only
145 individuals. For the polymarker typing procedure, the FBI
multiplies the various alleles' frequency rates times each other
to determine the statistical probability of a random match.
Regarding DQ-Alpha typing, Dr. Lindsey stated that the
FBI tested 500 individuals from four different population groups
("Caucasian," "Black," "Southwestern Hispanic," "Southeastern
Hispanic") and determined their DQ-Alpha genotypes. The FBI then
added a database developed by Cetus Corporation (containing 237
individuals) because it was statistically similar to the FBI
database. Dr. Lindsey stated that to determine the frequency of
a particular DQ-Alpha genotype, the FBI uses the actual count
method. For example, if an individual had a DQ-Alpha genotype of
2,2, an analyst would look to the database to determine how often
that particular genotype occurred within the "Caucasian" popula-
tion group (.020), then multiply by 100, and conclude that about
2% of the time in the Caucasian race one would expect to find an
individual with a 2,2 DQ-Alpha genotype.
After hearing evidence and arguments from both parties,
the trial court found that the PCR-based methods of DNA identi-
fication (DQ-Alpha and polymarker) are "generally accepted as
reliable." Accordingly, the court held that the DNA results from
both DQ-Alpha typing and polymarker typing and the FBI's method
of calculating the statistical probability of a random match were
admissible at trial.
C. Defendant's Trial
Given the arguments defendant raises on appeal, we
discuss only the evidence particularly relevant to a consider-
ation of his claims.
B.H.'s stepfather, Chris McColez, testified that on May
13, 1994, he, his wife (Retha), six-year-old B.H., and Retha's
baby went to visit Retha's aunt. After B.H.'s eight-year-old
cousin, Mandy Snyder, and B.H. had been playing outside for a
while, Mandy and a neighbor came inside, and Mandy told McColez a
man had tried to grab her and that B.H. was missing. McColez
then went outside to look for B.H., crossed the nearby highway,
and saw B.H. lying on the ground. She had no pants on, and
defendant stood over her, "fidgeting" with his pants. Defendant
swung a knife and stick at McColez and yelled for him to back off
or defendant would kill him. McColez then fell, and defendant
ran away. McColez testified that defendant was wearing a camou-
flage jacket, long pants, and had a beard and a mustache. Mandy
testified that defendant was the man who tried to lure her into a
park shortly before McColez found B.H.
James Saxberry, one of defendant's county jail cell-
mates, testified that he asked defendant why he had assaulted
B.H. According to Saxberry, defendant became tearful and said he
did not know why he did it. Defendant told Saxberry that he
picked up B.H., took her to the culvert, hit her, and placed his
finger in her vagina and mouth and his penis in B.H.'s mouth. On
cross-examination, Saxberry admitted felony convictions for
deceptive practices and forgery. He also stated he was testi-
fying as a condition of the sentence he received after pleading
guilty to misdemeanor deceptive practices.
Dr. Maureen Swisher testified that she examined B.H.
and found bruising and redness around B.H.'s head and neck. She
also opined that an injury to B.H.'s vaginal area was consistent
with a finger being pushed into the hymen area.
Quincy police officer Neal Meyer testified that he
arrested defendant, who was wearing cut-off blue jeans which
appeared to have been cut off recently. Inside the pickup truck
in which defendant was sitting at the time of his arrest, Meyer
found a camouflage shirt and knife. The cutoff portions of blue
jeans which were recovered from the area near where defendant was
found sleeping in his pickup truck showed blood stains which were
analyzed. Salvia samples were also recovered from the culvert
where B.H. was found.
Dr. Lindsey testified that the PCR-based test results
in this case indicated that defendant is a potential source of
the saliva samples taken from the culvert; while B.H. was not.
The likelihood that another individual could have been the source
of the saliva samples is 1 out of 2 million in the "Black"
population, 1 out of 4,100 in the "Caucasian" population, 1 out
of 6,000 in the "Southeastern Hispanics" population, and 1 out of
2,300 in the "Southwestern Hispanics" population. (Defendant is
Caucasian.) Dr. Lindsey also stated that B.H. is a potential
source of bloodstains found on the cut-off portion of defendant's
jeans; while defendant was not. The likelihood that another
individual could have been the source of the bloodstains was 1 in
24,000 in the "Black" population, 1 out of 1,600 in the "Cauca-
sian" population, 1 out of 2,300 in "Southeastern Hispanics"
population, and 1 out of 2,300 in "Southwestern Hispanics"
population.
Defendant testified and denied committing the crimes.
Defendant stated that he drank several beers after work on May
13, 1994, and sometime after 7 p.m., he walked to the culvert to
urinate. Once there he saw B.H. lying on the ground with her
pants and underwear around her ankles. When he leaned down to
help B.H. and pick her up, her hair became entangled in his
jacket button. As defendant pulled her hair away from the
button, McColez "jumped" into the culvert. Defendant stated that
he pulled out a knife because McColez frightened him. Defendant
acknowledged that he hid his camouflage jacket, took off his
shirt, and cut off his jeans with a knife to change his appear-
ance. Defendant also admitted that he initially lied to the
police regarding whether he cut off his jeans. Defendant denied
ever talking to Saxberry.
II. ANALYSIS
A. Admissibility of the DNA Identification
Evidence Based on the PCR Method
Defendant first argues that DNA evidence based on the
PCR method of DNA identification is inadmissible because DQ-Alpha
typing and polymarker typing are not generally accepted in the
scientific community. We disagree.
Illinois follows the Frye standard for the admission of
novel scientific evidence. Miller, 173 Ill. 2d at 187, 670 N.E.2d at 731. The Frye court explained the standard as follows:
"Just when a scientific principle or discov-
ery crosses the line between the experimental
and demonstrable stages is difficult to de-
fine. Somewhere in this twilight zone the
evidential force of the principle must be
recognized, and while courts will go a long
way in admitting expert testimony deduced
from a well-recognized scientific principle
or discovery, the thing from which the deduc-
tion is made must be sufficiently established
to have gained general acceptance in the
particular field in which it belongs." Frye,
293 F. at 1014.
General acceptance in the scientific community does not require
scientific unanimity. People v. Dalcollo, 282 Ill. App. 3d 944,
957, 669 N.E.2d 378, 387 (1996). Further, the mere fact that a
dispute exists will not preclude a trial court from finding that
a procedure is generally accepted. Dalcollo, 282 Ill. App. 3d at
957, 669 N.E.2d at 387. The determination whether the State has
met the Frye standard lies within the trial court's discretion,
and a reviewing court will not reverse absent an abuse of that
discretion. People v. Lipscomb, 215 Ill. App. 3d 413, 430, 574 N.E.2d 1345, 1356 (1991); see also Miller, 173 Ill. 2d at 187,
670 N.E.2d at 731.
Initially, we note that the majority of defendant's
contentions concern proper laboratory protocol and preventing
contamination of DNA samples. Relying in large part on a 1992
report from the Committee on DNA Technology in Forensic Science
(Committee), under the auspices of the National Academy of
Sciences (National Research Council, DNA Technology in Forensic
Science (1992)) (hereinafter NRC Report), defendant contends PCR
analysis involves the following "technical problems": (1)
thermal cyclers can give varying results unless their performance
is rigorously characterized for variation sensitivity; (2)
amplification with "current" PCR technique may not be completed
with sufficient "quantitative and qualitative fidelity"; (3)
"[s]ome forensic samples contain factors that inhibit amplifica-
tion"; and (4) evidence samples may be contaminated with other
human DNA. However, the mere potential for contamination or
differential amplification does not render the PCR-based tech-
niques generally unaccepted by the scientific community. See
State v. Russell, 125 Wash. 2d 24, 51, 882 P.2d 747, 767-68
(1994). Rather, such concerns bear on the question of whether a
laboratory or analyst has complied with generally accepted stan-
dards in a given case. As this court most recently noted in
People v. Johnson, 262 Ill. App. 3d 565, 569, 634 N.E.2d 1285,
1288 (1994), quoting Lipscomb, 215 Ill. App. 3d at 432, 574 N.E.2d at 1357, "'[a]ny question concerning the specific proce-
dures used by the company or expert goes to the reliability of
the evidence and is properly considered by the jury in deter-
mining what weight to give to this evidence.'" (Emphasis added.)
In addition, the NRC Report itself acknowledges the admissibility
of DNA evidence (without distinguishing between PCR and RFLP
methodology), as long as precautions suggested in the report are
taken:
"As a general matter, so long as the
safeguards we discuss in this report are
followed, admissibility of DNA typing should
be encouraged. There is no substantial dis-
pute about the underlying scientific princi-
ples. However, the adequacy of laboratory
procedures and of the competence of the ex-
perts who testify should remain open to in-
quiry." NRC Report at 146.
In the present case, Dr. Lindsey, the sole witness at
the Frye hearing, testified in detail regarding PCR-based tech-
niques for DNA identification, including DQ-Alpha typing and
polymarker typing. She explained that PCR analysis had been used
for several years in research and diagnostic labs, and she had
conducted and supervised validation and case studies prior to
using PCR analysis for forensic purposes. In a study of 50
cases, Dr. Lindsey found that polymarker typing resulted in the
same individuals being excluded as with RFLP testing. She also
stated that while DQ-Alpha typing has a lower power of discrimi-
nation than RFLP, DQ-Alpha typing and polymarker typing together
provide a power of discrimination of over 99%. She also stated
that the FBI has instituted quality control measures to prevent
contamination and control amplification procedures. Dr. Lindsey
acknowledged that TAQ polymerase may potentially create amplifi-
cation errors; however, the potential for such error was low.
Further, she stated that any copying error would be insignificant
due to the number of times the targeted gene is replicated. She
also stated that since the NRC Report was issued, two Committee
members, Dr. Kaia Kazazian and Dr. George Sensabaugh, have
expressed the view--either through affidavit or testimony--that
PCR-based techniques, including DQ-Alpha typing, are generally
accepted as reliable in the relevant scientific community.
Upon the record before us, we conclude the trial court
did not abuse its discretion by finding that the PCR-based
procedures for DNA identification--namely, DQ-Alpha typing and
polymarker typing, are "scientifically reliable and generally
accepted" and admissible. Accordingly, we hold that PCR-based
methods of DQ-Alpha typing and polymarker typing for DNA identi-
fication are now generally accepted in the relevant scientific
communities involved, and trial courts need not conduct future
Frye hearings on this issue.
In so holding, we specifically disagree with defen-
dant's contention that copying errors caused by the enzyme TAQ
polymerase destroy the general acceptance of PCR-based tech-
niques. Instead, we agree with the Michigan appellate court in
Lee (212 Mich. App. at 277, 537 N.W.2d at 255), that any errors
which may be caused by TAQ polymerase are not serious enough to
undermine the general acceptance of PCR-based techniques for DNA
identification as reliable.
We also note that several other courts have held that
PCR-based DNA test results are admissible. In Russell (125 Wash. 2d at 54 & n.7, 882 P.2d at 768 & n.7), the Supreme Court
of Washington addressed this issue and held that this technique
has been generally accepted by the scientific community. In Lee
(212 Mich. App. at 280-81, 537 N.W.2d at 257), the court also
held that PCR-based DQ-Alpha typing is generally accepted as
reliable under a version of the Frye standard. See also State v.
Hill, 895 P.2d 1238, 1244-47 (Kan. 1995); State v. Williams, 252
N.J. 369, 599 A.2d 960 (1991). Other states have also admitted
PCR test results, but under standards other than Frye. See
Harmon v. State, 908 P.2d 434, 440-41 (Ala. App. 1995); State v.
Moore, 268 Mont. 20, 48, 885 P.2d 457, 475 (1994); State v.
Lyons, 124 Or. App. 598, 602-10, 863 P.2d 1303, 1306-11 (1993);
State v. Moeller, 548 N.W.2d 465, 479-83 (1996 S.D. 60); Clarke
v. State, 813 S.W.2d 654, 655 (Tex. Ct. App. 1991); Spencer v.
Commonwealth, 240 Va. 78, 97-98, 393 S.E.2d 609, 621 (1990).
We also find support for our holding in the extensive
validation studies which have been conducted on PCR-based analy-
sis for DNA identification. As Dr. Lindsey testified, the FBI
conducted validation and case studies to determine the reliabili-
ty of DQ-Alpha typing and polymarker typing prior to using them
for forensic purposes. Further, the Russell court noted that
Cetus Corporation (distributor of the DQ-Alpha test kit) had
produced a bibliography listing over 1,000 articles on PCR
analysis. Russell, 125 Wash. 2d at 50, 882 P.2d at 766; see also
N. Dimo-Simonin & C. Brandt-Casadevall, Evaluation and Usefulness
of Reverse Dot Blot DNA-PolyMarker Typing in Forensic Case Work,
81 Forensic Science International 61 (1996); C. Comey & B.
Budowle, Validation Studies on the Analysis of the HLA DQ Alpha
Locus Using the Polymerase Chain Reaction, 36 J. Forensic Sci.
1633 (1991).
B. Calculation of the Statistical Probability of a Random Match
Defendant next argues that the trial court erred by
admitting this evidence because the FBI's method of calculating
the statistical probability of a random match, by use of the
product rule, is not generally accepted in the scientific commu-
nity. We disagree.
In People v. Miles, 217 Ill. App. 3d 393, 405, 577 N.E.2d 477, 485 (1991), this court discussed a defendant's
challenge to the admission of probability statistics:
"This court [in Lipscomb] *** [held that] the
[RFLP] DNA identification procedure was ad-
missible, including 'the development of fre-
quencies, and procedure whereby the individu-
al frequencies are multiplied together to
determine the ultimate frequency of the pat-
tern.' (Lipscomb (1991), 215 Ill. App. 3d at
432[, 574 N.E.2d at 1357].) Implicitly, the
[Lipscomb] court held the process of generat-
ing probability statistics is an integral
part of the DNA identification process.
Because the DNA identification process meets
the Frye test and is admissible, probability
statistics operated thereby are admissible."
Therefore, because we have concluded that the PCR-based tech-
niques of DQ-Alpha typing and polymarker typing for DNA identifi-
cation are admissible under the Frye standard, we also conclude
the FBI's method of calculating the statistical probability of a
random match, including its use of a smaller database in
polymarker typing, is admissible. Thus, we hold that the trial
court did not err by admitting the FBI's statistical probability
evidence.
We also note that the Supreme Court of Illinois in
Miller recently wrote that "while there has been some controversy
over the use of the product rule in calculating the frequency of
a DNA match, that controversy appears to be dissipating."
Miller, 173 Ill. 2d at 188-89, 670 N.E.2d at 731-32. In addi-
tion, the Second District Appellate Court in Dalcollo recently
provided a detailed discussion of the FBI's method of calculating
the statistical probability of a random match as derived by the
product rule. That court concluded that recent developments
"clearly debunk the notion that a 'bitter debate'--if ever there
was one--is still raging in the scientific community," and held
that the FBI's method is generally accepted in the scientific
community. Dalcollo, 282 Ill. App. 3d at 960, 669 N.E.2d at 388.
C. The Prosecutor's Closing Argument
Defendant argues that the prosecutor made several
improper remarks during closing argument that deprived him of a
fair trial. In evaluating this argument, we keep in mind that a
prosecutor "is given great leeway in closing argument" (People v.
Simms, 168 Ill. 2d 176, 197, 659 N.E.2d 922, 933 (1995)), and
that while "there are limits to proper argument, *** forcefully
arguing that the State has proven its case is not, in itself,
improper" (Simms, 168 Ill. 2d at 196-97, 659 N.E.2d at 933).
Further, remarks made in closing will not merit reversal unless
they result in substantial prejudice to the defendant. People v.
Peeples, 155 Ill. 2d 422, 482, 616 N.E.2d 294, 322 (1993).
First, defendant contends that the prosecutor expressed
his personal beliefs regarding witnesses' credibility and invoked
the integrity of the State's Attorney's office when he made the
following comments:
"Now, the [d]efendant's story is, and
ladies and gentlemen, I would submit that it
is an insult to your intelligence. His story
is that he is a trained CPR man. *** I came
upon this scene and immediately went to help,
except that I didn't know what to do, and I
forgot everything ***.
* * *
Now, Jim Saxberry testified. And, isn't
it interesting. Of course, his credibility
is challenged. He has got felony convic-
tions. We gave him a deal. There is no
question about that. I'd trade a bad check
writer for a baby molester any day. Isn't it
interesting that his testimony as to what
[d]efendant told him just happens to exactly
fit with the evidence, with the physical
evidence ***."
Because defendant failed to object, he has waived this
issue unless the prosecutor's remarks constitute plain error.
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
(1988); People v. Turner, 241 Ill. App. 3d 236, 242, 608 N.E.2d 906, 911 (1993). Not only do we conclude there is no plain
error, we hold that the prosecutor's comments were not error at
all.
It is improper for a prosecutor to personally vouch for
a witness' credibility or express a personal opinion. People v.
Emerson, 122 Ill. 2d 411, 434, 522 N.E.2d 1109, 1118 (1987).
However, a prosecutor may comment on a witness' credibility
(People v. Richardson, 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625
(1988)), and challenge a defendant's credibility and defense
theory when such remarks are based on facts in evidence or
reasonable inferences drawn therefrom. People v. Hudson, 157 Ill. 2d 401, 444, 626 N.E.2d 161, 179 (1993).
In Emerson, 122 Ill. 2d at 434-35, 522 N.E.2d at
1118, a defendant argued that the prosecutor improperly vouched
for a witness' credibility by making the following comments:
"'And we know Robert Ray was telling you the
truth. We could tell. ***
* * *
We know Robert Ray was telling you the truth
about what happened because we heard another
witness in this case. A witness that this
cold evil man who sits over there brought to
the witness stand. *** (Emphasis omit-
ted.)'"
The supreme court rejected the argument that the prosecutor
improperly expressed his personal opinion concluding these
remarks constituted fair comment on the evidence. Emerson, 122 Ill. 2d at 435, 522 N.E.2d at 1118. Further, in People v. Baker,
195 Ill. App. 3d 785, 787, 552 N.E.2d 421, 423 (1990), defendant
argued the prosecutor improperly expressed his personal opinion
when he made the following remarks:
"If ever there was a situation where a person
was detained, I think it was demonstrated by
the testimony ***. *** I think it could be
reasonably inferred from the evidence[.]"
This court in Baker rejected defendant's argument and concluded
that "[w]hile it might be good practice for prosecutors to
refrain in argument from using sentences beginning with, 'I
believe' or 'I think,' we reject defendant's argument that any
time a prosecutor does so error results." Baker, 195 Ill. App.
3d at 788, 552 N.E.2d at 423.
Consistent with these decisions, we expressly reject
the notion that a prosecutor improperly crosses the bounds of
asserting his personal views regarding witnesses' credibility or
defendant's theory of the case if the jury has to infer the
prosecutor is doing so from his comments. Thus, we hold that for
a prosecutor's closing argument to be improper, he must explicit-
ly state that he is asserting his personal views, stating for
example, "this is my personal view."
In this case, the prosecutor's remarks were such that
the jury would have to infer that he was giving his personal
opinion regarding the defense theory or personally vouching for
Saxberry's credibility. Accordingly, we conclude that the
prosecutor's remarks were not improper. We also reject
defendant's contention the prosecutor's comment invoked the
integrity of the State's Attorney's office.
Last, defendant claims that the prosecutor improperly
argued that the State's witnesses were "heroes" for testifying
where there was no evidence to support this characterization.
Again, because defendant failed to object to the argument when
made, he has waived the issue unless it constitutes plain error.
Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Turner, 241 Ill.
App. 3d at 242, 608 N.E.2d at 911. However, these remarks
constitute no error at all. At worst, they are a hyperbolic
expression of the gratitude the community should feel toward
witnesses whose involvement in the case may have saved this young
victim from further harm at the hands of this vicious criminal.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
COOK, P.J., and GREEN, J., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
KERRY L. POPE, ) No. 94CF182
Defendant-Appellant. )
) Honorable
) Dennis K. Cashman,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
A jury found defendant, Kerry L. Pope, guilty of one
count of aggravated criminal sexual assault (720 ILCS 5/12-
14(a)(2) (West 1992)) and one count of aggravated battery of a
child (720 ILCS 5/12-4.3(a) (West 1992)), for which he was
sentenced to consecutive terms of 60 years' and 30 years' impris-
onment respectively.
Defendant appeals, arguing that (1) the trial court
erred by admitting deoxyribonucleic acid (DNA) evidence because
the polymerase chain reaction (PCR) amplification-based proce-
dures for DNA identification are not generally accepted in the
scientific community; and (2) the prosecutor's improper closing
argument deprived him of a fair trial. We affirm.
I. BACKGROUND
Prior to trial in August 1994, defendant sought a
continuance to conduct a Frye hearing (see Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)) to determine the admissibility of
DNA test results based on PCR analysis. Because the Illinois appellate courts had not ruled on the admissibility of such
evidence, the trial court granted the motion. Before reviewing
the evidence presented at the Frye hearing, we provide background
information on both DNA structure and PCR analysis.
A. DNA Structure and Identification
The following background information is taken from
Thomas M. Fleming, Annotation, Admissibility of DNA Identifica-
tion Evidence, 84 A.L.R.4th 313 (1991), unless otherwise noted.
The DNA molecule is a long, threadlike structure resembling a
twisted ladder packed into the chromosomes in every nucleated
cell. Each side of the ladder is composed of a chain of sugars
and phosphates, while the rungs attached to them consist of pairs
of molecules called bases. While most sections of this chain of
bases are largely the same among humans, certain sections are
variable. Thus, a gene--the sequence of bases responsible for
producing a particular protein--may be polymorphic, having two or
more possible variations called alleles. Because of poly-
morphisms in human genetic structure, no two individuals (except
for identical twins) have identical base sequences throughout
their DNA.
The PCR amplification method of DNA identification,
first devised in 1985, is one of two kinds of DNA tests most
commonly used for identification. The other method is restric-
tion fragment length polymorphism (RFLP) analysis, which our
supreme court recently held to be generally accepted in the rele-
vant scientific community. People v. Miller, 173 Ill. 2d 167,
188, 670 N.E.2d 721, 731 (1996). By 1990, the PCR method was one
of the most widely used techniques in medical and biological re-
search. People v. Lee, 212 Mich. App. 228, 264, 537 N.W.2d 233,
250 (1995). PCR-based techniques allow testing of DNA samples
that have degraded as well as samples which are very small, such
as a single strand of hair.
In the PCR-based DQ-Alpha procedure, an analyst looks
at one particular gene, the DQ-Alpha gene, which is genetically
inherited and appears in varying forms in different people. Lee,
212 Mich. App. at 264-65, 537 N.W.2d at 250. Six readily detect-
able alleles are present in the DQ-Alpha locus, and they are
identified with the following numbers: 1.1, 1.2, 1.3, 2, 3, and
4. These alleles are combined in pairs in each individual, and
the six combinations result in 21 possible "genotypes," each of
which appears in varying proportions within the population.
In the PCR DQ-Alpha procedure, DNA is extracted from a
sample, purified, and added to a buffer solution containing
chemical primers (small pieces of DNA that recognize the four
bases) and an enzyme called "TAQ polymerase." The solution is
then modified (denatured) by being placed in a thermal cycler
which cycles it through several successive temperature plateaus.
During each cycle, the primer targets a specific gene and will
bind to the genetically complementary portion of the DNA; fur-
ther, TAQ polymerase works to copy the targeted gene. After 30
to 40 cycles, the DNA strand containing the targeted gene has
been amplified billions of times.
The amplified DNA is then flooded over a nylon membrane
onto which have been dotted a number of "allele-specific" probes,
each of which is designed to recognize one sequence of the
targeted gene. This may result in a color reaction and a visible
dot on the membrane wherever a probe has identified one of the
alleles. A blue dot is a match; a blank is a nonmatch. The
amplified DNA may then be typed for the various DQ-Alpha geno-
types. This process is referred to as the reverse dot blot
hybridization or the blue-dot procedure.
If the DQ-Alpha genotype of a suspect is different from
that of the evidence sample, the suspect is excluded as a source
of the evidence. If the suspect and the evidence sample have the
same genotype, then the suspect is included as a possible source.
The probability that some other, unrelated individual would also
match the evidence sample is equal to the frequency of the
genotype in the relevant population.
B. The Frye Hearing
At the Frye hearing, the trial court deter-mined that
Dr. Jenifer Ann Lindsey, a Federal Bureau of Investigation (FBI)
special agent and a forensic serologist assigned to the DNA
analysis unit, could testify as an expert in forensic serology
and DNA analysis. Dr. Lindsey explained that the FBI uses two
techniques based on PCR analysis--namely, DQ-Alpha typing and
polymarker typing. The FBI has been using the DQ-Alpha typing
technique since 1992 and the polymarker typing technique since
August 1994 (after examining the polymarker technique "for well
over a year" through validation and case studies).
Dr. Lindsey testified in detail regarding the PCR DQ-
Alpha typing procedure. She specifically noted that FBI analysts
perform 32 cycles in the thermal cycler to replicate the targeted
gene. Dr. Lindsey also testified regarding the PCR-based
polymarker typing procedure. She stated that in polymarker
typing, an analyst simultaneously amplifies the DQ-Alpha gene as
well as five additional gene regions. Dr. Lindsey also explained
the FBI's quality control measures (designed to prevent contami-
nation) and control amplification procedures.
Dr. Lindsey stated that she completed 50 case studies
comparing polymarker typing results and RFLP results and found
that in all 50 cases the ability to discriminate between two
different people was the same for the polymarker and the RFLP
procedures. The case studies revealed that some people who were
excluded as sources by RFLP testing were included as possible
sources by DQ-Alpha typing. DQ-Alpha typing and polymarker
typing together provide a power of discrimination (the ability to
differentiate between individuals based on the DNA test results)
of over 99%. Dr. Lindsey stated that DQ-Alpha typing is being
used by many private laboratories, and polymarker typing was
first put on the market in January 1994. She also opined that
both DQ-Alpha typing and polymarker typing are generally accepted
in the scientific community.
Dr. Lindsey further testified regarding the FBI's
method of calculating the statistical probability of a random
match. By using the product rule, the FBI estimates the statis-
tical probability of a random match between the DNA sample taken
from the crime scene and the defendant's DNA sample. In making
this estimate, the FBI compares the DNA samples to a previously
constructed population database. Because the PCR polymarker
systems are two allele or three allele, the FBI may rely on a
smaller database. Thus, the PCR Caucasian database contains only
145 individuals. For the polymarker typing procedure, the FBI
multiplies the various alleles' frequency rates times each other
to determine the statistical probability of a random match.
Regarding DQ-Alpha typing, Dr. Lindsey stated that the
FBI tested 500 individuals from four different population groups
("Caucasian," "Black," "Southwestern Hispanic," "Southeastern
Hispanic") and determined their DQ-Alpha genotypes. The FBI then
added a database developed by Cetus Corporation (containing 237
individuals) because it was statistically similar to the FBI
database. Dr. Lindsey stated that to determine the frequency of
a particular DQ-Alpha genotype, the FBI uses the actual count
method. For example, if an individual had a DQ-Alpha genotype of
2,2, an analyst would look to the database to determine how often
that particular genotype occurred within the "Caucasian" popula-
tion group (.020), then multiply by 100, and conclude that about
2% of the time in the Caucasian race one would expect to find an
individual with a 2,2 DQ-Alpha genotype.
After hearing evidence and arguments from both parties,
the trial court found that the PCR-based methods of DNA identi-
fication (DQ-Alpha and polymarker) are "generally accepted as
reliable." Accordingly, the court held that the DNA results from
both DQ-Alpha typing and polymarker typing and the FBI's method
of calculating the statistical probability of a random match were
admissible at trial.
C. Defendant's Trial
Given the arguments defendant raises on appeal, we
discuss only the evidence particularly relevant to a consider-
ation of his claims.
B.H.'s stepfather, Chris McColez, testified that on May
13, 1994, he, his wife (Retha), six-year-old B.H., and Retha's
baby went to visit Retha's aunt. After B.H.'s eight-year-old
cousin, Mandy Snyder, and B.H. had been playing outside for a
while, Mandy and a neighbor came inside, and Mandy told McColez a
man had tried to grab her and that B.H. was missing. McColez
then went outside to look for B.H., crossed the nearby highway,
and saw B.H. lying on the ground. She had no pants on, and
defendant stood over her, "fidgeting" with his pants. Defendant
swung a knife and stick at McColez and yelled for him to back off
or defendant would kill him. McColez then fell, and defendant
ran away. McColez testified that defendant was wearing a camou-
flage jacket, long pants, and had a beard and a mustache. Mandy
testified that defendant was the man who tried to lure her into a
park shortly before McColez found B.H.
James Saxberry, one of defendant's county jail cell-
mates, testified that he asked defendant why he had assaulted
B.H. According to Saxberry, defendant became tearful and said he
did not know why he did it. Defendant told Saxberry that he
picked up B.H., took her to the culvert, hit her, and placed his
finger in her vagina and mouth and his penis in B.H.'s mouth. On
cross-examination, Saxberry admitted felony convictions for
deceptive practices and forgery. He also stated he was testi-
fying as a condition of the sentence he received after pleading
guilty to misdemeanor deceptive practices.
Dr. Maureen Swisher testified that she examined B.H.
and found bruising and redness around B.H.'s head and neck. She
also opined that an injury to B.H.'s vaginal area was consistent
with a finger being pushed into the hymen area.
Quincy police officer Neal Meyer testified that he
arrested defendant, who was wearing cut-off blue jeans which
appeared to have been cut off recently. Inside the pickup truck
in which defendant was sitting at the time of his arrest, Meyer
found a camouflage shirt and knife. The cutoff portions of blue
jeans which were recovered from the area near where defendant was
found sleeping in his pickup truck showed blood stains which were
analyzed. Salvia samples were also recovered from the culvert
where B.H. was found.
Dr. Lindsey testified that the PCR-based test results
in this case indicated that defendant is a potential source of
the saliva samples taken from the culvert; while B.H. was not.
The likelihood that another individual could have been the source
of the saliva samples is 1 out of 2 million in the "Black"
population, 1 out of 4,100 in the "Caucasian" population, 1 out
of 6,000 in the "Southeastern Hispanics" population, and 1 out of
2,300 in the "Southwestern Hispanics" population. (Defendant is
Caucasian.) Dr. Lindsey also stated that B.H. is a potential
source of bloodstains found on the cut-off portion of defendant's
jeans; while defendant was not. The likelihood that another
individual could have been the source of the bloodstains was 1 in
24,000 in the "Black" population, 1 out of 1,600 in the "Cauca-
sian" population, 1 out of 2,300 in "Southeastern Hispanics"
population, and 1 out of 2,300 in "Southwestern Hispanics"
population.
Defendant testified and denied committing the crimes.
Defendant stated that he drank several beers after work on May
13, 1994, and sometime after 7 p.m., he walked to the culvert to
urinate. Once there he saw B.H. lying on the ground with her
pants and underwear around her ankles. When he leaned down to
help B.H. and pick her up, her hair became entangled in his
jacket button. As defendant pulled her hair away from the
button, McColez "jumped" into the culvert. Defendant stated that
he pulled out a knife because McColez frightened him. Defendant
acknowledged that he hid his camouflage jacket, took off his
shirt, and cut off his jeans with a knife to change his appear-
ance. Defendant also admitted that he initially lied to the
police regarding whether he cut off his jeans. Defendant denied
ever talking to Saxberry.
II. ANALYSIS
A. Admissibility of the DNA Identification
Evidence Based on the PCR Method
Defendant first argues that DNA evidence based on the
PCR method of DNA identification is inadmissible because DQ-Alpha
typing and polymarker typing are not generally accepted in the
scientific community. We disagree.
Illinois follows the Frye standard for the admission of
novel scientific evidence. Miller, 173 Ill. 2d at 187, 670 N.E.2d at 731. The Frye court explained the standard as follows:
"Just when a scientific principle or discov-
ery crosses the line between the experimental
and demonstrable stages is difficult to de-
fine. Somewhere in this twilight zone the
evidential force of the principle must be
recognized, and while courts will go a long
way in admitting expert testimony deduced
from a well-recognized scientific principle
or discovery, the thing from which the deduc-
tion is made must be sufficiently established
to have gained general acceptance in the
particular field in which it belongs." Frye,
293 F. at 1014.
General acceptance in the scientific community does not require
scientific unanimity. People v. Dalcollo, 282 Ill. App. 3d 944,
957, 669 N.E.2d 378, 387 (1996). Further, the mere fact that a
dispute exists will not preclude a trial court from finding that
a procedure is generally accepted. Dalcollo, 282 Ill. App. 3d at
957, 669 N.E.2d at 387. The determination whether the State has
met the Frye standard lies within the trial court's discretion,
and a reviewing court will not reverse absent an abuse of that
discretion. People v. Lipscomb, 215 Ill. App. 3d 413, 430, 574 N.E.2d 1345, 1356 (1991); see also Miller, 173 Ill. 2d at 187,
670 N.E.2d at 731.
Initially, we note that the majority of defendant's
contentions concern proper laboratory protocol and preventing
contamination of DNA samples. Relying in large part on a 1992
report from the Committee on DNA Technology in Forensic Science
(Committee), under the auspices of the National Academy of
Sciences (National Research Council, DNA Technology in Forensic
Science (1992)) (hereinafter NRC Report), defendant contends PCR
analysis involves the following "technical problems": (1)
thermal cyclers can give varying results unless their performance
is rigorously characterized for variation sensitivity; (2)
amplification with "current" PCR technique may not be completed
with sufficient "quantitative and qualitative fidelity"; (3)
"[s]ome forensic samples contain factors that inhibit amplifica-
tion"; and (4) evidence samples may be contaminated with other
human DNA. However, the mere potential for contamination or
differential amplification does not render the PCR-based tech-
niques generally unaccepted by the scientific community. See
State v. Russell, 125 Wash. 2d 24, 51, 882 P.2d 747, 767-68
(1994). Rather, such concerns bear on the question of whether a
laboratory or analyst has complied with generally accepted stan-
dards in a given case. As this court most recently noted in
People v. Johnson, 262 Ill. App. 3d 565, 569, 634 N.E.2d 1285,
1288 (1994), quoting Lipscomb, 215 Ill. App. 3d at 432, 574 N.E.2d at 1357, "'[a]ny question concerning the specific proce-
dures used by the company or expert goes to the reliability of
the evidence and is properly considered by the jury in deter-
mining what weight to give to this evidence.'" (Emphasis added.)
In addition, the NRC Report itself acknowledges the admissibility
of DNA evidence (without distinguishing between PCR and RFLP
methodology), as long as precautions suggested in the report are
taken:
"As a general matter, so long as the
safeguards we discuss in this report are
followed, admissibility of DNA typing should
be encouraged. There is no substantial dis-
pute about the underlying scientific princi-
ples. However, the adequacy of laboratory
procedures and of the competence of the ex-
perts who testify should remain open to in-
quiry." NRC Report at 146.
In the present case, Dr. Lindsey, the sole witness at
the Frye hearing, testified in detail regarding PCR-based tech-
niques for DNA identification, including DQ-Alpha typing and
polymarker typing. She explained that PCR analysis had been used
for several years in research and diagnostic labs, and she had
conducted and supervised validation and case studies prior to
using PCR analysis for forensic purposes. In a study of 50
cases, Dr. Lindsey found that polymarker typing resulted in the
same individuals being excluded as with RFLP testing. She also
stated that while DQ-Alpha typing has a lower power of discrimi-
nation than RFLP, DQ-Alpha typing and polymarker typing together
provide a power of discrimination of over 99%. She also stated
that the FBI has instituted quality control measures to prevent
contamination and control amplification procedures. Dr. Lindsey
acknowledged that TAQ polymerase may potentially create amplifi-
cation errors; however, the potential for such error was low.
Further, she stated that any copying error would be insignificant
due to the number of times the targeted gene is replicated. She
also stated that since the NRC Report was issued, two Committee
members, Dr. Kaia Kazazian and Dr. George Sensabaugh, have
expressed the view--either through affidavit or testimony--that
PCR-based techniques, including DQ-Alpha typing, are generally
accepted as reliable in the relevant scientific community.
Upon the record before us, we conclude the trial court
did not abuse its discretion by finding that the PCR-based
procedures for DNA identification--namely, DQ-Alpha typing and
polymarker typing, are "scientifically reliable and generally
accepted" and admissible. Accordingly, we hold that PCR-based
methods of DQ-Alpha typing and polymarker typing for DNA identi-
fication are now generally accepted in the relevant scientific
communities involved, and trial courts need not conduct future
Frye hearings on this issue.
In so holding, we specifically disagree with defen-
dant's contention that copying errors caused by the enzyme TAQ
polymerase destroy the general acceptance of PCR-based tech-
niques. Instead, we agree with the Michigan appellate court in
Lee (212 Mich. App. at 277, 537 N.W.2d at 255), that any errors
which may be caused by TAQ polymerase are not serious enough to
undermine the general acceptance of PCR-based techniques for DNA
identification as reliable.
We also note that several other courts have held that
PCR-based DNA test results are admissible. In Russell (125 Wash. 2d at 54 & n.7, 882 P.2d at 768 & n.7), the Supreme Court
of Washington addressed this issue and held that this technique
has been generally accepted by the scientific community. In Lee
(212 Mich. App. at 280-81, 537 N.W.2d at 257), the court also
held that PCR-based DQ-Alpha typing is generally accepted as
reliable under a version of the Frye standard. See also State v.
Hill, 895 P.2d 1238, 1244-47 (Kan. 1995); State v. Williams, 252
N.J. 369, 599 A.2d 960 (1991). Other states have also admitted
PCR test results, but under standards other than Frye. See
Harmon v. State, 908 P.2d 434, 440-41 (Ala. App. 1995); State v.
Moore, 268 Mont. 20, 48, 885 P.2d 457, 475 (1994); State v.
Lyons, 124 Or. App. 598, 602-10, 863 P.2d 1303, 1306-11 (1993);
State v. Moeller, 548 N.W.2d 465, 479-83 (1996 S.D. 60); Clarke
v. State, 813 S.W.2d 654, 655 (Tex. Ct. App. 1991); Spencer v.
Commonwealth, 240 Va. 78, 97-98, 393 S.E.2d 609, 621 (1990).
We also find support for our holding in the extensive
validation studies which have been conducted on PCR-based analy-
sis for DNA identification. As Dr. Lindsey testified, the FBI
conducted validation and case studies to determine the reliabili-
ty of DQ-Alpha typing and polymarker typing prior to using them
for forensic purposes. Further, the Russell court noted that
Cetus Corporation (distributor of the DQ-Alpha test kit) had
produced a bibliography listing over 1,000 articles on PCR
analysis. Russell, 125 Wash. 2d at 50, 882 P.2d at 766; see also
N. Dimo-Simonin & C. Brandt-Casadevall, Evaluation and Usefulness
of Reverse Dot Blot DNA-PolyMarker Typing in Forensic Case Work,
81 Forensic Science International 61 (1996); C. Comey & B.
Budowle, Validation Studies on the Analysis of the HLA DQ Alpha
Locus Using the Polymerase Chain Reaction, 36 J. Forensic Sci.
1633 (1991).
B. Calculation of the Statistical Probability of a Random Match
Defendant next argues that the trial court erred by
admitting this evidence because the FBI's method of calculating
the statistical probability of a random match, by use of the
product rule, is not generally accepted in the scientific commu-
nity. We disagree.
In People v. Miles, 217 Ill. App. 3d 393, 405, 577 N.E.2d 477, 485 (1991), this court discussed a defendant's
challenge to the admission of probability statistics:
"This court [in Lipscomb] *** [held that] the
[RFLP] DNA identification procedure was ad-
missible, including 'the development of fre-
quencies, and procedure whereby the individu-
al frequencies are multiplied together to
determine the ultimate frequency of the pat-
tern.' (Lipscomb (1991), 215 Ill. App. 3d at
432[, 574 N.E.2d at 1357].) Implicitly, the
[Lipscomb] court held the process of generat-
ing probability statistics is an integral
part of the DNA identification process.
Because the DNA identification process meets
the Frye test and is admissible, probability
statistics operated thereby are admissible."
Therefore, because we have concluded that the PCR-based tech-
niques of DQ-Alpha typing and polymarker typing for DNA identifi-
cation are admissible under the Frye standard, we also conclude
the FBI's method of calculating the statistical probability of a
random match, including its use of a smaller database in
polymarker typing, is admissible. Thus, we hold that the trial
court did not err by admitting the FBI's statistical probability
evidence.
We also note that the Supreme Court of Illinois in
Miller recently wrote that "while there has been some controversy
over the use of the product rule in calculating the frequency of
a DNA match, that controversy appears to be dissipating."
Miller, 173 Ill. 2d at 188-89, 670 N.E.2d at 731-32. In addi-
tion, the Second District Appellate Court in Dalcollo recently
provided a detailed discussion of the FBI's method of calculating
the statistical probability of a random match as derived by the
product rule. That court concluded that recent developments
"clearly debunk the notion that a 'bitter debate'--if ever there
was one--is still raging in the scientific community," and held
that the FBI's method is generally accepted in the scientific
community. Dalcollo, 282 Ill. App. 3d at 960, 669 N.E.2d at 388.
C. The Prosecutor's Closing Argument
Defendant argues that the prosecutor made several
improper remarks during closing argument that deprived him of a
fair trial. In evaluating this argument, we keep in mind that a
prosecutor "is given great leeway in closing argument" (People v.
Simms, 168 Ill. 2d 176, 197, 659 N.E.2d 922, 933 (1995)), and
that while "there are limits to proper argument, *** forcefully
arguing that the State has proven its case is not, in itself,
improper" (Simms, 168 Ill. 2d at 196-97, 659 N.E.2d at 933).
Further, remarks made in closing will not merit reversal unless
they result in substantial prejudice to the defendant. People v.
Peeples, 155 Ill. 2d 422, 482, 616 N.E.2d 294, 322 (1993).
First, defendant contends that the prosecutor expressed
his personal beliefs regarding witnesses' credibility and invoked
the integrity of the State's Attorney's office when he made the
following comments:
"Now, the [d]efendant's story is, and
ladies and gentlemen, I would submit that it
is an insult to your intelligence. His story
is that he is a trained CPR man. *** I came
upon this scene and immediately went to help,
except that I didn't know what to do, and I
forgot everything ***.
* * *
Now, Jim Saxberry testified. And, isn't
it interesting. Of course, his credibility
is challenged. He has got felony convic-
tions. We gave him a deal. There is no
question about that. I'd trade a bad check
writer for a baby molester any day. Isn't it
interesting that his testimony as to what
[d]efendant told him just happens to exactly
fit with the evidence, with the physical
evidence ***."
Because defendant failed to object, he has waived this
issue unless the prosecutor's remarks constitute plain error.
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
(1988); People v. Turner, 241 Ill. App. 3d 236, 242, 608 N.E.2d 906, 911 (1993). Not only do we conclude there is no plain
error, we hold that the prosecutor's comments were not error at
all.
It is improper for a prosecutor to personally vouch for
a witness' credibility or express a personal opinion. People v.
Emerson, 122 Ill. 2d 411, 434, 522 N.E.2d 1109, 1118 (1987).
However, a prosecutor may comment on a witness' credibility
(People v. Richardson, 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625
(1988)), and challenge a defendant's credibility and defense
theory when such remarks are based on facts in evidence or
reasonable inferences drawn therefrom. People v. Hudson, 157 Ill. 2d 401, 444, 626 N.E.2d 161, 179 (1993).
In Emerson, 122 Ill. 2d at 434-35, 522 N.E.2d at
1118, a defendant argued that the prosecutor improperly vouched
for a witness' credibility by making the following comments:
"'And we know Robert Ray was telling you the
truth. We could tell. ***
* * *
We know Robert Ray was telling you the truth
about what happened because we heard another
witness in this case. A witness that this
cold evil man who sits over there brought to
the witness stand. *** (Emphasis omit-
ted.)'"
The supreme court rejected the argument that the prosecutor
improperly expressed his personal opinion concluding these
remarks constituted fair comment on the evidence. Emerson, 122 Ill. 2d at 435, 522 N.E.2d at 1118. Further, in People v. Baker,
195 Ill. App. 3d 785, 787, 552 N.E.2d 421, 423 (1990), defendant
argued the prosecutor improperly expressed his personal opinion
when he made the following remarks:
"If ever there was a situation where a person
was detained, I think it was demonstrated by
the testimony ***. *** I think it could be
reasonably inferred from the evidence[.]"
This court in Baker rejected defendant's argument and concluded
that "[w]hile it might be good practice for prosecutors to
refrain in argument from using sentences beginning with, 'I
believe' or 'I think,' we reject defendant's argument that any
time a prosecutor does so error results." Baker, 195 Ill. App.
3d at 788, 552 N.E.2d at 423.
Consistent with these decisions, we expressly reject
the notion that a prosecutor improperly crosses the bounds of
asserting his personal views regarding witnesses' credibility or
defendant's theory of the case if the jury has to infer the
prosecutor is doing so from his comments. Thus, we hold that for
a prosecutor's closing argument to be improper, he must explicit-
ly state that he is asserting his personal views, stating for
example, "this is my personal view."
In this case, the prosecutor's remarks were such that
the jury would have to infer that he was giving his personal
opinion regarding the defense theory or personally vouching for
Saxberry's credibility. Accordingly, we conclude that the
prosecutor's remarks were not improper. We also reject
defendant's contention the prosecutor's comment invoked the
integrity of the State's Attorney's office.
Last, defendant claims that the prosecutor improperly
argued that the State's witnesses were "heroes" for testifying
where there was no evidence to support this characterization.
Again, because defendant failed to object to the argument when
made, he has waived the issue unless it constitutes plain error.
Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Turner, 241 Ill.
App. 3d at 242, 608 N.E.2d at 911. However, these remarks
constitute no error at all. At worst, they are a hyperbolic
expression of the gratitude the community should feel toward
witnesses whose involvement in the case may have saved this young
victim from further harm at the hands of this vicious criminal.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
COOK, P.J., and GREEN, J., concur.
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