FIFTH DI VISI ON July 30, 2010

No. 1-08-2679

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 02 CR 30054 ) KEVI N BARKER , ) The Hono rable ) John J. Fl eming, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: Following a jury

trial, defendant Kevin Barker wa s convicted of first degree murder , home invasion, and two counts of aggrava ted criminal sexual assault. The trial court sentenced defenda nt to 60 y ears’ in carce ration for murder , a conc

urrent 2 0 ye ars’ inc arcer

ation for home invasion, and two consecutive 20-y ear terms for agg

ravated criminal sexual assault. Defendant appealed. This court reversed defe ndant’s home invasion conviction but upheld his convictions for aggravate d criminal sexual assault and murder. Defendant subsequently petitioned the trial court to conduct fingerprint or forensic te sting. The trial court denied his petition, finding that the evidence had already

been subjected to DNA testing. Defenda nt now appeals. I. BACKGROUND At trial, Kimberly Walton testified that she was a friend of victim Latrina Rice. She testifie d that the

victim live d at 723 North Centr al in Chica

go. The victim sta

ye d overnig

ht with Walton beg

inning Monday , April 9, 2 001, and Wa lton braid ed the victim’s hair

and appli ed falseNo. 1-08-2679

2

fingernails. They

briefly re turned to the victim’s apartment on Thursday morning. While there, the victim went to her nextdoor neighbor, Joy McGill’s, apa rtment to ask for a cigarette. She was “upset” with Joy when she r eturned. Walton and the victim then returned to Walton’s house, where the victim stayed until Saturday. Walton drove the victim home at about 8 p.m. on Saturday eve

ning and made plans to see one another the f ollowing day, Ea ster Sunday, April 15, 2001. The next day, Walton telephoned the victim numerous times, but the victim did not answer the phone. Walton testified that although the victim told her about her dating relation ships, she

never me ntioned de fendant

. Vivian Do ckery

, the vict im’s frie nd, testif ied that she spoke to

the victim

around 1 1 p.m. on Saturday, April 14, 2001. Evelean Hampton testified that she lived down the hall from the victim in April 2001. She saw the victim enter her apartment alone around 7 p.m. on Apr il 14, 2001. On April 16, the victim’s mother came to her door, cry ing, saying

the victim was dead. Hampton went to the victim’s apartment, where she found the victim, lifeless, on the floor. On cross-examination, Hampton admitted that she did not hear any thing unusual coming from the victim’s apartment between April 14 and April 16, 2001. The victim’s mother, Nancy Massie, testified that she tried unsuccessfully to call the victim on April 14 and 15, 2001. She expected the victim to come to her house for Easter dinner on April 15, but she did not appear. She went to the victim’s apartment on Monday, April 16, opened the unlocked door, and found the victim dead on the floor. Deputy Medica

l Examiner Dr. Aldo Fusaro testified that he performed an a utopsy on theNo. 1-08-2679

3

victim and determined that the cause of death was homicide by multiple stab wounds. He testified that the victim was 5 feet 5 inches and weighed 213 pounds. H e noted a white substance coming from the victim’s vagina. He swabbe d the victim’s vagina and anus. He noted that no anal or vaginal tears were identified. He further noted that the victim’s fingerna ils contained a clear polish or artificial nail adhesive, and one fing er had a loosely adherent artificial fingerna il. The victim had been stabbed approximately 60 times, including a series of wounds to the victim’s airway, whic

h, Dr. Fusaro testified, could have affe cted her ability to scr eam. On cross-examination, Dr. Fusaro testified that “intact spermatozoa can be found in the vaginal area 72 hours after coitus.” He also noted that the victim did not have the vaginal and anal tears associated with “rough se x.” On redirect examination, Dr. Fusaro testified that he would expect to find intact spermatozoa in a person who was murdered at the time she wa s sexually assaulted. Dr. Fusa ro further testifie d that lac

k of vag inal and a

nal tears does not r

ule out sexual assau

lt. On re-cross-examination, Dr. Fusaro admitted that nonconsensual a nal sex would “more likely” result in tears tha

n nonconsensual vaginal sex. Dr. Fusaro also admitted that he did not know how long before her death the vic tim had intercourse. Chicago police forensic investigator G erald Ostafin testified that he responded to the victim’s apartment on April 16, 2001, to find her, dead, on the floor. She was ly ing on her back wearing only a bloodie d T-shirt , which wa s pulled up to her br easts. I nvestig ator Osta

fin observed “quite a lot of blood” where the victim was ly ing and blood spatter on the walls. He observe d a “blood

smear” on the insi de front

door fra me by the lock. He noted

that the victimNo. 1-08-2679

4

had “multiple puncture wounds” on her body . Investigator Ostaf in testified that he collected and inventoried items from the apartment, including six false fingerna ils found scattered throughout the apartment and a condom wrapper. On cross-examination, Investigator O stafin testified that there was no sign of force d entry to the apartment. He also testified that he did not find any underwear or pants in the apartment that were “related to the scene.” Illinois State Police forensic scientist Karen He ard testified as an expert in latent print examination that she

did not fin

d any suitable f ingerp rints on ob

jects she tested fr om the cr ime

scene. Chicag o police d

etective James De La Font te stified th at he wa s assigned to inve stigate the victim’s death. He testified that he did not find any weapons in apartment 305, the victim’s apartme nt. On Apr

il 16, 2001, he canv assed the victim’s a

partmen t building , speakin

g with various individuals, including defendant. At that time, defendant was in an a partment at the end of the hallway on the

same floor as the victim, with two individuals who lived there. Defendant explained to Detective De La F ont that he lived in apartment 307 with his girlfriend, Joy Mc Gill. Defendant told Detective De L a Font that he, Joy, and the victim wer e friends, and that he had known the

victim for

three y ears. D efenda

nt also told

Detecti ve De L a Font: “[H]e hadn’t seen [the victim] around the apartment. She was in and out most of the time for two weeks prior to that day , to 16 April, and he hadn’t seen her for approximately - y

ou know, in and out for two weeks.” Further, defendant told him that Joy ha d moved out of the apartment on April 12. Detective DeNo. 1-08-2679

5

La Font testified that he then continued c anvassing the building and eventually collected DNA samples by bucca

l swab from Edward Knight, L onnie Jolly, and Gregor y Docker y. Detective De La Font returned to the victim’s building on April 18, 2001, and again spoke with defendant. On April 25, 2 001, he r

eturned to the vic tim’s apa

rtment an d recove red more false fi ngernail fragments. Detecti ve De L a Font te stified th at, on June 5 , 2001, he and his pa

rtner we nt to defendant’s aunt and uncle, Shirley and James Ballard’s house, where defenda nt then lived. Defendant agreed to g o with the detectives to the police station. At the police station, defendant stated that he was friends with the victim and Joy. He said that, in April 2001, he and Joy lived next door to the victim. Defendant claimed he last saw the victim on April 11, 2001, when she came to his door to ask Joy for a c igarette. He stated that he “g ot upset” when she asked for the ci ga re tt e, be ca us e s he di d s o r eg ul ar ly. De fe nd an t t ol d D et ec ti ve De La F on t t ha t, on Th ur sd ay, April 12, he discovered that Joy had move d out of their apartment. He then knocked on the victim’s door to ask if she knew where Joy had gone, but the victim did not answer her door. He

re tu rn ed to hi s a pa rt me nt , w he re he st aye d f or th e r em ai nd er of

th e n ig ht . A ft er wo rk on Fr id ay, April 13, he went out with a friend overnight, then went to the B allard residence at 9 a.m. on Saturday morning . He stated that he stay ed the entire day

at the Ballard residence and slept

overn ight o n a cou ch in t he Ball ards’ l ivin g room w ith K arin Ba rker. K arin l eft Su nday morn ing, and defe ndant sta ye d all day

and nig ht Sunday at the Ba llards’ house. He

returne d to his apartment on Monday , April 16, which is where he learned that the victim had bee n killed. Defend ant denie d killing

the victim

.No. 1-08-2679

6

After Detective De L a Font interviewed James and Shirley Ballard, defendant admitted that he “ was not c ompletely

truthful” before . He expla

ined that he did not s leep on th e Balla rds’ couch Saturday

night with Karin, nor in the Ballard residence on Sunday night, but instead slept alone in the garage. D efendant explained that his uncle did not allow him to sleep in the house, but his aunt sometimes secretly allowed him to sleep in the g arage. The detective the n spoke with the a unt aga in and did n

ot pursue further questioni ng reg arding

this. Def endant a greed to have a buccal swab performe d. Detective De La

Font spoke with Marcus Dawson in July 2001, who a lso consented to a buccal swab. After receiving DNA ana lysis results from the Illinois State Police Crime Lab regarding both the semen collected from the victim and the false fing ernails collected at the scene, Detective De La

Font reinterviewed defendant on Octobe r 5, 2002. In that interview, defe ndant said he was just an acquaintance of the victim, rather than a friend, and “became ada mant, got very loud, that he did not have sex or any contact a

t all with [the victim].” He again denied killing her. On cross-examination, Detective De L a Font admitted that he did not see any scratches or bruises on defendant when he first spoke with him on April 16, 2001. Illinois State Po lice Crime Lab f orensic scientist Brian H apack te stified a s an exper t in forensic biology

that he tested biological samples from the victim’s vagina, mouth, and r ectum. The vaginal and rectal samples we re positive for the presence of semen. Illinois State Police Crime Lab f orensic scientist Tanis Wildhaber Pfoser testified as anNo. 1-08-2679

7

expert in D

NA analy sis and se rology . Pfoser t

ested the buccal swabs from five men : defend ant, Knight, Jolly, Dockery

, and Dawson, in connection with the victim’s death. She analy zed the DNA profiles on each swab, as well as the prof ile obtained from the victim’s blood standard. She then compared these profiles with the DNA found in the semen swa bbed from the victim’s vagina and determined that it was consistent with defenda nt’s DNA to a statistical significance of 1 in 1.1 billion of the black population. Pfoser also tested and compared the DNA profile in the semen swabbed from the victim’s rectum and determined that it was a lso consistent with the DNA of defendant to a statistical significance of 1 in 2,000 black individuals. Pfoser concluded that the DNA profiles in the vaginal and rectal semen swabs were consistent with having originated from defendant. She examined the DNA e vidence using two testing kits - ProFiler and Cofiler- and then entered the vaginal swab into the Combined DNA Indexing Sy stem. Pfoser te stified th at she al so tested and compa

red the D NA profi le from se

ven fals e fingernails recovered f

rom the victim’s apartment. Three of the finge rnails contained insufficient amounts of DNA material to analy ze. A fourth fingernail, which was collected in piec es, showed no signs of blood on it, but did contain DNA material consistent with a female profile other tha n the victim. A fifth fingernail had reddish-brown stains similar to blood and contained D NA consistent with the victim’s DNA profile. Two additional fingernails also exhibited reddish-brown stains consistent with blood. The stains on the first tip, which was recovered directly inside the victim’s front door, were present both unde

r and on to

p of the na

il. Pfoser testifie d that her

analy sis reve aled tha

t the nail containe d two DNA p

rofiles, one cons istent with defenda nt and the other wit h the vict im.No. 1-08-2679

8

Specifically, Pfoser

testified that defendant could not be excluded from the male profile, which occurs at a frequency

of 1 in 80 black males, 1 in 380 white males, and 1 in 320 Hispanic males. The second fingernail, which was r ecovered from behind the victim’s sofa, also had re ddishbrown stains and contained a DNA profile consistent with defenda nt. The occurrence rate on that profile was 1 in 9,800 black individuals, 1 in 77,000 white individuals, and 1 in 99,000 Hispanic individuals. Each of the four other swabbed men wa s excluded from the profiles found on these t wo nails. The State rested. Defend

ant did not

testify at trial, nor put on a

ny w itnesses. Defens e rested. The jury found de fendant guilty of murder, two counts of aggr avated criminal sexual assault, and home invasion. The trial court sentenced defe ndant to 60 years’ incarceration for murder, a concurrent 20 y ears’ incarceration for home inva sion, and two consecutive 20-y ear terms for aggrava

ted criminal sexual assault. Defendant appealed. While his dir

ect appe al was pe

nding, d efenda nt seems to

have fil ed a motio n pursuan t to section 116-3 of the Code of Criminal Procedure of 1963 (725 I LCS 5/116-3 (West 2008)), requesting additional DNA testing on evidence used to support his conviction. However, such motion does not appear in the record. The trial court’s half -sheets reflect that the motion was filed on April 20, 2006, and that six days later on April 26, 2006, the trial c ourt denied the motion. A copy of the orde r denying the motion is also missing from the record. However, notations of the ha lf-shee ts state th at defe

ndant’s pro se motion for DNA testing was denied because DNA testing was done pre trial and DNA evidence was presente d at trial. Nothing in theNo. 1-08-2679

9

record indicates that defendant appea led from that ruling. On March 31, 2008, this court affirmed defendant’s c onvictions for aggravated c riminal sexual assault and murder, but reversed his conviction for home invasion. On August 4, 2008, defendant filed a “Petition for Fing erprint or Forensic Testing Not Available at Trial Regarding Actual Innocence ,” pursuant to section 116-3 of the Illinois Code of Criminal Procedure (725 ILCS 5/116-3 (West 2008)). Defendant specifically requested DNA testing on Exhibits 11 A (the underside of the victim’s fing ernail) , 4A1 (va ginal sw ab), and

4C1 (rectal swab). He asserted that identity was the issue at trial, that the exhibits had been subjected to a proper chain of custody , and although they had been previously

tested, new tests were now availab le. Defe

ndant spe cified the ty

pe of tes ting he was reque sting to b e short ta ndem rep eats (STR), polymerase c

hain reaction (PCR), and restriction fragment leng th polymorphism (RFL

P). On Septem

ber 4, 20 08, the tr

ial cour t sua sponte denied defendant’s motion on two grounds: first, the common law record showed that a similar sec tion 116-3 motion was previously filed and ha

d been denied on April 26, 2006, and second, that the evidence defendant wanted tested had already been subjected to forensic DNA analy sis, the results of which were presented at trial. Defendant now appea ls form the September 4, 2008, denial of his second section 116-3 motion for additional testing. II. AN ALYS IS On appeal, defendant contends that the trial court e rred in deny

ing his section 116-3 motion because he satisfied all the requirements for additional testing . The State responds that principles of res judic ata procedurally barred defendant from pursuing w hat is now his sectionNo. 1-08-2679

10

116-3 motion raising issues already adjudicated, and that in any event his petition failed to meet section 116-3's requirements for additional DNA testing

. 1. Res Judic

ata As mentioned above, the trial court cited two grounds for de nying the A

ugust 4, 2008, section 116-3 motion. The first was that a previous motion on the same subject was denied on April 26, 2 006. Def

endant a pparent ly f iled a se ction 116- 3 motion on A pril 20, 20 06, which

is not included in the record, and the trial court appare ntly ruled on such motion, although that order is not in the record on appeal. However , we note that this court recently found, in People v. Bailey , 386 I ll. App. 3d

68, 72 (20 08): “There is no language

in section 116-3 indicating that the legisla ture inte nded to limi

t the numbe

r of motion s for for

ensic testing that a de fendant

could file . If t

he legi slature had wishe d to impose such a limit, it could easily have done so. ‘I t is not the prerogative of this court to read into the statute of limitations that the legislature chose not to include.’ People v. Rokita , 316 I ll. App. 3d 292, 303 (2000). Accordingly, we conclude that section 116-3 simp ly d

oes not imp ose a limit

on the numb er of forensic testing motions a defendant may file.” Accordingly , successive section 116-3 motions are not impermissible. However, res judicata would still b ar a suc cessive section 1 16-3 motio

n if the e xact same i ssue was raised in both motions. See People v. Luczak , 374 Ill. App. 3d 172, 178 (2007). However , we do notNo. 1-08-2679

11

know what issue was raised in the first motion since it is not part of the record. We are aware that the responsibility for preserving a sufficiently complete record of the procee dings be fore the

trial cou rt rests w ith the de fendant , as the a ppellant , and where the record on appea l is incompl ete, any

doubts ar ising fr om that inc ompleten ess will be construe d again st the defendant, and every

reasonable presumption will be taken in favor of the judg ment below. People v. Banks , 378 Ill. App. 3d 856, 861 (2007). However , as defendant points out, res judicata is an aff irmative defense . Where a

party fails to pr

esent ev idence i n support o f its affirmative defense, it has waived the def ense. Bay

lor v. Thie ss , 2 Ill. App. 3d 582, 584 (1971). Here the State has failed to proved evidence to prove defendant’s first section 116-3 motion raised the exact same issue as his second motion. Accordingly , we will review the trial court’s denial of defendant’s most recent section 116-3 motion. 2. Section 116-3 We now turn to defendant’s contention that the trial court improperly denied his second section 116-3 motion. Specifically, def endant claims that he satisfied all the requirements for additiona l testing . Section 1 16-3 stat es in per tinent pa rt: “(a) A defendant may

make a motion before the trial court that entered the judgment of conviction in his or her case for the performance of *** forensic DNA testing, including comparison analysis of g enetic marker groupings of the evidence collected by criminal justice a gencie s pursuan

t to the all eged o ffense , to those of the de fendant , to those o f other f orensic evidenc e, and to t

hoseNo. 1-08-2679

12 maintained under subsection (f) of Section 5-4-3 of the Unified Code of Corrections [(730 IL CS 5/5-4-3)], on evidence that was secured in relation to the trial which resulted in his or her conviction, and :

(1) was not subject to the testing which is now requested at the time of trial; or (2) although previously

subjected to testing, can be subjected to additional testing utilizing a method that was not scientifically ava

ilable at the time of trial that provides a reasonable likelihood of more probative results. *** (b) The d efenda nt must pre sent a pr

ima faci e case t

hat: (1) identity was the issue in the tria l which resulted in his or her conviction; and (2) the evidence to be tested has been subject to a chain of custody suf

ficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect. (c) The trial cou rt shall a llow the te sting und

er rea sonable condition s designed to prot ect the St ate’s int erests in the integ rity of the ev idence a nd the tes ting pro cess upon a deter mination that: (1) the r esult of the testing

has the sc ientificNo. 1-08-2679

13 potentia l to produc e new, noncumulat ive evide nce mate rially relevant to the defendant’s assertion of actual innocence even though the results

may not comple

tely exonerat e the def endant; (2) the te sting re quested e mploy s a scien

tific method g eneral ly a

ccepte d within the

releva nt scienti fic community.” 725 I

LCS 5/116-3 (West 2008). Accord ingly , section

116-3 all ows a def

endant to have phy sical evidence s

ubjecte d to scientific testing that was not available at the time of trial if cer tain requirements are met. “To obtain testing, a defendant must present a prima faci e case that identity wa s the issue at his trial and that the evidence tested has been under a secure chain of custody .” People v. Savory , 197 I ll. 2d 203, 208 (2001). Both parties concede that defe ndant has established a prima faci e case that identity was at issue in his trial and that the evidenc e which he seeks to test was subject to a secure chain of custody

. If a defenda nt can es tablish his prima facie case for section 116-3 testing, as he has done here, he must then establish that the testing requested was scie ntifically unavailable a

t the time of his trial. 725 IL CS 5/116-3(c)(1) (West 2006). Defendant arg ues that although the three pieces of evide nce (the finger nail piec e, the va

ginal sw ab, and the recta

l swab) w ere pre

viously subjecte d to PCR testin

g, the e vidence can now b e subjec ted to add itional te sting, sp ecifica

lly “Short Tandem Repeat (STR) testing, mitochondrial DNA testing, and Y -STR DNA testing,” which we re alleg edly

not scien tifically availab le at the t

ime of tri al and pr

ovide a r easonab le likelihood of more probative results.No. 1-08-2679

14

The State responds that def endant’ s section

116-3 moti on merel

y r equeste d STR, PCR, and RFLP testing, while failing to request Y-STR or mitochondrial DNA testing, and therefore his reque sts for Y- STR and mito chondria l DNA test

ing shou ld be waiv ed. We ag

ree. As just mentioned, after establishing a prima faci e case, defendant’s next step in making a proper se ction 116-3 moti on to the tr

ial cour t is to esta

blish that t

he testing request ed was sc ientific ally unavailable at the time of his trial. 725 ILCS 5/116-3(c)(1) (West 2006). In this case the trial court denied defendant’s motion with regar ds to STR, PCR, and RFLP testing, finding that the evidence had already

been subjected to adequate DNA testing. The refore the only

issue on appeal is whether it was proper for the trial c ourt to deny defe ndant’s request for STR, PCR, and RFLP testing. We cannot say how the trial court would have ruled if defendant had a sked for YSTR or mtDNA testing, because that issue has not y et appeared before the trial c ourt. Accordingly , such requests are waived. See, e.g. , People v. Johnson , 154 Ill. 2d 227, 233 (1993) (finding that in the postconviction context, any c laim not raised in the original or amended petition is deemed waived). Moreove r, we not e that de fendant ’s trial to ok place in March of 2005, a

t which po int all three of the DNA procedures re quested in defendant’s original motion, plus the two tests he now request s on appe al, had be en judici ally recog nized as g eneral ly a

ccepte d by

the rele vant scie ntific community . Even de fendant admits as m

uch in his brief, sta

ting: “Since th e testing

of the sa mples in the

instant ca se in March 20 02, there

have be en histor

ic scien tific dev elopment s in DNA testi

ng, increasing

exponentia

lly t he relia bility of fore nsicNo. 1-08-2679

15 identification over earlier techniques. These tests include Short Tandem Repeat (STR ) DNA t estin g, mit ochon drial DNA te stin g, and Y-STR DNA testing. Brandon L . Garret, Claiming Innocence , 92 Minn. L. Rev. 1629, 1658-59 (2008) (noting that STR testing was not widely adopted until the mid to late 1990s, mitochondrial DNA testi

ng inve nted in the

late 1990 s, and Y- STR analy sis, which permits testing on the Y-chromosome, not adopted until the early 2000s).” See also People v. Miller , 173 Ill. 2d 167 (1996) (Illinois Supreme Court concluded that RFLP a naly sis is ge

nerally accept ed by the rele vant scie ntific community

); People v. Pope , 284 Ill. App. 3d 695, 703 (1996) (PCR-based methods of DQ-Alpha typing and poly

marker typing

for DNA iden

tification are now

gener ally accept ed in the r

elevant scientif ic commun

ity) ; People v. Rokita , 316 I ll. App. 3d

292, 300 ( 2000) (ST R-based DNA testi

ng is now gener ally accept ed in

re le va nt sc ie nt if

ic co mm un it y) . Accordingly , we find that defendant has failed to satisfy the second r equirem ent under

section 1 16-3, tha

t the tests request ed were not scien tifically availab le at the time of trial. Even if w e were

to find tha

t Y-STR tes ting and

mtDNA tes ting we

re not sc ientific ally available at trial, and that defendant’s reque st for such testing was not waived on review, we would nevertheless find that the results of such testing would not have the potential to produc e new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocenc e. See 72 5 IL CS 5/116-3( c)(1) ( West 2006)(if a de fendant can esta blish his prima faci

eNo. 1-08-2679

16

case for section

116-3 tes ting, an

d can als o establish that the testing request ed was sc ientific ally unavailable at the time of his trial, it is then incumbent upon the trial court to determine whether “the result of the testing has the scientific potential to produce ne w, noncumulative evidence materia lly r elevant to the def

endant’ s asserti on of act

ual innoc ence”) . “[E]vidence which is ‘materi ally

releva nt’ to a de fendant ’s claim o f actua l innocen ce is simpl

y e vidence which ten

ds to significantly a

dvance that claim” and “section 116-3 is not limited to situations in which scientific testing of a certain piece of evidence would completely exonerate a defendant.” Savory , 197 Ill. 2d at 213-14. A determination of whethe r materially re levant evidence of actual innocence would result from forensic testing “ ‘requires a consideration of the evidence introduced at trial, as well as an assessment of the evidence defendant is seeking to test.’ ” People v. Travis , 329 Ill . App. 3d 280 , 284 ( 2002) , quot ing Savory , 197 Ill. 2d at 214. With reg ard to the

mtDNA tes ting, de fendant does not explain why

mtDNA tes ting wou

ld likely have the scientif ic potent ial to prod

uce new , noncumu

lative ev idence material ly r

elevant to his actua l innocen ce clai m. As a mat

ter of fa ct, defe ndant only

mentions mt

DNA testi

ng twic e in his openin

g brief , without a

ny a ccompan yin g explana tion of wha

t it is or wha

t specifi c benef

its such testing would lead to, and does not discuss the “materially relevant” aspect of the analy sis at all. Bare assertions unsupported by argument or citation to legal authority are deemed waived. Hillblom v. Iva

ncsits , 76 Ill. App. 3d 306, 312 (1979); see also Niedermeyer v. Streamwood Park District , 3 Ill. App. 3d 1078 (1972) (reviewing courts should disregard conclusions of law or conclusions of material fact unsupported by specific factual allegations). With regard to Y-STR testing, the thrust of defendant’s ar gument is that the tests done atNo. 1-08-2679

17

the time of trial, particularly on the two fingernail swabs, did not y ield conclusive enough results. At trial, Pfofser testified that the first fingernail swab conta ined two DNA profiles, one consistent with defendant and the other consistent with the victim. Specifically , Pfofser testified that defendant could not be excluded from the male profile, which occ urs at a frequency

of 1 in 80 black males, 1 in 380 white males, and 1 in 320 Hispanic males. With respect to the second fingernail swab, Pfofser testified that the occ urrence rate on that profile was one 1 in 9,800 black individuals, 1 in 77,000 white individuals, and 1 in 99,000 Hispanic individuals. Defendant contends that the DNA test performe d prior to trial were not sufficient. He argues that “Y-STR is particularly necessary

in the instant case given the presence of mixed profiles on evidence.” Specifically , defendant argues that Y-STR testing “ resolves the problem of masking by

using only the male c

hromosome.” Defendant urges that the “ development of YSTR in recent yea

rs means the swabs in the instant case can be subjected to a dditional testing that provide a reasonable likelihood of more probative re sults.” The State agrees that Y-STR testing, “be cause it targets onlythe DNA of the male Ychromosome, is well-suited for mixed-gender samples,” citing J. Butler, Fundamentals of Forensic DNA Typing

366 (2009 ). The Sta

te conte nds, howe

ver, tha t defend ant is wrong in his assertion that Y-STR testing will produce statistical results that are more probative tha n the existing statistics gleaned at trial from PCR testing. A cursory r

eview of the widely

accepted and commonly

understood theory a

nd techn ology of DN A prof

ilin g is app ropri ate her e. In its earli est fo rm, DN A foren sic te chnol ogy focused on those pa

rts of the DNA molec

ule wher e there is a sign ificant v ariation

of base p airNo. 1-08-2679

18

patterns. People v. Miller , 173 Ill . 2d 16 7, 184 -85 (1 996). Over t he years, t he tech nolo gy evolved a nd now foc

uses on a c lass of po lymo rphisms in D

NA calle d “short t

andem re peats” (STRs), which are shorter in base pair leng th. STRs are readily a

mplified by a proce ss known as “polymerase

chain reacion” (PCR) technology . The number of repeats in STR markers can be highly var

iable among individuals, which make them particularly desirable for identification determinations. See J. Butler, Forensic DNA Typing: Biology

& Technolo

gy Behin d STR Markers 53 (2001). The current technology of STRs focuses on the small noncoding regions of the DNA mo lecule. The numbe r of rep eats of a

specific STR sequen

ce pres ent at a g

iven locu s,

com bin ed o ver

a de isn ga ted num ber of l oci , cr

eates a uni que DNA “pr ofi le” of a n in div idu al. J. Butler, Forensic

DNA Typing: Biology

& Technolo

gy Behin d STR Mark

ers 18 (2001). In the instant case, Pfofser te stified that she examined the DNA evidence using two

tes ting kits - Pr oFi ler and Cof ile r - b oth of w hic h ar e co mme rci al P CR/S TR ty pin g ki ts. See J. Butler, Fundamentals of Forensic DNA Typing 158 (2010 ) (the tw o kits rely on PCR amplific ation and

togethe r crea te an STR ma

rker pr ofile ac ross 13 core loci) . Pfofser also testified that she entered the DNA profile of the vag inal swab into the Combined DNA Indexing System (CODI S), which registers only STR-based profiles. J. Butler, Forensic DNA Typing: Biology &

Technolo gy Behin d STR Mark

ers 62 (2001). Y-STR testing examines the Y chromosome that passed from father to son. Y-STRs are short repeats found solely in the male-specific Y chromosome that code for male sex determination, spermatogenesis, and other male-r elated functions. “The technique was developed in part to identify a male contributor or contributors in cases of sexual assault, whereNo. 1-08-2679

19

DNA from both the female and male [] is present in a vaginal swab.” J. Epstein, “Genetic Surveillance” - The Bogeyman Response to Familial DNA Investigations , U. Ill. J. Tech. & Pol’y 141, 1 48 (Sp ring 20 09). T he tech niqu e may also be use d in ca ses wi th fin gernail scrapi ngs comprised of cells from the female victim and cells from the pe rpetrator. However, Y-STR testing cannot establish who the singular contributor of a crime scene source is, as the male chromosome traits may be found across people in a population as well as within a f amily . “This me

thodolog y ha s also re ceived m

ixed responses judic ially

in terms of

its admissibility at trial.” U. I ll. J. Tech. & Pol’y at 148. The main value of the test is that it has the power to include a n individua

l as a poss ible cont

ributor o f a crime

scene, o r to conc lusively exclude him from the pool of possible suspects. U. Ill. J. Tech. & Pol’y 141at 147-49. However, because a match b etween

a suspect and evid

ence on ly me ans that the individu al in ques tion could have contributed to the forensic stain, Y-STR testing is not as compelling as a n STR profile. See J. Butler, Fundamentals of Forensic DNA Typing 364-66 (2010). Thus far, there are no Illinois cases that have found Y-STR testing to be admissible at trial, an d there i s nothing

to sugg est that th e Y-STR te sting wo uld y ield more probativ e results th an th e P CR me th od em pl oye d i n t hi s c as e, wh ic h e xt ra ct ed an ST R p ro fi le . A cc or di ng ly, defendant has failed to show how Y-STR testing would have the pote ntial to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence. 725 IL CS 5/116-3(c)(1) (West 2006). III. CONCL USION For the foregoing r

easons we affirm the judgment of the circ uit court of Cook County.No. 1-08-2679

20

Affirmed. TOOMIN, P.J., and LAV IN, J., concur.