THIRD DI VISI ON April 18, 2007 No. 1-04-3660 THE PEOPLE OF THE STATE OF IL LI NOIS, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 01CR22931 ) LEWIS JACKSON, ) The Honorable ) Frank G . Zele zinski, Defendant-Appellant. ) Judge Presiding.

Modified on Denial of Petition for Rehearing JUSTICE GREIMAN deliv ered the opinion of

the cour t: A jury found de fendant

Lewis Jackson g

uilty of first d egree murder a nd additionally found that the murder resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty a

nd had been committed during the course of an a rmed robbery . The trial court sentenced defendant to an extended term of natura l life in prison. On appeal, defendant contends (1) that the State failed to prove the charg e of first degree murder be yond a rea sonable doubt; (2) that the c ourt err

ed in deny

ing def endant’ s motion to qu

ash his ar rest and suppress statemen ts made thereafter when the police did not have probable cause to arrest defenda nt; (3) that defendant was deprived of a fair trial by the admission of prejudicial other crimes evidence that his DNA profile was contained in a database and tha t he used drugs; (4) that defendant was deprived of a fair trial by

the State’s closing comments; (5) that section 111-3(c-5) of the Code of Criminal Procedure of 1963 (the Code) (725 I LCS 5/111-3(c-5) (West 2004)), pursuant to which defendant was found eligible for an e xtended-term sentence, is unconstitutional; (6) that the trial court erred in refusing to bifurca te the guilt/innocence portion of the trial from the extended-term1-04-3660

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eligibility portion of the trial; (7) that the c ourt erred in failing to define wanton cr uelty to the jury and in failing

to explain to the jury the factors it should consider in deter mining whether defendant was eligible for an e xtended-term sentence; (8) that the State failed to prove that the crime was committed during the course of an a rmed robbery

beyond a re asonable doubt; and (9) that defendant’s sentence was excessive. The following facts were gleaned from the common law record, the transc ript of the hearing on defendant’s motion to quash arre st and suppress evidence and the trial transcript. The victim, de fendant ’s aunt, D oris Jackso n (here inafter

the victim

), lived in a building

for seni ors in Harvey , Illinois. The victim had lived in the building since she had suffe red a stroke which left her paraly zed on her right side and impaired her ability to speak. When the victim was killed, defendant, who had been kicked out of his house by his mother, had been living with her for

severa l weeks. The lobby

of the victim’s build

ing was only access ible with a

key and the do or to each apartment in the building locked automatically when it was closed. However, a person without a key could g ain access to the lobby if someone inside let him or her in. Each tenant was issued two keys to the front door of the building, two apartment door keys, one mailbox key and one storage room key . The victim and her ex-husband, defendant’s uncle Lewis Jackson (hereinafter L ewis), each possessed a front door and an a partment key. On Novemb er 1, 199 5, Le wis picke d up the vic

tim from he

r apart ment, took

her to ca sh her public aid check and to pay her bills, took her to lunch and dropped her off at her a partment. Generally , after pay

ing her bills, the victim was left with about $100 cash, which she would keep in her bra. However, L ewis did not see the victim place the money in her bra that day

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The following morning, November 2, 1995, at about 7 o’c lock, the victim’s daughter, Cassandra Jackson (hereinafter Cassandra) , telephoned the victim but received no answer. Cassandra was not concerned beca use the victim often went down to her building’s recrea tion room to g et coff

ee in the morning . That mor

ning at a bout 7:30, t

he victim’ s across

the hall neighbor Kenneth Jackson (hereinafter Kenneth) saw the victim in the recreation room. Later that morning, the building ’s maintenance man, Willie Stewart (hereinafter Willie), was vacuuming in the lobby of the building when defendant entered the building, asked if the mail had arrived and opened the victim’s mailbox. Though Willie did not recall seeing def endant use key s, Willie concluded t

hat defe ndant wou

ld have ha

d to use ke

ys i n order t o gain a ccess to the building and the mailbox. That afternoon, at about 3 o’clock, Cassandra we nt to the victim’s apartment building. Because Cassandra did not have a ke y to enter the lobby

of the victim’s building, she rang the victim’s apartment but received no answer and lef t. At around 3:30 that afternoon, Kenneth saw defenda nt in the hallway outside the victim’s apartme nt. Defe ndant wa lked awa y f rom the a partmen t to the sta

irs. Kenneth did not

see key s in defendant’s hand and did not see blood on defendant’s c lothes. At around 3:30 or 4 that afternoon, Willie and his friend John Simms were outside the building when a man Willie identified as defendant, but who Simms could not identify , came out of the building and asked them for a ride to a cur rency e xchange. They

said no and the man used a key to re enter the building. Cassandr a retur ned to the building at about 6

p.m. and, after r

inging the victim ’s doorbe ll1-04-3660

4

and rec eiving n

o respons e, rang

Willie’s do orbell. Wil lie let Cas sandra i nto the bui lding an

d into the victim ’s apar

tment. I n the apa rtment, Ca ssandra

and Willie f

ound the victim dea

d in a pudd

le of blood on her bedroom floor. Cassandra noticed that a television was missing f rom the living room and another was missing from the bedroom. Willie called the police. Detecti ve Rizzi and L

ieutena nt Hill arr ived at the apart

ment shor tly t hereaf ter. Hill walked through each room of the apa rtment taking notes, measurements and photogra phs. From the bedroom, Hill collected two bloodstained pillowcases, two bloodstained bedsheets, a broken knife blade, a small metal rivet that was consistent with the handle of a knife, a bloodstained yellow jacke

t and a baseball hat. Hill observed that the blood on the floor of the bedroom indicated that the victim had moved after blood had been shed and that the vic tim had suffered multiple stab wounds to her hands, arms and chest area. I n the bathroom, Hill observed several drops of blood on the toilet, floor, sink and bathtub. She collected a swab of blood from the toilet and a swab of blood from the side of the bathtub. She also collected a blood-soake d dollar bill from the bathroom floor. Hill observed that the pattern of dust on a table in the kitchen and on a dresser in the bedroom was consistent with Cassandra’s asse rtion that two televisions had been re moved fr om the apa

rtment. T here wa s no sign o f force d entry to the victim’s apa

rtment, no keys wer

e found in the apartment and no money , other than the blood-soaked dollar bill, was found in the apartment; however, a purse hanging on a doorknob in the apartment was not searched. Rizzi and Hill returned to the police station, where Rizzi spoke with Lewis, Cassandra and Kenneth. Then Le

wis, Cassandra and Cassandra’s husband, Shannon Frazier ( hereinafter1-04-3660

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Shannon) returned to the victim’s apartment. While they were cleaning the apar

tment, Cassandra and Shann

on heard key s jingling

and saw t

he door to

the apar tment cra ck open. Shannon w ent to the door a nd saw de fendant

walking away . Shannon c alled out to defen dant and d

efenda nt came back to the apart

ment. Shan

non did not n

otice an y c uts on def endant’ s hands at

that time. Lewis told defendant that the police wanted to talk to him and Shannon drove defendant to the police station. When Shannon and defendant arrived at the station, defenda nt went to the bathroom. He was then taken into an interview room with Rizzi. Shannon went into the bathroom after defendant and found a set of key s, which he recognized as the victim’s, sitting in the wastebasket. Shannon called Cassandra and told her about the ke ys. In the intervie w room, Rizzi a

dvised de fendant

of his Miranda

rights and noticed, as defendant was initialing a form reg arding those rights, that defendant had c uts on the palms of both of his hands. After speaking with defendant for 10 minutes, Rizzi was called to the front desk and was advised that Cassandra had called a bout the keys. Rizzi went to the bathroom and recovered the key

s from the wastebasket and set them on his desk. Rizzi then returned to the interview room. Defend ant told Rizzi t

hat he ha d last see n the vict im on Nove

mber 1 an

d had ret urned to her apartment at 10 a.m. on November 2. At that time, defenda nt could not get into the apartment because it was locked, so defenda nt went to his friend Clarence Douglas’s (her einafter Clarence) apartment, which was also in the building, a nd “got high” with Clarence and a woman named Joan . Defen

dant and Joa

n then we nt to the a rea of 1 59th

Street a nd Carrs A

venue un til 11-04-3660

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a.m. November 3, when he returned to the apa rtment. Defendant acknowledge d that he was aware that the victim kept her money in her bra. Defendant could not reca ll where he had gotten the cuts on his hands and agreed to allow them to be photog raphed. Rizzi took six pictures of defendant’s hands, placed him under arre st and took him to the police station lockup. Back at the victim’s apartment, Shannon and L ewis found several items of clothing in the hamper that appeared to have blood on them. They brought the clothes to the police station. At 4 p.m. on

Novembe

r 3, 1995, after a

dvising h im agai n of his Miranda

rights, Rizzi had a second conversation with defendant. Rizzi confronted defendant a bout the victim’s money and defendant stated that he did not need money because he had just cashed a $99 unemploy ment check. Defendant denied that the key s recovered from the station bathroom belonge d to him. Defendant stated that on November 1 at 11 p.m. he went to Clarenc e’s apartment, where he stayed until 2 a.m. on November 2. Defendant then met a man in a gra y Chry sler and got high. Defendant returned to the victim’s apartment at 3 a.m. a nd found the door unlocked. Defendant retri eved h is jac ket fr om th e apart ment b ut di d not see th e vict im. H e then procee ded to get high with the man in the gray

Chrysler again and returned to the victim’s apartment at 10 a.m. on November 2 to find the door locked. Defendant spent the r est of the day getting high at Clarenc e’s apa

rtment an d at 159th and Carrs and returned to the victim’s apartment at 1 a.m. on November 3. On the ev ening o f Novemb er 4, 199 5, Assista nt State’s Attorney Frank Ce ce spoke

with defenda nt after advising him of his Miranda

rights. Cece not

iced a c ut on defe ndant’s r ight pal m during their conversation. Defendant r elated to Cece that he had returned to the victim’s1-04-3660

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apartment at 10 a.m. on November 2 after being out all night to find the apartment door locked. Defend ant then went to Clar

ence’s apartme nt, then to

the are a of 158th

and Carr,s where he drank al cohol and

got hig h with seve

ral frie nds. At 1 a .m. on Nove

mber 3, de fendant

returne d to the apartment. Cece spoke with defendant a second time on the eve ning of November 4, 1995, after advising him of his Miranda

rights. Defendant stated that he had left the victim’s apa rtment at 11 p.m. on November 1 to go to Popey e’s restaurant and then to Clarence’s a partment, where he drank alcohol and got high. At 2 a.m. on November 2, defendant returned to the victim’s apartment, which was unlocked, and retrieve d his jacket but did not see the victim. He then spent the remaind er of the night at 159th and Dixie and getting high with a man in a car . When defenda nt returned to the v

ictim’s a partmen t, he foun d the door

locked, s o he went

back to Clarenc e’s apa

rtment the

n to 158th

and Carrs and returned to the victim’s apartment at 1 a.m. on Novembe r 3. When c onfronte d about the victim’s p

ublic aid check, defenda

nt stated t hat he did not need money be cause he had just cashed an unemploy ment check. On the afternoon of November 5, 1995, at defe ndant’s request, Cece had a third

convers ation with

defenda nt after informing

him of his Miranda

rights. Defendant reported that at 9 or 10 a.m. on November 2, he went to the victim’s apartment and discove red that a television was missing and that the victim was on the floor in a puddle of blood. Cece confr onted defendant with the facts that the police found blood in the bathroom, a bloody dollar bill and a knife. D efenda

nt stated t hat he ro lled the victim over, panicke d and washed the bl ood off hi s hands in the bathroom sink. He then left the apartment, leaving the door unlocked, went for a1-04-3660

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walk, went to Clarence’s apartment, then returne d to the victim’s apartment. He stay ed at the victim’s apartment for 20 or 30 minutes then returned to Clarence’ s apartment. Defendant went back to the victim’s apartment at 1 a.m. on November 3. After speaking with Clarence and K enneth, Cece had a final conversation with defe ndant. Defend ant state d that he had been at Clare nce’s dr inking a lcohol an d smoking

crack c ocaine u

ntil the early mor

ning of November 2. Sometime after day break, defendant returned to the victim’s apartment, where he “blacked out” in the living room. He did not know for how long he blacked out. When defendant woke up, he saw that the victim had been murder ed and that there was blood everywhe

re. Defendant touched the victim then washed the blood fr om his hands with a washcloth and towel in the bathroom. Defendant then changed clothes and left the victim’s apartment, leaving the door unlocked. Later he returned to the victim’s apartment, took the victim’s k

ey s and lef

t the apa rtment, lo cking the door be hind him. De fendant

returne d to Clarenc e’s apa

rtment, w ent with Joa

n to cash h

is $99 unem

ploy ment che ck and we

nt to Carrs to “party.” Defendant stated that he might have touched the blood stained dollar bill recovered from the bathroom. Thereafter, the decision was made to c ontinue the forensic investigation of the crime and defendant was released from c ustody without being cha rged. Rizzi and Hill attended the victim’s autopsy. Dr. Cogan, a me dical examiner, testified that the victim had b een stab bed 30 time s. She susta

ined 17 de fensive

stab woun

ds to her a

rms and hands. These wounds, along with hemorrhag ing to her forehead and leg , indicated that the victim had struggled. Of the 13 wounds the victim sustained to her torso, two went throug h her1-04-3660

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lungs an d heart, breakin

g her r ibs, and w ere like ly to

have be en immedia

tely fatal. I n addition

to two bro ken rib s, t he v ict im sus tai ned a br oke n bo ne i n he r ar m an d a b rok en b one in her han d. In Cogan’s opinion, the victim had died of multiple stab wounds. Followin g the au topsy , Hill took t

he victim’ s finge

rnails, v aginal , anal an

d oral swa

bs, blood standard and pieces of the victim’s arm and rib bones to her la b. She gave Rizzi the vi ct im ’s dr es s, br a a nd so ck s, wh ic h h e i nv en to ri ed th e n ex t d ay. Ri zz i a ls o i nv en to ri ed th e k eys that were recovered from the police station bathroom, the photographs of defendant’s hands and the clothing found in the victim’s apartment. The key s were later identified as the victim’s. A month later, Rizzi went on a year-long disability leave. In De cember

1995, for ensic expe

rt Jeanna Dufresne Walock t

ested se veral ite ms recovered from the scene, including the knife, the dollar bill and the swabs from the toilet and bathtub, and found that each tested positive for the presence of human blood. Walock requested a sample from a suspect to compare to her finding s but never received a response. In 2001, DNA expert L

yle Boicke

n received a request from an assistant State’s Attorne y to conduct DNA analy sis on the evidence collected in investigating the victim’s homicide. Boicken compared blood standards taken fr om the victim with blood taken from the swabs of the toilet and bathtub, the knife blade, the dollar bill and five sections of the bedsheet. The DNA profile of the blood on the knife blade, the dollar bill and the bed sheet we re consistent with the victim’s DNA profile. However, the DNA profile of the blood found on the toilet and bathtub were not consistent with the victim’s DNA profile. Boicken found that the DN A profile of the blood found on the toilet and bathtub matched defendant’s DNA profile, whic h was on file in the1-04-3660

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Springfield database. Thereafter, defendant wa s arrested. Defendant’s bucca l swab showed that his DNA profile was consistent with the DNA profile of the blood found on the toilet and bathtub. Rizzi was ask

ed to help find the e

vidence he had inventorie d when the case wa s first investigated in 1995. Rizzi was only able to locate one photog raph of the top of defendant’s right hand. He could not locate the key s or any of the c lothes recovered from the victim or her apartment. In the trial cou rt, defe ndant cha llenge d the admi ssibility

of his stat

ements ma

de afte r his 1995 arrest, arguing that he was arrested without probable cause. The c ourt found that, given the totality of the ci rcumstan ces, Rizzi ha

d probab le cause

to arre st defen

dant and h

is stateme nts made thereafter were, the refore, admissible. The case proceeded to a jury trial. The jury found de fendant guilty of first degree murder and additionally found that the murde r resulted from exceptionally br utal or heinous behavior indicative of wanton cruelty and had been committed during the course of a n armed robbery

. The court sentenced defendant to natura l life in prison. Defendant appeals. On appea l, defen dant first contend s that outr ight re versal o f his conv

iction an d sentenc e is warranted because he wa s not proven guilty of f irst degree murder bey

ond a reasonable doubt. While we agree with defendant that the fa cts of this case are very

close and the evidence of defenda nt’s gui lt was not overwhe lming, we do not think

outrigh t rever sal is war

ranted on this basis. “When a defendant challenges the sufficiency

of the evidence, the relevant1-04-3660

11

question is whether, after viewing the evidenc e in the light most favorable to the prosecution, any r

ational trier of fact could have found the essential e lements of the crime bey

ond a reasonable doubt. [Citations.] ‘Under this standard, a reviewing court must allow all reasonable infe rences from the record in favor of the prosecution.’ [Citations.] A finding of guilt will only be disturbed whe re the evidenc e is so unr

easonab le, improb able or u nsatisfa ctory that ther e is a reasonable doubt as to the defendant’s g uilt.” People v. McColler , 363 Ill. App. 3d 81, 86-87 (2005 ), quo ting People v. Bush , 214 Ill. 2d 318, 326 (2005). The evidence presented in this case showed tha t only two building key

s, two apartment keys and one m ailbo x key

were issue d to e ach r

eside nt of t he vi ctim’ s buil ding . The victi m’s e xhusband, Lewis, had one set of ke ys. At the time of the victim’s death, he r nephew, defendant had been living with her for a couple of weeks. On November 1, 1995, the victim cashed her public aid check, which genera lly left her with approximately $100 in cash that she usually kept in her bra. The next day , Kenneth, a neighbor, saw the victim at about 7:30 in their building’s recreation room. La

ter that morning, Willie, the building’s maintenance man, saw defe ndant enter the building and open the victim’s mailbox. That afternoon, at 3 p.m., the victim’s daughter, Cassandra, was unable to re ach the victim at her apartment. At about 3:30, defendant was seen walking away

from the victim’s apartment. Shortly ther eafter, he was seen outside the building asking for a ride and ree ntering the building, using a key . At 6 o’clock that evening, the victim wa s found sta

bbed to de ath on her

bedroom f

loor. The re was no sign of

forced entry to the victim’s apartment. Though the only money found in the victim’s apar tment was a bloody1-04-3660

12

dollar bill, the victim’s purse was not searched. Evidence from the vic tim’s bedroom and bathroom was collected. Defendant returne d to the apartment at 1 a.m. the next day. At the police station, defendant gave various ve rsions of his whereabouts on November 1 and 2, 1995, but did not admit to killing the victim. Police detective Rizzi and Assistant State’s Attorney Cece

noticed cuts on defendant’s hands and Rizzi took multiple pictures of defendant’s hands. After defendant used the police station bathroom, a se t of keys, which wa s identified as the victim’s, was found in the wastebasket. Several y ears later, the DNA of two swabs of blood found in the victim’s bathroom on the night of her murder were tested and found to match defendant’s DNA profile; however, none of the blood collected from the victim’s bedroom matched the defendant’s DNA profile. Much of the evidence collected in the investigation of the case, including clothes from the apartment, all but one of the photographs of defendant’s hands and the keys r

ecovered from the police station restroom, was lost. There w as not ove

rwhelmin g evide nce of de fendant ’s guilt p resente d in this ca se, and in fact we would characterize this as a ver y close ca se; however, we cannot say that, viewing the evidence in the light most favorable to the State, a rational trier of fact could not have found defendant guilty

of first degree murder bey ond a reasonable doubt. Accordingly , outright reversal is not warranted. Defend ant next contends tha

t the cour t erred in finding

that Rizzi had

probable cause to arrest defendant in 1995. The court’s err or, defendant argues, manda tes reversal of defendant’s conviction and sentence and remand for a hearing to determine whether his statements made after that arrest were sufficiently attenuated from the arrest to be admitted at trial.1-04-3660

1 Significantly, this was testified to at the suppr ession hearing but was not testified to at trial. 13 An arrest executed without a warrant is valid only if supported by proba

ble cause. People v. Montgomery , 112 Ill. 2d 517, 525 (1986). “Probab le cause

exists when

the totali ty o f the fa

cts and c ircumsta

nces known to the officers is such that a reasonably prudent person would believe that the suspect is committin

g or ha s committe d a crime . [Citations. ] Whether pr obable c ause is present is governed by

common-sense considerations [citations] and the calculation concerns ‘[t]he probability of criminal activity, ra

ther than proof beyond a re asonable doubt.’ ” Montgomery , 112 Ill . 2d at 525, q uoti ng People v. Tisler , 103 Ill. 2d 226, 236 (1984). We review a ruling on a motion to suppress involving probable ca use de novo

. People v. Sorenson , 196 Ill. 2d 425, 431 (2001). In this case, when he a

rrested defendant, Rizzi had examined the scene of the crime and had observed that there was no sign of for ced entry into the victim’s apartment. He was aware that several witnesses had seen defendant in the building and coming out of the victim’s apartment on the day

of the murder. Rizzi knew that defendant likely ha d access to the victim’s apartment because on the day of the murder he had been seen ente ring the building and opening the victim’s mailbox, which could only be done with a set of key s. Rizzi had been told by Cassandra that defendant was a cra ck user and that defendant and the victim had foug ht over

mo ne y. 1 Rizzi was aware that the victim had cashed her public aid check the da y before , that she1-04-3660

14

generally kept her money in he

r bra and that no money

was found on the victim’s person. Under these circumstances, Rizzi had probable cause to arrest defe ndant on November 3, 1995. Next, defendant contends that he was deprived of a fa ir trial by the court’ s admission of other crimes evidence. Other crimes evidence is not admissible to show a defendant’s prope nsity or disposition to commit crime bec ause it “ overper suades the jury, which mig ht convict the def

endant on ly because it feels he is a bad person deser ving punishment.” People v. Thingvo ld , 145 Ill. 2d 441, 452 (1991). However, other crimes evidenc e is admissible, where relevant, to prove modus operandi , intent, identity, motive or absence of mistake. People v. Illgen , 145 Ill. 2d 353, 364-65 (1991). A trial court’s ruling on the admissibility of other crimes evidence will not be reverse d absent an abuse of discretion. Thingvo ld , 145 Ill. 2d at 452-53. Concern ing othe r crimes evidenc e, defe

ndant first conten

ds that the

court er roneousl y admitted Boicken’s statement that the DNA profile of blood found on the toilet and ba thtub of the crime scene matched defenda nt’s DNA profile, which was on file in a DNA databa se. Specifically, the f

ollowing exchange took place betwee n Boicken and the assistant State’s At to rn ey: “[Assistant State’s Attorney:] And what did y ou do with that profile from the tub an d toilet? [Boicken:] The profiles were uploaded into what is called a data ba se [ sic ]. [Assistant State’s Attorney:] And did y ou get any

results from putting that profile into the data base [ sic ]?1-04-3660

15 [Boicken:] Yes. I ended up obtaining a match. [Assistant State’s Attorney:] And did that match give y ou the name of any particular person? [Boicken :] It g ave me a

refer ence nu mber from which I

would nee d to call down to Springfield and give to the codus administrator, the data ba se [ sic ] administrator, and they would look up the r eference number to who it hit to. [Assistant State’s Attorney:] What was the name of that person? [Boicken:] Lewis Jackson. [Assistant State’s Attorney:] And again, I don’t think I asked this question, but did the stain from the tub and the stain from the toilet bowl, were those the same DNA profile? [Boicken:] Yes. [Assistant State’s Attorney:] And after y ou got the results from the computer data base [ sic ], what did you do? Did you tele phone anyone ? [Boicken:] I telephoned the codus data ba se [ sic ] administra tor in Springfield.” Defendant argues that this exchang e implied that defendant had previously been convicted of other crimes and prejudiced the jury against him, depriving him of a fair trial. Neither party

cites a case in which this exact issue was addressed, nor has our in de pe nd en t r es ea rc h r ev ea le d o ne . H ow ev er , o ur di sc us si on of th is co nt en ti on is in fo rm ed by cases in which witnesses have testified that the defenda nts’ fingerprints were on file with the1-04-3660

16

government. These cases have consistently held that “[a] law enforc ement officer’s isolated and ambiguo us stateme

nt that he obtained defenda nt’s fing erprints

from a sta

te age ncy ’s datab ase does not by itself indicate that def endant has a criminal background.” People v. Jackson , 304 I ll. App. 3 d 883, 894 (1 999), citi ng People v. Hopkins , 229 I ll. App. 3d 665, 676 ( 1992); People v. Prewitt , 160 I ll. App. 3d

942, 949 ( 1987). The courts have re asoned that jurors , throug h their collecti ve knowle dge, a

re awa re that the finge

rprints of crime vic tims, gov ernment

employ ees, members of the military, police officers and security

personnel are kept on file by the government and therefore they

would not infer from the information that the defendant had a cr iminal background. Jackson , 304 I ll. App. 3d at 894; Hopkins , 229 I ll. App. 3d at 676; Prewitt , 160 I ll. App. 3d at 949. In Prewitt , a witness made an isolated reference to the fact that he obtained the defendant’s fingerprints from a c omputer database that uses the state’s crime lab. Howe ver, he did not make specific reference to the de fendant’s criminal history . The court found that the statement did not constitute reversible error. In Jackson , in addition to making a singular referenc e to the fact that the defendant’s fingerprints were filed in a g overnment fingerprint database, the witness f urther testified that the database contained fingerpr ints of every other

individual arrested, police officers and g overnment employees. Ne ither the witness nor the prosecutor stated that the defendant ha d prior arrests or convicti ons. The c ourt foun d that the refer ence to t he fing erprint d

atabase was not e

rroneou s. Here, Boicken’s refe

rence to the fact that defendant’s DN A profile was contained in a DNA database in Springfield, while not singular, wa s brief. Moreover, no further refe rence was1-04-3660

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made at trial to defendant’s prior arrests or c onvictions and no explanation was given as to why defenda nt’s prof ile was in the data base. However, we find th is case d istinguishable fr

om Prewitt and Jackson . In th

ose case s, the hold

ing that refer ences to the fact that the d

efenda nts’ fingerprints were filed in a g overnment database were harmless wa s based on the assumption that jurors are generally

aware that fingerprints are taken and kept in databases for a variety of

reasons unrelat ed to cri minal act ivity . Such is no t the cas e with DNA databas es, which, to this court’s knowledge, are utilized for little else than storag e of the DNA profiles of convicted criminals. Furthermore, the evidence that the DNA profile of the blood found on the toilet and bathtub matched defendant’s DNA profile, which was filed in the DNA database, was cumulative. Boicken further testified that a bucc al swab obtained directly from defendant showed that defendant’s profile matched that of the blood found on the toilet and bathtub. See People v. Cortes , 181 Ill. 2d 249, 285 (1998) (holding that the admission of other c rimes evidence was erroneous when “ the State could have easily accomplished its purpose without referring to the fact that def endant had just been sentenced at the time [the witness] met him and that [the witness] had accepted him as one of her probationers”). More over, we note that, had Boicken simply testified that the D NA profile of blood found on the toilet and bathtub of the crime scene matched defendant’ s DNA profile, without mentioning the fact that defendant’s DNA prof

ile was st ored in a databas e administ

ered out of Spring field, we

would not f

ind his testimony prejudic ial. Accordingly , we find that it was error to admit Boicken’s statement re garding the DNA1-04-3660

18

database. Again, we observe that the facts of this case were very close. Though we cannot say that no re asonable

trier of fact co uld have f

ound def endant g uilty of murde r bey ond a reasonable doubt, the evidenc e of def

endant’ s guilt wa s far fr

om overw helming . As a re sult, we f ind this erroneous admission of evidence tending to suggest that defendant had committed other crimes deprived defendant of a fair trial a nd warrants reversal of defe ndant’s conviction and sentence and rema nd for a new trial . Again , we obse rve that the colle ction and

storag e of DNA

as a means of identifying

individuals is a relatively new pr ocess and is not widespread. I n the future, as DNA is u sed for i dentific ation of in dividuals in more a

nd more a reas, a nd as the p

ublic becomes generally

aware of those uses, a differe nt rule might obtain. In lig ht of this c onclusion , we nee d not addr ess defe ndant’s c ontention s that the S tate engag ed in seve

ral insta nces of prosecut

orial misc onduct, that the jur y w as incomp letely instructed or that defendant’s sentence was e xcessive. We also need not address defendant’s contention that the sentencing enhancement fa ctor of armed robbery

was not proven bey

ond a reasonable doubt; however, we note that virtually no evidence supporting a finding of g uilt of this charge was presented and tha t, in fact, the State all but conceded at oral arg ument that defendant was not proven guilty beyond a re asonable doubt of armed robbery

. Finally, thoug

h not determinative of our ultimate decision in this case, we feel compelled to comment on defendant’s three remaining c ontentions. First, defendant contends that the court erred i n admitting

other cr imes evide

nce in the form of st

atements he made a

fter his 1 995 arre st that concerning his drug use on the da y before and the day tha

t the victim was killed. Defendant further argue s that the c ourt’s e

rror wa s compound

ed by the State ’s commen

ts on the dr

ug use1-04-3660

2 Testimony was, howeve r, elicited at the suppression hearing that defe ndant was a crack

co ca in e u se r a nd th at he an d t he vi ct im so me ti me s a rg ue d o ve r m on ey. 19 evidence in closing and the court’s failure to issue a jury instruction limiting the purposes for which the jury could c onsider the drug use evidence. In People v. Maounis , 309 Ill. App. 3d 155 (1999) , the appellate court adopted the rule of other jurisdictions that evidence of drug use could be pr esented as a motive in a prosecution for theft if the prosecution established that the defendant was addicted to drugs and that the defenda nt did not ha

ve the fi nancial resourc es to obta

in drugs and appli ed that ho lding to t he case before it. The court in Peopl e v. K limaw icze , 352 Ill. App. 3d 13 (2004), extended t he rule espoused in Maounisto a murder prosecution in which the State theorized that the defendant killed her mother to get money to buy drugs. Pursuant to these rules, we note that the court may have erred in admitting defendant’s admissions about drug use on the days surrounding the victim’s murder. First, the court barre d the State from submitting any e vidence at trial that defendant was addicted to drug s. Cons equen tly, no ev idenc e of def endan t’s ad dicti on was presen ted to the ju ry. Secon d, th ough testimony was presente d that, at the time of her murder, the victim may have been in possession of about $100, the victim’s purse was never searche d and there was no evidence prese nted at trial that defendant was in need of money at that time. 2 On the contrary , defend ant repe atedly

told Rizzi and Cece that on the day of the murder, he had cashed an unemploy ment check. Evidence was also elicited that on the day of the murder defendant asked for a ride to the currency exchange to cash a check.1-04-3660

20

If the admission of evide

nce concerning

defenda nt’s drug use was e

rroneou s, it necessarily

follows that the State’s comments on that evidence in closing were in er ror and the court’s failure to issue a n instruction to the j ury

limiting it s conside

ration of the drug use evidence to the issue of motive did not alleviate any prejudice that error may

have caused. Defendant further contends that section 111-3(c -5) of the Code violates article I , section 7, of the Illinois Constitution (Ill. Const. 1970, art. I ,§ 7). Section 111-3(c-5) of the Code allows the State to allege f acts which increase the rang e of

sentenc ing in the

charging instr

ument or th

rough w ritten not ificatio n to the de fendant

prior to trial. 725 IL CS 5/111-3( c-5) (We st 2004). A rticle I , section

7, of the C onstitution

provides that a perso n may not b e charged with a crim e with out gra nd ju ry approva l or a p robab le caus e heari ng. Ill. Co nst . 19 70, art . I, § 7. T he a rgu men t t hat sec ti on 1 11- 3(c -5) of t he C ode vi ol ate s ar ti cle I, section 7, of the Constitution because it allows the State to add an element of an offense w ithout grand jury approva l or a pro bable ca use hear ing has b een add

ressed a nd rejected by

this cour t in People v. McClain , 343 Ill. App. 3d 1122 (2003), and People v. Schrader , 353 Ill. App. 3d 684 (2004). We adhere to those decisions. Finally, defe

ndant contends that the court erred in refusing to bifurcate the guilt/inn ocence portion of

his trial f rom the e nhance d sentenc ing port

ion. As a r

esult of th is refusal, defendant argue s, certain prejudicial autopsy photographs, including photographs of the victim’s in

ternal organs t

aken af ter auto psy had beg un and pictures of

removed arm and r

ib bones which were dented or broken whe n the victim was stabbed, were introduced prior to a finding of guilt or innocence, depriving defendant of a fair trial.1-04-3660

21

As defe ndant poin

ts out, Supr

eme Court

Rule 451 wa s amende d on Febr uary 10, 2006, t

o provide that, effective July 1, 2006, w hen the State seeks an enhanced sentence pursuant to one of the factors set out in section 111-3(c-5) of the Code, the c ourt may conduct a unitary trial or, upon motion of a party and a finding that the enhanced sentencing factor is not relevant to the question o f guilt or a findin g that pr ejudice outweig hs the fa ctor’s probative

value, c onduct a bifurcated trial. 210 Ill. 2d R. 451(g ). Unfortunately f

or defendant, this rule does not apply to his case, which took place before the rule ’s effe ctive da

te. I nstead, i n defend ant’s ca se, the tr

ial cour t was boun

d to follow

case law which provided that, despite the risk of prejudice to a defe ndant, neither common law nor the legislature authorized a bifurcated proc eeding, separating proof of the extended term factor from proof of guilt, in a case such as defe ndant’s. See People v. Norwood , 362 Ill. App. 3d 1121, 1138-40 (2005). Moreover, while photographs of a victim may be admitted to prove the nature and extent of the injuries allegedly

inflicted by a def

endant, they must be re levant to prove facts at issue and may be inadmissible if their pre judicial nature outweighs their probative value. People v. Bowman , 357 I ll. App. 3d 290, 298 (2005). Whe

n the photo graph s depict g risly autopsy details without shedding light on a disputed issue, they are generally

inadmissible. People v. Batchelor , 202 Ill. App. 3d 316, 330 (1990). The decision to admit photogr aphs rests within the discretion of the court and will not be disturbed absent a showing of abuse

. Bowman , 357 Ill. App. 3d at 298. Here, because both the issues of guilt and whe ther the crime was brutal or heinous were1-04-3660

22

addressed in the same proceeding, a nd the grisly a

utopsy photogra

phs shed light on whether the crime was brutal or heinous, we cannot say that the trial court abused its discretion in allowing the admission of those photographs. Nonetheless, we observe tha t defendant is correct that had the trial been bifurcated, several of the photographs submitted to the jury ma y have c aused undue prejudice if they

had been admitted during the guilt/innocence pha se. Finally, we obse

rve once again that the fac ts of this case were very

close and the evidence of defendant’s guilt was far fr om overwhelming. Nonetheless, for the rea sons stated above, outright reversal is not warranted. Howe ver, we find that defendant was deprived of a fair trial by Boicke

n’s comments that defendant’s DNA was stored in a database and, for that reason, defendant’s conviction and sentence are reversed and this case is remanded to the trial c ourt for a new trial. Reversed; remanded for new trial. KARNEZIS and CUNNI

NGHAM, JJ., concur.