## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Mitchell , 2011 IL App (1st) 083143

Appellate Court Caption THE PEOPLE OF THE STATE OF IL L INOI S, Plaintiff-Appe l lee, v. EDWARD MI TCHELL , Def endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-08-3143

Filed Aug ust 5, 2011

Held ( Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for the first deg ree murder of a minor victim was upheld over his c halleng es to the testimony of a fing erprint expert and a DN A ex p ert and the denial of his reque st to impeach an unavailable witness.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 99-CR-19 6 8 4 ; the Hon. Stanley

J . Sacks, Judge, pr esiding

.

J udg ment Affirmed; mitti mus corre cted.Counsel on

Appea l Michae l J . Pelletier, Alan D

. Goldberg
, Patricia Unsinn, and Steven W. Be cker
, all of State Appellate Def ender ’s Office, of Chicag o, for appellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Amy Watroba Kern, and He ather Fa hrenkr og , Assistant St ate’ s Attorney s, of counsel), f

or the People.

Panel PRES IDING J USTI CE GARCI A deliv ered the judgme nt of the court, with opinion.
J ustice Cahill concur

red in the judg ment and opinion.
J ustice R. Gordon dissented, w ith opinion.

OP INION

¶ 1 On retria l, defe ndant Edwar d Mitchell was convicted by a jury of first deg ree murder and
sentenc ed to 100 y ear s in prison. The defe ndant challeng es, on various g rounds, the fing erprint e vidence that place d the def endant in the g ara g e wher e the murder wea pon was

rec overe d. He also contends the circ uit court err ed in reje cting his reque st to further impeach

a materia l and unavailable witness, whose testimony from the defe ndant’s first trial was rea d
to the jury

. Finally
, he challeng es the testimony of the State’s DNA expert. The circ uit court did not err in any

of its rulings. We af

firm.

¶ 2 BA CKGROUND ¶ 3 On Aug ust 21, 1999, the defe ndant and codef endant Kevin J o h n s o n we re char g ed by indictment with first deg ree murder of Paulette Peake, ag e eig ht. Ba sed on Paulette’s ag e, the State filed notice of intent to seek an extended sentenc e upon conviction. Paulette was shot shortly befor e 9:30 p.m. on J uly 31, 1999, while she stood in the chec kout line of Pat’s Food Store, a neig hborhood g roce ry s t o re l o cate d at the corne r of 79th Street and Sang amon Avenue in Ch i cago. Codefendant J ohnson pled g uilty to conspirac y to commit murder, attempted ag g ravated battery
, an d ar m ed violence. I n exchang e for his testimony at the defe ndant’s trial, Johnson receive d a sente nce of 20 y ear s, with day -for -day cre dit. ¶ 4 T h e d ef

en d an t was orig inally convicted by a jury in 2002

. T h i s co u rt ru l ed t h e defe ndant’s videotaped confe ssion was involuntary and remanded for a new trial. People v. Mitchell
, 354 I ll. App. 3d 396, 405 (2004). The I llinois Supr em e C o u rt denied the State’s petition for leave to appea l, but direc ted this court vacate the decision and rec onsider in light of People v. W

illis
, 215 I ll. 2d 517 (2005). People v. Mitchell
, 216 I ll. 2d 717 (2005). Upon

rec onsideration, this court ag ain rema nded for a new trial based on the same g round. People

-2-v. Mitche ll , 366 I ll. App. 3d 1044 (2006).

¶ 5 Evidence at Second Trial ¶ 6 As the State’s first witness, codef endant Kevin J ohnson cla i m ed h e wa s at h o me all evening until immediately prior to the s hooting on July 31, 1999. J ohnson testified he and the defe ndant wer e shot at the day befor e near the g roce ry store, which the defe ndant denied in his testimony

. The store surveillance video showed a rival g ang member by the nickname of “Toppy ” near the store at t h e time of the shooting. J ohnson considere d Toppy to be an “ene my ” eve n though T oppy , the def endant a nd J ohnson were members of the same g ang

. J ohnson testified he saw the defe ndant shoot the rifle in the direc tion of the store and Toppy

. ¶ 7 Three neig hborhood residents a lso testified for the State. Ma ry L ewis testified she sa w Toppy walking toward the store just befor e she hear d g unfire. Mary L ewis testified she saw the defe ndant, the codef

endant, and a third man walking back and forth near the store. Acc ording to her testimony
, Mary L ewis di d not see the actual shooting, though a defe nse investigator testified Mary L ewis told him she saw shots being fired at Toppy

. Marie Coffee testified she saw codef

endant J ohnson running in the alley s h o rt ly afte r the g unfire. Demetrius J ones could not be located at the time of the defe ndant’s second trial. On the State’s motion, the circ uit court ruled J ones a materia l witness that was unavailable to testify

. The c ourt permitted a la w cler k to rea d J ones’ testimony from the f

irst trial to the jury

. ¶ 8 At the defendant’s first trial in 2002, J ones t estifi ed h e was 29 y ear s old and attending Knoxvi lle Collegein Knox ville, Tenne ssee. W hen not attending colleg e, he lived with his mother and sister on Sang amon Avenue, near t he groc ery s t o re

. J ones t estified he was not

a member of a g ang , but he knew the defe ndant was a member of the Vice L ords g ang

. J ones testified that in J uly 1999, he was “in the Nava l A cade my at Gre at L akes, [W isconsin] .” I n a follow-up question, he clarified he was at the naval boot camp at Gre at L akes. He st ated he re ceive d a pass to visit his mother and sister. At approximately 9 p.m., he went with his mother to meet a family friend at a lounge at 79th Street and Morg an Avenue
, one block west of S ang amon. After l eaving t h e lounge
, he and his mother walked east toward t he groc ery store. As they wer e walking
, J ones looked in the direc tion of the school that was diag onally

acr oss 79th Street from the g roce ry store, wher e he saw the defe ndant with a y oung er man. He described the clothing the defe ndant was wea ring

. J ones and his mother stepped into the
g roce ry store to briefly g ree t the owner

. Upon leaving the store, J ones saw the defe ndant still

near the school. ¶ 9 As J ones and his mother walked south to her house on Sang amon, J ones g ree ted Toppy and stopped to talk with a friend named Linda. Whil e J ones was talking with Linda, he hear d 6 to 10 g unshots coming from near the school. J ones ducked betwee n a parke d vehicle and

a tree until the shooting stopped. During the shooting, he saw his mother jogg ing toward her house. He then looked in the direc tion of the school and saw the defe ndant with a rifle. J ones testified he was familiar from his milit ary training with the type of rifle he observe d. At the time J ones saw the defe ndant with the rifle, the defe ndant was wea ring a black or dark blue jacke t, differ ent clothing than when hefirst saw him. J ones observed t he defenda nt placed the rifle in his jacke t w ith the barr el pointing down, but the barr el was still visible. He next

-3-observe d the defe ndant run east, down an alley immediately to the south of the school. J ones

then ra n into the gr ocery

store, whe re he saw a

littl e g irl had been injured. W hen he e x ited the store, the police wer e on the scene and J ones observe d an office r rec over a bullet casing

. J ones also saw Mary L ewis in the cro wd t h at h ad gather ed. J ones attempted to talk to an office r about what he had seen, but the office r was too absorbe d in crow d control so he went home. The following day
, the police wer e in the ar ea. J ones told a police investigator what he saw the previous day and provided his telephone number. He testified that on Aug ust 4, 1999, he was transporte d by Chicag o police office rs from the Gre at L akes naval base to the police station at Are a 2. At Are a 2, J ones identified the defe ndant in a lineup. During his testimony
, J ones identified a rifle and jacke t as s i m i lar to those in possession of the defe ndant afte r the shooting. J ones testified he viewed the store’s surveill ance tape that showed he and his mother entering and exit ing the store. The tape also depicted Toppy
entering and exit ing the store. The tape showed J ones entering the store once ag ain afte r the shooting when he saw the injured g irl. On cross-examination, J ones denied he tol d Are a 2 detec tives that when the g unfire sta rted, he pushed his mother into an alley

. ¶ 10 I llinois S t at e P o l i ce DN A an al y st Har old J ohnson was qualified as an expert. The defe ndant unsucce ssfu l l y soug ht to exclude the expert’s testimony beca use “it was too inconclusive. ” E x p er t J ohnson testified he extracted DNA from swabs taken of a pair of
g loves rec overe d from the same g ara g e wher e the rifle was rec overe d. The swabs contained

a mix ture of human DNA profiles from at l ea s t three individuals. He testified that to positively identify the contributor of DNA, he would need to locate “13 spec ific segments of the DNA” or loci. He testified he was able to o b t ai n a p ro fi l e of only four loci of three differ ent individuals fr om the swabs. DNAexpert J ohnson opined that “1 in 71 blac k, 1 in 71 white and 1 in 82 Hispanic unrelated individuals cannot be exclud ed from having contributed to this mix ture of DNA profiles.” J ohnson conclude d the defe ndant “could not be excluded as a donor to that mix ture.” He testified his conclusion was based solely on his
comparison of the 4-loci profile. On cross-e x amination, expert J ohnson testified a 13-loci profile is nece ssary to make a positive identification beca use “13 marke rs *** wer e chosen by the FB I .” He clarified t hat while the mix ture was from at least three individuals, the mix ture could have come from more than three individuals. He admitted that it was “entire ly possible that twenty

people wor e those g loves and didn’t lea ve DNAbehind.” ¶ 11 Chicag o police detec tive Artea g a testified he determined that the bul l et t h at s t ru ck Paulette was fired from 7915 S. Sang amon based on wher e Paulette was standing when she

was hit by the bullet. The addre ss is the first house that abuts the alley that runs east and west and separ ates the school from the residenc es. The house at 7915 had bushes in f ront. I n the bushes, Artea g a rec overe d five 9-millim eter Lug er cartridg e case s an d thr e e 4 0-ca liber Smit h and Wesson cartridg e case s. Artea g a testified he was “ce rtain” the bullet that killed Paulette

was the 9-millim eter bullet found inside the store and not the 40-ca liber bullet found outside the store. Artea g a admitted, howeve r, it was possible that the bullets could have been kicked around in the chaos following the s hoot i n g. A “Diag ram of the Area of 79th & Sangamon Av.,” depicting the g roce ry store, the school, the streets just east and west, and the addre sses of houses on the bloc k south of 79th Street, was a dmitted as State’s exhibi t 43. ¶ 12 On August 1, 1999, Artea g a we nt to a g ara g e located at the r ear of 7927 S. Sang amon.

-4-Acc ording to codef endant J ohnson, the g ara g e was wher e the Vice L ord street g ang , the g ang he and the defe ndant belong ed to, s t o red wea pons and ammunition. A black HI Point, 9- milli meter semiautomatic rifle with a metal barrel was rec overe d from t h e re ar s eat of a stripped-down car in the g ara g e. The parties stipulated that the 9-millim eter bullet rec overe d
at the g roce ry store and the five cartridg e case s found in the bushes near the school wer e fired from the rec overe d rifle. Arteag a also found a blue windbreaker
, black leather glove s, and a hat in the g ara g e, along with numerous boxes of ammunition and a pane of g lass. ¶ 13 Mich a e l K o p in a , an expert in g unshot residue testing, testified he tested the leather g loves and windbre aker

rec overe d from the g ara g e. To a rea sonable de g ree of scientific certainty
, expert Kopina found g unshot residue on both the g loves and left and rig ht cuff s of the jacke t. ¶ 14 The circ uit co u rt ac ce p t ed He at h er Ad am s S i em er as an expert in fing erprint examination, over the defe ndant’s objection. Siemer testified to her analy sis of latent prints from two items rec overe d from the g ara g e wher e the rifle and clothing w ere discovere d. A latent print was “deve loped” from an ammunition box
, display ed as State’s exhibi t 67. The l at en t p rint on the box was photogra phed, which the S tate dis play ed as exhibi t 85. Siemer also testified reg arding two “lifts” of latent prints from the pane of g lass, display ed in State’s exhibi t 74. The photogr aph of the lift was display ed in State’s exhibi t 87. As lifts, the latent prints wer e capa

ble of immediate comparison to the defe ndant’s known prints, display ed as State’s exhibi t 79. As to eac h latent print, Siemer examined the latent impression or lift “for

certain things like pattern type, ridg e flow, and things such as this. *** [L ike] ridg es that end, rid ges t h at split into two, and short ridg es or dots. I took that information from the latent [and] went along to eac h of t he inked prints to see if I had a match.” T h e t wo l at ent print s matched the defe ndant’s prints from his number three fing er and number eig ht fing er. Siemer explained to the jury her comparison proce ss with the aid of State’s exhibi t 86, “a court chart of the late nt print f

rom the lift.” F ive comparison points were mar ked on the c hart. Siemer testified she quickly found “13 points of comparison,” but did not mark all 13 points on the chart beca

use it would “be kind messy with all t h e l i n es and stuff like that.” On crossexamination, expert Siemer admitted she was unfamiliar with “ACE-V ,” whi ch d ef en se counsel chara cterized as “the standa rd method of doing finge rprint comparison now t hat’s used by the FB I .” Ex pert Siemer admitted she made no notes of her comparison of the latent and known fing erprints. Ex pert Sieme r m ade no examination of the ammunition box for fing erprints belong ing to any one else. “Onc e I identified Mr. Mitchell I defe rre d proce ssing.” She never examined the g lass pane dir ectly

. ¶ 15 The medical examiner testified Paulett e was killed by a single g unshot that struck her chest a nd exit ed her

back. ¶ 16 After the defe ndant’s motion for a direc ted verdic t was denied, three witnesses testified in the defe ndant’s case -in-chie f, includi n g the defe ndant. The defe ndant admitted he was

arr ested, on the day of the shooting, around 9:30 p.m. near 80th Street and Peoria, one block east of Sang amon. The defe ndant denied firing a gun near the school. He admitted he wa s

a member of the Vice L ord street g ang and hung out w ith other g ang members on the 7900 block of South Sang amon. During cro ss-examination, the defendant admitt ed hanging out in the “barn” more than 10 times. H e rec alled touching things in the ba rn whe n items w ere reloc ated ther e. The items in the barn mig ht “possibly ” have included ammunition box es.

-5-¶ 17 Following the State’s rebuttal, the defe nse made an offe r of proof to impeach D emetrius

J ones’ testimony bey ond the transcript rea d to the jury

. The defe nse also moved to strike the testimony of Har old J ohnson, contending he was not qualified to g ive testimony on statistical analy sis. The circ uit court reje cted the proposed impeachme nt of J ones and denie d t h e motion to s trike. ¶ 18 The jury found the defe ndant g uilty o f fi rs t deg ree murder afte r about 1 hour and 15 minutes of deliberation. This appeal followe d.

¶ 19 ANAL YSI S ¶ 20 The defe ndant as s er t s three overa rching issues on appea l. He challeng es much of the fing erprint evidenc e and the DNA evidenc e. He also contends that the circ uit court err ed in reje cting the defe ndant’s offe r of proof to impeach the unavailable witness with “numer ous prior inconsistent statements.”

¶ 21 Fing erprint Evidence ¶ 22 The defe ndant contends the tes t i m o n y o f t h e fi n gerpr int expert lacke d an ade quate foundation, which opened the expert’s opinion to a challeng e at a hearing pursuant to Frye v. United States , 293 F. 1013 ( D.C. 1923).

¶ 23 Foundation ¶ 24 The defe ndant cites a s i n gl e case , People v. Safford
, 392 I ll. App. 3d 212 (2009), to support his claim t hat t he finge rprint ex pert’s opinion lacke d an adequate fou n dation. The defe ndant asserts, “ Safford is on all fours with the insta n t ca s e.” The State counter s that

“ Safford is completely

distinguishable.” We ag ree with the State. ¶ 25 I n Safford
, we ruled that “[t] he trial court err ed i n ad m i t t i n g t h e t es timony of the fing erprin t id e n ti f

ic ation expert wher e the foundation require ments wer e not met.” Id. at 230- 31. The fing erprint expert, examiner Cutro, “testified he looks at three levels of detail of eac h fing erprint underg oing an analy sis, explaining what he looks for at each l evel.” Id. at 220. Ye t , as “the State conce ded[,] no ‘L evel One, L evel Two, or L evel Three ’ detail of t h e comparison proce ss involving t h e latent print and the defe ndant’s known print was ever testified to by examiner Cutro.” Id . at 221. The State’ s conce ssion was consistent with our

rea ding of the rec ord. “We find no testimony by examiner Cutro as to how he arrived at his conclusion that the late nt print in question could onl y belong to the defe ndant.” Id . at 221. Ultimately
, “[w]e ag ree [d] with the defe ndant’s arg u m ent that althoug h the scientific community

is divided as to how many points of comparison ar e nee ded to make a positive identification, the proff

ere d expert must be subject to challeng e on the analy sis he undertook
to ar ri v e at his conclusion, reg ardle ss of the method he followed. Otherw ise, the basis for making a positive identification betwee n the latent and exemplar prints is not subject to scrutiny .” Id. at 225. Whil e ex aminer Cutro testified t o the “ge nera l proce ss he follow[ ed] in fing erprint identification,” he was unable to describe what he saw in common betwee n the latent print and the known print, whi ch m ad e h i s identification of latent print as the

-6-defe ndant’s print bey ond challeng e during cross-e x amination. Id. at 220, 223. We rea soned

that fing erprint analy sis involves the comparison of “unique, distinctive char acte ristics of the latent print” to a known print of the defe ndant to war rant the conclusion that the latent print “belong ed to no one other than the defe ndant,” a conclusion the expert must be able to explain. Id. at 225, 228. “[Ex aminer] Cutro never testified to any n u m b er of points of 1
comparison that he found betwee n the latent print fr o m t h e p atrol car and the defe ndant’s print.” Id. at 217. ¶ 26 The fac ts in this case stand in contra st to the fing erprint examiner’s testimony in Safford

. Her e, examiner Siemer explained the proce dure she followed to make a compa rison of the latent prints and the defe ndant’s known prints. Ex aminer Siemer stated she did a side-by -side
comparison of the latent prints and the defe ndant’s known sample, looking for “ridg e type, pattern flow, and things such as t h i s

. T h e fine details. The ridg es that end, split into two, short ridg es or dots.” Following this side-by -side comparison, she identified the latent prints

on the ammunition box as matching the defe nd an t ’s rig ht middle fing er. Reg arding the “lifted” print from the g lass pane, examiner Siemer identified the defe ndant’s left middle fing er as matching that print. Ex aminer Siem er s t ep p ed i nto the well of the courtroom to demonstrate to the jury on State’s exhibi t 86 and exhibi t 38, the five specific points of
comparison b et we en the lifted print and the defe ndant’s known print. Ex aminer Siemer testified she “ quickly ” found 13 points of c omparison betwe en the two prints. ¶ 27 Thus, the situation in Safford
, wher e no points of comparison wer e ever identified, is not
prese nt in this case wher e examiner Siemer testified to 13. The points of comparison, which

exam i ner Siemer identified, provided ample g rounds to challeng e her opinion that the

rec overe d prints matched the known prints of the defe ndant had the defe ndant elec ted to do

so. ¶ 28 Ex aminer Siemer’s opinion that the defe ndant’s fing erprints wer e found on items in the barn leads us to the last distinction betwee n the instant case and S a f f o rd

. I n Safford
, the fing erprint expert place d the defe ndant at the patrol car from wher e the shooting took place

. “[The fing erprint ex pert] determined that one latent print found on the lower lef t corne r of the hood of Offic er Marc ano’s patrol car matched the inked print car d of the defe ndant.” Id.
at 216. I f this fing erprint evidenc e was trustworthy and reliable
, then it destroy ed the defe ndant’s otherwise strong alibi defe nse p ro vided by three “unbiase d witnesses.” Id. at 229. I n our adver sarial sy stem of justice, meaning ful cross-e x amination of examiner Cutro’s

o p i n i o n t h at the defe ndant place d his hands on the patrol car was essential to “plac e

co n fi d ence in the outcome of [t he] trial.” Id. at 224. “A jury may be so sway ed b y s u ch

T he Stat e takes iss ue with Saf ford to the ext ent it “st and s for the pro pos it ion tha t the la ck 1 of poi nts of compari son goes to the admissi bil it y of the evid e n c e , a s o ppos ed to the wei ght.” We

re it er at e our st at ement in Saf ford
, whic h con t r o l l e d o u r f ind ing of er ror in tha t cas e. “W hil e the
pau ci ty of poi nts of si mi l a r i t y m ay go to the wei ght of the eviden ce ra the r tha n admissi bil it y [c it at ion ], as the p a u c i t y app roa che s zero, our con cer n is no lon ger wit h wei ght but wit h admissi bil it y.” Id. at 225 . I n ot her wor ds, had exa mine r Cu tr o te st if ie d tha t the re wer e zero poi nts of compari son bet ween the la te nt and exe m pla r pri nts , his opi nio n tha t the pri nts m at che d woul d be le gally in admissi ble

.
-7-evidenc e that strong alibi witnesses have littl e chanc e of being found cre dible when

fing erprint evidence points to the def endant be ing pr esent at the scene of the c rime.” Id. at 225. I n the instant case , howeve r, the defe ndant’s fing erprints wer e discovere d on objects in the gar age t h at the defe ndant acknow ledg ed was controlled by his g ang

. During his testimony
, the defendant admitt ed that he m ay v er y we ll have touched it ems in the gar ag e during his more than 10 visits to the g ara g e. As such, the discovery of the defe ndant’s prints

on two items rec overe d from the g ara g e was hardly unexpected. Unlike in Safford
, the fing erprint evidenc e in the instant case did not provid e d i rect evidenc e of the defe ndant’s
g uilt. ¶ 29 Safford is neither leg al authority for the defe ndant’s claim that an evidentiary foundation

was lacking for ex am i n er Siemer’s expert testimony
, nor fac tually simil ar reg arding the signific anceof the fing erprint ex aminer’ s testimony

.

¶ 30 Frye H earing ¶ 31 The defe ndant’s contention that he was entitled to a Frye hearing to challeng e examiner Siemer’s method o l o gy u s ed in her comparison of the latent and known prints is also unavailing beca

us e fi n ger p ri nt analy sis is neither novel nor new. Until our supreme court decide s otherwise, as it did with reg ard to the HGN evidenc e in People v. McKown
, 226 I ll. 2d 245, 257 (2007), there is no authority in this state for the defe ndant’s claim that the circ uit
court err ed in reje cting the defe ndant’s motion for a Frye hea ri n g o n the admissibili ty of fing erprint evidence . Nor a re w e per suaded to provide such authority in this case.

¶ 32 DNA Evide nce ¶ 33 I n his main brief, the defe ndant premises his challeng e t o t h e DN A t estimony on the following contention. “The State’s fore nsic DNA anal y st Har old J ohnson, who was qualified

as an expert in this field, testif i ed that Mitchell could not be excluded from having contributed DNA to a pair of g loves that alleg edly wer e worn by the shooter.” The defe ndant
soug ht to exclude this testimony befor e the trial court on the basis that “[i] t’s not an identification of Mr. Mitchell by any stretch of the imag ination. Fa lls far belo w the FB I standards to make an identification.” ¶ 34 W e do not disag ree with the defe ndant’s statement. We note onl y t h at DN A ex p er t J ohnson never testified t hat t he defenda nt’s DNA was found on the pair of gl o v es

. E x pert J ohnson testified that the defe ndant could not be excluded as having contributed to the DNA mix ture discovere d in the g loves, just as 1 i n 71, or 10 in 710, or 100 in 7,100 Afric an Americ ans could not be excluded. The DNA expert’s testimony did not place the defe ndant’s DNA in the g loves; the defe ndant’s DNA simply could not be excluded from the profile develope d from the mixt ure of DNA r ecove red f

rom the g loves. We rejec t the defe ndant’s contention that this DNA evidenc e could have overpe rsuade d the jury in light of its clea r and limit ed import. ¶ 35 I n any

event, it fa lls to t he discre tion of the trial cour t to determine the admissibilit y of expert testimony

. Safford
, 392 I ll. App. 3d at 221 (citing People v. Mack
, 128 I ll. 2d 231, 250 (1989))

. I n the absenc e of I llinois authority that DNA evidenc e is e x cludable as a matter of

-8-law based on the evidenc e being “too inconclusive,” we reje ct the instant defe ndant’s claim

that the equivoca l nature of expe rt J o h n s on’s opinion rende red his testimony leg ally inadm issible. Whil e the circ uit court certainly had discretion to disallow the expert’s testimony if it determined its probativ e v al u e was minimal, the court had the discretion to allow the trier s of fact t o assess that testimony and assig n the weig ht, if any , the testimony

war rante d. Of course , a rea sonable jury was fre e to disreg ard expert J ohnson’s testimony that the DNA profile did not exclude the defe ndant from having worn the rec overe d g loves in favor of direc t ev i d ence from codef endant J ohnson that the defe ndant wore those g loves when he fired the ri fl e i n t he direc tion of the neig hborhood g roce ry store, wher e Paulette stood in li ne. ¶ 36 Finally
, as t o the s tatistical fig ures reg arding the l ikelihood of individuals contributing
to the DNA mix ture rec overe d from the g loves, the defe ndant complains that the DNA expert “simply enter s the alleles into a computer prog ram, and it does the calc ulation for him.” The defe ndant does not sug g est how else the statistical fig ures should be calc ulated. We decline
to a ddress this c laim f

urther when the defe ndant fa ils to m ake c lear his positi on or provide authority for his contention of err or. See g ener ally In re Jessica M.
, 399 I l l

. App. 3d 730, 743-48 (2010) (desc ribing the evolution of DNA analy sis, including the statistical aspec t of DNA pr ofiling)

. ¶ 37 The defe ndant provides us with no persua sive rea son to rule expert J ohnson’s testimony

was inadmissible as a matter of law, when the equivoca l nature of the testimony was rea dily
appar ent to rea sonable juror s.

¶ 38 Unava ilable Witness ¶ 39 Finally
, the defe ndant contends he should have be en allowe d to impea ch the testimony of Demetrius J ones from the first trial, “with numerous prior inconsistent statements.” The defe ndant fails to explain how this further impeachme nt would have taken place
, g iven that J ones’ testimony was rea d to the jury by a law cler k. To the extent the impeachme nt would have occur

red by posing additional questions as if J ones wer e prese nt at the second trial, we reje ct such a novel and unprec edente d contention. More fundame ntally
, we reje ct the defe ndant’s contention that additional impeachme nt of J ones’ testimony was possible tha n the impeac hment that occur red at the first trial. ¶ 40 I n his main brief, the defe ndant contends the circ uit court err oneously denied additional impeachme n t o f J ones’ testimony “fr om three differ ent source s: (1) J ones’ September 2, 1999, statement to the police in which he stated t h at , afte r he hear d shots, he pushed his mother toward the alley (not watche d his mother jog to her house, as he testified at trial) and then turned around to see [t he defe ndant] with a rifle in the direc tion of the store; (2) J ones’
g rand jury testimony wher ein he clarified th at [ t h e defe ndant] was not trying to conce al a rifle and that 15 seconds elaps ed b etwee n the t ime that Toppy passed by him and the time he hear d shots; and (3) J ones’ Aug ust 4, 1999, written statement in which he said that from the time he left [t he g roce ry store] until he hear d the shots 10 to 15 seconds elapse d, as well as that, af ter the shots, he g ot up slowlyand wa lked towar ds [t he g roce ry store].” ¶ 41 As the State corr ectly points out, J ones was impeache d at the first trial with a statement

-9-he alleg edly made to Are a 2 detec tives, that when the g unfire started, he pushed his mother

into an alley

. We see no differ ence betwee n this im peac hment at the first trial and the first

source of prior inconsistent statements the defe ndant soug ht to introduce at the second trial. As to the second source of prior inconsistent statements, the defe ndant does not explain why the g rand jury testimony
, sworn as it was, was not admissible under 115-10.1 of the Code of Criminal Procedur e of 1963 (725 IL CS 5/115-10.1 (West 2008)), both substantively and for impeachme nt purposes. See People v. Mc C a r t er , 385 I ll. App. 3d 919, 930-31 (2008) (explaining the require ments of section 115-10.1, which allows a written prior inconsistent
statement of a witness to be admitted as substantive evidenc e). I n any event, neither point of “additional impeachme nt,” reg arding the conce alment of the rifle or the elapse d time based

on J ones’ testim ony befor e the g rand jury
, woul d h av e undermined J ones’ trial testimony

. Finally
, the defe ndant fails to persua de us that the third source of prior inconsistent

s t at em en t s , reg arding the number of seconds that elapse d and the manner in which J ones walked, qua lified as impeac hment. ¶ 42 Furthermore , the authority the def endant c ites for this claim of err or i s inapposite. The circ umstances in People v. Smith
, 127 I ll. App. 3d 622, 624-25 (1984), are too dissimi lar to provide any support that J ones’ testim ony at t he fi rs t t ri al could be impeache d with “prior inconsistent sta t em en t s , ” when J ones was ruled unavailable at the second trial. The rule

announce d in Smith does not rea ch the circ umstances p resent in this case

. “Where a statement of an abs2ent decla rant is properly admitted into evidenc e under one of the hear say exceptions, the opposing party may impeach such statement with a prior incons i s t en t statement by

the dec lara nt.” Id. at 630. ¶ 43 Her e, J ones was prese nt and testified at the defe ndant’s first trial. J ones’ testimony is not the equivalent of a “[statement of the absent decla rant, Boyle,] who was prese nt at the scene of the c rime, [but] died prior to trial.” Id. at 630. The fairness conc erns e x presse d in Smith

are not present be fore us. “At trial, B oy le’s stateme nts that the defe ndant was the assailant

wer e admitted into evidenc e. Under these circ umstances, Mrs. S m ith should have been permitted to t es t i fy t h at Boyle told her that he was not sure who attacke d [t he murder victim.] ” Id. at 630. Those c ircumstance s are not the circ umstances in this case

. ¶ 44 I n the absenc e of clea r authority to the contra

ry , the circ uit court did not err in r ejec ting the defe ndant’s eff

orts to “impeac h” Demetriu s J ones with “numer ous prior inconsistent statements” not introduce d at the def endant’ s first trial.

¶ 45 Cumulative Error ¶ 46 The defe ndant arg ues the cumulative eff ect of the claimed err ors deprive d him of a fair trial. Be cause we re

j ec t ed eac h individual claim of trial court err or, this cumulative contention has no merit. See People v. Garmon
, 394 I ll. App. 3d 977, 9 9 1 (2009) (bef ore cumulative er

ror c an be r ecog nized, “there must first be a showing of individual err or”)

.

¶ 47 Sentencing Credit ¶ 48 The de fendant c laims he is e ntitled to an additional 12 day s of cre dit f or time se rved in custody prior to sentenc ing. The State acknow ledg es the defe ndant may have been arr ested

-10-on J uly 31, 1999. We dir ect the mitti mus be corr ecte d to show an additional 12 day s cre dit

for time served in custody prior to sentenc ing.

¶ 49 CONCL USI ON ¶ 50 The c ircuit court did not er r in permitting the fing erpr int e x pert and the DNA expert to testify over the defe ndant’s objections. The defe ndant had a full opportunity to cr o s sexamine the experts. There is no support in I llinois jurisprudenc e for the defe ndant’s claim that he was entitled to a Frye hearing to challeng e the particula r methodology of the State’s fing erprint expert. The testimony o f a witness from the defe ndant’s first trial of a witness found to be leg ally unavailable wa s n o t s ubject to additional impeachme nt on the claims
urg ed by the def endant. We find no re ason to question the jury ’s ver dict of g uilty

.

¶ 51 Affirmed; mitti mus corre cted.

¶ 52 J USTI CE ROBERT E. GORDO N, dissenting: ¶ 53 I

respe ctfully

dissent. ¶ 54 On this appea l, defe ndant claims that the trial court err ed by : (1) admitting the testimony of Dr. Siemer , a finge rprint ex pert who failed to support or provide a basis for most of the
comparison points that she claimed to have found; (2) failing to c onduct a Frye hearing to determine if the underlying methodology of this fing erprint expert’s opinion had g ained
g ener al accepta nce; (3) refusing to allow defendant to impeach the testi m o ny of a missing witness, whose testimony was rea d into the rec ord, wit h p ri or inconsistent statements; (4) admitting the testimony of the State’s DNA expert whose testimony was based on an analy sis of only 4 loci when a 13-loci analy sis is standard for a match; (5) adm i t t i n g s t atistical testimony from the State’s DNA expert when he was not qualified as an expert in statistics; and (6) denying defe ndant a fair trial from the cumulative eff ect of these err ors. For the following rea sons, I

would reve rse. ¶ 55 First, I would find that, afte r defe ndant raised the issue of lack of evidentiary support for admission of the fing erprint evidenc e, the trial court err ed by failing to consider whether the State had established an adequa te basis for admission of this eviden ce

. Second, afte r revie wing the entire rec ord, I would find that the State did fail to establish an adequate basis for the expert’s testimony

. Third, I wo u l d fi nd that, in light of the contradicting narr atives offe red by the State’s own witnesses, this e rror was not ha rmless. Fourth, I would find that the trial court also err ed with respe ct to the finger p ri n t ev i d ence by failing to hold a Frye h e a rin g c o n c er

n in g w h ether the particula r methodology employ ed by this particula r e xami n e r in this case had g ained g ener al acc eptanc e. Fifth, I would find that the trial court err ed by not permitting defe ndant to perf ect the impeachm en t o f the missing witness by introducing evidenc e of the prior inconsistent statements. Six th, since the missing witness was one of only two event witnesses who testified to observing defe ndant with a rifle and the other was the codef endant, who provided self-se rving testimony
, I would find that this err or was also
not harmless. L ast but not least, t he cu m ulative effec t of t hese error s require s reve rsal and

-11-a rema nd for a new trial. Since I would reve rse on these issues, I do not rea ch the DNA issues

raised by defe ndant on this appea l.

¶ 56 BA CKGROUND ¶ 57 The only issue at trial was the identity of the g unman whose bullet killed Paulette Peake

. The S t ate’ s evidenc e established that the bul let that killed Peake went completely throug h her body and that the one spent bullet rec overe d from inside the store did not contain blood or bodily residue. ¶ 58 One issue at trial was which bullet, of the m any bullets rec overe d, was the fata l bullet. The State’s evidenc e indicated the possibili ty of three g unmen. First, a neig hbor testified that she observe d three y oung men patrolling the are a immediately befor e the shooting. Second, the State’s evidenc e establis h ed t h at t hree types of ammunition wer e rec overe d from the

scene : 9 milli meter, 380 caliber and 40 caliber

. The police serg eant who collecte d the crime

scene evidenc e testified that he was “c er tain” that the bullet that killed Peake was the 9- milli meter bullet f

ound inside the store, and not a 40-caliber bullet found outside the store, althoug h he admitted that it wa s possible that bullets could have been inadvertently kicked around in the chaos that followed the shooting. The pa rties stipulated that the 9-millimeter bullet was fire d from a rifle that police r ecove red f rom a ne arby

g ara g e. ¶ 59 The only wi t n es s es who provided evidenc e relating to the identity of the rifle g unman

wer e: (1) codef

endant Kevin J ohnson, who testified in e x chang e for a 10-y ear reduc tion in
sentenc e and whose testimony was contra d i ct ed i n p art by a neig hbor, Mary L ewis; (2) missing witness Demetrius J ones, whose prior testimony was rea d into the rec ord and whose prior inconsistent statements wer e not admitted at trial and thus are now an i s s u e o n this
appea l; (3) Mary L ewis, a neig hbor, who testified that defe ndant, as well as codef endant and

a third man, wer e wal k i n g back and forth in the are a prior to the shooting; and (4) the fore nsic evidenc e which is disputed on this appea l. ¶ 60 Of the event witnesses, only codef endant testified that he observed d ef en d ant actually shooting a

rifle at the store. The missing witness claimed to ha ve observed def endant a fter the shooting with a rifle in his hands. Although the testimo n y of Mary L ewis place d defe ndant, as well as codef endant and a third man, at the scene and walking back and forth, she admitted that she never saw who was shooting. Also, codef endant denied that he was

wa l k i n g b ac k and forth, claiming instead that he was in his house all evening unti l immediately prior to the shooting. Another neig hbor, Marie Coffee
, testified that she observe d codef

endant r unning in the a lley

shortly afte r the g unfire. ¶ 61 No fing erprints wer e rec overe d from the rifle. The S t at e’ s DN A experts testified that defe ndant could not be excluded from a mi x t u re o f DNA profiles obtained from a pair of
g loves that codef

endant testified wer e worn by defe ndant during the shooting. The mix ture

was cre ated by at least three people. The State’s fing erprint expert testified that defe ndant’s prints wer e lifted from a box of 32-ca liber ammunition and a pane of g lass found in the same g ara g e, which was used by defe ndant’s g ang as a hang out and wher e polic e fo u n d the 9- milli meter r

ifle and the g loves. ¶ 62 Another issue was the motive behind the shooting. Two possible targ ets of the shooting

-12-sug g ested by the evidence were : a rival g ang ; and a fellow ga ng m em b er named “Toppy .”

Codefendant testified that a rival g ang m ember had shot at him and defe ndant on J uly 30, 1999, the day befor e the shooting, at the same location. Howeve r, there was no evidenc e that the rival g ang was present on J uly 31, the day

of the shooting
, and defenda nt denied being shot at by any one the night befor e the murder. As for Toppy
, the store surveillance videotape indicated that Toppy was inside the store immediately prior to or at the time of the shooting, and codef endant testified that he considere d Toppy to be an “ene my ” al t h o u g h they wer e members of th e same g ang

. Specifica lly
, Mary L ewis, a neig hbor, testified that she saw Toppy walking toward the store and then hear d g un fi re. Demetrius J ones, the missing witness, testified that he revie wed the store’s secur ity videotape from the time shortly befor e and afte r the shooting and that on the tape he observe d Toppy enter and exi t t h e store. I n addition, Steven Glazier, a defe nse investigator, testified that Mary L ewis had told him that she obser ved shots being fired at Toppy

. ¶ 63 The State’s ke y witnesses provided c onflicting narr atives of the e vents. ¶ 64 For example, the t estimony of codefendant Kevin J ohnson that he was in his house all afte rnoon and evening until 9 p.m. was contradicted by the t estimony o f a neighbor
, Mary L ewis, who testified t h at , wh i l e s h e was on or near her front porch starting at 6 p.m. and throug h most of t he eve ning, she saw Ke nny and Kevin (code fendant) hang ing out by L eo Hig h School with defendant. ¶ 65 Marie Coffee
, a neig hbor, identified codef endant J ohnson from a photogr aphic arr ay as the man she had seen running down an alley less than a minute afte r she had hear d g unfire. At t ri al
, Coffee denied having told an officer that she had also observe d this man fire four
to five rounds at Pat’s store from a handg un, an d t hat she rec og nized the man from the neig hborhood b u t s h e d id not know his name. Offic er Paul Bailey
, who had interviewe d Coffee shortly

afte r the shooting , testified that Coffe e had, in f act, told him these thing s. ¶ 66 The conflicts conce rni n g t h e l ocation and actions of codef endant Kevin J ohnson are

cruc ial since in our leg al analy sis we m u s t d et er mine whether any err or ag ainst defe ndant was ha rmless in light of the othe r evide nce a g ainst him.

¶ 67 ANAL YSI S ¶ 68 As I stated above, I would find first that, afte r defe ndant raised the i s s u e o f l ac k o f evidentiary support for admission of the fing erprint evidenc e, the trial court err ed by failing
to consider wh et h er the State had established an adequate basis for admission of this evidenc e. Second, afte r revie wing the entire rec ord, I would find that th e S t at e fa i l ed to establish an adequate basis for the expert’s testimony

. Third, I would find that, in light of the conflicting narr at i v es offe red by the State’s own witnesses, this err or was not harmless. Fourth, I would find that the trial court also err ed with respe ct to the fing erpr int evidenc e by failing to hold a Frye hearing conce rning whether the particula r methodology employ ed by this pa rticular examiner in this case had g ained g ener al acc eptanc e. Fifth, I would find that the trial court erre d by not pe rmitting defe ndant to pe rfe ct the impeac hment of the missing witness by introducing evidenc e of the conflicting statements. Six th, since the missing witness was one of only two event witnesses who testified to observing defe ndant with a rifle

-13-and the other was the code fendant, who provided self -ser ving testimony
, I would find that this err or was also not harmless. L ast but not least, the cumulative eff ect o f t h es e errors require s reve rsal and a

rema nd for a

new tria l. ¶ 69 I

will now analy ze eac h of these points in order

.

¶ 70 I . Fing erprint Evidence: Inadequate B asis ¶ 71 Def

endant challeng es the fing erprint evidenc e by claiming
, first, that the trial court e rre d by admitting the testimony of a fing erprint ex pert who f ailed to suppor

t the majority of the
comparison points which she claimed to have f ound; and, sec ond, that the trial court erre d by failing to conduct a Frye hearing conce rning the methodology of this particula r fing erprint expert. I n this section, I will analy ze the first claim, which conce rned the lack of an adequate basis.

¶ 72 A. Standard of Review: L ack of

Ba sis ¶ 73 Th e p ar t i es d i s p u t e t h e ap p ro priate standard of revie w for defe ndant’s first claim. Def endant claims that an appellate court revie ws de novo the issue of whether the proponent has laid an adequate basis for a latent fing erpr int expert’s testimony
, and he cites in support this district’s decision in People v. S a f f o rd
, 392 I ll. App. 3d 212, 221-22, 226 (2009). I n response , the State claims that we revie w only for an abuse of discretion the issue of whether the trial court properly admitted the expert’s testimony
, and it cites the Fifth District ’s opinion in People v . Mehlbe rg , 249 I ll. App. 3d 499, 533 (1993). ¶ 74 I n S a

f f o rd
, we agr ee d that the admission of expert testimony is g ener ally left to the discretion of the trial court. Safford
, 392 I ll. App. 3d at 221 (citing People v. Mack
, 128 I ll. 2d 231 (1989))

. Howeve r, we observe d that proper admission require s the proponent to show

an adequate basis for the opinion. Safford
, 392 I ll. App. 3d at 221 (citing Hiscott v. Peters
, 324 I ll. App. 3d 114, 122 (2001))

. An adequate basis require s a showing that the expert based his or her opinion on reliable information. Id

. Whether the basis was adequate is a question of law, which we rev i ew d e novo

. Safford
, 392 I ll. App. 3d at 221 (citing Peters
, 324 I ll. App. 3d at 123 (i t i s a “question of law *** whether there was a sufficie nt basis for the expert’s opinions”)). Specifica lly
, we stated in Safford that determining whether an adequate basis was shown “ prese nts a question of law.” Safford , 392 I ll. App. 3d at 221. ¶ 75 I

would adher e to what wewrote in Safford and apply

a de novo standard of

revie w. I n add i t i o n , I observe in this case , as we did in Safford
, that there are no fac ts in dispute

conce rning this issue. The State conce ded in its appellate brief that its fing erprint expert did
not make any notes reg arding the d et ail of the prints during her analy sis. The State also

conce ded that, althoug h its expert claimed to have based her opinion on finding 13 points of
comparison during her analy sis, she marke d only 5 points on the enlar g ed photogr aphs used during trial and did not have any documents to show the other 8 points. Where the fac ts are not in dispute, our revie w is also de novo

. Safford
, 392 I ll. App. 3d at 221-22 (citing People v. Chapman , 194 I ll. 2d 186, 217 (2000)). ¶ 76 I n addition, the case on which the State relies, Mehlbe rg , was in a diffe rent proc edura l

-14-posture than the case in bar and, as a result, is less inst ru ct i v e. I n Mehlbe rg , afte r the trial

court ruled that the type of test was g ener ally acc epted, the trial court s p ec i fi ca l l y told defe ndant that he still had the rig ht to file a pretria l motion challengi n g the specific
proce dures and methodology used in his case

. Mehlbe rg , 249 I ll. Ap p

. 3 d at 534-35. Howeve r, defe ndant chose not to file such a motion. Mehlbe rg , 249 I ll. App. 3d at 534-35. Even though he chose not t o fi l e a p retria l motion, defe ndant did arg ue on appea l that the trial court was require d to scrutinize the s pecif ic procedure s used i n the case before ruling

on admissibili ty , a contentio n t h at the appellate court reje cted. Mehlbe rg , 249 I ll. App. 3d
at 539. However, it is not clea r whether defe ndant was arg uing that the trial court h ad t h e responsibility to scrutinize these proce dures s u a s p o nte

. By contra st, in the case at bar, defe ndant did fi l e a p re t ri al motion, and the issue befor e us is the appropriate standard of revie w for the denial of such a mot ion. Saf f o rd is closer to our case si nce it is clea r t hat i n Safford the defe ndant objected specific ally in response to rec eiving a repo rt wi thout any supporting note s and bef

ore the examiner’s testimony

. Safford , 392 I ll. App. 3d at 216.

¶ 77 B. Inadequate B asis ¶ 78 I n the case at bar, defe ndant filed a written pretria l motion on Aug ust 4, 2008, to exclude testimony by the fing erprint expert, arg uing that “[b] ased on [her] repor t it is impossible to tell wh et h er [she] is qualified as a fing erprint examiner, whether the minimum number of ridg e detail matches wer e found, and whether the standard ACE-V method of examination was followe d.” ¶ 79 At a pretria l hearing on Aug ust 18, 2008, defe nse counsel arg ued: “the rea son why I take this stance i s I h av e absolutely no information as to what methodology this [ex pert] used b ecause his notes consist of one line.” The trial court responded that it was “ a q u es t i o n o f

cre dibilit y not admis sibili ty .” The defe nse rene wed its objection at trial, when the State tender ed Siemer as a fing erprint expert, and the trial court ov er ru l ed t h e objection. I n defe ndant’s posttrial motion, the defe nse ag ain objected to “the fing erprint evidenc e and the methodology

employ ed in this case.” ¶ 80 Neither party disputes the leg al proposition that a proponent of expert ev i d en ce m u s t show an ade q u at e basis for its admission, nor could this time-honored proposition be disputed. People v. McKown
, 236 I l l

. 2 d 278, 311 (2010) (finding that “the absenc e of a proper foundation” is “er

ror” ). “An expert’s opinion is only as valid as the basis and rea sons for the opinion.” W

ilson v. Bell Fuels, Inc.
, 214 I ll. App. 3d 868, 87 5 (1991) (citing McCormick v. Maplehurst W inter Sports, L t d

. , 1 6 6 I ll. App. 3d 93, 100 (1988))

. “A party

m u st lay a foundation sufficie nt to establish the reliability of the bases for the ex p er t ’s opinion.” Petraski v. Thedos
, 382 I ll. App. 3d 22, 28 (2008) (citing Turner v. W illiams
, 326 I ll. App. 3d 541, 552-53 (2001))

. Ex pert opinions based on g uess, speculation or conjec ture

are inadmissible. Modelski v. Navistar International Transport ation Corp.
, 302 I ll. App. 3d 879, 886 (1999). ¶ 81 I n Safford
, we explained why
, for fing erprint evidenc e, it is particula rly important for a trial court to dete rmine whe ther the State ha s shown an ade quate ba sis:

“F inge rprint evidenc e is extremely persua sive. A jury may be so sway ed by such

-15-evidenc e that strong alibi witnesses have littl e chanc e of being found cre dible when fing erprint evidenc e points to the defe ndant being prese nt at the scene of the crime. T h e p er s uasivene ss of fing erprint evidenc e reinfor ces the need to require a proper foundation to establish its admissibi lity .” Safford , 392 I ll. App. at 225. ¶ 82 I n the case at bar, the trial court did not make a specific determination whether the State had shown an adequate basis. I nstead, the trial court ruled that the issue of whether there was a lac k of evidentiary support for the e x pert’s c onclusions was solely an issue of c redibility

or weig ht for the jury
, rathe r than an issue of admissibili ty

. The trial court err ed in this leg al ruling

. ¶ 83 Once defe ndant raised t h e i s s u e t h at there was a lack of evidentiary support for the expert’s conclusions, this issue became a fac tor that the trial court was require d to consider first in determining admissi bility

. I f t he trial court de t ermined that the S tate had shown an adequate basis to admit the evidenc e, then any alleg ed defic it in evidentiar y support would become a fac tor that the jury could also consider later when determining the weig ht to g ive
t o t h e ex pert’s testimony

. Howeve r, the trial court made an err oneous leg al determination when it held that the alleg ed lack of evidentiary support was a question of weig ht alone, and not an issue of a dmissibi lity

. ¶ 84 The fac ts in the case at bar are simil ar to the fac ts in Safford

. In Safford
, the fing erprint
exper t m ad e n o notes conce rning his visual examination of the prints, except to rec ord wh et h er t here was or was not an identification. Safford
, 392 I ll. App. 3d at 220. Hi s conclusion was then verifie d by another examiner. Id

. At trial, h e ex plained the g ener al
proce ss that he followed, which is to look at three levels of detail for eac h fing erprint. Id

. He did not testify

to a particular number of comparison points, explaining t hat he belong ed to

a g roup of experts that did not exclusively base their conclusions on the comparison points. Safford , 392 I ll. App. 3d at 217. ¶ 85 The case at bar is simil ar t o S a f f ord
, in that both experts did not make notes and both
exper ts had their conclusions verifie d by another examiner. The case at bar differ s from Safford in that, in our case , the expert did of fer an explanation at trial for 5 of the 13 points that she claimed to have found betwee n defe ndant’s print and the print lifted from the pane of g lass. ¶ 86 Howeve r, the lack of any explanation for the other eig ht points, which the expert claimed
to have found curtailed the defe ndant’s ability to cross-e x amine the witness. I n Safford
, we stated t hat our problem wit h the expert’s testimony was that the e x aminer c laimed to have based his opinion upon fac ts persona lly known to him, but he failed to testify to those fac ts. S a f f ord
, 392 I ll. App. 3d at 227. Simi larly
, in the case at bar, the expert testified t h at s h e based her opini on on 13 points of co m p ar ison, which she found “pretty quickly ,” but then she failed to testify to the fac ts underlying the overw helming majority of those points. Thus, for the same r easons weheld in Safford , I would hold here that the State failed to e stablish an ade quate ba sis for the opinion offe red by its finge rprint expert.

¶ 87 C. Not Harmless Err or ¶ 88 Having found er ro r, I t u rn next to the question of whether the err or was ha rmless.

-16-Safford
, 392 I ll. App. 3d at 230 (holding that admission of the fing erprint evidenc e was not

harm l es s ). An err or is harmless if “it appea rs bey ond a rea sonable doubt that the err or at issue did not contribute to the v er d i ct obtained.” People v. Stechly
, 225 I ll. 2d 246, 304 (2007). ¶ 89 The fing erpr

int ex pert’s te stimonyserve d to corrobor ate the te stimonyof codef endant. The expert’s testimony about a match corr oborate d c o d e f e ndant’s testimony that he observe d defe ndant shooting a rifle at the store, since the rifle was later found in close proxi mity to the pane of the g lass that y ielded the print. ¶ 90 Codefendant was the only witness who claimed to have observe d defe ndant shooting at the s tore. The missing wit ness claimed to have obse rved de fendant after the shooting with

a rifle in his hands. Although the tes t i m o n y o f M ary L ewis place d defe ndant, as well as codef endant and a third man, at the scene , she admitted that she never saw who was shooting. ¶ 91 C o d efendant’s testimony was called into question by the fac t that he was testify ing i n return for a reduc tion of his sentenc e in half, b y t h e conflicting testimony of one of the State’s own witnesses, and by the State’s own ballistic evidenc e. First, codef endant testified that, in exchang e for testify ing at defe ndant’s trial, he was allowed to serve only half of his 20-y ear sentenc e. Second, codef endant’ s testimony that he was in his house all afte rnoon and evening until 9 p .m. was contra dicted by the testimony of State witness Mary L ewis, who testified t hat, w hile she was on or near her front porch starting at 6 p.m. and through most of the evening
, she observe d codef endant walking back and forth near the crime scene

. L ast but not least, codef

endant testified that therewas only one g unman. Howeve r, Mary L ewis testified that she observed thre e men patrolling the a rea immediately prior to the shooting, and the State’s ballistic evidenc e established that three types of ammunition wer e rec overe d from the c rime sce ne, indicating the firing of three different g uns. ¶ 92 For these rea sons, I cannot find “bey ond a rea sonable doubt that the err or at issue did not contribute to the ve rdict obtained.” People v . Stechly , 225 I ll. 2d 246, 304 (2007).

¶ 93 I I . Fing erprint Evidence: Frye Hea ring ¶ 94 Second, with respe ct to the fing erprint evidenc e, defe ndant also claims that the trial court

err ed by failing to conduct a Frye hearing conce rning the methodology of this particula r fing erprint ex pert a nd whether it had g ained g ener al ac cepta nce. ¶ 95 Our supreme court has held that, alth o u gh a t es t p er fo rm ed acc ording to acc epted standards might satisfy the Frye standard fo r ad missibi lity
, the test as perf ormed by the expert in a particula

r case still might not meet the Frye standard. People v. McKown
, 236 I ll. 2d 278, 308, 311 (2010). The burden is on the State to prove that the expert’s methodology

was g ener ally acc epted in the scientific community

. McKown
, 236 I ll. 2d at 294. “We revie w the trial court’s conclusion that the State has met this burden de novo .” McKown
, 236 I ll. 2d at 294-95. ¶ 96 Prior to trial, defe ndant filed a motion in limine reque sting a Frye hearing conce rning the

m et h o d o l o g y of this particula r fing erprint examiner. The defe nse observe d that it had not

re ceived a curriculum vitae for the examiner. Ba sed on the examiner’s report, defe ndant

ar gu ed that “it was impossibl e to tell whether [t he examiner] is qualified as a fing erprint

-17-examiner, whether the m inimum number of ridg e detail matches were found, and whether

the standar d ACE-V method wa s followed.” ¶ 97 At th e p re t ri al h earing on the m otion, held on Aug ust 18, 2008, defe nse counsel ag ain
arg ued for an evidentiary hear ing on “the methodology used by the particula r examiner.” Counsel a rg ued that there was an issue “whe ther this g uy knows what he is doing
, whether he could use acc epted technolog y , acc epted methodology in the field.” I n response , the trial court rule d this “is a question of cr edibilitynot admissibil ity .” ¶ 98 At the trial, immediately afte r the examiner rec ited her q u al ification, defe nse counse l objected and the objection was overr uled. During cross-e x amination, the examiner admitted that she had never hear d of the ACE-V method and that she did not know whether the ACEV method was the standard use d by the FB I for f inge rprint examination. ¶ 99 AC E -V i s an ac ro n y m s t an d i n g fo r “ ‘A n al y s i s, Comparison, Evaluation, and Verification.’ ” National Resear ch Council of the National Aca demies, Streng thening For ensic Scienc e in the United States: A Path F orwa rd 137 (2009). It has bee n acc epted a s the standard method of fing erprint analy sis since 1959. Id

. First, the examiner must analy ze the p ri n t , consi dering the many fac tors that may “introduce varia bility in the resulting impression.” Id

. Second, the examiner must compar e the details of the print in question to the known standard. Id

. at 138. Third, the examiner must “eva luate[ ] the sufficie ncy of the detail prese nt” in both the print and the standard “to establish an identification.” Id

. Fourth, another qualified e x aminer must re peat these steps and ar rive at the same c onclusion. Id

. ¶ 100 I n a case , such as the one at bar, wher e the defe nse has leg itimately called into question the examiner’s methodology and knowledg e of acc epted standards, it was err or not to hold

a Frye hearing on that issue. McKown
, 236 I ll. 2d at 308, 311. The trial judge ’s response , that fing erprints had been ac cepte d in the State of I llinois since before he was born, m isses the issue. The trial court’s subsequent ruling
, that the expert’s methodology was solely an issue of cre dibilit y and not admissibili ty , was a leg al err or. For the rea sons alre ady discussed above, this er

ror wa s not harmless.

¶ 101 I I I . I mpeac hment Evidence ¶ 102 Def

endant al s o cl ai m s t h at the trial court err ed by not allowing him to perf ect the impeachme nt of the missing witness b y introducing evidenc e of the witness’s prior inc o n s is te n t s ta

te me nts. Specifica lly
, defe nse counsel had soug ht, at defe ndant’s second trial,
to call the police office rs who interviewe d J ones, or to introduce his g rand jury testimony or prior written statement to impeach this witness. ¶ 103 The trial court d en i ed d ef en d an t ’s motion on the g round that these statements wer e

av ai l ab l e t o prior counsel at the time of the first trial and that prior counsel had cross

examined J ones based on them. Howeve r, prior counsel did not perf ect the impeachme nt by 2

Wh il e pri or cou nse l had asked J one s abo ut the pol ic e int er view on August 4, 1999
, and had 2

tou che d bri ef

ly on his grand j ury te st imony
, it doe s not app ear tha t pri or cou nse l inq uir ed abo ut J one s’ Sep te m

ber 2, 1 999, st at ements.

-18-introducing the written stateme nts or calling the police of fice rs who hea

rd the stateme nts.

¶ 104 A. Standard of Review ¶ 105 The parties disag ree about the appropriate standard of revie w. The State claims that this is purely an evidenti ar y m at t er and evidentiary issues are subject t o an abuse of di scre tion standard. I n contra st, defe ndant arg ues that this issue aff ecte d his si x t h am endment confr ontation rig hts and that constitutional issues are subjec t to de novo revie w. ¶ 106 I n order

to determine the appropriate standa rd of r eview, w e must first determine what defe ndant is, and is not, arg uing on appeal. Def endant does not claim on appea l that the trial
court err ed by permitting the State to introduce th e p ri o r t ri al transcript of the missing witness. I n addition, during the second trial, defe ndant’s counsel had informed the trial court that he was considering asking the trial court to rea d the transcript without the crossexamination. Howeve r, befor e the transcript was rea d to the jury
, defe nse counsel asked the trial court to include the cross-e x amination. Thus, on this appea l, defe ndant is not contesting the admission of

the prior trial transcript, both the direct and cross, of the missing witness. ¶ 107 On this appea l, defe ndant claims that the trial court err ed only by denying him the rig ht
to perf ect the impeachme nt by introducing evidenc e of prior inconsistent statements. Neither party has provided a citation as to whether the denial of the rig ht to perf ect is a constitutional issue or a purely evidentiary matter. This court has foun d o nly one prior decision on this question, and it held that this issue is not a constitutional one. United States ex rel. Ruddock

v. Briley
, 216 F. Supp. 2d 737, 744 (N.D. I ll. 2002). Howeve r, that court acknow ledg ed that it could not locate any

other re levant dec isions. Briley , 216 F. Supp. 2d at 744. ¶ 108 I do not need to resolve this issue in this case since the standard of revie w would be the

same whether the rig ht to perf ect was a constitutional or purely ev i dentiary question. Although most evidentiary questions are revie wed only for an a b u s e o f d is c r e ti o n , “re viewing
courts sometimes revie w evidentiary ruling s de novo .” People v. Hall
, 195 I ll. 2d 1, 21 (2000). This exception applies to evidentiary ruling s that wer e “uniquely leg al ruling s.” Hall
, 195 I ll. 2d at 21. In the case at bar, the trial court permitted no perf ection, on the g round that prior counsel had cross-e x amined. The trial court stated that it did not believe t h at a defe ndant could introduce ev i d en ce “to i mpeac h testimony g iven under oath at a previous trial.” This was a purely leg al ruling
, which we may revie w de novo

. Hall
, 195 I ll. 2d at 21 ( de novo revie w is appropriate whe n the trial court applies “a broadly applicable rule” ).

¶ 109 B. Rig ht to Perfec t Impeac hment ¶ 110 The rig ht to perf ect impeachme nt of a missing witness is now codified in the new I llinois Rules of Evidence , which took ef fec t on J anuary

1, 2011. Rule 806 states in relevant part: “When a hear say statement *** has been admitted in evidenc e, the cre dibilit y of the 3

T he mis si ng wit nes s’ s tes ti m ony was hea rs ay but was admissi ble und erth e e xce pti on f or 3 for m er te st imony by a wit nes s whom t he cou rt fi nds to b e u n a va i l a b le

. See genera ll y I ll

. R. Evid. 804( b)( 1) (e ff . J an. 1, 20 11)

.
-19-decla rant may be attacke d, and if attacke d may be supported, by any evidenc e which would be admissible for those purposes i f d ec l arant had testified as a witness. Evidence of a statement or conduct by the decla rant at any time, inconsistent with defe ndant ’s hear say statement, is not subject to any require ment that the decla rant may have been aff

orded an opportunity to deny or explain.” I ll. R. Evid. 806 (ef f. J an. 1, 2011).
I f the above rule was in eff ect at the time of defe ndant’s trial, then the trial court’s ruling –that defe ndant’s prior opportunity to cros s -ex amine barr ed his prese nt rig ht to perf ect the impeachme nt–was clea

rly err or. The rule states that the impeachme nt “may be supported, by
any evidenc e wh i ch would be admissible for those purposes if decla rant had testified as a witness.” I ll. R. Evid. 806 (eff. Jan. 1, 2011). ¶ 111 I

find that the substance of the rule was in e ffe ct, althoug h it had not y et bee n codified. The above- quoted rule is identical to Rule 806 o f the Fe dera l Rules of Evidence
, which I llinois courts have previously cited and applied as the law in I llinois

. E.g.
, People v. Smith
, 127 I ll. App. 3d 6 2 2
, 630 (1984) (citing Fe d. R. Evid. 806 and stating its substance as the rule in I llinois ). See also People v. Johnson
, 271 I ll. App. 3d 962, 965 (1995) (citing Fe d. R. Evid. 806 wi t h approva l); Kincaid v. Ames Departme nt Stores, Inc.
, 283 I ll. App. 3d 555, 568 (1996) (citing Fe d. R. Evid. 806 with approv al)

. In addition, the Commi ttee Commentary

acc ompany ing the new I llin o i s ru les announce d that the new rules mere ly codified “the

curr ent l aw of evidenc e in I llinois ,” with the ex ception of two are as n o t i n volved here. I ll. R. Evid., Commi ttee Commentary (ef f. J an. 1, 2011). Wit h respe ct to Rule 806, the committee observe d:

“Rule 806 dispenses wit h the requiremen t of an opportunity to deny or ex plain

an inconsistent statement or co n d uct of an out-of-c ourt decla rant under all circ umsta n ce s when a hear say statement is involved. Whether I llinois law had alre ady dispensed with the require ment *** [i s] unclea r.” I ll. R. Evid., Comm i ttee Commentary

(ef f. Jan. 1, 2011). ¶ 112 Even if the above require ment persist ed, which is in doubt, the declara nt in the case at bar was confr onted during cross-e x am i n at i o n conce rning his g rand jury statement and his prior statement to the police on Aug us t 4, 1999. Thus, this require ment, even if it still exis ted, would not have ba rre d the def

ense f rom introducing evidenc e of the se statements. ¶ 113 For these reasons, I find that it was error, as a m at t er o f l aw, for t he trial court to have ruled that defe ndant’s prior opportunity to cross-e x amine barr ed his prese nt ability to perf ect the impeac hment.

¶ 114 C. Harmless Err or Ana ly sis ¶ 115 Having found err or, I must now determine wh et h er t h e er ro r was harmless. As we observe d above, an err or is harmless if “it appea rs bey ond a rea sonable doubt that the err or at issue did not contribute to the ver dict obtained.” Stechly , 225 I ll. 2d at 304. ¶ 116 On appea l, defe ndant focuse s particula rly on his inability to perf

ect the impeachme nt of the missing witness on the issue of whether J ones pushed his mother into the alley afte r he hear d g unshots. I f Jones was occupie d pushing his mother into the a lley , then this affe cted

-20-his abilityto turn and obser ve def endant standing on the corner w ith a rifle. ¶ 117 At trial, J ones testified that when he hear d g unfire, he ducked betwee n a parke d vehicle and a tree

. As soon as the g unfire stopped, he looked to see wher e hi s mother was and observe d that she was jogg ing toward their house. Then he looked toward L eo Hig h School and observe d defe ndan t wi t h a ri fle in his hands. By contra st, in his prior statements, he stated that, afte r he hear d the shots, he pushed his mother toward the alley

. At trial, he denied having pushed his mother into an alley
, and he denied having told this to the police. A police office r’s testimony to the contra ry might have led the jury to c onclude that J ones was ly ing about having seen de fendant immediately afte r the g unfire. ¶ 118 I cannot say , “bey ond a rea sonable doubt that the err or at issue did not contribute to the verdic t obtained.” Stechly
, 225 I ll. 2d at 304. The testimony of two witnesses identified defe ndant with a rifle: the self-se rving testimony of his codef endant, and the testimony of a missing wit ness whose impea chment the de fense was not allowed to support. As a result I
cannot say , bey ond a rea sonable doubt, that t h e trial court’s clea r leg al err or did not contribute to the ve rdict.

¶ 119 CONCL USI ON ¶ 120 As s tated above, I would find first that, afte r defe ndant raised t h e i s s u e o f l ac k o f evidentiary support for admission of the fing erprint evidenc e, the trial court err ed by failing
to consider whether the State had established an ad equate basis for admission of this evidenc e. Second, afte r re v i ewing the entire rec ord, I would find that the State did fail to establish an adequate basis for the expert’s testimony

. Third, I would find that, in light of the conflicting narr atives offe red by th e S t at e’s own witnesses, this err or was not harmless. Fourth, I would find that the trial court also err ed with respe ct to the fing erprint evidenc e by failing to hold a Frye hearing conce rning whether the particula r methodology employ ed by this particula

r examiner in this case was g ener ally acc epted. Fifth, I would find that the trial
court e rre d by

not permitting de fendant to perfe ct the im peac hment of the missing w itness by introducing evidenc e of the inconsistent statements. Six th, since the missing witness was

one of only two event witnesses who testified to observing defe ndant with a rifle and the other was the codef

endant, who provided self-se rving testimony
, I would find that this err or

was also not harmless. L ast but not least, I would find that the cu m u l ative eff ect of these

err ors re quires re versa l and a r emand f or a ne w trial.

-21-